We are continuing to work closely with the Scottish Government to identify ways in which the legal aid system can support the legal profession as they deliver advice and representation in line with current public health guidance.
This is in addition to the work we have already done with Scottish Government to develop a more extensive interim payment regime which assists the legal profession with cash-flow during these unprecedented times.
Guidance has now been issued to us by the Scottish Government allowing us to interpret the definition of ABWOR and the term ‘diet’ in regulation 6 of the 2003 ABWOR regulations to include representation by way of written exchanges for the duration of the Covid-19 restrictions only.
This is to address a specific challenge arising from the Covid-19 related changes in the operation of the criminal justice system, and following consultation with the Scottish Government.
Solicitors will now be able to grant ABWOR for eligible clients in cases where they will not attend a physical calling of the case to represent their client.
A minor system change will be made shortly, but for now these grants should be entered onto the online system in the usual way.
When asked for the date of the plea (or CWP), enter the date the written plea or request was submitted and enter ‘Covid 19 written representation’ in the ‘additional information details’ box on the declarations tab.
The account can then be submitted in the usual way once the plea has been tendered, in writing, on the client’s behalf. All other eligibility tests, including the Interests of Justice Test remain in in place.
We are also working with Scottish Government colleagues to identify restrictions in regulations which might be perceived as a barrier to observing public health guidance.
Scottish Government colleagues, in recognition of the current unprecedented circumstances, are giving consideration to the need to make provision to allow delegation of guilty pleas under appointed solicitor ABWOR to the solicitor who is on duty in the custody court.
If necessary, this will operate in the same way as delegation to any other solicitor i.e. subject to capacity and agency payment arrangements being agreed between the appointed solicitor and the duty solicitor, as the cover will be under ABWOR and not automatic legal aid under the duty scheme.
Consideration is also being given to removal of the half fee restriction where a solicitor with a pre-existing relationship with the client instructs the duty solicitor to tender a plea of not guilty on an agency basis.
Further guidance will be provided in early course, as this work is developed.
Half fee Covid-19 update
From 1 July 2020 until the expiry of the Coronavirus (Scotland) Act 2020, you should refer to this Covid-19 update for details of the changes made to the half fee restriction.