Provision of criminal legal assistance is unhelpfully fragmented, the Legal Aid (Scotland) Act 1986 consolidating advice and assistance [1972 Act] and criminal legal aid [1967 Act]. In addition, there are three different forms of ABWOR available for summary criminal proceedings: Interests of justice ABWOR, appointed solicitor ABWOR and post-conviction ABWOR. This can cause confusion in the conduct of what is a relatively straight-forward process under summary criminal procedure. To assist you, we have compiled a list of situations arising from actual cases where appointed solicitor ABWOR has been provided in error.

The rule is that if your client is cited by the procurator fiscal to appear at the pleading diet or appears as an undertaking, then regardless of whether they attend or not this can only be interests of justice ABWOR. If your client initially appears from custody this can only be appointed solicitor ABWOR.

You cannot provide ABWOR as appointed solicitor at any stage after the pleading diet where the accused has been represented by the duty solicitor, by another solicitor or was not represented.  You can only provide ABWOR to any person who appears from custody on the day when the person is first brought to court to answer the complaint”.

Person appearing in a cited case or undertaking to appear

You can only act as an appointed solicitor for a client appearing from custody in answer to a complaint and only if you meet the criteria and conditions prescribed in the regulations, and your client is financially eligible.

If you see your client in police custody, but they are then released on an undertaking or otherwise, you cannot act as the appointed solicitor. You can only appear and be paid as an appointed solicitor when the accused appears from custody on the day when the person is first brought to court to answer the complaint.

You can only provide Interests of Justice ABWOR to an accused appearing in a cited case or on an undertaking to appear. Certain qualifications apply, as listed in regulation 6(1) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, as to the nature of the diet and the circumstances in which a plea is to be tendered.

Accused appearing from custody on a contempt of court matter

You cannot appear as appointed solicitor for a client appearing from custody on a contempt of court matter.  There is specific provision for legal aid in connection with proceedings for contempt of court where a person is liable to be dealt with for contempt of court during the course of or in connection with any proceedings [section 30 of the Legal Aid (Scotland) Act 1986].

You cannot give advice and assistance or ABWOR where legal aid is available in terms of the Act.

For more information on contempt of court legal aid you should view our guidance.

Accused appearing from custody on a warrant where criminal legal aid has been applied for and refused

You cannot provide ABWOR to a client who has previously applied for criminal legal aid in connection with the same proceedings.  If there has been a change in circumstances, you may be in a position to make a further application for summary criminal legal aid.

Person appearing from custody on a warrant where there is no complaint

You cannot act as appointed solicitor to an accused appearing from custody on a warrant where there is no complaint.  For the provisions on appointed solicitors to apply

  • Firstly, there must be a complaint.
  • Secondly, the appearance must be when the accused is first brought to court to answer the complaint.

Failure to appear - appearance on a warrant

The type of ABWOR available is determined by the nature of the proceedings initiated by the procurator fiscal and is unaffected by the fact that a client does not attend court on any given day.

The client is not appearing from custody on the substantive matter, but rather on a warrant for failure to appear in respect of that matter. Nor has the client been first brought to a court to answer to the substantive complaint on the date on which they are appearing on a warrant. Procedurally, in pursuance of the undertaking, the accused was first brought to court on the day they failed to appear – that being the factual circumstances unaffected by their non-attendance.

This is not a new matter allowing for representation by an appointed solicitor under regulation 6A of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003.

 

Failure to appear – appearance on a warrant where change of plea

ABWOR is not available in circumstances where a client initially appears from custody, pleads not guilty, appears in course before the court on a warrant and changes their plea to guilty.

Appointed solicitor ABWOR is not available as the client is not a person who appears from custody on the day when the person is first brought to court to answer the complaint. Equally Interests of Justice ABWOR is not available, even if no application for criminal legal aid has been made [regulation 6(1)(e) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, as the accused first appeared from custody.

As a plea of not guilty has been tendered, we may consider an application for summary criminal legal aid. The absence of a defence is not a bar to legal aid being granted as there may be other significant factors present which indicate a need for legal representation. Where this is shown to be the case, we may grant legal aid even where the accused has changed their plea, but this will have an impact on our assessment of the “interests of justice” test generally.

Change of plea at an intermediate diet

You cannot provide appointed solicitor ABWOR at an intermediate diet where it is not already available whether or not the client first appeared from custody. In normal circumstances this would be most unusual, the accused having pled not guilty, but has arisen where the accused was refused legal aid and wished to change their plea.

The only circumstance in which you can provide ABWOR for the first time at an intermediate diet is where the accused was initially cited to appear at the pleading diet (or appeared as an undertaking), had initially pled not guilty and wishes to change their plea to guilty, no application for criminal legal aid having been made [regulation 6(1)(e) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003].

Accused appearing in answer to an invitation warrant

In certain circumstances a client will be allowed to answer a warrant by invitation. On such occasion the client does not appear from custody and as a result you cannot provide ABWOR as an appointed solicitor.

If the case is treated as “not called” or the client is given a procurator fiscal’s release, the ABWOR case disposal fee is not appropriate.  There has to be a complaint raised and proceedings for ABWOR to be appropriate.

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