Failure to appear – appearance on a warrant – continued availability of ABWOR

Interests of Justice ABWOR applies to proceedings where:

  • your client is initially cited to appear
  • the first appearance is a result of an undertaking to appear.

In either circumstance, if your client fails to appear and a warrant is taken, resulting in a subsequent appearance from custody, regulation 6(1) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 continues to apply.

Regulation 6(1) contemplates ABWOR being made available by a solicitor from the date of any one of the diets identified in the list set out in the regulation e.g. the diet at which a plea of guilty was tendered. This is because the words “…and thereafter until final disposal of the case” necessarily imply that ABWOR is only available at the diet which triggers ABWOR. Senior counsel, in an Opinion to us shortly after its inception, stated: “To put the matter colloquially, if one is not on the [ABWOR] bus when it starts, it is not possible to jump on.”

It is for this reason that what is now regulation 6(1)(d) was added to the list, to avoid a situation where an unrepresented accused person would continue to be so (at least under ABWOR) where they had not been represented at the pleading diet.

The type of ABWOR available under the ABWOR regulations is determined by the nature of the proceedings initiated by the procurator fiscal and is unaffected by the fact that an accused person failed to attend court on any given day.

By reference to regulation 6A, the accused person 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 accused been first brought to a court to answer to the substantive complaint. By virtue of the undertaking, the accused was first brought to court, procedurally, on the day they failed to appear – that fact being unaffected by their non-attendance.

In this section