New regulations extend automatic eligibility and improved payment arrangements for police station work to terrorism matters

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.

A summary of the changes:

  • Expenditure limits

    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:

    • paragraph 16(6) of schedule 8 of the Terrorism Act 2000 (“the 2000 Act”) or
    • paragraph 37(6) of schedule 3 of the 2019 Act.

    The expenditure limits are:

    Terrorism Act 2000

    • where the advice and assistance is for personal attendance by a solicitor and the client has exercised the right to consult a solicitor under paragraph 16(6) of schedule 8 of the 2000 Act, the sum of £225.00,

    unless

    • as part of that consultation the solicitor is present at an interview carried out in connection with a terrorist investigation or for the purposes of schedule 7 of that Act, in which case the sum of £550.00;

    Counter-Terrorism and Border Security Act 2019

    • where the advice and assistance is for personal attendance by a solicitor and the client has exercised the right to consult a solicitor under paragraph 37(6) of schedule 3 of the 2019 Act, the sum of £225.00,

    unless

    • as part of that consultation the solicitor is present at an interview carried out in connection with an investigation for the purposes of Part 1 of schedule 3 of the 2019 Act, in which case the sum of £550.00.

    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.

  • No means test

    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.

  • A&A arrangements and fee tables updated

    The Advice and Assistance (Scotland) Regulations 1996, are amended in several respects:

    • No client signature required - Regulation 4A excludes applications for advice and assistance in respect of detention under section 41 or schedule 7 of the 2000 Act and part 1 of schedule 3 of the 2019 Act from the requirement that the application be signed by the client or other person on their behalf;
    • Change of solicitor rules don’t apply - Regulation 14A provides that the requirements in the event of a change of solicitor set out in that regulation do not apply in respect of proceedings under paragraphs 29 or 36 of schedule 8 of the Terrorism Act 2000;
    • New fee tables – these mirror the fees payable in respect of police station advice and assistance under s32(2) or in respect of ABWOR under s 19, 30 or 36(1)(a) of the 2016 Act.
      • Schedule 3, Part V prescribes fees in respect of ABWOR proceedings under paragraphs 29 and 36 of Schedule 8 of the 2000 Act (Application for warrant of further detention and Application for extension of warrant of further detention); and
      • Schedule 3, Part VI prescribes fee in respect of advice and assistance for a person who is detained under section 41 or schedule 7 of the Terrorism Act 2000 or part 1 of schedule 3 of the 2019 Act.
  • Subsumption rules don’t apply

    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.

  • How to submit your applications and accounts

    Advice & Assistance – notification of grant and claim

    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.

    ABWOR

    Applications

    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.

    Accounts

    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.

For further information, please contact:

Criminal Legal Aid: Kingsley Thomas, Head of Criminal Legal Assistance – email: thomaski@slab.org.uk

Accounts: Steven Carrie, Senior Technical Specialist – email: carriest@slab.org.uk

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