Summary of Schedule 1 – Part 2 Drug Court

Part 2 prescribes two fixed payments payable for work done in the drug court under summary legal aid.

The fees reflect the scheme envisaged in the original Glasgow drug court pilot, prescribing a fee for work done where the accused person appeared from custody and was referred through an inter-agency approach direct to the drug court, and for subsequent appearances before the court per appearance.  Although it was recognised that some cases might proceed by a plea of not guilty and subsequently be remitted to the drug court, it was thought that this latter approach would be the exception. The exception would now appear to have become the rule, and cases now tend to be referred to the drug court at the sentencing stage following a plea of guilty or a finding of guilt following trial.  The first fixed payment is now rarely applied but the prescribed fee, per appearance, continues to apply.

Where your client is referred to a drug court you must continue to provide the same aid type and charge for the drug court appearances accordingly.

• where the original work was done under automatic criminal legal aid, you charge in terms of the fees set out in Schedule 1, Part 1 of the criminal fees regulations
• where your client is receiving summary criminal legal aid, having tendered a plea of not guilty, you continue to charge under Schedule 1, Part 2.

Where you are providing ABWOR, the client having tendered a plea of guilty, you continue to charge under ABWOR, see Schedule 1B, Part 2 below. You cannot provide a client with ABWOR for an appearance before the drug court where they were receiving criminal legal aid in the proceedings, or vice-versa.

Detailed fees are always chargeable in excluded proceedings or in a case determined by the Board to have exceptional case status.

A fixed payment is prescribed.

The fixed payment, prescribed by Schedule 1, Part 2 has always applied per appearance regardless of the number of cases calling before the drug court at the same time.  It does not matter how the case got to the drug court or whether it is before the court as a deferred sentence, a DTTO or in respect of any other order:

• you are paid per appearance before the court regardless of the number of cases calling
• you are paid the prescribed fee because the proceedings are before the drug court.

You are entitled to an enhanced fixed payment where the client is referred direct to the drug court, is remanded in custody and is at any time during that remand under 21 years of age.

To the extent that this fee remains relevant, a fixed payment is prescribed.

This payment is intended to remunerate you for all work carried out at the custody appearance and includes the first appearance before the drug court at a later date.  The custody court before which the individual appears is not the drug court.  The proceedings are adjourned for reports to a specific court designated as a drug court and presided over by a drug court sheriff.

The way in which legal aid cover is made available without reference to either us or the court at the initial stages is by extension of the automatic legal aid provided by section 22(1)(c) of the Act, the basis of work undertaken by the duty solicitor.  The exclusive jurisdiction of the duty solicitor was disapplied by the regulations in drug court cases.

The client’s solicitor of choice can admit the accused to advice and assistance to cover taking instructions and discussions with various agencies as to whether that person is an appropriate person to be referred to the drug court.  You can claim under advice and assistance if the client is not referred to the drug court.  If the client is referred to the drug court, all this work will be covered by the prescribed fixed payment (below).  You should submit a “no claim” under the A&A certificate unless you did some other work was done under advice and assistance (see below).

If you claim a fixed payment, it covers all work done at court on the day including taking instructions, advising the client and discussing the case with the various agencies, not just the appearance itself.  This is because the fixed payment covers all work done under section 22(1)(c) of the Act which provides automatic criminal legal aid “where [the accused] is being prosecuted under summary procedure…”.

On the other hand, although you are not entitled to claim separately for advice and assistance given during the day of the appearance, this would not include advice and assistance previously given to the client under the same grant, and otherwise chargeable,  say during the previous evening or weekend.  That work would not have been covered by section 22(1)(c) provisions as the client was not being prosecuted at that stage.

We understand that once someone has been referred to the drug court, arrangements may be made with the fiscal for other cases involving the accused to be referred to the drug court.  These cases would not automatically qualify for this fixed payment.  The fixed payment only relates to work done under section 22(1)(c) where the client is being prosecuted under summary procedure and is in custody (or has been liberated on an undertaking to appear).

Any other work would have to be covered either by any existing legal aid or ABWOR relating to that case or pro bono if that was the basis on which you were representing the client in an associated case.