(Archive) Summary of Schedule 1B – Part 1 (JP Court)

Schedule 1B prescribes the fixed payments chargeable in circumstances where you provide ABWOR in the JP court.

Paragraph 1 prescribes the core fixed payment, which includes all work up to and including

• any diet conducted under an ABWOR grant including a diet at which a plea of guilty is made and accepted or plea in mitigation is made
• the first 30 minutes of conducting a proof in mitigation

• a first or second diet of deferred sentence and
• any subsequent or additional work other than that specified in paragraphs 4 and 8 to 13 below.

This payment represents the total fee payable for all work that you undertake in connection with the case from beginning to end, except work for which a further fixed payment is prescribed. These further fixed payments are available in the circumstances of each individual case. If a piece of work is not covered by such an “add-on” then it is included in the fixed payment. There is no work undertaken in a case for which there is no payment.

Exceptionally, and given the level of the core fixed payment for a plea under ABWOR in the JP court, a full case disposal fee is available in breach of bail proceedings arising from section 27(1)(b) of the 1995 Act or paragraph 1(1)(a) or (c) of schedule 1 of the Criminal Justice (Scotland) Act 2016.

A number of further fixed payments are payable before the JP court depending on the circumstances of the case.

A fixed payment is prescribed for conducting a proof in mitigation for the first day (after the first 30 minutes).

Some confusion can arise as to whether a solicitor, in certain circumstances, can be said to have conducted a deferred sentence or a proof in mitigation as there is no specific provision in the 1995 Act for a “proof in mitigation”.

In practice, a case may be adjourned for a proof in mitigation and then sentence where the court decides it cannot proceed to sentence, as when a court has to sentence an accused it should seek to do so on a true factual basis.  The Crown has to lay before the court the facts and circumstances relating to the charge to which an accused has tendered a plea of guilty, and ensure that the sheriff is alerted to the fact that information contained within a plea in mitigation is disputed.  In such a situation the sentencing sheriff must make clear to an accused’s representative that a line of mitigation, which is being disputed by the Crown, cannot be accepted on an ex parte basis.  In such a situation, the sheriff should offer a proof in mitigation and allow evidence to be led.  It is for the accused to decide whether they wish to lead evidence in mitigation.  (See Lord MacKay of Drumadoon in HMA –v- M D Murray aka Kerrigan 2008 HCJI, 19 February 2008, at paras [15] to [23], and also Lord Sutherland in McCartney –v- HMA, 1997 SCCR 644 at 646B-C).

Where it is clear from the information available that a proof in mitigation took place in the proceedings, and not a plea in mitigation, you can claim for a proof in mitigation.

Fixed payments are prescribed for representation per appearance by a solicitor, as distinct from per case, before a court designated as a youth court or as a domestic abuse court by the Sheriff Principal, and at a hearing in respect of a community supervision order.

The significance of a “per appearance” fee is that it is chargeable once even where the appearance may arise from two or more different complaints.

This paragraph no longer applies to a deferred sentence (now moved to paragraphs 8A and 9, and now also chargeable per appearance).

The core fixed payment subsumes a first or second deferred sentence. Only further deferred sentence hearings beyond the first and second hearings are separately chargeable.

It follows that the fees prescribed by this paragraph are only chargeable where the fee for the deferred sentence is not already subsumed within the core fee. It is important to include details of all deferred sentence diets that took place in the proceedings at the accounts stage in order that we can determine the hearings that are separately payable.

Where proceedings such as failure to appear are subsumed within the certificate for the substantive proceedings and there are deferred sentences attributable to this element of the combined proceedings, the first and second deferred sentences are also separately subsumed within the case disposal fee. In the unlikely event of there being two deferred sentences in respect of the substantive proceedings and two deferred sentences under the failure to appear proceedings, where the proceedings maintain separate courses, all four would be subsumed within the core fixed payments forming the “proceedings”.

Paragraph 8A deals with representation in court at a diet of deferred sentence.  You are entitled to a fee for a diet of deferred sentence, per appearance, other than where the fee is included within the case disposal fee for the case in respect of a first or second diet of deferred sentence.

The significance of a “per appearance” fee is that it is chargeable once even where the appearance may arise from two or more different complaints. An enhanced fixed payment, to reflect the change to a per appearance fee, is prescribed where a hearing relates to more than one complaint.

You can only claim for work actually done and should never claim for a deferred sentence when set down by the court in anticipation of attending a diet, which for one reason or another may not proceed.

A supplementary account is the appropriate course of action once the work has been undertaken.

A “structured deferred sentence”, understood to be the equivalent in certain courts to a DTTO but used primarily where the accused has a drink problem, shall be paid as a deferred sentence in the event that the proceedings have been adjourned under section 202 of the 1995 Act.

Such hearings are also treated as a deferred sentence in the application of the provision of the Schedules to the effect that the core fixed payment and case disposal fee subsumes a first or second deferred sentence.

The definition of a “diet of deferred sentence”, at regulation 2(1), includes those diets where the case has been adjourned for enquiries or reports under section 201 (power of court to adjourn case before sentence), section 202 (deferred sentence) and 203 (reports) of the 1995 Act.

A deferred sentence diet continued to a later part of the day’s proceedings cannot, therefore, be construed as a further adjournment.  In these circumstances, only one fixed payment is chargeable under paragraph 8A.  It is viewed by the court as the same diet which has been continued to a later part of that day’s proceedings, and we assess it accordingly.

An appearance from custody on a warrant where the client has previously failed to attend at a deferred sentence itself is not to be construed as a deferred sentence.  The current definition of a diet of deferred sentence means that only a diet adjourned in advance to a particular day, whether the adjournment is under sections 201, 202 or 203, can be construed and allowed as a deferred sentence.  Whether or not the court takes the opportunity on the day to deal with the deferred sentence, the accused having been apprehended, does not make it a diet adjourned for the purpose of sections 201, 202 or 203 of the 1995 Act or chargeable as such. You will have been paid for the abortive diet, if it called.

Note: The definition of “deferred sentence” was amended by the 2014 fixed payments and ABWOR regulations [S.S.I. 2014 No. 366], as at 17 December 2014. There was no definition as such of a section 202 diet of deferred sentence in the Table of Fees and a section 202 deferred sentence, dealt with by the court on the day,  was arguably chargeable on a claim for a section 202 deferred sentence taking place at the warrant hearing on apprehension of an accused person. This is no longer arguable.

A fee under paragraph 9 is chargeable (once only) where

• the court considers a social enquiry report under section 203, and
• the case is disposed of during the course of a first or second diet of deferred sentence (both these hearings being subsumed within the core fixed payment or case disposal fee).

Please remember that his payment can only be claimed in connection with a deferred sentence for a social enquiry report.

In terms of the regulation, the additional payment is payable only where the case is “disposed of” at one of the two subsumed diets, and is not separately chargeable where

• the case is continued to a further diet or diets of deferred sentence, or
• the case is disposed of at a diet for which a further fixed payment is payable.

So, where the accused is convicted and the sheriff fixes a DTTO order, as an alternative to sentence by other traditional means, you will be entitled to payment of the additional fee. The sheriff has clearly disposed of the matter.

Also, in Glasgow where there is a referral to the Drug Court payable under Schedule 1, part 2 under the certificate, this is also a disposal. The proceedings may not be at an end, but nevertheless there has been a disposal in these circumstances. The additional fee is payable.

Paragraph 10 provides a fixed payment (£50) for all work in connection with a bail appeal under sections 32 and an appeal under section 201(4) of the 1995 Act.  This fee includes all work carried out by the nominated solicitor and the Edinburgh agent in a bail appeal, subject to the more recent provision for advocacy below, whether the bail appeal is heard on the first day or has to be continued to a second day.  The charge is for a bail appeal, unrelated to the time taken.

The fixed payment for a bail appeal is payable by reference to the proceedings per case, not per appearance.  Where bail appeals are proceeding at the same time in respect of separate complaints, not the same proceedings for fixed payments purpose, the £50 applies to each individual case.

With the advent of the Sheriff Appeal Court, which now deals with all summary appeals against sentence or conviction and also bail appeals, and before which solicitors have rights of audience, new provision has now been made for representation by a solicitor. A fixed payment is now prescribed in such an appeal where counsel is not employed. Separately, a further fixed payment is prescribed in respect of any continued diet in such an appeal.

Travel and other outlays must always be apportioned between cases, as always.

A bail review is subsumed within the core fixed payment and should not be confused with a bail appeal.

This paragraph makes payment provision for conducting post-conviction proofs.

The fee for conducting a special reasons proof or a hearing on exceptional hardship is the prescribed fee notwithstanding the court.  This is the total fee chargeable under any circumstances even where, for whatever reason, these hearings are conducted separately.

Similarly, provision is made for conducting a back-duty proof, the fee being as prescribed notwithstanding the court, except where a special reasons proof or a hearing on exceptional hardship has already taken place.  In this event, no further fee is payable for a separate back-duty proof.