ABWOR issues in fixed payment accounts

There are a number of issues due to the nature of ABWOR, and the fact that ABWOR is made available by the solicitor rather than the Board, that have to be kept in mind to ensure payment in due course.

Most importantly, ABWOR is always subject to sufficient, prospective increases in the level of authorised expenditure to cover the work undertaken in the case. This is particularly important in a case that has been granted exceptional case status.

Regulation 3(c) of the Advice and Assistance (Financial Limit)(Scotland) Regulations 1993 sets out the initial limits of authorised expenditure, beyond which you may need an increase or increases during the course of the proceedings. This cannot be done retrospectively.

Other issues are dealt with in the following three paragraphs.

Regulation 6 of the fees and information regulations allows us to refuse to pay an account lodged in connection with advice and assistance or ABWOR, or to recover such a payment, in circumstances where we consider that the grant was not in accordance with the relevant rules or was otherwise unjustified in the circumstances of the case (including because of the inadequate assessment or verification of income and capital).

This again formed part of the summary criminal legal assistance reform package in 2008 where inter alia an ABWOR case disposal fee was introduced in the former stipendiary magistrates and sheriff courts replacing the £70 ABWOR fee for a plea of guilty with a fixed payment at the same level as summary legal aid (currently £485).

The circumstances in which this can arise are

• where you have to apply the interests of justice test before making ABWOR available
• the circumstances in which you have acted as an appointed solicitor
• the assessment of an applicant’s financial eligibility for advice and assistance or ABWOR

If we are not satisfied that any of these tests were properly applied, resulting in an incorrect or inappropriate grant, we may in terms of the regulation

• withhold payment from the Fund, or
• fully recover any payment already made

An area where there continues to be some confusion in applying the relevant tests relates to the circumstances in which ABWOR can be provided as an appointed solicitor, see below.

It is a matter of regulation that reduced fixed payments may be chargeable in certain circumstances where your client is brought to court on two or more summary complaints on the same day. This provision is widely misunderstood.

The relevant provision is regulation 4(5A), and states:

“(5A) Where –

(a) a solicitor provides relevant ABWOR to an assisted person when, in the same court on the same day, that person is first brought before a court to answer to two or more summary complaints which are not to be treated as a single matter by virtue of paragraph (3); and

(b) a guilty plea is tendered to a charge libelled in any of the complaints at the first diet

at which the assisted person was called upon to plead, resulting in the disposal of the case, the amount payable under paragraph 1 of Part 1 of schedule 1B is 100% of the prescribed amount in respect of the first complaint, 40% of that amount in respect of the second complaint and 20% in respect of any other complaints”

As can be seen, this regulation provides for a reduced fee in the circumstances set out in sub-paragraph (a). It is important to note that

• A guilty plea need only be tendered to a charge libelled in any of the complaints leading to disposal of the case for the regulation to apply. The fact that the PF may accept a plea of not guilty in respect of one charge or some charges, or even an entire complaint, is not relevant and does not avoid the consequences of the regulation.
• Whilst the cases affected are those that are first brought to court on the same day, the plea need only be tendered at the first diet at which the AP is called upon to plead. That may not be on the same day and the provision would include a plea at a continued diet.

An example may be three ABWOR cases, first calling at the same pleading diet. In respect of the first complaint the accused pleads guilty to two charges and a plea of not guilty is accepted in respect of a third charge and also to the only charge on the second complaint. The third complaint is the subject of a CWP but at that hearing a plea of guilty is tendered.

All matters have been disposed of in terms of the regulation. The fees payable are 100%, 40% and 20% respectively.

The ABWOR appointed solicitor fee reflects the importance of an existing solicitor/client relationship as a result of which a client in custody is considered to be more likely to be able to make an early informed decision at the pleading diet stage. This implemented the “solicitor of choice” discussions in the course of criminal legal assistance reform. To this end you are entitled to act as appointed solicitor and claim the fee if certain criteria are met. These are clearly set out in regulation 7 of the duty solicitor regulations. Remember:

• If there are no proceedings, there can be no ABWOR. Only advice and assistance can be provided if, for example, the case is disposed of by a special measure or the client is released without a complaint being served
• ABWOR can only be provided by an appointed solicitor
• in a custody case
• where the client has had a prior solicitor/client relationship (see below) with the solicitor who seeks to act as an appointed solicitor or another solicitor who is connected to your firm, and
• where you have taken instructions directly from the client, and can act immediately at the pleading diet either in person or through another solicitor (who shall not be the duty solicitor)
• You can only delegate the representation, having taken instructions, to another solicitor (except the duty solicitor) in circumstances where you cannot reasonably attend because of
• illness or incapacity
• the arising (since instruction in relation to the appearance) of a professional obligation to act (in person) in another case that is to call elsewhere or around the same time; or
• another good reason

We will accept a High Court diet in a sitting, which proceeds, as “arising since instruction”

You must show, in delegating representation, that it would not have been possible for you to attend court, not simply that it was more convenient that someone else attend court on your behalf. The factors have to be read as a list: a “good reason” cannot conflict with or go beyond the first two factors, see Brownsea Haven Properties Ltd. V Poole Corporation Ch. 574 at page 610.

• The ABWOR fixed payment is not chargeable under any circumstances where the duty solicitor represents the client at the pleading diet

Covid-19 update

Until the expiry of the Coronavirus (Scotland) Act 2020, you should refer to the Covid-19 update for details of the changes we have made to this guidance.

• Regulation 6A of the ABWOR regulations states that you are only in a position to act as appointed solicitor if you are “attending upon, advising and acting for any person who appears from custody on the day when that person is first brought to a court to answer to any complaint…” You cannot admit a client to ABWOR and act as appointed solicitor after the event (on another day), the case having been referred to you by another solicitor or the duty solicitor who represented the client at the pleading diet.
• The type of ABWOR available (Interests of Justice or Appointed Solicitor) under the ABWOR regulations is determined by the nature of the proceedings initiated by the Crown and is unaffected by the fact that an accused person did not attend court on any given day. In terms of regulation 6A an accused person appearing on a warrant is not appearing from custody on the substantive matter, but rather on a warrant for failure to appear in respect of that matter. Nor has the accused been first brought to a court to answer to the substantive complaint in these circumstances. Whether initially cited to court or in terms of an undertaking, the accused was first brought to court, procedurally, on the day he or she failed to appear – that fact being unaffected by their non-attendance. This is not a new matter allowing for representation by an appointed solicitor.