Automatic legal aid for summary proceedings, duty solicitors and appointed solicitors

Automatic legal aid is available to your client appearing from custody until a not guilty plea is tendered or until the final disposal of a guilty plea.

It continues to be available where your client, in custody or liberated on a police undertaking, tenders a plea of guilty until the case is finally disposed of [section 22(1)(c)(ii) of The Legal Aid (Scotland) Act 1986The Legal Aid (Scotland) Act 1986].

It is available, if your client is in custody liberated by the police on an undertaking to appear, until the conclusion of the first diet at which they tender a plea of not guilty [section 22(1)(c) (i) of the Act].

If your client is remanded in custody after pleading not guilty and applies to us for summary criminal legal aid, automatic criminal legal aid continues in force until we decide their application [section 22(1)(d) of the Act]. We regard an application for legal aid as having been made on the date when the application is sent to us.

Automatic legal aid in summary criminal proceedings can only be provided by the duty solicitor except for proceedings before the Glasgow drug court (in its original pilot form), and a court designated as a domestic abuse court by the Sheriff Principal.

The court duty solicitor or solicitor of choice (appointed solicitor)

We are required to arrange for a duty solicitor to be available to provide criminal legal aid to your client being prosecuted under summary procedure [regulation 6 of The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011].

We are also required to arrange for a duty solicitor to be available in each sheriff and JP court throughout the year in connection with summary proceedings [regulation 7].

Unlike in solemn proceedings, your client in custody under summary procedure is not necessarily entitled to the solicitor of their choice. The duty solicitor in connection with summary proceedings has exclusive jurisdiction [regulation 7(7)].

The duty solicitor

A duty solicitor in a summary case can provide automatic criminal legal aid [section 22(1) (c) of The Legal Aid (Scotland) Act 1986]:

  • On the day when your client is first brought before a court to answer to any complaint until the conclusion of the first diet at which they are called upon to plead
  • In connection with any application for liberation following that diet
  • Until their case is finally disposed of, if a guilty plea has been given at that diet

Appointed solicitor

An appointed solicitor can provide ABWOR subject to certain criteria and conditions.

If you do not meet the criteria to act as an appointed solicitor and provide ABWOR [regulation 6A of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003] you can only provide advice and assistance, not representation in court.

Advice and assistance cannot be given to your client in custody when criminal legal aid is being given in connection with the proceedings.

Preliminary pleas

When your client is first brought before a court to answer to a complaint, any preliminary plea will normally be submitted before a plea of guilty or not guilty is tendered. Services to be provided by a duty solicitor may include [regulation 6(3) of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989]:

  • A preliminary plea to the competency or relevancy of the complaint
  • Conducting any plea in bar of trial
  • Conducting any mental health proof
  • Conducting any proof in mitigation or proof of a witness statement

Only the duty solicitor can provide the criminal legal aid to your client in these circumstances.

You may give advice and assistance in relation to such matters, but this does not include representation in court.

Application for liberation

Automatic legal aid made available in connection with an appearance from custody under summary procedure also includes any steps taken by you in applying for liberation following that first diet and representation in connection with that application [Section 22 (2) of The Legal Aid (Scotland) Act 1986].

Applications for bail or review of bail or appeals in respect of bail can be considered as applications for liberation.

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