Applications to the court for legal aid in a summary 23(1)(b) case

Although you would normally apply to us for criminal legal aid in connection with solemn or summary proceedings, you must apply to the court for:

• Certification that legal aid has been granted automatically
• A grant of legal aid

The court has the power to grant legal aid in the following circumstances:

• Summary proceedings where, following conviction, the court is considering a first custodial sentence for your client
• Contempt of court proceedings

Both the sheriff court and the JP court has the power [section 23(1)(b) of the Legal Aid (Scotland) Act 1986] to grant criminal legal aid where your client has been convicted but has not previously been sentenced to imprisonment or detention.

You cannot use Legal Aid Online for applications to the court.

You should use the CRIM/COURTAPP form to apply to the court for criminal legal aid:

• In a summary case where the court is considering imposing a custodial sentence for the first time
• Where the court wishes your client to be legally represented [section 23(1)(b) of the Legal Aid (Scotland) Act 1986].

First, you should satisfy yourself that a previous sentence of imprisonment or detention has not been imposed, by reference to the schedule of previous convictions and by checking with your client.

The court must be satisfied that:

• Legal aid may competently be made available to your client (legal aid cannot be granted to a body corporate or unincorporated).
• After consideration of the client’s financial circumstances, meeting the expenses of the case would cause the client or their dependants’ undue hardship.
• The client does not have a reasonable expectation of receiving financial or other help from a body of which they are a member or access to any rights or facilities.

If the court is not satisfied on these matters, it must refuse legal aid unless there is special reason for making it available.

The court does not have to consider whether it is in the interests of justice to grant legal aid. Additionally, the court may require that your client makes a statement on oath to ascertain or verify any material fact.

Where the court grants an application for legal aid, the court tells us and, after registering the grant, we notify you of this.

We deal with all other procedures relating to the grant. This may include:

• Sanction to employ counsel or expert witnesses
• Sanction for unusual work or expenditure.

The proceedings are subject to fixed payments and provisions relating to transfer of a certificate.

In certain circumstances, we or the court may decide to terminate criminal legal aid [regulation 18 of the Legal Aid (Scotland) Act 1986].