Duty solicitor payment arrangements, identification parade fees, follow up fees, preliminary pleas, failure to appear, appointed solicitors, duty solicitor/half fee, prevaricating witness

Duty solicitor fees are chargeable on a detailed basis [Schedule 1, Part 1 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (as amended)]. The exception is where work is undertaken in connection with an identification parade, court duty solicitor and police station duty solicitor (under advice and assistance and ABWOR). In these situations, fees are chargeable under regulations 5 and 6 of the criminal fees regulations.

When you act as a duty solicitor representing a client [section 22(1)(a) of the legal Aid (Scotland) Act 1986], you are entitled to the following fees [regulation 5 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (as amended)].

For attending an identification parade – under paragraph 2:

• £117.42 for the first hour
• £13.06 for each subsequent quarter of an hour

For attending an identification parade where paragraph (2) does not apply:

• £96.62 for the first hour
• £12.18 for each subsequent quarter of an hour

Where attendance at an identification parade is required on more than one occasion, each occasion is a separate identification parade.

A “solicitor” means the duty solicitor or, where criminal legal aid may be provided by a solicitor other than the duty solicitor, the nominated solicitor.

As a duty solicitor representing an accused person in the sheriff or JP court, you are entitled to the following fees [regulation 6 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (as amended)].

For appearing in either the sheriff or JP court

£72.10 for work done for each client appearing from custody or on an undertaking for which a plea of guilty is tendered.

For attendance at the first session of a court for the day

A sessional fee of £64.89 for the first case and £9.27 for each additional case where a plea of not guilty is tendered. Subject to a maximum total fee of £140 for the session until its termination on completion of business for the day or on adjournment by the court, whichever is the earlier.

For attendance at any other session of that court on the same day

A sessional fee of £64.89 for the first case and £9.27 for each additional case where a plea of not guilty is tendered. Subject to a maximum total fee of £93 for each such other session. Provided that the fee shall cover the appearance in court of the duty solicitor on behalf of the client as well as any interviews with the client or others.

“Session” has a particular meaning in the context of the criminal fees regulations, as a block of work carried out at any given time terminating only on completion of business for the day or on an adjournment by the court.

It is not open to you to unilaterally declare a new session simply because of the number of clients seen in relation to the per capita fees.  You should only seek remuneration for an actual session before the court or should ask the court to declare a new session if appropriate.

If as the duty solicitor you are required to appear again after a plea of guilty or numerous adjournments from the court, an additional fee shall be payable for:

• Additional interviews with the client or others
• Attendances at court outwith the course of your period of duty

Such follow up fees do not cover the full range of fees that may otherwise be paid under criminal legal aid. This additional fee should not exceed £150.  This duty follow-up limit includes the initial £72.10 payment in respect of the initial guilty plea.

The enhanced guilty plea payment is discounted from the follow-up cap. However, we have the discretion to increase the cap in exceptional cases. You should contact the Criminal Applications Department for prior authorisation.

You are also allowed an additional fee as the court duty solicitor making:

• A preliminary plea to the competency or relevancy of the petition or complaint
• Any plea in bar of trial or any mental health proof

The amount of such additional fee should not exceed £150. We have a discretion to lift this cap in appropriate cases.

There is still provision for payment to be made to the court duty solicitor where you see a client in custody but prior to any court appearance the client:

• Is released
• Is transferred
• Accepts a fine

The court duty solicitor can charge the per capita fee of £9.27, as appropriate.

The disposal box in the claim form, instead of being marked “NG” or “CWP” should be marked as appropriate.

You are entitled to the £72.10 payment for a guilty plea in connection with a failure to appear charge [section 27(1)(a) or section 28 of the Criminal Procedure (Scotland) Act 1995, but only if there is a separate complaint.

This fee is not chargeable if the client already has criminal legal aid or a there is a grant of ABWOR active in the proceedings.

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

Covid-19 update

Provision to 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.

To help address the specific challenges arising from the Covid-19 situation, from 1 July 2020, and for the duration of the emergency period, changes now apply to mitigate the effect of “half fee” rule in relation to the summary criminal fixed payment. The normal effect of regulation 4(5B) of the Fixed Payment Regulations is that where a plea of not guilty is tendered by a solicitor who is the duty solicitor that day, if there is subsequently a change of plea prior to trial, it is a “half fee” that is payable.

For the duration of the Covid 19 emergency period 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 Covid-19 rule change means that 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]