Verification: application of the tests of “necessary” and “practicable”
There are some limited criminal ABWOR cases where it is not necessary to obtain such financial documentation. This is because the financial eligibility test has been disapplied in respect of these proceedings. You must ascertain this position after investigation, rather than just forming a view.
The only exceptions are the following criminal ABWOR proceedings:
Obstructive witness order under sections 90B-90E of the Criminal Procedure (Scotland) Act 1995, category OBWI
A warrant for further detention or extension under the Terrorism Act 2000, category TERF
Proceedings under section 5 of the Protection from Abuse (Scotland) Act, custody appearances following a breach of interdict arrest, category BIA
Double jeopardy proceedings, category DJEP
Recovery of documentation proceedings, category ORD
The financial eligibility test, and therefore verification, applies in all other types of criminal advice and assistance and ABWOR.
Documentation not immediately available
There may be cases where the relevant financial or other documentation does not exist or cannot immediately be accessed. We can accept this position, however, it is your responsibility to demonstrate why it was impracticable to obtain the documentation.
You are still obliged to make reasonable steps to establish your client’s financial eligibility. Such other reasonable steps include using the mandate to allow you to obtain information from third parties, such as employers, banks and benefits agencies.
It is important to note that failure to obtain financial and other documentation to verify the financial eligibility of your client may result in non-payment from us or recovery of amounts paid.