In cases where you are providing ABWOR as an appointed solicitor, we need to know the circumstances surrounding the grant. You must:

  • Explain the nature of the previous solicitor and client relationship.
  • Confirm that you were instructed directly by the applicant.
  • Confirm that you were able to act immediately in person or through another solicitor.

You are only in a position to act as appointed solicitor, provide ABWOR and claim the fee if certain criteria are met. These are clearly set out in The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 [regulation 7] and discussed above. You can only act as appointed solicitor where you have taken instructions directly from the client and can act immediately at the pleading diet either in person or, in certain circumstances, through another solicitor (who shall not be the duty solicitor).

If there are no proceedings, there can be no ABWOR. Only advice and assistance can be provided if, for example, the case is disposed of by a special measure or the client is released without a complaint being served. As with all criminal ABWOR, there has to be representation before the court.

In summary, you should be aware of the following:

  • Only an appointed solicitor can provide ABWOR to an accused person who appears from custody on the day when that person is first brought to a court to answer to any complaint where there was a prior solicitor/client relationship with the client.
  • The ABWOR fixed payment is not chargeable under any circumstances where the duty solicitor represents the client at the pleading diet.
  • You cannot act as appointed solicitor after the event, the case having been referred to you by another solicitor or the duty solicitor who represented the client at the pleading diet, or where the client was not represented at the pleading diet.

Importantly, you can only provide representation, having taken instructions, through the services of another solicitor (except the duty solicitor) in circumstances where you

  • Cannot attend personally due to illness or incapacity
  • The arising (since instruction in relation to the appearance) of a professional obligation to act (in person) in another case that is to call elsewhere or around the same time, or
  • Another good reason

The factors have to be read as a list: a “good reason” cannot conflict with or go beyond the first two factors, see Brownsea Haven Properties Ltd. V Poole Corporation Ch. 574 at page 610, for example a reason short of illness or a professional obligation of which you were fully aware.

You must show, as a “good reason” for delegating representation, that it would not have been possible for you to attend court, not simply that it was more convenient that someone else attend court on your behalf. We will accept a High Court diet in a sitting which proceeds as arising after instruction.

The granting of ABWOR is subject to post-grant verification checks. You must keep a record of the circumstances in which appointed solicitor ABWOR was provided in these cases, including the circumstances in which you took instructions from the client, and the circumstances in which you used the services of another solicitor.

You should be in a position to produce relevant file notes, if asked to do so.

Representation where solicitor also duty solicitor

In line with our practice since the inception of the availability of an appointed solicitor, and an agreement with the Society, we allow a court duty solicitor to act as the appointed solicitor where there also exists a previous solicitor/client relationship with the accused appearing from custody, and that relationship is demonstrable to our satisfaction.

You must keep a record of the circumstances which led to the granting of ABWOR rather than representation as duty solicitor. You should be in a position to produce relevant file notes, if asked.

In view of the established nature of a solicitor/client relationship, we do not accept that such a relationship exists where the basis of the client asking for you, although you happened to be the duty solicitor, was because they had heard about you or been recommended to you. Inherent in this argument is the fact that you have not actually acted for the client before, and so there cannot have been a prior solicitor/client relationship.

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