LEGAL AID AND ADVICE, SCOTLAND Citation and commencement 1 These Regulations may be cited as the Criminal Legal Aid (Scotland) (Fees) Regulations 1987 and shall come into force on 1st April 1987. Interpretation 2 1 In these Regulations, unless the context otherwise requires– “the 1986 Act ” means the Legal Aid (Scotland) Act 1986; “auditor” means the appropriate auditor of court specified in regulation 15; “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; “nominated solicitor” means the solicitor nominated to act by a person to whom criminal legal aid has been made available; “outlays” does not include fees payable to counsel. 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 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 15. Fees allowance to solicitors: general provisions 4 1 Subject to the following provisions of this regulation and to regulations 11 and 12, the fees allowable to solicitors shall be those specified in regulations 5 to 10. 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– a he shall submit one account in respect of all those persons; and b the maximum fees specified in regulations 6 to 10 shall - i in a case where he represents two such persons, be increased by 40 per cent., ii in a case where he represents more than two such persons, be increased in respect of each such additional person by 20 per cent. 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 The duty solicitor or, where criminal legal aid may be provided by a solicitor other than the duty solicitor, the nominated solicitor shall be allowed, in respect of attendance at an identification parade to which section 21(4)(b) of the 1986 Act applies, fees at the following rates– First hour of attendance - £52.25; Each subsequent half hour - £12.70. 2 The duty solicitor or the nominated 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 20, 20A and 20B of the Criminal Procedure (Scotland) Act 1975( ) 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 11. 3 Any fees allowed to a nominated solicitor under this regulation shall be in addition to any fees allowed to him under regulation 7, 8 or 9. 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 for attendance at the first session of a court for the day, a sessional fee of £30.90 for the first case and £4.20 for each additional case, subject to a maximum total fee of £66.90 for the session until its termination on completion of business for the day or on adjournment by the court, whichever is the earlier; b for attendance at any other session of that court on the same day, a sessional fee of £30.90 for the first case and £4.20 for each additional case, subject to a maximum total fee of £44.95 for each such other session: 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, 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 shall be such sum not exceeding £75.75 as shall form reasonable remuneration having regard to the additional work and time involved. Nominated solicitors' fees for summary proceedings 7 There shall be allowed to the nominated solicitor acting for an accused person to whom legal aid has been granted in summary proceedings a fee of not less than £44.95 and not exceeding £344.85, and a further fee not exceeding £110.75 in respect of every day on which an adjourned hearing takes place. Nominated solicitors' fees for solemn proceedings in the sheriff court 8 1 There shall be allowed to the nominated solicitor acting for an accused person to whom legal aid has been granted in solemn proceedings in the sheriff court a fee of not less than £56.45 and not exceeding £566.40. 2 Where a trial has not been concluded on the day on which it started there shall be allowed to the solicitor in addition to the fee allowed under the foregoing paragraph a daily fee in respect of the second and every subsequent day– a where counsel has not been instructed, not exceeding £162.00; b where counsel has been instructed, not exceeding £110.75. Nominated solicitors' fees for solemn proceedings in the High Court 9 1 There shall be allowed to the nominated solicitor acting for an accused person to whom legal aid has been granted in solemn proceedings in the High Court a fee of not less than £70.55 and not exceeding £1,107.70. 2 Where a trial has not been concluded on the day in which it started there shall be allowed to the solicitor in addition to the fee allowed under the foregoing paragraph a daily fee in respect of the second and every subsequent day not exceeding £110.75. Nominated solicitors' fees for appeals 10 1 There shall be allowed to the nominated solicitor acting for an accused person to whom legal aid for an appeal has been made available in connection with an appeal from proceedings in any court a fee of not less than £56.45 and not exceeding £566.40. 2 Where the hearing of an appeal has not been concluded on the day on which it started there shall be allowed to the nominated solicitor in addition to the fee allowed under the foregoing paragraph a daily fee in respect of the second and every subsequent day not exceeding £110.75. Determination of amount of solicitors' fees allowable under regulations 5(2)(b) and 7 to 10 11 1 Subject to regulation 12 the amount of any fee allowable to a solicitor in terms of regulation 5(2)(b) or regulations 7 to 10 shall be determined in accordance with paragraphs 2 and (3) of this regulation but shall be subject to any limitation on the amount of fees specified in regulations 7 to 10, as read where appropriate with regulations 4(2). 2 A solicitor shall be allowed such amount as may be determined to be reasonable remuneration, calculated in accordance with paragraph (3) of this regulation, for work actually and reasonably done, due regard being had to economy: Provided that in determining such amount there shall be taken into account all the relevant circumstances, including the nature, importance, complexity or difficulty of the work and the time involved, including– a time necessarily spent at the court on any day in waiting for the case or for the appeal to be heard, where such time has not been occupied in waiting for or conducting another case; and b time necessarily spent in travelling to and from the court at which the accused appears or the trial or appeal takes place (not being a court in the town or place where the solicitor has a place of business) and to and from the prison and any place visited for the purpose of preparing or conducting the defence or appeal. 3 Reasonable remuneration for the purpose of paragraph (2) of this regulation shall be calculated– a in the case of proceedings in the High Court, on the basis of the fees set out in Schedule 1; and b in the case of any other proceedings, on the basis of the fees set out in Schedule 2. Removal of limitations on amount of solicitors' fees under Regulations 7 to 10 and increase of such fees in exceptional circumstances 12 1 The counsel or solicitor representing an accused person at any trial (whether under solemn or summary procedure) may, immediately on the conclusion of the trial, make an oral application to the presiding judge for a certificate certifying that the case has necessarily been of exceptional length or complexity or difficulty, and the judge may either grant or refuse the application. If the judge refuses the application or if no such application is made, the counsel or solicitor may make, within a period of 14 days after the date on which the trial in question was concluded, a written application to the judge for such a certificate in the form of a note specifying the grounds of the application, and the judge may either grant or refuse the application, but shall not refuse it without giving the counsel or solicitor an opportunity of being heard in support of the application within a period of 14 days after the date on which it was made, and at any such hearing the prosecutor shall be given an opportunity of being heard in relation to the application. In determining an application for a certificate certifying that the case has necessarily been of exceptional length, the judge shall have regard to the time necessarily spent in preparation for the trial. In determining an application for a certificate certifying that the case has necessarily been of exceptional complexity or difficulty, the judge shall have regard to the number of accused persons represented by the solicitor in question. 2 If a solicitor has done work for an accused person in any proceedings, including proceedings on petition, and those proceedings do not, for any reason, lead to the trial of that person, the solicitor may make a written application to a single judge of the court concerned for a certificate certifying that the work has necessarily been of exceptional length, or complexity, or difficulty; and the provisions of paragraph (1) of this regulation shall apply to any such application as they apply to a written application under that paragraph. 3 If such a certificate as is referred to in the foregoing paragraphs of this regulation is granted, then any limitation contained in regulations 7 to 10, or such of them as are referred to in such certificate, as read where appropriate with regulation 4(2), on the amount of any fee allowable under those regulations shall not apply and the amount of any such fee shall be determined in accordance with paragraphs (2) and (3) of regulation 11 without regard to such limitations. 4 Where a certificate has been granted under paragraph (1) or (2) of this regulation upon the ground that the case has necessarily been of exceptional complexity or difficulty, or upon grounds which include either or both of these grounds, and the certificate so discloses, there shall be added to the amount of any fee allowable under regulations 7 to 10, determined in accordance with regulation 11(2) and (3) as read with paragraph (3) of this regulation, such further sum in respect of such exceptional complexity or difficulty as appears in the particular circumstances to be appropriate, being a sum of up to, but not exceeding, 25 per cent. of the amount of such fee determined as aforesaid. Fees allowable to counsel 13 1 Counsel shall be allowed such fee as appears to the auditor to represent reasonable remuneration, calculated in accordance with Schedule 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. Outlays allowable to solicitors 14 1 A solicitor shall be allowed the following outlays– a expenses actually and reasonably incurred by himself or his clerk in travelling to and from the court at which the accused person appears or the trial or appeal takes place (not being a court in the town or place where the solicitor has a place of business) and to and from the prison and any place visited for the purpose of preparing or conducting the defence or appeal:Provided that where public transport is not used a reasonable mileage allowance shall be treated as an outlay; b fees paid to witnesses who are not on the Crown list, which fees shall not exceed the sums payable from time to time by the Crown to witnesses of the same categories; and c any other out of pocket expenses actually and reasonably incurred. 2 Where a witness is a professional 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. Taxation of fees and outlays 15 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 the High Court, including appeals, the matter shall be referred for taxation to the Auditor of the Court of Session: Provided that the Board and any other party to a reference to the Auditor under this paragraph shall have the right to state written objections to the High Court in relation to the report of the Auditor under this paragraph within 14 days of the date of issue of such report and the Board and any such other party may be heard thereon. 2 If any question or dispute arise between the Board and a solicitor or counsel as to the amount of fees and 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 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: Provided that the Board and any other party to a reference to an auditor under this paragraph shall have the right to state written objections to the sheriff in relation to the report of the auditor under this paragraph within 14 days of issue of such report and the Board and any such other party may be heard thereon. 3 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. Revocation 16 Without prejudice to their continuation in effect for the purposes of legal aid under the Legal Aid (Scotland) Act 1967( ) by virtue of paragraph 3 of Schedule 4 to the 1986 Act, the following Regulations are hereby revoked:– The Legal Aid (Scotland) (Fees in Criminal Proceedings) Regulations 1984( ); The Legal Aid (Scotland) (Fees in Criminal Proceedings) Amendment Regulations 1985( ); The Legal Aid (Scotland) (Fees in Criminal Proceedings) Amendment Regulations 1986( ). Ian Lang Parliamentary Under Secretary of State, Scottish Office New St. Andrew’s House, Edinburgh 5th March 1987