ABWOR where client is not appearing from custody – when is it available?

ABWOR (“Interests of Justice ABWOR”) is available under regulation 6(1) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003.

Subject to eligibility, ABWOR may be provided, by reference to various diets in the summary criminal process, to an accused person who is not in custody in the  circumstances prescribed [regulation 6].

6.  – (1) The assistance by way of representation which may be provided under Part II of the Act in relation to summary criminal proceedings shall be representation of an accused person who is not in custody –

(a) at any diet (other than a diet which has been preceded by a plea of not guilty) at which a plea to the competency or relevancy of the complaint or proceedings, or a plea in bar of trial, is tendered on the accused person’s behalf, and thereafter until that plea has been determined by the court and any related appeal to the High Court of Justiciary under section 174(1) of the 1995 Act has been disposed of or withdrawn;

(b) at any diet (other than a diet which has been preceded by a plea of not guilty) at which a question within the meaning of rule 31.1(1) of the Act of Adjournal (Criminal Procedure Rules) 1996 is raised and thereafter until that question has been determined by the court;

(ba) in relation to any diet to which the case has been adjourned under section 145 of the 1995 Act;

(c) in relation to any diet (including ancillary work prior to that diet) in a case in which no plea has previously been tendered, where—

(i)   at the diet a plea of guilty to the charges against the accused is tendered, or a plea of guilty to part thereof which partial plea is accepted by the prosecutor, and thereafter until the case has been finally disposed of;

(ii)   at the diet the prosecutor accepts a plea of not guilty to the charges to the effect that the case is then concluded; or

(iii)   prior to calling the case at that diet the prosecutor accepts a plea of not guilty to the charges or otherwise makes a final determination that the case is not to proceed whether at that time or thereafter, and does not call the case at that diet.

(d) at any diet at which the court is considering the accused’s plea of guilty to the charges and where there has been no change of plea, and thereafter until final disposal of the case;

(e) at any diet at which the court is considering the accused’s changed plea of guilty to the charges, provided that no application for criminal legal aid has been made, and thereafter until final disposal of the case; and

(f) at any diet where the judge orders a proof in mitigation, and thereafter until final disposal of the case

(2)  The assistance by way of representation which may be provided under Part II of the Act in relation to summary criminal proceedings in a sheriff court which has been designated by the sheriff principal –

(a)as a youth court; or

(b)as a domestic abuse court,

shall include representation of an accused person following a finding of guilt but only where criminal legal aid has not been granted to that person in terms of section 24 of the Act.

“Interests of Justice” ABWOR under regulation 6(1) is not available where the accused has previously tendered a plea of not guilty, except at any diet at which the court is considering the accused’s changed plea of guilty to the charges, provided that no application for criminal legal aid has been made [regulation 6(1)(e)].

If an accused tenders a plea of guilty without the benefit of legal advice and the court adjourns the diet to allow the accused to seek representation, or pleads guilty by letter and the matter is adjourned for their personal appearance, you may provide ABWOR [regulation 6(1)(d)].

In the event that sentence is deferred [sections 201 or 202 of the 1995 Act], you may provide ABWOR [regulation 6(1)(d)].