Criminal ABWOR – common queries

Please see this update for full details on the benefits, changes and background.

Changes were made to support the New Summary Criminal Model Pilots in Dundee, Hamilton, Paisley and Glasgow, where more information is now being disclosed to the defence at the start of cases to help encourage earlier resolution.

In these cases, as soon as key information is received by the Crown, they will disclose it to the solicitor, provided they have received a Letter of Engagement confirming that they are acting in the case. In some instances, this may even be before the complaint is formally issued.

While the new early disclosure arrangements will be concentrated in the four pilot court areas, these Regulations apply to all cases across the country, so solicitors in other areas will also benefit from being able to claim the fixed fees in cases which can be resolved at these early stages.

Regulation 6 (Interests of Justice) ABWOR can be granted to allow the fixed fee to be paid under ABWOR, where no plea has previously been tendered, if the proceedings have commenced and the case is resolved prior to the first court appearance.

Relevant legal aid guidance: Applying for ABWOR for these early resolution cases

Advice and Assistance can be granted to allow the fixed fee to be paid under A&A where cases are resolved prior to the proceedings commencing, subject to the following criteria being met:

• the solicitor was appointed by the client
• a decision has been made to prosecute the case in the sheriff court
• the solicitor has submitted a letter of engagement to the PF
• a copy of the complaint has been issued to the solicitor by the PF, and
• the case is resolved and concluded prior to proceedings commencing.

Relevant legal aid guidance: Applying for Advice and Assistance for these early resolution cases

The applicant was not represented at first custody appearance, and is seeking ABWOR for the deferred sentence.

This could be because they did not qualify for ABWOR under financial grounds but became eligible at the time of the deferred sentence.

Question: 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: No.  Appointed solicitor ABWOR can only be granted where a solicitor represents a client appearing from custody and thereafter until final disposal.

The important words are “and thereafter”.  The coverage for the deferred sentence is available only as a consequence of the earlier work at the pleading diet.

The usual criteria still needs to be met – solicitor taking instructions, prior relationship with the solicitor or the firm, with the court appearance done by the solicitor or delegated to another solicitor or the duty solicitor.

Relevant legal aid guidance: ABWOR in summary cases – assisted person in custody – “appointed solicitor”

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)).

Question: If they were not remanded in custody and are appearing from liberty at the deferred sentence, can Interests of Justice ABWOR be provided?

Answer:  Yes – ABWOR can be provided under Regulation 6 (interests of Justice).

Question: The applicant was not represented at the first non-custody appearance, and is seeking ABWOR for deferred sentence. Can I of J ABWOR be provided?

Answer:  Yes - ABWOR can be provided under Regulation 6 (interests of Justice).

Relevant legal aid guidance: ABWOR where client is not appearing from custody – when is it available?

There is a change of solicitor between the court appearances, and no initial grant of ABWOR was made.

The first solicitor provided representation at the custody appearance, but did not admit the client to ABWOR.  The client is now instructing a different solicitor for the next appearance.

There is no existing grant of ABWOR that can be transferred to the second solicitor.

Questions: Can the second solicitor provide ABWOR? If the client was remanded would it be appointed solicitor ABWOR, and if they were released on bail, would it be Interests of Justice ABWOR?

Answers: 

• Remand: No, appointed solicitor ABWOR cannot be granted.
• Bail:
  • Plea of guilty at first appearance: Yes, ABWOR can be provided under Regulation 6 (interests of Justice)
  • CWP at first appearance: Yes, ABWOR can be provided under Regulation 6 (interests of Justice).

Relevant legal aid guidance: Criteria and conditions to act as appointed solicitor

Solicitors can sometimes delegate the entire initial stages of a case to another solicitor, including taking the initial instructions in the police station or the court cells area.

Question: Can appointed solicitor ABWOR still be provided in these circumstances, by the original solicitor?

Answer: No. Appointed solicitor ABWOR is firmly restricted to the solicitor who meets the conditions for/of instruction, and delegation options relate only to the subsequent appearance.

The taking of the instructions is not delegable. The solicitor taking the instructions and providing representation can do this in their name, as long as they also have a prior relationship.

Relevant legal aid guidance: Definition of “appointed solicitor” and principal criteria for acting

Granting ABWOR on an appointed solicitor basis and delegating the case to someone else.

Question: If the solicitor knows that s/he is going to be unable to act, for example due to going on holiday or other court appearances, is it OK for them to make the grant of ABWOR?

Answer:  Yes. Appointed solicitor ABWOR can be granted here now.

Relevant legal aid guidance: Definition of “appointed solicitor” and principal criteria for acting

Applicants appearing after being arrested on a warrant, which subsequently means they appear from custody.

Question: What type of ABWOR can be provided?

Answer: If the client did not turn up at the undertaking or cited appearance, and is now appearing from custody on the matter for the first time, then appointed solicitor ABWOR can be granted for this custody appearance.

The usual criteria still needs to be met – solicitor taking instructions, prior relationship with the solicitor of the firm, with the court appearance done both the solicitor or delegated to another solicitor or the duty solicitor.

Relevant legal aid guidance: Failure to appear – appearance on a warrant – continued availability of ABWOR

The applicant was not fit to attend at the first calling of the case from custody, the case was CWP’d for a mental health assessment.  He was then deemed fit and appeared at a later date.

Question: Can the solicitor provide appointed solicitor ABWOR. If so, when should it be effective from: the date of the first calling, the date the applicant was fit to appear or does it matter?

Answer:  Yes. Appointed solicitor ABWOR is OK.  The effective date should be the date of the grant, providing that is registered within 14 days.