(Archive) Prison opt-out procedures allowing detailed charging where a client is remanded in custody

In solemn proceedings, unless an application is granted for a ‘prison opt-out’, the payment for all visits and consultations with the client in prison, after the client has been fully committed and before the client is convicted, must be made in accordance with Schedule 1, paragraph 3, Part 2, of the Fees Regulations.

This is the fee payable “for arranging and attending all meetings, including consultations, in prison with the client after full committal for trial up to the conclusion of the case”.

That fee is chargeable regardless of whether the visits are in person, held by way of video conferencing or by telephone calls chargeable as attendance time, that is, in excess of 10 minutes.

The inclusive fee is only payable when the meetings take place in a prison listed in the HMP list of prisons. If the accused person was detained in an institution not included in that list the inclusive fee does not apply and you must charge for this work on a detailed basis subject, of course, to the work being actually and reasonably done, due regard being had to economy.

Paragraph 1(5)(i) of the Notes on the operation of Schedule 1 of Criminal Legal Aid (Scotland)(Fees) Regulations 1989, states that:

“(5) The following items of work do not fall within any block of work prescribed in Part 2 of the Table of Fees and the fees for these items are payable in accordance with Part 1 of the Table of Fees (detailed fees)–

(i)        the work described in paragraph 3 of Part 2 of the Table of Fees, where the Board is satisfied that the case raised unusually complex issues of fact.”

Where you can show that the case raised unusually complex issues of fact, we can exercise our discretion that allows you to have the option to charge for prison visits on a detailed, rather than inclusive, fee basis.

If we grant your application, you are not compelled to charge on the basis of detailed fees. Accordingly, if the case resolves in a different way to that expected when you made the application, if it would be more remunerative, you continue to have the option to charge the inclusive fee.

When can you make an application for a prison opt-out?

You can make an application up to four months after the conclusion of proceedings.

This allows you to reach an informed view, at the accounting stage, as to whether or not the inclusive fee payable provides reasonable remuneration.

You can make an application whist the case is ongoing where the features of the case are sufficient to justify unusually complex issues of fact.

In such cases if we grant your request we will provide you with a ‘letter of comfort’ that confirms if the case proceeds as intended you may opt-out of the prison inclusive fee and charge for meetings and consultations with your client on a detailed basis.

Submitting the application

You should submit your application using our online system following the guidance Prison opt out application video

If we do not have enough information, we will ask you to provide further information in support of the request.

The decision on whether or not grant any request is a matter solely for us to decide. It is not a self-certifying matter to be taken by you and it is not sufficient simply to assert that the case is a complex one and justifies a prison opt-out grant. That was the clearly stated position of the court in HMA v. CK [2011] HCJAC 61.

Factors which may contribute to ‘unusually complex issues of fact’

The inclusive fee payable for prison attendances are set at a level that recognises that more serious offences are likely to require a higher number of prison attendances.

Accordingly, applications which are made solely as a result of the seriousness of the offence will be refused unless they are supported with a commentary in support of the features in that case which demonstrate ‘unusually complex issues of fact’.

The regulations do not define  ‘unusually complex issues of fact’. Factors we consider include the following:

• significant volume of evidence disclosed over a sustained period
• the number of witnesses, particularly, where there are multiple expert witnesses
• where the client does not speak English and instructions are provided via an interpreter
• where the client has a mental health diagnosis, sustained health difficulties or learning difficulties, etc
• the number of charges which feature against the client
• the length of time the client has been remanded in custody
• where there has been a transfer(s) of solicitor.

This is not intended to be an exhaustive list and you can invite us to consider any other circumstances that you feel demonstrate unusually complex issues of fact.

Meetings and consultation which continue to be chargeable under inclusive fees even where a prison opt-out is granted

Where a request is granted it does not apply to any prison meetings or consultations during the periods covered by paragraph 1 (Petition fee) or paragraph 5 (Post-Conviction fee) of Schedule 1, Part 2, as any attendances during those periods are covered by those respective inclusive fees.

Waiting time not chargeable at prison

Paragraph 4 of the Notes on Operation of Schedule 1 precludes waiting time being chargeable for anything other than time spent waiting at court for a hearing. Therefore, where you charge on a detailed basis, you cannot claim for any time spent waiting at prison.

Review of decision

Where we refuse a prison opt-out application you can request that the decision is reconsidered. Where a review is being sought on a final decision that has been taken, as opposed to a continuation of the initial request, the review will always be considered by a different decision maker.