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These Regulations amend legal aid and advice legislation to allow solicitors an increased, or in certain circumstances an additional, fee for providing advice and assistance between 2200 hours and 0700 hours to a person who is being detained under section 14(1) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) or who is not being so detained but is nevertheless at a police station for the purposes of questioning.
The amendments made by these Regulations only apply to cases in relation to which criminal legal assistance (as defined by section 41 of the Legal Aid (Scotland) Act 1986(1)) is first provided to the person on or after 30th September 2010 (regulation 2).
Regulation 3 amends the Advice and Assistance (Scotland) Regulations 1996 to prescribe £30.94 for the first half hour and £15.47 for each subsequent quarter hour as the fee rates for providing advice and assistance in the circumstances described above.
Regulation 4 amends the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 (“the 1999 Regulations”). Paragraph (a) makes amendments to reflect the amendments made by regulation 5 of these Regulations to regulation 7(5) of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008 (“the 2008 Regulations”).
Regulation 4(b) of these Regulations clarifies the operation of regulation 4(6A) and (6B) of the 1999 Regulations. Those provisions apply where one solicitor provides advice and assistance to a person at a police station (or other place of detention if the client is being detained under section 14(1) of the 1995 Act) and a different solicitor (or solicitors) act for the person in respect of any related prosecution under summary procedure. In such cases, except where the case proceeds before a designated drug court, the effect of regulation 4(6A) and (6B) is that the fee that the solicitor who provided the advice and assistance at the police station (or other place of detention) is entitled to, is to be deducted from any fixed payment payable to the solicitor (or solicitors) who subsequently acted for the person. Regulation 4(b) of these Regulations inserts a new regulation 4(6BA) into the 1999 Regulations which provides that no amount is to be deducted from the fixed payment payable to the solicitor (or solicitors) who subsequently acted for the person if the provision of the advice and assistance to the person at the police station (or other place of detention) took more than 2 hours or, where it took less than 2 hours, to the extent that the advice and assistance was provided between 2200 hours and 0700 hours.
Regulation 7 of the 2008 Regulations provides that where more than one type of criminal legal assistance is made available in relation to summary proceedings, payment is to be made in respect of one type of assistance only. Exceptions to the single payment rule are set out in regulation 7(5). Prior to these Regulations there were two exceptions to the single payment rule. The single payment rule did not apply if providing the advice and assistance took more than 2 hours, or if the solicitor who provided the advice and assistance was not the same solicitor who went on to provide the further criminal legal assistance. Regulation 5 of these Regulations amends regulation 7(5) of the 2008 Regulations to add a further exception. The added exception allows a solicitor to be paid for spending less than 2 hours providing advice and assistance to a person at a police station where, and only insofar as, that advice and assistance is provided between 2200 hours and 0700 hours. The new regulation 7(5)(a) of the 1999 Regulations inserted by regulation 5 of these Regulations also differs from regulation 7(5)(a) as originally enacted in referring not only to the person being at a police station, but to the person being at any place where he or she is being detained under section 14(1) of the 1995 Act.
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