Who is a “person” for the purpose of receiving criminal A&A?

Under the statutory scheme, a person entitled to advice and assistance is subject to certain restrictions.

Advice and assistance [section 6 of the Legal Aid (Scotland) Act 1986] may only be given to “a person”.  A person is an individual.  Advice and assistance cannot be given to a company or a partnership except where such a body is acting in a representative, fiduciary or official capacity [section 41 of the Act].

A person can include someone under the age of 16.

A child over the age of 12 is deemed to be capable of instructing you.

With a younger child, you should form a view as to whether they are capable of understanding what is happening and of giving instructions.

A child under the age of six would be unlikely to be capable of giving instructions.

Someone who does not have the capacity to give instructions cannot be admitted to criminal advice and assistance.

A client who for good reason cannot make an application in person can authorise some other person to apply on their behalf [regulation 6(1) of The Advice and Assistance (Scotland) Regulations 1996].

Rules on the provision of A&A to other entities

A “person” is defined as excluding a body corporate or unincorporate, except where the body is acting in a representative, fiduciary or official capacity [Section 41 of the Legal Aid (Scotland) Act 1986], for example:

  • A body corporate could be a limited company, a plc, or a company established by a charter or by Act of Parliament.
  • A body unincorporate could be a firm or partnership including a limited partnership, a club, society or association.

You cannot provide advice and assistance to any of these bodies in their own right.

Advice and assistance to a client such as a partner or company director can only be in respect of any personal, individual interest in, say, an alleged offence – not their partnership or corporate interest.

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