Factors we take into account when assessing exceptional case status

We must take into account a number of factors in considering whether the test of exceptional status has been met. The factors are simply a guide for assessing whether your client will be deprived of the right to a fair trial because of the amount of the fixed payments payable.

The number, nature and location of witnesses

You should send us:

• A list of Crown witnesses if this is the basis of the request
• Information to show the need to precognosce some or all of the Crown witnesses and the level of work this entails
• Police statements should be disclosed by the Crown (if unavailable, you should provide vouching to confirm this)
• In a multiple accused case, information as to why precognitions cannot be taken jointly
• In a case where there are a number of charges in which your client is not involved, information to identify the relevant witnesses
• The relevance of the evidence to be provided by the defence witnesses

The number and nature of productions

You should:

• Detail the nature and number of the productions
• Detail the level of work required to properly consider the Crown productions

The complexity of the law

It is not sufficient simply to state that a case is legally or procedurally complex.  Please provide detailed information regarding the nature of the complexity and how this will affect the preparation and conduct of the case.

Whether the client, or any witness, may be unable to understand the proceedings

Please provide details of the nature of your client or witnesses’ disability and how this will affect the preparation and conduct of the case.

The assumption underlying fixed payments is that if you carry out criminal legal assistance, you can expect to be instructed in a variety of cases with varying levels of work.

You should:

• Look at the spread of money you derive from providing criminal legal assistance under the regime and not what an individual case will provide.
• Accept instructions on that knowledge.

However, there are exceptional cases. We recognise that if we refuse you authority to proceed on an exceptional case basis that may contribute to the “swings and roundabouts” effect.  That is, the case may present such difficulties that the costs of running it could affect your ability to act effectively for your other clients.

Once you have accepted instructions you are under an obligation to provide adequate professional service. You are not entitled to reduce the level of that service.

Generally speaking, accepting instructions on the basis that all the work done would be under legal aid is your choice as you are not obliged under the Code to accept instructions.

You must supply any further information or documents we require to determine the application.

You must keep proper records of all professional services provided and outlays incurred on each particular case.

This is not an arithmetical exercise. The purpose of the determination is to avoid a situation where your client would be deprived of the right to a fair trial unless the determination is made.

Lord Clyde observed at paragraph 65 of the McLean case

“As I observed earlier, the issue is being raised at the outset of the proceedings.  The precise question is not as to the adequacy of the funding provided under the legal aid scheme, but whether, albeit on account of an inadequacy in that respect there will inevitably be an absence of effective representation for the appellants in the preparation and presentation of their defences, thus depriving them of their right to a fair trial.”

The fixed payments scheme is a scheme which:

• Recognises that different cases will require different amounts of work.
• Recognises that different cases will have different degrees of profitability.
• Takes the rough with the smooth.
• Takes into account the extra costs involved in a long trial.

The concept of the fixed payments scheme covering a wide range of expenditure was not challenged by the Judicial Committee of the Privy Counsel in the case of Buchanan -v-McLean 2001 SLT 780.

Lord Hope, at paragraph 45, stated

“A scheme which provides for various items of work and the associated outlays to be paid for in stages, for each of which a prescribed amount will be paid as a fixed fee, will not necessarily be incompatible with the Convention right to a fair trial.  But the greater the inflexibility the greater is the risk that occasionally, especially in exceptional or unusual cases, the scheme will lead to injustice.”

Lord Clyde, at paragraph 70, stated

“I see nothing wrong in principle in a scheme which proceeds upon a basis of fixed sums for specified work.  Moreover insofar as the approach adopted recognises that different cases will require different amounts of work, and that different cases will have different degrees of profitability, the policy of adopting a basis of a fixed sum may not in itself be unreasonable if in its general operation the solicitor is engaged in the work covered by the regulations, taking as it were the rough with the smooth, will find the amounts acceptable.  And it is right to recognise that the scheme is not altogether rigid.  In a rough and ready way account is taken of the extra costs involved in a long trial, reflecting the extra work involved.  Moreover the outlays covered by the fixed sums are only the “prescribed outlays” and that phrase may be open to construction so as to allow for outlays, but not fees, which fall outside the scope of the definition.”

Counsel and expert witnesses are outlays under the fixed payment regime and will always be paid over and above the principal fixed payment.  The regulations only apply to the fees element of a case.

The need for counsel or for the employment of an expert witness would not, of itself, be a decisive factor in making a determination.

The following work will be considered as an outlay:

• The taking, drawing, framing and perusal of precognitions.
• The undertaking by another solicitor of any part of the work.
• Photocopying.

Trial days and other appearances, such as deferred sentences, are also the subject of separate fixed payments. The likely length of a trial is not a relevant factor as the conduct of a trial is chargeable according to its length, per day.

The cost of travel for you to represent your client in a court distant from your place of business is not a relevant factor.  If you accept instructions to defend your client in a distant court, that is your choice.  You are not obliged by the Law Society’s Code of Conduct to accept such instructions.

Additionally, the distance from your office in a rural area to the sheriff court would not justify a determination, since this is addressed by Schedule 2 of the fixed payment regulations.

The fixed payments were calculated with reference to fees incurred in summary criminal legal aid cases previously.

This included all the costs of:

• The precognition of witnesses.
• Waiting in court.
• High Court proceedings.

The need for proceedings in the High Court during the case is not, of itself, a basis for a determination.

The cost of counsel is an outlay on your account.