The Criminal Legal Assistance (Fees and Information Etc.) (Scotland) Regulations 2008

S.S.I. 2008 NO. 240

Made: 6th June 2008
Laid before the Scottish Parliament: 6th June 2008
Coming into force: 30th June 2008

As amended to take account of:
The Criminal Legal Assistance (Fees) (Scotland) Regulations 2010 (S.S.I. 2010 No.270)
The Criminal Legal Assistance (Fees) (No. 2) (Scotland) Regulations 2010 (S.S.I. 2010 No. 312)
The Criminal Legal Assistance (Fees) (Scotland) Regulations 2011 [S.S.I. 2011 No. 333]
The Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 [S.S.I. 2017 No. 466]
The Criminal Legal Aid and Advice and Assistance (Counter-Terrorism and Border Security) (Scotland) Regulations 2021[S.S.I 2021 No.55]

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 12(3), 33, 36(1), (2)(a), (e) and (g) and 41A of the Legal Aid (Scotland) Act 1986 and all other powers enabling them to do so.

Regulations

Citation, commencement and application

1.—(1) These Regulations may be cited as the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008 and come into force on 30th June 2008.

(2) Regulations 2, 3, 6, 7 and 8(1) apply only in relation to a case where the criminal legal assistance concerned is granted or made available on or after 30th June 2008.

(3) Regulation 4 applies only in relation to a case where the criminal legal assistance concerned is made available on or after 30th June 2008.

Fees etc.

Criminal legal aid and assistance by way of representation
2.—(1) The Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 are amended as follows.

(2) In regulation 2(1) (interpretation)–

(a) in the definition of “assisted person”, after “aid” insert “or (as the case may be) assistance by way of representation”;
(b) in the definition of “excluded proceedings”, after paragraph (k) insert–
“(l) proceedings in an appeal to the High Court under section 174(1) (appeals relating to preliminary pleas) of the 1995 Act.”;

(c) before the definition of “relevant criminal legal aid” insert–
““relevant ABWOR” means assistance by way of representation provided by a solicitor in relation to summary criminal proceedings other than excluded proceedings;”.

(3) In regulation 3 (application)–
(a) in paragraph (1), after “aid” insert “and relevant ABWOR”;
(b) after paragraph (2) add–
“(3) These Regulations apply also in respect of relevant ABWOR.”.

(4) In regulation 4 (fixed payments allowable to solicitors)–
(a) in paragraph (1) after “Schedule 1” insert “or 1A”;
(b) after paragraph (1) insert–
“(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 (other than before a stipendiary magistrate);
(ii) cases in the JP court (before a stipendiary magistrate) 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 (before a stipendiary magistrate) 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 (before a stipendiary magistrate or otherwise) or the sheriff court.”;

(c) in paragraph (5), omit “specified in Schedule 1”;
(d) in paragraph (7)–
(i) in sub paragraph (a), after “Schedule 1” insert “or (as the case may be) under paragraph 1 of Schedule 1A”;
(ii) at the beginning of sub-paragraph (b) insert “where Schedule 1 applies,”;
(iii) after sub paragraph (b) add–
“; and
(c) where Schedule 1A applies, the amounts payable under paragraph 1 of Schedule 1A so far as applying by reference to paragraphs 10 and 10AA 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).”;
(e) after paragraph (7) insert–
“(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, 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.”;
(f) in paragraph (9), after “person” in the first place where it occurs there is inserted “(having relevant criminal legal aid)”;
(g) after paragraph (9) insert–
“(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.”.
(5) In regulation 5 (submission of accounts)–
(a) in paragraph (1)–
(i) for “6 months” substitute “4 months”;
(ii) after “aid” insert “or assistance”;
(iii) after “1989” insert “or the Advice and Assistance (Scotland) Regulations 1996”;
(b) in paragraph (2), for “6 months” substitute “4 months”.
(6) In paragraph 1 of Part 1 of Schedule 1–
(a) in the first column,
(i) omit “and” at the end of sub paragraph (iii);
(ii) after sub paragraph (iii) insert–
“(iiia) a first or second diet of deferred sentence; and”;

(b) in the second column (which relates to the JP court)–
(i) for the entry “£300” substitute “£315”;
(ii) for “£275” substitute “£290”;

(c) in the third column (which relates to the sheriff court or stipendiary magistrate)–
(i) for the entry “£500” substitute “£515”;
(ii) for “£475” substitute “£490”;

(d) in the fourth column (which relates to certain specified sheriff courts)–
(i) for the entry “£550” substitute “£565”;
(ii) for “£525” substitute “£540”.

(7) For paragraph 2 of that Part of that Schedule substitute–

“2. All work mentioned in paragraph 1 above that is done in connection with a complaint under section 27(1)(b) of the 1995 Act. £157.50 £257.50 £257.50”.

(8) After paragraph 10 of that Part of that Schedule insert–
“10AA. Representation at a first or second diet of deferred sentence (one only) at which the court considers a report required under section 203 of the 1995 Act and where the case is disposed of (as an additional payment). £25 £25 £25”.

(9) Omit paragraph 10A of that Part of that Schedule.

(10) The Schedule to these Regulations inserts–
(a) a Schedule 1A containing a table of payments for relevant criminal legal aid (as defined);
(b) a Schedule 1B containing the table of payments for relevant ABWOR (as defined).

Advice and assistance
3.—(1) The Advice and Assistance (Scotland) Regulations 1996 are amended as follows.

(2) After regulation 8B insert–

“Information to be recorded in criminal matters
8C. Where advice and assistance is given in relation to a criminal matter, the solicitor must record–
(a) whether the matter is one as regards which–
(i) a complaint has been served;
(ii) a fixed penalty, compensation or work offer has been made under section 302, 302A or 303ZA of the Criminal Procedure (Scotland) Act 1995;
(iii) liability for another non-court penalty has arisen;
(b) if not such a matter, a note of the details of the event to which the advice and assistance relates;
(c) a summary of the nature and content of the advice and assistance;
(d) any relevant case or other reference number.”.
(3) In regulation 13 (giving of advice and assistance on the same matter)–
(a) in paragraph (3), after “allowable” insert “in relation to a civil matter”;
(b) after paragraph (5) add–
“(6) A client is not to be given advice and assistance by the same solicitor in relation to the same criminal matter (whether or not at the relevant time the subject of proceedings) more than once without the prior approval of the Board.
(7) The Board may (on an application for the purpose of paragraph (6) above)–
(a) refuse to give its approval; or
(b) give its approval unconditionally or on such conditions as it may impose.”.
(4) After regulation 14 insert–

Change of solicitor etc.

14A.—(1) Where the solicitor who is providing assistance by way of representation in relation to a summary criminal matter has been required by the client to cease to act (other than where paragraph (2) below applies), the solicitor is to–
(a) notify the Board of that fact; and
(b) provide it with a statement of the circumstances so far as known to the solicitor.
(2) Where a client who is being provided assistance by way of representation in relation to a summary criminal matter wishes to have it provided by a different solicitor, the client is to–
(a) apply to the Board for authority to have that solicitor provide the assistance; and
(b) inform it of any reason for the application.
(3) The Board may grant an application under paragraph (2) above if it is satisfied that there is a good reason for the application.”.

(5) In regulation 15A(1) (supply of information by clients), after “assistance” insert “in relation to a civil matter”.

(6) In regulation 17 (fees and outlays of solicitor), after paragraph (2) add–
“(3) In the application of paragraph (1) above so far as concerning assistance by way of representation in relation to a summary criminal matter, there is to be taken into account time necessarily spent in travelling to and from the relevant court (other than one in the town or other place where the solicitor has a place of business) or any other place visited for the purpose of preparing or conducting the defence.
(4) Paragraph (3) above does not apply if it would have been more economical to use a local solicitor (where that would have been reasonable in the interests of the client).
(5) This regulation (so far as concerning criminal matters) is subject to the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999.”.

(7) In Schedule 2 (assessment of disposable capital and disposable income)–
(a) in paragraph 2, after “Schedule” in the first place where it occurs there is inserted “in relation to a civil matter”;
(b) after paragraph 2 insert–
“2A.—(1) Any question arising under this Schedule in relation to a criminal matter is to be decided by the solicitor in accordance with paragraphs (2) and (3) below.
(2) The solicitor must, for the purpose of ascertaining the capital and income of the person concerned–
(a) so far as necessary and practicable, obtain from that person financial or other documentation; and
(b) take such other reasonable steps as are necessary.
(3) The solicitor must have regard to any guidance issued by the Board regarding the application of this Schedule.”.

(8) In Part 1 of Schedule 3 (table of fees allowable to solicitors)–
(a) omit paragraph 1(a) and the corresponding entries “£70.00” and “£44.40”;
(b) in paragraph 1(b), for “(a) above” substitute “Schedule 1B to the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999”.

(9) In Part 2 of Schedule 3–
(a) in paragraph 1, for “Subject to paragraph 2 of this Part, the” substitute “The”;
(b) in entries A to E of paragraph 1, in the column which specifies sums for criminal matters–
(i) for “£10.55” in the first place where it occurs substitute “£11.60”;
(ii) for “£5.25” substitute “£5.77”;
(iii) for “£2.40” substitute “£2.64”;
(iv) for “£6.00” substitute “£6.60”;
(v) for “£21.05” in the first place where it occurs substitute “£23.15”;
(vi) for “£21.05” in the second place where it occurs substitute “£23.15”;
(vii) for “£10.55” in the second place where it occurs substitute “£11.60”;
(viii) in entry E, for “8 pence” substitute “9 pence” and for “copies” substitute “copied”;
(c) omit paragraph 2.
Duty solicitors
4.—(1) The Criminal Legal Aid (Scotland) (Fees) Regulations 1989(5) are amended as follows.

(2) In paragraph (1) of regulation 6 (duty solicitors’ fees)–
(a) in sub paragraph (a)–
(i) for “£47.95 for the first case” substitute “£63 for the first case in which the accused person pleads not guilty or which is adjourned under section 145 of the 1995 Act”;
(ii) for “£6.48 for each additional case” substitute “£9 for each additional such case”;
(iii) for “£103.95” substitute “£140”;

(b) after sub paragraph (a) insert–
“(aa) for attendance at that session, a fee of £70 for each case in which the accused pleads guilty;”;
(c) in sub-paragraph (b)–
(i) for “£47.95 for the first case” substitute “£63 for the first case in which the accused person pleads not guilty or which is adjourned under section 145 of the 1995 Act”;
(ii) for “£6.48 for each additional case” substitute “£9 for each additional such case”;
(iii) for “£69.71” substitute “£93”;

(d) in sub paragraph (b), for “session:” substitute “session;” and after that sub paragraph insert–
“(c) for attendance at any such other session, a fee of £70 for each case in which the accused pleads guilty:”.
(3) In paragraph (2) of that regulation–
(a) after “guilty” insert “or in circumstances where the accused has not been called on to plead”;
(b) for “£121.91” substitute “£150 (of which the relevant fee of £70 under paragraph (1) is to form part)”.
(4) In paragraph (3) of that regulation, for “£121.91” substitute “£150”.

(5) After paragraph (3) of that regulation insert–
“(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.”.

Further provision
Supply of information by assisted persons etc.
5.—(1) A person who is receiving, or has received, criminal legal assistance must supply the Board with such information (including documents) as the Board may require from the person for the purposes of performing its functions under the Legal Aid (Scotland) Act 1986.

(2) The Board may recover from the person any amounts that have been paid out of the Fund in respect of the fees and outlays of the person’s solicitor in the case (and, if counsel is acting, of counsel) if the person has–
(a) wilfully failed to comply with a requirement made under paragraph (1) above; or
(b) knowingly made a false statement or representation, or wilfully failed to disclose a material fact, in relation to such a requirement.
(3) In this regulation, reference to counsel includes reference to a solicitor advocate.

Withholding payment in certain summary criminal matters
6.—(1) Paragraphs (2) and (3) apply where, under the Legal Aid (Scotland) Act 1986–

(a) advice and assistance has been provided in relation to a criminal matter or assistance by way of representation has been provided in relation to a summary criminal matter; and
(b) the Board finds that the provision–
(i) was not (wholly or partly) in accordance with the relevant rules applying by virtue of that Act; or
(ii) was otherwise unjustified in the circumstances of the case (including by reason of inadequate assessment or verification of any relevant factor).

(2) In considering whether or not the provision was in accordance with those rules, the Board
may have regard to any relevant guidance it has issued in relation to their application.

(3) The Board may–
(a) withhold (wholly) payment from the Fund in respect of the provision; or
(b) if such payment has been made, fully recover it.

Single payment in summary criminal cases

7.—(1) Paragraphs (3) and (4) apply where, under the Legal Aid (Scotland) Act 1986, more than one relevant type of criminal legal assistance is made to the same person in respect of the same matter.

(2) Here, the relevant types of criminal legal assistance are (in order from first to third)–
(a) advice and assistance (whether concerning a fixed penalty, compensation or work offer under section 302, 302A or 303ZA of the Criminal Procedure (Scotland) Act 1995 or any complaint or otherwise);
(b) assistance by way of representation in relation to summary criminal proceedings;
(c) criminal legal aid in relation to summary proceedings.

(3) Where the first and second types of assistance are provided (but not the third type), any entitlement to payment in respect of fees and outlays attributable to the provision (or payment of any fixed fees) is restricted to payment in respect of the second type.

(4) Where the third type of assistance and either or both of the first and second types are provided, any entitlement to payment in respect of fees and outlays attributable to the provision (or payment of any fixed fees) is restricted to payment in respect of the third type.

(5) [1] However, paragraphs (3) and (4) do not affect any entitlement to separate payment in respect of–

[2][3]

(a) the provision of advice and assistance to a person to whom section 32 (right to have solicitor present) of the Criminal Justice (Scotland) Act 2016 applies;

(aa) the provision of assistance by way of representation to a person who:

(i) applies for a review of conditions under section 19 of the Criminal Justice (Scotland) Act 2016;
(ii) applies for a review of a condition of an undertaking under section 30 of the Criminal Justice (Scotland) Act 2016; or
(iii) is the subject of an application for authorisation for questioning by a
prosecutor under 36(1)(a) of the Criminal Justice (Scotland) Act 2016;

(ab) [4]     the provision of advice and assistance to a person to whom:

(i)           paragraph 16(6) of schedule 8 of the Terrorism Act 2000 applies;

(ii)          paragraph 37(6) of schedule 3 of the Counter-Terrorism and Border Security Act 2019 applies;

(ac)      the provision of assistance by way of representation in proceedings in connection with an application for a warrant of further detention, or for an extension of such a warrant, under paragraph 29 or 36 of Schedule 8 of the Terrorism Act 2000

(b) an appeal under section 174(1) of the Criminal Procedure (Scotland) Act 1995.

(6) Accordingly–
(a) any requirement of the Board to make payment to a solicitor is (by reference to this regulation) qualified;
(b) if the total of any payments made from the Fund exceeds that which is allowed by virtue of this regulation, the Board may recover the excess.

(7) The Board may disregard any claim by a solicitor for payment in respect of the first type of assistance until such time as it believes that provision of the second or third type will not be (or is unlikely to be) required in respect of the same matter.

Miscellaneous
8.—(1) The Advice and Assistance (Scotland) Amendment (No. 2) Regulations 2006 are revoked.

(2) Any reference in the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999–
(a) to the JP court means the justice of the peace court;
(b) to that court includes any remaining district court.

KENNY MACASKILL
A member of the Scottish Executive
St Andrew’s House,
Edinburgh
6th June 2008

Footnotes

[1] As amended by S.S.I. 2010 No. 312 (in force from 30 September 2010), substituting the amendments made by S.S.I. 2010 No.270.

[2] Substituted by S.S.I. 2011 No.333 (in force from 31 October 2011). These provisions create an exception to the single payment rule in the circumstances described, the “Subsumption Rule”.

[3]Substituted by S.S.I. 2017 No. 466 (in force from 25 January 2018).

[4] Inserted by S.S.I. 2021 No 55 (in force from 17 February 2021)