The Criminal Legal Aid and Advice and Assistance (Counter-Terrorism and Border Security) (Scotland) Regulations 2021 (“the 2021 Regulations”) came into force on 17 February 2021.
The regulations ensure that the automatic eligibility and improved payment arrangements brought in for police station work with the implementation of the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) are extended to apply to detention under the Counter-Terrorism and Border Security Act 2019 (“the 2019 Act”) as well as other terrorism matters.
Although this may look like a small change, many regulation changes are needed to apply the CJSA arrangements to the 2019 Act and other terrorism matters. In this update, we’ve summarised the changes for you.
The regulations can be found on legislation.gov.uk.
The Advice and Assistance (Financial Limit) (Scotland) Regulations 1993, is amended to specify the financial limit for advice and assistance by way of personal attendance in respect of detention under:
The expenditure limits are:
If you need to do work beyond these expenditure limits, you need to follow the standard procedure to obtain an increase in authorised expenditure in order to give any further advice and assistance.
Anyone detained under Part 1 of Schedule 3 of the 2019 Act as well as section 41 or Schedule 7 of the Terrorism Act 2000, may receive automatic, non means tested criminal legal advice and assistance.
The Advice and Assistance (Scotland) Regulations 1996, are amended in several respects:
Regulation 7 of the Criminal Legal Assistance (Fees and Information etc.)(Scotland) Regulations 2008, provides that the restrictions on entitlement to payment in that regulation do not apply to separate payments in respect of advice and assistance provided to a person entitled to consult a solicitor under paragraph 16(6) of schedule 8 of the 2000 Act or paragraph 37(6) of schedule 3 of the 2019 Act.
Regulation 3 of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011, provides that where we have arranged for a duty solicitor to be available to a person entitled to consult a solicitor under paragraph 16(6) of schedule 8 of the 2000 Act or paragraph 37(6) of schedule 3 of the 2019 Act, that person is not entitled to select a solicitor themselves, and the advice and assistance must only be provided by the duty solicitor provided.
There’s no change. Where a person is detained under section 41 or schedule 7 of the Terrorism Act 2000, continue to select the “terrorism” category within the CJSA process in Legal Aid Online and submit your claim for consultation and/or attending a detention interview.
For ABWOR applications for further detention or extensions under the Terrorism Act 2000, you should continue to submit your online ABWOR application in the usual way using category TERF. There’s no change here as ABWOR continues to be available for paragraph 29 of Schedule 8 or for the extension of a warrant for further detention under paragraph 36 of Schedule 8 of the Terrorism Act 2000. There is no means testing or financial contribution, nor is there a requirement for the prior approval by us.
Note: These arrangements are different to the ABWOR for procedures under section 19, 30 and 36(1)(a) of the 2016 Act (for example, review of liberation conditions, etc.) where eligibility is based on the standard advice and assistance criteria and there is a requirement to obtain our prior approval and that a grant is in the interests of justice.
For applications granted after 17 February 2021, you will no longer be paid by way of detailed fees and you must ensure that your account is charged under Schedule 3, Part V of the Advice and Assistance (Scotland) Regulations 1996. These are block fee tables payable at the same levels as are prescribed in respect of the 2016 Act ABWOR cases.
Unfortunately, it is not possible to submit online accounts for grants on or after 17 February 2021 at the moment. We are updating our systems and will let you know as soon as this becomes available.
Should a case arise, and you wish to submit your account, we do have a facility for you to send paper accounts by secure email. Details of this can be found in our guidance.