Exceptional case status application in summary proceedings

You are allowed payment under the fixed payments regulations for providing summary criminal legal aid.  You can make an application for exceptional cases status, which, if granted, allows you to lodge a detailed account at the conclusion of the proceedings.

This is not a separate grant of criminal legal aid. It is simply a determination by us as to the ultimate basis of payment.

You should request a determination through Legal Aid Online, as early in the case as is practical.  With it you should send us all the relevant papers, and, where appropriate:

• A copy of the list of prosecution witnesses
• A list of productions or other documentation supporting the circumstances in which you claim your client would be deprived of the right to a fair trial

Review of an application

If your request is refused, you can also apply for a reconsideration.  You should submit the reconsideration application on-line within 15 days of our refusal of the application.

The reconsideration application should:

• Include a statement of any matters you want us to take into account in reconsidering the application, addressing the reasons for the refusal.
• Be accompanied by any additional precognitions and other documents you consider relevant to the reconsideration

We have a discretion, where there is a special reason to accept a late reconsideration application.

We can only make a determination where your client would be deprived of the right to a fair trial because of the amount of the fixed payments payable for the criminal legal assistance you are to provide.

This test reflects the terms of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and has been discussed in a number of cases in the context of fixed payments culminating in Buchanan -v-McLean 2001 SLT 780. Articles 6(1) and 6(3) state:

Article 6(1) – Right to a fair trial

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 

Article 6(3)

Your client is entitled to the following minimum rights:

• To be informed promptly and in detail of the nature and cause of the accusation

To have adequate time and facilities for the preparation of their defence:

• To defend themselves in person or through legal assistance

• To have witnesses examined under the same conditions as witnesses against them

• To have the free assistance of an interpreter if they cannot understand or speak the language used in court

As Lord Clyde observed in Buchanan -v-McLean 2001 SLT 780, at paragraph 56 of the Judgement:

“…the particular rights set out in Article 6(3) are all facets or non-exhaustive examples, of the overarching right to a fair trial set out in Article 6(1).”

Lord Clyde refers to a case Artico -v- Italy where it was observed that:

“when compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten, nor must it be severed from its roots”.

In short, although we will take into account arguments based on these particular “facets”, the test to be applied remains whether the individual will be denied the right to a fair trial, set out in Article 6(1).

Crucial to the determination of the requirement to have exceptional case status conferred is the solicitor’s expressed opinion as to why, in the particular circumstances of the case, the client will be deprived of the right to a fair trial.

In order to help us make a determination, you should refer to the reasons why your client will be deprived of the right to a fair trial.

If we agree that a case is exceptional, the whole case will be subject to a detailed (time and line) account instead of fixed payments.

If legal aid has been transferred, this applies not only to you but also to any previous solicitor who acted for the client.  We cannot accept any fixed payment account from any solicitor who has acted or who will act in that case.