Cases where our prior approval is required to grant criminal A&A

For some types of case, you must get our approval before commencing to give advice and assistance.

You cannot grant an application for advice and assistance or provide ABWOR where the client has other rights or facilities making it unnecessary for them to receive advice and assistance, or a reasonable expectation of getting financial or other help from another body [regulation 10(1) of The Advice and Assistance (Scotland) Regulations 1996].

You must ask the client whether they have, for example:

• Legal expenses insurance.
• Cover under a car insurance policy.
• Assistance available from a trade union or a local authority.
• Advice available on general issues from the Scottish Prison Complaints Commissioner.
• Professional indemnity insurance.
• Insurance policy required under a contract, where appropriate.

It is important that you always discuss the availability of alternative funding with the client before granting advice and assistance or ABWOR.

We would, for example, expect you to be satisfied in a Road Traffic Act case that the client does not have a right to assistance:

• In terms of their motor insurance policy.
• By virtue of their membership of a motoring organisation.
• From their employer, if the offence arose while using the employer’s vehicle.

You will be asked on legal aid online to state that your client does not have other means of funding their defence.

We can allow you to proceed to provide advice and assistance or ABWOR where the client does have other rights or facilities, or a reasonable expectation of receiving help from another body, if we consider that it is reasonable in the circumstances.

For example, the client may be able to give satisfactory reasons, such as:

• A conflict of interest with the solicitor being provided by the organisation or employer.
• Previous unsatisfactory dealings with the body.
• A reason why they do not wish a solicitor nominated by the other body, such as a motoring organisation or trade union, to help them.

If we refuse authority for the grant of advice and assistance, you can ask us to re-consider the decision.

A client shall not be given advice or assistance in respect of the same matter by more than one solicitor without prior authority from us [regulation 13(1) of The Advice and Assistance (Scotland) Regulations 1996].

The online advice and assistance application for our prior authority must:

• Be made by the second or subsequent solicitor
• Show that solicitor’s willingness to act
• Include a statement of the reasons for seeking such authority

Authority is given only on the terms and conditions that we impose in the circumstances.

A client is not to be given advice and assistance by the same solicitor in relation to the same criminal matter, at whatever stage it has reached, more than once without our prior approval [regulation 13(6) of The Advice and Assistance (Scotland) Regulations 1996].

An online advice and assistance application for our prior approval must:

• Show that solicitor’s willingness to provide advice.
• Include a statement of the reasons for seeking such authority.

We may [regulation 13(7)]:

• Refuse to give our approval.
• Give our approval unconditionally or on such conditions as may be imposed.

Certain types of criminal ABWOR need our prior approval before you can begin to provide representation, for example removal of a disqualification or a third party minuter in Proceeds of Crime proceedings.

This does not apply to the provision of summary criminal ABWOR under The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 6(1) (Interests of justice) or 6A (appointed solicitor).