Proceedings under Part 4 Age of Criminal Responsibility (Scotland) Act 2019

A police constable can make an application for the following three orders from a sheriff under Part 4 of the Age of Criminal Responsibility (Scotland) Act 2019 ( ‘2019 Act’) in relation to a child who is under 12 years of age or who was 12 at the time of the  incident the police is investigating :

• a Search Order ( S34 2019 Act)
• an Interview Order (S42 2019 Act)
• a Prints and Samples Order (S61 2019 Act).

When such an application by a police constable is made the sheriff can decide to hear from the following persons:

• the applicant ( the police constable)
• the child in respect of whom the application is made
• a parent of the child
• any other person the sheriff considers to have an interest in the application

S73 of the 2019 Act amends The Legal Aid (Scotland) Act 1986 at S28B to provide that children’s legal aid is the type of legal aid available for these proceedings before the sheriff and for any onward appeals to the Sheriff Appeal Court.

The Children’s Legal Assistance (Miscellaneous Amendments and Consequential Provisions) (Scotland) Regulations 2021 also amends the Legal Aid (Scotland) Act 1986 and the following Instruments made under that Act, in relation to proceedings under Part 4 of the Age of Criminal Responsibility (Scotland) Act 2019 (“the 2019 Act”):

• the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (“the 1989 Regulations”)
• the Advice and Assistance (Financial Limit) (Scotland) Regulations 1993 (“the 1993 Regulations”)
• the Advice and Assistance (Scotland) Regulations 1996 (“the 1996 Regulations”)
• the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 (“the 2003 Regulations”)
• Children’s Legal Assistance (Scotland) Regulations 2013 (“the 2013 Regulations”).

All other parts of the Age of Criminal Responsibility (Scotland) 2019 fall under civil legal assistance.

There is no criminal legal assistance available for any of this 2019 Act.

The following types of children’s legal assistance are available for proceedings under Part 4 of the 2019 Act:

• children’s advice and assistance
• children’s ABWOR
• children’s automatic legal aid
• children’s legal aid for sheriff court applications and onward appeals to the SAC by your client or the police
• children’ special urgency legal aid.

The type of children’s legal assistance available will depend on who your client is.

In terms of Part 4 of the 2019 Act, your client will be one of the following category of persons:

• child ( either under 12 years old or was under 12 at the time of the incident being investigated)
• parent of the ‘child’ in question
• any other interested party ( the sheriff will decide if there is any other interested party in these proceedings when the police make the application for the order or orders relating to the child).

1. Advice and Assistance

Where you want to provide advice to a child and assist them in relation to Part 4 of the 2019 Act, you can admit the child to children’s advice and assistance using the category code of ACR.

You can grant up to £135 worth of expenditure and, after that, you require to submit an application for an increase to us when you want to exceed this limit.

As always, you must submit an application for an increase in authorised expenditure before you carry out any further work as we have no discretion to grant this retrospectively.

More information on Children’s Advice and Assistance

2. Automatic Legal Aid for a child who does not have their own solicitor

If the child does not already have a solicitor of choice and:

• the sheriff has stated that they want to hear from the child in respect of a Part 4 Order(s) application by the police or
• the child wants to appeal a Part 4 Order granted by the sheriff to the Sheriff Appeal Court or
• the child wants to respond to an appeal a Part 4 Order granted by the sheriff by another party ( including the police constable) to the Sheriff Appeal Court

we must appoint a children’s registered solicitor to act as the duty solicitor for that child.

If you are appointed to act as the duty solicitor to the child, then this grant of automatic children’s legal aid will cover you to represent the child in the sheriff court and for any onward appeal before the Sheriff Appeal Court.

You must submit a legal aid application for automatic legal aid and we will then provide you with a reference number so you can apply for any subsequent prior approval (sanction) applications and submit your account when your duty appointment ends.

There are no financial or merits test to be satisfied for automatic legal aid so, as long as we have appointed you to act as the child’s duty solicitor, this is the form of legal assistance available to the child. It will be paid on a detailed fee basis.

Your appointment as the duty solicitor will end when the Part 4 Application is determined by the sheriff and/or when any onward appeal to the Sheriff Appeal Court is determined.

ABWOR for cases where the child has their own solicitor

If the child already has a solicitor of choice and:

• the sheriff has stated that they want to hear from the child in respect of a Part 4 Order(s) application by the police constable or
• the child wants to appeal a Part 4 Order granted by the sheriff to the Sheriff Appeal Court or
• the child wants to respond to an appeal a Part 4 Order granted by the sheriff by another party ( including the police constable) to the Sheriff Appeal Court

then ABWOR is the type of children’s legal assistance available to the child for representation in court and for any onward appeal before the Sheriff Appeal Court.

You must submit an ABWOR application using the category code of ACR. There are no financial or merits test to be satisfied for ABWOR in these circumstances and the initial level of authorised expenditure is £500 which should be sufficient to represent the child in court. If you require more than £500 then you require to submit an increase application to us in the usual way.

As always, you must submit an increase before you carry out any further work as we have no discretion to grant ABWOR, which is form of advice and assistance allowing for representation, retrospectively.

The grant of ABWOR will come to an end when the Part 4 Application is determined by the sheriff and/or when any onward appeal to the Sheriff Appeal Court is determined.

More information on Children’s ABWOR

1. Advice and Assistance

Where you want to provide advice and assist a parent or another person the sheriff has considered as having an interest in the Part 4 application, you can admit them to children’s advice and assistance using the category code of ACR.

You can grant up to £135 worth of expenditure and, after that, you require to submit an application for an increase to us when you want to exceed this limit.

As always, you must submit an increase before you carry out any further work as we have no discretion to grant an increase in authorised expenditure retrospectively.

More information on Children’s Advice and Assistance

2. Children’s legal aid

The sheriff will decide who is:

• a parent and
• any other person who has an interest in the Part 4 application.

If you represent such a parent or other interested party and:

• the sheriff has stated that they want to hear from the them in respect of a Part 4 Order(s) application by the police constable or
• the parent or interested party wants to appeal a Part 4 Order granted by the sheriff to the Sheriff Appeal Court or
• the party or interested party wants to respond to an appeal a Part 4 Order granted by the sheriff by another party ( including the police constable) to the Sheriff Appeal Court

then children’s legal aid is the type of children’s legal assistance available to the parent or interested person for representation in court and for any onward appeal before the Sheriff Appeal Court.

You must submit a children’s legal aid application.

There is no merits test to be satisfied for legal aid in these circumstances but the applicant will require to satisfy the financial eligibility test.

Statutory criteria

Before we grant legal aid to your client for these proceedings we must be satisfied that:

• after consideration of the disposable income and disposable capital of the person, the expenses of the case cannot be met without undue hardship to them.

You should provide full financial information in the application form to enable us to carry out a financial assessment. This helps us to establish if the expenses of the case would cause undue hardship to your client.

If we grant legal aid to the parent or interested person then that legal aid grant will also cover any appeal before the sheriff appeal court whether they are appealing or responding.

If the parent or interested person did not have legal aid in place for the Part 4 application before the sheriff then they can still apply for legal aid at the Sheriff Appeal Court stage. There will still be no merits test to be satisfied for legal aid legal aid in these circumstances but the financial test will require to be satisfied.

The grant of legal aid will come to an end when the Part 4 Application is determined by the sheriff and/or when any onward appeal to the Sheriff Appeal Court is determined.

More information on financial assessment

Special Urgency Legal Aid

If the legal aid application from the parent or interest party is urgent and a decision on the full application cannot be made in time then you can apply for special urgency legal aid.

Depending upon the circumstances, and the type of urgent work you need to do, you may:

• go ahead and do certain specified work, and tell us about it afterwards. [Regulation 18 1(a) and 1A of Children’s Legal Assistance (Scotland) Regulations 2013 ] (see below for situations where this applies);or
• need to get our approval before doing the work [Regulation 18 1 (b)].

If we have approved work as a matter of special urgency to protect your client’s position, any legal aid that we subsequently grant will include that work.

Regulation 18(1) (a) and 1A: special urgency with no prior approval required

For Part 4 Orders you can go ahead, without obtaining our prior approval, with:

• taking such steps as may be appropriate to intimate an intention to make representations in respect of an application for a Part 4 Order
• taking such steps as may be appropriate to make representations in respect of an application for an order
• moving to prorogate the time for compliance with any order or rule in relation to the Part 4 proceedings
• moving for permission to appeal a decision
• taking such steps as may be appropriate to initiate an appeal of a decision in relation to an order, and
• conducting an appeal of a decision in relation to an order.

Where the special urgency provisions are being used you must tell us and submit an application for full legal aid within 28 days of starting the work. You must tell us that you have done the work under regulation 18(1) (a) at the same time as you apply for children’s legal aid. If you have already submitted an application you should use a special urgency notification.  If you do not, the work will be excluded from any legal aid that may be made available.

Regulation 18(1) (b): special urgency with our prior approval required

You will require our prior approval for any other steps that are not listed above. If you are applying for approval under regulation 18(1) (b), you should submit a special urgency application.

If we grant approval, we may limit the work or subject this to conditions, as we consider appropriate.  While you do not need to notify us that work has actually been done following approval, you must ensure you have submitted a legal aid application within 28 days of beginning the urgent work.  If you do not, the work will be excluded from any legal aid that may be made available.

More information on Children’s Special Urgency