Excluded proceedings  

“Excluded proceedings” are listed in regulation 2(1) of the regulations, currently at paragraphs (a) to (o).

Excluded proceedings can arise under ABWOR, in certain circumstances, as well as in criminal legal aid.

Excluded proceedings, as the name suggests, are not included within the fixed payments regime. They are not relevant criminal legal aid or ABWOR provided by a solicitor in relation to summary proceedings other than excluded proceedings.

Regulations 4(1) and (1C) of the fixed payments regulations, prescribing fixed payments  and the associated structure such as splits on transfer of a certificate, do not apply.

You should prepare and lodge a detailed account.

If the work was done under automatic criminal legal aid, the proceedings are excluded if legal aid was only available by virtue of the automatic arrangements, see (b) to (e) and (k) below.

In other words, providing automatic criminal legal aid does not necessarily mean you are entitled to free-standing detailed fees. If the case proceeds to a grant of summary legal aid or ABWOR is provided, all work is subsumed within the fixed payment.

There can be no “mix and match” of detailed fees and fixed payments in connection with the same proceedings.

The main features of excluded proceedings are:

• excluded proceedings are chargeable on a detailed basis, not by way of fixed payments
• excluded proceedings, for example a solemn case reduced to summary, do not have to include proceedings arising out of another complaint or separate proceedings in the circumstances set out in regulation 4(3)(b)
• the percentage split on the transfer of a certificate do not apply to the extent that any of the proceedings are excluded.

It may be helpful to consider the different proceedings, in the order in which they are listed in the legislation.

Summary proceedings arising following a reduction from solemn proceedings

Regulation 4(2)(d) of the criminal regulations provides that the distinct proceedings specified in paragraph (1) shall include, “….any proceedings up to and including the first hearing of the complaint where a charge is reduced from solemn to summary proceedings and, if a plea of guilty is tendered, thereafter to the conclusion of the case…”.

Where the accused person tenders a plea of guilty on a complaint being served, we will expect one detailed criminal account for all the work undertaken in the case, the work in connection with the summary complaint being charged at the summary rates prescribed at Schedule1, Part 1 to the criminal fees regulations.

Where the accused tenders a plea of not guilty, and we grant summary criminal legal aid, you should prepare two detailed criminal accounts: one in connection with the solemn proceedings, the other in connection with the subsequent summary proceedings.  The accounts should be lodged together, where possible.

Proceedings in relation to which legal aid is only available by virtue of section 22(1)(a) of the Act (identification parades held by or on behalf of the prosecutor in contemplation of criminal proceedings).

The reference to only in this paragraph, and also at paragraphs (c), (d), (e) and (k) below, is crucial.

If legal aid was only available by way of automatic criminal legal aid under this provision, it is separately chargeable in a detailed account.

If not, and other work was undertaken in connection with the proceedings  under a summary criminal legal aid or ABWOR certificate, the work shall form part of the fixed payments chargeable to the case.

It is no longer “excluded” in terms of regulation 2. You cannot mix detailed fees with fixed payments in terms of the 1986 Act.

In these particular circumstances, if you have to attend at an identification parade and there is no further procedure that leads to a fixed payment under ABWOR or summary legal aid, you can lodge a detailed account at the fee rates set out in regulation 5(b) of the criminal fees regulations.

On the other hand, if the case proceeds to work chargeable under fixed payments, this work shall be included within the fixed payments and is not separately chargeable.

The exception to the rule is where we have determined, applying the criteria prescribed at regulation 4A of the fixed payment criteria, that this is an exceptional case.

In these circumstances, the work still forms part of the relevant summary legal aid or ABWOR, but the case itself is chargeable on a detailed basis. The work carried out under automatic legal aid can be included in your account.

Proceedings in relation to which legal aid is only available by virtue of section 22(1)(c) of the Act (assisted person in custody or liberated by police on undertaking to appear), except where those proceedings are before a court which has been designated as a drug court by the Sheriff Principal

This is a type of automatic criminal legal aid that allows the duty solicitor to provide criminal legal aid to an accused person, at the fee rates set out in regulation 6 of the criminal fees regulations, and is excluded proceedings if criminal legal aid was only available under this provision.

The reference to the drug court simply allows any solicitor to provide cover by way of fixed payments at the initial custody stage in drug court proceedings (under the original Glasgow model), where the exclusive jurisdiction of the duty solicitor has been removed.

The “proceedings” to which reference is made may include a second or subsequent complaint arising out of the same incident.

If, as the duty solicitor, you take instruction from an existing client for whom you are acting under criminal legal aid or ABWOR in connection with proceedings arising from the same incident, you cannot take any further payment under the duty scheme.

Proceedings in relation to which legal aid is only available by virtue of section 22(1)(da) of the Act (plea of insanity in bar of trial)

Again the general rule applies whereby you can only charge separately for work on a detailed basis if legal aid was only available under the automatic criminal legal aid arrangements.  A detailed account is not competent if any other work in the proceedings was carried out under fixed payment summary criminal legal aid or ABWOR.

Proceedings in relation to which legal aid is only available by virtue of section 22(1)(db) of the Act (examination of facts)

Proceedings in relation to which legal aid is made available by virtue of regulation 15 of the Criminal Legal Aid (Scotland) Regulations 1996 (matters of special urgency)

This paragraph provides that proceedings where legal aid is made available by virtue of regulation 15, the criminal special urgency provisions, shall be excluded proceedings. You are entitled to lodge a detailed account.

The provision does not refer to part or that part of the proceedings, nor does it in any way try to distinguish the special urgency part of proceedings from any other part of the proceedings.  It follows that the whole account is payable on a detailed basis if criminal legal aid or ABWOR is subsequently granted for the same proceedings.

Any reference in connection with proceedings under article 267 of the Treaty of the Functioning of the European Union.

We are unaware of any case raising this issue.  If such proceedings arise, we are satisfied that these would be separate from the summary court proceedings, chargeable by way of a detailed account in addition to any fixed payments due.

Any reference on a devolution issue under paragraph 9 of Schedule 6 to the Scotland Act 1998

This paragraph has largely been succeeded by the legislation introducing the compatibility minute, see (m) below, but may still be competent where the issue is whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible other than in relation to any of the client’s Convention rights or with EU law.

Most devolution matters, in our experience, proceed to the High Court on appeal and the work involved is included within the fixed payments.

If a devolution issue does proceed by way of a reference, you should prepare and lodge a detailed account.  All work in connection with raising a devolution issue forms part of the lower court proceedings and is included within the core fixed payment or case disposal fee.  Only the work in the High Court or in the UK Supreme Court is separately chargeable. Counsel’s fees are always separately chargeable.

Proceedings under section 9 of the Extradition Act 1989

You should prepare and lodge a detailed account under Schedule 1, Part 1 (summary column) for all work undertaken in an extradition case.

Proceedings under section 5 of the International Criminal Court Act 2001

If such proceedings arise, they are separate from the summary court proceedings, chargeable by a detailed account in addition to any fixed payments due.

Proceedings in relation to which legal aid is only available by virtue of section 22(1)(dd) of the Act (where solicitor appointed by court for person accused of a sexual offence or case involving  child witnesses or vulnerable witnesses).

Again, as in paragraphs (b) to (e) above, this work is chargeable on a detailed basis if legal aid  was only available in the proceedings through the automatic availability provided under 22(1)(dd).  The general rule is that we cannot pay an account on a detailed basis if summary criminal legal aid or ABWOR was already available in the same proceedings.

Proceedings in an appeal [to the High Court] under section 174(1) (appeals relating to preliminary pleas) of the 1995 Act

ABWOR is available for an appeal to the High Court under section 174(1) of the 1995 Act arising from a plea to the competency, relevancy or a plea in bar of trial.

The work in connection with the proceedings in the High Court is separately chargeable by way of a detailed account in addition to the fixed payments prescribed in Schedule 1B.  All work in connection with the plea in the lower court is included within the fixed payments.

Any reference on a compatibility issue under section 288ZB (1) or (2) of the 1995 Act

As in paragraph (h) above, most compatibility matters, in our experience, proceed to the High Court on appeal and the work involved is included within the fixed payments.

If a compatibility issue does proceed by way of a reference, you should prepare and lodge a detailed account.  All work in connection with raising a compatibility issue forms part of the lower court proceedings and is included within the core fixed payment or case disposal fee.  Only the work in the High Court or in the UK Supreme Court is separately chargeable. Counsel’s fees are always separately chargeable.

Where a client to whom section 32 of the Criminal Justice (Scotland) Act 2016 applies has exercised a right to have a solicitor present while being interviewed in terms of section 32(2) of that Act or a right to consultation under section 44 of that Act, fees may be charged in accordance with Schedule 3, Part IV of the Advice and Assistance Regulations.

Where there has been an application for authorisation for questioning by a prosecutor under section 36(1)(a) of the Criminal Justice (Scotland) Act 2016, fees may be charged in accordance with Schedule 3, Part III, Paragraph 3 of the Advice and Assistance Regulations.

Most procedures before the High Court in connection with a devolution or compatibility issue do not proceed as a reference but, instead, as an appeal taken by either the defence or the Crown, depending on the outcome of the proceedings before the sheriff.

Regulation 2, paragraphs (h) and (m) provide only that a reference on a devolution or compatibility issue are excluded proceedings, not the proceedings (in general terms) arising from a devolution issue.

In terms of regulations 4(1) and (1C), the solicitor providing relevant criminal legal aid or relevant ABWOR in summary criminal proceedings shall be paid the fixed payments prescribed in Schedules 1, 1A or 1B for professional services and any outlays, as specified in regulation 4(2), incurred.

Also, the relevant legislation in connection with devolution and compatibility minutes recognises both a reference and an appeal. Therefore, a reference is not the same as an appeal.

It follows that there is no additional remuneration for a devolution or compatibility issue proceeding to the High Court by way of appeal.  Only work in connection with a “reference” is chargeable on a detailed basis, and therefore all work in connection with the remainder of the case remains within the core fixed payment or case disposal fee.

A “procedural appeal” is a shorthand reference to any appeal other than an appeal to the High Court of Justiciary against conviction, sentence, other disposal or acquittal where referred to in regulation 4(f) of the criminal regulations and thus not “distinct proceedings” for which an appeal certificate can be made available.

A procedural appeal to the High Court of Justiciary, not falling within the category of appeals following final disposal, is subsumed within the core fixed payment or case disposal fee. The type of appeal affected can include a Bill of Suspension challenging a warrant or, in certain circumstances, a Bill of Advocation challenging a procedural irregularity which may deprive the accused of a fair trial prior to the verdict being pronounced.

This category also includes an appeal to the High Court against the court’s refusal or grant of a devolution or compatibility minute.