This guidance examines the requirements of the Legal Aid (Scotland) Act 1986 and regulations in connection with the provision of criminal advice and assistance to a client. It identifies our respective functions, your requirements and the responsibilities of the assisted person.
It is our function to administer and ensure compliance with the scheme for the provision of advice and assistance and ABWOR under the Act and regulations.
Parliament made provision for you to grant advice and assistance but only if satisfied on eligibility and subject to certain conditions. These conditions are varied but also fundamental and common requirements.
Our role includes:
Receiving notifications of a grant.
Approving a grant of ABWOR where appropriate.
Administration of requests for increases in authorised expenditure.
Monitoring grants of A&A and ABWOR.
The assessment and payment of accounts from the Fund where a grant of advice and assistance is properly made, and the provision of ABWOR is appropriate.
It is your function to:
Decide whether advice and assistance may competently be provided and whether it is reasonable to provide it at public expense.
Decide if the client is financially eligible.
Identify the subject matter on which advice and assistance is to be given.
Be satisfied as to whether the client has already received advice and assistance on the same matter from another solicitor.
Decide whether ABWOR may be given or, if our prior authority or approval is needed, to obtain our prior authority.
Decide whether the client may have other rights and facilities available to them so as to make it unreasonable to provide advice and assistance or ABWOR.
You should have regard to our Code of Practice in relation to criminal legal assistance and the Law Society of Scotland’s Code of Conduct for Criminal Work.
The assisted person’s responsibilities
We consider that an assisted person also has responsibilities.
A client’s entitlement to publicly-funded legal assistance is not unqualified. It is subject to their meeting certain criteria, and they should be able to show that they meet these criteria.
Most clients should be able to provide a copy of a recent bank statement, wage slips or documentation to support their receipt of benefit.
It is also important that a client is aware of the potential consequences of providing false information.