The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2011

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations extend the effect of amendments made to the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (“the principal Regulations”) by the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2010 (“the 2010 Regulations”) and make further amendments to the principal Regulations in connection with the fees allowable to counsel.

Regulation 3 of these Regulations amends the 2010 Regulations to extend their application. By virtue of regulation 2 of the 2010 Regulations, as enacted, the amendments made by regulation 4 of those Regulations were applicable only in respect of proceedings commenced on or after 2nd October 2006. By virtue of regulation 3 of these Regulations, the amendments made to the principal Regulations by regulation 4 of the 2010 Regulations are applicable to work done on or after 2nd October 2006 in relation to proceedings commenced on or after 4th April 2005. In addition, regulation 3 of these Regulations extends the effect of the amendment made by regulation 3 of the 2010 Regulations to all proceedings commenced between 4th April 2005 and 23rd March 2010 where the counsel involved has not requested that the principal Regulations be given effect as if amended by regulation 4 of the 2010 Regulations.

The further amendments made to the principal Regulations, except for the amendment made by regulation 5(3)(c), apply only in relation to proceedings commenced on or after 17th March 2011. The effects of those amendments are to—

(a) prevent solicitor advocates from being paid fees at senior counsel rates unless the Law Society of Scotland has accredited the solicitor advocate in question to charge senior counsel rates (regulation 5(2));

(b) convert the format of references to Part 2 of the Table of Fees in Schedule 2 to the principal Regulations from Roman to Arabic numerals in the notes on the operation of that Schedule (consistent with the number format of that Part of the Table of Fees as inserted by the 2010 Regulations) (regulation 5(3)(a));

(c) make provision as to the fees payable to counsel in respect of advising hearings (regulation 5(3)(b) and (h) and (4)(c) and (g));

(d) provide for a fee to be paid to counsel for an opinion that there is no stateable appeal case, but only in cases where the counsel who considers the prospects of appeal is not, and for some reason could not be, the counsel who represented the legally aided person at the trial (regulation 5(3)(f) and (4)(e) and (i));

(e) change the basis for calculating any additional preparation fee for counsel so that chargeable time is divided into units of 8 hours rather than 6 hours (regulation 5(3)(g));

(f) make provision as to the fees payable to counsel in respect of hearings in appeals against conviction or against conviction and sentence that proceed in accordance with the rules for the presentation of appeals in writing (regulation 5(3)(e) and (f) and 5(4)(a)(ii), (b), and (h));

(g) remove the fee payable to counsel for completing a Form 15 (regulation 5(4)(a)(i));

(h) provide for a fee to be paid to counsel for an opinion in connection with an application for a transcript of evidence under section 94(2A) of the Criminal Procedure (Scotland) Act 1995 (regulation 5(4)(d) and (h)).

Regulation 5(3)(c) amends paragraph 4 of the notes on the operation of Schedule 2 to the principal Regulations to allow counsel to be paid a higher hearing fee in cases where the appellant has been sentenced to a period of imprisonment of 10 years or more, to life imprisonment or where an order for lifelong restriction has been made. Paragraph 4 of the notes on the operation of Schedule 2 to the principal Regulations was substituted by the 2010 Regulations. The substituted paragraph 4 applies in relation to proceedings commenced on or after 23rd March 2010 (by virtue of regulation 2(1) of the 2010 Regulations) and, if the counsel involved so requests, is to be treated as if it applied to work done on or after 2nd October 2006 in relation to proceedings commenced on or after 4th April 2005 (by virtue of regulation 2(2) of the 2010 Regulations, as amended by regulation 3 of these Regulations). In both circumstances, the substituted paragraph 4 has effect as amended by regulation 5(3)(c) of these Regulations.