Proceeds of crime work where no legal aid in the first instance

If no summary or solemn criminal legal aid was in place for the trial, then a new application can be submitted for the confiscation proceedings.  We will apply:

  • The undue hardship and interests of justice tests in summary criminal legal aid
  • The undue hardship test in solemn criminal legal aid

If we had granted sanction to employ counsel at the original trial, this will not automatically carry over to the confiscation proceedings.  A new application needs to be made for counsel.

Proceeds of Crime proceedings – A&A and ABWOR

Where the client was either not convicted or was never an accused person, advice and assistance may be available to help with the proceedings.  If a client is not financially eligible for advice and assistance, they will need to pay privately in respect of the confiscation proceedings.

If they qualify for A&A, then ABWOR under regulation 5 of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 may cover representation.  If any of the grounds apply, you can make a request for our approval to provide ABWOR.   Where this is granted, you can represent the client in any proceedings.

You must obtain our prior approval for applications made by any person, other than the accused, whom the court thinks is likely to be affected by a confiscation order.

If none of the grounds specified in regulation 5 apply or we refuse ABWOR, you can only provide advice and assistance.  No cover for representation can be given.

Civil Recovery Unit

Where any proceedings are brought against a client by the Civil Recovery Unit, these are civil proceedings and an application for civil legal aid must be made.

The following statutory tests will be applied to such an application:

  • Financial eligibility
  • Probable cause
  • Reasonableness

You should set out the reasons why you consider there is a defence to the action and give sufficient information to show that it would be reasonable to make legal aid available.

We disregard any funds released by the Crown in civil recovery proceedings in carrying out the financial assessment.



In this section

Proceeds of crime

Criminal and civil legal aid in proceeds of crime cases

Find out what work can be done under an existing grant of criminal legal aid and what proceedings should be carried out under civil legal assistance.

Proceeds of crime

Proceeds of crime work where legal aid granted at first instance

Learn about the different legal aid situations that arise when proceed of crime proceedings take place during or after sentencing.