Separate applications for legal aid under summary and solemn procedure

A separate prosecution by way of the service of a complaint in summary proceedings is distinct proceedings needing a fresh application for summary criminal legal aid.

You are only entitled to make one application for summary criminal legal aid, where two or more complaints arise from the same incident [regulation 4(3)(a)]. This may also arise where a case is deserted and re-raised for some reason or in circumstances where a separate complaint is served on your client for failure to appear.

The following should be treated as a single matter:

• A single summary complaint or complaints which arise out of the same incident
• Proceedings under section, 27(1)(a), 28 or 150(8) of the 1995 Act or paragraph 1(1)(b) of schedule 1 of the Criminal Justice (Scotland) Act 2016 arising out of the complaint
• Where it is alleged that your client  failed to appear at court in accordance with the undertaking [section 22(2)]

Whether the complaints do arise out of the same incident is a question of facts and circumstances.

You cannot grant advice and assistance for the any breach of bail or failure to appear proceedings if you are already providing legal aid.

Circumstances where your client is not entitled to apply for further legal aid:

• Where your client fails to appear at a diet of which they have been given due notice
• Where a separate complaint is served in respect of breach of bail
• Where your client has been released on bail where the constable has reasonable grounds for suspecting that the accused has broken, is breaking, or is likely to break any condition imposed on his bail

All work in connection with such proceedings is subsumed within the existing core fixed payment in the principal proceedings.

However, where legal aid has not been previously granted for the substantive proceedings, you can either apply for criminal legal aid or provide ABWOR.

You satisfy the following provisions when acting in cases of breach of bail and failure to appear proceedings:

• You are already providing criminal legal aid and would have provided ABWOR for the failure to appear proceedings
• You were providing ABWOR but wish to tender a plea of not guilty in respect of the failure to appear proceedings, say for non-attendance at a deferred sentence hearing

Add-on fixed payments

Under the single grant you will be entitled to one core fixed payment or case disposal fee. Additional “add-on” fixed payments are also chargeable for attendances at trial, deferred sentences, etc. If you proceed to two separate trials for each complaint, with both trials lasting one day, you are entitled to charge at the “first day” level for the first trial and the “second day” level for the second trial.

Summary criminal legal aid is available for proceedings relating to a failure to comply with any other condition imposed on bail [sections 22ZA (1) (b), 22ZB or 27(1) (b) of the Criminal Procedure (Scotland) Act 1995.

These proceedings are chargeable at half the core fixed payment or case disposal fees in the JP and Sheriff court.

In relation to a case brought initially under solemn procedure, you do not have to make a fresh application for legal aid in the following situations:

• Where a diet is deserted pro loco et tempore, postponed or adjourned and it is not necessary that a new warrant should be granted for the incarceration of your client

Where an order is issued that the trial will take place at a different place from that of which notice was first given and it is not necessary that a new warrant should be granted for the incarceration of your client

• Where a trial diet has been deserted pro loco et tempore or an indictment not brought to trial and your client may be brought to trial on the same indictment if the prosecution follows the procedure [section 81 of the Criminal procedure (Scotland) Act 1995]

If in doubt, check the position with us and confirm any telephone authority by notification.