(Archive) No payment can be made to a witness on the Crown list


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 item.

Any expenses incurred by a witness on the Crown list in connection with attendance for the purpose of giving a precognition or a consultation with the Defence cannot be paid from the  Fund. We have no discretion on this and are only able to pay such sums from the Fund as our legislation allows. Regulation 8(1)(b) of the criminal fees regulations states

“Outlays allowable to solicitors

  1. (1) A solicitor shall be allowed the following outlays, due regard being had to economy –


(b)fees paid to witnesses who are not on the Crown list, which fees paid shall not exceed such sums as are considered by the Board to be reasonable having regard to the sums payable from time to time by the Crown to witnesses of the same categories; …..”

There are good public policy considerations to support the current legislative position. It is an underlying principle of access to justice that an accused person has a right to a precognition from a Crown witness, and by extension a consultation, to ascertain the witness’ evidence, who in turn, as a citizen, is expected to provide it. This view is supported by the observations of Lord Justice Clerk Macdonald in the case of HMA v Monson (1893) 21R ( J ) 5 where, at page 11, he stated :

“I consider it to be the duty of every true citizen to give such information to the Crown as he may be asked to give in reference to the case in which he is to be called; and also that every citizen who is to be called for the Crown should give similar information to the prisoner’s legal advisers, if he is called upon and asked what he is going to say “.

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