Opposition to applications for commission and diligence re sensitive records in criminal proceedings

Thursday, Mar 03, 2016

We have prepared some guidance following the Scottish Government's determination in terms of section 4(2)(c) of the Legal Aid (Scotland) Act 1986 made following the case of WF v Scottish Ministers [2016] CSOH 27.

The determination directs that SLAB may, subject to certain conditions and restrictions, pay from the Scottish Legal Aid Fund, fees and outlays incurred by a solicitor in connection with the provision of advice, assistance and representation to a client seeking to oppose the recovery of medical or other sensitive documents by an accused person in criminal proceedings.

The determination is effective from 1st March 2016.

The qualifying conditions permitting the application of the determination are:

  • that the proceedings are criminal proceedings in which an accused has applied for recovery of documents by commission and diligence
  • that the documents sought include medical or sensitive documents relating to the client who is seeking to oppose
  • that the court has ordered intimation of the application on the client
  • that the opposition is on the basis of infringement of the Article 8 right to respect for private and family life, etc.

The determination only applies (and payment may only be made for work) if, prior to the commencement of any work, SLAB is satisfied, upon written application, that legal representation is required to allow the client to participate effectively in the proceedings.

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.

There is no means testing and no liability for contribution for those eligible. However, the determination is subject to the following restrictions and conditions:

  • the sum payable by way of fees and outlays shall be calculated as if the services provided was in all respects ABWOR and as if the proceedings were specified in the Advice and Assistance (ABWOR) (Scotland) Regulations 2003
  • the initial limit of expenditure is limited to £150.00
  • 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 approval by SLAB of an application
  • payment may only be made for work which is necessarily and reasonably undertaken with due regard for economy.

Making an application

We will be undertaking work as a matter of urgency to allow the use of legal aid online but in the meantime, initial applications and any applications for increases in authorised expenditure should be submitted by secure email (CJSM) to: ord@slab.org.uk.cjsm.net. Please note, this secure email address can only be used by solicitors registered to send CJSM emails.

Any solicitor not set up to send CJSM emails please contact Shona Herd, Legal Services Solicitor, on 0131 240 1940, or ord@slab.org.uk

It would be helpful if you could phone Shona on submitting an application email.

Any changes to procedure will be intimated by update as and when in place.

Applications should include the circumstances of the application and particularly:

1.       details of the basis of the opposition

2.       details as to how the effective participation test is met

You must also send us a copy of the application for the approval of specification of documents/commission and diligence and the interlocutor appointing intimation.

Applications for increases in authorised expenditure should also be sent to the above contact.

Solicitors are required to be registered to provide criminal legal assistance or civil legal assistance.

We shall issue guidance in relation to claims for payment shortly.

More information

If you have any queries please contact Shona Herd on 0131 240 1940.

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