The only fees separately chargeable in the sheriff court in addition to the core fixed payment are as follows:
Paragraph 2 – 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.
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”.
You are entitled to a fee for a diet of deferred sentence 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.
In cases where the hearing deals with multiple complaints the prescribed fee is chargeable in respect of each separate 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.
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.
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 3 – additional payment for a section 203 hearing
A fee under paragraph 7 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.
Paragraph 4 – bail appeals
Paragraph 4 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 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.
A fixed payment is prescribed in such an appeal where counsel is not employed. Separately, a further fixed payment is prescribed in respect of representation for a bail appeal or a continued diet of such an appeal, where counsel is not employed.
Where counsel is employed no separate representation fee is appropriate and all work done by the solicitor is covered by the fee prescribed in paragraph 4(a).
A bail review is subsumed within the core fixed payment and should not be confused with a bail appeal.
Paragraph 5 – Holiday Court Supplement
Where at a holiday court sitting a solicitor acts for a person appearing from custody on the day on which that person is first brought to a court to answer to a complaint the supplementary fee is payable.
Provision has also been introduced for an additional fee to be paid to solicitors representing an accused person appearing from custody when doing so on a day which has been designated a court holiday:
- “court holiday” means a day prescribed as such (including an additional court holiday) in accordance with section 8(2) of the Criminal Procedure (Scotland) Act 1995;
- “holiday court sitting” means a sitting of a sheriff court on a court holiday, a Saturday or a Sunday by virtue of an order under section 28(1) or 29(2) of the Courts Reform (Scotland) Act 2014.
Any travel and other outlays must always be apportioned between cases, where appropriate.