Proceedings arising out of the same incident


The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.2) Regulations 2023 came into force on 29 April 2023.
This Guidance item has been amended to reflect the new regulations.
For the regulations in force prior to 29 April 2023, please refer to the archive Guidance item.

The “proceedings”, as defined, for the purpose of remuneration under the fixed payments regime, also include “complaints which arise out of the same incident”.

The only relevant criterion in us applying this provision is that the charge or charges on the complaint arise out of the same incident.

The resultant range of charges can be every bit as disparate as the charges within a single complaint.

The fact that the charge or charges brought into the “proceedings” may be of a totally different nature or could potentially involve more work are not relevant considerations.

It should be noted that this provision applies even where proceedings have been determined to have exceptional case status.

An exceptional case remains relevant criminal legal aid or ABWOR, despite the changed payment arrangements.

Exception where the original proceedings are excluded proceedings

The provision relating to proceedings arising from the same incident does not apply to excluded proceedings, either under summary criminal legal aid or ABWOR, not being “relevant” ABWOR or legal aid.

For example, where the case has been reduced from solemn to summary procedure or you have undertaken work under regulation 15 (special urgency provisions).

Whether the excluded proceedings are deserted pro loco et tempore or not, and a second complaint is served arising out of the same incident, you are entitled to apply for legal aid or to provide ABWOR in respect of the second complaint.

The new proceedings attract a fixed payment. The fixed payments regulations do not strike at paying a detailed account and a fixed payment in respect of separate proceedings; they only strike at paying a further fixed payment arising in the same “proceedings” where you are providing “relevant” ABWOR or legal aid.

On the other hand, in this example, if a third or subsequent complaint arising from the same incident were to be served, you would not be able to apply for legal aid or provide ABWOR as you are now, by this stage, providing relevant (fixed payments) ABWOR or legal aid.

Providing ABWOR and legal aid

The consequences set out above also apply where you are providing ABWOR and criminal legal aid in the case.

For example, where you are providing summary legal aid under fixed payments, you cannot provide separate ABWOR in connection with a further complaint arising out of the same incident.

Equally, where you are providing fixed payment ABWOR and apply for criminal legal aid if your client tenders a plea of not guilty, you are nevertheless only entitled ultimately to one fixed payment for ABWOR and legal aid where the respective complaints arise out of the same incident.

Payment of trials and other “add-ons” within the single grant

Although you can only claim one fixed payment, we recognise that there are still two (or more) proceedings within the single matter (for the purposes of remuneration). So you can claim further additional or “add-on” fixed payments as prescribed by Schedules 1, 1A or 1B in connection with both complaints, depending on the circumstances of each case.

For example:

  • a bail appeal
  • separate disposals, whether or not arising from these trials, such as deferred sentences (excluding those subsumed within the principal fixed payments)
  • further fixed payments in respect of trial days. If both cases proceed to trial, the first 30 minutes of each trial will be subsumed within the core fixed payment (being the only fixed payment chargeable in these circumstances).
  • if one trial does not exceed the 30 minutes but the other trial does, you will be entitled to the further fixed payments, prescribed by paragraphs 3 and 4 inclusive of Schedule 1, for the trial which does proceed beyond the core fixed payment.
  • in the unusual event that both cases proceed to trial both exceeding 30 minutes, you are entitled to a “first day” payment for each trial even though you would have spent two days, one day for each trial in court. In short, we will total the number of “days” (as defined in the Table of Fees) at trial in respect of each of the proceedings and remunerate you accordingly. Further trial days under each, or both, shall attract further trial days.

Whilst you are entitled to payment for each deferred sentence even where the procedure within each of the cases diverges, this remains subject to the inclusion of two deferred sentences within the principal fixed payment.

In most cases, perhaps following an early plea and effective consolidation of the cases, only the first and second deferred sentences are included.

There can be circumstances, however, where the respective proceedings take different courses, where up to two deferred sentences may be included in the fixed payment in respect of each of the proceedings included within the single matter for payment purposes.

When claiming payment you should alwaysconfirm whether claims in respect of the deferred sentences arose in the substantive proceedings or, for example, the proceedings arising from the breach of bail etc. This will assist us in making the proper payment in the circumstances of the case.

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