https://www.slab.org.uk/guidance/solicitors-fees-for-identification-parades-judicial-examinations-and-duty-scheme/
https://www.slab.org.uk/guidance/solicitors-fees-for-identification-parades-judicial-examinations-and-duty-scheme/
Where you provide legal aid at an identification parade held, by or on behalf of the prosecutor, in connection with or in contemplation of criminal proceedings against the person, you are entitled to the following fees:
For attending an identification parade other than in solemn criminal proceedings:
Although not expressly stated, the higher prescribed fees are only applicable in relation to an identification parade in respect of solemn criminal proceedings given that the lower fees apply to ID parades “other than in solemn criminal proceedings” (i.e. summary criminal proceedings).
VIPER parades normally consist of two separate attendances:
The same fees apply regardless of the purpose of the attendance by the solicitor, that is, composition or conduct. Equally, in circumstances where the identification parade extends into a third or subsequent attendance due to a stage not being completed as anticipated the same fees would apply.
Where an attendance at an identification parade is required on more than one occasion, each attendance is payable as a separate identification parade.
A reference to “solicitor” means the duty solicitor or, where criminal legal aid may be provided by a solicitor other than the duty solicitor, the nominated solicitor.
It is important that you are aware of the circumstances when the identification parade fees above can be paid in relation to summary criminal proceedings.
You are only (save for where the case has been granted exceptional case status) entitled to payment of the above fees where they are “excluded proceedings” as listed in Regulation 2(1) of the fixed payment regulations. Excluded proceedings can arise under ABWOR, in certain circumstances, as well as under criminal legal aid.
In the context of summary criminal legal aid, identification parades are “excluded proceedings”. These are proceedings in relation to which legal aid is only available by virtue of the provision for automatic legal aid under 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 is crucial in determining whether the identification parade fees can be paid. Where legal aid is only available by way of automatic criminal legal aid, it is separately chargeable.
However, in summary cases, the separate identification parade fee can only be paid where the case does not proceed to a grant of legal aid or ABWOR. In the event it does proceed to a subsequent grant of legal aid or ABWOR, you cannot be paid separately for this work as it will form part of the work included within the fixed payment fee, which is payable. In any such case it no longer meets the test for being “excluded” and you cannot mix detailed fees with fixed payments in terms of Section 33(3B) of the Legal Aid (Scotland) Act 1986 (‘the Act’).
Similarly, if the ID parade is being held after a grant of summary legal aid or ABWOR), then again, for the same reasons as stated above, the work is included within the case disposal/fixed payment fee, whichever is appropriate and it would not be separately chargeable.
The other exception is where we have determined, on application by the solicitor, that the criteria prescribed at Regulation 4A of the fixed payment regulations has been met and the case is deemed to be ‘exceptional’. In these circumstances, the work in relation to the identification parade still forms part of the relevant summary legal aid or ABWOR account but it would then be chargeable on a detailed basis. You may charge the fees in respect of ID parade attendances, in addition, to the detailed fees chargeable in the case.
There are two tests that must be met before you can charge the fees prescribed in regulation 5(1). They are:
You are entitled to charge for the actual time engaged in travelling to and from, and attending at the identification parade (either stage of the process) until you return to the office or home, whichever is closest.
If the identification parade exceeds an hour you are entitled to an additional payment for each subsequent quarter hour at the relevant prescribed rate.
Where there is more than one identification parade the fee for the first hour is payable for each separate attendance.
Where you require to attend an identification parade elsewhere in the UK or abroad, the fees payable and approach to assessment must be applied in the same way. Clearly in such instances there will be substantially greater travel time and outlays involved than a local attendance and it is important that when making your claim that you provide us with an adequate level of detail and relevant vouching to allow us to assess the reasonableness of the sums claimed. The aim is to provide payment as quickly as possible and providing the necessary information up front will help us achieve this aim.
Ordinarily travel time to and from the police station (or any other location where the parade takes place) will be absorbed, either completely or partially, within the inclusive fee payable for the first hour. However, where any travel time is additional to the first hour of time it is chargeable at the rate specified in regulation 5 for each subsequent quarter hour.
The travel rates specified in paragraph 5A of Part 1 of Schedule 1 or paragraph 8 of Part 1 of Schedule 1A do not apply given the prescribed fees for identification parade work are provided for separately in terms of Regulation 5 of the Criminal Legal Aid (Scotland)(Fees) Regulations 1989, and they accordingly fall outwith the scope of Schedule 1 or 1A.
Travelling and, where appropriate, accommodation expenses actually and reasonably incurred are payable in addition to the fees. Accommodation expenses, although very unusual, would be chargeable if say the identification parade was held abroad or at a distant location from your place of business.
Travel outlays will be considered subject to the test of reasonableness and the principle of due regard being had to economy.
Where the identification parade does not actually proceed the fees as specified in regulation 5 do not apply. Section 21(4)(b) of the Act requires that the identification parade has to have been held.
Where the parade is not held, you are not entitled to fees under the duty scheme, or under a summary case (other than where the criteria prescribed at Regulation 4A of the fixed payment regulations has been met and the case is ‘exceptional’ and payable by way of detailed fees) where the identification parade is not held.
You must provide a succinct narrative where the parade is not held to allow us to consider a reasonable fee. If the reason that the parade does not take place is due to an oversight, unexplained delay etc. on your part we will disallow any such charges.
Subject to the above, where an identification parade is not held you may be entitled to reasonable travel fees on the basis of the detailed fees prescribed under Part 1 of Schedule 1 or Part 1 or 2 of Schedule 1A, as appropriate.
Where your substantive account is being charged under Schedule 1 and Part 1 of Schedule 1A, in addition to travel time you may be entitled to payment for other work actually and reasonably done, in attending the identification parade. For example, discussions with the officer conducting the parade to ascertain the reason the parade was unable to proceed and when it can proceed. A succinct reason should be provided in support of any such charge to allow us to consider payment of the work.
Where your account is being charged under Schedule 1, any other work that is undertaken during the time covered by inclusive fee 1 is included in the block fee payable.
Where your account is being charged under Part 2 of Schedule 1A, any other work that is undertaken is included in the fees that are payable to the solicitor for the case.
You cannot charge waiting time for any identification parade which is not held as paragraph 4 of the Notes on the operation of Schedule 1 or paragraph 15(1) of the Notes on the operation of Schedule 1A, makes it clear that a “fee for time spent waiting is chargeable only for time necessarily spent waiting at court for a hearing…”.
In circumstances where a solicitor does not attend the identification parade and an unqualified assistant attends on your behalf, the identification parade fees are not payable as section 21(4) of the Act is only applicable when representation at the parade (whatever stage) is provided by a solicitor
Where your account is being charged under Schedule 1 or Part 1 of Schedule 1A (proceedings to which regulation 7A(1) (solemn proceedings (exceptional) fees) applies) you may claim for work actually and reasonably done, and travel time actually and reasonably undertaken, due regard being had to economy in attending the identification parade in accordance with the solicitor’s clerk rate.
However, where your account is being charged under Part 2 of Schedule 1A, only fees in respect of reasonable travel time will be payable in accordance with the solicitor’s clerk rate. Any other work that is undertaken in relation to the identification parade is included in the fees that are payable for the conduct of the case.
Where a solicitor’s clerk attends at an identification parade which is not held the same limitations on payments apply as set out above in relation to solicitor’s fees.
The guidance immediately above applies where a third party has been instructed to attend the identification parade on your behalf (for example, Viper Assist, etc.) and they are conducted by a solicitor or non-solicitor as the case may be.
If we are in any doubt as to the status of the person who has attended we will ask you to confirm that you are seeking payment at the correct rates.
Regulation 5(5) of the Criminal Legal Aid (Scotland)(Fees) Regulations 1989 (‘Fees Regulations’) makes provision for fees payable to the duty solicitor, if required, when you are representing an accused person appearing under section 35 of the Criminal Procedure (Scotland) Act 1995. The fees are payable in:
Where you go on to be instructed as the accused person’s nominated solicitor in respect of the same proceedings and therefore become entitled to the fee payable under paragraph 1 of Part 2 of the Table of Fees in Schedule 1 (the block “petition fee”), no fee is payable under these provisions.
Regulation 6 of the Fees Regulations prescribes the fees payable when you are acting as duty solicitor and representing accused persons first brought before a court.
The fees which apply are dependent on how the accused pleads and whether that accused is the first or subsequent accused person to appear within the relevant session.
Duty solicitors representing accused person(s) in the sheriff or JP court, when appearing from custody or following liberation on a police undertaking to appear, are entitled to the following fees:
The sessional fee covers the appearance at court as well as any interviews with the client or others during the same or any other session.
You are also entitled to payment at the above sessional rates where you see a client in custody but prior to any court appearance the client is released, the case is transferred or where the client accepts any diversion from prosecution.
Although this happens infrequently you should be aware that the sessional fee which is payable still forms part of the maximum session fees that are in operation.
“Session” has a particular meaning in the context of the fees regulations, as a block of work carried out during the period when you are acting as duty solicitor.
We ordinarily expect the court to declare a new session, if appropriate. However, in circumstances where the court have not done so and you have acted on behalf a number of clients that would result in the total maximum session fee being exceeded a new session can be commenced.
Where you are required to appear at a holiday court sitting for a person appearing from custody on the day on which that person is first brought to a court to answer a complaint, a supplementary fee of £88.16 is payable in respect of that case. The supplementary fee is not taken into account in relation to any of the maximum fee limits which apply to duty work.
“Holiday court sitting” means a sitting of a sheriff court on a court holiday, a Saturday or a Sunday by virtue of an order under section 28 or 29 of the Courts Reform (Scotland) Act 2014.
“Court holiday” means a day prescribed as such (including an additional court holiday) in accordance with section 8(2) of the 1995 Act.
Following the initial appearance from custody or on an undertaking to appear, other than when the accused tenders a plea of not guilty (which will ordinarily result in an application for full legal aid), further appearance(s) may be required.
In the event of a guilty plea at the original appearance, a further attendance may be required for the purpose of a deferred sentence. Similarly, in the event of the original appearance resulting in the case being continued without plea under section 145 of the Criminal Procedure (Scotland) Act 1995, further appearances may be necessary where the court orders further adjourned hearings.
In the event of either circumstance arising, an additional fee is payable for:
at the rates prescribed under Schedule 1, Part 1 of the Fees Regulations, subject to a maximum total fee of £276, unless we have granted prior approval for an uplift.
You should be aware that the guilty fee of £87.61 forms part of the total maximum fee but any payment made in respect of the initial adjournment under section 145 of the 1995 Act does not require to be discounted in the same way.
We will assess these charges in accordance with the taxation standard that the work was actually and reasonably done, due regard being had to economy in accordance with the fees prescribed in Schedule 1, Part 1.
Our policy for sums higher than the prescribed limit is that we will pay as reasonable a charge where the solicitor has provided information upon which we can reasonably assess that:
Our policy is that a charge is ‘usual’ if it accords with historical precedent, currently accepted practice or patterns of charging for the particular area of work, particular case, or work item. The particular area of work is bounded by case type and, where applicable, court or tribunal procedure.
Our policy is that where a charge is ‘usual’ we require a narrative justification for the charge and that this was an appropriate amount of time or effort actually spent on a work item.
Where a charge is within a usual range, the factors we will assess if the charge is reasonable are:
Our policy is that a charge is unusual if it doesn’t accord with historical precedent, currently accepted practice or patterns of charging for the particular area of work, particular case, or work item.
If a charge is ‘unusual’, the factors we will use to determine whether the charge is reasonable will include the usual factors above and also:
For a charge in an unusual range, the solicitor and counsel requires to provide additional evidence either in terms of a detailed narrative or documentation that supports the claim.0
When your client is first brought before a court to answer to a complaint, any preliminary plea will ordinarily be submitted before a plea of guilty or not guilty is tendered. Regulation 6(3) of the Fees Regulations allows you when acting as duty solicitor to provide representations for the following:
We will calculate payment for any work done on the basis of the fees set out in Schedule 1, Part 1 of the Fees Regulations and shall not exceed £180, unless we have granted prior approval for an uplift.
In the event that the resolution of the preliminary matter allows a plea to then be tendered, payment can be made in accordance with the prescribed sessional and duty follow-up fees, where appropriate.
The maximum total fee payable in respect of duty follow-up work or work in relation to a preliminary matter can be subject to increase where we have granted an uplift. We will authorise a new higher limit which cannot be exceeded unless you make and we approve a subsequent request.
Applications for prior approval must be made to the Criminal Applications Department not Accounts Assessment.
Where an uplift request is approved, any guilty plea or any sessional fees that have been previously paid do not require to be discounted, or form part of, the new higher limit.
Similarly, you are not restricted to charges only in respect of additional interviews with the accused or others and attendances at court. This regulation affords us a wide discretion allowing us to pay what we consider “…appropriate in the circumstances of the case”. Accordingly, subject to the normal tests of taxation, you can charge for work actually and reasonably done, due regard being had to economy, subject to the fees being charged in accordance with Schedule 1, Part 1 of the Fees Regulations.
Where an uplift on the case limit is granted, at the point of submitting your account, you should notify Accounts Assessment directly to inform us of the increase.
At present the online system deducts the previous payment made in respect of the initial guilty appearance and this cannot be manually adjusted.
However, by notifying us directly, we will manually adjust and rectify the shortfall in payment as part of the assessment process thus ensuring prompt payment and reducing the need for any post assessment correspondence.
The general position is that travel time and/or travel expenses in respect of your attendance as duty solicitor is not payable separately (Regulation 6(3B) of the Fees Regulations).
However, we have discretion to consider payment for reasonable fees for travel where this is required for the purpose of securing the availability of a duty solicitor at a remote court.
Where you attend as duty solicitor at any of the above courts designated as such by the sheriff principal, the fees payable are not subject to the maximum total session fee limits which apply under the duty scheme.
You are entitled to the £87.61 payment for a guilty plea in connection with a failure to appear charge (sections 27(1)(a), 28 or 150(8) of the Criminal Procedure (Scotland) Act 1995), but only if there is a separate complaint.
This fee is not chargeable if the client already has criminal legal aid or a there is a grant of ABWOR active in the proceedings.
When the accused person is remanded in custody and a Bail Appeal is marked, the work done in respect of this (including, where appropriate, any Edinburgh agents work) can be charged for in addition to any necessary follow-up work. The work in connection with the bail appeal is chargeable on a detailed basis at the rates prescribed in Schedule 1, Part 1, of the Fees Regulations.
This work is not subject to the limits which apply to the duty follow up work either in terms of maximum fees or in respect of the types of work allowable and the work will be subject to the usual tests of reasonableness.
Bail appeals will be heard in either the High Court or Sheriff Appeal court and will normally result in counsel being instructed to conduct the appeal. Counsel’s fees do not require to be included in your account and they should be submitted directly to the Accounts Specialists at faculty@slab.org.uk.