Criminal Legal Aid (Scotland) Regulations 1996

Contents

As amended by (older instruments omitted):

The Criminal Legal Aid (Scotland) Amendment Regulations 2010 [SSI 2010 No. 377]

The Advice and Assistance and Legal Aid (Online Applications etc.) (Scotland) Regulations [SSI 2011 No 161]

Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations [SSI 2011 No 163]

The Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 [S.I. 2013 No. 7]

The Legal Aid (Miscellaneous Amendments) (Scotland) Regulations 2015 [SSI 2015 No. 337]

THE CRIMINAL LEGAL AID (SCOTLAND) REGULATIONS 1996

S.I. 1996 No. 2555 (S.200)

The Secretary of State, in exercise of the powers conferred on him by sections 31(9) and 36(1)(a) and (2)(a) and (c) to (g) of the Legal Aid (Scotland) Act 1986, and of all other powers enabling him in that behalf, hereby makes the following Regulations:

Citation, commencement and application

   1.—(1)   These Regulations may be cited as the Criminal Legal Aid (Scotland) Regulations 1996 and, subject to paragraph (2) below, shall come into force on 1 November 1996.

(2)   Regulation 14(d) shall apply only to work done on or after 1 November 1996.

Interpretation

   2.—(1)   In these Regulations, unless the context otherwise requires –

“the Act” means the Legal Aid (Scotland) Act 1986;

“the 1995 Act” means the Criminal Procedure (Scotland) Act 1995;

“assisted person” means a person to whom criminal legal aid has been made available in relation to the proceedings in question;

“counsel” includes a solicitor-advocate;

“junior counsel” includes a junior solicitor-advocate;

“legal representative” means a person having parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995 in relation to a child or a judicial factor or a person authorised to act on an adult’s behalf under the Adults with Incapacity (Scotland) Act 2000 or on a patient’s behalf under the Mental Health (Care and Treatment) (Scotland) Act 2003;

“patient” has the same meaning as in section 329 of the Mental Health (Care and Treatment) (Scotland) Act 2003;

“right of audience” means in relation to a solicitor, a right of audience in the Supreme Court or the High Court of Justiciary which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980;

“senior counsel” includes a senior solicitor-advocate, except in paragraph (2) below;

solicitor-advocate” means a solicitor, whether instructed by another solicitor or not, when and only when he is exercising his right of audience or acting in connection with the exercise of such a right and “junior solicitor-advocate” and

“senior solicitor-advocate” shall be construed in accordance with paragraph (2) below;

and, unless the context otherwise requires, any reference in these Regulations to a solicitor shall not include a solicitor when acting as a solicitor-advocate.

   (2)   For the purposes of these Regulations, a solicitor-advocate shall be—

(a)   a senior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a senior counsel in a case where the proceedings relate to a prosecution or conviction for murder or where the Board has authorised the employment of senior counsel under regulation 14(1)(a) or (2) below; and

(b)   a junior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a junior counsel, whether or not the Board has authorised the employment of senior counsel in the case.

Manner of applications etc

   2A.—(1)   Any application to the Board under or referred to in regulations 14,15 and 17(3) shall be made in such form as the board may require, which may include an online form.

(2)   Any statement, information, notification or other correcpondence which requires to be supplied or otherwise provided to the Board under Regulation 16 and 17(1) and (2) shall be in such form as the Board may require, which may include an online form.

Revocations and savings

   3.—(1)   Subject to paragraphs (2) and (3) below, the Regulations specified in the Schedule to these Regulations are hereby revoked.

   (2)   The revocation by these Regulations of—

(a)   a transitional provision relating to the coming into force of, or

(b)   an application provision which restricts the application of,

a provision, which is revoked and re-enacted by these Regulations, does not affect the operation of that transitional provision or, as the case may be, application provision, insofar as it remains capable of having effect, in relation to the provision which is re-enacted in these Regulations.

   (3)   Where a period of time specified in any provision which is revoked by these Regulations, is current at the date of coming into force of these Regulations, these Regulations have effect as if the provision which re-enacts that revoked provision in these Regulations had been in force when that period began to run.

Distinct proceedings for purposes of criminal legal aid

  4.—(1)  For the purposes of criminal legal aid, the following shall be treated as distinct proceedings:—

(a)   any such identification parade as is referred to in section 21(4)(b) of the Act;

(b)   any such proceedings as are described in section 22(1)(b) of the Act;

(c)   solemn proceedings other than such proceedings referred to in sub‑paragraph (b) above or (j) below;

(d)   any such proceedings as are described in section 22(1)(c) of the Act;

(e)   summary proceedings other than such proceedings referred to in sub-paragraph (d) above or (j) below;

(ea)   appeals to the Sheriff Appeal Court against conviction, sentence, other disposal or acquittal;

(eb)   appeals to the High Court of Justiciary under section 194ZB of the 1995 Act against a decision of the Sheriff Appeal Court

(f)   appeals to the High Court of Justiciary against conviction, sentence, other disposal or acquittal;

(g)   petitions to the nobile officium of the High Court of Justiciary (whether arising in the course of any proceedings or otherwise);

(h)   references by the Scottish Criminal Cases Review Commission under section 194B of the 1995 Act;

(i)   such proceedings as are described in section 22(1)(e) of the Act;

(j)   such proceedings as are described in section 22(1)(da), (db) or (dc) of the Act;

(k)   Proceedings in the Supreme Court on appeal from the High Court of Justiciary under-

(i)   paragraph 13 of Schedule 6 to the Scotland Act 1998; or

(ii)   section 288AA of the 1995 Act,

including any application for permission to appeal.

   (2)   The distinct proceedings specified in paragraph (1) above shall be treated as including the following related proceedings (which are accordingly not to be treated as distinct proceedings for purposes of criminal legal aid):—

(a)   applications for bail or review of bail, or appeals in respect of bail;

(b)   in relation to paragraph (1)(c) above, proceedings following a remit for sentence to the High Court of Justiciary under section 195 of the 1995 Act;

(c)   in relation to paragraph (1)(f) above, proceedings following a remit from the High Court of Justiciary to the inferior court in accordance with section 183 of the 1995 Act;

(d)   in relation to paragraph (1)(c) above, any proceedings up to and including the first hearing of the complaint where a charge is reduced from solemn to summary proceedings and, if a plea of guilty is tendered, thereafter to the conclusion of the case.

Duty solicitors

   5.—[Revoked] [1]

Applications for criminal legal aid in solemn proceedings

   6.—[Revoked]

Availability of other rights and facilities in proceedings to which section 23 of the Act applies

   7.—(1)   Where it appears to the court that an applicant for criminal legal aid under section 23 of the Act has available to him rights and facilities making it unnecessary for him to obtain legal aid, or has a reasonable expectation of receiving financial or other help from a body of which he is a member, the court shall not, unless it is satisfied that there is special reason for doing so, make legal aid available to him.

   (2)   The court, before making legal aid available under section 23 of the Act to a person who is a member of a body which might reasonably have been expected to give him financial help towards his defence, shall require him to undertake in writing that he will pay to the Board any sum received from that body on account of the expenses of his defence.

Applications to the Board[2]

   7A.—(1)   An application to the Board under any of the following provisions of the Act must be made in such form as the Board may require:—

(a)   section 23A (legal aid in solemn proceedings);

(b)   section 24 (legal aid in summary proceedings);

(c)   section 25 (legal aid in appeals); and

(d)   section 25AB (legal aid in references, appeals or applications for special leave to appeal to the Supreme Court).

   (2)   For the purposes of paragraph 1, a “form” may be an online form.

(3)   Unless the Board considers there to be a special reason to consider a late application, an application to the Board—

(a)   for criminal legal aid under section 24 of the Act must be made within 14 days after the conclusion of the first diet at which the applicant tendered a plea of not guilty;

(b)   for a review of a refusal of a criminal legal aid application must be made within 10 days of the Board informing the applicant of the refusal.

Applications for criminal legal aid in summary proceedings

   8.—(1)   [Revoked]

Attendance for interview and supply of information

   9.—(1)   An applicant for criminal legal aid under section 23A, 24, 25 or 25AB of the Act must—

(a)   attend for interview by a representative of the Board if the Board so requires for the purpose of determining the application;

(b)   supply the Board with such information, including documents, as the Board may require for that purpose.

   (2)   If the applicant wilfully fails to comply with a requirement under paragraph (1), the Board may treat the application as abandoned and, where it does so, is to notify the applicant.

Availability of other rights and facilities

   10.—(1)   Where it appears to the Board that an applicant for criminal legal aid under section 23A, 24, 25 or 25AB of the Act has available to him rights and facilities making it unnecessary for him to obtain legal aid, or has a reasonable expectation of receiving financial or other help from a body of which he is a member, the Board shall not, unless it is satisfied that there is special reason for doing so, make legal aid available to him.

   (2)   The Board, before making criminal legal aid available under section 23A, 24, 25 or 25AB of the Act to a person who is a member of a body which might reasonably have been expected to give him financial help towards his defence, shall require him to undertake in writing that he will pay to the Board any sum received from that body on account of the expenses of his defence.

Notification of decision

   11.—(1)   The Board shall inform an applicant for criminal legal aid under section 23A, 24, 25 or 25AB of the Act, and the solicitor nominated by him, of its decision in regard to the application.

(2)   Where the Board refuses an application for criminal legal aid, it shall inform the applicant and the solicitor that the application has been refused on one or more of the following grounds, that—

(a)  the proceedings in question are not proceedings for which such legal aid is available;

(b)   the Board is not satisfied that the expenses of the case cannot be met without undue hardship to the accused person or his dependants;

(c)   the Board is not satisfied that in all the circumstances of the case it is in the interests of justice that legal aid should be made available to him; or

(d)   it appears to the Board that the applicant has available to him rights and facilities making it unnecessary for him to receive legal aid or has a reasonable expectation of receiving financial or other help from a body of which he is a member, and the Board is not satisfied that there is special reason for making legal aid available to him.

Applications for review

   12.—(1)   [Revoked]

Legal aid for criminal appeals

   13.—(1)   [Revoked]

Prior approval of Board for employment of counsel and expert witnesses and for work of an unusual nature or likely to involve unusually large expenditure

   14.—(1)   Subject to paragraph (2) below, the prior approval of the Board shall be required—

(a)   where the proceedings are in the Judicial Committee of the Privy Council or the High Court and are not proceedings relating to a prosecution or conviction for murder, for the employment of senior counsel alone, of senior counsel with junior counsel, or of more than one junior counsel;

(b)   where the proceedings are in the sheriff court or the district court, for the employment of counsel;

(c)   for the employment of an expert witness; and

(d)   for work of an unusual nature or likely to involve unusually large expenditure.

   (2)   Paragraph (1) above shall not apply where the Board, on an application made to it for retrospective approval for the employment of counsel or, as the case may be, of an expert witness, considers that the employment would have been approved by them and that there was special reason why prior approval was not applied for.

Matters of special urgency

   15.—(1)   Where an applicant seeks legal aid under section 23A, 24, 25 or 25AB of the Act in a matter of special urgency, the Board may, if it thinks fit, make criminal legal aid available to him notwithstanding that it has not been satisfied—

(za)   in the case of an application under section 23A of the Act, as to the matter specified in subsection (1) of that section;

(a)   in the case of an application under section 24 of the Act, as to the matters specified in subsection (1) of that section;

(b)   in the case of an application under section 25 of the Act, as to the matters specified in subsection (2) of that section; and

(c)   in the case of an application under section 25AB of the Act, as to the matter (or in the case of an application for special leave to appeal the matters) specified in subsection (2) of that section.

(2)   Where criminal legal aid is made available under paragraph (1) above, the Board shall—

(a)   specify that it is available only for such limited purposes as it thinks appropriate in the circumstances;

(b)   require the assisted person as soon as practicable to satisfy it that —

(i)   in the case of an application under section 23A of the Act, as to the matter specified in subsection (1) of that section;

(ii)   in the case of an application under section 24 of the Act, as to the matters specified in subsection (1) of that section;

(iii)   in the case of an application under section 25 of the Act, as to the matters specified in subsection (2) of that section;

(iv)   in the case of an application under section 25AB of the Act, as to the matter (or in the case of an application for special leave to appeal the matters) specified in subsection (2) of that section;

(c)   in the case of the assisted person not so satisfying it, cease to make criminal legal aid available to him.

Duty to report completion of proceedings

   16.—   It shall be the duty of the solicitor acting for an assisted person to inform the Board of the conclusion and outcome of the proceedings in respect of which criminal legal aid was made available to the assisted person.

Changes of solicitor

   17.—(1)   Where the solicitor nominated by an assisted person determines that he should cease to act for him, the solicitor shall notify the Board and, where possible, the assisted person accordingly, and shall supply to the Board a statement of his reasons for ceasing to act.

   (2)   Where an assisted person has required the solicitor nominated by him to cease to act for him, the solicitor shall notify the Board accordingly and shall supply the Board with a statement of the circumstances, so far as they are known to him, in which he was required to cease to act.

   (3)   Where an assisted person desires that a solicitor other than the solicitor presently nominated by him shall act for him, he shall apply to the Board for authority to nominate another specified solicitor to act for him, and shall inform the Board of the reason for his application; and the Board, if it is satisfied that there is good reason for the application, may grant the application.

Duty of Board to cease to make criminal legal aid available and right to recover sums paid out of the Fund

   18.—(1)   The Board shall cease to make criminal legal aid available if it is satisfied, after taking account of any explanation offered by the assisted person in respect of sub‑paragraphs (a) to (e) below, that he—

(a)   has wilfully failed to comply with the provisions of these Regulations as to the information to be furnished by him; or

(b)   knowingly made a false statement or false representation in furnishing such information; or

(c)   has conducted himself in connection with the proceedings in such a way as to make it appear to the Board unreasonable that he should continue to receive legal aid; or

(d)   has wilfully or deliberately given false information for the purpose of misleading the Board in considering his financial circumstances under section 23A, 24, 25 or 25AB of the Act; or

(e)   has failed to comply with any condition to which the criminal legal aid is subject by virtue of section 23A(2), 24(1A), 25(2C) or 25AB(2A) of the Act.

   (2)   Where the Board, in accordance with paragraph (1) above, ceases to make legal aid available—

(a)   the Board shall have the right to recover from the assisted person the amount paid out of the Fund in respect of the fees and outlays of his solicitor and counsel;

(b)   the solicitor who acted for the assisted person shall have the right to receive from him the difference between the amount payable out of the Fund and the full amount which would be payable to him on a solicitor and client basis in respect of fees and outlays; and

(c)   the Board may direct that the assisted person shall cease to be entitled to criminal legal aid in connection with those proceedings.

   (3)   This regulation shall not apply where criminal legal aid is made available by virtue of section 22(1)(dd) of the Act (automatic availability of legal aid where solicitor is appointed by court for person accused of sexual offence).

3 October 1996

Schedule

Regulation 3

Endnotes:

[1]   Regulation 5 was revoked by S.S.I. 2011 No.163 (in force from 28 February 2011). All duty solicitor provision now governed by the duty solicitor regulations 2011.

[2]   Inserted by S.S.I. 2010 No. 377 enabling submission of an application, in such form as the Board may require including online or by other electronic means.