Definition and scope of criminal advice and assistance

Advice and assistance is oral or written advice on a matter of Scots law provided to a person by a solicitor.  It does not include taking steps in connection with instituting, conducting or defending proceedings unless assistance by way of representation (ABWOR) is available.

Advice and assistance consists of two main elements [section 6 of the Legal Aid (Scotland) Act 1986]:

• Oral or written advice provided to a person by a solicitor.
• On the application of Scots law to any particular circumstances which have arisen in relation to your client.
• As to any steps that the client might appropriately take, having regard to the application of Scots law to those circumstances.
• Assistance provided to a client by a solicitor in taking any of the steps, on which you can provide advice, either by taking such steps on the client’s behalf or assisting the client in taking such steps.

The definition of advice & assistance is broadly stated and includes advice on all matters of Scots law.

In the criminal context it covers all advice in connection with criminal matters and Scottish criminal proceedings. You cannot give advice on a matter relating to foreign law, including matters arising from English or Northern Irish criminal proceedings.

Advice and assistance does not cover any aspect of proceedings before the European Court of Human Rights if they arise in the course of criminal proceedings. Advice in connection with the ECtHR is not a matter of Scots law, see Graeme Donaldson v Scottish Legal Aid Board [2014] CSIH 31

You cannot competently grant advice and assistance on a matter of foreign law (including English or Northern Irish law).

You may, however, grant advice and assistance to advise a client on the application of Scots law to a particular situation, even if that advice is that Scots law affords no remedy and the matter must be pursued in another jurisdiction, for example where a client has been served with documents relating to English criminal proceedings, or has been arrested abroad.  That advice would extend to putting the client in touch with a solicitor in the foreign jurisdiction. There being no summary complaint, the initial limit would be £50. We would be unlikely to grant an increase in authorised expenditure to do this.

Advice and assistance does not cover representation before a court.

You can give advice and assistance on the Scots law aspects of matters of UK law, such as proceeds of crime.  However, you can do so only where any remedy lies within the jurisdiction of the Scottish legal system, for example where an appeal lies from a court to the Sheriff Appeal Court or the High Court.

Equally you can provide A&A in connection with the Parole Board, proceedings deemed by us to be criminal [regulation 8(2) of the Advice and Assistance (Scotland) Regulations 1996].

You cannot provide advice and assistance to ay client in connection with proceedings before a court or tribunal at a time when the  client is receiving legal aid in connection with those proceedings [Section 7(2) of the Legal Aid (Scotland) Act 1986].

Criminal legal aid is available to your client from the moment that we are satisfied on the application of the statutory tests.  You are not in a position to provide parallel advice and assistance after this point.  The effective date of legal aid is shown on the online confirmation of the grant.

In any event, in summary procedure cases, fees and outlays incurred under advice and assistance are not separately chargeable where criminal legal aid is provided and would be subsumed within the grant of legal aid.

If criminal legal aid is available for proceedings, you should apply for it as soon as possible so we can apply the statutory tests without undue delay or disruption to the courts.

You should not view advice and assistance as an alternative to criminal legal aid or as a source of funding for continuing work in connection with proceedings where we have refused criminal legal aid.