If you grant advice and assistance and the case progresses to ABWOR or summary criminal legal aid, the grant of advice and assistance is subsumed into that subsequent grant. Subject to certain exceptions, you are not entitled to any separate fees in connection with the provision of advice and assistance.

These arrangements, reflecting the single summary criminal process, arise from the “single payment” provisions [Fees and Information regulations, regulation 7].

Equally, where ABWOR is provided for a continuation without plea, resulting in a plea of not guilty and criminal legal aid is granted, work undertaken under both advice and assistance and ABWOR is to be restricted to the fee chargeable under the summary criminal legal aid account.

Advice and assistance and automatic legal aid can both be charged where only automatic criminal legal aid is available in the proceedings. Work in connection with proceedings for which automatic criminal legal aid is available is subsumed within the ABWOR or criminal legal aid fixed payments where available.

The single payment provisions apply whether the account is chargeable by way a fixed payment or on a detailed basis, for example a case determined to be exceptional.

Also, the provisions apply not only advice and assistance and/or ABWOR (or ABWOR/legal aid) provided by the same solicitor but also to a solicitor who provided advice and assistance where ABWOR or criminal legal aid is later provided by another solicitor, perhaps as a result of a transfer.

Exceptions to single case payment

The single case provisions do not affect any entitlement to separate payment in respect of following (which are not subsumed within a further grant):

  • Advice and assistance followed only by automatic criminal legal aid
  • The provision of advice and assistance to a person to whom section 32 (right to have solicitor present) of the Criminal Justice (Scotland) Act 2016 applies
  • The provision of assistance by way of representation to a person who
    • applies for a review of a condition under section 19 of the Criminal Justice (Scotland) Act 2016
    • applies for a review of a condition of an undertaking under section 30 of the Criminal Justice (Scotland) Act 2016
    • is the subject of an application for authorisation for questioning by a prosecutor under 36(1)(a) of the Criminal Justice (Scotland) Act 2016
  • All work in the High Court in connection with an appeal under section 174(1) of the 1995 Act
  • ABWOR in post-conviction proceedings, which is always payable on a detailed basis under a distinct grant of ABWOR

Restrictions on lodging advice and assistance account

The regulations allow us to disregard any claim for payment under advice and assistance until such time as we are satisfied that ABWOR and/or summary criminal legal aid will not be (or is unlikely to be) required on the same matter..

We will return an advice and assistance account where our records show that ABWOR and/or criminal legal aid has been provided in that case.

Outlays incurred for third parties not subsumed

Where the single payment provisions apply, we cannot pay your outlays for mileage, cost of travel etc.

We consider that the provisions relate only to payments due to be paid to you and not to third parties.  This enables us to pay for third party costs such as outlays paid to a doctor for a report or to an interpreter in connection with the provision of advice and assistance.

You are entitled to claim these third party outlays under the grant of ABWOR or criminal legal aid.

Withdrawing from provision of advice and assistance

You can cease providing advice and assistance to a client at any time. You must explain to your client that they must obtain our permission [regulation 13 of The Advice and Assistance (Scotland) Regulations 1996] before receiving advice on the same subject matter from another solicitor.

Alternatively you can stop providing advice and assistance and, with the consent of the client, continue to provide advice on a privately paying basis.

In both situations, you should give us notice of your withdrawal.

In this section