Guidance in relation to the preparation and assessment of criminal counsel fees

This guidance applies to counsel’s fees in relation to criminal legal aid where work is chargeable in accordance with:

• The Criminal Legal Aid (Scotland)(Fees) Regulations 1989

Regulation 3, states:

“Subject to the provisions of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, these Regulations shall regulate the fees and outlays allowable to solicitors, and the fees allowable to counsel, from the Fund in respect of criminal legal aid under the 1986 Act, upon any taxation in accordance with regulation 11, in respect of which the proceedings are concluded on or after 31 August 1989.”

These regulations and the relevant criminal fee tables regulate the fees payable to counsel in respect of criminal legal aid.

Regulation 10(1) states:

“Counsel shall be allowed such fee as appears to the Board, or at taxation the auditor to represent reasonable remuneration, calculated in accordance with Schedule 2 or 3, for work actually and reasonably done, due regard being had to economy.”

Where regulation 10(1) applies the fees must be assessed in accordance with:

• Schedule 2 or 3 Tables of Fees; and
• the notes on the operation which accompany those Tables of Fees.

Schedule 2 is the Tables of Fees for proceedings in the High Court, Sheriff Court and Justice of the Peace Court, including appeals.

Schedule 3 is the Tables of Fees for proceedings in the United Kingdom Supreme Court (UKSC).

The Tables of Fees were developed following detailed tripartite discussions between Scottish Government, Faculty of Advocates and SLAB.

The Tables of Fees covers most, but not all, aspects of modern criminal practice and applies prescribed rates that are payable for each of those work activities.

The fees are underpinned by detailed notes on the operation which set out the framework as to when fees are, and are not, payable.

It is intended mainly for Counsel, and where we use the term “you”, this means the counsel who has been instructed under a grant of criminal legal aid.

The purpose of this guidance is to provide you with sufficient information and advice to enable you to prepare an account in the proper form, and provide you with a better understanding as to the basis on which we will assess your account, including the application of discretion, where appropriate.

Our aim is to clearly communicate with you about our decision-making, thereby improving our accountability for our policies and decision-making.

It provides information as to the level of information that you should provide in support of your charges, what we do in assessing an account, and why we do it, making reference to the statutory and regulatory framework and other authority, explaining its application and our interpretation of it.

The role of an assessment officer is objectively to determine, on such information as is available, what sums are payable from the Fund on a proper application of the standard of taxation, itself discussed in some detail in this guidance, as the basis of our assessment is crucial to an understanding of our approach.

We have been performing this function for many years and have developed particular expertise through our knowledge of the Regulations, its day to day application and attendance at taxations before the Auditor.

We are the only body in Scotland regularly called upon to assess an account drawn on an agent and client third party (or Fund) paying basis.

You may disagree with some of our decisions as to what is reasonable in the context of an individual account, in the event that the account is not paid as claimed.

If so, and failing resolution at the negotiation stage, you are entitled to lodge an account with the auditor for taxation.

What is stated in the following guidance is what we, as the third party paying are generally prepared to allow, on the application of the Standard of Taxation prescribed by Parliament.