New Criminal policies and Decision-makers’ Guidance published

This update provides information about a further release of policies and decision-makers’ guidance for a number of Criminal Applications matters, as part of our Guidance on the Administration of Legal Aid (GALA) project.

The project will develop new policies and guidance on legal aid applications and accounts. We previously published new materials on the IOJ test and special urgency for criminal applications.

We have now completed another batch of materials about decisions taken on Criminal Applications:

• Criminal Conditions – Summary, Solemn and Appeals
• Court Granted Legal Aid
• Automatic Criminal Legal Aid.

There are links to the policy statements and decision-makers’ guidance from the legal aid guidance homepage.

A summary of the updated legal aid guidance for solicitors for Conditions, Court Grants and Automatic Grants is below.

Criminal Conditions

This gives details and information on our current policies of applying conditions to the grant of criminal legal aid, and covers:

• The requirement for applicants to advise us of any material changes in their financial circumstances during the lifetime of the case
• The situations where we can grant legal aid on condition that full financial verification can be provided once it becomes available
• The additional condition we attach in criminal appeals seeking special permission to appeal to the United Kingdom Supreme Court, which limits the work to be undertaken up until the point where permission to appeal is granted or refused.

Court Granted Legal Aid

The courts are responsible for notifying us when they have made a grant criminal legal aid under Section 23(1)(b) of the Legal Aid (Scotland) Act 1986. Our role is limited to checking that a valid grant can be made (specifically, there is no duplicate grant already in place). The decisions covered here are:

• How we process the intimations of criminal legal aid under Section 23(1)(b) of the Legal Aid (Scotland) Act 1986 received from the court
• Whether we accept or reject any new intimations received, where legal aid had already been granted for the same applicant in the same case.

Automatic Grants of Legal Aid

Automatic criminal legal aid in various scenarios are arranged under Section 22 (1) of the Legal Aid (Scotland) Act 1986, which sets out the circumstances in which automatic legal aid is available, as well as the point at which it ceases.

Our only role in relation to automatic legal aid is to verify that there is no existing grant of legal aid – in which case, automatic legal aid may not be available – and to register the case so that a legal aid reference number can be provided. The decisions we take here are to:

• Consider any application received from the court, where they have confirmed that the case meets the criteria for automatic legal aid set out by the solicitor, or where they have appointed the solicitor to act in the case
• Verify that no duplicate application is already in place for the case
• Consider if the latest intimation can be approved if the applicant had already received legal aid for the same case, from either a different or the same solicitor.

Automatic legal aid for new prosecutions for the same or similar offences

There’s an amended process to enable automatic grants under Section 22(1)(e) of the Legal Aid (Scotland) Act 1986 – where the High Court sets the conviction aside and grants authority for a new prosecution in which the accused may be charged with the same or similar offence arising out of the same facts.

Automatic legal aid is available from the date of the decision of the Appeal Court to grant authority for a new prosecution until the case is finally disposed of.

In these cases, you do not use the CRIM/COURT/APP application form; you should send a fresh application, but no financial information is required. The only document we require sight of is a copy of the Appeal Court’s grant of authority for the new prosecution.

The new Legal Aid Reference Number (LARN) can then be used for any applications for work requiring prior authority and for the submission of the account.

Feedback and further enquiries

Your feedback is useful to us and helps shape the future of our guidance.

You can give feedback on current published legal aid guidance at any time using the link at the foot of every page of guidance on our website.

For more information about the GALA project, please contact Marie-Louise Fox, Director of Operations on FoxMa@slab.org.uk.