Legal Aid (Scotland) Act – Determination by Secretary of State (Appeals)

NOTE: For cases where the successful appeal was determined before 5 June 1996 reference should be made to the Determination by the Secretary of State dated 21 March 1990.

   1.   The Secretary of State in exercise of the powers conferred on him by section 4(2)(c) of the Legal Aid (Scotland) Act 1986 (“the 1986 Act”) with the concurrence of the Treasury hereby determines as follows.

   2.   There shall be paid out of the Scottish Legal Aid Fund such sums as are allowed on the basis set out in paragraph 4 below in any case where—

(a)   a person successfully appeals against conviction, sentence or other disposal in criminal proceedings;

(b)   an application by that person for legal aid for the appeal was refused on the grounds that the Scottish Legal Aid Board (“the Board”) was not satisfied that there were substantial grounds for making the appeal or that it was reasonable in the particular circumstances of the case that legal aid should be made available or, as the case may be, that the Board was not satisfied that in all the circumstances of the case it was in the interests of justice that the applicant should receive criminal legal aid; and

(c)   the Board is satisfied as to the factors mentioned in paragraph 3 below.

   3.   The factors as to which the Board is to be satisfied are —

(a)   where criminal legal aid was not made available under section 23 or 24 of the 1986 Act in connection with the proceedings in respect of which the appeal was made and after consideration of the financial circumstances of the applicant at the time of the initial application for criminal legal aid in connection with the appeal, that the expenses of the appeal could not have been met without undue hardship to the applicant or his dependants; and

(b)   that it is reasonable, in the particular circumstances of the case, that payment should be made.

   4.   The sum payable out of the Scottish Legal Aid Fund in respect of any such case as is mentioned in paragraph 2 above shall be such sum as would have been allowed in respect of fees and outlays of solicitors and counsel had criminal legal aid been made available under section 25 of the 1986 Act in relation to the appeal on the application of the person.

   5.   This determination shall apply only in relation to any case where the successful appeal was determined on or after 5 June 1996.

   6.   Subject to paragraph 5, the determination of 21 March 1990 is revoked.