Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999

The Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999

As amended by (older instruments omitted):

The Legal Aid (Miscellaneous Amendments) (Scotland) Regulations 2015 [S.S.I. No. 337]

The Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 [S.S.I. 2017 No. 466]

The Legal Aid and Advice and Assistance (Scotland)(Miscellaneous Amendments) Regulations 2019 [S.S.I 2019 No.78

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 [ S.S.I. 2020 No. 191]

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2021 [S.S.I. 2021 No.56]

Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022 [S.S.I. 2022 No 30] in force from 1st April

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No 2) Regulations 2022 [SSI 2022 No 229] in force 1 October 2022

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2023 [SSI 2023 No 135] in force 29 April 2023

The Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999

1999 No. 491

The Secretary of State, in exercise of the powers conferred on him by sections 33 and 41A of the Legal Aid (Scotland) Act 1986, and of all other powers enabling him in that behalf, hereby makes the following Regulations:

Citation and commencement

   1.—(1)   These Regulations may be cited as the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 and shall come into force on 1 April 1999.

Interpretation

   2.—(1)   In these Regulations, unless the context otherwise requires—

“the Act” means the Legal Aid (Scotland) Act 1986;

“the 1995 Act” means the Criminal Procedure (Scotland) Act 1995;

“adjourned trial diet” means a diet that follows a trial that has commenced by the leading of evidence;

“assisted person” means a person to whom criminal legal aid or (as the case may be) assistance by way of representation has been made available in relation to the proceedings in question;

“continued diet” means a diet which takes place on a separate date from the diet at which a victim statement is laid before the court;

“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;

“diet of deferred sentence” includes those diets where the case has been adjourned for inquiries or reports under section 201 (power of court to adjourn case before sentence), section 202 (deferred sentence) or section 203 (reports) of the 1995 Act;

“excluded proceedings” means—

(a)   summary proceedings arising following a reduction from solemn proceedings;

(b)   proceedings in relation to which legal aid is only available by virtue of section 22(1)(a) of the Act (identification parades held by or on behalf of the prosecutor in contemplation of criminal proceedings);

(c)   proceedings in relation to which legal aid is only available by virtue of section 22(1)(c) of the Act (assisted person in custody or liberated by police on undertaking to appear), except where those proceedings are before a court which has been designated as a drug court by the sheriff principal;

(d)   proceedings in relation to which legal aid is only available by virtue of section 22(1)(da) of the Act (plea of insanity in bar of trial);

(e)   proceedings in relation to which legal aid is only available by virtue of section 22(1)(db) of the Act (examination of facts);

(f)   proceedings in relation to which legal aid is made available by virtue of regulation 15 of the Criminal Legal Aid (Scotland) Regulations 1996 (matters of special urgency);

(g)   any reference in connection with proceedings under article 267 of the Treaty of the Functioning of the European Union;

(h)   any reference on a devolution issue under paragraph 9 of Schedule 6 to the Scotland Act 1998;

(i)   proceedings under Section 9 of the Extradition Act 1989;

(j)    proceedings under Section 5 of the International Criminal Court Act 2001;

(k)   proceedings in relation to which legal aid is only available by virtue of section 22(1)(dd) of the Act (solicitor appointed by court for person accused of sexual offence);

(l)   proceedings in an appeal under section 174(1) (appeals relating to preliminary pleas) of the 1995 Act;

(m)   any reference on a compatibility issue under section 288ZB(1) or (2) of the 1995 Act;

(n)   where a client to whom section 32 of the Criminal Justice (Scotland) Act 2016 applies has exercised a right to have a solicitor present while being interviewed in terms of section 32(2) of that Act or a right to consultation under section 44 of that Act;

(o)   where there has been an application for authorisation for questioning by a prosecutor under section 36(1)(a) of the Criminal Justice (Scotland) Act 2016;

“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 or 29 of the Courts Reform (Scotland) Act 2014

“proof in mitigation” includes those diets where a proof in mitigation takes place at the same time as a proof of a victim statement;

“relevant ABWOR” means assistance by way of representation provided by a solicitor in relation to summary criminal proceedings other than excluded proceedings;

“relevant criminal legal aid” means criminal legal aid provided by a solicitor in relation to summary proceedings other than excluded proceedings;

“victim statement” means a statement made for the purposes of Section 14 of the Criminal Justice (Scotland) Act 2003.

   (2)   In these Regulations, unless the context otherwise requires, any reference to a numbered regulation is to one of these Regulations.

(2)   For the purposes of these Regulations, a trial, proof in mitigation or proof of a victim statement shall be taken to commence when the first witness is sworn.

Application

   3.—(1)   For the purposes of these regulations, the references in section 33(3A) and (3B) of the Act to criminal legal assistance relate to relevant criminal legal aid and relevant ABWOR.

   (2)   These Regulations shall apply —

(a)   in respect of relevant criminal legal aid first made available in terms of sections 22 or 24(7) of the Act, only in relation to any case where criminal legal aid is first so available on or after 1 April 1999; and

(b)   in respect of relevant criminal legal aid first made available otherwise, only in relation to any case where an application for criminal legal aid is granted on or after that date.

   (3)   These Regulations apply also in respect of relevant ABWOR.

Fixed payments allowable to solicitors

   4.—(1)   There shall be made to a solicitor who provides relevant criminal legal aid in summary proceedings, in respect of the professional services provided by him and the outlays specified in paragraph (2) below, and in accordance with the provisions of this regulation, the fixed payments specified in Schedule 1 or 1A.

(1A)   In the application of paragraph (1) above in relation to the assisted person’s case, fixed payments are payable under one of those Schedules only (as alternatives to each other) where —

(a)   Schedule 1 is for the purpose of—

(i)   cases in the JP court;

(ii)   cases in the JP court or the sheriff court which proceed beyond the first 30 minutes of a trial;

(b)   Schedule 1A is for the purpose of cases in the JP court or the sheriff court which do not so proceed.

   (1B)   Those Schedules are to be read and applied accordingly.

(1C)   There is to be made (in accordance with the other provisions of this regulation) to a solicitor who provides relevant ABWOR in summary proceedings, in respect of the professional services provided by the solicitor and the outlays mentioned in paragraph (2) below, the fixed payments specified in Schedule 1B.

(1D)   Schedule 1B is for the purpose of cases in the JP court or the sheriff court.

(2)   TThe outlays specified in this paragraph are all outlays in connection with —

(a)   the taking, drawing, framing and perusal of precognitions;

(b)   the undertaking by another solicitor of any part of the work; and

(a)   photocopying.

   (3)   Except where proceedings have been brought under section 185 of the 1995 Act, for the purposes of the references to summary proceedings in paragraphs (1) and (1C) above the following are to be treated as a single matter —

(a)   a single summary complaint or complaints which arise out of the same incident; and

(b)   proceedings under section , 27(1)(a), 28 or 150(8) of the 1995 Act or paragraph 1(1)(b) of schedule 1 of the Criminal Justice (Scotland) Act 2016 arising out of the complaint or complaints referred to in sub-paragraph (a).

   (4) – (6ZA)   [Revoked]

(6A) –  (6C)   [Revoked]

(7)   Where the Board grants an application for a change of solicitor under regulation 17(3) of the Criminal Legal Aid (Scotland) Regulations 1996 there shall be paid to each of the solicitors who act for the assisted person in the relevant proceedings—

(a)   an equal part of the total amount payable under paragraph 1 of Part 1 of Schedule 1 or (as the case may be) under paragraph 1 of Schedule 1A; and

(b)   where Schedule 1 applies, the amounts payable under paragraphs 2 to 13 of Part 1 of Schedule 1 shall be payable to the solicitor who carries out the work described in those paragraphs; and

(c)   where Schedule 1A applies, the amounts payable under paragraph 1 of Schedule 1A so far as applying by reference to paragraphs 10, 10AA and 13 of Part 1 of Schedule 1, or under paragraph 2 of Schedule 1A, are payable to the solicitor who carries out the work concerned (despite, in the case of paragraph 1 of Schedule 1A, the reference in sub paragraph (a) above to that paragraph).

   (7A)   Paragraph (7) above is subject to paragraph (1A) above (and, accordingly, does not affect the restriction imposed by it).

(7B)   Where, in relation to relevant ABWOR, there is a change of solicitor by virtue of regulation 14A(2) and (3) of the Advice and Assistance (Scotland) Regulations 1996(4), there is to be paid—

(a)   to each of the solicitors who act for the assisted person in the relevant proceedings, an equal part of the total amount payable under paragraph 1 or 2 of Part 1 of Schedule 1B; and

(b)   to the solicitor who carries out work described in the other paragraphs of that Part of that Schedule, the amount payable under those paragraphs in respect of the work.

   (8)   Where the work done by a solicitor constitutes a supply of services in respect of which value added tax is chargeable, there may be added to the amount of payments allowed to the solicitor an amount equal to the amount of value added tax chargeable.

(9)   Where a solicitor represents an assisted person (having relevant criminal legal aid) in a court which has been designated as a drug court by the sheriff principal —

(a)   Part 1 of Schedule 1 shall not apply to those proceedings; and

(b)   Where that assisted person has been remanded in custody at or subsequent to the first calling at the case and is at any time during that remand under 21 years of age, there shall be payable in addition to the fixed payments specified in Part 2 of Schedule 1 a payment of £113.56

   (10)   Where a solicitor represents an assisted person (having relevant ABWOR) in a court which has been so designated—

(a)   Part 1 of Schedule 1B does not apply; and

(b)   the fixed payment specified in Part 2 of that Schedule is payable instead

Exceptional cases

   4A.—(1)   A solicitor who provides relevant criminal legal aid or relevant ABWOR shall —

(a)   where the circumstances prescribed at paragraph (3) exist; and

(b)   subject to the conditions prescribed at paragraph (5),

      instead of receiving the fixed payments specified (as the case may be) in Schedule 1 , Schedule 1A or Schedule 1B, be paid out of the Fund in accordance with regulations made under section 33(2) and (3) of the Act.

(2)   It shall be for the Board to determine whether the circumstances prescribed at paragraph (3) exist, and whether the conditions prescribed at paragraphs (5) and (9) are met.

(3)   The circumstances referred to in paragraph (1)(a) are where are an assisted person would be deprived of the right to a fair trial in any case because of the amount of the fixed payments payable for the criminal legal assistance provided.

(4)   The factors to be taken into account by the Board in considering whether the circumstances prescribed at paragraph (3) exist shall include—

(a)   the number, nature and location of witnesses;

(b)   the number and nature of productions;

(c)   the complexity of the law (including procedural complexity);

(d)   whether the assisted person, or any witnesses, may be unable to understand the proceedings because of age, inadequate knowledge of English, mental illness, other mental or physical disability or otherwise.

   (5)   The conditions referred to in paragraph (1)(b) are as follows—

(a)   the solicitor providing relevant criminal legal aid or relevant ABWOR shall make an application to the Board—

(i)   in such manner and form, which may include an online form ; and

(ii)   containing such information,

   as it may specify, at as early a stage in the provision of the relevant criminal legal aid or relevant ABWOR as is reasonably practicable and that solicitor shall, if required by the Board to do so, supply such further information or such documents as the Board may require to enable it to determine the application; and

(b)

(b)   (b) the number and nature of productions;

   (6)   An application for a review under section 33(3K) of the Act shall—

(a)   [Revoked]

(b)   subject to paragraph (7), be lodged with the Board within 15 days of the time when notice of refusal of the application was given to the applicant;

(c)   include a statement of any matters which the applicant wishes the Board to take into account in reviewing the application; and

(d)   be accompanied by such additional precognitions and other documents as the applicant considers to be relevant to the review.

   (7)   Paragraph (6)(b) shall not apply where the Board considers that there is a special reason for it to consider a late application for review.

(8)   Where the Board has granted an application for a change of solicitor under regulation 17(3) of the Criminal Legal Aid (Scotland) Regulations 1996, any solicitor who provided relevant criminal legal aid prior to that grant shall, where the Board has determined that the circumstances prescribed at paragraph (3) exist, instead of receiving the fixed payments specified in Schedule 1, be paid out of the Fund in accordance with regulations made under section 33(2) and (3) of the Act.

(9)   A solicitor to whom paragraph (8) applies shall only be paid where that solicitor has kept proper records of all professional services provided by way of and outlays incurred in the provision of that relevant criminal legal aid.

(10)   Where the Board has granted an application for change of solicitor under regulation 14A(2) of the Advice and Assistance (Scotland) Regulations 1996, any solicitor who has provided relevant ABWOR prior to that grant is, where the Board has determined that the circumstances prescribed at paragraph (3) exist, instead of receiving the fixed payments specified in Schedule 1B, to be paid out of the Fund in accordance with regulations made under section 33(2) and (3) of the Act.

   (11)   A solicitor to whom paragraph (10) applies is only to be paid where that solicitor has kept proper records of all professional services provided by way of, and outlays incurred in the provision of, that relevant ABWOR.

Submission of accounts

  5.—(1)   A claim for a fixed payment in accordance with these Regulations shall be made by submitting to the Board not later than 4 months after the date of conclusion of the proceedings in respect of which the relevant legal aid or assistance was granted, an account specifying the fixed payments which are claimed in relation to the proceedings, together with any fees and outlays which are claimed in relation to those proceedings by virtue of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 or the Advice and Assistance (Scotland) Regulations 1996.

   (2)   The Board may accept accounts submitted later than the 4 months referred to in paragraph (1) if it considers that there is special reason for late submission.

Consequential

   6.   . In the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 at the beginning of regulation 3 (fees and outlays to which the Regulations apply) insert —

      “Subject to the provisions of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999,”.

St Andrew’s House, Edinburgh

28 February 1999

Campbeltown

Dunoon

Fort William

Kirkwall

Lerwick

Lochmaddy

Oban

Portree

Rothesay

Stornoway

Wick