Legal Aid And Advice Citation and commencement 1 These Regulations may be cited as the Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 and come into force on 25th January 2018. Application 2 These Regulations do not apply to a person detained or arrested before 25th January 2018. Amendment of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 3 1 The Criminal Legal Aid (Scotland) (Fees) Regulations 1989 are amended as follows. 2 After regulation 4(1) insert— 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. . 3 In regulation 11(1) (disputes as to allowable fees or outlays)— a in paragraph (a), omit “or the Sheriff Appeal Court,”; b in paragraph (b), omit “or”; and c after paragraph (b) insert— ba the Sheriff Appeal Court, the matter shall be referred for taxation to the auditor of the Sheriff Appeal Court; or . Amendment of the Advice and Assistance (Financial Limit) (Scotland) Regulations 1993 4 In regulation 3(c) of the Advice and Assistance (Financial Limit) (Scotland) Regulations 1993 (financial limit) , after sub-paragraph (ix) insert— x where the advice and assistance is for personal attendance by a solicitor and the client has exercised the right to a consultation in terms of section 44 of the Criminal Justice (Scotland) Act 2016, the sum of £225.00; xi where the advice and assistance is for personal attendance by a solicitor and the client has exercised a right to have a solicitor present in terms of section 32(2) of the Criminal Justice (Scotland) Act 2016, the sum of £550; xii where the advice by way of representation is for review of a condition under section 19 of the Criminal Justice (Scotland) Act 2016, the sum of £200; xiii where the advice by way of representation is for review of a condition of an undertaking under section 30 of the Criminal Justice (Scotland) Act 2016, the sum of £200; xiv where the advice by way of representation relates to an application for authorisation for questioning by a prosecutor under section 36(1)(a) of the Criminal Justice (Scotland) Act 2016, the sum of £200 . Amendment of the Advice and Assistance (Scotland) Regulations 1996 5 1 The Advice and Assistance (Scotland) Regulations 1996 are amended as follows. 2 After regulation 4 (application for advice and assistance), insert— Applications for advice and assistance: further provision 4A The requirement in regulation 4 for an application for advice and assistance to be signed does not apply in the case of a client to whom section 32 (right to have a solicitor present) of the Criminal Justice (Scotland) Act 2016 applies. . 3 In regulation 14A (change of solicitor etc.), after paragraph (3) insert— 4 This regulation does not apply to proceedings under sections 19, 30 or 36(1)(a) of the Criminal Justice (Scotland) Act 2016. . 4 In regulation 17 (fees and outlays of solicitors), after paragraph (1) insert— 1A In the application of paragraph (1)(a) above to fees for work actually, necessarily and reasonably done in connection those matters described in— a Part III of Schedule 3, the reference to Part I of schedule 3 in paragraph (1)(a) above should be read as a reference to Part III of schedule 3; b Part IV of Schedule 3, the reference to Part II of schedule 3 in paragraph (1)(a) should be read as a reference to Part IV of schedule 3. . 5 In the Table of Fees in Part II of schedule 3 (table of fees allowable to solicitors)— a delete paragraphs F and G; b at the end insert— PART III TABLE OF FEES ALLOWED TO SOLICITORS FOR ASSISTANCE BY WAY OF REPRESENTATION FOR PROCEEDINGS UNDER SECTIONS 19, 30 AND 36(1)(a) OF THE CRIMINAL JUSTICE (SCOTLAND) ACT 2016 A reference in this Table of Fees to a section is a reference to a section of the Criminal Justice (Scotland) Act 2016. 1. Section 19 - Application for review of conditions of investigative liberation (a) Inclusive fee, excluding travel, for all work where matter does not proceed to a court hearing. £50.00 (b) Inclusive fee, excluding travel, for all work where matter proceeds to a court hearing. £75.00 (c) Additional fee, excluding travel, for second or subsequent court hearing, per hearing. £50.00 (d) Fee for time necessarily spent travelling to and from court, where the court is not in a town or place where the solicitor has a place of business, per quarter hour. £5.80 2. Section 30 - Application for review of undertaking conditions (a) Inclusive fee, excluding travel, for all work where matter does not proceed to a court hearing. £50.00 (b) Inclusive fee, excluding travel, for all work where matter proceeds to a court hearing. £75.00 (c) Additional fee, excluding travel, for second or subsequent court hearing, per hearing. £50.00 (d) Fee for time necessarily spent travelling to and from court, where the court is not in a town or place where the solicitor has a place of business, per quarter hour. £5.80 3. Section 36(1)(a) – Application for authorisation for questioning by a prosecutor (a) Inclusive fee, excluding travel, for all work where matter does not proceed to a court hearing. £50.00 (b) Inclusive fee, excluding travel, for all work where matter proceeds to a court hearing. £75.00 (c) Additional fee, excluding travel, for second or subsequent court hearing, per hearing. £50.00 (d) Fee for time necessarily spent travelling to and from court, where the court is not in a town or place where the solicitor has a place of business, per quarter hour. £5.80 PART IV TABLE OF FEES ALLOWED TO SOLICITORS FOR ADVICE AND ASSISTANCE IN RELATION TO SECTIONS 32 AND 44 OF THE CRIMINAL JUSTICE (SCOTLAND) ACT 2016 1.(a) Where a client to whom section 32 applies has exercised a right to have a solicitor present while being interviewed in terms of section 32(2), a solicitor can only claim a fee under paragraph 4 for all work undertaken in a single period in which that client— (i) voluntarily attends for interview, (ii) is in custody, (iii) voluntarily attends for interview and during that interview, or immediately after it, is arrested and in custody. (b) Where a client to whom section 32 applies has not exercised their right under section 32(2), a solicitor can only claim a fee under paragraph 3 or 5 for all work undertaken in a single period in which that client is in custody. (c) (i) Where a fee under paragraph 3 or 4 is claimed, a solicitor can only claim the higher rate, instead of the standard rate, if personal attendance on the client takes place wholly or partly during an unsocial time. (ii) Where a fee under paragraph 5 is claimed, a solicitor can only claim a higher rate, instead of the standard rate, if the attendance on the client (personal or otherwise) takes place wholly or partly at an unsocial time. 2. In this part— “unsocial time” means— a Saturday, Sunday or specified holiday; any time between 1900 hours and 0700 hours on any other day; “constable” means— a constable within the meaning given by section 99(1) of the Police and Fire Reform (Scotland) Act 2012; a person appointed under section 21(1), 22(1), 23(1), 24(1) or 25(1) of the Railways and Transport Safety Act 2003; a person appointed under section 55(1) of the Energy Act 2004; a person who is a member of the Ministry of Defence Police by virtue of section 1(2) of the Ministry of Defence Police Act 1987; a person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971; a person who is designated as a general customs official under section 3(1) of the Borders, Citizenship and Immigration Act 2009 or as a customs revenue official under section 11(1) of that Act; a person appointed as an officer of Revenue and Customs under section 2(1) of the Commissioners for Revenue and Customs Act 2005; “mental disorder” has the meaning given in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003; “specified holiday” means— New Year’s Day, if it is not a Saturday or Sunday or, if it is a Saturday or Sunday, the first Monday following New Year’s Day; 2nd January or if it is a Saturday, 4th January; if it is Sunday, 4th January; Good Friday; Easter Monday; the first Monday in May; 30th November, if it is not a Saturday or Sunday or, if it is a Saturday or Sunday, the first Monday following the 30th November; Christmas Day, if it is not a Saturday or Sunday or, if it is a Saturday or Sunday, the first Monday following Christmas Day; 26th December or if it is a Saturday, 28th December; if it is a Sunday, 28th December. Standard Rate Higher Rate 3. Inclusive fee, excluding travel, for personal attendance by a solicitor where a constable determines the client has a mental disorder and the client has exercised a right to consultation under section 44. £75.00 £99.75 4. Inclusive fee, excluding travel, for personal attendance by a solicitor where the client has exercised a right to have a solicitor present in terms of section 32(2)— (a) aggregate time engaged or waiting is 2 hours or less; or £115.00 £152.95 (b)(i) aggregate time engaged or waiting is more than 2 hours, up to and including 4 hours; and £200.00 £266.00 (ii) for each additional hour over 4 hours (or part thereof). £50.00 £66.50 5. Inclusive fee, excluding travel, for attendance by a solicitor where the client has exercised a right to consultation under section 44 other than in the circumstances provided for in paragraph 3. £30.00 £39.90 6. Fee for travelling time in relation to personal attendance— (a) travel time engaged is 2 hours or less per half hour (or part thereof); and £11.60 £15.43 (b) travel time engaged is more than 2 hours, where authorised by the Board, in advance per half hour (or part thereof). £11.60 £15.43 Amendment of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 6 1 The Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 are amended as follows. 2 In regulation 2(1) (interpretation), in the definition of “excluded proceedings”, after (m) insert— n where a client to whom section 32 of the Criminal Justice (Scotland) Act 2016 applies has exercised a right to have a solicitor present while being interviewed in terms of section 32(2) of that Act or a right to consultation under section 44 of that Act; o where there has been an application for authorisation for questioning by a prosecutor under section 36(1)(a) of the Criminal Justice (Scotland) Act 2016; . 3 In regulation 4(3)(b)— a omit “22, 22ZA(1)(a),”; and b after “the 1995 Act” insert “or paragraph 1(1)(b) of schedule 1 of the Criminal Justice (Scotland) Act 2016”. 4 In schedule 1, in paragraph 2 of Part 1 of the table of fees— a omit “22ZA(1)(b), 22ZB or”; and b after “the 1995 Act” insert “or paragraph 1(1)(a) or (c) of schedule 1 of the Criminal Justice (Scotland) Act 2016”. 5 In schedule 1A, in paragraph 2 of the table of fees— a omit “22ZA(1)(b), 22ZB or”; and b after “the 1995 Act” insert “or paragraph 1(1)(a) or (c) of schedule 1 of the Criminal Justice (Scotland) Act 2016”. 6 In schedule 1B, in paragraph 3 of Part 1 of the table of fees— a omit “22ZA(1)(b), 22ZB or”; and b after “the 1995 Act” insert “or paragraph 1(1)(a) or (c) of schedule 1 of the Criminal Justice (Scotland) Act 2016”. Amendment of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 7 1 The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 are amended as follows. 2 After regulation 4 (application of Part II of the Legal Aid (Scotland) Act 1986 to assistance by way of representation: proceedings under the Criminal Procedure (Scotland) Act 1995), insert— Application of Part II of the Act to assistance by way of representation: proceedings under sections 19, 30 and 36(1)(a) of the Criminal Justice (Scotland) Act 2016 4A Part II of the Act shall apply to assistance by way of representation in relation to proceedings under sections 19, 30 and 36(1)(a) of the Criminal Justice (Scotland) Act 2016. . 3 In regulation 13 (assistance by way of representation requiring approval of the Scottish Legal Aid Board)— a in paragraph (1) for “and 5” substitute “, 4A, 5”; and b after paragraph (3B) insert— 3C The Board must only approve the provision of assistance by way of representation in relation to the proceedings in regulation 4A where it is satisfied that it is in the interests of justice. 3D The factors to be taken into account by the Board in determining whether it is in the interests of justice for the purposes of paragraph (3C) that assistance by way of representation be made available include whether— a it is reasonable in the particular circumstances of the case that assistance by way of representation is made available; b the case is too complex to allow the applicant to present it to the minimum standard of effectiveness in person; and c it is in the interests of someone other than the applicant that the applicant be legally represented. . Amendment of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008 8 In regulation 7(5) of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008 (single payment in summary criminal cases), for sub-paragraphs (a) and (ab) substitute— 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; . Amendment of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 9 For regulation 3 of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 (duty solicitors: advice for suspect) substitute— 3 In the circumstances where the Board has arranged, in accordance with section 31(8) of the Act, that a solicitor is to be available for the purpose of providing advice and assistance to any person to whom section 32 (right to have a solicitor present) of the Criminal Justice (Scotland) Act 2016 applies— a section 31(1) of the Act does not apply; and b the advice and assistance referred to must only be provided by the solicitor so made available. . Amendment of the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011 10 For regulation 8 of the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011 (criminal advice and assistance: automatic availability in certain circumstances), substitute— 8 Advice and assistance is to be available without reference to the financial limits in section 8 of the Act for any person to whom section 32 (right to have solicitor present) of the Criminal Justice (Scotland) Act 2016 applies. . Revocation 11 The Criminal Legal Assistance (Fees) (Scotland) Regulations 2011 are revoked. ANNABELLE EWING Authorised to sign by the Scottish Ministers St Andrew’s House, Edinburgh 21st December 2017