Appointed solicitors, duty solicitor/half fee, prevaricating witness

You cannot use the services of a court duty solicitor, as an agent, when unable to provide representation [regulation 7(5) of The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011].

There is a clear separation between these two forms of representation. Once a court duty solicitor is acting, the case cannot be transferred to an appointed solicitor and vice versa.

The core fixed payment [under Schedule 1 of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999], or the case disposal fee [under Schedule 1A] is reduced by half where:

• A client appears from custody, represented by the court duty solicitor and
• A plea of not guilty is tendered and that plea is then changed to guilty before the start of the trial

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2022 came into force on 1 October 2022, and removed the half fee that had been payable where:

• a client appears from custody, represented by the court duty solicitor and
• a plea of not guilty is tendered and that plea is then changed to guilty before the start of the trial.

From 1 October 2022, you can instruct the duty solicitor as a local agent to plead not guilty and still be paid the full core fee where you have a pre-existing solicitor client relationship with the assisted person.

This “full fee” provision is available where that principal solicitor is instructed (a) by a person with whom they have a pre-existing solicitor client relationship and (b) that person has actually instructed the solicitor in the case (as opposed to there only being a possibility that there is future instruction).

Where these conditions are met, then the principal solicitor so instructed in the case can use the solicitor who is the duty solicitor that day (or any other solicitor) as their local agent to cover the pleading diet without impacting on the fixed payment fee under the half fee rule.

Therefore:

1. If the nominated solicitor has a pre-existing relationship with the client and has taken instructions, and is as a consequence the principal solicitor acting for the client in the new matter in which the client is appearing, then where nominated solicitor instructs the duty solicitor to tender a plea of not guilty, the summary criminal full fee can be claimed. However the duty solicitor is acting as a local agent for the nominated solicitor, and cannot claim under the duty scheme.
2. If the nominated solicitor has a pre-existing relationship with the client, and although notified of the court appearance, has not prior to the pleading diet taken instructions and agreed to act in the case (even if that then later happens), then if the nominated solicitor arranges with the Duty Solicitor for the duty solicitor to cover the pleading diet at which the plea is Not Guilty, then the summary criminal half fee still applies. In this situation, the duty solicitor is acting as such and can claim under the duty scheme.
3. If the nominated solicitor has no pre-existing relationship with the client, and the duty solicitor pleads Not Guilty, then the summary criminal half fee still applies, and the duty solicitor is acting as such and can claim under the duty scheme.

The nominated solicitor is responsible for the negotiation and payment of any fee agreed with the local solicitor to whom the appearance is delegated to, e.g. a local agent’s fee, and this is not a charge that may be passed on as an outlay in the Summary Criminal account: the work is part of the overall work in the case covered by the fixed payment.  The duty solicitor cannot make a claim under the duty provisions for the case either as it is not duty work.

Summary Criminal Online system – duty solicitor question

In the summary criminal online application, at the question “Was not guilty plea entered by the duty solicitor?”

• answer NO if regulation 4(5C) applies (*see immediately below for what that means), and you instruct the duty solicitor to be your local agent, (scenario 1 above)
• answer YES, if regulation 4(5C) does NOT apply and you instruct the duty solicitor, (scenarios 2 and 3 above).

*Regulation 4(5C) applies where:

• the case arises during the Covid-19 emergency period defined in the regulations
• the solicitor has a pre-existing relationship (see above)
• the solicitor is instructed in the new case (and consequently no other may act on the client’s behalf unless authorised by the solicitor)

Where a reluctant or prevaricating witness is removed to the cells for a period, a court duty solicitor may be asked to advise them.

In these circumstances:

• ABWOR cannot be provided as there is no provision for a plea of guilty, not guilty or the ability to continue the matter without plea
• Automatic criminal legal aid is not available
• As court duty solicitor, you would only be entitled to provide criminal advice and assistance
• A court duty claim cannot be made as the witness did not appear from custody or on an undertaking to appear
• Contempt of court legal may be available depending on the circumstances [section 30 of the Legal Aid (Scotland) Act 1986].