Applicants not represented at the first custody appearance – case continued without plea and applicant remanded in custody

Question: The applicant was not represented at the first custody appearance, and is now seeking ABWOR after the case was continued without plea.

This could be because their own solicitor did not represent them at the initial custody appearance, which may have been a public holiday court, or they were brought to court late and the hearing did not take place on the day.

If they have been remanded in custody, can Appointed Solicitor ABWOR be provided for the subsequent appearance, assuming there is a prior solicitor/client relationship?

Answer : Yes. Appointed Solicitor ABWOR can still be granted for effectively day two of the initial custody appearance, but only where the client has not tendered a plea.

First diets are governed by s.144 of the Criminal Procedure (Scotland) 1995 Act, which states that the accused shall “unless the court adjourns the case under section 145 or 145ZA” be asked to plead to the charge.

Section 145 of the Criminal Procedure (Scotland) Act 1995 states that:

“Where the accused is present at the first calling of a case in a summary prosecution the court may, in order to allow for inquiry into the case or for any other cause which it considers reasonable, adjourn the case under this section for such period as it considers appropriate, without calling the accused to plead to any charge against him but remanding him in custody.”

Therefore, if the case is adjourned to allow somebody to speak to their solicitor they are not, in the eyes of the statute, being asked to plead to the charge at that first hearing. In addition, if a diet is adjourned by virtue of s.145, then that subsequent hearing is the “first calling.” (s.144 (9)).