Changes to the Criminal Legal Aid (Scotland)(Fees) Regulations 1989


Monday, Dec 30, 2013

This update provides information about changes made by the Scottish Government to the fees payable to solicitors in solemn criminal legal aid cases. The regulations required to give effect to these changes have been laid in the Scottish Parliament and come into force on 8 January 2014. The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 ("the 2013 Regulations") are available online.

The Criminal Legal Assistance Handbook will be updated to incorporate the changes.

The Scottish Government has made changes to the regulations to address concerns expressed by the Appeal Court (HMA v McCrossan [2013] HCJAC 95) that a number of aspects of the current solemn criminal legal aid fee structure for solicitors may not be wholly compliant with the European Convention on Human Rights (ECHR).  
 
Update topics:

Accounts guidance and fee changes

When do the regulations come into force? 

The Regulations apply to fees for work done in relation to proceedings commenced on or after 8th January 2014. However, provision has also been made which will allow a solicitor to charge under these regulations in respect of proceedings commenced on or after 5 July 2010 and not concluded by 8 January 2014. 

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How should I charge my account where proceedings have commenced on or after 5 July 2010 and not concluded by 8 January 2014?

In all on-going cases which are not concluded before 8th January, you have three options: 

    • You can elect to charge for all work in the case , under the "current" (The Criminal Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 2010) payment arrangements; or
     
    • You may elect to charge the full account under the "new" payment arrangements; or
     
    • You can apply for exceptional case status. If exceptional case status is granted you can charge for all work in the case (including work after 5th July 2010 and pre-8th January 2014) on the basis of the "new" detailed fees. If exceptional case status is sought, that has to be sought in the life of the case, not post-conclusion. Back to top

How should I charge my account where proceedings commenced on or after 8 January 2014?

The account must be charged in terms of the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013. Back to top

How do I apply for Exceptional Case status?

Provision has been introduced to allow solicitors to make an application for exceptional case status to SLAB. Where this is granted, the solicitor will be paid for all work done under Part 1 of the Table of Fees (Detailed Fees). 

Solicitors should be aware that in line with the provisions for exceptional status in summary criminal proceedings all solicitors in the case who have represented the same assisted person, even if before exceptional case status was granted, are obliged to charge under Part 1 of the Table of Fees (detailed fees). 

Exceptional case status should be submitted to the Criminal Applications Department.
 
The application should be made by letter. As the Scottish Government has made this change quickly in response to the Appeal Court decision, there has been insufficient time to introduce a new application process to Legal Aid Online. This will be scheduled into future changes, taking into account other priority areas for development.

The exceptional case status provisions as set out in regulation 7A (1) to (5) of the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 are different to the exceptional case status provisions for summary criminal legal aid and Criminal ABWOR under Regulation 4A of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999.

Regulation 7A (1) to (5), offer a solicitor the option to apply for exceptional case status where he/she can demonstrate that the case is one where there is a risk that the assisted person would not receive a fair trial because of the amount of fees otherwise payable under the 1989 Regulations, and where certain conditions are met.

In the letter applying for exceptional status, you must explain why you feel the application is exceptional in terms of the work which is required and the stage reached in the case. You must set out the legal, factual or procedural complexities in the case giving rise to the application being made.

The application must be made before the case is concluded; we have no facility to retrospectively consider an application for exceptional status. Back to top

Please be aware that, if exceptional status is granted in a solemn case, none of the following inclusive or block payments can be claimed for. All work carried out under the grant of legal aid becomes chargeable on a time and line basis and none of the following fees can be claimed for: 
  • Initial petition fee
  • Bail appeal fee 
  • Meetings/consultations fee (where the client is in prison)
  • Preparation fees
  • Post conviction fee
  • Miscellaneous inclusive fees as prescribed in Part 2, paragraph 6 (where the work is not dealt with at the Preliminary Hearing of First Diet)
Please note that an exceptional status application does not need to be made to opt out of the prison visit inclusive fee. If you wish to opt out of the prison visit inclusive fee, a letter should be sent to the Accounts Department requesting this, and setting out the reasons in the usual way. Back to top
 
Provision to apply to opt out of the inclusive fee in Part2, paragraph 3: "The fee for arranging and attending all meetings, including consultations, in prison with the client after full committal for trial up to the conclusion of the case".
 
For the avoidance of doubt, in circumstances where the case does not justify an application for exceptional case status or where an application is refused, a solicitor will still have the option to make an application to apply to opt out of the prison inclusive fee in circumstances where the Board is satisfied that the case raised unusually complex issues of fact. All such applications should continue to be submitted for the attention of the Accounts Specialists. Back to top
 

Accounts guidance and fee changes 

Discretion to prescribe a fee 

Schedule 1, paragraph 1(3A) of the Notes on Schedule 1, provides the Board, or auditor, with discretion to allow a fee for any work which has been done by the solicitor but which is not covered by any inclusive fees in Part 2 or any of the detailed fees in Part 1 of the Table of Fees. This new discretion is similar to the discretion already available to the Board or auditor for counsel’s fees (see paragraph 2 of the Notes on the operation of Schedule 2 to the 1989 Regulations).
 
In allowing a fee the Board or auditor has to ensure the fee is reasonable remuneration for the work done with regard to all the circumstances. A fee will not be payable if paragraph 3 of the Notes on Schedule 1 already provides that no fee is payable for that item of work. As the Table of Fees in Schedule 1 already makes provision for all likely items of work undertaken by a solicitor, the occasions on which the Board or auditor would have to exercise this discretion are expected to be very limited. However, the new discretion is considered necessary to ensure as much flexibility as possible in the payment regime under the 1989 Regulations. Back to top
 

Research 

 

The Board’s long standing taxation practice to restrict charges for research is in line with the authority of Perry and another v The Lord Chancellor (The Times Law Reports 1994 p299, May 26 1994). A solicitor is expected to be able to deal with everyday cases without the need for legal research. Familiarisation with the law, including new law is expected and is not exceptional.
The amendment includes a new paragraph 3B into the Notes on Schedule 1 about fees for research which are aimed at bringing greater clarity as to the circumstances when a fee may be chargeable.
A fee may be payable for research on novel, developing or unusual points of law where the Board considers the circumstances of the case to be exceptional (whether or not the case has been granted exceptional status) and where the research required goes beyond the expected understanding of the solicitor as set out in regulation 10A.
 
This fee may be payable where something arises in the context of that case either in the form of an unusual set of circumstances on which there is currently no firm law, or circumstances where a solicitor thinks that the existing law can be distinguished or where a Sheriff made a decision which appears to be contrary to the accepted law. In such situations, a solicitor may reasonably need to undertake research in order to defend the client’s interests. A fee for research under this provision is not intended however for every novel, developing or unusual point of law.
 
Schedule 1, paragraph 3B(a) provides that the Board must consider the circumstances in some way exceptional in order to allow the fee. This makes clear that any points for research must be substantial, and have significance and importance to the case. Wider importance or significance beyond the case might be an indicator of the circumstances of the case in question being exceptional. Back to top
 

Preparation

  • Preparation - when is a fee chargeable? 

Note on the operation of Schedule 1, paragraph 3(j) provides that no fee is chargeable for "preparing for a hearing, other than where the fee for preparation is as provided for within a block of work prescribed in Part 2 of the Table of Fees (inclusive Fees)".

  • Preparation in relation to a devolution or compatibility issue where the inclusive fee in Part 2, paragraph 6(a) or (ab) of the Table of Fees could be chargeable

Regulation 4(f) of the regulations inserts a new paragraph 3A in the Notes on the operation of Schedule 1 to make clear that, where a preparation fee would otherwise be chargeable for a hearing raising a preliminary issue, where the preliminary issue would have the effect of excusing the accused person from trial and no other fee is prescribed for this preparation and a fee is chargeable under paragraph 6(a) or (ab) of Part 2 of the Table of Fees, only one of the inclusive fees is chargeable, that being the higher of the two. 

  • Preparation - new inclusive fees

Regulation 6(b) of the regulations creates a new inclusive fee in paragraph 4A of Part 2 of the Table of Fees. The effect of this is that there is more opportunity for payment to solicitors for preparation early in proceedings (i.e. not restricted to preparation for trial) in respect of:

  1. a hearing at which the client pleads guilty, as described in section 76 of the Criminal Procedure (Scotland) Act 1995;
  2. a hearing on a plea in bar of trial; and
  3. a hearing raising a preliminary issue, where that issue would mean the client did not have to go to trial and there is no other fee for preparation.
  • Preparation for deferred sentences

The reference to a diet of deferred sentence in paragraph 3(m) of the Notes on the operation of Schedule 1 and paragraph 4(b) of Part 2 of the Table of Fees have now been removed. The effect of this is that that there is no inclusive fee payable in relation to preparation for a diet of deferred sentence.

The existing inclusive fee at paragraph 5 of Part 2 of the Table of Fees which covers post-conviction work has increased and will be payable even where previously there would have been no entitlement to any separate preparation fee. Back to top

Amendments to the Table of Fees

Part 1, Detailed Fees

The Scottish Government has reduced the amounts of the detailed fees in Part 1 of the Table of Fees in Schedule 1 in order to offset the increased costs of the other provisions in the regulations. The level of reduction is aimed at making the provisions as a whole cost-neutral to the Fund. While the detailed fees payable for individual cases will change as a result of the reduction, the overall amount of fees being paid to solicitors when taking into account the increased costs of the other provisions as a group for solemn criminal legal aid work in a full financial year should not. 

Part 2, Inclusive Fees

Paragraph 4A – New preparation fees

The prescribed rates are as follows:

 

      A              B              C

 £38.00    £38.00    £38.00

4A. The fee for preparation for -
(a) a hearing under section 76 of the 1995 Act (procedure where accused decides to plead guilty);
(b) a hearing on a plea in bar of trial;
(c) a hearing raising a preliminary issue, where the preliminary issue would have the effect of excusing the accused person from trial and no other fee is prescribed for this preparation. 

Paragraph 5, Post Conviction Inclusive Fee

The fee level has been increased in all cases and the wording extended to make clear that the fee covers "all work in connection with post conviction discussions, advice and representation, including advising and giving an opinion on the prospects of any appeal". The reference to "representation" does not mean that the time engaged by the solicitor at court at any deferred sentence diet is subsumed within this fee. The time engaged at court conducting, or attending court when counsel is conducting, a hearing and any necessary and additional waiting time continues to be separately chargeable in terms of paragraph 1(5)(f) and (g) on the Notes on the operation of Schedule 1. The new fees are provided below.

 
 
 
Column
A
Column
B
Column
C
5. The fee for all work in connection with post conviction discussions, advice and representation, including advising and giving an opinion on the prospects of any appeal
£177.00
£177.00
£101.00

 

Paragraph 6, Inclusive Fees where issue dealt with at a First Diet

Regulation 6(d)(i) amends paragraph 6 of Part 2 of the Table of Fees to insert reference to a first diet. In the sheriff court some of the matters listed in paragraph 6 are often dealt with at a first diet; in the High Court they are often dealt with at a preliminary hearing. This amendment brings the provision of payment for work in relation to sheriff court procedure into line with payment for work in relation to High Court procedure.

The effect of this is that a fee for the various matters listed in paragraph 6 is not available by way of an inclusive fee where that work is dealt with as part of a preliminary hearing or first diet. A solicitor will be entitled to charge for all work actually and reasonably done, due regard being had to economy on a detailed basis. Back to top

For more information:

In relation to any accounts related matter please contact accounts specialists Iain Baptie on baptieia@slab.org,uk or 0131 240 2059 or Billy Smith on smithwi@slab.org.uk or 0131 226 7061 ext. 317.

In relation to applications for exceptional cases status please contact:

Kingsley Thomas, Manager of Criminal Legal Assistance, on thomaski@slab.org.uk or 0131 240 2085 Back to top


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