The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011

S.S.I. 2011 No. 163

Made: 23 December 1997
Coming into force: 1 January 1998

 

Made: 24 February 2011
Laid before Parliament: 28 February 2011

 

                        Coming into force in accordance with regulation 1

 

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 31(9) and 36(1) and (2)(a) of the Legal Aid (Scotland) Act 1986 and all other powers enabling them to do so.

 

As amended to take account of

The Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 [S.S.I 2020 No.191]

The Criminal Legal Aid and Advice and Assistance (Counter-Terrorism and Border Security) (Scotland) Regulations 2021[S.S.I 2021 No.55]

Citation and commencement

1.—(1) These Regulations may be cited as the Criminal Legal Assistance (Duty Solicitors)

(Scotland) Regulations 2011 and, except for regulation 3, come into force on 6th June 2011.

(2) Regulation 3 comes into force on 4th July 2011.

 

Interpretation

2.—(1) In these Regulations “the Act” means the Legal Aid (Scotland) Act 1986.

(2) The criminal legal aid to be provided by a solicitor arranged by the Board pursuant to regulations 5 to 7 includes attending upon, advising and acting for the assisted person in relation to any—

(a) preliminary plea to the competency or relevancy of the petition or complaint;

(b) plea in bar of trial;

(c) mental health proof.

Duty solicitors: advice for suspects[1]

3.—In the circumstances where the Board has arranged, in accordance with section 31(8) of the Act, that a solicitor is to be available for the purpose of providing advice and assistance to any person to whom section 32 (right to have a solicitor present) of the Criminal Justice (Scotland) Act 2016, , paragraph 16(6) of schedule 8 of the Terrorism Act 2000 (entitlement to consult a solicitor), or paragraph 37(6) of schedule 3 of the Counter-Terrorism and Border Security Act 2019 (entitlement to consult a solicitor)[1a], applies –

(a) section 31(1) of the Act does not apply; and

(b) the advice and assistance referred to must only be provided by the solicitor so made available.

Duty solicitors: representation at identification parades

4.—(1) The Board is to arrange for a solicitor to be available for the purpose of providing

criminal legal aid to any person at any identification parade to which section 21(4)(b) of the Act applies.

(2) Paragraph (1) does not apply in relation to a person for whom the Board is to arrange for a solicitor to be available in pursuance of regulation 5.

Duty solicitors: persons charged with murder, attempted murder or culpable homicide

5. The Board is to arrange for a solicitor to be available for the purpose of providing criminal legal aid to any person who has been taken into custody on a charge of murder, attempted murder or culpable homicide until that person is admitted to bail or committed until liberated in due course of law.

Duty solicitors: persons prosecuted under solemn procedure

6.—(1) The Board is to arrange for a solicitor to be available for the purpose of providing

criminal legal aid to any person to whom paragraph (2) applies, from the day the person is first brought before a sheriff for examination until the person is admitted to bail or committed until liberated in due course of law.

(2) This paragraph applies to a person who—

(a) is being prosecuted under solemn procedure (except on a charge of murder, attempted murder or culpable homicide); and

(b) is in custody.

Duty solicitors: persons prosecuted under summary procedure

7.—(1) Subject to paragraph (6), the Board is to arrange for a solicitor to be available for the purpose of providing criminal legal aid to a person to whom paragraph (2) applies (“the accused”),from the day the accused is first brought before a court to answer to any complaint until—

(a) the conclusion of the first diet at which the accused is called upon to plead if, at that diet, the accused tenders a plea of not guilty and following that diet does not make an application for liberation;

(b) any application for liberation made following the first diet at which the accused is called upon to plead has been dealt with;

(c) the conclusion of the proceedings against the accused if, at the first diet at which the accused is called upon to plead, the accused tenders a plea of guilty.

(2) This paragraph applies to a person who—

(a) is being prosecuted under summary procedure; and

(b) either—

(i) is in custody and does not have an appointed solicitor available immediately (either in person or through the services of another solicitor under paragraph (5)) to provide assistance by way of representation under regulation 6A of the Advice and Assistance (Assistance By Way of Representation) (Scotland) Regulations 2003;

or

(ii) has been liberated under section 22(1)(a) of the Criminal Procedure (Scotland) Act 1995 (liberation by police on undertaking to appear).

(3) In this regulation an “appointed solicitor” is a solicitor who—

(a) is instructed directly by the accused; and

(b) either—

(i) the solicitor has (or has had) a solicitor and client relationship with the accused that is demonstrable, to the satisfaction of the Board, by reference to circumstances apart from those relating solely to the appearance; or

(ii) the solicitor is connected with a firm and another solicitor connected with that firm has (or has had) such a relationship with the accused[2].

(4) For the purposes of paragraph (3), the solicitors employed by the Board under section 28A of the Act are to be deemed to be connected with the same firm.

(5) Except as provided in paragraph (5A), representation [3] by an appointed solicitor may be effected, from the appearance from custody onwards, through the services of another solicitor (except the duty solicitor) where—

(a) the other solicitor is expressly authorised to act by the appointed solicitor; and

(b) the other solicitor’s services are required because the appointed solicitor cannot attend personally due to—

(i) illness or incapacity;

(ii) the arising, after instruction in relation to the appearance, of a professional obligation

to act in person in another case that is to call elsewhere at or around the same time;

or

(iii) another good reason.

(5A) For the duration of the emergency period representation by an appointed solicitor may be effected, from the appearance from custody onwards, through the services  of another solicitor where—

(a)        the other solicitor is expressly authorised to act by the appointed solicitor or by a solicitor connected with the appointed solicitor’s firm; and

(b)        the other solicitor’s services are required because the appointed solicitor cannot attend personally due to—

(i)         illness or incapacity;

(ii)        the arising, after instruction in relation to the appearance, of a professional obligation to act in person in another case that is to call elsewhere at or around the same time; or

(iii)       another good reason.

(5B) For the purposes of this regulation “emergency period” means the period beginning on 1 July 2020 and ending on the date on which Part 9 of schedule 4 of the Coronavirus (Scotland) Act 2020(a) expires in accordance with section 12 of that Act. [4]

(6) The Board is not to arrange for a solicitor to be available in pursuance of paragraph (1) in relation to proceedings before a court which has been designated as a drug court by the sheriff principal.

(7) Where the Board has arranged for a solicitor to be available pursuant to paragraph (1), for the purpose specified in that paragraph—

(a) section 31(1) of the Act shall not apply; and

(b) no solicitor, other than the solicitor so made available, shall provide criminal legal aid or assistance by way of representation to the accused.

(8) Paragraph (7) does not apply in relation to proceedings before a court which has been designated as a youth court or a domestic abuse court by the sheriff principal.

Revocation of regulation 5 of the Criminal Legal Aid (Scotland) Regulations 1996

8. Regulation 5 of the Criminal Legal Aid (Scotland) Regulations 1996 (duty solicitors) is revoked.

 

KENNY MACASKILL

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

24th February 2011

 

Footnotes

[1] Substituted by S.S.I. 2017 No. 466 (in force from 25 January 2018)

[1a] Inserted by S.S.I. 2021 No. 55 (in force from 17 February 2021)

[2]  Section 41 of the Act defines “solicitor connected with a firm” and cognate expressions.

[3] Substituted by S.S.I. 2020 No.191 (in force from 1 July 2020 until the end of the emergency period).

[4] Inserted by S.S.I. 2020 No.191 (in force from 1 July 2020 until the end of the emergency period).