Handbooks Index


Criminal handbook - Table of contents

Introduction


Part 1 - Registration, compliance and quality assurance


Part 2 - Outline of steps involved in criminal legal assistance


Part 3 - Carrying out criminal legal assistance

Chapter 1 - Availability of advice and assistance

Chapter 2 - Advice and assistance application procedures

Chapter 3 - ABWOR in summary criminal proceedings

Chapter 4 - ABWOR in other criminal proceedings

Chapter 5 - ABWOR in parole board proceedings

Chapter 6 - Increases for advice and assistance and ABWOR

Chapter 7 - General availability of criminal legal aid

Chapter 8 - Automatic availability of criminal legal aid

Chapter 9 - Duty solicitor arrangements

Chapter 10 - Court applications - criminal legal aid

Chapter 11- Summary - applications to SLAB

Chapter 12 - Summary - financial eligibility

Chapter 13 - Solemn - applications to SLAB

Chapter 14 - Solemn - financial eligibility

Chapter 15 - Appeals - applications to SLAB

Chapter 16 - Post grant work and work needing prior approval

Chapter 17 - High cost and complex cases

Chapter 18 - Change of solicitor

Chapter 19 - Termination of criminal legal aid

Chapter 20 - Proceeds of crime


Part 4 - Contempt of court


Part 5 - Fixed payment accounts


Part 6 - Detailed accounts


Part 7 - Contact and complaints


Part 8 - Legislation


a

Criminal handbook

Part 3: Carrying out criminal legal assistance


Chapter 4

ABWOR in other criminal proceedings

4.1 General scope of ABWOR in criminal proceedings
4.2 Eligibility criteria for ABWOR
4.3 Responsibility of solicitor
4.4 Cases for which ABWOR is available other than those under summary procedure
4.5 Financial test necessary
4.6 No financial test
4.7 Cases where our prior authority is needed
4.8 Removal of disqualification of driving
4.9 Proceeds of crime proceedings
4.10 Initial limits of expenditure
4.11 Procedure for applying for an increase
4.12 Youth court and domestic abuse court pilots
4.13 Drug court
4.14 Double jeopordy cases

4.15 Recovery of sensitive documents
 


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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

 

4.1 General scope of ABWOR in criminal proceedings

Assistance by way of representation (ABWOR) is defined in section 6(1)(b) of the 1986 Act as meaning (subject to section 12B(3) of the Act):

“advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings

(a) before a court or tribunal; or

(b) in connection with a statutory inquiry; whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf)”.

Chapter 3 set out the cases where ABWOR is available for summary criminal matters – this chapter deals with other cases that were not covered by that chapter.

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4.2 Eligibility criteria for ABWOR

To be eligible for ABWOR, the applicant must normally be eligible for advice and assistance. These tests are:

  • financial eligibility – see (Part III paragraphs 2.3 to 2.8) (but see paragraph 4.6 for some exceptions where the financial tests do not apply)
  • whether other rights or facilities make it unnecessary for the applicant to receive advice and assistance, or a reasonable expectation of getting financial or other help from another body (see Part III paragraph 1.18)
  • whether the applicant has already received advice and assistance from a solicitor on this matter (see Part III paragraph 1.19.)

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4.3 Responsibility of solicitor

It is your responsibility to decide whether

  • the proceedings are within the scope of ABWOR
  • the criteria for giving ABWOR are satisfied in the particular case
  • the client is financially eligible for advice and assistance
  • you need our authority before granting ABWOR.

ABWOR is only available in the circumstances laid down in regulations 6, 6A and 16(A)(1B). You cannot give advice and assistance, and by extension ABWOR, in connection with any proceedings before a court or tribunal at a time when legal aid is available for those proceedings. It is not competent to provide ABWOR to someone who has tendered a plea of not guilty and has been refused criminal legal aid

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4.4 Cases for which ABWOR is available other than those under summary procedure

Regulation 3 sets out the miscellaneous proceedings for which ABWOR is available, either with or without a financial test.

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4.5 Financial test necessary

So long as the relevant tests are met, you can provide criminal ABWOR for:

  • certain Parole Board cases (see chapter 5)
  • the return of sound equipment;
  • variation/termination of a football banning order;
  • revocation/variation of a non-harrassment order;
  • variation/revocation/breach of a restriction of liberty order;
  • variation/revocation/breach of requirements of a DTTO;
  • progress review of a probation order;
  • breach of probation order;
  • conviction of probationer following offence during probation period;
  • breach of community service order;
  • amendment/revocation of a community service order;
  • breach of a supervised attendance order;
  • amendment/revocation of a supervised attendance order
  • breach of community payback order;
  • periodic review of community payback order;
  • variation/revocation/discharge of community payback order;

Before you provide ABWOR you must be satisfied that the accused person qualifies financially (see Part III paragraphs 2.3 to 2.8). For these cases you do not need to carry out the interests of justice test.

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4.6 No financial test

You can provide criminal ABWOR for:

  • obstructive witness order under sections 90B-90E of the 1995 Act;
  • a warrant for further detention or extension under the Terrorism Act 2000;
  • proceedings under section 5 of the Protection from Abuse (Scotland) Act.
  • court hearings to determine whether a new prosecution under the Double Jeopardy (Scotland) Act can take place. (see 4.14)
  • opposition to applications for commission and diligence regarding sensitive records in criminal proceedings (where SLAB is satisfied that legal representation is required to allow the client to participate effectively in the proceedings). 

If you do so, you need not apply

  • the financial test or
  • the interests of justice test. 

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4.7 Cases where our prior authority is needed

You need our prior authority to give ABWOR if

  • the applicant has other rights and facilities that might fund the case (see Part III paragraph 1.18)
  • the applicant has previously received advice and assistance on this matter from a solicitor (see Part III paragraph 1.19)
  • the case involves –
    • removal of disqualification from driving (see paragraph 4.8) or
    • proceeds of crime proceedings (see paragraph 4.9).

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4.8 Removal of disqualification from driving

You cannot give ABWOR for a petition for the removal of a disqualification from driving until you have obtained our prior authority, using Legal Aid Online (find out more about how to submit a Criminal ABWOR uplift application).

Before we can authorise this, we must be satisfied that it is reasonable in all the circumstances. Any request should address matters such as

  • the loss of an employment opportunity for which a driving licence is required
  • the absence of suitable alternative transport such as public transport, and
  • whether the applicant now has more temperate habits that mean restoring the licence is not likely to pose a danger to the public.

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4.9 Proceeds of crime proceedings

You must get our prior approval in connection with applications under the provisions of the Proceeds of Crime (Scotland) Act 1995 and the Proceeds of Crime Act 2002. Regulation 5(2)(i) provides for ABWOR in relation to “representations made to the court under section 92 of the Proceeds of Crime Act 2002 by any person, other than the accused, whom the court thinks is likely to be affected by a confiscation order.” Representations made to the court on behalf of the accused, whether under the 1995 or 2002 Act, are covered by criminal legal aid.

You should be satisfied that the proceedings under the 2002 Act are proceedings in a criminal court or in the sheriff court where the sheriff is exercising criminal jurisdiction.

  • Section 92(13) defines “the court” where referred to in sections 92 to 118 (confiscation orders) as meaning the High Court of Justiciary or the sheriff.
  • On the other hand, section 119, relating to restraining orders, defines “court” where it appears in sections 120 to 140 and Schedule 3 as meaning the Court of Session (where the diet fixed for the purposes of section 76 of the Criminal Procedure Act is held in the High Court of Justiciary) or the sheriff exercising their civil jurisdiction (where the diet is held in the sheriff court).

If the proceedings in which you are involved are under sections 119 to 140, these are not criminal but civil proceedings. You need to apply for civil legal aid for any proceedings before the civil courts. Under no circumstances can any case proceeding in a civil court be covered by a criminal certificate or any element of criminal proceedings be conducted under a civil certificate.

To get our authority, you should or apply for ABWOR using Legal Aid Online (see our guidance on how to submit an application on LAOL).

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4.10 Initial limits of expenditure

Regulation 3(c) of the Advice and Assistance (Financial Limit) (Scotland) Regulations 1993 sets the following limits where the ABWOR:

(iii) relates to any other criminal matter, £90;

(viii) involves a second or subsequent diet that has been ordered by the court, £165

(ix) relates to Parole Board proceedings, £165.

For Regulation 4 ABWOR cases, for example post conviction breach cases such as breach of a Community Payback Order, you can self certify to the authorised expenditure level of £165 if a second or subsequent diet has been ordered by the Court.  This should be intimated to at the time of submitting your account.  This cannot be done at the time of submitting the initial ABWOR application.  However, if further expenditure is required over the £165, an increase in authorised expenditure can be applied for in the usual way.

 

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4.11 Procedure for applying for an increase

You must apply to us for an increase in authorised expenditure – see chapter 6 for more information on applying for an increase. We would expect you to provide information as to why the sum sought is reasonable and necessary, together with a breakdown as to how the costs have been arrived at.

For some types of ABWOR case, templates are available, which allow you to apply for one increase to cover the costs of deferred sentences and other post-conviction hearings.

For Regulation 4 ABWOR cases, for example post conviction breach cases such as Breach of a Community Payback Order, you can self certify to an authorised expenditure level of £165 if a second or subsequent diet has been ordered by the court.  You intimate this to us at the time of submitting your account, and not the initial ABWOR application.  However, if further expenditure is required over the £165, an increase in authorised expenditure can be applied for in the usual way.

 

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4.12 Youth court and domestic abuse court pilots

One of the requirements for these pilots is that the accused is represented. Regulation 5(3) of the Criminal Legal Aid (Scotland) Regulations 1996 allows the client’s own solicitor to provide automatic legal aid under section 22(1)(c) of the Act as well as the duty solicitor. Representation can be given under criminal legal aid, by applying the criteria prescribed by section 24 of the Act.

Regulation 6(2) provides that ABWOR is available to an accused person coming before a court the sheriff principal has designated a youth court or domestic abuse court. It includes representation of an accused following a finding of guilt, but only where criminal legal aid has not been granted to that person in terms of section 24 of the Act. Regulations 7(2A) and (2B), setting out the interests of justice criteria to be applied in providing ABWOR, are disapplied by regulation 7(3) where the summary criminal proceedings are before a youth court or domestic abuse court. However, you must still carry out the standard financial eligibility tests.

These provisions apply to any sheriff court that is designated as a youth court or domestic abuse court by the Sheriff Principal.

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4.13 Drug court

Unlike the youth court and the domestic abuse court, which both allow the client’s own solicitor to provide automatic legal aid to an accused person in custody under summary procedure as well as the duty solicitor, the duty solicitor arrangements do not apply in the drug courts. The duty solicitor, on the day, can represent an accused who is being referred to the drug court, but as a solicitor of choice.

Unusually, the automatic legal aid under section 22(1)(c) is chargeable by way of a fixed payment, as are subsequent hearings before the drug court.

 Where your client pleads not guilty and legal aid is granted, any referral to the drug court will continue under the fixed payment criminal legal aid. Where you have given ABWOR for summary criminal proceedings under regulations 3(a), 6 and 7 of the ABWOR regulations, we consider that a subsequent referral to the drug court is part of the sentencing procedure and, therefore, chargeable under the original ABWOR certificate.

You cannot provide criminal legal aid and move to ABWOR where the case is referred to the drug court, or vice versa. If you have provided neither legal aid nor summary criminal ABWOR, there is no provision for payment for drug court attendances.

A referral to the drug court in a solemn legal aid case forms part of the case, chargeable under the legal aid certificate.

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4.14 Double Jeopardy Cases

Assistance By Way of Representation (ABWOR) can  be made available under the  Double Jeopardy (Scotland) Act 2011 where:

  • An application has been made under sections 2(2), 3(3)(b) or 4(3)(b) of the Act to bring a new prosecution where a person has been acquitted of an offence;
  • An application has been made under section 11(3) of the Act where a person has been acquitted of an offence involving the physical injury of another person and the injured person has since died; or
  • An application has been made under section 12(3) of that Act to bring a new prosecution on the basis that the previous proceedings were a nullity.

In each of these situations initial proceedings to determine whether a new prosecution can take place can only be covered by ABWOR. The initial authorised expenditure limit of £90 applies, but an increase in authorised expenditure can also be applied for to cover the work required, including any counsel’s fees for these High Court cases.

No financial or interests of justice tests need to be applied befroe you can provide ABWOR for these cases, but you should discuss these cases with SLAB as early as possible to ensure that appropriate levels of authories expenditure can be put in place to allow the preparatory work to commence.

The category code (DJEP) should be used for these ABWOR cases. ABWOR covers work at these hearings only. Should the case then move to a new prosecution, a fresh application then needs to be made to the Board.

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4.15 Recovery of sensitive documents

The Advice and Assistance (Proceedings for Recovery of Documents) (Scotland) Regulations 2017 came into effect on 13 September 2017. These superseded the determination made in March 2016 by the Scottish Government following the case of WF v Scottish Ministers [2016] CSOH 27.

The regulations allow ABWOR to be made available in relation to recovery proceedings.

Recovery proceedings

Recovery proceedings are defined as proceedings in relation to an application for orders for recovery of sensitive documents in criminal proceedings.

Eligibility

ABWOR: There is no means testing and no liability for a contribution but ABWOR in recovery proceedings may only be made available if SLAB is satisfied that it is required to allow the client to participate effectively in the proceedings, and SLAB approves the provision in advance

Advice and Assistance: Applicants for whom ABWOR is not available may still apply for advice and assistance, but are assessed for financial eligibility on the standard basis, and may similarly be liable for a contribution.

Registration requirements for solicitors undertaking recovery proceedings

Although the ABWOR which is available is criminal ABWOR, the regulations make provisions that any solicitor registered to provide criminal, civil or children’s legal assistance may undertake the work. 

In addition, solicitors who are not on these registers can also do this work, and should contact the SLAB Receipts and Payments section on 0131 226 1968 to obtain authorisation to apply for ABWOR for these cases.

Qualifying conditions permitting an application for ABWOR

The qualifying conditions are that:

•    the proceedings are criminal proceedings in which an application has been made for recovery of documents by commission and diligence

•    the documents sought include medical or sensitive documents relating to the client who is seeking to oppose

•    the application has been intimated to the client

•    the opposition is on the basis of infringement of the Article 8 right to respect for private and family life, etc.

Restrictions

ABWOR: ABWOR for recovery proceedings is subject to the following restriction:

•    the initial limit of expenditure is limited to £150.00

Advice and Assistance: Advice and assistance for recovery proceedings is subject to the following restrictions:

•    the initial limit of expenditure is limited to £35.00

If you intend to provide advice only you should provide the applicant’s financial details. If the applicant is financially eligible the initial limit of authorised expenditure will be £35. Any application for an increase to that initial sum should be submitted in the usual way.

Conditions

ABWOR

ABWOR for recovery proceedings are subject to the following conditions:

•    increases in authorised expenditure may be applied for. Any increase granted is effective only from the date thereof.

•    there is no scope for payment in respect of any work undertaken prior to SLAB granting an ABWOR application

•    payment may only be made for work which is necessarily and reasonably undertaken with due regard for economy.

•    the work constitutes criminal ABWOR, and sums payable by way of fees and outlays shall be calculated on that basis

A & A

If for any reason ABWOR is not available in terms of the above arrangements or an application is refused, standard advice and assistance may still be made available to a client if they are financially eligible using the current advice & assistance Keycard.   The normal conditions applicable to advice and assistance apply.

Making an application for prior approval in relation to ABWOR

The type of ABWOR available for these proceedings requires, prior to the commencement of any work, the approval of SLAB.

SLAB has to be satisfied, that legal representation is required to allow the client to participate effectively in the proceedings.

The solicitor should commence the application process in the usual way, and when making the application on-line, supply relevant details to enable SLAB to assess and, as appropriate, approve the application.

In cases where you are providing representation you should make an ABWOR application using the legal aid online (LAOL) system. 

Category code to be used

The new category code ORD should be used in all applications for the recovery proceedings.

When making an ABWOR application on LAOL, you should select the new ORD category and no financial details will be required. You will simply be required to answer the effective participation questions below.

Effective participation

Effective participation is assessed under reference to:

•    the complexity of the case, including the existence and difficulty of any points of law in issue;
•    the nature of the issues involved
•    the ability of the person to consider and challenge any document or information in the proceedings without the assistance of a solicitor; or
•    the ability of the person to present his or her views in an effective manner without the assistance of a solicitor.

Effective participation questions

 

 

Free text boxes will become available for you to enter detailed information about the case when you answer ‘Yes’ to the first two questions and ‘No’ to the second two questions. After this there is also an additional free text box for you to provide any other relevant information you wish to be considered.

Documentation required

Please attach:

•    a copy of the application for the approval of specification of documents/commission and diligence

•    the interlocutor appointing intimation.

This new category code and procedure replaces our previous guidance issued to the profession on 3 March 2016.


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