15.2 Application form
15.3 Full information and documentation to be provided to the board
15.4 Applicant having other rights for assistance with legal costs
15.5 Financial tests
15.6 Non-financial tests
15.7 Appeals against conviction or conviction and sentence
15.8 Criminal Procedure (Scotland) Act 1995
15.9 Petition to the Nobile Officium
15.10 Bills of suspension
15.11 Bills of advocation
15.12 Late appeals
15.13 Appeals to the supreme court
15.14 Crown appeals
15.15 Scottish Criminal Cases Review Commission
15.16 Power of the High Court to determine the interests of justice
15.17 Supporting documentation
15.18 Special urgency
15.19 Review of refusal
Unless otherwise stated, "the Act" or "the 1986 Act" means the Legal Aid (Scotland) Act 1986, and “the regulations” means the Advice and Assistance (Scotland) Regulations 1996
Under section 25 of the Act criminal legal aid is available, upon application to the Board, in connection with
The Courts Reform (Scotland) Act 2014 has transferred to and vested in the Sheriff Appeal Court all the powers and jurisdiction of the High Court of Justiciary as regards appeals from courts of summary jurisdiction. From 22 September 2015, all appeals against conviction, sentence , other disposal or aquittal in summary procedure cases will be heard before the Sheriff Appeal Court. The existing appeals procedures, and the requirement for leave to appeal will remain the same as before, except that leave to appeal will be considered by Appeal Sheriffs instead of a High Court judge.
Section 25AA of the Act provides that sections 25 and 25AB apply to any appeal within the meaning of section 303A of 1995 Act. Under this, someone may be authorised by the High Court to institute or continue any appeal which could have been, or has been, instituted by a person convicted of an offence who has since died.
Appellate proceedings are "distinct proceedings" for the purposes of legal aid. You must make a fresh application for criminal legal aid for the appeal. This does not, however, apply to bail appeals or to appeals in relation to decisions on competency or relevancy or in bar of trial, or to any appeal in connection with an incidental matter. As any such appeal is prior to the final verdict, it is not an appeal against conviction, sentence, other disposal or acquittal, and it is not therefore treated as a distinct proceeding. An assisted person does not need our approval to proceed, and all fees and outlays in connection with an appeal in these circumstances are covered by the original legal aid certificate.
You must send us, the Board, applications for criminal legal aid for an appeal against conviction, sentence, other disposal or acquittal (or for an application to the nobile officium or in connection with a reference by the Scottish Criminal Cases Review Commission), irrespective of whether the appeal relates to proceedings under summary or solemn procedure.
The court has no power to grant criminal legal aid for an appeal.
You must apply to us for criminal legal aid for an appeal through legal aid online.
Where legal aid was in place at first instance:
We do not need a new criminal legal aid declaration form to be signed, as no financial test is required.
You need to send the online criminal legal aid appeal declaration form LAO/APP/1 and supporting documentation confirming that leave to appeal has been granted.
Where legal aid was not in place at first instance, the applicant must normally sign the online criminal legal aid appeal declaration form LAO/APP/2.
a person authorised on their behalf may sign the application where the applicant on cause shown cannot do so (for example, where they are remanded in custody and the only reason for the visit to see the client would be to get this form signed).
the applicant's legal representative – for example, a judicial factor or guardian – may sign the application form if the applicant is mentally disordered in terms of section 1(2) of the Mental Health (Scotland) Act 1984.
Obtaining client’s financial information
At the earliest possible stage in the cases where there is a financial test because legal aid was not previously in place, you should consider obtaining the client’s financial information and ask them to sign the declaration for the full appeal application.
You will then be ready to send the legal aid application when the case passes the sift stage and there does not need to be a delay. This can include the financial details of the client at the start of the appeal process, but we would need to be advised of any subsequent changes in their financial circumstances.
The application must include a statement signed by you or on your behalf confirming that you are willing to act for the applicant.
The regulations do not prescribe any period of time within which you must send us an application for legal aid for an appeal.
Giving us the information we ask for on the online application should enable us to consider the application without delay and, in particular, without having to continue the application for further information or documentation. Complete all parts of the form as appropriate, with full reasons given for any view or argument advanced.
Except where the applicant had criminal legal aid for the proceedings at first instance, we must be given full information about their financial circumstances – that is, income and expenditure and any capital or savings.
We do not normally need documentary evidence that the applicant is receiving state benefits. However, whether the applicant is working or receiving benefits, we may take steps to verify the financial information they have given, in particular, payment of state benefits. If we find they have wilfully given us false information, or not made a full disclosure, we will consider reporting the circumstances to the procurator fiscal for prosecution.
We must also be satisfied that the applicant does not have available to them other rights and facilities making it unnecessary for them to get legal aid, or a reasonable expectation of receiving financial or other help from a body of which they are a member. It is essential that you specifically discuss this possibility with the applicant before applying for legal aid.
We would, for example, expect to be satisfied in a Road Traffic Act case that the applicant does not have a right to assistance:
If we are not satisfied on these matters, we must refuse legal aid, unless there is special reason for making it available. If we are prepared to grant legal aid but the applicant has a reasonable expectation of receiving financial help from a body of which they are a member, the applicant must give us a written undertaking to pay us any sum received from that body.
Applications where legal aid in place at first instance
In most applications for legal aid for an appeal, we will not be concerned with the question of the applicant's financial eligibility for legal aid. In many cases, the court or SLAB will have granted legal aid for the proceedings at first instance that gave rise to the appeal.
In such cases, no further financial tests are required and we will not have to consider their current financial position or enquire as to whether their circumstances have changed since the original grant was made.
Applications where legal aid not in place at first instance
We have to decide whether an applicant is financially eligible where they did not have legal aid for the case at first instance. For example:
The statutory test is whether the applicant’s financial circumstances are such that the expenses of the appeal cannot be met without undue hardship to them or their dependants. The hardship test will be applied in the same way as for proceedings at first instance, except that we will have regard, not to the costs of the defence, but to the costs of the appeal.
In an application by an "authorised person" in terms of section 25AA, their means are normally taken into account. However, where the authorised person is the deceased's executor, only the deceased's estate is taken into account and the beneficiaries of that estate are treated as the dependants for the purposes of the hardship test.
Where the applicant needs leave to appeal, the expenses to be taken into account are the expenses of the application for leave to appeal. If leave is obtained and legal aid is granted, under section 25 we may carry out a further hardship test before the date of the appeal hearing but only if there has been a change in the applicant’s financial circumstances. The legal aid certificate will include a special condition that
Apart from financial eligibility, the need to apply any other criteria will depend on the statutory or other basis under which the appeal is made.
Leave to appeal must be obtained where the appeal is under section 106(1) or section 175(2) of the 1995 Act. In these circumstances, legal aid is can be applied for online under Regulation 15, from the commencement of the appeal procedure – that is, the application for leave to appeal, initiated by the lodging of notice of appeal as appropriate in the circumstances of the case.
As leave to appeal is entirely a matter for the court, we have no locus to consider any question relating to the merits of the appeal or of the application (or applications) for leave to appeal.
Application for full legal aid
An application for full legal aid should be made at the conclusion of the sift process, with necessary supporting documentation confirming that leave to appeal has been granted.
If for some reason a legal aid application is not made until some intermediate stage in the appeal process, we will accept the application and any grant of legal aid will be effective from the date of the grant until conclusion of the appeal.
Unlike section 24, in relation to the consideration of the interests of justice for legal aid in summary proceedings, section 25 does not lay down any factors we have to take into account when considering the interests of justice for legal aid for an appeal. There is no restriction on the factors which may be taken into account in any particular case, and identifying, and evaluating the weight of, relevant factors is at our discretion.
In applying for legal aid, you can include a statement of the grounds of appeal and of any other circumstances the applicant considers relevant to satisfy us that it is in the interests of justice to grant criminal legal aid. You should enter this information in the interests of justice box on the legal aid online application.
If leave to appeal must be obtained, you should apply to us for legal aid to cover work once leave to appeal has been granted. As leave to appeal is entirely a matter for the court, we cannot consider any question relating to the merits of the appeal or the application for leave to appeal.
If for some reason a legal aid application is not made until some intermediate stage in the appeal process, any grant will be effective from the date of the grant until conclusion of the appeal.
The applicant may be appealing under some provision of the 1995 Act other than section 106(1) or section 175(2) (for example, by bill of suspension), where leave to appeal is not required. If so, we have to be satisfied that in all the circumstances of the case it is in the interests of justice for them to receive criminal legal aid.
The Board must be satisfied that
Where a petition has no merit, is frivolous, or if the consequences of a successful petition will have no real benefit to the appellant, the petition should be refused. A note from counsel or a solicitor-advocate is often of great assistance.
We must be satisfied that a bill of suspension is the appropriate method of appeal in the circumstances of the case and, if so, that a separate application is required.
Unlike section 24, in relation to summary proceedings, section 25 does not lay down any factors we should take into account when considering the interests of justice for legal aid for an appeal. There is no restriction on the factors which may be taken into account in any particular case, and the identification of relevant factors and the evaluation of the weight to be attributed to them is at our discretion. You may include a statement of the grounds of appeal and of any other circumstances the applicant considers relevant to satisfy us that it is in the interests of justice to make criminal legal aid available.
Examples of factors that may be taken into account include
As a bill of advocation is concerned with a procedural irregularity prior to the verdict being pronounced, cover for all fees and outlays in connection with it will be under the original legal aid certificate. An assisted person does not need our prior approval to proceed with a bill of advocation.
Initial advice and assistance
Advice and Assistance (A&A) can be provided by a solicitor seeking to visit a client in custody to advise on an application for extension of time in which to lodge an appeal (a late criminal appeal). As part of the consideration of the increase request we will check our systems for any previous grants of A&A in relation to criminal appeal matters. It could well be that the client has already received advice from another solicitor in relation to the same matter. In these cases, clear information should be provided to briefly explain why further A&A is appropriate and what may have changed since advice was previously given about the appeal.
Where the client has not received any advice from any other solicitor in relation to the criminal appeal, or, subject to any persuasive representations, further A&A is justified, then an appropriate increase can be granted to facilitate this visit.
Initial consideration stage
Once the visit has taken place then a further increase may be allowed to enable the solicitor to obtain and peruse the case papers to allow the enquiry to be progressed. However, we consider that, at this stage, the solicitor must have a reasonable idea of the likely grounds of appeal and their prospects of success. Increases in authorised expenditure will not be granted, for example, to cover perusing all the papers to identify possible grounds of appeal. The solicitor ought to be able to identify the main grounds of appeal, and narrow down the preparation and perusal work required for this.
Lodging the appeal
Before now, applications for regulation 15 cover, or indeed full legal aid could be made before leave to appeal was granted. However, in order to reduce the risk of excessive or unnecessary work being carried out and subsequently abated by us, A&A should now be used to provide cover for these early stages of a late appeal. This allows us to approve in advance work which is required, and an appropriate level of authorised expenditure to carry out this work.
The steps required in applying for the extension of time and lodging the grounds of appeal can be more appropriately covered under A&A. No proceedings are in place yet, there is no need for representation and the matter is not specifically urgent, so a grant of criminal legal aid under Regulation 15 would not be appropriate at this stage. Also at this stage, counsel’s involvement should be limited to only providing an Opinion on the appeal, and /or framing the grounds of appeal.
Counsel may be entitled to an Opinion fee and grounds where the Opinion is only partially supportive, and the application is for an extension of time. Counsel may also on occasion be required to attend a consultation. To cover this work, further increases in expenditure can be granted to appropriate levels. This is an administrative process and in most cases the application for the late appeal and the grounds of appeal are considered in chambers with no formal court hearing being set down for this.
Legal aid stages after the late appeal and grounds of appeal applications have been submitted
If the application for the late appeal and the grounds of appeal are accepted then leave to appeal is granted. At that stage, an application for criminal legal aid for an appeal can be made in the usual way. In the application for legal aid, confirmation and evidence that leave to appeal has been granted consistent with Section 25(b) of the Legal Aid (Scotland) Act 1986 needs to be submitted by the solicitor.
If the application for the late appeal is rejected, then the next stage would normally be for the matter to be referred to a three judge bench. There are now “proceedings”. In terms of Section 105(2) of the 1995 Act, the applicant has 5 days to return the form to have the application determined at such a hearing. Regulation 15 cover can be made available for the attendance by a solicitor and counsel at this hearing, and any other ancillary work that may be required on cause shown. If the appeal is rejected at this hearing, that is the end of the process. If the appeal is accepted, and an appeal hearing set, then the solicitor should apply for criminal legal aid for an appeal, as above.
Regulation 15 cover is, of course, available in the unusual event that a hearing is set down for a single judge in the course of the process.
Legal aid is available in connection with any reference, appeal or application for special leave to appeal to the Supreme Court under paragraph 11, 13(a) or 33 of Schedule 6 to the Scotland Act 1998. Paragraph 11 provides that any court consisting of two or more judges of the High Court of Justiciary may in certain circumstances refer a devolution issue which arises in proceedings before it to the Supreme Court. Paragraph 13(a) provides that an appeal against a determination of a devolution issue by a similarly constituted court shall lie to the Supreme Court with leave of the court concerned or with special leave of the Supreme Court. Paragraph 33 provides for a direct reference to the Supreme Court by the Lord Advocate from any court or tribunal of a devolved issue which has arisen in proceedings to which the Lord Advocate is a party.
Where the Appeal Court has granted permission for an application to the Supreme Court, a fresh criminal appeal application is required in terms of the Act. Before legal aid can be granted, we must be satisfied that the expenses of the case cannot be met without undue hardship to the applicant or their dependants. This is the only test which applies. If we granted legal aid at first instance, then the applicant qualifies on these financial grounds. If not, we must assess their financial circumstances on the same basis as for summary criminal cases. This is a straightforward process where no interest of justice test is needed. Regulation 15 cover should not be needed as the appeal application can be submitted to us and considered very quickly. We would need confirmation in the form of a reported decision and/or an interlocutor that the Appeal Court has granted the application to the Supreme Court before the fresh criminal appeal certificate can be granted for the case.
In the case of an application for permission to appeal to the Supreme Court, we must be satisfied that:
Where the Appeal Court does not grant permission to appeal to the Supreme Court, an application for special permission to appeal to the Supreme Court must be submitted. No Regulation 15 cover is needed, but before the application for special leave can be lodged, we will consider granting an increase under advice and assistance to allow counsel’s opinion on the prospects of success.
If the opinion is supportive, then a copy of the opinion together with:
must be submitted to us along with the application for a criminal appeal certificate. In considering the appeal application, SLAB will need to be satisfied that it is in the interests of justice to make legal aid available for the application for special permission to appeal to the Supreme Court. The solicitor must submit whatever information is available in order to assist SLAB in applying this test.
Where legal aid is granted, this will then cover the solicitor for all work required to lodge the application for permission to appeal to the Supreme Court.
If permission to appeal to the Supreme Court is subsequently granted, the application can be updated for the full hearing of the Supreme Court. If permission is refused, then that is the end of the matter, and the grant of legal aid comes to an end at that stage.
We should be satisfied that a separate legal aid application is appropriate in the circumstances of the case.
If we are satisfied that a separate application is required, all applications to represent an accused at a Crown appeal should be granted without scrutiny of the merits of the appeal, subject to the financial eligibility criteria.
Where the SCCRC has referred the appeal to the High Court, legal aid is available without scrutiny of the merits of the appeal. We have to be satisfied as to the applicant’s financial eligibility except where criminal legal aid was made available in connection with the proceedings in respect of which the appeal is being made. As a matter of good practice, you should send us a copy of the SCCRC’s ”Statement of Reasons” with your application.
In any case where we have refused an application for criminal legal aid for an appeal because we were not satisfied it was in the interests of justice, the High Court may take a contrary view. If so, we must then grant legal aid for the appeal. This power of the High Court to make its own determination as to the interests of justice is conferred by section 25(2A) of the Act. The court may consider the matter if it is invited to do so by the appellant, or of its own volition. The determination must, however, be made before the appeal is disposed of.
Although the court has the power to determine that it is in the interests of justice for the appellant to receive legal aid for the appeal, it does not have the power to grant legal aid. That remains a matter for us, and we must make legal aid available immediately we are notified of the court's determination.
In an appeal at the instance of the prosecutor, you must send us with the application for legal aid sufficient supporting documentation to identify the matter to which the appeal relates, the circumstances of the appeal, and the interest of the applicant in relation to the appeal.
In an appeal at the instance of the applicant, the documentation we need will depend on whether leave to appeal has to be obtained.
If the application discloses that leave must be obtained, you do not need to send us any documentation about the merits of the appeal, or about the application for leave to appeal, as we do not have to carry out any merits test. However, it is helpful to send with the application any papers that will give us a clear picture of the case, including the charges and disposal, so that the details on the legal aid certificate can be accurate and meaningful.
In an appeal by the applicant under any provisions of the 1995 Act, other than section 106(1) or section 175(2), we must be satisfied that it is in the interests of justice to make legal aid available. In such a case:
If counsel (or a solicitor-advocate, if instructed for the appeal) is to be instructed to write a note on appeal, and the case is one where we must apply the interests of justice test, it may be appropriate to invite counsel (or the solicitor-advocate) to draw attention to any circumstances suggesting it would be in the interests of justice to grant legal aid for the appeal. If counsel or, where the case was indicted in the High Court, a solicitor-advocate, was employed in accordance with regulation 14 in the proceedings at first instance, you can include the cost of getting a note on appeal in the account for the original grant of legal aid. If you are unsure that this is the case, then you should discuss the matter with our Head of Criminal Legal Assistance.
If you are relying on any document you send us, draw the relevant part or passage to our attention by specifying the page and paragraph number or by marking or highlighting the section in some way.
Regulation 15 enables us to make criminal legal aid available, in connection with an appeal, in a matter of special urgency, even though we are not satisfied as to any of the matters we would ordinarily have to be satisfied on before granting legal aid. Where we make legal aid available in this way, we will limit it to the emergency steps only.
The regulations do not define "special urgency" and do not specify any situations in which it may be deemed to exist, and we deal with each case on its own merits. The regulation is commonly used to cover marking an appeal, attending a hearing for interim liberation, dealing with an appeal against refusal of interim liberation, or adjusting a stated case including a hearing on proposed adjustments. We will normally limit, as we are entitled to do, a grant under the regulation to specific items of work which have to be carried out urgently.
You should apply to us for criminal legal aid in a matter of special urgency on-line. .
All work in connection with giving an opinion and taking the client’s final instructions on whether to proceed with an appeal is included within the original legal aid grant. We will not, therefore, grant regulation 15 cover for this. Regulation 15 cover would, however, be available to mark the appeal and proceed. You should not, therefore, need to give your client advice and assistance, and we would abate any work done under advice and assistance where there is an existing criminal legal aid certificate.Criminal legal aid under regulation 15 is available for the purpose of ensuring that the time limits for intimating a timeous appeal are met. For example a notice of intention to appeal is lodged within 2 weeks in a solemn conviction appeal, which, if done within the time limit, allows a further 8 weeks to lodge a note of appeal. The regulation 15 grant will also include the usual work undertaken in connection with the sift process. As long as all time limits are met, regulation 15 shall remain in force (and all approved steps chargeable) until such time as leave to appeal is refused or granted, at which stage, on notification by the solicitor as to a successful outcome, an appeal certificate shall be issued.
Where there is any failure to meet a time limit, regulation 15 cover will fall with the expired time limit. In this event the appeal shall be considered to be a late appeal and any further work shall be subject to the relevant process set out above.
The only exception to this rule would be where the solicitor has made a timeous application for an extension of time in which to lodge the intimation of intention to appeal – section 109(1) – or the note of appeal – section 110(a) of the 1995 Act. In these circumstances, the solicitor will need to request SLAB extends the scope of the existing regulation 15 grant to include an application for extension of time. This work shall not be included within a regulation 15 grant as a matter of course.
Under section 24(5) we must establish a procedure whereby a person who has been refused legal aid in summary proceedings may apply for a review of their application. However, there is no statutory requirement for us to have a procedure to review a refusal of criminal legal aid for an appeal. We will, however, be prepared to reconsider an application if satisfied there are good grounds for doing so.