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The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2007

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Citation and commencement

1.  These Regulations may be cited as the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2007 and shall come into force on 29th March 2007.

Application

2.—(1) Subject to paragraphs (2) to (4), these Regulations shall apply only to fees for work done and outlays incurred on or after 2nd October 2006.

(2) Regulation 5 shall apply in respect of proceedings concluded before 29th March 2007 which are referred for taxation after that date and proceedings concluded on or after 29th March 2007.

(3) Regulations 4 and 8 shall apply only in respect of proceedings commenced on or after 29th March 2007.

(4) Regulation 9 shall apply in respect of proceedings commenced before 29th March 2007 and not concluded before that date.

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

3.  The Criminal Legal Aid (Scotland) (Fees) Regulations 1989(1) are amended in accordance with the following regulations.

4.  In regulation 10 after “Schedule 2”, insert “or 3”.

5.  For regulation 11, substitute–

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 Judicial Committee of the Privy Council, the matter shall be referred for taxation to the Registrar of the Judicial Committee of the Privy Council; 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) or (c) shall have the right to state written objections to the High Court or, as the case may be, the sheriff 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 Judicial Committee of the Privy Council, 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 Judicial Committee of the Privy Council 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 Board of the Judicial Committee of the Privy Council 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..

6.  In Schedule 2–

(a)in paragraph 2, after “any item of work”, insert “or category of proceedings”;

(b)in paragraph 3, for “In the taxation”, substitute “In the assessment and taxation”;

(c)in paragraph 15–

(i)omit sub paragraph (c)(iv);

(ii)in sub paragraph (d), for “10,001-12,500” substitute “7,500-10,000”;

(iii)in sub paragraph (e), for “12,500” substitute “10,000”; and

(iv)in sub paragraph (f)(i), for “10,000” substitute “7,500”;

(d)in paragraph 16, for “paragraph 1(c)”, substitute “paragraph 1B(c)”;

(e)in paragraph 17–

(i)in sub-paragraph (f), omit “and”; and

(ii)at the end, insert–

(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

(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 of Chapter 1 or 2 of Part I and paragraph 2 of Chapter 1 or 2 of Part III.;

(f)after paragraph 17, insert–

17A.  Where counsel claims a fee in respect of the first diet under paragraph 3(u) of Chapter 1 or 2 of Part III of the Table of Fees, the fee shall only be payable 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.;

(g)in paragraph 19, for “paragraph 1”, where it twice occurs, substitute “paragraph 1B”;

(h)in paragraph 20–

(i)in sub-paragraph (a), for “90” and “180”, substitute “60” and “120” respectively; and

(ii)in sub-paragraph (b), omit “which shall be a chargeable outlay”;

(i)after paragraph 20, insert–

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

(j)in paragraph 22–

(i)before the definition of “documentation” insert–

“consultation” means a formal meeting 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;; and

(ii)in the definition of documentation after “productions”, insert “, including defence productions,”.

7.  In the Table of Fees in Schedule 2–

(a)in Chapters 1 and 2 of Part I–

(i)for paragraph 1, substitute–

1A.

Written work

(a)petition to Nobile Officium

£225.00

(b)drafting devolution minute

£150.00

(c)drafting section 275 application under the 1995 Act(2)

£150.00

(d)drafting specification of documents

£125.00

(e)drafting interrogatories

£125.00

1B.

Preliminary hearing

(a)Preliminary hearing including managed meeting or equivalent communication with the Crown by whatever means and including any note on the line of evidence

Payable at one and a half times the full rate for a trial (paragraph 3 below) depending on category of case and status of counsel.

(b)further diet under section 72(9) of the 1995 Act

Payable at two thirds of the full rate for a trial (paragraph 3 below) depending on category of case and status of counsel.

(c)adjourned diet under section 75A of the 1995 Act, or continued diet

Payable at one-half of the full rate for a trial (paragraph 3 below) depending on category of case and status of counsel.

(d)attendance at managed meeting or work in connection with equivalent communication with the Crown by whatever means and including any note on the line of evidence where counsel does not attend preliminary hearing

Payable at one-half of the fee prescribed at paragraph 1B(a) above.

(e)conduct of preliminary hearing on receipt of detailed instructions not having been involved in pre hearing communication with the Crown

Payable at one-half of the fee prescribed at paragraph 1B(a) above.;

(ii)in paragraph 3(a), at the end, insert “, Offences under the Explosive Substances Act 1883(3), Sections 327 to 333 and 339(1A) of the Proceeds of Crime Act 2002(4) (Money Laundering), Firearms offences, Incest, Sodomy, Embezzlement, Lewd and libidinous behaviour against children under the age of 12”;

(iii)in paragraph 3(b), omit “Incest, Sodomy,”, after “Lewd and libidinous behaviour”, insert “(other than under category (a) above)” and, at the end, insert “, Offences under the Immigration Act 1971(5), Offences under section 52 or 52A of the Civic Government (Scotland) Act 1982(6); and

(iv)omit paragraph 4(j)(iv);

(b)in Chapter 1 of Part I–

(i)for paragraph 3(c) and (d), substitute–

(c)Possession with intent to supply or being concerned in the supply of a class B or class C drug, Assault to severe injury, Assault and robbery, Mobbing, Wilful fire raising, Housebreaking, Opening lockfast places, Bigamy, Contempt of Court, Perjury, Theft, Forgery, Uttering, Reset, Concealing a pregnancy, Deforcement of Sheriff’s Officers, Malicious mischief, Brothel keeping, Public order offences (stirring of racial hatred, wearing of uniforms, disrupting lawful meetings), Harassment, Road traffic offences (other than section 1 or 3A of the 1998 Act(7)), Possession of offensive weapons, Violation of sepulchres

£495.00£430.00£305.00;

(ii)in paragraph 4, at the end, insert–

(q)trial within a trial

Payable at the full rate for a trial (paragraph 3 above) depending on category of case and status of counsel.

(r)examination of the facts in a case of insanity or diminished responsibility

Payable at the full rate for a trial (paragraph 3 above) depending on category of case and status of counsel.

(s)proof in mitigation

Payable at the full rate for a trial (paragraph 3 above) depending on category of case and status of counsel.

(t)deferred sentence in which evidence is taken from an expert witness

Payable at the full rate for a trial (paragraph 3 above) depending on category of case and status of counsel.;

(iii)in paragraph 5, for “£177.00 £154.00 £108.00” substitute “£210.00 £184.00 £135.00”; and

(iv)in paragraph 8, for “£75.00”, on each occasion it occurs, substitute “£100.00”;

(c)in Chapter 2 of Part I–

(i)for paragraph 3(c) and (d), substitute–

(c)Possession with intent to supply or being concerned in the supply of a class B or class C drug, Assault to severe injury, Assault and robbery, Mobbing, Wilful fire raising, Housebreaking, Opening lockfast places, Bigamy, Contempt of Court, Perjury, Theft, Shameless indecency, Offences under the Sexual Offences Act 2003(8), Forgery, Concealing a pregnancy, Deforcement of Sheriff’s Officers, Malicious mischief, Brothel keeping, Public order offences (stirring up racial hatred, wearing of uniforms, disrupting lawful meetings), Harassment, Road traffic offences (other than section 1 or 3A of the 1988 Act), Possession of offensive weapons, Violation of sepulchres

£560.00;

(ii)in paragraph 4, at the end, insert–

(q)trial within a trial

Payable at the full rate for a trial (paragraph 3 above) depending on category of case.

(r)examination of the facts in a case of insanity or diminished responsibility

Payable at the full rate for a trial (paragraph 3 above) depending on category of case.

(s)proof in mitigation

Payable at the full rate for a trial (paragraph 3 above) depending on category of case.

(t)deferred sentence in which evidence is taken from an expert witness

Payable at the full rate for a trial (paragraph 3 above) depending on category of case.;

(iii)in paragraph 5, for “£200.00” substitute “£250.00”; and

(iv)in paragraph 8, for “£75.00” substitute “£100.00”;

(d)in Chapters 1 and 2 of Part III–

(i)for paragraph 1, substitute–

1A. Written work

(a)petition to Nobile Officium

£225.00£225.00£225.00

(b)drafting devolution minute

£150.00£150.00£150.00

(c)drafting section 275 application under the 1995 Act

£150.00£150.00£150.00

(d)drafting specification of documents

£125.00£125.00£125.00

(e)drafting interrogatories

£125.00£125.00£125.00

1B. Early plea

Hearing under section 76 of the 1995 Act£1,250.00£1,250.00£625.00;

(ii)in paragraph 2(a), at the end, insert “, Offences under the Explosive Substances Act 1883, sections 327 to 333 and 339(1A) of the Proceeds of Crime Act 2002 (Money Laundering), Firearms offences, Incest, Sodomy, Embezzlement, Lewd and libidinous behaviour against children under the age of 12”; and

(iii)omit paragraph 3(j)(iii);

(e)in Chapter 1 of Part III–

(i)for paragraph 2(b) and (c), substitute–

(b)Attempted murder, Assault to severe injury (with aggravations), Indecent assault, Assault and robbery (involving retail premises), Possession with intent to supply or being concerned in the supply of a class A drug, Attempted rape, Lewd and libidinous behaviour (other than under category (a) above), Offences under the Sexual Offences Act, Offences against children under the 1995 Consolidation Act(9), Offences under section 16A of the 1995 Consolidated Act, Abduction and/or unlawful imprisonment, Extortion, Counterfeiting, Bribery and corruption, Mobbing and rioting, Mobbing, Environmental protection prosecutions, Health and safety offences, Intellectual property offences, Indecent or obscene publications, Possession with intent to supply or being concerned in the supply of a class B or class C drug, Assault to severe injury, Assault and robbery, Wilful fire raising, Housebreaking, Opening lockfast places, Bigamy, Contempt of Court, Perjury, Theft, Forgery, Uttering, Reset, Concealing a pregnancy, Deforcement of Sheriff’s Officers, Malicious mischief, Brothel keeping, Public order offences (stirring up racial hatred, wearing of uniforms, disrupting lawful meetings), Harassment, Road traffic offences (other than section 1 or 3A of the 1988 Act), Possession of offensive weapons, Violation of sepulchres, Offences under the Immigration Act 1971, Offences under section 52 or 52A of the Civic Government (Scotland) Act 1982”;

£495.00£430.00£305.00

(ii)in paragraph 3, at the end, insert–

(p)trial within a trial

Payable at the full rate for a trial (paragraph 2 above) depending on category of case and status of counsel.

(q)examination of the facts in a case of insanity or diminished responsibility

Payable at the full rate for a trial (paragraph 2 above) depending on category of case and status of counsel.

(r)proof in mitigation

Payable at the full rate for a trial (paragraph 2 above) depending on category of case and status of counsel.

(s)deferred sentence in which evidence is taken from an expert witness

Payable at the full rate for a trial (paragraph 2 above) depending on category of case and status of counsel.

(t)first diet

Payable at the full rate for a trial (paragraph 2 above) depending on category of case and status of counsel.;

(iii)in paragraph 4, for “£142.00 £123.00 £86.00”, substitute “£178.00 £154.00 £108.00”; and

(iv)in paragraph 7, for “£75.00”, on each occasion it occurs, substitute “£100.00”;

(f)in Chapter 2 of Part III–

(i)for paragraph 2(b) and (c), substitute–

(b)Attempted murder, Assault to severe injury (with aggravations), Indecent assault, Assault and robbery (involving retail premises), Possession with intent to supply or being concerned in the supply of a class A drug, Attempted rape, Lewd and libidinous behaviour (other than under category (a) above), Offences under the Sexual Offences Act, Offences against children under the 1995 Consolidation Act, Offences under section 16A of the 1995 Consolidated Act, Abduction and/or unlawful imprisonment, Extortion, Counterfeiting, Bribery and corruption, Mobbing and rioting, Mobbing, Environmental protection prosecutions, Health and safety offences, Intellectual property offences, Indecent or obscene publications, Possession with intent to supply or being concerned in the supply of a class B or class C drug, Assault to severe injury, Assault and robbery, Wilful fire raising, Housebreaking, Opening lockfast places, Bigamy, Contempt of Court, Perjury, Theft, Forgery, Uttering, Reset, Concealing a pregnancy, Deforcement of Sheriff’s Officers, Malicious mischief, Brothel keeping, Public order offences (stirring up racial hatred, wearing of uniforms, disrupting lawful meetings), Harassment, Road traffic offences (other than section 1 or 3A of the 1988 Act), Possession of offensive weapons, Violation of sepulchres, Offences under the Immigration Act 1971, Offences under section 52 or 52A of the Civic Government (Scotland) Act 1982

£560.00;

(ii)in paragraph 3, at the end, insert–

(p)trial within a trial

Payable at the full rate for a trial (paragraph 2 above) depending on category of case.

(q)examination of the facts in a case of insanity or diminished responsibility

Payable at the full rate for a trial (paragraph 2 above) depending on category of case.

(r)proof in mitigation

Payable at the full rate for a trial (paragraph 2 above) depending on category of case.

(s)deferred sentence in which evidence is taken from an expert witness

Payable at the full rate for a trial (paragraph 2 above) depending on category of case.

(t)first diet

Payable at the full rate for a trial (paragraph 2 above) depending on category of case.;

(iii)in paragraph 4, for “£160.00” substitute “£200.00”; and

(iv)in paragraph 7, for “£75.00” substitute “£100.00”; and

(g)for paragraph 7 of Chapter 1 in Part I and paragraph 6 of Chapter I in Part III, substitute–

Supplementary fee chargeable in addition to any of the above fees where necessary travel is undertaken within Scotland, including travel to a Procurator Fiscal’s office or elsewhere to view productions£100.00£100.00£100.00
Supplementary fee chargeable in addition to any of the above fees where necessary travel is undertaken furth of Scotland£200.00£200.00£200.00; and

(h)for paragraph 7 of Chapter 2 in Part I and paragraph 6 of Chapter 2 in Part III, substitute–

Supplementary fee chargeable in addition to any of the above fees where necessary travel is undertaken within Scotland, including travel to a Procurator Fiscal’s office or elsewhere to view productions£100.00
Supplementary fee chargeable in addition to any of the above fees where necessary travel is undertaken furth of Scotland£200.00.

8.  After Schedule 2 insert the Schedule to these Regulations.

Saving

9.  In respect of proceedings which commenced before 29th March 2007, paragraph 15 of Schedule 2 to the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 shall continue to have effect as if these Regulations had not been made where counsel would thereby be entitled to a higher fee for separate preparation than would have been the case under these Regulations.

JOHANN M LAMONT

Authorised to sign by Scottish Ministers

St Andrew’s House,

Edinburgh

6th March 2007

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