The Criminal Legal Assistance (Fees and Information Etc.) (Scotland) Regulations 2008

The Criminal Legal Assistance (Fees and Information Etc.)(Scotland) Regulations 2008

As amended by:

The Criminal Legal Assistance (Fees) (Scotland) Regulations 2010 [S.S.I. 2010 No.270]

The Criminal Legal Assistance (Fees) (No. 2) (Scotland) Regulations 2010 [S.S.I. 2010 No. 312]

The Criminal Legal Assistance (Fees) (Scotland) Regulations 2011 [S.S.I. 2011 No. 333]

The Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 [S.S.I. 2017 No. 466]

The Criminal Legal Aid and Advice and Assistance (Counter-Terrorism and Border Security) (Scotland) Regulations 2021 [S.S.I. 2021 No 55]

Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022 [S.S.I. 2022 No 30] in force from 1st April 2022

The Criminal Legal Assistance (Fees and Information Etc.)(Scotland) Regulations 2008

SSI 2008 No 240

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 12(3), 33, 36(1), (2)(a), (e) and (g) and 41A of the Legal Aid (Scotland) Act 1986 and all other powers enabling them to do so.

Citation, commencement and application

   1.—(1)   These Regulations may be cited as the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008 and come into force on 30th June 2008.

   (2)   Regulations 2, 3, 6, 7 and 8(1) apply only in relation to a case where the criminal legal assistance concerned is granted or made available on or after 30th June 2008.

   (3)   Regulation 4 applies only in relation to a case where the criminal legal assistance concerned is made available on or after 30th June 2008.

Interpretation

   1A.—   In these Regulations—

“court holiday” means a day prescribed as such (including an additional court holiday) in accordance with section 8(2) of the Criminal Procedure (Scotland) Act 1995; and

(b)   knowingly made a false statement or representation, or wilfully failed to disclose a material fact, in relation to such a requirement.

Criminal legal aid and assistance by way of representation

   2.—   [Omitted – regulation 2 made provision for amendment of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 ]

Advice and assistance

   3—   [Omitted – regulation 3 made provision for amendment of the Advice and Assistance (Scotland) Regulations 1996 ]

Duty solicitors

  4.—   [Omitted – regulation 4 made provision for amendment of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989]

Supply of information by assisted persons etc.

   5.—(1)   A person who is receiving, or has received, criminal legal assistance must supply the Board with such information (including documents) as the Board may require from the person for the purposes of performing its functions under the Legal Aid (Scotland) Act 1986.

(2)   The Board may recover from the person any amounts that have been paid out of the Fund in respect of the fees and outlays of the person’s solicitor in the case (and, if counsel is acting, of counsel) if the person has—

(a)   wilfully failed to comply with a requirement made under paragraph (1) above; or

(b)   knowingly made a false statement or representation, or wilfully failed to disclose a material fact, in relation to such a requirement.

   (3)   In this regulation, reference to counsel includes reference to a solicitor advocate

Withholding payment in certain summary criminal matters

   6.—(1)   Paragraphs (2) and (3) apply where, under the Legal Aid (Scotland) Act 1986—

(a)   advice and assistance has been provided in relation to a criminal matter or assistance by way of representation has been provided in relation to a summary criminal matter; and

(b)   the Board finds that the provision—

(i)   was not (wholly or partly) in accordance with the relevant rules applying by virtue of that Act; or

(ii)   was otherwise unjustified in the circumstances of the case (including by reason of inadequate assessment or verification of any relevant factor).

   (2)   In considering whether or not the provision was in accordance with those rules, the Board may have regard to any relevant guidance it has issued in relation to their application.

   (3)   The Board may—

(a)   withhold (wholly) payment from the Fund in respect of the provision; or

(b)   if such payment has been made, fully recover it.

Single payment in summary criminal cases

   7.—(1)   Paragraphs (3) and (4) apply where, under the Legal Aid (Scotland) Act 1986, more than one relevant type of criminal legal assistance is made to the same person in respect of the same matter

(2)   Here, the relevant types of criminal legal assistance are (in order from first to third)—

(a)   advice and assistance (whether concerning a fixed penalty, compensation or work offer under section 302, 302A or 303ZA of the Criminal Procedure (Scotland) Act 1995 or any complaint or otherwise);

(b)   assistance by way of representation in relation to summary criminal proceedings;

(c)   criminal legal aid in relation to summary proceedings.

   (3)   Where the first and second types of assistance are provided (but not the third type), any entitlement to payment in respect of fees and outlays attributable to the provision (or payment of any fixed fees) is restricted to payment in respect of the second type.

(4)   Where the third type of assistance and either or both of the first and second types are provided, any entitlement to payment in respect of fees and outlays attributable to the provision (or payment of any fixed fees) is restricted to payment in respect of the third type.

(5)   However, paragraphs (3) and (4) do not affect any entitlement to separate payment in respect of—

(a)   the provision of advice and assistance to a person to whom section 32 (right to have solicitor present) of the Criminal Justice (Scotland) Act 2016 applies;

(aa)   the provision of assistance by way of representation to a person who:—

(i)   applies for a review of conditions under section 19 of the Criminal Justice (Scotland) Act 2016;

(ii)   applies for a review of a condition of an undertaking under section 30 of the Criminal Justice (Scotland) Act 2016; or

(iii)   is the subject of an application for authorisation for questioning by a prosecutor under 36(1)(a) of the Criminal Justice (Scotland) Act 2016;

(ab)   the provision of advice and assistance to a person to whom:—

(i)   paragraph 16(6) of schedule 8 of the Terrorism Act 2000 applies;

(ii)   paragraph 37(6) of schedule 3 of the Counter-Terrorism and Border Security Act 2019 applies;

(ac)   the provision of assistance by way of representation in proceedings in connection with an application for a warrant of further detention, or for an extension of such a warrant, under paragraph 29 or 36 of Schedule 8 of the Terrorism Act 2000

(b)   an appeal under section 174(1) of the Criminal Procedure (Scotland) Act 1995.

(c)   any supplementary fee payable to a solicitor for a holiday court sitting under regulation 6 or schedule 1 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, schedule 3 of the Advice and Assistance (Scotland) Regulations 1996 or schedule 1B of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999.

   (6)   Accordingly—

(a)   any requirement of the Board to make payment to a solicitor is (by reference to this regulation) qualified;

(b)   if the total of any payments made from the Fund exceeds that which is allowed by virtue of this regulation, the Board may recover the excess.

   (7)   The Board may disregard any claim by a solicitor for payment in respect of the first type of assistance until such time as it believes that provision of the second or third type will not be (or is unlikely to be) required in respect of the same matter.

Miscellaneous

   8.—(1)   ) The Advice and Assistance (Scotland) Amendment (No. 2) Regulations 2006 are revoked.

(2)   Any reference in the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 —

(a)   to the JP court means the justice of the peace court;

(b)   to that court includes any remaining district court.

KENNY MACASKILL

A member of the Scottish Executive,

St Andrew’s House, Edinburgh

6th June 2008