Citation and commencement

1.  These Regulations may be cited as the Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 and come into force on 25th January 2018.

Application

2.  These Regulations do not apply to a person detained or arrested before 25th January 2018.

Amendment of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989

3.-(1) The Criminal Legal Aid (Scotland) (Fees) Regulations 1989(4) are amended as follows.

(2) After regulation 4(1) insert-

"(1A) Where-

(a)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, or

(b)there has been an application for authorisation for questioning by a prosecutor under section 36(1)(a) of that Act,

solicitors are to be paid in accordance with the fees prescribed in Parts III and IV of schedule 3 of the Advice and Assistance (Scotland) Regulations 1996.".

(3) In regulation 11(1) (disputes as to allowable fees or outlays)-

(a)in paragraph (a), omit "or the Sheriff Appeal Court,";

(b)in paragraph (b), omit "or"; and

(c)after paragraph (b) insert-

"(ba)the Sheriff Appeal Court, the matter shall be referred for taxation to the auditor of the Sheriff Appeal Court; or".

Amendment of the Advice and Assistance (Financial Limit) (Scotland) Regulations 1993

4.  In regulation 3(c) of the Advice and Assistance (Financial Limit) (Scotland) Regulations 1993 (financial limit)(5), after sub-paragraph (ix) insert-

"(x)where the advice and assistance is for personal attendance by a solicitor and the client has exercised the right to a consultation in terms of section 44 of the Criminal Justice (Scotland) Act 2016, the sum of £225.00;

(xi)where the advice and assistance is for personal attendance by a solicitor and the client has exercised a right to have a solicitor present in terms of section 32(2) of the Criminal Justice (Scotland) Act 2016, the sum of £550;

(xii)where the advice by way of representation is for review of a condition under section 19 of the Criminal Justice (Scotland) Act 2016, the sum of £200;

(xiii)where the advice by way of representation is for review of a condition of an undertaking under section 30 of the Criminal Justice (Scotland) Act 2016, the sum of £200;

(xiv)where the advice by way of representation relates to an application for authorisation for questioning by a prosecutor under section 36(1)(a) of the Criminal Justice (Scotland) Act 2016, the sum of £200".

Amendment of the Advice and Assistance (Scotland) Regulations 1996

5.-(1) The Advice and Assistance (Scotland) Regulations 1996(6) are amended as follows.

(2) After regulation 4 (application for advice and assistance), insert-

"Applications for advice and assistance: further provision

4A.  The requirement in regulation 4 for an application for advice and assistance to be signed does not apply in the case of a client to whom section 32 (right to have a solicitor present) of the Criminal Justice (Scotland) Act 2016 applies.".

(3) In regulation 14A (change of solicitor etc.), after paragraph (3) insert-

"(4) This regulation does not apply to proceedings under sections 19, 30 or 36(1)(a) of the Criminal Justice (Scotland) Act 2016.".

(4) In regulation 17 (fees and outlays of solicitors), after paragraph (1) insert-

"(1A) In the application of paragraph (1)(a) above to fees for work actually, necessarily and reasonably done in connection those matters described in-

(a)Part III of Schedule 3, the reference to Part I of schedule 3 in paragraph (1)(a) above should be read as a reference to Part III of schedule 3;

(b)Part IV of Schedule 3, the reference to Part II of schedule 3 in paragraph (1)(a) should be read as a reference to Part IV of schedule 3.".

(5) In the Table of Fees in Part II of schedule 3 (table of fees allowable to solicitors)-

(a)delete paragraphs F and G;

(b)at the end insert-

"PART IIITABLE OF FEES ALLOWED TO SOLICITORS FOR ASSISTANCE BY WAY OF REPRESENTATION FOR PROCEEDINGS UNDER SECTIONS 19, 30 AND 36(1)(a) OF THE CRIMINAL JUSTICE (SCOTLAND) ACT 2016

A reference in this Table of Fees to a section is a reference to a section of the Criminal Justice (Scotland) Act 2016.

PART IVTABLE OF FEES ALLOWED TO SOLICITORS FOR ADVICE AND ASSISTANCE IN RELATION TO SECTIONS 32 AND 44 OF THE CRIMINAL JUSTICE (SCOTLAND) ACT 2016

Amendment of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999

6.-(1) The Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999(7) are amended as follows.

(2) In regulation 2(1) (interpretation), in the definition of "excluded proceedings", after (m) insert-

"(n)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;

(o)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;".

(3) In regulation 4(3)(b)-

(a)omit "22, 22ZA(1)(a),"; and

(b)after "the 1995 Act" insert "or paragraph 1(1)(b) of schedule 1 of the Criminal Justice (Scotland) Act 2016".

(4) In schedule 1, in paragraph 2 of Part 1 of the table of fees-

(a)omit "22ZA(1)(b), 22ZB or"; and

(b)after "the 1995 Act" insert "or paragraph 1(1)(a) or (c) of schedule 1 of the Criminal Justice (Scotland) Act 2016".

(5) In schedule 1A, in paragraph 2 of the table of fees-

(a)omit "22ZA(1)(b), 22ZB or"; and

(b)after "the 1995 Act" insert "or paragraph 1(1)(a) or (c) of schedule 1 of the Criminal Justice (Scotland) Act 2016".

(6) In schedule 1B, in paragraph 3 of Part 1 of the table of fees-

(a)omit "22ZA(1)(b), 22ZB or"; and

(b)after "the 1995 Act" insert "or paragraph 1(1)(a) or (c) of schedule 1 of the Criminal Justice (Scotland) Act 2016".

Amendment of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003

7.-(1) The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003(8) are amended as follows.

(2) After regulation 4 (application of Part II of the Legal Aid (Scotland) Act 1986 to assistance by way of representation: proceedings under the Criminal Procedure (Scotland) Act 1995), insert-

"Application of Part II of the Act to assistance by way of representation: proceedings under sections 19, 30 and 36(1)(a) of the Criminal Justice (Scotland) Act 2016

4A.  Part II of the Act shall apply to assistance by way of representation in relation to proceedings under sections 19, 30 and 36(1)(a) of the Criminal Justice (Scotland) Act  2016.".

(3) In regulation 13 (assistance by way of representation requiring approval of the Scottish Legal Aid Board)-

(a)in paragraph (1) for "and 5" substitute ", 4A, 5"; and

(b)after paragraph (3B) insert-

"(3C) The Board must only approve the provision of assistance by way of representation in relation to the proceedings in regulation 4A where it is satisfied that it is in the interests of justice.

(3D) The factors to be taken into account by the Board in determining whether it is in the interests of justice for the purposes of paragraph (3C) that assistance by way of representation be made available include whether-

(a)it is reasonable in the particular circumstances of the case that assistance by way of representation is made available;

(b)the case is too complex to allow the applicant to present it to the minimum standard of effectiveness in person; and

(c)it is in the interests of someone other than the applicant that the applicant be legally represented.".

Amendment of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008

8.  In regulation 7(5) of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008(9) (single payment in summary criminal cases), for sub-paragraphs (a) and (ab) substitute-

"(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;".

Amendment of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011

9.  For regulation 3 of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011(10) (duty solicitors: advice for suspect) substitute-

"3.  In the circumstances where the Board has arranged, in accordance with section 31(8) of the Act, that a solicitor is to be available for the purpose of providing advice and assistance to any person to whom section 32 (right to have a solicitor present) of the Criminal Justice (Scotland) Act 2016 applies-

(a)section 31(1) of the Act does not apply; and

(b)the advice and assistance referred to must only be provided by the solicitor so made available.".

Amendment of the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011

10.  For regulation 8 of the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011(11) (criminal advice and assistance: automatic availability in certain circumstances), substitute-

"8.  Advice and assistance is to be available without reference to the financial limits in section 8 of the Act for any person to whom section 32 (right to have solicitor present) of the Criminal Justice (Scotland) Act 2016 applies.".

Revocation

11.  The Criminal Legal Assistance (Fees) (Scotland) Regulations 2011(12) are revoked.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend several regulations made under the Legal Aid (Scotland) Act 1986.

Changes are made in consequence of the coming into force on 25th January 2018 of Part 1 of the Criminal Justice (Scotland) Act 2016 (arrest and custody) ("the 2016 Act"), which replaces existing provisions on arrest and detention. Related to that:

(a)transitional provision is made in regulation 2 for those persons that are arrested or detained on the 24th January and are still under arrest or detained on the 25th January when Part 1 of the 2016 Act comes into force;

(b)the fees payable for criminal legal assistance in respect of proceedings under Part 1 of the 2016 Act are set out in the Advice and Assistance (Scotland) Regulations 1996.

Regulation 3 amends regulation 11(1) of the Criminal Legal Aid (Scotland) Fees Regulations 1989 to specify the auditor of the Sheriff Appeal Court as the relevant auditor in relation to taxation in the Sheriff Appeal Court instead of the Auditor of the Court of Session.

A Business and Regulatory Impact Assessment has been prepared for these Regulations and placed in the Scottish Parliament Information Centre. Copies can be obtained from the Scottish Government Justice Directorate, St Andrews House, Edinburgh EH1 3DG.