The Criminal Legal Aid (Scotland) (Fees) Amendment (No. 2) Regulations 2010

Made: 25th May 2010

Laid before the Scottish Parliament: 26th May 2010

Coming into force: 5th July 2010

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 33(2)(a) and (3) and 36(1) of the Legal Aid (Scotland) Act 1986[^f00001] and all other powers enabling them to do so.

Citation and commencement

1

These Regulations may be cited as the Criminal Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 2010 and come into force on 5thJuly 2010.

Application

2

These Regulations only apply in relation to proceedings commenced on or after 5thJuly 2010.

3

If the solicitor involved so requests, in determining the fees chargeable in respect of proceedings commenced on or after 1stApril 2008 and before 5thJuly 2010, the Criminal Legal Aid (Scotland) (Fees) Regulations 1989[^f00002] are to be read and have effect as if amended in accordance with regulation 4.

Amendment of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989

4

• (1) The Criminal Legal Aid (Scotland) (Fees) Regulations 1989 are amended in accordance with paragraphs (2) to (6).

• (2) For regulation 5, substitute—

(5) (1) For attending an identification parade to which section 21(4)(b) of the 1986 Act[^f00003] applies, a solicitor shall be allowed a fee at the following rates:— (a) where paragraph (2) applies— (i) £114.00 for the first hour; and (ii) £12.67 for each subsequent quarter of an hour; or (b) where paragraph (2) does not apply— (i) £93.80 for the first hour; and (ii) £11.82 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[^f00004] 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 paragraph 1 of Part 2 of the Table of Fees set out in Schedule 1.

• (3) In regulation 7, omit—

• (a) in paragraph (1) “and paragraph (2) of this regulation,”; and

• (b) paragraph (2).

• (4) For regulation 8(1)(a) substitute—

(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 5(4) of the notes on the operation of Schedule 1 applies to those expenses as it applies to the fee for travelling time;

• (5) After regulation 10 insert—

(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.

• (6) For Schedule 1[^f00005] substitute the Schedule to these Regulations.

SCHEDULE

Signed

KENNY MACASKILL — A member of the Scottish Executive — 25th May 2010

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations amend the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (“the principal Regulations”). The amendments apply in relation to proceedings commenced on or after 5thJuly 2010 or, if the solicitor involved so chooses, 1stApril 2008.

Regulation 4(2) of these Regulations substitutes for regulation 5 of the principal Regulations a modified version. Regulation 5 of the principal Regulations deals with two matters. First, it makes provision about the fee allowed to a solicitor for attending an identification parade. The substitute regulation 5 provides for a new fee rate in respect of identification parades held in relation to solemn criminal proceedings. Where the new fee rate does not apply, the fee for attending an identification parade is unchanged. The new fee rate does not apply if the solicitor attends the identification parade as the duty solicitor and does not go on to represent the accused person in the subsequent criminal proceedings. The new fee rate also does not apply where the identification parade is held in relation to summary criminal proceedings.

The second matter regulation 5 of the principal Regulations deals with is the fee allowed to a solicitor representing an accused person at a judicial examination. Regulation 5 made provision for the fee allowed to both nominated and duty solicitors. The substitute regulation 5 makes provision only for the fee allowed to a duty solicitor, provided that solicitor does not go on to become the accused person’s nominated solicitor in the solemn criminal proceedings. The fee allowed to a solicitor representing an accused person at a judicial examination is otherwise provided for by Schedule 1 to the principal Regulations.

Regulation 4(3) of these Regulations removes regulation 7(2) of the principal Regulations. Regulation 7(2) made provision relating to the fees due to a solicitor for time necessarily spent waiting at court and for travel. Those matters are now dealt with in paragraphs 4 and 5 (respectively) of the notes on the operation of Schedule 1 to the principal Regulations.

Regulation 4(4) of these Regulations substitutes for regulation 8(1)(a) of the principal Regulations a modified version. Regulation 8(1)(a) made provision about the circumstances in which travel outlays were allowed to a solicitor. The substitute regulation 8(1)(a) provides for this by linking the circumstances in which travel outlays are allowed to the circumstances in which a fee for travelling time is allowed in terms of paragraph 5 of the notes on the operation of Schedule 1 to the principal Regulations.

Fees are allowed to solicitors and counsel in terms of the principal Regulations only for work “actually and reasonably done” (this is stated in regard to solicitors in regulation 7 and in regard to counsel in regulation 10 of the principal Regulations). Regulation 4(5) of these Regulations makes clear that in determining whether work has actually and reasonably been done, the Scottish Legal Aid Board and the auditor should start from the premise that solicitors and counsel are up to date with the law in their field of practice.

Regulation 4(6) of these Regulations replaces, with a new version, Schedule 1 to the principal Regulations. The new Schedule 1—

• (a) creates a new structure for solicitors’ fees in solemn criminal proceedings; whereby rather than specifying a fee for all items of work, it provides for solicitors to receive block fees covering all work undertaken during designated stages of the case;

• (b) provides for increased fee rates for those items of work in respect of solemn criminal proceedings which do not attract a block fee and for items of work in respect of summary criminal proceedings; and

• (c) makes further provision about the circumstances in which fees are chargeable and to whom they are payable in the event that an accused person changes solicitor in the course of proceedings.

Footnotes

[^f00001]: 1986 c.47. Section 33(2) was amended by the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), section 67. Sections 33(3) and 36(1) have not been amended. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46).

[^f00002]: S.I. 1989/1491; amended by S.I. 1990/474 and 1035, 1991/566, 1992/374, 1994/1019, 1997/719, 1999/491 and 1042 and S.S.I. 2002/246, 2004/264 and 316, 2005/656, 2006/515, 2007/180, 2008/240; 2009/312 and 2010/63.

[^f00003]: Section 21(4)(b) of the 1986 Act (meaning the Legal Aid (Scotland) Act 1986) was amended by paragraph 63(2) of Schedule 4 to the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c.40).

[^f00004]: 1995 c.40.

[^f00005]: Schedule 1 was substituted by S.S.I. 2004/264 and subsequently amended by S.S.I. 2005/656 and 2006/515.

[^f00006]: 1998 c. 46.