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Courts Reform - the Legal Aid (Miscellaneous Amendments) (Scotland) Regulations 2015
Friday, Sep 18, 2015
This update provides information about forthcoming changes to the civil and criminal regulations and other changes arising from the implementation of the Courts Reform (Scotland) Act 2014 (the 2014 Act).
We have prepared details of important changes to the:
- Civil Legal Aid (Scotland)(Fees) Regulations 1989;
- Criminal Legal Aid (Scotland)(Fees) Regulations 1989;
- Criminal Legal Aid (Scotland) Regulations 1996;
- Criminal Legal Aid (Fixed Payments)(Scotland) Regulations 1999.
This update also identifies important amendments to the Civil and Criminal Legal Assistance Handbooks following changes arising from the 2014 Act.
The necessary changes will also be made to our online systems in time for the coming into force date.
The regulations were laid before the Scottish Parliament on 17 September 2015 and come into force on 22 September 2015.
A full copy of the regulations is available at http://www.legislation.gov.uk/ssi/2015/337/contents/made.
Our Legislation Handbook will also be updated to reflect the changes.
The Scottish Government’s approach has always been that the legal aid regulations need to be developed in time to support the courts reform timetable.
The Scottish Government has made it clear that the current fee arrangements for the new Sheriff Appeal Court are transitional and that the fee structures will be reviewed once the court is operational. As is often the case during the transition period for new areas of work, the regulations allow detailed fees to be paid to solicitors.
The regulations replicate the legal aid provisions for summary criminal appeals as they currently exist in the High Court, pending a review of the system.
The main changes to the existing regulations are as follows:
1. Amendment of the Civil Legal Aid (Scotland)(Fees) Regulations 1989
Schedule 4, Table of Fees A (fees of junior counsel for proceedings in the Court of Session)
Chapter 3 (Petitions for Judicial Review) - The regulations apply existing fee levels and structures to the new procedure under the 2014 Act. The Table now provides cover for oral hearings at permission stage or procedural hearings and substantive hearings at the same rates which would be payable for a motion for first orders and first or second hearing respectively.
The changes only apply in relation to petitions lodged on or after 22 September 2015.
Chapter 6 (ordinary actions) – A “catch all” fee is now prescribed in relation to any hearing where no other hearing fee is prescribed. The fee payable is set at a level that reflects the fee payable for motions (including by-order hearings), which is £60.00 for the first half hour and £50.00 for each subsequent half hour or part thereof
Schedule 4, Table of Fees B (fees of junior counsel for proceedings in the sheriff court)
A “catch all” fee is now prescribed in relation to any hearing where no other hearing fee is prescribed. The fee payable is set at a level which reflects the fee payable for a child welfare hearing and hearings under Part II of Chapter 3 of the Children (Scotland) Act 1995 (including by-order hearings) which is £55.00 for each half hour or part thereof.
Schedule 7 (sheriff court proceedings for which fees for work done shall only be payable under Schedule 5 (detailed fees))
Any proceedings raised in an all-Scotland sheriff court will be chargeable on the basis of Schedule 5, detailed fees.
2. Amendment of the Criminal Legal Aid (Scotland)(Fees) Regulations 1989
Definition of counsel
The definition of counsel in the context of the Sheriff Appeal Court is extended to include solicitor advocates.
Taxation of Fees and Outlays
Regulation 11(1)(a) has been amended to make clear that in the event of a question or dispute arising between the Scottish Legal Aid Board and a solicitor or counsel in relation to the amount of fees or outlays allowable for proceedings in the Sheriff Appeal Court, the matter shall require to be referred for taxation to the Auditor Court of Session.
Schedule 2, Fees of Counsel
In the heading before paragraph 4, the words “in the High Court of Justiciary” have been omitted so that the Notes on the operation of the Schedule will apply to “appeals” regardless of the court in which the proceedings take place.
Paragraph 6 of Chapter 1, Part II (fees of junior counsel in appeal proceedings) and Chapter 2, Part II (fees of senior counsel in appeal proceedings) now makes provision for an appeal from the Sheriff Appeal Court to the High Court under section 194ZB and a referral from the Sheriff Appeal Court to the High Court under section 175A of the 1995 Act.
The fees prescribed reflect the sums payable to counsel for the conduct of other types of appeal which are already prescribed in paragraph 6 of Chapters 1 and 2 of Part II of the Table of Fees.
Junior as leader
Junior with leader
Appeal from the Sheriff Appeal Court to the High Court under section 194ZB of the 1995 Act
Referral from the Sheriff Appeal Court to the High Court under section 175A of the 1995 Act
3. Amendment of the Criminal Legal Aid (Scotland) Regulations 1996
Regulation 4 (Distinct proceedings for purposes of criminal legal aid)
Regulation 4(1) is amended to include the following proceedings in the list of distinct proceedings for the purposes of legal aid
- Appeals to the Sheriff Appeal Court against conviction, sentence, other disposal or acquittal; and
- Appeals to the High Court of Justiciary under section 194ZB of the 1995 Act against a decision of the Sheriff Appeal Court.
Regulation 14 (prior approval of SLAB for employment of counsel and expert witnesses and for work of an unusual nature or likely to involve unusually large expenditure)
It should be noted that Regulation 14(1)(b) has not been amended so that the prior approval of SLAB is required for the employment of counsel in proceedings before the Sheriff Appeal Court. Accordingly, in circumstances where the solicitor elects to instruct counsel, or a solicitor advocate, for work in the Sheriff Appeal court they can do without the need for prior approval.
4. Amendment of the Criminal Legal Aid (Fixed Payments)(Scotland) Regulations 1999
In Regulation 2(1)(l) the reference to “High Court” has been omitted.
An appeal to the Sheriff Appeal Court or High Court, where appropriate under section 174(1) (appeals relating to preliminary pleas) of the 1995 Act are excluded proceedings.
Part 1 of Schedule 1 (Fees of solicitors)
Paragraph 13 is amended so that in addition to the prescribed fee of £50.00 for “all for work in connection with a bail appeal” a separate fee is now payable to a solicitor for the conduct of any bail appeal including any continued diet, in the Sheriff Appeal Court where counsel is not employed.
The prescribed conduct fee of £30.00 (per diet) reflects the same fee which would be payable to counsel had they been employed. It remains open to the solicitor to instruct counsel (either an advocate or solicitor advocate) to conduct the bail appeal, without the need for prior approval, in which case the existing fee arrangements will continue to apply i.e. the payment for the conduct of the hearing will be made to the person undertaking the advocacy, rather than the solicitor.
5. AMENDMENTS TO LEGAL ASSISTANCE HANDBOOKS
Changes have been made to:
- Chapter 4.75 (reparation – Court of Session cases) re exclusive jurisdiction;
- Chapter 4.92 (appeals to the Supreme Court of the United Kingdom; and
- Chapter 7.20 to 7.30 (employment of counsel for reparation proceedings).
- There are miscellaneous changes in relation to judicial review and these are detailed in a separate mailshot.
Changes have been made to:
- Chapter 15 (applications to the Board for appeals); and
- Chapter 16 (procedures after legal aid is granted).
In addition, we have issued refreshed guidance on criminal legal assistance procedures for Sheriff Appeal Court changes [LINK].
7. Legal aid online
Guidance on new systems deployments being made on 20 – 21 September 2015 is also available in the LAOL section of our website.
8. Legislative Handbook
As indicated, the Legislative Handbook is in course of being updated. The regulations affected are set out at sections one to four above.
Who to contact if you have any questions
For any queries about the matters raised in this update, please contact the Accounts Specialists team on 0131 226 7061 extension 245, 654, 659 or 687.
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