Changes to the fee rates payable in certain summary criminal legal aid cases

The Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 and the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003


Thursday, Dec 11, 2014

This mailshot provides solicitors with information about changes to the fee rates payable in certain summary criminal legal aid cases

It gives details of important changes to the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 and the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003. It follows our update sent last month.
 
The regulations follow tripartite discussions between the Scottish Government, the Law Society of Scotland and the Scottish Legal Aid Board (SLAB).
 
The regulations come into force on 17 December 2014, and will apply only in respect of proceedings commenced on or after this date.
 
A full copy of the regulations is available online.
 
The Criminal Legal Assistance Handbook will be updated on 17 December 2014 to incorporate the changes. The necessary changes will be made to SLAB’s online systems in time for the coming into force date.
 
Amendment of the Criminal Legal Aid (Fixed Payments)(Scotland) Regulations 1999
 
A note of the main changes to the regulations are: 
1.   Definition of "diet of deferred sentence”
 
Regulation 2(1) (interpretation), now reads “section 201 (power of court to adjourn case before sentence), section 202 (deferred sentences) or section 203 (reports) of the 1995 Act”.
 
SLAB will only make payment in circumstances where the case had been adjourned to the hearing at which the solicitor attends and a fee is separately chargeable for a diet of deferred sentence, as defined. Back to top
 
2.   Single summary complaint or complaints arising out of the same incident
 
Regulation 4(3)(b) now reads “proceedings under section 22, 22ZA(1)(a), 27(1)(a), 28 or 150(8) of the 1995 Act, arising out of the complaint or complaints referred to in sub paragraph (a)”.
 
This simply extends the current categories that are to be treated as a single matter to cover any proceedings under section 22ZA(1)(a) of the 1995 Act “by reason of failing to appear at court as required under subsection (1C)(a) of section 22”.
 
The effect of this amendment is that where there is an existing summary criminal legal aid certificate in the proceedings and an accused person fails to appear at any diet of which they have been given due notice in connection with these proceedings, any further proceedings arising out of the failure to appear are subsumed within the existing criminal legal aid certificate.
 
A complaint arising from the alleged failure to appear is now in exactly the same category as a complaint which arises out of the same incident and no further core fixed payment can be claimed. It is not competent to make a further application for criminal legal aid and no further certificate shall be issued in respect of these ancillary proceedings.
 
Similarly, these proceedings are subsumed within an ABWOR certificate issued in respect of the substantive proceedings. Also, if ABWOR is provided in connection with the failure to appear proceedings, no account can be submitted under schedule 1B where a criminal legal aid account has been lodged in connection with the substantive proceedings.
 
In line with previous guidance in relation to failure to appear proceedings, further fixed payments (other than the core fixed payment) can be claimed for trial diets, deferred sentences etc, where appropriate.
 
This provision only affects cases where at any stage there is an ABWOR or summary criminal legal aid certificate in relation to the substantive matter. Where there is no such certificate, ABWOR can be provided, if appropriate, or an application for criminal legal aid can be made in respect of the complaint for failure to appear or advice and assistance may be made available to the client. Back to top
 
3. Fee where the solicitor provides relevant ABWOR when, in the same court on the same day, that person is first brought before a court to answer to two or more summary complaints which are not to be treated as a single matter
 
Regulation 4(5A)(b) now reads “a guilty plea is tendered to a charge libelled in any of the complaints at the first diet at which the assisted person was called upon to plead, resulting in the disposal of the case”.
 
The regulation, as amended, makes clear that where the solicitor represents an assisted person on two or more summary complaints and pleads guilty to a charge libelled in any of the complaints at the first diet at which the client is called upon to plead and this results in the disposal of the case the reduced fee levels will apply in respect of the second and subsequent complaints. The provision applies whether your client pleads on the day or at a later stage (e.g. a CWP hearing) when called upon to plead.
 
This will apply to any cases where a mixture of pleas has allowed a case to be disposed of,rather than only where a guilty plea to all charges on a complaint has been tendered.
 
The amount payable under paragraph 1 of Part 1 of Schedule 1B remains at 100% of the prescribed amount in respect of the first complaint, 40% of that amount in respect of the second complaint and 20% in respect of any other complaints. Back to top
 
4. Where the duty solicitor tenders a not guilty plea and the accused person subsequently pleads guilty before the trial begins 
 
Regulation 4(5B) provides for the fixed payment payable to a solicitor under paragraph 1
of Part 1 of Schedule 1, or paragraph 1 of Schedule 1A (summary criminal legal aid) to the Fixed Payment Regulations, the core fixed payment or case disposal fee, to be halved if the duty solicitor tenders a not guilty plea on the person’s behalf, the assisted person subsequently obtains a grant of summary criminal legal aid and pleads guilty to that charge or any other charge before the trial begins, resulting in the disposal of the case.
 
Regulation 4(5B) reads as follows:
 
“(5B) The amount payable under paragraph 1 of Part 1 of Schedule 1 or, as the case may be, paragraph 1 of Schedule 1A, is half the amount that would otherwise be payable if the assisted person-
(a)      was represented by a solicitor arranged by the Board to provide criminal legal aid in accordance with regulation 7(1) of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011;
(b)      tendered a plea of not guilty to any charge libelled in a complaint at the first diet at which the assisted person was called upon to plead; and
(c)      before the commencement of the trial tendered a plea of guilty to that charge or any other charge in that complaint resulting in the disposal of the case”.
 
The provision applies where a duty solicitor initially tenders a plea of not guilty to any charge libelled in a complaint on behalf of a client, and later a nominated solicitor tenders a plea of guilty (to that charge or any other charge in the complaint) before a trial takes place resulting in the disposal of the case prior to the commencement of a trial.
 
The core fixed payment will be halved before any enhanced payment under regulation 4(6) where the assisted person has been remanded in custody and is under 21 years of age at any time during that remand is added.
 
This provision does not affect fixed payments under Schedule 1A where the trial actually commences but does not exceed 30 minutes duration.  The amendment changes the position.  In these situations you are still entitled to the relevant unrestricted case disposal fee payable for that court.
 
Remember that where you are the appointed duty solicitor, but also have a pre-existing relationship with a client, you can claim the full core fee on condition that no claim is made for the same client under the duty scheme. In order that the full core fee can be claimed it is essential when completing the online criminal application that you enter “No” to the question “not guilty plea was entered by the duty solicitor”. Back to top
 
5. Exceptional case
 
The exceptional case provisions have been extended to make clear that an exceptional case also applies to any case where you would otherwise be entitled to a fixed payment under Schedule 1A. Back to top
 
6. Proceedings “marked for prosecution” before a Stipendiary Magistrate
 
The headings of the first and second columns of Part 1 of Schedule 1 and Part 1 of Schedule 1B and the first column of Schedule 1A have been amended to substitute “marked for prosecution” for “set down” in cases which are to proceed before a Stipendiary Magistrate.
 
This should bring greater clarity to the regulations in circumstances where the case has been marked by the Procurator Fiscal for the JP Court but the case calls before a Stipendiary Magistrate due to programming or any other reason. Back to top
 
7. Breach of bail proceedings under section 22ZA(1)(b) and 22ZB and changes to the fees payable.
 
The fixed payment which is payable in connection with a complaint under section 27(1)(b) of the 1995 Act has now been extended to cover breach of bail proceedings under section 22ZA(1)(b) and 22ZB of the 1995 Act. This takes account of amendments relating to police liberation which were brought in by the Criminal Justice and Licensing (Scotland) Act 2010.
 
The policy intention of this regulation is to align the fee payable equivalent to a half core fixed payment in circumstances where a complaint was served under section 27(1) (b) of the 1995 Act.
 
On the online system, a new case category - BOU has now been added for these S22(ZA)(1)(b) and 22ZB cases. Please ensure that this category is used for these cases to ensure that payments can be made for them.
 
The Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011 (SSI 2011/162) reduced the core fixed payment and case disposal fee payable, but the corresponding fees, payable where a complaint was served under section 27(1) (b), were not so reduced. The regulations have been  amended so that payment is to be half the principal fee: i.e. the equivalent of half the fee paid for all work mentioned in paragraphs 1 of part 1 of Schedule 1, Schedule 1A and Schedule 1B to the 1999 Regulations. The new fees, therefore, are as follows:-
 
Summary Criminal Legal Aid
 
Paragraph 2 of Part 1 of Schedule 1
 
All work mentioned in paragraph 1 above that is done in connection with a complaint under section 22ZA(1)(b), 22ZB or 27(1)(b) of the 1995 Act.
Where professional services are provided in relation to proceedings in the JP Court (other than where proceedings are marked to proceed before a Stipendiary Magistrate)
Where professional services are provided in relation to the JP Court (where proceedings are marked to proceed before a Stipendiary Magistrate)
Old Fee
£157.50
£257.50
£257.50
New Fee
£147.50
£195.00
£242.50
 
Paragraph 2 of Part 1 of Schedule1A
 
All work mentioned in paragraph 1 above that is done in connection with a complaint under section 22ZA(1)(b), 22ZB or 27(1)(b) of the 1995 Act.
Where professional services are provided in relation to the JP Court (where proceedings are marked to proceed before a Stipendiary Magistrate)
Where professional services are provided in relation to proceedings in the Sheriff Court
 
Old Fee
£257.50
£257.50
 
New Fee
£195.00
£242.50
 
 
 
Assistance by Way of Representation (ABWOR)
 
Paragraph 2 of Part 1 of Schedule1B
 
All work mentioned in paragraph 1 above that is done in connection with a complaint under section 22ZA(1)(b), 22ZB or 27(1)(b) of the 1995 Act.
Justice of the Peace Court (where proceedings are marked to proceed before a Stipendiary Magistrate)
 
Sheriff Court
Old Fee
£257.50
 
£257.50
 
New Fee
£195.00
 
£242.50
 
 
Back to top
 
8. Single payment in respect of a deferred sentence hearing other than the first or second hearing which relates to more than one complaint
 
A single fee is payable to a solicitor who conducts multiple diets of deferred sentence relating to more than one complaint in respect of the same accused on the same day. The “per appearance” fee is only payable where a deferred sentence fee is separately payable and is not already subsumed within the core fee payable.
 
The prescribed fee under paragraph 10ZA of Part 1 of Schedule 1 (also applicable to Schedule 1A) and paragraph 8A of Part 1 of Schedule 1B has been amended to make it clear that the “per appearance” fee is not payable to the extent that any of the diets taken into account in the calculation is a first or second diet of deferred sentence, subsumed within the core fixed payment or case disposal fee in terms of the regulations. Back to top
 
9. Grants of ABWOR in circumstances where the solicitor prepares for a hearing under section 145 of the 1995 Act but the hearing does not take place
 
Regulation 11(4) (amending paragraph 2(c) of Part 1, Schedule 1B ) and Regulation 12 (amending regulation 6(1)(ba) of the 2003 Regulations) revises the provision for payment where a case is continued without plea. This allows a fee to be paid where the CWP diet itself is not called, removing any financial disincentive there may have been for solicitors to negotiate with the Procurator Fiscal to reach agreement prior to the diet and in circumstances where the case is deserted.
 
The regulations have been amended to make clear that a fee is payable in circumstances where work has been done “in relation to” the CWP diet rather than “at any diet”. ABWOR can now be granted where representation of an accused person who is not in custody has taken place at the pleading diet but only in relation to any diet to which the case has been adjourned, the CWP diet.
 
Now, in custody and non-custody cases ABWOR may be provided after the CWP continuation even if the case is then resolved without a second appearance. In non-custody cases there will no longer be the need for a second court appearance after the CWP hearing for ABWOR to be appropriate, allowing the solicitor to make  ABWOR available, if the interests of justice and financial tests are satisfied, for a CWP, and for discussions to take place to resolve matters. ABWOR can also be provided in these circumstances where the client was not present at the first calling of the case. Back to top
 
10. Redundant fee narratives in Schedule 1B
 
It may have been noted that there remain various references to fee narratives in Schedule 1B (the schedule added to the regulations in 2008 to provide for fixed payment in ABWOR) that are not chargeable under any circumstances. Only paragraphs 8 and 9 are chargeable. 
 
The redundant fee narratives have now been removed for the sake of clarity and to avoid any confusion.
 
Back to top
 
For any queries about the matters raised in this mailshot, please contact:
  • the Accounts Specialists team on 0131 226 7061 extensions 245, 654, 659 or 687
  • Kingsley Thomas, Head of Criminal Legal Assistance, on 0131 240 2085 or thomaski@slab.org.uk


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