The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.2) Regulations 2023 came into force on 29 April 2023.

This Guidance item reflects the regulations in force prior to that date.
For the regulations in force from 29 April 2023, please refer to the current Guidance section.

Where you act for more than one assisted person in the proceedings, whether criminal legal aid or ABWOR or both, you can claim a separate fixed payment for each assisted person, but at a reduced level.  This allows you to act for more than one assisted person, where you do not consider there to be a conflict of interest, but reflects the likely level of work common to the co-accused undertaken in the process.

Where you represent two or more assisted co-accused, you are entitled to an appropriate percentage of the total fixed payment, together with further fixed payments, prescribed in Schedules 1, 1A and 1B, as follows in regulation 4(5):

  • the first assisted person, 100%;
  • a second assisted person, 40%;
  • a third and each subsequent assisted person, 20%

The provisions do not attempt to determine which co-accused is the ‘first’, ‘second’ or the ‘third’ assisted person in the circumstances and that is for you to choose in the circumstances of the case, and to tell us when lodging your claim.

As can been seen from regulation 4(3), the “single matter” for which a fixed payment is chargeable in summary proceedings includes a single summary complaint or complaints which arise out of the same incident.

Regulation 4(3)(a) is unqualified in its terms and is wholly unconcerned with:

  • The number of charges on a complaint or complaints
  • The number of accused
  • The nature, diversity or complexity of the charges.

Regulation 4(4) states that where in such proceedings a solicitor acts for more than one assisted person a separate fixed payment shall be made to him in respect of each such assisted person, in accordance with paragraph (5) below – so regulation 4(4) refers to the same entity. It has been suggested, although we do not agree, that the definition applies to the summary complaint as it relates to each individual accused person rather than the case itself (that is, against all the accused persons). Such an interpretation, however, would make nonsense of the provisions at sub-paragraphs (4) and (5); a solicitor could never represent more than one assisted person in summary proceedings if the “proceedings” themselves were restricted to the case against each individual person.

The summary proceedings, as defined, consist of the case against all the accused in respect of all charges on the summary complaint.  In the event that you represent more than one assisted person in the proceedings your fees shall be restricted in terms of regulation 4(5).

In this section