Distinct proceedings, bail, preliminary pleas, reduction from solemn to summary, desertion of proceedings, remits to the High Court

General information about specific categories

Certain categories of criminal proceedings are to be treated as distinct proceedings for the purposes of criminal legal aid [regulation 4 of the Criminal Legal Aid (Scotland) Regulations 1996].

In practice, distinct proceedings must be the subject of a separate legal aid application. A single grant of legal aid cannot be made in respect of two or more forms of proceedings that are defined as distinct proceedings.

Bail (application for liberation)

Matters relating to bail are not distinct proceedings.  An application for review of bail, or an appeal in respect of bail will be covered by whatever type of criminal legal aid applies to the proceedings.

Therefore, you do not need to make a separate legal aid application for a bail appeal.

That type of legal aid may be:

  • Automatic criminal legal aid
  • Solemn criminal legal aid
  • Summary criminal legal aid
  • Legal aid for an appeal against conviction, sentence, other disposal or acquittal

Automatic legal aid made available in connection with an appearance from custody under summary procedure [section 22(1)(c)(i) of The Legal Aid (Scotland) Act 1986] also includes any steps taken by you in applying for liberation following that first diet and representation in connection with that application [Section 22(2)].

Preliminary pleas

A plea to the relevancy or competency, or a plea in bar of trial may be dealt with under whatever form of criminal legal aid is available for the proceedings.

Any related appeal will also be covered, unless it can be classified as an “appeal against conviction, sentence, other disposal or acquittal”. You must send us a separate legal aid application for this.

Summary criminal legal aid is not available in proceedings before a not guilty plea is tendered. ABWOR is available for a plea to the competency or relevancy of a complaint or proceedings, or a plea in bar of trial including any related appeal [section 174(1) of the Criminal Procedure (Scotland) Act 1995 Act].

Reduction from solemn to summary

We may have granted legal aid to your client accused in solemn proceedings and this is later reduced to summary proceedings. In this case, the legal aid will cover any proceedings up to and including the first hearing of the complaint and until the conclusion of the case if a plea of guilty is tendered.

Where a plea of not guilty is tendered, the solemn legal aid will cover the hearing but not beyond this. You will have to apply to us for summary criminal legal aid to cover further work.

After a reduction to summary, the existing grant of solemn legal aid will continue to apply where a plea to the competency or relevancy of the complaint or a plea in bar of trial is made on behalf of your client. This will cover all work relating to such a plea, including court appearances and any appeal of a decision made by the sheriff.

Desertion of proceedings in a summary case

In a summary case, you are not entitled to a further core fixed payment.

You should not make a fresh application for summary criminal legal aid where the procurator fiscal deserts a summary complaint and raises a fresh complaint in identical terms or with the addition of a further charge arising from the same incident.

Any further “add-on” fixed payments, for attendance at trial or deferred sentences that may apply, can be paid under the existing grant of legal aid.

Remit to the High Court

A remit to the High Court for sentence is included in the proceedings at first instance  and you do not have to make a separate application for legal aid.

There is no need to apply to us for authority to employ junior counsel to represent your client in the High Court but you must obtain our authority if you propose to instruct:

  • Senior counsel
  • Senior with junior counsel
  • More than one junior counsel

If we authorise the employment of counsel, or where you may employ counsel without authority, you can employ a solicitor advocate in place of counsel in the High Court.

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