Criminal legal aid for late appeals

We have different administrative arrangements in place depending on whether an appeal is lodged timeously or late. It is important that you are aware of our guidance to ensure that you are covered for your work and any outlays incurred.

The work involved in the sift process in timeous appeals is funded under regulation 15 legal aid. Advice and assistance is to be used where an appeal is outwith the 7 or 14 day statutory time limit. Where an extension of time has been granted timeously and grounds of appeal require to be lodged the appeal is not considered “late” and regulation 15 legal aid can then be granted.

Advice and assistance can be provided for the purpose of visiting a client in custody to provide advice on making an application for an extension of time to lodge an appeal (a late appeal).

Where an application for an increase is submitted, we will:

• Check whether the client has previously had advice and assistance from another solicitor on the same matter.
• Require detailed information as to what has changed since any previous advice was provided.

In the absence of such information we are unlikely to grant a further increase request.

A further increase also may be granted to enable you to obtain and peruse the case papers to allow the enquiry to be progressed.

At this stage, you should:

• Have a reasonable idea of the likely grounds of appeal and their prospects of success
• Be able to identify the main grounds of appeal.
• Narrow down the preparation and perusal work required to properly submit the late application.

Increases in authorised expenditure will not be granted to cover perusing all the papers to identify possible grounds of appeal.

Previously, applications for regulation 15, or indeed legal aid for an appeal could be made before leave to appeal was granted. However, in order to reduce the risk of excessive or unnecessary work being carried out and subsequently abated by us, advice and assistance is to be used to provide cover for these early stages of a late appeal. This allows us to approve in advance work which is required, and an appropriate level of authorised expenditure to carry out this work.

The steps required in applying for the extension of time and lodging the grounds of appeal can be more appropriately covered under advice and assistance. No proceedings are in place yet, there is no need for representation and the matter is not urgent, so a grant of criminal legal aid under regulation 15 would not be appropriate at this stage.

Also at this stage, counsel’s involvement should be limited to providing an Opinion on the prospects of the appeal and /or framing the grounds of appeal. We may consider an increase where counsel’s Opinion is only partially supportive and the application is for an extension of time. Further increases in expenditure can be granted to appropriate levels for this work, or for a consultation.

Our process differs depending on whether your client’s application to the court for a late appeal is accepted or refused.

Late appeal accepted

If the application for the late appeal and the grounds of appeal are accepted then leave to appeal is granted. An application for criminal legal aid for an appeal can be made in the usual way, supported by a copy of confirmation that leave to appeal has been granted.

Late appeal refused

If the application for the late appeal is refused and appealed then the matter is referred to a three judge bench.

You client has five days to return the form to have the application determined at a hearing [Section 105(2) of the Criminal Procedure (Scotland) Act 1995]. There are now “proceedings”.

Regulation 15 of the Criminal Legal Aid (Scotland) Regulations 1996 can cover can be made available for:

• Attendance by a solicitor and counsel at this hearing.
• Any other ancillary work that may be required on cause shown.

If the appeal against the refusal is refused again, that is the end of the process.

If the appeal is allowed, and an appeal hearing fixed, then you should apply for criminal legal aid for an appeal.

Regulation 15 cover is, of course, available in the unusual event that a hearing is set down for a single judge in the course of the process.