Part 1

Schedule 1 prescribes the fixed payments chargeable in the case in circumstances where you provide summary criminal legal aid in the

  • sheriff court, or the
  • JP court.

and the case proceeds to trial beyond the first 30 minutes.

Regulation 4(1A) provides that fixed payments are payable only under Schedule 1 or 1A as an alternative to each other in circumstances where summary legal aid is provided.

Paragraph 1 – core fixed payment

Paragraph 1 prescribes the core fixed payment, which includes all work up to and including

  • any diet at which a plea of guilty is made and accepted or plea in mitigation is made
  • the first 30 minutes of conducting a proof in mitigation or a proof of a victim statement, other than work done in connection with a grant of legal aid under section 23(1)(b) of the 1986 Act
  • the first 30 minutes of conducting any trial
  • a first or second diet of deferred sentence
  • advising, giving an opinion and taking final instructions on the prospects of an appeal against conviction, sentence, other disposal or acquittal, and
  • any subsequent or additional work other than that specified in paragraphs 2 to 13 of Schedule 1.

This payment represents the total fee payable for all work that you undertake in connection with the case from beginning to end, except work for which a further fixed payment is prescribed. These further fixed payments are available in the circumstances of each individual case. If a piece of work is not covered by such an “add-on” then it is included in the fixed payment. There is no work undertaken in a case for which there is no payment.

Trial and proof in mitigation

As can be seen from the terms of paragraph 1, a trial and, on the other hand, a proof in mitigation are treated quite separately and the prescribed 30 minute limit applies to each, individually, before proceeding on to a ‘first day’ fee respectively.  Where there is both a trial and a proof in mitigation in the case, both exceeding 30 minutes, you incur a ‘first day’ fee in each; you are not entitled to a ‘second day’ for the proof in mitigation unless, of course, either the trial or the proof (or both) go beyond the first day (beyond two days in total).

These are separate fees.

Proof in mitigation only

Some confusion can arise as to whether a solicitor, in certain circumstances, can be said to have conducted a deferred sentence or a proof in mitigation as there is no specific provision in the 1995 Act for a “proof in mitigation”.

In practice, a case may be adjourned for a proof in mitigation and then sentence where the court decides it cannot proceed to sentence, as when a court has to sentence an accused it should seek to do so on a true factual basis.  The Crown has to lay before the court the facts and circumstances relating to the charge to which an accused has tendered a plea of guilty, and ensure that the sheriff is alerted to the fact that information contained within a plea in mitigation is disputed.  In such a situation the sentencing sheriff must make clear to an accused’s representative that a line of mitigation, which is being disputed by the Crown, cannot be accepted on an ex parte basis.  In such a situation, the sheriff should offer a proof in mitigation and allow evidence to be led.  It is for the accused to decide whether they wish to lead evidence in mitigation.  (See Lord MacKay of Drumadoon in HMA –v- M D Murray aka Kerrigan 2008 HCJI, 19 February 2008, at paras [15] to [23], and also Lord Sutherland in McCartney –v- HMA, 1997 SCCR 644 at 646B-C).

Where it is clear from the information available that a proof in mitigation took place in the proceedings, and not a plea in mitigation, you can claim for a proof in mitigation only.

Paragraph 2 – section 22ZA (1)(B), 22ZB and 27(1)(b) proceedings – half fee

A half core fixed payment is available in breach of bail proceedings arising from sections 22ZA (1)(b), 22ZB and 27(1)(b) of the 1995 Act.

Paragraph 3 – section 23(1)(b) proceedings

The provisions relating to payment of fees arising from a section 23(1)(b) case are discussed in our other criminal guidance.

Paragraphs 4, 5 and 6 – extended trials

A trial commences for the purposes payment in terms of the fixed payments regulations when the first witness is sworn.  The definitions of a trial, proof in mitigation and proof of a victim statement are prescribed in regulation 2(3).

These provisions allow for further fixed payments after the first 30 minutes for the first, second and subsequent days of a trial or a proof in mitigation.  A “first day” of trial is defined by reference to the duration of the trial, not by reference to a calendar day.  The schedule refers to ‘conducting a trial or proof in mitigation for the first day after the first 30 minutes’.  So, for example, in the unusual event that you conduct a trial for ten minutes late in a court day and the proceedings are adjourned to the next day, the next morning, after a further 10 minutes (in this example) becomes the “first day”, not the “second day”.

Paragraphs 4A and 4B – adjourned trial diets which do not proceed

Separate provision is made for adjourned trials which do not proceed.  This may arise in circumstances where there is a difficulty with the availability of a witness or some other issue needing resolution before the trial can continue.

There are two circumstances in which this can arise, each with their separate fees:

  • where it is known that the trial will not actually proceed on the due date and the circumstances are akin to the fixing of a notional diet
  • where there is a belief that the trial will actually proceed and some preparation is done but, for some reason, it does not proceed on the day.

Although the court will not differentiate in any way between trial days, the number of days being how many calendar days a trial lasts, this is exactly what the fixed payment regulations do in the context of the remuneration of solicitors.  The whole point of these additional paragraphs is to ascribe a fee to a trial diet, depending on the nature of the hearing and the circumstances in which it took place.  So, for example, if a trial starts and lasts two days in the sheriff court and is then followed by two diets which call but do not proceed, and concludes with a trial diet at which evidence is led, the calculation would be as follows:

The first day (£100/103) + a second day (£200/206) + 2 x £50 (£100/103) + a third or subsequent day (£400/412) = £800/824 (subject to the application of paragraph 4A, not 4B).

These are all “trial diets” but the scheme set out in the Schedule and Table of Fees prescribes different level of fees to each type of trial diet.

Paragraphs 7, 8 and 9 – victim statements procedure

These paragraphs make provision for various circumstances where there is representation in court in connection with a victim statement.

Paragraph 7 prescribes a fee for a continued diet where the matter is not disposed of at the conclusion of the hearing at which the plea of guilty is accepted or the client has been found not guilty, but the matter does not actually proceed to proof at that hearing.

The fees for conducting a proof on a victim statement are dealt with at paragraphs 8 and 9. The difference between them is that the fee under paragraph 8 is only payable after the first 30 minutes of the hearing, the first half hour of work being subsumed within the core fixed payment. Although on the face of it the fee is the same under both paragraphs, an additional fee under paragraph 8 shall not be chargeable if the proceedings do not exceed 30 minutes.

These fees are only payable in the sheriff court (or stipendiary magistrate court).

Paragraph 10 – youth court, domestic abuse court, community supervision order

Fixed payments are prescribed for representation per appearance by a solicitor, as distinct from per case, before a court designated as a youth court or as a domestic abuse court by the Sheriff Principal, and at a hearing in respect of a community supervision order.

The significance of a “per appearance” fee is that it is chargeable once even where the appearance may arise from two or more different complaints.

This paragraph no longer applies to a deferred sentence (now moved to paragraphs 10ZA and 10 AA, and now also chargeable per appearance).

Paragraph 10ZA – deferred sentences

The core fixed payment subsumes a first or second deferred sentence. Only further deferred sentence hearings beyond the first and second hearings are separately chargeable. It follows that the fees prescribed by this paragraph are only chargeable where the fee for the deferred sentence is not already subsumed within the core fee. It is important to include details of all deferred sentence diets that took place in the proceedings at the accounts stage in order that we can determine the hearings that are separately payable.

Where proceedings such as failure to appear are subsumed within the certificate for the substantive proceedings and there are deferred sentences attributable to this element of the combined proceedings, the first and second deferred sentences are also separately subsumed within the core fixed payment. In the unlikely event of there being two deferred sentences in respect of the substantive proceedings and two deferred sentences under the failure to appear proceedings, where the proceedings maintain separate courses, all four deferred sentences would be subsumed within the core fixed payment for the “proceedings”.

Paragraph 10 deals with representation in court at a diet of deferred sentence.  You are entitled to a fee for a diet of deferred sentence, per appearance, other than where the fee is included within the core fixed payment for the case in respect of a first or second diet of deferred sentence.

The significance of a “per appearance” fee is that it is chargeable once even where the appearance may arise from two or more different complaints. An enhanced fixed payment, to reflect the change to a per appearance fee, is prescribed where a hearing relates to more than one complaint.

You can only claim for work actually done and should never claim for a deferred sentence when set down by the court in anticipation of attending a diet, which for one reason or another may not proceed.

A supplementary account is the appropriate course of action once the work has been undertaken.

Structured deferred sentence

A “structured deferred sentence”, understood to be the equivalent in certain courts to a DTTO but used primarily where the accused has a drink problem, shall be paid as a deferred sentence in the event that the proceedings have been adjourned under section 202 of the 1995 Act.

Such hearings are also treated as a deferred sentence in the application of the provision of the Schedules to the effect that the core fixed payment and case disposal fee subsumes a first or second deferred sentence.

Continued diet

The definition of a “diet of deferred sentence”, at regulation 2(1), includes those diets where the case has been adjourned for enquiries or reports under section 201 (power of court to adjourn case before sentence), section 202 (deferred sentence) and 203 (reports) of the 1995 Act.

A deferred sentence diet continued to a later part of the day’s proceedings cannot, therefore, be construed as a further adjournment.  In these circumstances, only one fixed payment is chargeable under paragraph 10ZA.  It is viewed by the court as the same diet which has been continued to a later part of that day’s proceedings, and we assess it accordingly.

Appearance on a warrant

An appearance from custody on a warrant where the client has previously failed to attend at a deferred sentence itself is not to be construed as a deferred sentence.  The current definition of a diet of deferred sentence means that only a diet adjourned in advance to a particular day, whether the adjournment is under sections 201, 202 or 203, can be construed and allowed as a deferred sentence.  Whether or not the court takes the opportunity on the day to deal with the deferred sentence, the accused having been apprehended does not make it a diet adjourned for the purpose of sections 201, 202 or 203 of the 1995 Act or chargeable as such. You will have been paid for the abortive diet, if it called.

Note: The definition of “deferred sentence” was amended by the 2014 fixed payments and ABWOR regulations [S.S.I. 2014 No. 366], as at 17 December 2014. There was no definition as such of a section 202 diet of deferred sentence in the Table of Fees and a section 202 deferred sentence, dealt with by the court on the day,  was arguably chargeable on a claim for a section 202 deferred sentence taking place at the warrant hearing on apprehension of an accused person. This point is no longer arguable.

Paragraph 10AA – additional payment for a section 203 hearing

A fee under paragraph 10AA is chargeable (once only) where

  • the court considers a social enquiry report under section 203, and
  • the case is disposed of during the course of a first or second diet of deferred sentence (both these hearings being subsumed within the core fixed payment or case disposal fee).

Please remember that his payment can only be claimed in connection with a deferred sentence for a social enquiry report.

In terms of the regulation, the additional payment is payable only where the case is “disposed of” at one of the two subsumed diets, and is not separately chargeable where

  • the case is continued to a further diet or diets of deferred sentence, or
  • the case is disposed of at a diet for which a further fixed payment is payable.

So, where the accused is convicted and the sheriff fixes a DTTO order, as an alternative to sentence by other traditional means, you will be entitled to payment of an additional fee. The sheriff has clearly disposed of the matter.

Also, in Glasgow where there is a referral to the Drug Court payable under Schedule 1, part 2 under the certificate, this is also a disposal. The proceedings may not be at an end, but nevertheless there has been a disposal in these circumstances. The additional fee is payable.

Paragraphs 11 and 12 – automatic criminal legal aid payment

Paragraphs 11 and 12 provide fixed payments for all work carried out under two separate instances in which automatic criminal legal aid is available.

The £25/25.75 figure is simply a device to ensure that no matter when the work is done in a summary case, the total fee remains the same as the core fixed payment.  This is achieved by reducing the core fixed payment by that amount where work has been undertaken under automatic legal aid.  The fixed payment for automatic work could be £25 or 25 pence; it is simply a figure to coincide with the equivalent reduction in the fixed payment to ultimately reconcile the payment for work done, no matter what or when it is done.

Paragraph 13 – bail appeals

Paragraph 13 provides a fixed payment for all work in connection with a bail appeal under sections 32 and an appeal under section 201(4) of the 1995 Act.  This fee includes all work carried out by the nominated solicitor and the Edinburgh agent in a bail appeal, subject to the more recent provision for advocacy below, whether the bail appeal is heard on the first day or has to be continued to a second day.  The charge is for a bail appeal, unrelated to the time taken.

The fixed payment for a bail appeal is payable by reference to the proceedings per case, not per appearance.  Where bail appeals are proceeding at the same time in respect of separate complaints, not the same proceedings for fixed payments purpose, the prescribed fee applies to each individual case.

With the advent of the Sheriff Appeal Court, which now deals with all summary appeals against sentence or conviction and also bail appeals, and before which solicitors have rights of audience, new provision has now been made for representation by a solicitor. A fixed payment is now prescribed in such an appeal where counsel is not employed. Separately, a further fixed payment is prescribed in respect of any continued diet in such an appeal.

Travel and other outlays must always be apportioned between cases, as always.

Bail review

A bail review is subsumed within the core fixed payment and should not be confused with a bail appeal.

Paragraph 14 – bail subject to a movement restriction condition

Paragraph 14 which provided a fee for work done in connection with an application for bail subject to a movement restriction condition under section 24A of the 1995 Act was omitted by the 2010 fixed payments regulations [S.S.I. 2010 No.237].  It is understood that the pilot was discontinued.

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