To the extent that this fee remains relevant, a fixed payment is prescribed.
This payment is intended to remunerate you for all work carried out at the custody appearance and includes the first appearance before the drug court at a later date. The custody court before which the individual appears is not the drug court. The proceedings are adjourned for reports to a specific court designated as a drug court and presided over by a drug court sheriff.
The way in which legal aid cover is made available without reference to either us or the court at the initial stages is by extension of the automatic legal aid provided by section 22(1)(c) of the Act, the basis of work undertaken by the duty solicitor. The exclusive jurisdiction of the duty solicitor was disapplied by the regulations in drug court cases.
The client’s solicitor of choice can admit the accused to advice and assistance to cover taking instructions and discussions with various agencies as to whether that person is an appropriate person to be referred to the drug court. You can claim under advice and assistance if the client is not referred to the drug court. If the client is referred to the drug court, all this work will be covered by the prescribed fixed payment (below). You should submit a “no claim” under the A&A certificate unless you did some other work was done under advice and assistance (see below).
If you claim a fixed payment, it covers all work done at court on the day including taking instructions, advising the client and discussing the case with the various agencies, not just the appearance itself. This is because the fixed payment covers all work done under section 22(1)(c) of the Act which provides automatic criminal legal aid “where [the accused] is being prosecuted under summary procedure…”.
On the other hand, although you are not entitled to claim separately for advice and assistance given during the day of the appearance, this would not include advice and assistance previously given to the client under the same grant, and otherwise chargeable, say during the previous evening or weekend. That work would not have been covered by section 22(1)(c) provisions as the client was not being prosecuted at that stage.
We understand that once someone has been referred to the drug court, arrangements may be made with the fiscal for other cases involving the accused to be referred to the drug court. These cases would not automatically qualify for this fixed payment. The fixed payment only relates to work done under section 22(1)(c) where the client is being prosecuted under summary procedure and is in custody (or has been liberated on an undertaking to appear).
Any other work would have to be covered either by any existing legal aid or ABWOR relating to that case or pro bono if that was the basis on which you were representing the client in an associated case.