ABWOR in summary cases – assisted person in custody – “appointed solicitor”

Appointed solicitor ABWOR applies to proceedings where a client appears from custody on the day when that person is first brought to a court to answer to any complaint [regulation 6A of ABWOR regulations].

“6A.   (1) The assistance by way of representation which may be provided under Part II of the Act in relation to summary criminal proceedings in any court shall include the attending upon, advising and acting for any person who appears from custody on the day when that person is first brought to a court to answer to any complaint and thereafter–

• until the conclusion of the first diet at which he is called upon to plead and in connection with any application for liberation following upon that diet; and

• where he has tendered a plea of guilty at that diet, until his case is finally disposed of”

(2) The references to “attending upon, advising and acting” in paragraph (1) above shall include the services of the solicitor at any preliminary plea to the competency or relevancy of the complaint and at any plea in bar of trial or any mental health proof.”

Only an “appointed solicitor”, meeting the regulatory requirements [regulation 7, duty solicitor regulations] can provide ABWOR where regulation 6A applies.

Before you provide ABWOR you must be satisfied that the client qualifies financially.

You do not have to address the interests of justice factors before providing ABWOR (unlike the position under Interests of Justice ABWOR for the JP Court). In the online application you will be asked to answer the “appointed solicitor” questions.

This section applies to cases where the summary proceedings are commenced by the accused appearing from custody.  It does not apply to cases which commenced with an accused initially cited to appear, or commenced by way of an undertaking to appear.

These provisions put into practice the discussions some years ago of the benefit of a “solicitor of choice” in addition to the availability of the duty solicitor, one providing exclusive criminal legal aid and the other exclusive ABWOR.

The duty solicitor regulations [regulation 7 of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003] puts into regulatory form the expectation that an accused person will be seen by a solicitor with whom they have already had a solicitor/client relationship, whom they trust and whose advice they are content to accept.

While the regulation recognises that on occasion there may be situations when their solicitor cannot personally appear at the appearance from custody, it is not encouraged: the provisions set out to restrict advice and representation to the solicitor with whom there has been a relationship, and are equally restrictive as to the circumstances in which representation at the pleading diet can be provided by another solicitor.

The alternative, and equally acceptable requirement as to entitlement to act, is that the solicitor is connected to a firm and another solicitor connected with that firm has (or has had) such a relationship with the accused. This would include:

• a solicitor currently registered with the firm, or
• a solicitor who was connected with the firm at the time of the previous solicitor/client relationship

Regulation 6A of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 prescribes the circumstances in which an appointed solicitor may represent an accused person appearing from custody under ABWOR, and the scope of the ABWOR.

Regulation 7 of The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 defines an “appointed solicitor” and prescribes the conditions under which an appointed solicitor can act, and provide representation through the services of another solicitor.