Criminal Legal Aid (Scotland) (Fees) Regulations 1989

Contents

1 Citation and commencement
2 Interpretation
3 Fees and outlays to which the Regulations apply
3A [Where no indictment served]
4 Fees allowance to solicitors: general provisions
5 Solicitor’s fees for identification parades and judicial examination
6 Duty solicitors fees
7 Fees allowable to solicitors
7A Solemn proceedings (exceptional) fees
8 Outlays allowable to solicitors
9 Submission of accounts
10 Fees allowable to counsel
10ZA Fees (exceptional) allowable to counsel in appeal proceedings
10A Work actually and reasonably done
11 Taxation of fees and outlays
11A [Taxation – Supreme Court]
12 Revocation
Schedule 1 Fees of Solicitors
Part 1 and 2 Fees of Solicitors – solemn and summary detailed fees
Schedule 2 Fees of Counsel
Part 1 Chapter 1 Fees of Junior Counsel in the High Court
Part 1 Chapter 2 Fees of Senior Counsel in the High Court
Part 2 Chapter 1 Fees of Junior Counsel – Appeal proceedings
Part 2 Chapter 2 Fees of Senior Counsel – Appeal proceedings
Part 3 Chapter 1 Fees of Junior Counsel in the sherif and JP court
Part 3 Chapter 2 Fees of Senior Counsel in the sherif and JP court
Schedule 3 Fees of Counsel in the Supreme Court

 

As amended by (older instruments omitted):

The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2012 [S.S.I. 2012 No. 276]

The Legal Aid and Advice and Assistance (Photocopying Fees and Welfare Reform) (Miscellaneous Amendments) (Scotland) Regulations 2013 [S.S.I. 2013 No. 250]

The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2013 [S.S.I. 2013 No. 320]

The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 [S.I. No. 7]

The Legal Aid and Assistance By Way of Representation (Fees for Time at Court and Travelling) (Scotland) Regulations 2014 [S.S.I. 2014 No. 257]

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 1 April 2022

Legal Aid and Advice and Assistance (Financial Limit) (Scotland) Amendment Regulations 2022 [S.S.I. 2022 No 116] in force 1 April 2022

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 Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 3) Regulations 2023 [SSI 2023 No 178] in force 21 September 2023

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 4) Regulations 2023 [SSI 2023 No 313] in force 15 November 2023

The Legal Aid (Miscellaneous Amendment) (Scotland) Regulations 2024 [SSI 2024 No. 119] in force 30 April 2024

 

THE CRIMINAL LEGAL AID (SCOTLAND) (FEES) REGULATIONS 1989

S.I. 1989 No. 1491

Made: 14 August 1989
Laid before Parliament: 17 Augist 1989
Coming into force: 31 August 1989

 

The Secretary of State, in exercise of the powers conferred on him by sections 31(9) and 36(1)(a) and (2)(a) and (c) to (g) 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.   These Regulations may be cited as the Criminal Legal Aid (Scotland) (Fees) Regulations 1980 and shall come into force on 31 August 1989.

Interpretation

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

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

“the 1988 Act”means the Road Traffic Act 1988;

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

“the 1995 Consolidation Act” means the Criminal Law (Consolidation) (Scotland) Act 1995;

“the 2000 Act” means the Terrorism Act 2000;

“the 2009 Act” means the Sexual Offences (Scotland) Act 2009

“auditor” means the appropriate auditor of court specified in regulation 11;

“counsel” includes a solicitor-advocate;

“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;

“duty solicitor” means a solicitor who is available for the purpose of giving criminal legal aid by virtue of an arrangement made by the Board under section 31(8) of the 1986 Act;

“High Court” means the High Court of Justiciary;

“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;

“junior counsel” or “junior” means counsel who is not senior counsel;

“nominated solicitor” means –

(a)    the solicitor nominated to act by a person to whom criminal legal aid has been made available; or

(b)    the solicitor appointed under section 288D of the Criminal Procedure (Scotland) Act 1995 (appointment by court of solicitor for person accused of sexual offence).

“outlays” does not include fees payable to counsel;

“senior counsel” and “senior” are to be construed in accordance with paragraphs (1A) and (1B);

“solicitor-advocate” means;

(a)    a solicitor who, in relation to the proceedings, has exercised a right of audience conferred by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980; or

(b)    in relation to proceedings in the Sheriff Appeal Court, a solicitor who would have been entitled to exercise such a right of audience had the proceedings taken place in a court to which section 25A of that Act applied;

and, unless the context otherwise requires, any reference in these Regulations to a solicitor shall not include a solicitor when acting as a solicitor-advocate.

(1A)    Subject to paragraph (1B), for the purposes of these Regulations, counsel is senior counsel if –

(a)    at the time of being employed in relation to the proceedings , the counsel had attained the rank and dignity of Queen’s Counsel; or

(b)    in the case of a solicitor advocate –

(i)    at the time of being employed in relation to the proceedings, the solicitor advocate was accredited by the Law Society to act as senior counsel for the purposes of these Regulations; and

(ii)    the work undertaken by the solicitor advocate was consistent with the nature of the work ordinarily undertaken by a senior counsel.

(1B)    No counsel is to be treated as senior counsel for the purposes of these Regulations unless –

(a)    the proceedings relate to a prosecution or conviction for murder; or

(b)    the Board has approved the employment of senior counsel under regulation 14 of the Criminal Legal Aid (Scotland) Regulations 1996.

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

Fees and outlays to which the Regulations apply

   3.    Subject to the provisions of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, these Regulations shall regulate the fees and outlays allowable to solicitors, and the fees allowable to counsel, from the Fund in respect of criminal legal aid under the 1986 Act, upon any taxation in accordance with regulation 11, in respect of which the proceedings are concluded on or after 31 August 1989.

   3A.    In relation to proceedings in the sheriff court where an indictment has not been served on the client for whom counsel has acted in those proceedings, the fees which may be payable are those prescribed in Chapters 1 and 2 of Part 1 of the Table of Fees in Schedule 2 if the proceedings relate to any of the following offences-

(a)   murder;

(b)   multiple attempted murder;

(c)    culpable homicide;

(d)   rape, or an offence under section 1, 2, 3(2)(a) or any of sections 18 to 27 of the 2009 Act

(e)    assault and robbery involving commercial premises;

(f)   importation of controlled drugs;

(g)   an offence under section 1 (causing death by dangerous driving), 3A (causing death by careless driving when under the influence of drink or drugs) or 3ZB (causing death by driving while unlicensed or uninsured) of the 1988 Act;

(h)   an offence under the Explosive Substances Act 1883;

(i)   a firearms offence;

(j)   incest;

(k)   sodomy;

(l)    sedition;

(m)   treason;

(n)   torture;

(o)   war crimes;

(p)   an offence under the 2000 Act or the Terrorism Act 2006;

(q)   an offence under section 1 or 4 of the Human Trafficking and Exploitation (Scotland) Act 2015.

Fees allowance to solicitors: general provisions

   4. (1)    Subject to the following provisions of this regulation and to regulations 5, 6 and 9, the fees allowable to solicitors shall be those specified in Schedule 1A.

(1ZA)— Subject to paragraph (1ZB), where the following conditions apply, the fees allowable to solicitors in relation to solemn criminal proceedings other than proceedings to which regulation 7A(1) (solemn proceedings (exceptional) fees) applies are those specified in Schedule 1—

(a)   the grant of legal aid was made before 29 April 2023,

(b)   the proceedings in the case concluded on or after that date, and

(c)   the solicitor submitting the account has requested, in such form as the Board may specify, that said account be paid in accordance with Schedule 1.

   (1ZB)— Paragraph (1ZA) does not apply in a case if—

(a)   there has been a transfer of agency from one solicitor to another,

(b)   the solicitor who transferred agency has submitted—

(i)   an account for payment before 29 April 2023, or

(ii)   a request in accordance with paragraph (1ZA)(c),

(c)   that account, or the account in respect of which that request was made, has been paid, and

(d)   the Board has received from all solicitors who have acted in the case a written request, in such form as the Board may specify, that their accounts be assessed, or reassessed as the case may be, and paid in accordance with Schedule 1A

   (1A)— Where—

(a)   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, or

(b)   there has been an application for authorisation for questioning by a prosecutor under section 36(1)(a) of that Act,

solicitors are to be paid in accordance with the fees prescribed in Parts III and IV of schedule 3 of the Advice and Assistance (Scotland) Regulations 1996.

   (2)   Where a nominated solicitor represents two or more persons charged in the same indictment or complaint, or appealing against conviction or sentence in respect of the same indictment or complaint he shall submit one account in respect of all those persons.

   (3)   Where a nominated solicitor requires another solicitor, whether an Edinburgh solicitor in connection with an appeal or on a remit for sentence, or a solicitor at the place of the prison or the court, or a local solicitor for the purpose of local precognitions or inquiry, nevertheless only one account shall be submitted by the nominated solicitor (payment of the other solicitor being a matter for adjustment between the nominated solicitor and the other solicitor out of the fees payable hereunder), but in determining the sum to be allowed to the nominated solicitor account shall be taken also of the work carried out by that other solicitor.

(4)   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 fees allowed to the solicitor an amount equal to the amount of value added tax chargeable.

Solicitors’ fees for identification parades and judicial examinations

   5.—(1)   For attending an identification parade to which section 21(4)(b) of the 1986 Act applies, a solicitor shall be allowed a fee at the following rates:—

(a)   where paragraph (2) applies—

(i)   £142.68 for the first hour; and

(ii)   £15.88 for each subsequent quarter of an hour; or

(b)   where paragraph (2) does not apply—

(i)   £117.41 for the first hour; and

(ii)   £14.80 for each subsequent quarter of an hour.

   (2)   This paragraph applies where a solicitor represents an accused person at an identification parade in connection with or in contemplation of solemn criminal proceedings if—

(a)   when the identification parade is held, criminal legal aid has been made available in respect of those proceedings and the solicitor is the nominated solicitor; or

(b)   after the identification parade has been held, criminal legal aid is made available in respect of those proceedings and the solicitor becomes the nominated solicitor.

   (3)   In paragraphs (1) and (2) “a solicitor” means the duty solicitor or, where criminal legal aid may be provided by a solicitor other than the duty solicitor, the nominated solicitor.

(4)   For the purposes of paragraph (1), where attendance at an identification parade is required on more than one occasion each occasion is a separate identification parade.

   (5)   Subject to paragraph (6), the duty solicitor shall be allowed in respect of representing an accused person at a judicial examination (whether a first examination or a further examination) to which sections 35 to 39 of the Criminal Procedure (Scotland) Act 1995() apply—

(a)   fees in accordance with the rates specified in regulation 6(1); and

(b)   fees in respect of any necessary waiting time or any other necessary work relating to the judicial examination, determined in accordance with regulation 7.

   (6)   No fee shall be allowed under paragraph (5) if the duty solicitor goes on to become the accused person’s nominated solicitor in respect of the same proceedings and entitled to a fee in accordance with either paragraph 1 of Part 2 of the Table of Fees set out in Schedule 1 or paragraph 1 of Part 2 of the Table of Fees set out in Schedule 1A.

Duty solicitors’ fees

   6.—(1)   There shall be allowed to the duty solicitor representing accused persons in the sheriff or district court fees on the following scales:—

(a)   or attendance at the first session of a court for the day, a sessional fee of £78.85 for the first case in which the accused person pleads not guilty or which is adjourned under section 145 of the 1995 Act and £11.28 for each additional such case, subject to a maximum total fee of £182 for the session until its termination on completion of business for the day or on adjournment by the court, whichever is the earlier;

(aa)   for attendance at that session, a fee of £87.61 for each case in which the accused pleads guilty;

(b)   for attendance at any other session of that court on the same day, a sessional fee of £78.85 for the first case in which the accused person pleads not guilty or which is adjourned under section 145 of the 1995 Act and £11.28 for each additional such case, subject to a maximum total fee of £127 for each such other session;

(c)   for attendance at any such other session, a fee of £87.61 for each case in which the accused pleads guilty;

Provided that the fee according to the foregoing scale shall cover the appearance in court of the duty solicitor on behalf of the accused as well as any interview or interviews with the accused or others whether such interview or interviews take place during the same or another session.

   (2)   Where, following a plea of guilty or in circumstances where the accused has not been called on to plead, one or more adjournments are ordered by the court, and the duty solicitor requires to appear again, then an additional fee shall be payable to the duty solicitor in respect of—

(a)   additional interviews with the accused or others; and

(b)   attendances at court other than during the course of the duty solicitor’s period of duty.

The amount of such additional fee calculated on the basis of the fees set out in Part 1of the table of fees in Schedule 1A shall be such sum not exceeding £276 (of which the relevant fee of £87.61 under paragraph (1) is to form part) as shall form reasonable remuneration having regard to the additional work and time involved.

   (2A)   Where a duty solicitor at a holiday court sitting acts for a person appearing from custody on the day on which that person is first brought to a court to answer to a complaint—

(a)   there shall be allowed to that solicitor, in addition to any fees under paragraph (1) and as may be under paragraph (2), a supplementary fee of £88.16 for appearing in relation to that case on that day, and

(b)   such supplementary fee shall not be taken into account for the purposes of any maximum total fee under paragraph (1) or in the calculation of any additional fee under paragraph (2).

   (3)   There shall be allowed to the duty solicitor making, for an accused person in the sheriff court or district court, a preliminary plea to the competency or relevancy of the petition or complaint, or conducting any plea in bar of trial or any mental health proof, or any proof in mitigation or any proof of a victim statement, an additional fee to be calculated on the basis of the fees set out in Part 1 of the table of fees in Schedule 1A, the amount of such additional fee to be such sum not exceeding £180 as shall form reasonable remuneration having regard to the additional work and time involved.

(3A)   In an exceptional case, the Board may pay to the duty solicitor such fees other than those specified in paragraph (2) or (3) (and to a higher limit) as it considers appropriate in the circumstances of the case.

   (3B)   Where fees are payable under this regulation, the duty solicitor is not entitled to separate payment in respect of any expenses incurred in travelling to and from the court (despite any entitlement to such payment that would arise but for this paragraph).

   (3C)   But paragraph (3B) does not prevent the Board paying such fees as are reasonably required for the purpose of securing the availability of a duty solicitor at a remote court.

(4)   Where the duty solicitor represents an accused person before a court which has been designated by the sheriff principal as a youth court, domestic abuse court or summary justice pilot court, the maximum fees prescribed in paragraph (2) shall not apply.

Fees allowable to solicitors

7. (1)    Subject to the provisions of regulations 4, 5, 6 and 9, a solicitor shall be allowed such amount of fees as shall be determined to be reasonable remuneration for work actually and reasonably done, and travel and waiting time actually and reasonably undertaken or incurred, due regard being had to economy. The fees allowed shall be calculated in accordance with—

(a)   Schedule 1A, or

(b)   where regulation 4(1ZA) applies, Schedule 1.

Solemn proceedings (exceptional) fees

   7A.—(1)   A solicitor who provides criminal legal aid in relation to solemn criminal proceedings—

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

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

is to be paid for all work only in accordance with Part 1 of the Table of Fees (detailed fees) in Schedule 1A.

   (2)   It is for the Board to determine whether the circumstances prescribed at paragraph (3) exist, and whether the conditions prescribed at paragraphs (5) and (10) are met.

(3)   The circumstances referred to in paragraph (1)(a) are where an assisted person would be deprived of the right to a fair trial in a case because of the amount of fees payable to the solicitor in accordance with these Regulations (other than paragraph (1)).

(4)   Factors to be taken into account by the Board in considering whether the circumstances prescribed at paragraph (3) exist include whether the case involves legal or factual complexity (including procedural complexity).

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

(a)   the solicitor providing the criminal legal aid is to make an application to the Board in such a manner and form (which may include an online form) and containing such information as the Board may specify at as early a stage in the provision of the criminal legal aid as is reasonably practicable;

(b)   that solicitor is, if required by the Board to do so, to supply such further information or such documents as the Board may require to enable it to determine the application; and

(c)   that solicitor is to keep proper records of all professional services provided by way of, and outlays incurred in the provision of, that criminal legal aid, whether before or after the Board determines whether the conditions prescribed in this paragraph are met

   (6)   A solicitor may apply for review where the Board has determined that the circumstances prescribed in paragraph (3) do not exist.

(7)   An application for review must —

(a)   subject to paragraph (8), be lodged with the Board within 15 days, beginning on the day notice of the Board’s determination was given to the applicant;

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

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

   (8)   Paragraph 7(a) does not apply where the Board considers there is a special reason for it to consider a late application for review.

   (9)   Where the Board has granted an application for a change of solicitor under regulation 17(3) of the Criminal Legal Aid (Scotland) Regulations 1996 (changes of solicitor), any solicitor who provided criminal legal aid prior to that grant is to be paid, where the Board has determined that the circumstances prescribed in paragraph (3) exist, for all work only in accordance with Part 1 of the Table of Fees (detailed fees) in Schedule 1A.

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

Outlays allowable to solicitors

   8.—(1)   A solicitor shall be allowed the following outlays, due regard being had to economy—

(a)   travelling expenses actually and reasonably incurred by himself or his clerk in connection with travel for which a fee for travelling time is chargeable and, in calculating the travelling expenses due, paragraph 16(5) of the notes on the operation of Schedule 1A applies to those expenses as it applies to the fee for travelling time;

(b)   fees paid to witnesses who are not on the Crown list, which fees shall not exceed such sums as are considered by the Board to be reasonable having regard to the sums payable from time to time by the Crown to witnesses of the same categories; and

(c)   any out of pocket expenses actually and reasonably incurred, provided that without prejudice to any other claims for outlays there shall not be allowed to a solicitor outlays representing posts and incidents.

   (2)   Where a witness is a person giving evidence of fact or expert evidence and value added tax is chargeable in respect of giving that evidence, and the witness adds an amount equal to the tax chargeable to his note of fee, the amount so added may be allowed to the solicitor as an outlay.

Submission of accounts

   9.—(1)   Subject to paragraph (2) accounts prepared in respect of fees and outlays allowable to solicitors and fees allowable to counsel shall be submitted to the Board not later than 4 months after the date of conclusion of the proceedings in respect of which that legal aid was granted.

   (2)   The Board may accept accounts submitted in respect of fees and outlays allowable to solicitors and fees allowable to counsel later than the 4 months referred to in paragraph (1) if it considers that there is a special reason for late submission.

Fees allowable to counsel

   10.—(1)   Counsel shall be allowed such fee as appears to the Board, or at taxation the auditor to represent reasonable remuneration, calculated in accordance with Schedule 2 or 3, for work actually and reasonably done, due regard being had to economy.

   (2)   Where work done by counsel constitutes a supply of services in respect of which value added tax is chargeable, there may be added to the amount of fees allowable to counsel an amount equal to the amount of value added tax chargeable thereon.

Fees (exceptional) allowable to counsel in appeal proceedings

   10ZA.—(1)   This regulation applies only pending leave to appeal being granted by the Appeal Court of the High Court of Justiciary.

(2)   Counsel who provides criminal legal aid in relation to preparation of the note of appeal, or preparation of the note of appeal and counsel’s opinion on the merits of an appeal for the purposes of proceedings under section 107 of the Criminal Procedure (Scotland) Act 1995—

(a)   where the circumstances prescribed in paragraph (4) exist, and

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

is to be paid an additional fee for work carried out in accordance with schedule 2, subject to the modifications to the notes on the operation of schedule 2 specified in paragraph (9).

   (3)   It is for the Board to determine whether the circumstances prescribed in paragraph (4) exist.

(4)   The circumstances referred to in paragraph (2)(a) are that the amount of fees payable to counsel in accordance with these Regulations (other than under paragraph (2)) would be likely to result in an assisted person being deprived of effective legal assistance.

(5)   The conditions referred to in paragraph (2)(b) are—

(a)   that counsel providing the criminal legal aid is to make an application to the Board in such a manner and form (which may include an online form) and containing such information as the Board may specify at as early a stage in the provision of criminal legal aid as is reasonably practicable,

(b)   that counsel is, if required by the Board to do so, to supply such further information or such documents as the Board may require to enable it to determine that application, and

(c)   that counsel is to keep proper records of all professional services provided by way of that criminal legal aid, whether before or after the Board determines whether the conditions prescribed in this paragraph are met.

   (6)   Counsel may apply for a review where the Board has determined that the circumstances prescribed in paragraph (4) do not exist.

(7)   An application for review—

(a)   must be lodged with the Board within 15 days, beginning on the day notice of the Board’s determination was given to the applicant,

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

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

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

   (9)   The modifications to the notes on the operation of schedule 2 referred to in paragraph (2) are as follows—

(a)   paragraph 9 does not apply,

(b)   paragraph 11A applies as if the words “taking into account that in cases set down for a day or more 2 hours preparation is covered by that fee by virtue of paragraph 9(a)” are omitted.

Fees allowable to counsel

   10A.   In determining whether work has been actually and reasonably done for the purposes of these Regulations the Board, or as the case may be the auditor, is to deem solicitors and counsel to be as up to date with the substantive and procedural law of the field in which they practise as a competent solicitor or counsel practising in that field.

Taxation of fees and outlays

   11.—(1)   If any question or dispute arises between the Board and a solicitor or counsel as to the amount of fees or outlays allowable to the solicitor, or as to the amount of fees allowable to counsel, from the Fund in respect of legal aid in criminal proceedings in—

(a)   the High Court, including appeals, the matter shall be referred for taxation to the Auditor of the Court of Session;

(b)   the Supreme Court, the matter shall be referred for taxation to the Registrar of the Supreme Court;

(ba)   the Sheriff Appeal Court, the matter shall be referred for taxation to the auditor of the Sheriff Appeal Court; or

(c)   the sheriff or district court, the matter shall be referred for taxation to the auditor of the sheriff court for the district in which those proceedings took place.

   (2)   A reference to an auditor under this regulation may be made at the instance of the solicitor concerned or, where the question in dispute affects the fees allowable to counsel, of the counsel concerned, or of the Board and the auditor concerned shall give reasonable notice of the diet of taxation to the solicitor or counsel as appropriate and the Board.

   (3)   The Board and any other party to a reference under paragraph (1)(a), (ba) or (c) shall have the right to state written objections to the High Court, the Sheriff Appeal Court or the sheriff, as the case may be, in relation to the report of the auditor within 14 days of issue of such report and the Board and any such other party may be heard thereon.

   11A.—(1)   In relation to proceedings in the Supreme Court, the Board and any other party to a reference to the auditor who is dissatisfied with all or part of a taxation shall have the right to lodge a petition to the Supreme Court within 14 days of the taxation setting out the items objected to and the nature and grounds of the objections.

(2)   The petition shall be served on the Board, any such other party who attended the taxation and any other party to whom the auditor directs that a copy should be delivered.

(3)   Any party upon whom such a petition is delivered may within 14 days after such delivery lodge a response to the petition which shall be served on the Board, any such other party who attended the taxation and any other party to whom the auditor directs that a copy should be delivered.

   (4)   The petition and responses, if any, shall be considered by a panel of Justices, as defined by rule 3(2) of the Supreme Court Rules 2009, which may allow or dismiss the petition without a hearing, invite any or all of the parties to lodge submissions or further submissions in writing or direct that an oral hearing be held.

Revocation

   12.   Without prejudice to their continuation in effect for the purposes of legal aid for proceedings concluded prior to the coming into force of these Regulations, the following Regulations are hereby revoked:—

The Criminal Legal Aid (Scotland) (Fees) Regulations 1987;

The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1987;

The Criminal Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 1987;

The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1988;

The Criminal Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 1988;

The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1989.

 

  • Sanderson of Bowden
  • Minister of State,
  • Scottish Office

Schedule 1 - Part 1 & 2: Fees of Solicitors – solemn and summary detailed fees

  • On or after 29 April 2023 – Schedule 1
  • On or after 1 April 2022 but before 29 April 2023
  • On or after 22 March 2021 but before 1 April 2022
  • On or after 26 April 2019 but before 22 March 2021
  • Before 26 April 2019

Schedule 1A: Fees of Solicitors – solemn and summary detailed fees

  • On or after 29 April 2023 – Schedule 1A

Schedule 2 - Fees of counsel: Notes on the operation

[As at 30 April 2024]

SCHEDULE 2

FEES OF COUNSEL

Regulation 10

   Notes on the operation of Schedule 2

   1.    Subject to the following provisions of this Schedule, fees including those within a range of fees, shall be determined or calculated by the Board, and in the event of a question or dispute by the auditor, in accordance with the Table of Fees in this Schedule.

   2.    Where the Table of Fees does not prescribe a fee for any item of work the Board, or as the case may be the auditor, shall allow such fee as appears appropriate to provide reasonable remuneration for the work with regard to all the circumstances, including the general levels of fees in the Table of Fees.

   3.    In the assessment and taxation of counsel’s fees–

(a)   counsel’s fees are allowed only where the Board has sanctioned the employment of counsel or counsel is automatically available;

(b)   junior counsel’s fees shall be allowable as prescribed in Chapter 1 of Parts I to III of the Table of Fees even where sanction has been granted for the employment of senior counsel in the case, except in any case to which sub-paragraph (c) and sub-paragraph (ca) below applies;

(c)   where a junior as leader (that is, the principally instructed junior as leader in the proceedings) is representing an accused person in a multiple accused case at first instance and where any co-accused is represented by senior counsel, the fees payable to junior as leader shall be those prescribed in the Table of Fees for junior as leader, and the fees payable to any junior counsel assisting junior as leader shall be those of junior with leader;

(ca)   where junior counsel being led is unable to appear at a trial diet hearing, and the junior as leader has sought and has been granted leave of the court to continue alone at the trial diet hearing, the fee payable to junior as leader will be those prescribed in the Table of Fees for junior as leader.

(cb)   where junior counsel is being led, the fee payable for any of the following is that of junior being led, except in respect of any work where junior counsel acts alone and senior counsel or junior as leader has no involvement (in respect of which work only the fee payable is that of junior alone)—

(i)   all managed meetings or other work under either paragraph 1B(d) of Chapter 1 of Part 1 or paragraph 1AA(e) of Chapter 1 of Part 3 of the Table of Fees,

(ii)   the conduct of a preliminary hearing under paragraph 1B(e) of Chapter 1 of Part 1 of the Table of Fees,

(iii)   the conduct of a First Diet under paragraph 1AA(f) of Chapter 1 of Part 3 of the Table of Fees,

(d)   except on cause shown, fees for only two consultations in the case shall be allowed;

(e)   except on cause shown (and subject to sub-paragraphs (ea) and (eb)), fees for senior counsel or, as the case may be, for both senior and junior counsel or for more than one junior counsel shall not be payable for attendance at hearings which do not require the attendance of senior or, as the case may be, both senior and junior counsel or more than one junior counsel;

(ea)   a fee is to be allowed to one counsel only in respect of a hearing of the type described in paragraph 6A of chapters 1 and 2 of Part 2 of the Table of Fees that did not involve a debate, motion for re-trial or further procedure;

(eb)   a fee, under Part 1 or 3 of the Table of Fees, is to be allowed to one counsel only in respect of-

(i)   a diet of deferred sentence, except where there is in contemplation the imposition of any of the following-

(a)   a mandatory or discretionary life sentence;

(b)   an order for lifelong restriction;

(c)   any disposal under Part 6 of the 1995 Act (mental disorder), or where there is a hearing of evidence in mitigation; and

(ii)   a continued preliminary hearing, except where such hearing is either in a case to which the Protocol set out in the schedule to Practice Note No.1 of 2018 applies, or is designated as a hearing at which any of the following matters is intended to be heard-

(a)   a preliminary minute;

(b)   a preliminary issue;

(c)   a devolution or compatibility minute;

(d)   an application under section 275 of the 1995 Act;

(e)   a petition to recover documents under a specification of documents where the petition is opposed or likely to involve substantive legal argument,

or an evidential hearing or any other hearing involving substantive legal argument;

(f)   except on cause shown, the auditor shall not have regard to any information produced by counsel at taxation which was not made available to the Board at the time the Board made the offer to counsel which is subject to taxation;

(g)   although counsel may keep records of professional services based on the number of hours expended on the work, counsel shall not be entitled to fees at an hourly rate in addition to the fees prescribed in the Table of Fees; and

(h)   correspondence, telephone calls and meetings between counsel acting for the same assisted person are not allowable as separate items and shall be subsumed within the fees set out for the conduct of a hearing.

(i)   all written work done (including work revising any document) is included within the fees payable to counsel and, except for written work for which a fee is separately prescribed in the Table of Fees, no separate charges may be made.

Appeals (and other proceedings where specified)

   4.    In a hearing as specified in paragraph 1(c) or (d) or 2(b) of Chapter 1 or 2 of Part 2 of the Table of Fees which is set down for half a day or longer or where the appellant has been sentenced to a period of imprisonment of 10 years or more, to life imprisonment or where an order for lifelong restriction has been made, the fee payable shall be that in the range specified in paragraph 3(d) of Chapter 1 or 2 of Part 2 respectively.

   4A.    Where a hearing on a bill of advocation is set down for half a day or longer,counsel is to be paid (in addition to the fees payable under paragraph 2 of the applicable Chapter of Part 2 of the Table of Fees) a fee for relative written work in the range specified in paragraph 3(b) of the applicable Chapter of Part 2 of the Table of Fees.

   5.    Subject to paragraphs 9 to 11B below, the fees including those within a range of fees, as prescribed in Part 2 of the Table of Fees, shall include all preparation.

   6.    Where counsel is seeking a higher fee within the range under paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 1, paragraph 3(d) or (da) or 6(a), (b), (c), (ca) or (cb) (hearings) of Chapter 1 or 2 of Part 2 or paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 3, he or she will need to justify this by establishing that due to the nature of the case an unusually high level of preparation was required or that any of the factors below exist and that they have had a significant effect on the conduct of the case:—

(a)   novelty of the issues of law;

(b)   unusually complex issues of fact;

(c)   issues of considerable legal significance.

   7.    Where the Auditor determines the appropriate fee he or she shall specify which of the factors in paragraph 6 justify such a fee and the extent to which each of those factors contribute to that fee.

   8.    Where counsel is seeking a higher fee within the range under paragraph 2(a), 3(a), (b), (e), 6(d) or 11 (written work) of Chapter 1 or 2 of Part 2 he or she will need to justify this by reference to either or both of the following factors:—

(a)   the content rather than the length of the document; and

(b)   the amount of documentation necessarily referred to.

   9.    Where a hearing has been fixed in an appeal under paragraph 3, 4 or 6 of Chapter 1 or 2 of Part 2 of the Table of Fees counsel may claim an additional fee for preparation for the hearing only where:—

(a)   it is set down for a day or more and counsel has spent more than 2 hours per day on preparation; or

(b)   the case is abnormal in magnitude, or difficulty, or in any other material respect.

   10.    Where an additional fee for preparation is claimed counsel must provide the Board

with details of the nature of the preparation including:—

(a)   where a higher fee has been claimed or received within a range of fees, identification of the part or parts of that fee which relate to those factors mentioned in subparagraphs (a) to (c) of paragraph 6 above or to the factor of an unusually high level of preparation;

(b)   records providing a detailed summary of the nature of the work or, if applicable, the nature of the documentation perused at each stage of the process, the time taken and when and where the work was undertaken and the details of authorities referred to in the course of preparation; and

(c)   any contemporaneous record or notes made in the course of preparation.

   11.    Except on cause shown, an additional fee for preparation shall only be allowable once to both junior and senior counsel notwithstanding that the assisted person may be represented by more than one junior or senior counsel or both during the course of the case.

   11A.    In assessing the amount of time for which an additional fee for preparation is payable the Board, or the Auditor as the case may be, will consider the amount of time that is reasonable having regard to the following factors:—

(a)   the facts and circumstances of the case; and

(b)   the extent to which payment for preparation is already covered by the prescribed fee or the fee deemed appropriate within the range of fees, taking into account that in cases set down for a day or more 2 hours preparation is covered by that fee by virtue of paragraph 9(a).

   11B.    The additional fee shall be calculated by dividing the time allowed for additional

preparation in terms of paragraph 11A above into units of 8 hours, each unit payable at the rate of two thirds of the prescribed fee or the fee deemed appropriate within the range of fees in Chapter 1 or 2 of Part II of the Table of Fees.

   11C.—(1)    This paragraph applies in relation to a hearing on appeal against conviction or conviction and sentence if rule 15.15A (requirement for case and argument) of the Act of Adjournal (Criminal Procedure Rules) 1996 applies to all aspects of the appeal.

(2)    For the purposes of sub-paragraph (1), rule 15.15A is to be deemed to apply to an appeal if the court has ordered under rule 19.18A (presentation of summary conviction appeals in writing) of the Act of Adjournal (Criminal Procedure Rules) 1996 that rules 15.15A and 15.15B of those Rules are to apply to the appeal as if it were an appeal to which those rules apply.

(3)    In respect of a hearing in the course of an appeal against conviction or against conviction and sentence to which this paragraph applies, a fee is to be paid under paragraph 3(da) of Chapter 1, or as the case may be Chapter 2, of Part 2 of the Table of Fees.

(4)    In respect of a hearing in the course of an appeal against conviction or against conviction and sentence to which this paragraph does not apply, a fee is to be paid under paragraph 3(d) of Chapter 1, or as the case may be Chapter 2, of Part 2 of the Table of Fees.

   11D.    In Chapters 1 and 2 of Part 2 of the Table of Fees, the fees prescribed in paragraphs 1 to 6 do not apply to a hearing of the type described in paragraph 6A in each of those Chapters.

   11E.    This paragraph applies to a hearing of the type described in paragraph 6A of Chapters 1 and 2 of Part 2 of the Table of Fees if the Board is satisfied that a fee in accordance with paragraph 6A(a) of the relevant Chapter is justified on the grounds that the hearing involved a debate, motion for re-trial or further procedure.

   11F.    A fee is to be allowed to counsel for an opinion concluding that there is no stateable appeal case only if—

(a)   the counsel who prepared the opinion did not represent the assisted person at the trial; and

(b)   the Board, or as the case may be the auditor, is satisfied that it would not have been possible, or would not have been reasonable, in the circumstances for the counsel who represented the assisted person at the trial to have prepared the opinion.”.

Proceedings in the High Court of Justiciary (other than appeals) and the Sheriff Court

   12.    Subject to paragraphs 13 to 15 below, the fees prescribed in Parts I and III of the Table of Fees in this Schedule shall include all preparation.

   13.    A fee for separate preparation shall be allowed only on the following conditions:–

(a)   such a fee is allowable only once in any case to junior or senior, junior and senior and junior and junior counsel representing an applicant or assisted person, notwithstanding that the applicant or assisted person is represented by more than one junior or senior counsel during the course of the case;

(b)   in allowing such a fee the Board, or as the case may be the auditor, must be satisfied that the level of preparation was necessary, reasonable and proportionate in all the circumstances of the case;

(c)   counsel shall produce records providing a detailed summary of the nature of the work or, if applicable, the nature of the documentation perused, at each stage of the process, the time taken and when and where the work was undertaken and shall retain and produce, if requested, any contemporaneous record or notes made in the course of preparation; and

(d)   except in the circumstances described in paragraph 14(c), such a fee is not payable until the case to which it relates has concluded.

(e)   Where paragraph 14(c) applies–

(i)   the preparation fee payable to trial counsel prior to the conclusion of the case may not exceed 50% of the sums payable at the point of conviction, and

(ii)   the balance of any preparation fee is payable only when the case to which it relates has concluded.

   14.    A fee for separate preparation shall be allowed only in any case–

(a)   where–

(i)   the case is disposed of at a hearing under section 76 of the 1995 Act; or

(ii)   the case proceeds to trial or for a hearing where a fee is payable at the full rate for a trial under paragraphs 4(q) to (u) of Chapters 1 and 2 of Part 1 or paragraphs 3(p) to (u) of Chapters 1 and 2 of Part 3 of the Table of Fees,

and the level of preparation is that to which paragraph 15 (d) below applies

(b)   where a plea of guilty is tendered, or a plea of not guilty is accepted or where a case is deserted simpliciter or deserted and the Crown does not intend to re-raise proceedings, up to and including the first day of trial and the case does not proceed to trial, and the level of preparation is that to which paragraph 15 (c) below applies; or

(c)   where at the point of conviction—

(i)   a Statement of Information is served on the convicted person in respect of proceedings in relation to proceeds of crime, and

(ii)   trial counsel no longer intends to act for the client in relation to the proceeds of crime proceedings.

   15.    A fee for separate preparation allowed under paragraphs 13 and 14 above shall be calculated by reference to the total number of actual sheets of documentation considered by counsel as follows:–

(a)   no fee for separate preparation for the first 1,000 sheets shall be allowed under any circumstances;

(b)   each range set out in sub-paragraphs (c) and (d) below specifies a total number of days which may be allowed per total number of sheets within the range, and each day shall be paid at the rate of two-thirds of the fee prescribed for the conduct of a trial at paragraph 3 of Chapters 1 and 2 of Part I, or as the case may be, paragraph 2 of Chapters 1 and 2 of Part III of the Table of Fees in this Schedule depending on the nature of the charges and the status of counsel;

(c)   the ranges are–

(i)   3 days are allowable for 1,001-3,500 sheets;

(ii)   5.5 days are allowable for 1,001-7,000 sheets;

(iii)   7.5 days are allowable for 1,001-10,000 sheets;

(iv)   2.5 days are allowable for each additional 2,500 sheets;

(v)   Deleted

(d)   where the total number of sheets exceeds 7,500, 2.5 days are allowable for each additional 2,500 sheets;

(e)   Omitted

(f)   a fee for separate preparation allowed under–

(i)   paragraph 14(a) above shall be calculated on the basis of sub-paragraph (d) ; or

(ii)   paragraph 14(b) above shall be calculated on the basis of sub-paragraph (c) above.

   15A    (1)    Where a case has more than one preliminary hearing or first diet, the fee payable for any further preliminary hearings (as prescribed in paragraphs 1B of Chapters 1 and 2 of Part 1 of the Table of Fees) or first diets (as prescribed in paragraph 1AA of Chapter 1 or 2 of Part 3 of the Table of Fees) is reduced as specified in sub-paragraphs (2) and (3).

(2)    Where charges in a case have been split into more than one indictment, the fee payable for any further preliminary hearings or first diets is half that prescribed.

(3)   Where in a case an indictment is deserted and subsequently re-raised, the fee for any further preliminary hearings or first diets is half that prescribed.

   15B.    For the purposes of the fees prescribed in paragraphs 1A and 6 of Chapters 1 and 2 of Part 1 and paragraphs 1A and 5 of Chapters 1 and 2 of Part 3 of the Table of Fees-

(a)   the fee for drafting defence statements is payable only once in any case, regardless of how many statements are drafted in that case;

(aa)   the fee for written questions in respect of the first or each subsequent vulnerable and child witness includes all necessary communications with Crown counsel or the Procurator Fiscal and is payable only once in any case, regardless of how many questions are drafted in that case;

(b)   a fee is only payable for a second necessary note in a case on cause shown and where counsel establishes there were exceptional circumstances in the case, and in any case fees for no more than two necessary notes are payable; and

(ba)   a fee is only payable for a second devolution or compatibility minute where counsel establishes there were exceptional circumstances in the case, and in any case fees for no more than two devolution or compatibility minutes are payable in any one case;

(c)   where written work, for which there is a prescribed fee, or a necessary note is drafted and revised, the fee payable for the written work or necessary note is, if there is more than one counsel, shared equally between counsel who made the revisals.

(d)   no fee is payable for the drafting of an application in respect of the adjournment or alteration of a diet in terms of section 75A of the 1995 Act.

   16.    Where a fee is claimed in respect of paragraph 1B(c) of Chapter 1 or 2 of Part I of the Table of Fees, paragraph 1AA(d) of Chapter 1 or 2 of Part 3 of the Table of Fees, or adjournment of any other hearing including trial.–

(a)   information shall be provided by or on behalf of counsel as to the reason for the adjournment; and

(b)   no fee shall be allowed by the Board or the auditor where satisfied that an adjournment was caused because the defence was not prepared to proceed, or where the preliminary hearing could have been altered in advance under section 75A(5) of the 1995 Act.

   16A.    (1)    Subject to sub-paragraph (1A) a consultation fee is payable under paragraph 5 of Chapter 1 or 2 of Part 1 and paragraph 4 of Chapter 1 or 2 of Part 3 of the Table of Fees only once a day for a case, regardless of how many consultations in relation to that case are held that day. This applies where any of the following parties attend one or more than one consultation in one day-

(a)   the same counsel, solicitor and accused;

(b)   the same counsel and expert;

(c)   the same counsel and Crown counsel or Procurator Fiscal.

   (1A)    No more than two consultations may be claimed in relation to consultations attended by the parties specified in subparagraph 1(c) on or after the date of the preliminary hearing or first diet except on cause shown.

(2)    A fee for an abortive consultation is payable under paragraph 5A of Chapter 1 or 2 of Part 1 and paragraph 4A of Chapter 1 or 2 of Part 3 of the Table of Fees where counsel attended for a consultation but the consultation did not proceed due to no fault of counsel.

(3)    Viewing productions at any location forms part of case preparation and may not in any circumstances be charged as a consultation or consultation work.

(4)    Payment for all necessary communications and discussions between solicitor and counsel is included within the fees payable to counsel under this schedule, and any such communications or discussions are not chargeable as consultations except where there are exceptional circumstances that would justify a solicitor and counsel consultation.

   17.    For the purposes of the fees prescribed in Parts I and III of the Table of Fees in this Schedule–

(a)   a trial shall be taken to commence—

(i)   in relation to a summary complaint, when the first witness is sworn in, or

(ii)   in all other cases, when the jury is empanelled;

(aa)   where a trial, or other hearing where a prescribed fee is payable at the rate for a trial, exceeds 30 days in total, the fee payable is reduced by 10% for every day in excess of 30 days;

(ab)   where counsel attends in one day more than one trial only one trial fee is payable for that day except where the outgoing trial concludes and the incoming trial commences and calls for the first time.

(ac)  &nbspwhere the principal or originally instructed junior with leader in a case is unavailable and an alternative junior with leader attends for a day or more of trial, the fee payable for each day the alternative counsel attends trial is 90% of the applicable fee prescribed in paragraph 3 of Chapter 1 of Part 1 or paragraph 2 of Chapter 1 of Part 3 of the Table of Fees.

(b)   where the trial of an accused person proceeds in respect of more than one offence, the fee payable in terms of paragraphs 3 of Chapters 1 and 2 of Part I and paragraphs 2 of Chapters 1 and 2 of Part III shall be that for the offence for which the highest fee is prescribed;

(ba)   where at a trial diet there is more than one accused and counsel represents an accused who pled guilty at an earlier diet, the fee under paragraph 3 of Chapter 1 or 2 of Part 1 or under paragraph 2 of Chapter 1 or 2 of Part 3 is not payable, but a fee may be payable on cause shown under paragraph 4(pa) of Chapter 1 or 2 of Part 1 or paragraph 3(oa) of Chapter 1 or 2 of Part 3;

(bb)    where a trial has commenced but has not proceeded on a particular day due to the absence of a juror, the trial judge or any other party through illness or unavailability, the fee payable is—

(i)   if any evidence has been led or any legal argument has taken place, the prescribed fee for a trial diet, or

(ii)    otherwise, the applicable fee prescribed in paragraph 4(p) of Chapter 1 or 2 of Part 1 (where the proceedings are in the High Court) or paragraph 3(o) of Chapter 1 or 2 of Part 3 (where the proceedings are in the Sheriff or JP Court) of the Table of Fees,

(c)   where counsel conducts a number of deferred sentences on the same day the prescribed fee shall be reduced by half for a second deferred sentence, and by a further half for a third and any subsequent deferred sentence;

(d)   the fees allowed under Part III shall be no more than four fifths of the fees prescribed in Part I of the Table of Fees in this Schedule, and except on cause shown, fees for counsel in the Sheriff Court shall not be allowable for attendance at hearings which are routine or procedural only or which do not materially advance the case;

(e)   subject to paragraph (ee), the prescribed fees for a trial or any hearing shall include all work undertaken in the case that day;

(ee)   a fee for a consultation with an expert, in addition to the prescribed fees for a trial or a hearing under paragraph (e), may be payable where counsel establishes that-

(i)   previous attempts had been made to consult with the expert which were unsuccessful;

(ii)   the need to hold the consultation was urgent; and

(iii)   the consultation took place on the same day as the trial or hearing before 0800 hours or after 1800 hours due to the limited availability of the expert;

(f)   fees for a waiting day shall be allowed on the basis of paragraph 18 below;

(g)   the fees prescribed in Parts I and III cannot be increased or reduced in terms of paragraphs 4 to 11 above;

(h)   where the trial of an accused person proceeds in respect of the offence of attempting to pervert the course of justice, the fee payable in terms of paragraph 3 of Chapter 1 or 2 of Part I and paragraph 2 of Chapter 1 or 2 of Part III shall be that for the offence to which the charge of attempting to pervert the course of justice relates. Where the offence to which the charge relates is not prescribed in Schedule 2, the fee payable shall be in terms of paragraph 3(b) of Chapter 1 or 2 of Part I and paragraph 2(b) of Chapter 1 or 2 of Part III; and

(ha)   where a trial of an accused person proceeds in respect of the offence of conspiracy to commit an offence, the fee payable in terms of paragraph 3 of Chapter 1 or 2 of Part 1 and paragraph 2 of Chapter 1 or 2 of Part 3 of the Table of Fees, is that for the offence to which the charge of conspiracy relates. Where the offence to which the charge of conspiracy relates is not prescribed in Schedule 2, the fee payable is in terms of paragraph 3(b) of Chapter 1 or 2 of Part 1 and paragraph 2(b) of Chapter 1 or 2 of Part 3 of the Table of Fees.

(hb)    where in either of the following circumstances an offence with which an accused person is charged is not within category (a) of the relevant paragraph in the Table of Fees, the fee payable is that of the next highest category payable in either paragraph 3 of Chapter 1 or 2 of Part 1 (where the proceedings are in the High Court) or paragraph 2 of Chapter 1 or 2 of Part 3 (where the proceedings are in the Sheriff or JP court) of the Table of Fees—

(i)   the case against an accused person is in respect of one or more offences under section 29 or 30 of the 2010 Act,

(ii)   the indictment or complaint in the case includes, in accordance with section 288BA of the 1995 Act, a docket which specifies any act or omission that is connected with a sexual offence charged in the indictment or complaint,

(hc)    where a case against an accused person proceeds in respect of offences which are not prescribed in this Schedule, the fee payable is that in paragraph 3(b) of Chapter 1 or 2 of Part 1 (where the proceedings are in the High Court) or paragraph 2(b) of Chapter 1 or 2 of Part 3 (where the proceedings are in the Sheriff or JP Court) of the Tables of Fees;

(i)   where an accused person pleads guilty at a hearing fixed for trial before the jury is empanelled, or where the case is brought to an end by the Crown’s acceptance of a plea of not guilty, or where, following the court deserting the trial simpliciter or pro loco et tempore, the indictment falls or, for any other reason, is not brought to trial and where no order is made by the court to postpone or appoint a further trial diet, the fee payable shall be two-thirds of the fee payable in terms of paragraph 3(a) or (b) of Chapter 1 or 2 of Part I and paragraph 2 of Chapter 1 or 2 of Part III; and

(j)   in the same circumstances as those described at paragraph (i) above, but where the category of charge falls under paragraph 3(c) of Chapter 1 or 2 of Part I, the fee payable shall be that prescribed in paragraph 4(a) of Chapter 1 or 2 of Part I.

   17A.    Where counsel claims a fee in respect of the first diet under paragraph 3(t) of Chapter 1 or 2 of Part III of the Table of Fees, the fee shall only be payable in a case where the indictment was served prior to 25 September 2023 and where a plea of guilty is tendered at that hearing or where the case is brought to an end by the Crown’s acceptance of a plea of not guilty, withdrawal of the libel, desertion of the diet or by other means.

   18.    Where counsel claims a fee for a waiting day–

(a)   the fee payable to junior counsel, depending on the status of counsel in the case, for such a day shall be–

(i)   half of the fee prescribed at paragraph 4(a) of Chapter 1 of Part I of the Table of Fees or at paragraph 3(a) of Chapter 1 of Part III depending on the applicable court, where no travel for the purposes of paragraph 7 of Chapter 2 of Part I or paragraph 6 of Chapter 2 of Part III is incurred; or

(ii)   two-thirds of the fee prescribed at either paragraph referred to in sub paragraph (a)(i) above, depending on the applicable court, where such travel is incurred;

(b)   the fee payable to senior counsel for such a day shall be–

(i)   half the fee prescribed at paragraph 4(a) of Chapter 2 of Part I of the Table of Fees or at paragraph 3(a) of Chapter 2 of Part III depending on the applicable court, where no travel for the purposes of paragraph 7 of those Chapters is incurred; or

(ii)   two-thirds of the fee prescribed at either paragraph referred to in sub paragraph (b)(i) above, depending on the applicable court, where such travel is incurred;

(c)   no other chargeable work shall be undertaken in any case that day (legally aided or not); and

(d)   no fee is payable unless counsel was required to attend and remain available at court in case the trial proceeded that day.

   19.    Where counsel claims a fee in respect of paragraph 2 of Chapter 1 or 2 of Part I, or paragraph 1B of Chapter 1 or 2 of Part III, of the Table of Fees–

(a)   subject to sub-paragraphs (b) and (c) below, no fee shall be payable under paragraph 1B, 3 or 4 of each Chapter of Part I, or paragraph 2 or 3 of each Chapter of Part III, of the Table of Fees;

(b)   a fee shall be payable for all post conviction hearings including hearings for which a prescribed fee is set out in paragraphs 4(j), (k), (l) and (m) of each Chapter of Part I, and paragraphs 3(j), (k), (l) and (m) of each Chapter of Part III, of the Table of Fees; and

(b)   where a case proceeded by indictment, was deserted, and proceedings were re-raised and disposed of by way of a hearing under section 76 of the 1995 Act, the following fees are chargeable by counsel in the Tables of Fees;

(i)   a fee for the section 76 hearing under the re-raised indictment, as prescribed in paragraph 2 of Chapters 1 and 2 of Part 1 and paragraph 1B of Chapters 1 and 2 of Part 3, and fees for any court hearings which took place under the initial indictment, as prescribed in paragraph 4 of Chapters 1 and 2 of Part 1 and paragraph 3 of Chapters 1 and 2 of Part 3; or

(ii)   fees prescribed in Parts 1 and 3 of the Table of Fees for any hearings, including trial, which took place under the initial indictment, and fees for any hearings under the re-raised indictment, as prescribed in paragraph 4 of Chapters 1 and 2 of Part 1 and paragraph 3 of Chapters 1 and 2 of Part 3, but not the fee for the section 76 hearing under the re-raised indictment, as prescribed in paragraph 2 of Chapters 1 and 2 of Part 1 and paragraph 1B of Chapters 1 and 2 of Part 3.

   20.    (1)    The supplementary fee for travel prescribed in paragraph 7 of Chapters 1 and 2 of Part 1, paragraph 9 of Chapters 1 and 2 of Part 2 and paragraph 6 of Chapters 1 and 2 of Part 3 of the Table of Fees is chargeable only as provided for in this regulation.

(2)    The fee is only chargeable where the travel involves a round trip exceeding 60 miles in each direction.

(3)    The fee is not chargeable for travel to courts in any of the following locations for the purposes of a trial or any other hearing-

(a)   Edinburgh;

(b)   Glasgow;

(c)   Airdrie;

(d)   Alloa;

(e)   Dunfermline;

(f)   Falkirk;

(g)   Hamilton;

(h)   Kirkcaldy;

(i)   Lanark;

(j)   Livingston;

(k)   Paisley;

(l)   Stirling.

   (4)    Where counsel travels to a court in any of the locations listed in paragraph (3) for the purposes of a trial or any other hearing and also attends to business relating to any case on the same day, (subject to paragraph 5) the fee is not chargeable.

(5)    The fee may be chargeable in the circumstances set out in paragraph (4) where the Board is satisfied that the trip relating to business in any case is separate and additional to the trip relating to the court.

(6)    Counsel must, if required, produce vouching of the travel undertaken.

(7)    The fee is chargeable once only in respect of each round trip, irrespective of the number of cases for which the trip is undertaken.

(8)    The fee chargeable excludes any travel costs.

   20A.    Travel costs are chargeable as an outlay only in circumstances where a supplementary fee for travel is chargeable under paragraph 20.

21.    (1)    The cost of necessary accommodation and subsistence is chargeable only—

(a)    where a supplementary fee for travel is chargeable in accordance with paragraph 20,

(b)   on cause shown, and

(c)    subject to subparagraph (3), as an outlay up to the amount specified in (as the case may be)—

(i)   paragraph 8 of Chapter 1 or 2 of Part 1 of the Table of Fees (counsel fees for proceedings in the High Court of Justiciary),

(ii)   paragraph 10 of Chapter 1 or 2 of Part 2 of the Table of Fees (counsel fees in appeal proceedings),

(iii)   paragraph 7 of Chapter 1 or 2 of Part 3 of the Table of Fees (counsel fees for proceedings in the Sheriff and Justice of the Peace Court.

   (2)    Counsel must, if required, provide vouching of the costs incurred.

(3)    Where counsel incurs accommodation and subsistence costs at an amount higher than the applicable amount specified in the relevant paragraph of sub-paragraph (1)(c), that higher amount is chargeable in place of the applicable amount only if—

(a)    counsel has demonstrated to the satisfaction of the Board that in the circumstances of the travel undertaken suitable accommodation and subsistence was not available to them at or up to the applicable amount,

(b)    counsel has received the prior approval of the Board to exceed the applicable amount, and

(c)    the Board is satisfied that the amount charged as an outlay is reasonable in all the circumstances.

Interpretation

   22.    In this Schedule–

(a)      “the 2010 Act” means the Criminal Justice and Licensing (Scotland) Act 2010;

“child witness” has the meaning given in section 271(5) of the 1995 Act;

“commercial premises” means a bank, building society, post office, security vehicle, currency exchange or licensed gambling premises;

“consultation” means a formal meeting, including meeting by means of a conference call, with counsel on the instructions of the solicitor concerning a significant issue which advances the cause taking place usually, but not always, in the presence of the accused or an expert witness, including formal meetings with Crown Counsel taking place following the first preliminary hearing or first diet;

“documentation” means Crown statements, precognitions, productions, including defence productions, and labels;

“Practice Note No.1 of 2018” means the High Court of Justiciary Practice Note No.1 of 2018 on the Management of Lengthy or Complex Criminal Cases;

“retail premises” means any premises, other than commercial premises;

“vulnerable witness” has the meaning given in section 271(1) of the 1995 Act;

“waiting day” means a day where counsel is required to attend court and does so but the trial does not proceed; and

“sheet” shall consist of 250 words and numbers, or each minute of an un-transcribed tape.

   (b)      “evidence is adduced” for the purposes of a commission on evidence or any other hearing, if one or more witnesses gives or starts to give evidence at that commission or hearing.

Schedule 2 - Fees of counsel for first instance work done or outlays incurred on or after 30 April 2024

  • High Court – Junior Counsel fees: on or after 30 April 2024
  • High Court – Senior Counsel fees: on or after 30 April 2024
  • Appeal proceedings – Junior Counsel fees: on or after 1 April 2022 but before 30 April 2024
  • Appeal proceedings – Senior Counsel fees: on or after 30 April 2024
  • Sheriff and JP Court – Junior Counsel fees: on or after 30 April 2024
  • Sheriff and JP Court – Senior Counsel fees: on or after 30 April 2024

Schedule 2 - Fees of counsel for first instance work done or outlays incurred on or after 15 November 23 but before 30 April 24

  • Schedule 2 – Fees of counsel: Notes on the operation
  • High Court – Junior Counsel fees: on or after 15 November 2023 but before 30 April 2024
  • High Court – Senior Counsel fees: on or after 15 November 2023 but before 30 April 2024
  • Sheriff and JP Court – Junior Counsel fees: on or after 15 November 2023 but before 30 April 2024
  • Sheriff and JP Court – Senior Counsel fees: on or after 15 November 2023 but before 30 April 2024

Schedule 2 - Fees of counsel for first instance work done or outlays incurred on or after 25 Sept 2023 but before 15 Nov 2023

  • Schedule 2 – Fees of counsel: Notes on the operation
  • High Court – Junior Counsel fees: on or after 25 September 2023 but before 15 November 2023
  • High Court – Senior Counsel fees: on or after 25 September 2023 but before 15 November 2023
  • Sheriff and JP Court – Junior Counsel fees: on or after 25 September 2023 but before 15 November 2023
  • Sheriff and JP Court – Senior Counsel fees: on or after 25 September 2023 but before 15 November 2023

Schedule 2 - Fees of counsel for all work done or outlays incurred on or after 1 April 2022 but before 25 September 2023

  • Schedule 2 – Fees of counsel: Notes on the operation
  • High Court – Junior Counsel fees: on or after 1 April 2022 but before 25 September 2023
  • High Court – Senior Counsel fees: on or after 1 April 2022 but before 25 September 2023
  • Appeal proceedings – Junior Counsel fees: on or after 1 April 2022 but before 30 April 2024
  • Appeal proceedings – Senior Counsel fees: on or after 1 April 2022 but before 30 April 2024
  • Sheriff and JP Court – Junior Counsel fees: on or after 1 April 2022 but before 25 September 2023
  • Sheriff and JP Court – Senior Counsel fees: on or after 1 April 2022 but before 25 September 2023

Schedule 2 - Fees of counsel for all work done or outlays incurred on or after 22 March 2021 but before 1 April 2022

  • High Court – Junior Counsel fees: on or after 22 March 2021 but before 1 April 2022
  • High Court – Senior Counsel fees: on or after 22 March 2021 but before 1 April 2022
  • Appeal proceedings – Junior Counsel fees: on or after 22 March 2021 but before 1 April 2022
  • Appeal proceedings – Senior Counsel fees: on or after 22 March 2021 but before 1 April 2022
  • Sheriff and JP Court – Junior Counsel fees: on or after 22 March 2021 but before 1 April 2022
  • Sheriff and JP Court – Senior Counsel fees: on or after 22 March 2021 but before 1 April 2022

Schedule 2 - Fees of counsel for all work done or outlays incurred on or after 26 April 2019 but before 22 March 2021

  • Schedule 2 – Notes on the operation
  • High Court – Junior Counsel fees: for work done or outlays incurred on or after 26 April 2019 but before 22 March 2021
  • High Court – Senior Counsel fees: for work done or outlays incurred on or after 26 April 2019 but before 22 March 2021
  • Appeal proceedings – Junior Counsel fees: for work done or outlays incurred on or after 26 April 2019 but before 22 March 2021
  • Appeal proceedings – Senior Counsel fees: for work done or outlays incurred on or after 26 April 2019 but before 22 March 2021
  • Sheriff and JP Court – Junior Counsel fees: on or after 26 April 2019 but before 22 March 2021
  • Sheriff and JP Court – Senior Counsel fees: on or after 26 April 2019 but before 22 March 2021

Schedule 2 - Fees of counsel for work done or outlays incurred before 26 April 2019

  • Schedule 2 – Notes on the operation