Criminal ABWOR and “representation”

ABWOR is a type of advice and assistance where representation may be provided.

The provisions relating to admitting your client to advice and assistance apply equally to ABWOR.

ABWOR is defined as follows [section 6 of the Legal Aid (Scotland) Act 1986]:

“Assistance by way of representation” means … advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings

• before a court or tribunal; or
• in connection with a statutory inquiry,

whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf).”

ABWOR includes steps, large or small, short of actual representation in court or before a tribunal. The definition does not refer to “steps in procedure” but simply to “steps”.

In the context of summary criminal proceedings, whilst including associated steps, ABWOR can only be provided where there is representation. If there is no representation before the court, you cannot provide ABWOR and submit an ABWOR account. You can only charge under A&A in circumstances where you may have anticipated representation but it does not come about.

The reason for this is that whilst most of the numbered regulations forming the ABWOR regulations, including all those relating to civil and children’s ABWOR, commence with the words “Part II of the Act applies to assistance by way of representation in relation to-“…:

• Regulation 6(1) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 commences with the words “The assistance by way of representation which may be provided under Part II of the Act in relation to summary criminal proceedings shall be representation of an accused person…”
• Regulation 6A commences with the words “The assistance by way of representation which may be provided under Part II of the Act in relation to summary criminal proceedings in any court shall include the attending upon, advising and acting for any person…” 

ABWOR applies in its wider sense of taking on [a client’s] behalf any step in instituting, conducting or defending any proceedings in other forms of criminal ABWOR such as post-conviction ABWOR [regulation 4], proceeds of crime [regulation 5] etc.

ABWOR is part of the advice and assistance made available by Part II of the Act, but is only available for matters prescribed in regulations [section 9 of the Act].

ABWOR is available for summary criminal proceedings [regulation 3(a) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003].

• The nature and extent of the ABWOR that may be provided in summary criminal proceedings where the accused person is not in custody (including Undertakings) is prescribed at regulation 6(1).
• The nature and extent of the ABWOR that may be provided in summary criminal proceedings where the accused person is in custody is prescribed at regulation 6A
• The criteria for deciding whether ABWOR may be provided, including any financial test, are laid down in regulation 7.

You can establish whether ABWOR is available for the proceedings in question by referring to the ABWOR regulations which list all such proceedings, together with any merits or means tests that you need to apply. If the ABWOR regulations do not list a procedure or proceedings, ABWOR is not available.