The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2021

Amendments to the Criminal Legal Aid (Scotland) (Fees) Regulations 1989

4.—(1) The Criminal Legal Aid (Scotland) (Fees) Regulations 1989(1) are amended as follows.

(2) In regulation 5(1) (fees allowances to solicitors: identification parades)(2)—

(a) in sub-paragraph (a)(i) for “£117.42” substitute “£123.30”,

(b) in sub-paragraph (a)(ii) for “£13.06” substitute “£13.72”,

(c) in sub-paragraph (b)(i) for “£96.62” substitute “£101.46”,

(d) in sub-paragraph (b)(ii) for “£12.18” substitute “£12.79”.

(3) In regulation 6 (duty solicitors’ fees)(3)—

(a) for “£64.89” in each place where it appears substitute “£68.14”,

(b) for “£9.27” in each place where it appears substitute “£9.74”,

(c) for “£72.10” in each place where it appears substitute “£75.71”.

(4) After regulation 10 (fees allowable to counsel) insert—

“Fees (exceptional) allowable to counsel in appeal proceedings

10ZA.— (1) This regulation applies only pending leave to appeal being granted by the Appeal Court of the High Court of Justiciary.

(2) Counsel who provides criminal legal aid in relation to preparation of the note of appeal, or preparation of the note of appeal and counsel’s opinion on the merits of an appeal for the purposes of proceedings under section 107 of the Criminal Procedure (Scotland) Act 1995—

(a) where the circumstances prescribed in paragraph (4) exist, and

(b) subject to the conditions prescribed in paragraph (5),

is to be paid an additional fee for work carried out in accordance with schedule 2, subject to the modifications to the notes on the operation of schedule 2 specified in paragraph (9).

(3) It is for the Board to determine whether the circumstances prescribed in paragraph (4) exist.

(4) The circumstances referred to in paragraph (2)(a) are that the amount of fees payable to counsel in accordance with these Regulations (other than under paragraph (2)) would be likely to result in an assisted person being deprived of effective legal assistance.

(5) The conditions referred to in paragraph (2)(b) are—

(a) that counsel providing the criminal legal aid is to make an application to the Board in such a manner and form (which may include an online form) and containing such information as the Board may specify at as early a stage in the provision of criminal legal aid as is reasonably practicable,

(b) that counsel is, if required by the Board to do so, to supply such further information or such documents as the Board may require to enable it to determine that application, and

(c) that counsel is to keep proper records of all professional services provided by way of that criminal legal aid, whether before or after the Board determines whether the conditions prescribed in this paragraph are met.

(6) Counsel may apply for a review where the Board has determined that the circumstances prescribed in paragraph (4) do not exist.

(7) An application for review—

(a) must be lodged with the Board within 15 days, beginning on the day notice of the Board’s determination was given to the applicant,

(b) must include a statement of any matters which the applicant wishes the Board to take into account in reviewing the application, and

(c) may be accompanied by such additional precognitions and other documents as the applicant considers to be relevant to the review.

(8) Paragraph (7)(a) does not apply where the Board considers that there is a special reason for it to consider a late application for review.

(9) The modifications to the notes on the operation of schedule 2 referred to in paragraph (2) are as follows—

(a) paragraph 9 does not apply,

(b) paragraph 11A applies as if the words “taking into account that in cases set down for a day or more 2 hours preparation is covered by that fee by virtue of paragraph 9(a)” are omitted.”.

(5) In schedule 1 (fees of solicitors) in the Notes on the operation of schedule 1 in paragraph 7(1)(4) for “£13.06” substitute “£13.72”.

(6) In schedule 1 (fees of solicitors) in the table of fees, for Part 1 (detailed fees) and Part 2 (inclusive fees for solemn first instance proceedings) substitute the tables of fees in schedule 8 of these Regulations.

(7) In schedule 2 (fees of counsel) for the table of fees substitute the table of fees in schedule 9 of these Regulations.

(8) In schedule 3 (fees of counsel for proceedings in the supreme court) for the table of fees substitute the table of fees in schedule 10 of these Regulations.

(9) In paragraph 3 of the notes on the operation of schedule 2—

(a) in sub-paragraph (b) after the words “sub-paragraph (c)” insert “and sub-paragraph (ca)”,

(b) after sub-paragraph (c) insert—

“(ca) where junior counsel being led is unable to appear at a trial diet hearing, and the junior as leader has sought and has been granted leave of the court to continue alone at the trial diet hearing, the fee payable to junior as leader will be those prescribed in the Table of Fees for junior as leader.”.

(1)

S.I. 1989/1491; relevant amending instruments are S.I. 1991/566, S.I. 1992/374, S.S.I. 2004/264, S.S.I. 2005/113, S.S.I. 2005/584, S.S.I. 2005/656, S.S.I. 2007/180, S.S.I. 2008/240, S.S.I. 2009/312, S.S.I. 2010/63, S.S.I. 2010/212, S.S.I. 2011/41, S.S.I. 2011/135, S.S.I. 2012/276, S.I. 2013/7, S.S.I. 2013/250, S.S.I. 2013/320, S.S.I. 2015/337 and S.S.I. 2017/466, S.S.I 2019/78 and S.S.I. 2020/191.

(2)

Regulation 5 substituted by S.S.I. 2010/212 and amended by S.S.I. 2019/78.

(3)

Figures in regulation 6 substituted by S.S.I. 2019/78.

(4)

Figure in paragraph 7 substituted by S.S.I. 2019/78.