The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011

Duty solicitors: persons prosecuted under summary procedure S

7.—(1) Subject to paragraph (6), the Board is to arrange for a solicitor to be available for the purpose of providing criminal legal aid to a person to whom paragraph (2) applies (“the accused”), from the day the accused is first brought before a court to answer to any complaint until—

(a) the conclusion of the first diet at which the accused is called upon to plead if, at that diet, the accused tenders a plea of not guilty and following that diet does not make an application for liberation;

(b) any application for liberation made following the first diet at which the accused is called upon to plead has been dealt with;

(c) the conclusion of the proceedings against the accused if, at the first diet at which the accused is called upon to plead, the accused tenders a plea of guilty.

(2) This paragraph applies to a person who—

(a) is being prosecuted under summary procedure; and

(b) either—

(i) is in custody and does not have an appointed solicitor available immediately (either in person or through the services of another solicitor under paragraph [F1 (5A)]) to provide assistance by way of representation under regulation 6A of the Advice and Assistance (Assistance By Way of Representation) (Scotland) Regulations 2003 M1 ; or

(ii) has been liberated under section 22(1)(a) of the Criminal Procedure (Scotland) Act 1995 (liberation by police on undertaking to appear).

(3) In this regulation an “appointed solicitor” is a solicitor who—

(a) is instructed directly by the accused; and

(b) either—

(i) the solicitor has (or has had) a solicitor and client relationship with the accused that is demonstrable, to the satisfaction of the Board, by reference to circumstances apart from those relating solely to the appearance; or

(ii) the solicitor is connected with a firm and another solicitor connected with that firm has (or has had) such a relationship with the accused M2 .

(4) For the purposes of paragraph (3), the solicitors employed by the Board under section 28A of the Act are to be deemed to be connected with the same firm.

F2 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F3 (5A) [F4 Representation] by an appointed solicitor may be effected, from the appearance from custody onwards, through the services of another solicitor where—

(a) the other solicitor is expressly authorised to act by the appointed solicitor or by a solicitor connected with the appointed solicitor’s firm; and

(b) the other solicitor’s services are required because the appointed solicitor cannot attend personally due to—

(i) illness or incapacity;

(ii) the arising, after instruction in relation to the appearance, of a professional obligation to act in person in another case that is to call elsewhere at or around the same time; or

(iii) another good reason.

F5 (5B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(6) The Board is not to arrange for a solicitor to be available in pursuance of paragraph (1) in relation to proceedings before a court which has been designated as a drug court by the sheriff principal.

(7) Where the Board has arranged for a solicitor to be available pursuant to paragraph (1), for the purpose specified in that paragraph—

(a) section 31(1) of the Act shall not apply; and

(b) no solicitor, other than the solicitor so made available, shall provide criminal legal aid or assistance by way of representation to the accused.

[F6 (8) Paragraph (7) does not apply in relation to—

(a) proceedings before a court which has been designated as a youth court or a domestic abuse court by the sheriff principal;

(b) persons to whom paragraph (2)(b)(ii) applies.]

Textual Amendments

F1 Word in reg. 7(2)(b)(i) substituted (1.10.2022) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2022 (S.S.I. 2022/229), regs. 1, 7(a)

F2 Reg. 7(5) omitted (1.10.2022) by virtue of The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2022 (S.S.I. 2022/229), regs. 1, 7(b)

F3 Reg. 7(5A)(5B) inserted (1.7.2020) by The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 (S.S.I. 2020/191), regs. 1(2), 7(3)

F4 Word in reg. 7(5A) substituted (1.10.2022) by virtue of The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2022 (S.S.I. 2022/229), regs. 1, 7(c)

F5 Reg. 7(5B) omitted (1.10.2022) by virtue of The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2022 (S.S.I. 2022/229), regs. 1, 7(b)

F6 Reg. 7(8) substituted (1.10.2022) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2022 (S.S.I. 2022/229), regs. 1, 7(d)

Marginal Citations

M1 S.S.I. 2003/179; regulation 6A was inserted by S.S.I. 2006/345 and has been amended by S.S.I. 2008/251.

M2 Section 41 of the Act defines “solicitor connected with a firm” and cognate expressions.