Solemn Procedure and the Criminal Justice (Scotland) Act 2016

Tuesday, Nov 29, 2016

Part 3 of the Criminal Justice (Scotland) Act 2016, some of which is likely to be brought into effect early in 2017, introduces a number of changes in relation to solemn procedure.

We have received some inquiries in relation to operation of legal aid in the new regime, and in particular how the solicitors’ fees arrangements will work, and if there are any changes.

There are no necessary changes to the criminal legal aid fees regulations as a result of the implementation of Part 3 of the 2016 Act. The existing fee regime allows for separate and distinct detailed charges for a range of work undertaken in the early stages of a solemn case which are not otherwise covered by inclusive (block) fees.

That includes:

  • Letters
  • Telephone calls
  • Framing of documents
  • Time spent perusing the indictment, witness lists, statements, productions and labels received from the Crown and defence precognitions
  • Precognition work
  • Meetings and consultations with an accused person at liberty, advocate depute, expert witnesses

We have had a few specific inquires in relation to the Joint Written Record.

The 2016 Act follows up on recommendations of Sheriff Principal Bowen’s Review of Sheriff and Jury Procedure. The requirement for Crown and defence to communicate, the participation in, and creation of, a joint written record as to preparation, and the conduct of First Diets has been in place since 1 December 2015 (Practice Note No 3/2015).

We have been monitoring accounts received since the issue of the Practice Note and have identified that the work involved in the Joint Written Record can significantly vary from case to case.  

In some cases it can be fairly swiftly and succinctly framed, and in others the work of getting to the point where the defence section is complete can be more involved. In accounts assessment terms, in some cases the work is accurately described and addressed by the framing charge provided in the table of fees.

In other cases, the work is more akin to work which would involve a time-based charge. The work which has already taken place in the case prior to the time when the Written Record is produced is separately chargeable.

Accordingly, with effect from 1 December 2016 for work done on or after that date in a sheriff and jury matter in which counsel is not instructed, we will allow a time-based charge of up to one hour for the work related to the completion of the Joint Written Record by the defence solicitor where the solicitor elects to claim a fee on that basis as an alternative to the standard framing charge (based on sheetage) which remains available.

This provision does not affect any other circumstances, and the framing fee will continue to be the only fee payable for the framing of all other necessary documents.

For further information, please contact:
Steven Carrie
Senior Accounts Specialist

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