(Archive) Solemn Inclusive Fees – Schedule 1, Part 1

Solemn Inclusive Fees under Schedule 1, part 2

The vast majority of solemn criminal accounts must be submitted under the “hybrid” payment arrangements as provided for under schedule 1 of the Criminal Fees Regulations.

Rather than specifying an individual fee for each item of work, block fees are payable for designated stages of the case.

This allows for work to be charged and the account to contain a mix of “block” and “detailed” fees.

The exception to this is where exceptional case status has been granted in terms of regulation 7A of the Criminal Fees Regulations, and the solicitor is paid for all work in accordance with Schedule 1, Part 1 of the Table of Fees (detailed fees).

This guidance relates solely to where charges are allowed under Schedule 2, Part 2 (Inclusive Fees).

For the purposes of this guidance a reference to “block fees” means the “Inclusive Fees” under Schedule 2, Part 2.

In terms of paragraph 1(5) of the Notes on the operation of Schedule 1, the block fees include all work falling within that block of work except where any of the following work activities are carried out:

• travel
• attending locus visits
• work in connection with the taking of a witness precognitio
• perusing, for the first time, the indictment, witness lists, statements, productions and labels received from the Crown and defence precognitions
• instructing expert witnesses
• conducting, or attending court when counsel is conducting, a hearing
• time spent waiting
• post-conviction work, except for the work described in paragraph 5 of Part 2 of the Table of Fees; and
• the work described in paragraph 3 of Part 2 of the Table of Fees, where the Board is satisfied that the case raised unusually complex issues of fact.

Where any of the items listed above require to be undertaken, that work, with one exception, is chargeable on the basis of schedule 1, Part 1 (detailed fees) in addition to the block fee that is payable.

The exception is where the solicitor has made an application to opt-out of the prison inclusive fee on the basis that “the work described in paragraph 3 of Part 2 of the Table of Fees, where the Board is satisfied that the case raised unusually complex issues of fact”.

Where this is granted the solicitor has the option to charge either the block or detailed fees for that work but not both.

The fees are determined by (subject to the exception below where no High Court indictment is served):

• whether the case is indicted to the High Court or Sheriff Court; and
• for cases in the High Court, the nature of the category for which the highest fee is prescribed against that individual accused.

In a case in which an indictment has been served, the relevant column of Part 2 of the Table of Fees for proceedings in the High Court of Justiciary, which relate to an offence listed in Schedule 2, Part I, Chapter 1 is:

• paragraph 3(a) is column A
• paragraph 3(b) or (c) is column B; and
• for proceedings in the sheriff court is column C.

Schedule 2 is the Table of Fees for Counsel and that is where the case categories are listed.

In the High Court there are two categories that apply for solicitors (A and B) and all cases in the sheriff court are paid in terms of column C.

When charging your account in the High Court you must therefore ensure that you are doing so at the rates in the correct column for those proceedings as that will determine the fee that is to be paid for that case.

In High Court cases you should always ensure that you have informed the Criminal Applications Department where a case has been indicted to the High Court otherwise when you are preparing the online account the rates will be set at sheriff court levels, with the exception of where the offence is listed immediately below and the solicitor has confirmed in the account synopsis that the case was not indicted, which will then set the fees at High Court rates.

Where a paper account is submitted if you have has not already informed the Criminal Applications that the case is one that has been indicted to the High Court we will require to ask for a copy of the indictment if it is not clear from the account that the case has been indicted to the High Court.

Where no indictment is served but the offence is listed under regulation 3A of the Fees Regulations, you are entitled to payment of the fee rates under column A (High Court). The listed offences are:

(a)   murder

(b)   multiple attempted murder

(c)    culpable homicide

(d)   rape

(e)    assault and robbery involving commercial premises

(f)   importation of controlled drugs

(g)   an offence under section 1 of the 1988 Act (causing death by dangerous driving)

(h)   an offence under the Explosive Substances Act 1883

(i)   a firearms offence

(j)   incest

(k)   sodomy

(l)    sedition

(m)   treason

(n)   torture

(o)   war crimes.

 Where it is unclear from the information held whether the case has concluded, or whether any of the above charges appear on the petition, we will only allow fees under column C (sheriff court) only and invite you to clarify why column A rates have been claimed.

Where the proceedings relate to an offence which is not listed in paragraphs 3(a), (b) or (c) of Chapter 1 of Part 1 of Schedule 2 (High Court) the offence is deemed to be listed in whichever of those sub-paragraphs we, or as the case may be the auditor, considers appropriate having regard to all the circumstances.

Where the proceedings are not listed but the case is indicted to the sheriff court only fees under column C are payable.

In terms of paragraph 6 of the Notes on the operation of Schedule 1, where agency is transferred from one solicitor to another:

• the fee for a block of work commenced and completed by the same solicitor is payable to that solicitor
• the fee for a block of work commenced by one solicitor but completed by another is to be apportioned equally between the solicitors who undertook work falling within that block.

We have no discretion to make payment on any other basis.

Given that certain block fees are payable for “all work” (and can only be paid once in any case) related to the case we will be unable to determine what proportion, if any, of the fee is payable prior to the conclusion of that block of work.

In order to calculate what fee is payable we must be able to determine:

• the number of solicitors who have done work during that block; and
• whether the block has actually concluded.

Where a block fee has been claimed and disallowed as a result of a transfer the assessment officer responsible for assessing the final (solicitor who has concluded the case) account will establish what payments are due to all solicitors in the case and make payment of the appropriate sum that is due.

Part 2 makes provision for block fees to be paid for some of the most common stages of work associated with solemn criminal proceedings.

Where a solicitor is representing an accused person in relation to more than one grant of legal aid and those cases are conjoined our approach to assessment will normally be to allow:

• a separate payment for each completed block of work in each case; and
• from the point at where the proceedings are conjoined the payment of a single block will normally be chargeable.

Where the block fees cover “all work” in the case they can only be paid once.

Block Fee 1 – Petition or Full Committal Fee

This fee covers all work from the taking of initial instructions up until the client is admitted to bail or committed until liberated in due course of law, where:

• at the first examination the client is either not committed for further examination or committed for further examination and admitted to bail where you must pay lower prescribed fee in Part 2, paragraph 1(a) is payable; or
• at the first examination the client is committed for further examination and not admitted to bail, where you must pay the higher prescribed fee in Part 2, paragraph 1(b) is payable.

The higher fee reflects the additional work that you will require to undertake where bail is refused at the first examination and the accused will be remanded in custody.

Where the client has been ‘admitted to bail’ at the first appearance and the Crown appeal that decision the fee under paragraph 1(a) is the fee that is payable. The solicitor will however be entitled to the block fee for a bail appeal in relation to the Crown bail appeal.

The fee is payable only once in any case.

Block Fee 2 – Bail Appeal

This fee is only payable in respect of a bail appeal under section 32 of the 1995 Act, or an appeal under section 201(4) of the 1995 Act.

This fee covers all work preparing for a bail appeal hearing including any continued diet and, where necessary, instructing Edinburgh agents.

It is only chargeable where the bail appeal takes place after the work included in block fee 1 has concluded. The fee is payable at a standard rate regardless of whether the appeal is in the High Court or Sheriff Appeal Court.

The bail appeal fee is payable more than once in a case but only in relation to a separate and distinct bail appeal. The fee is payable where a Crown bail appeal is lodged.

We will disallow any fee that has been claimed in respect of a bail review. This is not separately chargeable and any work done in connection with a bail review is covered by the general fees payable in the case.

Block Fee 3 – Prison Attendances

This fee covers all work arranging and attending all meetings, including consultations, in prison with the client from the point where the fee in paragraph 1 (petition fee) has come to an end up to and including where the client is convicted or, where the client is not convicted, the conclusion of the case.

It is not chargeable where:

• the client is not in prison
• the only prison visits are held prior to full committal
• the only prison visits are held after the client was convicted and where the work would be covered by the post-conviction fee (see Auditor of the Court of Session decision in HMA v CE)
• the solicitor has made a successful application to opt-out of the prison fee and then elects to charge for attendances on a detailed basis; or
• the attendance is to a location which is not listed as a prison on the Scottish Prisons Service website.

The block fee is payable where the client is remanded in custody on any matter. The client does not only have to be in prison in relation to the charges covered by the grant of legal aid relevant to the account that you are charging for.

The prison block fee covers all meetings whether the visits are in person, held by way of video conferencing or by telephone calls chargeable as attendance time i.e. in excess of 10 minutes which take place in prison.

If you have a consultation with the client outwith prison (e.g. whilst at court) this could be charged for separately, where appropriate.

Where the client is at liberty at any stage during the period where the prison block fee is payable separate charges can be allowed on a detailed basis in addition to the block fee.

The fee is payable only once in any case.

Block Fee 4 – Preparation for trial

This fee covers preparation, including citing and settling with witnesses, perusing evidence and preparing lines of enquiry and submissions but excluding relative consultations, in respect of:

• the first day of trial where the higher fee prescribed in paragraph 4(a) is payable; or
• a subsequent day of trial where the lower fee prescribed in paragraph 4(b) is payable.

The first day of trial fee is payable only once in any case and the subsequent day of trial is payable a maximum twice in any case. This applies even where the case is deserted and re-indicted and all work is dealt with under a single grant of legal aid. It is payable as soon as the criteria has been met and the fee is not subject to any apportionment in the event of a subsequent transfer.

The preparation fee is payable where any of the following arise:

• the indictment, containing a libel against the client, proceeds to trial; or
• on or after the day fixed for trial, the Crown withdraws any libel against the client; or
• where a lesser plea is accepted by the Crown on the day the case has been brought to trial.

The fee under paragraph 4(b) for a subsequent day of trial is only chargeable in a case where a fee is also payable under paragraph 4(a). The fee is not chargeable for the preparation of any diet of deferred sentence as that work is covered by the post- conviction fee that is payable in the case.

Block Fee 4A – Preparation other hearings

This fee covers the preparation for any of the following hearings:

• a hearing under section 76 of the 1995 Act (procedure where accused decides to plead guilty); or
• a hearing on a plea in bar of trial; or
• a hearing raising a preliminary issue, where the preliminary issue would have the effect of excusing the accused person from trial and no other fee is prescribed for this preparation.

The fee is chargeable for preparing lines of enquiry and preparing submissions, but is not chargeable for any consultations which concern preparation.

A standard fee is chargeable in respect of each hearing subject to the exception below.

The exception is in terms of paragraph 3A of the Notes on the operation where fees would otherwise be chargeable under both paragraph 4(A)(c):

• a hearing raising a preliminary issue, where the preliminary issue would have the effect of excusing the accused person from trial and no other fee is prescribed for this preparation

and paragraph 6(a) or (ab) of Part 2 of the Table of Fees (inclusive fees):

• a devolution issue, in terms of Schedule 6 to the Scotland Act 1998; or
• a compatibility issue in terms of section 288ZA of the 1995 Act;

in any such case we will allow the higher fee under paragraph 6(a) or (ab) but we cannot allow those fees and the fee under paragraph 4(A)(c).

Block Fee 5 – Post-Conviction Fee

This fee covers all work in connection with post-conviction discussions, advice and representation including advising and giving an opinion on the prospects of any appeal.

It is only chargeable following a client’s conviction. Where the client is acquitted or the Crown elect not to proceed with the prosecution no fee is chargeable.

Work in relation to the ‘non-standard’ procedures is chargeable on a detailed basis, in addition, to the block fee where paragraph 1(5)(h) on the Notes on the Operation of schedule 1 applies. Procedure is ‘non-standard’ if it is procedure that results in additional work beyond attending any deferred sentence diets, taking instructions and giving advice on appeal.

It is payable only once in any case.

Block Fee 6 – Miscellaneous Fees

Unless dealt with in the course of the preliminary hearing or a first diet, the fee for all work in connection with any of the following:

• a devolution issue, in terms of Schedule 6 to the Scotland Act 1998
• a compatibility issue in terms of section 288ZA of the 1995 Act
• a vulnerable witnesses application, in terms of section 271A, B, C or D of the 1995 Act
• a specification of documents
• a precognition on oath
• an evidence on commission
• an application to lead evidence relating to sexual offences under section 275(1) of the 1995 Act
• a proof in mitigation; and
• an examination of facts

is the fee prescribed in paragraph 6.

We will only consider payment where a hearing takes place or where the substantive minute/application has been lodged at court and a date has been fixed for the hearing.

Subject to the normal tests of taxation a fee is payable more than once, where appropriate, for the same or different types of work as the case may be. For example:

• where more than one s275 application was drafted and lodged a fee is payable for each application; or
• where a compatability issue, specification of documents and s275 application were drafted and lodged in the same case three separate fees would be payable.

However, where a listed work item is dealt with in the course of the preliminary hearing in the High Court or first diet in the Sheriff Court, including any continued diets, the block fee cannot be charged for that work and you must charge by way of detailed fees.

For the purposes of this fee ‘in the course of’ means where that work is dealt with at court as part of any preliminary hearing or first diet, including any continued diets.