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Processes for consideration of criminal appeals and UK Supreme Court applications
Monday, Jul 25, 2016
This update is to clarify some issues around procedures introduced last year for criminal appeals and applications to the UK Supreme Court
It is now over a year since we implemented changes to our procedures for dealing with applications for legal aid for criminal appeals, and the appropriate forms of criminal legal assistance available at different stages of the process for criminal appeals and applications to the UK Supreme Court. This also included new guidance in relation to legal assistance for late appeals.
The changes in connection with the general appeals and UK Supreme Court appeals took effect from Monday 13 April 2015. The changes were designed to help clarify the type and extent of cover, whether under A&A or legal aid, available at each stage of an appeal, and ensure that legal aid is made available, and remains available, for criminal appeals cases only in appropriate circumstances.
Although the changes have been working well, there still seems to be some confusion, particularly as to when an application for legal aid should be made for criminal appeals in sift cases. This update is designed to remove any confusion that still may exist about these procedures.
The procedures now cover appeals to the Sheriff Appeal Court as well as solemn appeals to the High Court. Special urgency cover under regulation 15 is only made available in the first instance for lodging appeals that are within the statutory time limit, and include the usual work undertaken in connection with the sift process until the completion of the process.
The grant of regulation 15 legal aid remains in force (and all approved steps chargeable) until such time as leave to appeal is granted (either in part or in full), or refused.
Where there is any failure, however, to meet a statutory time limit, regulation 15 cover falls with the expired time limit. In this event, the appeal is considered to be a “late appeal” and any further work is subject to the specific process set out below.
The only exception to this rule is where the solicitor has lodged timeous intimation of intention to appeal in terms of section 109 (1) of the Criminal Procedure (Scotland) Act 1995 and an extension of time is required to lodge the note of appeal (section 110(2) of the 1995 Act).
In these circumstances, the solicitor needs to request that SLAB extends the scope of the existing regulation 15 grant to include an application for extension of time. This work is not included within the regulation 15 grant as a matter of course. Work undertaken in such circumstances is not to be confused with a late appeal (see below).
No application for full legal aid for the appeal should be made until leave to appeal has been granted. The application should be lodged at the conclusion of the sift process with confirmation from Justiciary Office that leave to appeal has been granted.
It is important that the application is submitted at this stage as the grant of regulation 15 legal aid does not cover the preparation and conduct of the full appeal hearing. Legal aid shall be granted for the appeal at this point.
Applications for legal aid after part-grant of leave to appeal at the First or Second Sift
Where leave to appeal has been part-granted in the course of the sift process, an application for legal aid should be made at this stage.
Please include a copy of the intimation from Justiciary Office. Legal aid shall be granted for the appeal at this point. Again, it is important to recognise that the existing regulation 15 cover comes to an end when leave to appeal is part-granted.
All work in connection with the appeal including applying to the court for leave to appeal regarding grounds which failed the initial sift are covered under the appeal certificate.
Advice and assistance cover should be used, and appropriate increases applied for, to cover the work required up to and including the consideration of the extension of time to lodge the appeal, and the consideration of the grounds of appeal.
Regulation 15 cover can also be made available in the unusual event that a hearing is set down for a single judge to consider the matter at first instance.
Applications for full legal aid should not be made until the application for the late appeal and the grounds of appeal have been accepted and leave to appeal is granted.
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 to us in support of the application.
Appeals to the UK Supreme Court
Applications for leave to appeal to the UK Supreme Court made in the High Court of Justiciary remain covered by the substantive legal aid grant.
Regulation 15 cover is not made available for this as the full appeal application can be submitted to us and considered very quickly.
We need confirmation in the form of the Statement of Reasons or an Interlocutor to the effect that the Appeal Court has granted the application for leave to appeal to the UK Supreme Court before the fresh criminal appeal certificate can be granted for the case.
Where the Appeal Court does not grant leave to appeal to the UK Supreme Court, an application, again in terms of section 25AB of the Act, for special permission to appeal to the UK Supreme Court is required.
Regulation 15 cover is not available to allow an application for special permission to appeal to the UK Supreme Court to be lodged.
Before an application for special permission 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:
- the Statement of Reasons issued by the Appeal Court in refusing leave to appeal to the UK Supreme Court, and
- a copy of the substantive Judgement, if available,
must be submitted to us along with the application for a criminal appeal certificate. In considering the appeal application in theses circumstances, we 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 UK Supreme Court.
The solicitor must submit whatever information is available in order to assist us in applying this test.
Where legal aid is granted, this covers the solicitor for all work required lodging the application for special permission to appeal to the UK 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 point.
If you would like further information please contact:
Shona Herd, Solicitor, Criminal Legal Assistance, T: 0131 240 1940 E: firstname.lastname@example.org
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