Fees for preliminary hearings and first diets (where the indictment is served on or after 25 September 2023)

The following paragraphs prescribe fees for work undertaken in relation to preliminary hearings (under Section 72 of Criminal Procedure (Scotland) Act 1995), and first diets (under Section 71) but only where the indictment is served on or after 25 September 2023.

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

Paragraph 22(a) of the notes on the operation states:

““Practice Note No.1 of 2018” means the High Court of Justiciary Practice Note No.1 of 2018 on the Management of Lengthy or Complex Criminal Cases”.

The preliminary hearing fee, or first diet fee, includes all managed meetings or equivalent communications with Crown counsel or the Procurator Fiscal by whatever means and including any note on the line of evidence and is payable at either:

1. one and a half times the full rate for a trial depending on the category of case and status of counsel, or
2. in a case to which the Protocol set out in the schedule to Practice Note No.1 of 2018 applies, twice the full rate for a trial depending on category of case and status of counsel.

 Where the same counsel attends the preliminary hearing, or first diet, and was involved in managed meetings or equivalent communication a fee at one and a half times the full rate for a trial is chargeable unless Practice Note No.1 of 2018 on the Management of Lengthy or Complex Criminal Cases applies in which case twice the full trial rate is payable.

As part of the assessment process we always review any previously submitted claims to ensure that:

• no other counsel has made a claim for either the ‘managed communications’ or ‘hearing’ element of the preliminary hearing or first diet.

Where more than one advocate is instructed (for example, senior and junior) and the appropriate cover is in place both counsel are entitled to payment.

Paragraph 3(cb) of the notes on the operation states:

“where junior counsel is being led, the fee payable for any of the following is that

of junior being led, except in respect of any work where junior counsel acts alone and senior counsel or junior as leader has no involvement (in respect of which work only the fee payable is that of junior alone)—

1. all managed meetings or other work under either paragraph 1B(d) of Chapter 1 of Part 1 or paragraph 1AA(e) of Chapter 1 of Part 3 of the Table of Fees,
2. the conduct of a preliminary hearing under paragraph 1B(e) of Chapter 1 of Part 1 of the Table of Fees,
3. the conduct of a first diet under paragraph 1AA(f) of Chapter 1 of Part 3 of the Table of Fees.”

In circumstances where you have acted as ‘junior with leader’ for either the managed meeting element, the conduct of the preliminary hearing or first diet the ‘junior with leader’ rates is payable.

Where senior counsel or ‘junior as leader’ is not involved in either element  the ‘junior alone’ rates as appropriate would be payable.

A preliminary hearing or first diet, adjourned or continued, in which witnesses are called to give evidence is payable at:

• the full rate for a trial depending on category of case and status of counsel.

Where we are satisfied that a witness was called to give evidence the full rate for a trial for any such preliminary hearing or first diet will be paid.

Where we are not satisfied  we will  reduce the claim to the fee payable for further, adjourned or continued diets and invite you to provide further information in support of the claim specifically with reference to whether or not the witness has actually been called to give evidence.

Although payable at the full rate for a trial this fee does not engage paragraph 14(a)(ii) for preparation calculations.

All further, adjourned or continued diets are paid at:

• a flat rate depending on the status of counsel.

Where a claim for a further, adjourned or continued diet is charged we will allow the prescribed rate where we are satisfied that the continuation or adjournment was not because the defence was not prepared to proceed, or in circumstances where the preliminary hearing could have been altered in advance under section 75A(5) of the 1995 Act.

Our authority for this is paragraphs 16 of the notes on the operation which states:

“Where a fee is claimed in respect of paragraph 1B(c) of Chapter 1 or 2 of Part I of the Table of Fees, paragraph 1AA(d) of Chapter 1 or 2 of Part 3 of the Table of Fees, or adjournment of any other hearing including trial.–

1. information shall be provided by or on behalf of counsel as to the reason for the adjournment; and
2. no fee shall be allowed by the Board or the auditor where satisfied that an adjournment was caused because the defence was not prepared to proceed, or where the preliminary hearing could have been altered in advance under section 75A(5) of the 1995 Act.”

 In the absence of any information suggesting the adjournment was caused by the defence not being prepared to proceed we will allow the attendance at the hearing.

Where we have information which suggests the adjournment was because the defence was not prepared to proceed, or that the preliminary hearing or first diet could have been altered in advance under section 75A(5) of the 1995 Act, we will disallow the claim and invite you to provide further information in support of the claim.

Please note that this rule applies to any other hearings including trial diets.

Paragraph 3(eb)(ii) of the notes on the operation states:

“a fee, under Part 1 or 3 of the Table of Fees, is to be allowed to one counsel only in respect of a continued preliminary hearing, except where such hearing is either in a case to which the Protocol set out in the schedule to Practice Note No.1 of 2018 applies, or is designated as a hearing at which any of the following matters is intended to be heard –

1. a preliminary minute;
2. a preliminary issue;
3. a devolution or compatibility minute;
4. an application under section 275 of the 1995 Act;
5. a petition to recover documents under a specification of documents where the petition is opposed or likely to involve substantive legal argument, or an evidential hearing or any other hearing involving substantive legal argument.”

Where more than one counsel have attended at a continued preliminary hearing we must be satisfied that one of the criteria above has been met before we can allow both to attend a hearing under either 1B(b) or 1B(c), as the case may be.

We are often provided with notification of cases falling within the terms of Practice Note 1 of 2018 on the Management of Lengthy and Complex cases and where this is the case we will reflect this in the assessment of the fee.

Where we do not have any such notification, or the fee lacks specification that would support the attendance of more than one counsel, we will allow the attendance of senior or junior as leader only and disallow any attendance made by the ‘junior with leader’ and invite them to provide further information in support of the claim specifically with reference to the criteria that would justify the attendance of more than one counsel.

We will always review any narrative provided on any earlier fees to establish if we have enough information to allow the attendance of a second counsel.

Although paragraph 3(eb)(ii) only addresses preliminary hearings we must have regard to the terms of paragraph 3(e) if more than one counsel attend a continued first diet.

Paragraph 3(e) of the notes on the operation states:

“except on cause shown (and subject to sub-paragraphs (ea) and (eb)), fees for senior counsel or, as the case may be, for both senior and junior counsel or for more than one junior counsel shall not be payable for attendance at hearings which do not require the attendance of senior or, as the case may be, both senior and junior counsel or more than one junior counsel”

When considering a claim from two counsel at a continued first diet, where the hearing addresses issues such as those covered under 3(eb)(ii),  we will allow payment for both counsel attending and such hearing.

Where you are only involved in the managed meeting, the pre hearing communication with the Crown is payable at:

• one-half of the fee prescribed preliminary hearing under 1B(a), or first diet under paragraph 1AA(a).

Where the managed meeting/communications and preliminary hearing, or first diet, are dealt with by different counsel only one-half of the fee is payable for the preliminary hearing or first diet to the respective counsel who has attended to the managed communications with the Crown.

We will review any previous claims to ensure that no other counsel has claimed for either part of the fee or, where more than one counsel is instructed, that each claim reflects the correct status of counsel.

In the event there is no preliminary hearing/first diet, for example where the case is resolved prior to these taking place, then the managed meeting fee would not be payable and the consultation fee would be chargeable instead.

In the Sheriff Court this fee is only payable where the agents have obtained prior approval for counsel to attend the first diet.

Where prior approval is not in place we will disallow any fee that is claimed.

It is not possible to substitute a fee for a consultation standing the definition of a consultation which only applies after the first diet payable under 1AA(a).

An attendance at a preliminary hearing or first diet on receipt of detailed instructions not having been involved in pre hearing communication with the Crown is payable at:

• one-half of the fee prescribed for the preliminary hearing under paragraph 1B(a), or the first diet under paragraph 1AA(a).

Where the preliminary hearing, or first diet, and managed meeting are dealt with by different counsel only one-half of the fee is payable for the preliminary hearing or first diet to the respective counsel who has conducted the hearing.

We will review any previous claims to ensure that no other counsel has claimed for either part of the fee or, where more than one counsel is instructed, that each claim reflects the correct status of counsel.

Paragraph 15A(1) of the notes on the operation states:

“Where a case has more than one preliminary hearing or first diet, the fee payable for any further preliminary hearings (as prescribed in paragraphs 1B of Chapters 1 and 2 of Part 1 of the Table of Fees) or first diets (as prescribed in paragraph 1AA of Chapter 1 or 2 of Part 3 of the Table of Fees) is reduced as specified in sub-paragraphs (2) and (3).”

This guidance clarifies our approach to assessment in circumstances which can result in more than one preliminary hearing or first diet where the hearings are chargeable under 1B or 1AA.

We will ensure that we will allow the appropriate rate as specified under paragraph 15A(2) of 15A(3), of the notes on the operation.

Paragraph 15A(2) of the notes on the operation states:

“Where charges in a case have been split into more than one indictment, the fee payable for any further preliminary hearings or first diets is half that prescribed”.

Where a case has been split into more than one indictment and they both proceed to a preliminary hearing or first diet, both hearings are chargeable under a single grant of legal aid.

For example, an indictment may be separated into two indictments where one features the primary charge such as under section 1 of the Road Traffic Act 1988 (causing death by dangerous driving), with the further indictment featuring a charge of driving whilst disqualified.

Where we are satisfied that this applies we will allow any fees under paragraph 1B or 1AA on the primary indictment (section 1 offence) at the full rate and any further hearings arising from the second indictment (driving whilst disqualified) at half the prescribed rate.

Each fee must be calculated based on the most serious offence relative to the separate indictments so in the example above the primary indictment would be payable at category A and the second indictment would be category C.

Paragraph 15A(3) of the notes on the operation states:

“Where in a case an indictment is deserted and subsequently re-raised, the fee for any further preliminary hearings or first diets is half that prescribed”.

Where the Crown deserts an indictment after the case has had a preliminary hearing, or first diet, and re-raises the case this is chargeable under a single grant of legal aid.

Where we are satisfied that this applies we will allow any fees under paragraph 1B or 1AA on the first indictment at the full rate and any further hearings arising from the second indictment at half the prescribed rate.

This applies regardless of whether the indictments are in the exact same terms or where the further indictment includes any additional charges.

However, in circumstances where the re-indicted case features different offences for which a higher (or lower) fee is prescribed we will ensure that the correct category of case, for the purposes of the fee chargeable under 1B(a) or 1AA(a), is charged.

For example, where the further indictment adds a charge of rape to the earlier indictment which included a charge of attempted rape, the case would be elevated to category A on the further indictment but the hearing itself would still be payable at half of the prescribed fee under 1B or 1AA.

The earlier work remains chargeable at category B, based on the offence of attempted rape.

Where you seek payment for consultation(s) with the Crown after the first indictment has been deserted and in advance of the further preliminary hearing, or first diet, we will disallow these charges as the fee payable continues to includes all managed meetings or equivalent communication with Crown counsel or the Procurator Fiscal by whatever means and includes any note on the line of evidence.