Fixed payments were introduced by the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999. Scottish Ministers initially used this power to prescribe fixed payments for work done under summary criminal legal aid. Regulation 4(1) of the fixed payment regulations states that there shall be made to a solicitor who provides “relevant criminal legal aid”, as defined, in summary proceedings, in respect of the professional services provided by him and the outlays specified at regulation 4(2), the fixed payments prescribed in Schedule 1 (and, since 2008, Schedule 1A).
In 2008, fixed payments were extended to ABWOR in summary criminal proceedings as part of the criminal legal assistance reforms to underpin summary criminal justice reforms at the time.
Since 2008, a solicitor providing “relevant ABWOR” in summary criminal proceedings has also been entitled to the fixed payments prescribed in Schedule 1B.
Unlike “excluded proceedings” a case granted exceptional case status still falls within the definition of relevant criminal legal aid or ABWOR with all that entails.
Whilst the respective schemes are structurally the same, there are a number of issues due to the nature of ABWOR, and the fact that ABWOR is made available by the solicitor rather than the Board, that have to be kept in mind to ensure payment in due course.
- ABWOR, being a type of A&A, is always subject to sufficient, prospective increases in the level of authorised expenditure to cover the work undertaken in the case. This is a particularly important consideration in a case that has been granted exceptional case status.
- Payment of the ABWOR fixed payments (and also any A&A that has been made available in connection with the proceedings) is always subject to the single payment provisions.
- You have to be careful where you are providing ABWOR in the capacity of an appointed solicitor that you are doing so within the structure set out in the regulations.
A fixed payments regime is based on a prescribed “rate for the job” for conducting a summary criminal case (within the range of cases to which they apply) involving a degree of “swings and roundabouts” across the range of cases you undertake rather than remuneration for each and every item of work carried out in the circumstances of an individual case. Provision is made for exceptionality.
The leading case on the concept and application of a fixed payment regime is McLean v Buchanan 2001 SLT 780. See the observations of Lord Hope in particular.