Regulation 7 of the fees and information regulations, subject to certain exceptions, provides for a single payment in a summary criminal case reflecting the single summary criminal process. Work under advice and assistance, subject only to the exceptions listed below, is not separately chargeable if you also provide criminal legal aid or ABWOR in the proceedings, your fees being restricted to payment of the subsequent summary criminal legal aid or ABWOR account.  This is sometimes referred to as “subsumption”.

These arrangements apply only to A&A and to “relevant” (fixed payments) ABWOR and summary criminal legal aid. They do not apply in the context of solemn legal aid.

Equally, work under ABWOR is not separately chargeable if you also provide criminal legal aid in the proceedings. So, where ABWOR is provided for a continuation without plea hearing, resulting in a plea of not guilty and criminal legal aid is then applied for and granted, work undertaken under both advice and assistance and ABWOR is to be restricted to the fee chargeable under the summary criminal legal aid account.

Advice and assistance and automatic criminal legal aid can both be charged where only automatic criminal legal aid is available. However, work in connection with proceedings for which automatic criminal legal aid is available is itself subsumed within any criminal legal aid or ABWOR fixed payments payable if the case proceeds further, by virtue of the structure set out in the fixed payments regulations.

It does not matter what type of account you are entitled to lodge, or the order in which the work is done, as you are “restricted to payment in respect of” the latter type of account. The provisions apply whether the subsequent account is chargeable by way a fixed payment or on a detailed basis.

For this reason:

  • Subject to the exceptions, you cannot include work done under advice and assistance in a detailed account under ABWOR or summary legal aid; and
  • the provisions apply not only to the same solicitor who provided advice and assistance or ABWOR but also to the solicitor who provided advice and assistance (or ABWOR) where the later ABWOR or criminal legal aid, perhaps as a result of a transfer, is provided by another solicitor.

Restrictions on lodging advice and assistance account

Regulation 7(7) of the fees and information regulations allow us to disregard any claim for payment under advice and assistance until such time as we are satisfied that ABWOR and/or summary criminal legal aid will not be (or is unlikely to be) required in the same matter.

We will return an advice and assistance account where our records show that ABWOR and/or criminal legal aid have been provided in that case.

Exceptions to single case payment

As stated, there are exceptions to the single payment in a criminal case:

  • advice and assistance followed only by automatic criminal legal aid
  • police station advice to any person to whom section 32 (right to have a solicitor present) of the Criminal Justice (Scotland) Act 2016 applies
  • third party outlays incurred under an advice and assistance certificate
  • all work in the High Court in connection with an appeal under section 174(1) of the 1995 Act, and
  • ABWOR in post-conviction proceedings, which is always payable on a detailed basis under a distinct grant of ABWOR

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