Fees for early pleas (Section 76 Hearings)

The following paragraph prescribes a fee for a case which resolve by way of a section 76 plea. 

• Paragraph 2 of Part 1, Chapters 1 and 2 (High Court of Justiciary)
• Paragraph 1B of Part 3, Chapters 1 and 2 (Sheriff and Justice of the Peace Court)

An offer to plead guilty at an early stage of solemn proceedings, prior to service of an indictment, is governed by section 76 of the Criminal Procedure (Scotland) Act 1995.

The accused will ordinarily sign a letter drafted by their solicitor, indicating the terms on which they are prepared to plead guilty.

Where the Crown accept the offer to plead guilty, a specially-prepared indictment that reflects the terms in the letter will be served.

There will then be a “s76 diet” in court (either the Sheriff Court or High Court), where the plea of guilty can be made, and the sentencing process can begin.

Where a plea is tendered and accepted under section 76 you can claim the prescribed fee.

It is a standard rate payable regardless of the category of case although a fee equivalent to half of the standard fee is payable to junior with leader where two counsel are instructed.

We can only pay for necessary and reasonable consultations with the agent and client, and as there is no preliminary hearing or first diet we can also allow necessary and reasonable consultations with the Crown negotiating the plea.

We must have regard to other claims made in the case as payment of a fee under this paragraph may have an impact on the level of preparation which is payable in the case.

Where you claim a fee in respect of paragraph 2 of Chapter 1 or 2 of Part 1, or paragraph 1B of Chapter 1 or 2 of Part 3, of the Table of Fees there are various notes on the operation which restrict what other hearings can be paid.

The majority of cases should be assessed in line with Note 19(a) and (b) of the notes on the operation.

Paragraph 19(a) of the notes on operation states where you claim a fee in respect of paragraph 2 of Chapter 1 or 2 of Part 1, or paragraph 1B of Chapter 1 or 2 of Part 3, of the Table of Fees:

“subject to sub-paragraphs (b) and (c) below, no fee shall be payable under paragraph 1B, 3 or 4 of each Chapter of Part I, or paragraph 2 or 3 of each Chapter of Part III, of the Table of Fees”.

 Where a fee is payable for a hearing under section 76 we must disallow any preliminary hearings under paragraph 1B of Part 1(High Court) along with any trial diets or miscellaneous hearings, other than the hearings specified in sub-paragraph (b) or (c), in both the High Court and Sheriff Court and Justice of the Peace Court.

For example, if a section 76 hearing calls but for whatever reason the plea is not tendered and accepted until a later diet a miscellaneous fee is not payable for the initial hearing as you would be entitled to claim the enhanced fee for the attendance at the section 76 hearing.

Paragraph 19(b) of the notes on the operation states:

 (b) a fee shall be payable for all post conviction hearings including hearings for which a prescribed fee is set out in paragraphs 4(j), (k), (l) and (m) of each Chapter of Part I, and paragraphs 3(j), (k), (l) and (m) of each Chapter of Part III, of the Table of Fees; and…”

Counsel is entitled to charge:

• Section 76 Hearing;
• confiscation diet in which substantial evidence is led or where full settlement is agreed where the confiscation proceedings follow acceptance of a guilty plea to the charge or charges;
• confiscation diet where no substantial evidence is led;
• deferred sentence where mitigation is led; and
• deferred sentence where no mitigation is led.

We must disallow any preliminary hearings, trial diets and miscellaneous hearings (other than those specified above).

It is a matter for you to charge accordingly under 19(c)(i) or 19(c)(ii).

Paragraph 19(c) of the notes on the operation states:

“where a case proceeded by indictment, was deserted, and proceedings were re-raised and disposed of by way of a hearing under section 76 of the 1995 Act, the following fees are chargeable by counsel in the Tables of Fees”

Option 1

“(i) a fee for the section 76 hearing under the re-raised indictment, as prescribed in paragraph 2 of Chapters 1 and 2 of Part 1 and paragraph 1B of Chapters 1 and 2 of Part 3, and fees for any court hearings which took place under the initial indictment, as prescribed in paragraph 4 of Chapters 1 and 2 of Part 1 and paragraph 3 of Chapters 1 and 2 of Part 3”.

Where counsel charges on this basis we must allow:

• Re-raised indictment – the fee for the section 76 hearing fee; and
• Initial indictment – any miscellaneous hearings.

We must disallow any preliminary hearings / first diets (indictment is served on or after 25 September 2023) and trial diets under the first indictment.

Preparation must be assessed in accordance with the case having been disposed by way of section 76 hearing.

Option 2

 “(ii) fees prescribed in Parts 1 and 3 of the Table of Fees for any hearings, including trial, which took place under the initial indictment, and fees for any hearings under the re-raised indictment, as prescribed in paragraph 4 of Chapters 1 and 2 of Part 1 and paragraph 3 of Chapters 1 and 2 of Part 3, but not the fee for the section 76 hearing under the re-raised indictment, as prescribed in paragraph 2 of Chapters 1 and 2 of Part 1 and paragraph 1B of Chapters 1 and 2 of Part 3”.

Where counsel charges on this basis we must allow: 

• initial indictment – all hearings; and
• re-raised indictment – any miscellaneous hearings.

We must disallow any preliminary hearings/first diets (indictment is served on or after 25 September 2023) and any Section 76 hearing under the re-raised indictment which is not chargeable.

Where you elect to charge a miscellaneous fee in place of the section 76 hearing we must disallow that fee as the hearing was actually a S76 hearing. 

Where a fee is payable in relation to the initial indictment at the full rate for a trial this means that the threshold limits in paragraph 15(d) of the notes on the operation must be applied when determining what, if any, preparation fee is payable in the case.