2010 No. 312

Legal Aid And Advice

The Criminal Legal Assistance (Fees) (No. 2) (Scotland) Regulations 2010

Made

Laid before the Scottish Parliament

Coming into force

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 33(2), (3) and (3A) of the Legal Aid (Scotland) Act 19861 and all other powers enabling them to do so.

Citation and commencement1

These Regulations may be cited as the Criminal Legal Assistance (Fees) (No. 2) (Scotland) Regulations 2010 and come into force on 30th September 2010.

Application2

These Regulations apply only in relation to a case where criminal legal assistance is first provided to the assisted person on or after 30th September 2010.

Amendment of the Advice and Assistance (Scotland) Regulations 19963

In the table of fees in Part II of Schedule 3 to the Advice and Assistance (Scotland) Regulations 19962 (table of fees allowed to solicitors for advice and assistance other than assistance by way of representation)—

a

in paragraph A, for “E” substitute “G”; and

b

after paragraph E insert—

F.

For the first half hour (or part thereof) providing advice and assistance to the client if—

(a)

the client is being detained under section 14(1) of the Criminal Procedure (Scotland) Act 19953 or is otherwise at a police station for the purposes of questioning; and

£30.94

—

—

(b)

the period—

(i)

concludes after 2200 hours; or

(ii)

begins before 0700 hours.

G.

For each quarter hour (or part thereof), subsequent to the first half hour, providing advice and assistance to the client in the circumstance mentioned in paragraph F(a), if the quarter hour period—

£15.47

—

—

(a)

concludes after 2200 hours; or

(b)

begins before 0700 hours.

Amendment of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 19994

In regulation 4 of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 19994 (fixed payments allowable to solicitors)—

a

in paragraph (6A)(a)—

i

for “7(5)(a)(ii)” substitute “7(5)(a)(ii)(aa)”; and

ii

for “at a police station” substitute “while the assisted person is being detained under section 14(1) of the 1995 Act or is otherwise at a police station for the purposes of questioning”; and

b

after paragraph (6B) insert—

6BA

Paragraphs (6A) and (6B) do not apply—

a

if the time spent by solicitor A at the police station or other place of detention, together with the time spent reasonably and proportionately (as compared to the time involved in the attendance) travelling to and from that place, exceeds 2 hours;

b

to the extent that the advice and assistance was provided, and any relative travel was undertaken, between 2200 hours and 0700 hours.

Amendment of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 20085

For regulation 7(5)(a) of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 20085 (which specifies work in respect of which solicitors are entitled to separate payment despite paragraphs (3) and (4) of that regulation) substitute—

a

the provision of advice or assistance to, or representation of, the assisted person while the assisted person is being detained under section 14(1) of the Criminal Procedure (Scotland) Act 1995 or is otherwise at a police station—

i

if the time spent at the police station or other place of detention, together with the time spent reasonably and proportionately (as compared to the time involved in the attendance) travelling to and from that place, exceeds 2 hours;

ii

where the assisted person is at the police station, or other place of detention, for the purposes of questioning—

aa

if the solicitor who provided the advice and assistance does not go on to provide any further criminal legal assistance to the assisted person in respect of the same matter; or

ab

to the extent that the advice and assistance is provided, and any relative travel is undertaken, between 2200 hours and 0700 hours.

KENNY MACASKILLA member of the Scottish ExecutiveSt Andrew’s House,Edinburgh
EXPLANATORY NOTE

(This note is not part of the Regulations)

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 19866) 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.