Criminal fees regulations and standard of taxation


The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.2) Regulations 2023 came into force on 29 April 2023.
This Guidance item has been amended to reflect the new regulations.
For the regulations in force prior to 29 April 2023, please refer to the archive Guidance item.

The criminal fees regulations and advice and assistance regulations apply to criminal legal aid and ABWOR accounts but are subject to the provisions of the fixed payments regulations.  You should apply the fixed payments regulations where there is any conflict with the terms of the criminal fees regulations or the advice and assistance regulations, to the extent that they are relevant.

An obvious example of where conflict exists would be regulation 7 (fees allowable to solicitors) of the criminal fees regulations which provides that a solicitor shall be allowed “such amount of fees as shall be determined to be reasonable remuneration for work actually and reasonably done, due regard being had to economy” and the equivalent provision, regulation 17 of the advice and assistance regulations, to the extent that it applies to fees.

On the other hand, there are a range of situations where conflict does not exist and the fees principal regulations remain in full force and effect, for example

  • out of pocket expenses and outlays, including mileage, have to be reasonably incurred
  • fees paid to witnesses who are not on the Crown list have to be reasonable having regard to what the Crown may pay
  • there is a right to taxation

Where you supply services for which value added tax is chargeable, we add an amount equal to that VAT.

Scope of taxation

You are entitled to seek taxation of your account before the auditor in the event that there is a question or dispute arising from our assessment of fees and outlays under regulation 11 of the criminal fees regulations, or you are dissatisfied with our assessment of your fees and outlays under regulation 18 of the advice and assistance regulations.

This statutory right to taxation however, is circumscribed in a number of ways.

Firstly, it is our decision whether advice and assistance (or ABWOR) has been provided in the circumstances of any particular case and/or whether an account lodged with the Board is competent and falls to be assessed; this is not a decision of an auditor. We may make this decision, subject always to judicial review, at any time whether an account is identified and rejected immediately on its receipt, or is identified thereafter in the course of assessment. This may arise in situations where the merits test was not correct, the grant was incompetent, the relevant regulation was misapplied or there was a failure properly to apply the financial eligibility test, for example

  • the provision of ABWOR as an appointed solicitor was not competent
  • the client was financially out of scope, the client’s income or capital being above the levels prescribed from time to time
  • the solicitor did not, so far as necessary (in the sense of “required”) or practicable, obtain from the client financial or other documentation in the course of assessing the client’s financial eligibility
  • the solicitor, whilst being satisfied that the client was in receipt of jobseekers allowance, failed to obtain documentation as to whether it was income-based (which is a passported benefit) or contribution-based (to be taken into account in over-all assessment).

Secondly, the regulations assume that the account has been assessed. So taxation is premature in circumstances where we are unable to assess an account. This may arise in circumstances where we have requested information, documentation or perhaps even the file. Our position is that it is an abuse of the taxation process to lodge an account for taxation in these circumstances and any reference to the auditor would be challenged.

Thirdly, any work in an ABWOR account undertaken or outlays incurred above the level of authorised expenditure at the time the cost was incurred is not chargeable to the Fund. This is a matter of regulation. It is not within the discretion of an auditor to allow such a charge.

Lastly, taxation on an ABWOR account can proceed before any auditor and is not restricted, as is a legal aid taxation, to the auditor of the sheriff court in which the proceedings took place. However, an auditor is not required to accede to a request for taxation on the lodging of your account if there is no clear link with the auditor’s jurisdiction.

The taxation process

The provision for an account being lodged with the auditor under the regulations is simply a link into the broader system of taxation in Scotland. The normal policies and practices apply and the auditor has a wide discretion in the way in which taxation is conducted.

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