Legal Aid (Scotland) Act 1986
1986 c. 47
An Act to establish the Scottish Legal Aid Board and the Scottish Legal Aid Fund; to make new provision in connection with the availability of criminal legal aid in Scotland; to repeal and re-enact with modifications certain enactments relating to legal aid and to advice and assistance in Scotland; and for connected purposes.
[25th July 1986]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
(1) There shall be established a body to be known as the Scottish Legal Aid Board (in this Act referred to as “the Board”).
(2) The Board shall have the general functions—
(a) of securing that legal aid and advice and assistance are available in accordance with this Act; and
(b) of administering the Fund.
(2A) The Board also has the general function of monitoring the availability and accessibility of legal services in Scotland (including by reference to any relevant factor relating particularly to rural or urban areas).
(3) The Board shall consist of not less than 11 and not more than 15 members appointed by the Secretary of State; and the Secretary of State shall appoint one of the members to be chairman.
(4) The Secretary of State shall appoint to membership of the Board—
(a) at least two members of the Faculty of Advocates;
(b) at least two members of the Law Society; and
(c) at least one other person having experience of the procedure and practice of the courts.
(5) Before appointing persons to be members of the Board in pursuance of either paragraph (a) or paragraph (b) of subsection (4) above, the Secretary of State shall consult with the professional body mentioned in that paragraph.
(6) Schedule 1 to this Act shall have effect with respect to the Board.
(1) Subject to the provisions of this Act, the Board may do anything—
(a) which it considers necessary or expedient for securing the provision of legal aid and of advice and assistance in accordance with this Act; or
(b) which is calculated to facilitate or is incidental to or conducive to the discharge of its functions.
(2) Without prejudice to the generality of subsection (1) above, the Board shall have power—
(a) to enter into any contract or agreement, including, subject to subsection (3) below, any contract or agreement to acquire or dispose of land;
(b) to invest money;
(c) to promote or assist in the promotion of publicity relating to the functions of the Board;
(d) to undertake any inquiry or investigation which the Board considers necessary or expedient in relation to the discharge of its functions; and
(da) to give the Scottish Ministers such advice as it may consider appropriate in relation to the availability and accessibility of legal services in Scotland;
(e) to give to the Secretary of State such advice as it may consider appropriate in relation to the provision of legal aid and advice and assistance in accordance with this Act.
(3) The power under subsection (2)(a) above to enter into any contract or agreement to acquire or dispose of land shall not be exercised without the approval in writing of the Secretary of State.
(1) The Board shall, from time to time, publish information as to the discharge of its functions in relation to legal aid and advice and assistance including the forms and procedures and other matters connected therewith.
(2) The Board shall, from time to time, furnish to the Secretary of State such information as he may require relating to its property and to the discharge and proposed discharge of its functions.
(2A) The Board is, from time to time, to give the Scottish Ministers such information as they may require relating to the availability and accessibility of legal services in Scotland.
(3) It shall be the duty of the Board to provide to the Secretary of State, as soon as possible after 31st March in each year, a report on the exercise of its functions during the preceding 12 months.
(4) The Board shall have regard, in the exercise of its functions, to such guidance as may from time to time be given by the Secretary of State.
(5) Guidance under subsection (4) above shall not relate to the consideration or disposal (whether in general or in respect of individual applications) of—
(a) applications for legal aid or advice and assistance;
(b) supplementary or incidental applications or requests to the Board in connection with any case where legal aid or advice and assistance has been made available.
(6) For the purposes of subsection (2) above, without prejudice to the requirements of section 5 of this Act, the Board shall permit any person authorised in that behalf by the Secretary of State to inspect and make copies of any accounts or documents of the Board and shall furnish such explanation of them as that person or the Secretary of State may require.
(1) The Board shall establish and maintain a fund to be known as the Scottish Legal Aid Fund (in this Act referred to as “the Fund”).
(2) There shall be paid out of the Fund—
(a) subject to sections 4A(13) and 33(6), such sums as are, by virtue of this Act or any regulations made thereunder, due out of the Fund to any solicitor or counsel or registered organisation in respect of fees and outlays properly incurred or in respect of payments made in accordance with regulations made under section 33(3A) of this Act, in connection with the provision, in accordance with this Act, of legal aid or advice and assistance;
(aza) any expenses incurred by the Board in connection with the provision by solicitors employed by it by virtue of section 27(1) of this Act of—
(i) advice and assistance in relation to civil matters;
(ii) civil legal aid;
(iia) children's legal assistance;
(iii) any services as are mentioned in section 26(2) of this Act;
(azb) any sums payable by the Board under contracts made by virtue of section 33B;
(aa) any expenses incurred by the Board in connection with the provision of criminal legal assistance by solicitors employed by it by virtue of section 28A of this Act;
(ab) any sums payable by the Board under contracts made by virtue of section 33A of this Act;
(abc) any sums payable by the Board under section 17(2D) of this Act;
(ac) such sums as are, by virtue of section 4A, due out of the Fund to any person;
(ad) such sums as are, by virtue of section 33ZB of this Act, due out of the Fund to a solicitor or counsel in connection with the provision of legal aid or advice and assistance;
(b) expenses awarded to any person under section 19 of this Act; and
(c) such other payments . . . as the Secretary of State may . . . determine.
(3) There shall be paid into the Fund—
(a) any contribution payable to the Fund by any person in pursuance of section 17 of this Act;
(aa) any contribution payable to the Board by any person in pursuance of section 11 , 11A, 25AA or 25AC of this Act;
(aaa) any award of expenses made by a criminal court to a person to whom criminal legal assistance has been provided by a solicitor employed by the Board under sections 26 and 27 of this Act;
(ab) any award of expenses made by a criminal court to a person to whom criminal legal assistance has been provided by a solicitor employed by the Board by virtue of section 28A of this Act;
(ac) any sums recovered from a person who is receiving or has been in receipt of advice and assistance, civil legal aid or criminal legal aid under section 24, but who has available to him rights and facilities making it unnecessary for him to take advantage of the provisions of this Act.
(ad) any sums recovered from a person in connection with a grant made by the Board in accordance with section 4A;
(ae) any sums payable to the Board by a solicitor or counsel by virtue of section 33ZC of this Act;
(b) any sum recovered under an award of a court or an agreement as to expenses in any proceedings in favour of any party who is in receipt of civil legal aid;
(c) any sum which is to be paid in accordance with section 17 of this Act out of property recovered or preserved for any party to any proceedings who is in receipt of civil legal aid;
(cc) any contribution payable to the Board by any person in pursuance of section 28K of this Act;
(d) the sums to be paid by the Secretary of State in pursuance of section 40(1)(a) of this Act; and
(e) such other receipts of the Board as the Secretary of State may, . . . determine.
4A Power of Board to make grants for certain purposes
(1) The Board may, on an application made to it by any person, make grants of such amount and subject to such conditions (including conditions as to repayment) as it may determine to the person in respect of—
(a) any of the matters mentioned in subsection (2);
(b) any of the purposes mentioned in subsection (3).
(2) The matters are—
(a) any civil legal aid, advice and assistance in relation to civil matters or children's legal assistance provided, or to be provided, by any solicitor or counsel;
(b) any advice and assistance in relation to civil matters or children's matters provided, or to be provided, by any adviser;
(c) any advice, assistance or representation (not falling within paragraphs (a) or (b)) provided, or to be provided, by any person, which is connected to civil matters or children's matters.
(3) The purposes are facilitating, supporting and developing the provision of any of the matters referred to in subsection (2).
(4) The Scottish Ministers must specify a limit to the total amount that may be paid out of the Fund by virtue of subsection (1).
(5) In specifying any limit under subsection (4) the Scottish Ministers must specify the period in relation to which that limit applies.
(6) Any grant made under subsection (1) must be made in accordance with an approved plan.
(7) The Board must prepare and publish a plan as to the criteria which the Board will apply in considering whether or not to make such a grant; and the Board must submit the plan to the Scottish Ministers for approval.
(8) The Scottish Ministers may approve a plan submitted to them under subsection (7) with or without modification.
(9) The Scottish Ministers may at any time—
(a) approve a modification of an approved plan proposed by the Board or withdraw approval of such a plan or modification;
(b) require the Board to prepare and publish a plan under subsection (7).
(10) An application under subsection (1) must include such information as the Board may reasonably require.
(11) In preparing and publishing the plan under subsection (7) the Board must do so in accordance with such directions as the Scottish Ministers may give.
(12) Any money due to a person by virtue of this section shall be paid to the person by the Board out of the Fund.
(13) Any money paid to a person under subsection (1) as provided in subsection (12), in respect of—
(a) any civil legal aid, advice and assistance or children's legal aid provided by any solicitor or counsel;
(b) any advice and assistance provided by an adviser,
shall be taken to be a payment in accordance with this Act; and no other payment may be made out of the Fund in respect of that civil legal aid or, as the case may be, advice and assistance or children's legal aid.
(14) In this section, “approved plan” means a plan approved, for the time being, by the Scottish Ministers under subsection (8); and includes any part or modification of the plan so approved and “children's matters” means matters relating to children's hearings, pre-hearing panels (as defined in section 79(2)(a) of the 2011 Act) or proceedings under Part 10 or 15 of the 2011 Act.
(15) For the purposes of this section, “person” includes a body corporate or unincorporate.
(1) The Board shall keep separate accounts with respect to—
(a) the Fund; and
(b) the receipts and expenditure of the Board which do not relate to the Fund,
and shall prepare in respect of each financial year a statement of accounts.
(2) The accounts shall be kept and the statement of accounts shall be prepared in such form as the Secretary of State may, . . . direct.
(2A) The Board shall send the accounts and the statement of accounts to the Scottish Ministers by such time as they may direct.
(2B) The Scottish Ministers shall send the accounts and the statement of accounts to the Auditor General for Scotland for auditing.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) The Secretary of State shall lay before each House of Parliament a copy of every—
(a) annual report of the Board under section 3(3) of this Act;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) In this section “financial year” means the period beginning with the commencement of this section and ending with 31st March next following and each subsequent period of 12 months ending with 31st March in each year.
(1) In this Act—
“advice and assistance” means any of the following—
oral or written advice provided to a person by a solicitor (or, where appropriate, by counsel)—
on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice;
as to any steps which that person might appropriately take (whether by way of settling any claim, instituting, conducting or defending proceedings, making an agreement or other transaction, making a will or other instrument, obtaining further legal or other advice and assistance, or otherwise) having regard to the application of Scots law to those circumstances;
oral or written advice provided by an adviser—
on the application of Scots law to any specified categories of circumstances which have arisen in relation to the person seeking advice;
as to any steps which that person might appropriately take having regard to the application of Scots law to those circumstances;
assistance provided to a person by a solicitor (or, where appropriate, by counsel) in taking any steps mentioned in paragraph (a)(ii) above, by taking such steps on his behalf or by assisting him in so taking them; and
assistance provided to a person by an adviser in taking any steps mentioned in paragraph (aa)(ii) above, by taking such steps on his behalf or by assisting him in so taking them;
“assistance by way of representation” means , subject to section 12B(3) of this Act, advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings—
before a court or tribunal; or
in connection with a statutory inquiry,
whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf).
(2) In this Part of this Act—
“adviser” means a person who is approved by a registered organisation for the purposes of providing advice and assistance on behalf of the organisation and who is the person by whom advice and assistance is provided;
“client” means a person who seeks or receives advice and assistance in accordance with this Part of this Act;
“statutory inquiry” has the meaning assigned to it by section 16(1) of the Tribunals and Inquiries Act 1992;
“the solicitor” means the solicitor by whom any advice and assistance is provided or, where it is provided by counsel, the solicitor on whose instruction counsel provides it;
“tribunal” includes an arbiter or oversman, however appointed,
and references to a court, tribunal or statutory inquiry include references to any court, tribunal or statutory inquiry which is established by law for purposes which are or include those of determining persons’ civil rights and obligations and to any person who or group of persons or body or procedure which (however described) is appointed or established by law for such purposes.
(1) Subject to subsections (2) to (4) below, and to any exceptions and conditions prescribed by regulations made under this section or under section 9 of this Act, this Part of this Act applies to any advice and assistance.
(2) This Part of this Act does not apply to advice and assistance provided to a person in connection with proceedings before a court or tribunal at a time when he is receiving legal aid in connection with those proceedings.
(3) Subject to subsection (4) below and to section 9 of this Act, this Part of this Act does not apply to assistance by way of representation.
(4) Except where subsection (2) above applies, this Part of this Act does apply, in the case of civil proceedings before a court or tribunal, to any step which consists only of negotiating on behalf of a person with a view to the settlement of a claim to which the proceedings relate.
Subject to any provision made in regulations under section 8A(1) or 9(1) and section 11(2) of this Act, advice and assistance to which this Part applies shall be available in Scotland for any client if—
(a) his disposable income does not exceed £245 a week; or
(b) he is (directly or indirectly) in receipt of universal credit under Part 1 of the Welfare Reform Act 2012, income support , an income-based jobseeker's allowance (payable under the Jobseekers Act 1995) or an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance),,
and his disposable capital does not exceed £1,716.
8A Criminal advice and assistance: automatic availability in certain circumstances
(1) The Scottish Ministers may by regulations provide that, in such circumstances as may be prescribed in the regulations, advice and assistance in relation to criminal matters is to be available for any relevant client without reference to
(a) the financial limits in section 8 ; or—
(b) the criteria mentioned in section 9A(2).
(1A) Regulations under subsection (1) may also provide that, in such circumstances as may be prescribed in the regulations, section 11(2) is not to apply in respect of advice and assistance made available to a relevant client.
(2) In subsections (1) and (1A), “relevant client” means a client who is
(a) a person to whom section 32 (right to have solicitor present) of the Criminal Justice (Scotland) Act 2016 applies
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) a person who is detained under section 41 of, or Schedule 7 to, the Terrorism Act 2000, or
(e) a person who is detained under Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019.
9 Regulations may apply Part II to representation.
(1) Regulations made under this section may provide for this Part of this Act to apply to assistance by way of representation; and regulations so made may make different provision for different cases or classes of case.
(2) Such regulations may—
(a) describe the proceedings (or stages of proceedings) in relation to which this Part of this Act shall so apply by reference to the court, tribunal or statutory inquiry, to the issues involved, to the capacity in which the person requiring the assistance is concerned, or in any other way;
(b) specify, in relation to any proceedings so described, the assistance by way of representation which may be provided;
(c) prescribe the criteria to be applied in determining whether assistance by way of representation should be provided;
(d) require that the approval of the Board or of such other appropriate authority as may be prescribed shall be obtained, in certain classes of case, as a pre-condition of the provision of assistance by way of representation; and
(dd) provide that assistance by way of representation shall be available in relation to such proceedings as may be prescribed, without reference to the financial limits under section 8 of this Act;
(dda) provide that, in relation to assistance by way of representation which relates to such criminal proceedings as may be prescribed, sections 9A and 11A are to apply instead of sections 8 and 11;
(de) provide that section 11(2) or 11A of this Act shall not apply as respects assistance by way of representation received in relation to such proceedings as may be prescribed;
(e) modify the financial limits under sections 8 and 10(2) of this Act in their application to assistance by way of representation by substituting for the sums specified therein such other sums as may be prescribed, and such modification of the financial limit under the said section 10(2) may substitute different sums in relation to different proceedings or stages of proceedings.
(3) Such regulations may also make provision, for the purposes of paragraph (d) of subsection (2) above, as to—
(a) the procedure to be followed in applying for approval and the criteria for determining whether approval should be given;
(b) the conditions which should or may be imposed; and
(c) the circumstances in which approval may be withdrawn and the effect of its withdrawal.
(1) Where at any time (whether before or after advice and assistance has begun to be provided to a client) it appears to the solicitor or, as the case may be, adviser that the cost of giving it is likely to exceed the limit applicable under this section—
(a) the solicitor or adviser shall determine to what extent that advice and assistance can be provided without exceeding that limit; and
(b) shall not give it (or, as the case may be, not instruct counsel to provide it) so as to exceed that limit except , subject to subsection (4), with the approval of the Board.
(2) The limit applicable under this section is £60.
(3) For the purposes of this section, the cost of providing advice and assistance shall be taken to consist of such of the following as are applicable in the circumstances—
(a) any outlays (including the fees and outlays of counsel) which may be incurred by the solicitor or his firm or incorporated practice in, or in connection with, the providing of the advice and assistance;
(aa) any outlays which may be incurred by the registered organisation (which approved the adviser) in, or in connection with, the providing of the advice and assistance;
(b) any fees (not being charges for outlays) which, apart from section 11 of this Act, would be properly chargeable by the solicitor or his firm or incorporated practice in respect of the advice and assistance; and
(ba) any fees (not being charges for outlays) which, apart from section 11 of this Act, would be properly chargeable by the registered organisation (which approved the adviser) in respect of the advice and assistance;
(c) in the case of advice and assistance given by a solicitor employed by the Board, any fees (not being charges for outlays) which, if the solicitor had been employed by a firm of solicitors or by an incorporated practice, would, apart from section 11 of this Act, have been properly chargeable by that firm or practice in respect of the advice and assistance.
(4) In the circumstances set out in subsection (5), no application may be made for the Board's approval for the cost of giving the advice and assistance—
(a) to exceed the limit applicable under this section; or
(b) to that limit having been exceeded.
(5) The circumstances are that the matter with which the advice and assistance is concerned is not—
(a) specified as a distinct matter for the purposes of advice and assistance by virtue of regulations made under this Act; or
(b) being treated as if it were a distinct matter by virtue of such regulations.
(1) A client shall not be required to pay any fees or outlays in respect of advice and assistance received by him in pursuance of this Part of this Act except in accordance with subsection (2) or , (2A) ... below or, where applicable, section 11A.
(2) Where—
(a) a client’s disposable income exceeds £105 a week; and
(b) he is not (directly or indirectly) in receipt of universal credit under Part 1 of the Welfare Reform Act 2012, income support or , an income-based jobseeker's allowance (payable under the Jobseekers Act 1995) or an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance),
he shall be liable to pay, in respect of the advice and assistance, fees or outlays up to, but not in aggregate exceeding, such amount as may be prescribed by regulations made under this section, and such regulations may prescribe different maximum payments for different amounts of disposable income and for different cases or classes of case.
(2A) A client to whom paragraphs (a) and (b) of subsection (2) above apply and to whom advice and assistance (other than assistance by way of representation to which section 9A applies) has been provided by a solicitor employed by the Board under sections 26 and 27 or section 28A of this Act shall pay to the Board such contribution in that respect as the Board may, subject to subsection (3A) below, determine.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) The amount determined by the Board under subsection (2A) above shall not exceed the amount which would be charged by a solicitor who is not employed by the Board under sections 26 and 27 or section 28A of this Act.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11A Clients' contributions: specified criminal assistance by way of representation
(1) This section applies where—
(a) assistance by way of representation has been made available to a client under section 9A(1) (“the assistance”), and
(b) the client—
(i) has disposable income of, or exceeding, £82 per week and is not (directly or indirectly) in receipt of any of the benefits mentioned in section 11(2)(b), or
(ii) has disposable capital of, or exceeding, £750.
(2) The client is liable to pay a contribution in respect of the assistance provided of up to, but not in aggregate exceeding, such amount as may be prescribed by regulations made under section 33ZA(1).
(3) Except where regulations made under section 33ZA(1) otherwise provide—
(a) in a case where the assistance is being provided—
(i) by a solicitor employed by the Board by virtue of sections 26 and 27 or, as the case may be, section 28A, or
(ii) by counsel instructed by such a solicitor,
it is for the Board to determine the amount of and collect any contribution payable by the client under subsection (2), and
(b) in any other case, it is for the solicitor to determine the amount of and collect any contribution payable by the client under subsection (2).
(4) A contribution collected by the solicitor is to be treated as payment of a fee or outlay properly chargeable (in accordance with section 33).
12 Payment of fees or outlays otherwise than through clients’ contributions.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) This section applies to any fees or outlays properly chargeable (in accordance with section 33 of this Act), in respect of advice and assistance given to a client in pursuance of this Part of this Act ; but does not apply to the salary payable to a solicitor employed by the Board under sections 26 and 27 of this Act or to the salary payable to a solicitor employed by the Board by virtue of section 28A of this Act.
(3) Except in so far as regulations made under this section otherwise provide, fees or outlays to which this section applies shall be paid to the solicitor or, as the case may be, the registered organisation, as follows—
(a) first, out of any amount payable by the client in accordance with section 11(2) or, as the case may be, section 11A(2) of this Act;
(b) secondly, in priority to all other debts, out of any expenses which (by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the client by any other person in respect of the matter in connection with which the advice and assistance is provided;
(c) thirdly, in priority to all other debts, out of any property (of whatever nature and wherever situated) which is recovered or preserved for the client in connection with that matter, including his rights under any settlement arrived at in connection with that matter in order to avoid or bring to an end any proceedings;
(d) fourthly, by the Board out of the Fund, following receipt by it of a claim submitted by the solicitor or the registered organisation.
(4) In subsection (3), the reference to an amount payable by the client does not include an amount which it is for the Board to collect (whether under section 11A(3) or any regulations made under section 33ZA(1)).
(1) The Board shall establish and maintain a register of advice organisations (“the register of advice organisations”) of organisations approved by the Board as registered organisations in relation to the provision of advice and assistance by persons approved by such organisations as advisers.
(2) A person who—
(a) is a solicitor;
(b) is an advocate;
(c) is a conveyancing practitioner or an executry practitioner, within the meaning of section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40);
(d) has acquired any right to conduct litigation or right of audience by virtue of section 27 of that Act,
may not be an adviser.
(3) Schedule 1A makes further provision about advisers and registered organisations, the register of advice organisations, code of practice for advisers etc.
(1) The Scottish Ministers may by regulations specify categories of circumstances for the purposes of paragraph (aa) of the definition of “advice and assistance” in section 6(1) of this Act.
(2) The power under subsection (1) may specify different categories for different purposes.
(3) In this Act—
(a) “advice and assistance” as defined in section 6(1)(c) is limited to the extent to which it is competent for the adviser to perform any steps on behalf of the person or by assisting him in so taking them;
(b) “assistance by way of representation” as defined in section 6(1) includes advice and assistance provided by an adviser but only to the extent to which it is competent for the adviser to perform such steps referred to in that definition.
(1) This Part of this Act applies to civil legal aid.
(2) In this Act, “civil legal aid” means representation by a solicitor and ,where appropriate, by counsel in any proceedings mentioned in Part I of Schedule 2 to this Act, on the terms provided for in this Act, and includes all such assistance as is usually given by solicitor or counsel in the steps preliminary to or incidental to proceedings, or in arriving at or giving effect to a settlement to prevent them or bring them to an end.
(3) Subject to sections 14 and 15 of this Act and to regulations made under this section, civil legal aid shall be available in connection with any proceedings mentioned in subsection (2) above, except insofar as Part II of Schedule 2 to this Act otherwise provides.
(4) Schedule 2 to this Act may be varied by regulations made under this section, so as to extend or restrict the categories of proceedings in which civil legal aid is available, by reference to the court or tribunal, to the issues involved, to the capacity in which the person seeking civil legal aid is concerned, or otherwise.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) In subsection (4) above, the reference to a court or tribunal includes a reference to a court or tribunal which is established by law for purposes which are or include those of determining persons’ civil rights and obligations and to any person who or group of persons, body, statutory inquiry or other procedure which (however described) is appointed or established by law for such purposes.
(1) Subject to section 15 of this Act and to subsections (1F) and (2) below, civil legal aid shall be available to a person if, on an application made to the Board—
(a) the Board is satisfied that he has a probabilis causa litigandi; and
(b) it appears to the Board that it is reasonable in the particular circumstances of the case that he should receive legal aid.
(1A) In the case of proceedings in such courts or tribunals as may be specified in regulations under this Act, civil legal aid shall be available to a person only if, in addition to the requirements which have to be met under subsection (1) above and section 15 of this Act, such criteria as may be prescribed in those regulations are met.
(1B) In subsection (1A) above, the reference to courts or tribunals shall be construed in accordance with section 13(6) of this Act.
(1C) In the case of proceedings described in paragraph 1 of Part II of Schedule 2 to this Act, civil legal aid shall be available to a person only if, in addition to the requirements which have to be met under subsection (1) and section 15 of this Act and subject to paragraph 2 of Part II of Schedule 2, such criteria as may be set out by the Scottish Ministers in directions given to the Board are met.
(1D) A direction given under subsection (1C) may—
(a) include criteria in respect of which the Board may require to satisfy itself;
(b) make different provision for different purposes;
(c) be varied or revoked at any time.
(1E) Where the Scottish Ministers give a direction under subsection (1C)—
(a) the Board must comply with it;
(b) the Scottish Ministers must arrange for the direction to be published in such manner as they consider appropriate.
(1F) Legal aid made available to a person under subsection (1) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.
(1G) The Board shall establish a procedure under which any person receiving civil legal aid under this section which is subject to conditions by virtue of subsection (1F) may apply to the Board for a review of any such condition.
(2) The Board may require a person receiving civil legal aid to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive civil legal aid.
(3) Subject to subsections (4) to (6) below, the Board shall establish a procedure under which any person whose application for legal aid under this section has been refused may apply to the Board for a review of his application.
(4) Where—
(a) the Board has refused an application for civil legal aid by a person who has applied for such aid for the purpose of raising an action against the Board; and
(b) the applicant has applied to the Board for a review of his application,
the Board shall, unless they decide to grant the application forthwith, refer the application, together with all relevant precognitions, statements and other papers, including any observations they wish to make on the application, to the sheriff for Lothian and Borders at Edinburgh.
(5) Subject to section 15 of this Act, and to subsection (2) above, where the sheriff decides—
(a) that the applicant has a probabilis causa litigandi ; and
(b) that it is reasonable in the particular circumstances of the case that he should receive legal aid,
he shall so inform the Board, and the Board shall make civil legal aid available to the applicant.
(6) A decision made by the sheriff under subsection (5) above shall be final.
(1) A person shall be eligible for civil legal aid if his disposable income does not exceed £26,239 a year.
(2) A person may be refused civil legal aid if—
(a) his disposable capital exceeds £13,017; and
(b) it appears to the Board that he can afford to proceed without legal aid.
(3) For the purposes of this section, a person’s disposable income and disposable capital shall be determined by the Board.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16 Expenses in favour of certain assisted persons.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . .in sections 17 to 20 of this Act—
“court” includes tribunal and references to either shall be construed in accordance with section 13(6) of this Act;
“legally assisted person” means a person in receipt of civil legal aid in the proceedings in question or a person in receipt of assistance by way of representation in any proceedings to which this Part applies.
17 Contributions, and payments out of property recovered.
(1) Legally assisted persons may be required by the board to contribute to the Fund in accordance with this section in respect of any proceedings in connection with which they are granted civil legal aid.
(2) A legally assisted person’s contribution under this section shall be determined by the Board, and may include—
(a) if his disposable income exceeds £3,521 a year, a contribution in respect of income which shall not be more than 67.1% of the excess (or such other proportion of the excess, or such amount, as may be prescribed by regulations made under this section); and
(b) if his disposable capital exceeds £7,853, a contribution in respect of capital which shall not be more than the excess (or such proportion of the excess or such lesser amount as may be prescribed by regulations made under this section).
(2A) Except in so far as regulations made under this section otherwise provide, any sum of money recovered under an award of or an agreement as to expenses in favour of any party in any proceedings in respect of which he is or has been in receipt of civil legal aid shall be paid to the Board.
(2B) Except in so far as regulations made under this section otherwise provide, where, in any proceedings, there is a net liability of the Fund on the account of any party, the amount of that liability shall be paid to the Board by that party, in priority to any other debts, out of any property (wherever situate) which is recovered or preserved for him—
(a) in the proceedings; or
(b) under any settlement to avoid them to bring them to an end.
(2C) Subsection (2D) below applies where, after applying sums paid to the Board under subsection (2A) above in respect of the expenses of any party in any proceedings—
(a) there is a surplus in the Fund on the account of the party; and
(b) the party received, in respect of the same proceedings, assistance from the Commission for Equality and Human Rights under section 28 of the Equality Act 2006 (power of the Commission to provide legal assistance).
(2D) The Board shall apply the surplus to pay to the Commission any sums due to it under section 29(2) of that Act (Commission's entitlement to recover expenses incurred in providing assistance) in respect of the assistance provided by it to the party.
(3)–(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The liability of a legally assisted person under an award of expenses in any proceedings shall not exceed the amount (if any) which in the opinion of the court or tribunal making the award is a reasonable one for him to pay, having regard to all the circumstances including the means of all the parties and their conduct in connection with the dispute.
(3) None of the following, namely a legally assisted person’s house, wearing apparel, household furniture and the tools and implements of his trade or profession shall—
(a) be taken into account in assessing his means for the purposes of subsection (2) above; or
(b) be subject to diligence or any corresponding process in any part of the United Kingdom in connection with any award of expenses in proceedings to which this section applies,
except insofar as regulations made under this section may prescribe.
(1) In any proceedings to which a legally assisted person is party and which are finally decided in favour of an unassisted party, subject to subsections (2) and (3) below, the court may make an award out of the Fund to an unassisted party of the whole or any part of any expenses incurred by him (so far as attributable to any part of the proceedings in connection with which another party was a legally assisted person).
(2) Before making an order under this section, the court shall consider making an award of expenses against the legally assisted person.
(3) An order under this section may be made only if—
(a) an order for expenses might be made in the proceedings, apart from this Act; and
(b) in the case of expenses of proceedings in a court of first instance, those proceedings were instituted by the legally assisted person, and the court is satisfied that the unassisted party will suffer . . . financial hardship unless the order is made; and
(c) in any case, the court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds.
(4) The provisions of subsection (3)(b) above regarding financial hardship may be modified, in their application to persons who are concerned in proceedings only in a fiduciary, representative or official capacity, by regulations made under this section.
(5) No appeal may be made against an order made under this section, or against a refusal to make such an order, except on a point of law.
(6) In this section, “expenses” means expenses as between party and party, and includes the expenses of applying for an order under this section.
20 Provisions supplementary to sections 18 and 19.
(1) For the purposes of section19 of this Act, civil proceedings are finally decided in favour of an unassisted party—
(a) if no appeal may be made against the decision in his favour;
(b) if an appeal may be made against the decision with leave, and the time limit for applications for leave expires and either no application has been made, or leave has been refused;
(c) if leave to appeal against the decision is granted or is not required and no appeal is made within the time limit for appeals; or
(d) if an appeal is made but is abandoned before it is determined.
(2) Where an appeal is allowed to be made late, the court by which the appeal (or any further appeal in those proceedings) is determined may make an order for the repayment by the unassisted party to the Fund of the whole or any part of any sum previously paid to him under section 19 of this Act in respect of those proceedings.
(3) Where a court decides any proceedings in favour of the unassisted party and an appeal may be made (with or without leave) against that decision, the court may, if it thinks fit, make or refuse to make an order under section 19 of this Act, but any order so made shall not take effect unless—
(a) where leave to appeal is required, the time limit for applications for leave to appeal expires and no application has been made or leave is refused;
(b) where leave to appeal is granted or is not required, the time limit for appeals expires without an appeal being made; or
(c) an appeal is made but is abandoned before it is determined.
(4) It shall be competent, at any time within such period after the making of an award of expenses to which section 18(2) of this Act applies as may be prescribed by regulations made under this section, for any party concerned with the award to apply to the court or tribunal which made the award for re-assessment of its amount, on the ground that since the award was made there has been a relevant change of circumstances, and on such application the court or tribunal may make such re-assessment of the amount of the award as seems to them proper.
(1) This Part of this Act applies to legal aid in connection with—
(a) criminal proceedings before any of the following—
(i) the High Court of Justiciary;
(ia) the Sheriff Appeal Court;
(ii) the sheriff;
(iii) the district court;
(aa) any case the referral of which is required, under section 2(6) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, by a designated life prisoner;
and,
(b) any reference in connection with such proceedings under Article 267 of the Treaty on the Functioning of the European Union,
(c) any reference, appeal or application for special leave to appeal to the Supreme Court under paragraph 11 or 13(a) of Schedule 6 to the Scotland Act 1998
(d) any reference, appeal or application for permission to appeal to the Supreme Court under section 288ZB or 288AA of the Criminal Procedure (Scotland) Act 1995
and such legal aid is referred to in this Act as “criminal legal aid”.
(2) The Secretary of State may, by regulations made under this section, prescribe by reference to such considerations as appear to him to be appropriate any class or stage of proceedings in connection with which criminal legal aid shall or, as the case may be, shall not be available.
(3) Subject to regulations made under this section, and to sections 22 and 23 of this Act, criminal legal aid shall not be available in connection with summary criminal proceedings until the conclusion of the first diet at which the accused has tendered a plea of not guilty.
(4) Criminal legal aid shall consist of representation, on terms provided for by this Act—
(a) by a solicitor and , where appropriate, by counsel;
(b) by a solicitor at any identification parade held, by or on behalf of the prosecutor (within the meaning of section 307 of the Criminal Procedure (Scotland) Act 1995), in connection with or in contemplation of criminal proceedings against the person so represented,
and shall include all such assistance as is usually given by a solicitor or counsel in the steps preliminary to or incidental to criminal proceedings.
(1) Subject to regulations made under section 21(2) of this Act, criminal legal aid shall be available to every accused person—
(a) where he is given representation as mentioned in paragraph (b) of section 21(4) of this Act;
(b) where his case is being prosecuted under solemn procedure until either—
(i) an application for legal aid under section 23A(1) of this Act has been determined; or
(ii) he is admitted to bail or he is committed until liberated in due course of law,
whichever first occurs;
(c) where he is being prosecuted under summary procedure, and either is in custody or has been liberated under section 295(1)(a) of the Criminal Procedure (Scotland) Act 1975 (liberation by police on undertaking to appear)—
(i) until the conclusion of the first diet at which he tenders a plea of guilty or not guilty; or
(ii) where he has tendered a plea of guilty at that diet, until his case is finally disposed of;
(d) where he is in custody and he is being prosecuted under summary procedure and he has—
(i) tendered a plea of not guilty; and
(ii) made an application to the Board for legal aid in connection with the proceedings,
until his application has been determined by the Board; and
(da) in relation to any proceedings under solemn or summary procedure whereby the court determines (whether or not on a plea by the accused person) whether the accused is unfit for trial under section 53F of the Criminal Procedure (Scotland) Act 1995;
(db) in relation to an examination of facts held under section 55 of the Criminal Procedure (Scotland) Act 1995 and the disposal of the case following such examination of facts;
(dc) in relation to any appeal under section 62 or 63 (appeal by, respectively, accused or prosecutor where accused found not criminally responsible or unfit for trial) of that Act of 1995;
(dd) where a solicitor has been appointed under section 288D of the Criminal Procedure (Scotland) Act 1995 (c.46) (appointment by court of solicitor for person accused of certain offences and thereby prohibited from conducting defence in person) or section 92(2), (2B)(b) or (2E) of that Act (appointment of solicitor for accused where the trial is to proceed in his absence) to act on his instructions or in his interests;
(de) where a solicitor has been appointed under subsection (4)(b) or (7) of section 150A (proceedings in absence of accused) of the Criminal Procedure (Scotland) Act 1995 to represent the accused's interests;
(e) where he is being prosecuted under section 255 or 452B of the Criminal Procedure (Scotland) Act 1975 (new prosecution for the same or similar offence), until his case is finally disposed of,
and, in relation to paragraph (dc) above, “accused person” includes a person authorised to institute or continue an appeal under section 303A(4) of the Criminal Procedure (Scotland) Act 1995 (transfer of rights of appeal of deceased person).
(2) Criminal legal aid made available in the circumstances referred to in paragraph (c)(i) of subsection (1) above shall also be available in connection with any steps taken in the making of and representation in connection with any application for liberation following upon the diet referred to in that paragraph.
(1) Criminal legal aid shall be available on an application made to the court—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) where a person who has not previously been sentenced to imprisonment or detention has been convicted in summary proceedings, and the court is considering a sentence of imprisonment or detention or the imposition of imprisonment under section 396(2) of the Criminal Procedure (Scotland) Act 1975 (failure to pay a fine when no time for payment is allowed),
if the court is satisfied after consideration of the person’s financial circumstances that the expenses of the case cannot be met without undue hardship to him or his dependants.
(2) In subsection (1) above, “the court” means—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) in relation to summary proceedings, the court before which the proceedings are being taken,
and references in that subsection to detention shall be construed in accordance with section 204(4)(b) of the Criminal Procedure (Scotland) Act 1995.
(1) Criminal legal aid shall be available on an application made to the Board, where a person is being prosecuted under solemn procedure, if the Board is satisfied after consideration of the person's financial circumstances that the expenses of the case cannot be met without undue hardship to the person or the person's dependants.
(2) Legal aid made available to a person under subsection (1) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.
(3) The Board may require a person receiving legal aid under subsection (1) to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive criminal legal aid.
(4) The Board shall establish a procedure under which any person whose application for legal aid under subsection (1) has been refused may apply to the Board for a review of the application.
(5) The Board shall establish a procedure under which any person receiving criminal legal aid under subsection (1) which is subject to conditions by virtue of subsection (2) may apply to the Board for a review of any such condition.
(1) Subject to regulations made under section 21(2) of this Act, to section 21(3) of this Act and to subsections (1A), (2) and (3) below, criminal legal aid shall be available to an accused person in summary proceedings on an application made to the Board if the Board is satisfied—
(a) after consideration of the financial circumstances of the accused person, that the expenses of the case cannot be met without undue hardship to him or his dependants; and
(b) that in all the circumstances of the case it is in the interests of justice that legal aid should be made available to him.
(1A) Legal aid made available to a person under subsection (1) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.
(2) The Board may require a person receiving criminal legal aid under this section to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that
(a) after consideration of the financial circumstances of the person, the expenses of the case cannot be met without undue hardship to him or his dependants;
(b) it is in the interests of justice for him to continue to receive criminal legal aid.
(3) The factors to be taken into account by the Board in determining whether it is in the interests of justice that criminal legal aid be made available in any case shall include—
(a) the offence is such that if proved it is likely that the court would impose a sentence which would deprive the accused of his liberty or lead to loss of his livelihood;
(b) the determination of the case may involve consideration of a substantial question of law, or of evidence of a complex or difficult nature;
(c) the accused may be unable to understand the proceedings or to state his own case because of his age, inadequate knowledge of English, mental illness, other mental or physical disability or otherwise;
(d) it is in the interests of someone other than the accused that the accused be legally represented;
(e) the defence to be advanced by the accused does not appear to be frivolous;
(f) the accused has been remanded in custody pending trial.
(4) The Secretary of State may, by regulations made under this section, vary the factors listed in subsection (3) above by amending factors in the list or by adding new factors to the list.
(5) The Board shall establish a procedure under which any person whose application for criminal legal aid in summary proceedings has been refused may apply to the Board for a review of his application.
(5A) The Board shall establish a procedure under which any person receiving criminal legal aid under this section which is subject to conditions by virtue of subsection (1A) may apply to the Board for a review of any such condition.
(6) Where a person who is being prosecuted under summary procedure is not represented by a solicitor or counsel and . . . —
(a) has not applied for criminal legal aid in connection with proceedings; . . .
(b) has applied for criminal legal aid but been refused it on the grounds that it is not in the interests of justice ; or
(c) is no longer receiving criminal legal aid in connection with proceedings because the Board is no longer satisfied as to the matters mentioned in paragraphs (a) and (b) of subsection (1),
the court at the trial diet may, if it considers that owing to the exceptional circumstances of the case it would be inequitable to proceed with the trial without such representation and without legal aid being made available to him, adjourn the diet to enable an application for legal aid to be made to the Board, which shall consider the application expeditiously.
(7) Where the trial of an accused person is adjourned as is mentioned in subsection (6) above, and he has made an application to the Board, criminal legal aid shall be available to him until his application is determined by the Board.
(8) Where any person to whom criminal legal aid has been made available in pursuance of subsection (7) above has his application for criminal legal aid under subsection (6) above refused by the Board on the ground that it is satisfied that subsection (1)(a) above does not apply in his case, the Board may require him to pay to the Fund the whole or part of the amount of any sums paid out of the Fund under section 4(2)(a) of this Act in respect of the criminal legal aid so made available.
(1) This section shall apply to criminal legal aid in connection with an appeal against conviction, sentence , other disposal or acquittal in criminal proceedings other than an appeal in relation to which section 22(1)(dc) of this Act applies.
(2) Subject to regulations made under section 21(2) of this Act criminal legal aid to which this section applies shall be available on an application made to the Board if the Board is satisfied—
(a) subject to subsection (4) below, the Board is satisfied after consideration of the financial circumstances of the applicant, that the expenses of the appeal cannot be met without undue hardship to the applicant or his dependants;
(b) in the case of an appeal under section 106(1) , 175(2) or 194ZB(1) of the Criminal Procedure (Scotland) Act 1995, leave or permission to appeal is granted; and
(c) in the case of an appeal under any other provision of that Act, where the applicant is the appellant, the Board is satisfied that in all the circumstances of the case it is in the interests of justice that the applicant should receive criminal legal aid.
(2A) Where the Board has refused an application for criminal legal aid on the ground that it is not satisfied as mentioned in subsection (2)(c) above the High Court or, in the case of an appeal to the Sheriff Appeal Court, that Court may, at any time prior to the disposal of an appeal, whether or not on application made to it, notwithstanding such refusal determine that it is in the interests of justice that the applicant should receive criminal legal aid in connection with the appeal, and the Board shall forthwith make such legal aid available to him.
(2B) Where a person is no longer receiving criminal legal aid because the Board is no longer satisfied as mentioned in subsection (2)(c) above the High Court or, in the case of an appeal to the Sheriff Appeal Court, that Court may, at any time prior to the disposal of the appeal, whether or not on application made to it, notwithstanding the Board no longer being so satisfied, determine that it is in the interests of justice that the person should receive criminal legal aid in connection with the appeal, and the Board shall forthwith make such legal aid available to him.
(2C) Legal aid made available to a person under subsection (2) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.
(3) The Board may require a person receiving criminal legal aid under this section to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive criminal legal aid.
(3A) The Board shall establish a procedure under which any person whose application for criminal legal aid under subsection (2) has been refused may apply to the Board for a review of his application.
(3B) The Board shall establish a procedure under which any person receiving criminal legal aid under subsection (2) which is subject to conditions by virtue of subsection (2C) may apply to the Board for a review of any such condition.
(4) Subsection (2)(a) above does not apply where criminal legal aid was made available under section 23 , 23A or 24 of this Act in connection with the proceedings in respect of which the appeal is being made.
(5) Subsections (2)(a), (3) and (4) above shall apply to an application for criminal legal aid in connection with consideration under section 107, 180 , 187, 194ZD or 194ZE of the Criminal Procedure (Scotland) Act 1995 whether to grant leave or permission to appeal as if—
(a) in subsection (2)(a), for the words “of the appeal” there were substituted the words “in connection with consideration whether to grant leave or permission to appeal”; and
(b) in subsection (4), after the word “is” there were inserted the words “subject to leave or permission being granted,”.
(6) Subsections (2)(a) and (c) and (2A) to (4) above shall apply to an application for criminal legal aid in connection with a petition to the nobile officium of the High Court of Justiciary (whether arising in the course of any proceedings or otherwise) as they apply for the purposes of subsection (1) above.
(7) Subsections (2)(a), (3) and (4) above shall apply to an application for criminal legal aid in connection with a reference by the Scottish Criminal Cases Review Commission under section 194B of the Criminal Procedure (Scotland) Act 1995 as they apply for the purposes of subsection (1) above.
25AA Legal aid in respect of appeals under section 303A of the 1995 Act.
(1) Subject to the provisions of this section, sections 25 and 25AB of this Act apply to any appeal, within the meaning of section 303A of the Criminal Procedure (Scotland) Act 1995 (transfer of rights of appeal of deceased person), instituted or continued by a person (an “authorised person”) authorised under subsection (4) of the said section 303A.
(2) Where an authorised person is continuing an appeal which has been instituted by the deceased person, and criminal legal aid, within the meaning of section 25, or section 25AB has been awarded to the deceased person in connection with any proceedings, such legal aid shall continue to be made available to the authorised person in respect of those proceedings.
(3) Where—
(a) the deceased person had applied for criminal legal aid within the meaning of section 25, or section 25AB but the application had not been determined prior to his death; or
(b) the deceased person had not applied for such legal aid,
the authorised person shall be regarded as the applicant and, in a case to which paragraph (b) applies, may apply for such legal aid.
(4) Notwithstanding subsection (3) above—
(a) in sections 25(2)(a) and 25AB(2) of this Act, where the authorised person is the executor of the deceased, any reference to—
(i) the financial circumstances of the applicant shall be construed as a reference to the value of the deceased person’s estate; and
(ii) the applicant’s dependants shall be construed as a reference to the beneficiaries of the deceased’s estate; and
(b) any reference in section 25(2)(c) or (2A) of this Act to whether it is in the interests of justice that the applicant should receive legal aid shall be construed as a reference to whether it would have been in the interests of justice that the deceased should have received legal aid.
25AB Legal aid in references, appeals or applications for special leave to appeal to the Supreme Court
(1) This section shall apply to criminal legal aid in connection with—
(a) any reference, appeal or application for special leave to appeal to the Supreme Court under paragraph 11, 13(a) or 33 of Schedule 6 to the Scotland Act 1998; or
(b) any reference, appeal or application for permission to appeal to the Supreme Court under section 288ZB or 288AA of the Criminal Procedure (Scotland) Act 1995.
(2) Subject to regulations made under section 21(2) of this Act criminal legal aid to which this section applies shall be available on an application made to the Board if–
(a) the Board is satisfied after consideration of the financial circumstances of the applicant that the expenses of the reference, appeal or application for special leave or permission to appeal cannot be met without undue hardship to the applicant or his dependants; and
(b) in the case of an application for special leave or permission to appeal, the Board is satisfied in all the circumstances of the case that it is in the interests of justice that the applicant should receive legal aid.
(2A) Legal aid made available to a person under subsection (2) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.
(3) The Board may require a person receiving criminal legal aid under this section to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive criminal legal aid.
(3A) The Board shall establish a procedure under which any person whose application for criminal legal aid under subsection (2) has been refused may apply to the Board for a review of his application.
(3B) The Board shall establish a procedure under which any person receiving criminal legal aid under this section which is subject to conditions by virtue of subsection (2A) may apply to the Board for a review of any such condition.
(4) Criminal legal aid shall not be available under this section in connection with a reference under paragraph 11 or 33 of Schedule 6 to the Scotland Act 1998 or under section 288ZB of the Criminal Procedure (Scotland) Act 1995 where criminal legal aid was made available under section 23 , 23A, 24 or 25 of this Act in connection with the proceedings in which the reference is made.
(1) The Board shall, in accordance with the provisions of this section, establish and maintain a Criminal Legal Assistance Register (“the Register”) of—
(a) solicitors who are eligible to provide criminal legal assistance; and
(b) subject to subsection (4) below, the firms with which the solicitors mentioned in paragraph (a) above are connected.
(2) A sole solicitor who wishes to provide criminal legal assistance shall require to be registered both as a solicitor and as a firm.
(3) Only those solicitors whose names appear on the Register may provide criminal legal assistance; and, subject to subsection (4) below, a solicitor may provide criminal legal assistance only when working in the course of a connection with a registered firm.
(3A) A solicitor employed by the Board under sections 26 and 27 of this Act to provide criminal legal assistance shall require to be registered, and the entry relating to his name on the Register shall include a note that he is so employed; but the Board shall not be regarded as a firm for the purposes of this section, and shall not itself require to be registered.
(4) A solicitor employed by the Board under section 28A of this Act shall require to be registered, and the entry relating to his name on the Register shall include a note that he is so employed; but the Board shall not be regarded as a firm for the purposes of this section, and shall not itself require to be registered.
(5) An application for entry on the Register shall be made in such form as the Board may determine, and shall be accompanied by such documents as the Board may specify, which shall include, in the case of a solicitor, a copy of his practising certificate.
(6) Before making any decisions as to the matters mentioned in subsection (5) above the Board shall—
(a) send to the Law Society and to such other persons and bodies as it considers appropriate a draft of its proposals in that regard, inviting their comments on those proposals within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify; and
(b) consider any such comments timeously received by it,
but, where it amends those proposals in the light of any such comments, it shall not be required to re-intimate the amended proposals to any of those who were invited to comment.
(7) Subject to subsection (15) below, where a solicitor is connected with a firm the Board shall not consider his application unless the firm—
(a) is already registered; or
(b) has also applied for registration.
(8) On receipt of an application the Board shall make such enquiries as it thinks appropriate for the purpose of determining whether the applicant complies with the relevant provisions of the code; and it may for that purpose use the powers conferred on it by section 35A of this Act.
(9) Subject to subsection (10) below, where the Board is satisfied that an applicant complies with the code and, in the case of a solicitor, is not otherwise disqualified from providing criminal legal assistance, it shall make the appropriate entry on the Register.
(10) Subject to subsection (15) below, where a solicitor is connected with a firm, the Board shall not enter his name on the Register unless the firm’s name is already entered on the Register.
(11) Where a solicitor is connected with a firm or firms, the name or names of which appear on the Register, the entry relating to that solicitor shall include the name of that firm or those firms.
(12) Where the Board decides to refuse an application it shall forthwith intimate that decision to the applicant, and shall as soon as practicable thereafter send him or them, by recorded delivery, a written note of its reasons.
(13) An applicant aggrieved by a decision of the Board to refuse registration may, within 21 days of the receipt of the notification of the Board’s reasons under subsection (12) above, appeal to the Court of Session against that decision.
(14) An appeal under subsection (13) above may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit.
(15) Where a solicitor who is seeking registration, or is registered, is connected with more than one firm the requirements of subsections (7) and (10) above shall be satisfied if one of those firms has applied for registration or, as the case may be, is registered.
25B Code of practice in relation to criminal legal assistance.
(1) The Board shall prepare a draft code of practice in relation to the carrying out by solicitors of their functions with regard to the provision of criminal legal assistance and, without prejudice to the generality of the foregoing, the code may include provision as to—
(a) the conditions to be complied with in order to qualify for registration, including—
(i) the attendance by the solicitor at a sufficient number of specified courses relevant to the provision of criminal legal assistance, including courses in criminal law, evidence and pleading and professional ethics;
(ii) the keeping of records in a particular format;
(b) the standards of conduct expected of a solicitor providing or proposing to provide criminal legal assistance;
(c) the manner in which a solicitor should conduct a case and represent his client, including—
(i) the passage of timeous and accurate information to the client in relation to his case;
(ii) the frequency of meetings with the client;
(iii) the giving of advice to the client as to the consequences of any decision made by the client in relation to his defence;
(iv) the taking of such precognitions as may be necessary;
(v) the conduct of relations with the prosecution;
(d) the manner in which applications for criminal legal assistance are to be presented;
(e) the monitoring of a solicitor’s performance with a view to a decision by the Board as to whether he should continue to be registered, including—
(i) periodic review of his handling of particular cases by other solicitors or by the Board;
(ii) the extent to which he attends courses relevant to the provision of criminal legal assistance, including courses in criminal law, evidence and pleading and professional ethics;
(f) the manner in which records are kept, including—
(i) maintaining books of account, and presentation of accounts to the Board, in a specified format;
(ii) office procedures;
(iii) time recording systems;
(iv) instructions given to the staff,
and any other matter relating to the organisation of or accounting for criminal legal assistance which appears to the Board to be relevant.
(2) The code may make different provision in relation to firms and solicitors including in relation to solicitors employed by the Board under sections 26 and 27 of this Act to provide criminal legal assistance, different provision to reflect the fact that they are so employed and including, in relation to solicitors employed by the Board by virtue of section 28A of this Act, different provision to reflect the fact that they are so employed.
(3) The Board shall—
(a) send a copy of the draft code prepared by it under subsection (1) above to the Law Society and to such other persons and bodies as it considers appropriate, inviting their comments on the draft within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify; and
(b) consider any such comments timeously received by it,
but, where it amends the draft code in the light of any such comments, it shall not be required to re-intimate the amended code to any of those who were invited to comment.
(4) After carrying out the consultation mentioned in subsection (3) above the Board shall submit the draft code to the Secretary of State for his approval.
(5) The Secretary of State may approve the draft code, with or without modifications.
(6) When the Secretary of State has approved the draft code under subsection (5) above he shall—
(a) return the draft to the Board; and
(b) specify the date upon which it is to come into force and how the Board is to publish it.
(7) The Board—
(a) shall make and publish the code by the date and in the manner specified by the Secretary of State under subsection (6) above; and
(b) may make a copy of the code available to any person requesting one, on payment of such sum, if any, towards the cost of preparation, publication and, where relevant, postage, as it considers appropriate.
(8) The Board shall keep under review the code prepared under this section and may from time to time revise it, and the provisions of this section shall apply in relation to any revision of the code as they apply in relation to the version originally prepared.
25C Supervision of registered solicitors and firms.
(1) Solicitors and firms whose names appear on the Register (“registered solicitors” and “registered firms”) shall comply with the requirements of the code.
(2) The Board shall monitor the carrying out by registered solicitors and firms of their duty under subsection (1) above.
(3) For the purpose of carrying out its duty under subsection (2) above the Board may use the powers conferred on it by sections 35A and 35B of this Act.
25D Removal of name from Register following failure to comply with code.
(1) Where it appears to the Board (whether or not following a complaint made to it) that a registered firm or solicitor may not be , or may not have been, complying with the code, it shall investigate the matter in such manner as it thinks fit, and shall give the firm or solicitor concerned an opportunity to make representations.
(2) For the purpose of carrying out its duty under subsection (1) above the Board may use the powers conferred on it by sections 35A and 35B of this Act.
(3) Following an investigation under subsection (1) above, the Board may give the firm or solicitor concerned an opportunity, within such time as it may specify, to remedy any defect in their or his compliance with the code.
(4) Where, after carrying out the procedures mentioned in subsection (1) above and, where a time limit has been set under subsection (3) above, after the expiry of that time limit, the Board is satisfied that—
(a) the firm are not complying with the code, it shall remove the names of the firm and, subject to subsection (5) below, of any registered solicitors connected with the firm from the Register;
(b) the solicitor is not complying with the code, it shall remove his name from the Register.
(4A) Where, after carrying out the procedures mentioned in subsection (1) above and, where a time limit has been set under subsection (3) above, after the expiry of that time limit, the Board is satisfied that, regardless of whether or not there is current compliance with the code—
(a) the firm have not complied with the code in a material regard, it may remove the names of the firm and, subject to subsection (5) below, of any registered solicitors connected with the firm from the Register;
(b) the solicitor has not complied with the code in a material regard, it may remove his name from the Register.
(5) Where a registered solicitor mentioned in subsection (4)(a) or (4A)(a) above is also connected with another registered firm, the Board shall not remove his name from the Register, but shall alter the entry against his name in the Register so as to remove therefrom the name of the firm whose name has been removed from the Register.
(6) Where the Board removes the name of a solicitor from the Register the solicitor shall—
(a) within such period of time as the Board shall direct (in the case concerned) and in accordance with arrangements approved by the Board, . . . and without waiting for the resolution of any appeal, transfer—
(i) any work currently being undertaken by him for any client by way of criminal legal assistance; and
(ii) notwithstanding any lien to which he might otherwise be entitled, any documents connected with any such work,
to a registered solicitor; and
(b) in accordance with section 25A(3) of this Act, stop providing criminal legal assistance.
(7) Where the Board removes the name of a firm or solicitor from the Register it shall forthwith intimate that removal to the firm or solicitor concerned, and shall as soon as practicable thereafter send them or him, by recorded delivery, a written note of its reasons for its decision.
(8) A firm or solicitor aggrieved by a decision of the Board under subsection (4) or (4A) above may, within 21 days of the receipt of the notification under subsection (7) above, appeal to the Court of Session against that decision.
(9) An appeal under subsection (8) above may be on questions of both fact and law and the court, after hearing such evidence and representations as it considers appropriate, may make such order as it thinks fit; but the making of such an appeal shall not have the effect of restoring the firm’s or solicitor’s name to the Register.
25E Further provision as to removal of name from Register.
(1) Where the Board is satisfied, whether on being so informed by the solicitor concerned or not, that a registered solicitor—
(a) has become connected with an unregistered firm; and
(b) is no longer connected with a registered firm,
it shall remove his name from the Register.
(2) Subsections (6) to (9) of section 25D of this Act apply in relation to a solicitor whose name is removed from the Register under subsection (1) above as they apply in relation to a solicitor whose name is removed from the Register under subsection (4) of that section.
(1) The Board shall make available for inspection, without charge—
(a) the Register;
(b) any decision refusing an application for entry on the Register; and
(c) any decision removing the name of a firm or solicitor from the Register,
and the publication of a decision such as is mentioned in paragraphs (b) or (c) above shall be accompanied by a statement of the reasons for the decision.
(2) The Board shall, as soon as is practicable after 1st December in each year, send a copy of the current Register to the Secretary of the Law Society.
(3) When any change is made to the Register in the course of a year, the Board shall, as soon as is practicable, send written notice of that change to the Secretary of the Law Society.