Criminal guidance

Carrying out criminal legal assistance

Table of fees
Availability of advice and assistance
- Definition and scope of criminal advice and assistance
- Criminal ABWOR and “representation”
- Initial limits and increases in authorised expenditure
- Who may grant and provide criminal advice and assistance?
- Who is a person for the purpose of receiving criminal AA?
- Cases where our prior approval is required to grant criminal A&A
- Admitting client to A&A and date of commencement of advice
- Initial checks and steps when granting A&A
- Single grant under fixed payment ABWOR in summary criminal proceedings
- Single payment under A&A/ABWOR in criminal proceedings
- Criminal A&A: our functions and responsibilities, you and the assisted person
Advice and assistance application procedures
- Notification of a grant of A&A, provision of ABWOR and your client’s declaration
- Assessment of financial eligibility for criminal advice and assistance, financial limits in Keycard and contribution
- Determination of disposable capital and disposable income
- Financial assessment and verification of capital – to be checked even in passport benefit cases
- Financial assessment and verification of income
- Verification of financial eligibility in criminal A&A
- Verification: application of the tests of “necessary” and “practicable”
- Advice on obtaining and retaining documentary evidence and the age of documentary evidence
- Cases where documentary evidence not available immediately
- Verification where your client is in custody or in prison
- Multiple grants of advice and assistance
- Advice and Assistance for early resolution of cases
- The need to work within initial limit of authorised expenditure and increases in authorised expenditure
- Increases for the employment of counsel, expert witnesses and other third parties
- Increases in post-conviction ABWOR breaches and reviews, multiple deferred sentences and templates
- Petition for the removal of a disqualification under section 42 of the Road Traffic Offenders Act 1988
- Increase requests for Scottish Criminal Cases Review Commission cases
- Advice to or on behalf of children
- Changes of nominated solicitor under advice and assistance
- Second solicitor giving advice and assistance on the same matter: prior authority required
- Procedure for withdrawing from giving advice and assistance/private charging after a grant of advice and assistance
Assistance by way of representation (ABWOR) in summary criminal proceedings
- General scope of ABWOR in summary criminal proceedings
- The basics of making ABWOR available in summary criminal proceedings
- Your role to grant ABWOR
- Our role to do post-grant verification checks – A&A and ABWOR
- ABWOR where client is not appearing from custody – when is it available?
- Failure to appear – appearance on a warrant – continued availability of ABWOR
- ABWOR for early resolution of cases
- ABWOR where client not appearing from custody: the interests of justice test
- ABWOR in summary cases – assisted person in custody – “appointed solicitor”
- Definition of “appointed solicitor” and principal criteria for acting
- Criteria and conditions to act as appointed solicitor
- Examples of situations where you cannot appear as appointed solicitor on behalf of a client
- Change of solicitor under summary criminal ABWOR
- Criminal ABWOR – common queries
Assistance by way of representation in other criminal proceedings
- General scope of ABWOR in non-summary criminal proceedings
- Eligibility criteria for general ABWOR (other than ABWOR in summary criminal proceedings)
- The provision of general criminal ABWOR
- General ABWOR proceedings for which a financial test is necessary
- Proceedings under the Criminal Procedure (Scotland) Act 1995
- Double jeopardy cases
- General ABWOR proceedings for which a financial test is not necessary
- ABWOR proceedings needing our prior authority
- Recovery proceedings under ABWOR needing our prior authority
Assistance by way of representation in parole board proceedings
- Provision of A&A and ABWOR in Parole Board cases: introduction
- ABWOR in Parole Board cases: relevant legal aid regulations and Parole Board rules
- Availability of ABWOR for Parole Board cases: specific categories of prisoner
- Parole Board procedure: governing rules and process
- Parole Board cases: scope of ABWOR available and initial limit of expenditure
- Parole Board cases: eligibility criteria for ABWOR
- Parole Board cases: increases in authorised expenditure
- Parole Board interviews: outwith scope of ABWOR
General availability of criminal legal aid
- Scope and nature of criminal legal aid
- Who may provide criminal legal aid
- Distinct proceedings, bail, preliminary pleas, reduction from solemn to summary, desertion of proceedings, remits to the High Court
- Separate applications for legal aid under summary and solemn procedure
- When to make an application for automatic criminal legal aid, solemn and summary criminal legal aid and an appeal case
- Criminal legal aid for a referral to the European Court, compatibility issues and the UK Supreme Court
Automatic availability of criminal legal aid
- Availability of automatic criminal legal aid
- Automatic legal aid for an identification parade
- Automatic legal aid for solemn proceedings
- Automatic legal aid for summary proceedings, duty solicitors and appointed solicitors
- Automatic legal aid for cases involving mental health issues, pleas in bar of trials, mental health proof, examination of facts, section 62 or 63 appeals
- Automatic legal aid for new prosecution for the same or similar offence
- Automatic legal aid for cases involving sexual offences, child witnesses, vulnerable witnesses and the Domestic Abuse (Scotland) Act 2018
- Intimation form for automatic criminal legal aid
Court duty solicitor arrangements
- Our obligation to make a court duty solicitor available
- Identification parades and purposes for which a court duty solicitor must be available in solemn and summary procedures
- Continuity of representation outwith your period of court duty
- Circumstances in summary custody cases when only the court duty solicitor may give legal aid
- Criminal court duty plans, eligibility criteria and consultation with local faculties
- Delegating or exchanging court duty work
- Solicitors’ fees for Identification Parades, Judicial Examinations and Duty Scheme
- Appointed solicitors, duty solicitor/half fee, prevaricating witness
- Responsibilities and obligations of the court duty solicitor and the relationship with the nominated solicitor
- Advice and assistance when acting as court duty solicitor
Criminal legal aid applications to the court
- Applications to the court for legal aid in a summary 23(1)(b) case
- How to complete a court application form CRIM/COURTAPP
Applications for Exceptional Case Status in summary criminal proceedings
- Exceptional case status application in summary proceedings
- Factors we take into account when assessing exceptional case status
Applications in summary criminal proceedings
- Availability of criminal legal aid in summary proceedings
- Applying for legal aid in summary proceedings
- Time limit for applications in summary proceedings
- Statutory criteria for a grant of criminal legal aid in summary proceedings
- Statutory factors to be taken into consideration when applying the interests of justice test in JP Court cases
- Special urgency in summary criminal proceedings
- Review of a refusal of an application in summary proceedings
- Glasgow Alcohol Court and other problem Solving Courts
Financial eligibility for summary criminal legal aid
- Undue hardship test in summary criminal legal aid applications
- Assessing disposable income
- Changes in financial circumstances
- Assessing disposable capital
Applications in solemn proceedings
- Availability of legal aid in solemn criminal proceedings
- Legal Aid Online applications for solemn legal aid
- Limited availability if your client has other rights and facilities
- Assessment of undue hardship in solemn proceedings
- Special urgency and solemn legal aid
- Procedure for review of our decision to refuse legal aid
Financial eligibility for solemn criminal legal aid
- Assessing disposable income in solemn proceedings
- Undue hardship test in solemn criminal legal aid applications
- Assessing disposable capital
- Changes in financial circumstances
Approval for an expert witness
- Approval for the employment of expert witnesses procedures and timings
- Limits on expenditure
- Type of expert witnesses and their qualifications
- Is it reasonable to employ the particular expert?
- Expert Witnesses’ rates, travel and other expenses
- Approval for an expert – what work is covered?
- Template applications
- Retrospective requests for the approval of Expert Witnesses – the “special reason” test
- Additional guidance on specific expert witnesses – defence post mortems, drug experts, psychologists, psychiatrists, forensic accountants
Approval for counsel
- Approval for counsel – test, definitions and principles
- Circumstances where approval for counsel is required
- Circumstances where prior approval for counsel is not required
- Circumstances where we cannot grant prior approval
- Approval of counsel in Sheriff court proceedings
- Approval of counsel at the Petition stage in High Court proceedings
- Applications for employment of senior counsel, more than one junior counsel and senior counsel acting alone
- Appeal Court cases
- UK Supreme Court cases
- Retrospective requests for the approval of counsel – the “Special reason” test
- Division of duties between you and counsel
- Instructing a solicitor advocate
Work that needs our prior approval after legal aid granted
- Applying for prior approval
Approval for unusual work
- Definitions and work we consider to be of an unusual nature
- Work we do not consider unusual
- Approval for costs of special measures for child witnesses and vulnerable adult witnesses
- Taking defence statements in High Court cases
- Statements in multiple accused cases
- No ability to apply for retrospective approval
Approval for unusually large expenditure
- Work likely to involve unusually large expenditure
- Circumstances where you do not need to apply for approval
- Circumstances where you need to apply for prior approval
- Guidelines for applying for approval – supporting documents, issues to be addressed and costs
- How we will assess the application
- No ability to apply for retrospective approval
- Expert witnesses’ costs
- Approval for costs of special measures for child witnesses and vulnerable adult witnesses
- Statements in multiple accused cases
- Taking defence statements in High Court cases
Criminal legal aid applications for appeals
- General availability of criminal legal aid for appeals and status as distinct proceedings
- Choosing the right legal aid declaration form for criminal appeals
- Supporting documentation you should provide in a legal aid application for a criminal appeal
- Availability of special urgency for criminal appeals
- Appeal applications where financial eligibility test to be applied and information on assessing a client’s disposable income
- Information on assessing a client’s disposable capital where financial test to be applied in a criminal appeal application
- Availability of legal aid in appeals for a client with other rights or facilities to assist with legal costs
- Timing issues: when to apply for legal aid for a criminal appeal
- Criminal legal aid for late appeals
- Legal aid application for an appeal where leave to appeal is not required
- Review of our refusal to grant legal aid for a criminal appeal
- Criminal legal aid and a Crown appeal: is a separate legal aid application required?
- Availability of legal aid and tests you should address in an application for legal aid for an appeal to the UK Supreme Court
- Power of the High Court to determine interests of justice test in appeal applications
- Legal aid for an appeal by a person convicted of an offence who has since died Criminal legal aid for appeals in Scottish Criminal Cases Review Commission cases
- Criminal legal aid for appeals in Scottish Criminal Cases Review Commission cases
High cost cases
- Criminal cases subject to special arrangements
- How we assist you in high cost/complex cases
- Our role in identifying and avoiding duplication of work across high cost cases
- Good practice in complex criminal cases – High Court Protocol
Change of solicitor
- Nominated solicitor ceasing to act for the assisted person
- Client dispensing with your services
- Assisted person wants another solicitor to act
- Turnaround time for applications for change of solicitor
Termination of criminal legal aid
- Termination of criminal legal aid by the court
- Termination of criminal legal aid by us
Proceeds of crime
- Criminal and civil legal aid in proceeds of crime cases
- Proceeds of crime work where legal aid granted at first instance
- Proceeds of crime work where no legal aid in the first instance

Legal aid for contempt of court proceedings

VAT

Value Added Tax (VAT) – how it is applied on legal aid accounts

Accounts common queries

Accounts: Common queries in relation to the preparation and submission of legal aid accounts

Criminal Advice & Assistance and ABWOR accounts

CJSA, Counter Terrorism, Police Station Advice

Criminal legal aid accounts

Interim payment procedure for fees and/or outlays
- Procedure for submitting interim claims on or after 1 October 2022

Criminal fixed payment accounts

Table of fees
Introduction to summary criminal fixed payments
Proceedings to which fixed payments do not apply
Fixed payments allowable in a case
Outlays
Accounts and general issues
Appendix 1: Summary of Criminal fixed payment schedules
Appendix 2: Proceedings arising out the same incident

Solemn accounts

Solemn Fees chargeable under schedule 1A, Part 2

Interpreting and translating

Language interpreting and translation

Carrying out criminal legal assistance

Availability of advice and assistance

Advice and assistance application procedures

Assistance by way of representation (ABWOR) in summary criminal proceedings

Assistance by way of representation in other criminal proceedings

Assistance by way of representation in parole board proceedings

General availability of criminal legal aid

Automatic availability of criminal legal aid

Court duty solicitor arrangements

Criminal legal aid applications to the court

Applications for Exceptional Case Status in summary criminal proceedings

Applications in summary criminal proceedings

Financial eligibility for summary criminal legal aid

Applications in solemn proceedings

Financial eligibility for solemn criminal legal aid

Approval for an expert witness

Approval for counsel

Work that needs our prior approval after legal aid granted

Approval for unusual work

Approval for unusually large expenditure

Criminal legal aid applications for appeals

High cost cases

Change of solicitor

Termination of criminal legal aid

Proceeds of crime

Legal aid for contempt of court proceedings

VAT

Accounts common queries

Criminal Advice & Assistance and ABWOR accounts

Criminal legal aid accounts

Interim payment procedure for fees and/or outlays

Criminal fixed payment accounts

Introduction to summary criminal fixed payments

Proceedings to which fixed payments do not apply

Fixed payments allowable in a case

Outlays

Accounts and general issues

Appendix 1: Summary of Criminal fixed payment schedules

Appendix 2: Proceedings arising out the same incident

Solemn accounts

Interpreting and translating