The Legal Aid in Contempt of Court Proceedings (Scotland) Regulations 1992

S.I. 1992 No. 1227 (S.121)

  Made: 13th May 1992  
  Laid before Parliament: 5th June 1992  
  Coming into force: 1st July 1992  

 

As amended to take account of:

The Legal Aid in Contempt of Court Proceedings (Scotland) Amendment Regulations 1994 [S.I. 1994 No. 1016 (S.48)] – (5 May 1994);

The Legal Aid in Contempt of Court Proceedings (Scotland) Amendment Regulations 1995 [S.I. 1995 No. 2319 (S.172)] – (26 September 1995);

The Legal Aid in Contempt of Court Proceedings (Scotland) Amendment Regulations 1996 [S.I. 1996 No. 2550 (S.199)] – (1 November 1996);

The Legal Aid in Contempt of Court Proceedings (Scotland) Amendment Regulations 2005 [S.S.I. 2005 No. 451] – (5 October 2005);

The Legal Aid (Supreme Court) (Scotland) Regulations 2009 [S.S.I. 2009 No. 312] – (1 October 2009);

The Advice and Assistance and Legal Aid (Online Applications Etc.) (Scotland) Regulations 2011 [S.S.I. 2011 No. 161] – (1 April 2011).

 

The Secretary of State, in exercise of the powers conferred on him by sections 36(1) and (2)(a), (c), (d), (e), (f) and (g) and 37(1) of the Legal Aid (Scotland) Act 1986, and of all other powers enabling him in that behalf, hereby makes the following Regulations:-

 

Citation and commencement

  1. These Regulations may be cited as the Legal Aid in Contempt of Court Proceedings (Scotland) Regulations 1992 and shall come into force on 1st July 1992.

 

Interpretation

  1. (1)  In these Regulations unless the context otherwise requires –

“the Act” means the Legal Aid (Scotland) Act 1986;

“assisted person” means a person receiving legal aid under section 30 of the Act;

“Board” means the Scottish Legal Aid Board;

[1]“counsel” includes a solicitor-advocate;

“High Court” means the High Court of Justiciary;

“junior counsel” includes a junior solicitor-advocate;

“legal aid” means legal aid given under section 30 of the Act in connection with proceedings for contempt of court;

“legal representative” means person having parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995 or a judicial factor or a person authorised to act on an adult’s behalf under the Mental Health (Care and Treatment) (Scotland) Act 2003[2];

“patient” has the same meaning as in section 329 of the Mental Health (Care and Treatment) (Scotland) Act 2003[3];

“right of audience” means in relation to a solicitor, a right of audience in, on the one hand, the Court of Session and the Supreme Court or, on the other hand, the High Court of Justiciary, which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980;

“senior counsel” includes a senior solicitor-advocate, except in paragraph (2) below;

“solicitor-advocate” means a solicitor, whether instructed by another solicitor or not, when and only when he is exercising his right of audience or acting in connection with the exercise of such a right and “junior solicitor-advocate” and “senior solicitor-advocate” shall be construed in accordance with paragraph (2) below;

and, unless the context otherwise requires, any reference in these Regulations to a solicitor shall not include a solicitor when acting as a solicitor-advocate.

(2)[4]  For the purposes of these Regulations, a solicitor-advocate shall be –

  • a senior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a senior counsel in a case where the Board has authorised the employment of senior counsel under regulation 7(1)(a) or (2) below;
  • a junior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a junior counsel, whether or not the Board has authorised the employment of senior counsel in the case.

 

Manner of applications[5]

2A. Any application to the Board under regulations 7 and 7A shall be made in such form as the Board may require, which may include an online form.

 

Distinct proceedings

  1. (1)  For the purposes of legal aid under section 30 of the Act the following shall, subject to paragraph (2) below, each be treated as distinct proceedings: –
(a) any proceedings for contempt of court which arise during the course of or in connection with any other proceedings;
 

(b)

 

any appeal against the decision of a court in the proceedings for contempt of court referred to in sub-paragraph (a) above.

(2)  Proceedings under sub-paragraph (a) above shall include any remit of the person in contempt from the district court to the sheriff court under section 15(5) of the Contempt of Court Act 1981.

 

Applications for legal aid

  1. (1)  An application for legal aid in connection with proceedings to which the provisions of section 30(1) of the Act apply shall be made to the court dealing with the alleged contempt in writing and in such form as the court may require, or in such manner as the court may accept as sufficient in any particular case.

(2)  The court’s decision on an application for an award for legal aid under section 30(1) shall be intimated forthwith to the Board and the applicant or his solicitor or counsel.

(3) [6] An application to the Board for legal aid in connection with the proceedings to which the provisions of section 30(3) of the Act apply shall –

(a) be in such form, which may include an online form, and giving such information as the Board may require;
 

(b)

 

include the name and address of the solicitor nominated by the applicant to act for him; and

(c) [Omitted]
 

(d)

 

where section 25(2)(c) of the Act applies by virtue of section 30(3) of the Act, include a statement of the grounds of appeal and any other circumstances which the applicant considers relevant to enable the Board to be satisfied that in all the circumstances of the case it is in the interests of justice that the applicant should receive legal aid.

(4)  An applicant for legal aid under section 30(3) of the Act shall, if required by the Board to do so, attend for interview by a representative of the Board or supply such further information or documents as the Board may require to enable it to determine the application.[7]

 

Matters of special urgency

  1. (1)  Where an applicant seeks legal aid under section 30(3) of the Act, in a matter of special urgency, the Board may, if it thinks fit, make legal aid available to him notwithstanding that it has not been satisfied as to the matters specified in section 25(2) as read with section 30(3) of the Act.

(2)  Where legal aid is made available under paragraph (1) above, the Board shall –

(a) specify that it is available only for such limited purposes as the Board thinks appropriate in the circumstances;
(b) require the applicant as soon as practicable to satisfy it that the requirements of section 25(2) as read with section 30(3) of the Act are met;
(c) in the event of the applicant not so satisfying it, cease to make legal aid available to him.

 

Notification of decision

  1. The Board’s decision on an application for an award of legal aid under section 30(3) shall be intimated forthwith by the Board to the applicant and his solicitor.

 

Employment of counsel and expert witnesses in proceedings on appeal

  1. (1) Subject to paragraph (2) below, the prior approval of the Board shall be required in proceedings on appeal –
(a) where the proceedings are in the Court of Session or High Court, for the employment of senior counsel or of more than one junior counsel;
(b) where the proceedings are in the sheriff court for the employment of counsel;
(c) for the employment of an expert witness.

(2)  Paragraph (1) above shall not apply where the Board, on an application made to it for retrospective sanction of the employment of counsel, or as the case may be, of an expert witness, considers that the employment would have been approved by it and that there were special reasons why prior approval was not applied for.

 

Prior approval of the Board for work of an unusual nature or likely to involve unusually large expenditure [8]

7A.  The prior approval of the Board shall be required for work of an unusual nature or likely to involve unusually large expenditure.

 

Duty of Board to cease to make legal aid available and right to recover sums paid out of the Fund

  1. (1)  The Board shall cease to make legal aid available under section 30(3) of the Act if it is satisfied, after taking account of any explanation offered by the assisted person in respect of sub-paragraphs (a) to (d) below, that he –
(a) has wilfully failed to comply with the provisions of these Regulations as to the information to be furnished by him; or
 

(b)

 

knowingly made a false statement or false representation in furnishing such information; or

 

(c) has conducted himself in connection with the proceedings in such a way as to make it appear to the Board unreasonable that he should continue to receive legal aid; or
(d) has wilfully or deliberately given false information for the purpose of misleading the Board in considering his financial circumstances under section 24 of the Act.

 

(2)  Where the Board, in accordance with paragraph (1) above, ceases to make legal aid available –

(a)

 

 

(b)

 

 

 

 

(c)

the Board shall have the right to recover from that person the amount paid out of the Fund in respect of the fees and outlays of his solicitor and counsel;

 

the solicitor who acted for the assisted person shall have the right to receive from him the difference between the amount payable out of the Fund and the full amount which would be payable to him on a solicitor and client basis in respect of fees and outlays; and

 

the Board may direct that the assisted person shall cease to be entitled to legal aid in connection with those proceedings.

 

St Andrew’s House, Edinburgh

13 May 1992

 

Fraser of Carmyllie

Minister of State

Scottish Office

 

Footnotes

[1] The definitions of “counsel”, “junior counsel”, “senior counsel” “solicitor-advocate” and “right of audience” were all substituted or inserted by S.I. 1994 No. 1016 (in force from 5th May 1994) making provision for solicitor advocates.

[2] As amended by S.I. 1996 No. 2550 (in force from 1st November 1996) and S.S.I. 2005 No. 451 (in force from 5 October 2005).

[3] Substituted by S.I. 2005 No. 451 (in force from 5 October 2005).

[4] As inserted by S.I. 1994 No. 1016 reflecting arrangements with the Law Society to recognise certain solicitor advocates as the equivalent of senior counsel for the purposes of legal aid payment.

[5] Inserted by S.S.I. No. 161 (in force from 1 April 2011) which also omitted reference to a form being “in writing” enabling the Board to require submission of an application online or by other electronic means. These changes were essential to the introduction of online applications.

[6] Amended by S.S.I. 2011 No. 161 (in force from 1 April 2011) removing reference to application being “signed” by the applicant, and omitting regulation 4(c) making special provision for signature on or on behalf of a “mentally disabled applicant”.  An application on behalf of a person can still be made by their “legal representative”, as defined.

[7] As substituted by S.I. 1995 No. 2319 (in force from 26th September 1995 and applying only in relation to any case where an application for legal aid is made to the Board on or after 26th September 1995), consequential upon the amendment of section 30 of the Act by the Criminal Justice (Scotland) Act 1995 (c.20), section 65(6).

[8] Inserted by S.I. 1996 No. 2550 (in force from 1st November 1996).