The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003

Citation, commencement and interpretation S

1.—(1) These Regulations may be cited as the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 and shall come into force on 24th March 2003.

(2) In these Regulations–

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

F1 ...

“the 1995 Act” means the Criminal Procedure (Scotland) Act 1995 M1 ;

F2 ...

“the chairman of a tribunal”, in relation to a Parole Board case, has the same meaning as in Rule 2(1) of the Parole Board (Scotland) Rules [F3 2001];

“disciplinary proceedings”, in relation to a prisoner, means an inquiry before a governor held in pursuance of rules 97 and 98 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 M2 in respect of a breach of discipline which the prisoner is alleged to have committed;

“employment tribunal” means a tribunal established under section 1 of the Employment Tribunals Act 1996 M3 ;

“governor” means any of the following persons:–

(a)

the person who is appointed by the Scottish Ministers under section 3(1) of the Prisons (Scotland) Act 1989 M4 as the Governor-in-Charge of a prison;

(b)

the officer who is the Deputy Governor of a prison;

(c)

any officer who is appointed to manage a function or group of functions within a prison and is known as a Unit Manager and who has been authorised to adjudicate disciplinary proceedings; and

(d)

where there is no officer as mentioned in sub-paragraphs (a) to (c) above present for the time being in a prison, the most senior officer who is present in the prison at that time.

F4 ...

[F5 “Mental Health Tribunal for Scotland” means the tribunal established under Part 3 of the Mental Health (Care and Treatment) (Scotland) Act 2003;]

“officer” means an officer of the prison appointed by the Scottish Ministers;

“Parole Board case” means a case of a prisoner to which Part IV of the Parole Board (Scotland) Rules [F3 2001] applies;

[F6 “Pensions Regulator Tribunal” means the tribunal established under section 102 of the Pensions Act 2004;]

“prison” has the same meaning as in section 43(1) of the Prisons (Scotland) Act 1989 M5 and also includes a young offenders institution;

“prisoner”–

(a)

in relation to disciplinary proceedings, has the same meaning as in section 43(1) of the Prisons (Scotland) Act 1989 and also includes a person serving a sentence of detention in a young offenders institution; and

(b)

in relation to a Parole Board case, has the same meaning as in Rule 2(1) of the Parole Board (Scotland) Rules [F3 2001];

“tribunal” in relation to a Parole Board case, means a tribunal formed under Rule 18 of the Parole Board (Scotland) Rules [F3 2001], and includes a preliminary hearing before the chairman of a tribunal under Rule 19 of those Rules; and

“young offenders institution” has the same meaning as in section 19(1) of the Prisons (Scotland) Act 1989.

Textual Amendments

F1 Words in reg. 1(2) omitted (4.4.2005) by virtue of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2005 (S.S.I. 2005/165), regs. 2, 4(a)

F2 Words in reg. 1(2) omitted (4.4.2005) by virtue of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2005 (S.S.I. 2005/165), regs. 2, 4(b)

F3 Word in reg. 1 substituted (22.12.2006) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2006 (S.S.I. 2006/615), regs. 1, 3(a)

F4 Words in reg. 1(2) omitted (4.4.2005) by virtue of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2005 (S.S.I. 2005/165), regs. 2, 4(c)

F5 Words in reg. 1(2) inserted (5.10.2005) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2005 (S.S.I. 2005/482), regs. 1, 4 (with reg. 2)

F6 Words in reg. 1 inserted (22.12.2006) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2006 (S.S.I. 2006/615), regs. 1, 3(b)

Marginal Citations

M1 1995 c. 46.

M2 S.I. 1994/1931; relevant amending instruments are S.I. 1996/32, 1997/2007 and 1998/1589.

M3 1996 c. 17. Section 1 of the Employment Rights (Dispute Resolution) Act 1998 (c. 8) provides that the Industrial Tribunals Act 1996 may be cited as the Employment Tribunals Act 1996, and substitutes the term “industrial tribunal” with “employment tribunal” wherever it occurs in any enactment.

M4 1989 c. 45. Section 3(1) was modified by the Criminal Justice and Public Order Act 1994 (c. 33), section 110 and amended by the Scotland Act 1998 (c. 46), Schedule 8, paragraph 27 and the Crime and Punishment (Scotland) Act 1997 (c. 48), section 43.

M5 Section 43(1) was amended by the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40), Schedule 4 and the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9), Schedule 5.

Revocation S

2.  The Regulations specified in the Schedule to these Regulations are hereby revoked.

Application of Part II of the Act to assistance by way of representation: miscellaneous proceedings S

3.  Part II of the Act shall apply to assistance by way of representation in relation to–

(a) summary criminal proceedings;

(b) petitions for the appointment of an executor to a deceased person under the Act of Sederunt (Confirmation of Executors) 1964 M6 ;

(c) proceedings under section 17 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 M7 ;

[F7 (d) proceedings before the Mental Health Tribunal for Scotland;]

(e) petitions by a debtor for the sequestration of that debtor’s estate under section 5(2)(a) of the Bankruptcy (Scotland) Act 1985 M8 ;

(f) disciplinary proceedings before a governor in relation to a prisoner, where the prisoner has been permitted by the governor to be legally represented;

(g) proceedings in Parole Board cases;

(h) applications under section 42 of the Road Traffic Offenders Act 1988 M9 for the removal of a disqualification;

(i) proceedings under section 66(6) of the Criminal Justice and Public Order Act 1994 M10 for the return of sound equipment;

(j) civil proceedings arising from a failure by a person to–

(i) pay a fine or other sum; or

(ii) obey an order of the court;

(k) applications, by someone other than the accused, under section 31(6) of the Criminal Law (Consolidation) (Scotland) Act 1995 M11 ;

[F8 (l) proceedings before the Asylum and Immigration Tribunal, as established by virtue of section 26 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004;]

(m) proceedings before an employment tribunal;

(n) proceedings in connection with an application for a warrant of further detention, or for an extension of such a warrant, made to the sheriff under paragraph 29 or 36 of Schedule 8 to the Terrorism Act 2000 M12 ;

(o) proceedings before a hearing established under–

(i) paragraph 12 or paragraph 59 of the schedule to the Convention Rights (Compliance) (Scotland) Act 2001 M13 ; or

(ii) section 10(2F) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 M14 ;

(p) proceedings under section 5 of the Protection from Abuse (Scotland) Act 2001 M15 ; F9 ...

(q) proceedings before the VAT and Duties tribunals for Scotland M16 which consist of an appeal against a penalty imposed under–

(i) section 60 of the Value Added Tax Act 1994 M17 ; or

(ii) section 8 of the Finance Act 1994 M18 ;

[F10 (r) applications under section 57 or 58 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 in relation to the variation or termination of a football banning order made under section 51 of that Act; and

(s) proceedings before the Pensions Regulator Tribunal.]

Textual Amendments

F7 Reg. 3(d) substituted (5.10.2005) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2005 (S.S.I. 2005/482), regs. 1, 5 (with reg. 2)

F8 Reg. 3(l) substituted (4.4.2005) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2005 (S.S.I. 2005/165), regs. 2, 5

F9 Word in reg. 3(p) omitted (22.12.2006) by virtue of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2006 (S.S.I. 2006/615), regs. 1, 4(a)

F10 Reg. 3(r)(s) inserted (22.12.2006) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2006 (S.S.I. 2006/615), regs. 1, 4(b)

Marginal Citations

M6 S.I. 1964/1143.

M7 1981 c. 59; section 17 was amended by the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40), Schedule 4, paragraph 37.

M8 1985 c. 66; section 5(2) was substituted by the Bankruptcy (Scotland) Act 1993 (c. 6), section 3(2).

M9 1988 c. 53; section 42 was amended by the Road Traffic Act 1991 (c. 40), Schedule 4, paragraph 98, and S.I. 1990/144, 1996/2824 and 1999/2864.

M10 1994 c. 33.

M11 1995 c. 39.

M12 2000 c. 11.

M13 2001 asp 7.

M14 1993 c. 9; section 10(2F) was inserted by section 3(1)(b) of the Convention Rights (Compliance) (Scotland) Act 2001.

M15 2001 asp 14.

M16 The VAT and duties tribunals for Scotland are constituted in accordance with the Value Added Tax Act 1994 (c. 23), Schedule 12, paragraph 1.

M17 1994 c. 23.

M18 1994 c. 9.

Application of Part II of the Act to assistance by way of representation: proceedings under the Criminal Procedure (Scotland) Act 1995 S

4.—(1) Any reference in this regulation to a numbered section, paragraph or Schedule is to a section, paragraph or Schedule bearing that number in the 1995 Act.

(2) Part II of the Act shall apply to assistance by way of representation in relation to proceedings–

[F11 (a) under section 229A or 232 in relation to a probation progress review, or, as the case may be, failure to comply with the requirements of a probation order;]

(b) under section 233 M19 in relation to the conviction of a probationer by a court in Great Britain of an offence committed during his or her probation period;

(c) under section 239(4) to (6) in relation to failure to comply with the requirements of a community service order;

(d) under section 240(1) and (3) in relation to amendment or revocation of a community service order;

(e) under paragraph 4 of Schedule 7 in relation to failure to comply with the requirements of a supervised attendance order;

(f) under paragraph 5(1) and (3) of Schedule 7 in relation to amendment or revocation of a supervised attendance order;

(g) under section 234A(6) M20 in relation to revocation or variation of a non-harassment order;

(h) under section 234E, 234F or 234G M21 in relation to the variation or revocation of a drug treatment and testing order, the review of a drug treatment and testing order, or, as the case may be, the failure to comply with any requirement of a drug treatment and testing order; and

(i) under section 245E or 245F M22 in relation to the variation or revocation of a restriction of liberty order, or, as the case may be, the failure to comply with any of the requirements of a restriction of liberty order;

[F12 (j) under section 90B, 90C, 90D or 90E in relation to orders made in respect of witnesses apprehended under section 90A, breach of bail, the review of orders made, or, as the case may be, appeals in respect of orders made.]

(3) Sub-paragraphs (a), (b), (c), (d), (e), (f), (h) and (i) of paragraph (2) of this regulation shall not apply to proceedings before a court which has been designated as a drug court by the sheriff principal.

Textual Amendments

F11 Reg. 4(2)(a) substituted (12.6.2006) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2006 (S.S.I. 2006/345), regs. 1, 3

F12 Reg. 4(2)(j) inserted (1.4.2005) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2005 (S.S.I. 2005/165), regs. 2, 6

Marginal Citations

M19 Section 233 was amended by the Crime and Punishment (Scotland) Act 1997 (c. 48), section 26 and Schedule 1, paragraph 1.

M20 Section 234A was inserted by the Protection from Harassment Act 1997 (c. 40), section 11.

M21 Sections 234E to 234G were inserted by the Crime and Disorder Act 1998 (c. 37), sections 92 and 93.

M22 Sections 245E and 245F were inserted by the Crime and Punishment (Scotland) Act 1997 (c. 48), section 5.

Application of Part II of the Act to assistance by way of representation: proceedings under the Proceeds of Crime (Scotland) Act 1995 and the Proceeds of Crime Act 2002 S

5.—(1) Any reference in paragraph (2)(a) to (h) to a numbered section is to a section bearing that number in the Proceeds of Crime (Scotland) Act 1995 M23 .

(2) Part II of the Act shall apply to assistance by way of representation in relation to–

(a) applications under section 5(3) M24 in relation to an application for property not to be treated as a gift;

(b) appeals under section 5(4) in relation to an appeal against a refusal of an application under section 5(3);

(c) applications under section 6(3) in relation to an application for property not to be treated as an implicative gift;

(d) appeals under section 6(4) in relation to an appeal against a refusal of an application under section 6(3);

(e) applications, by someone other than the accused, under section 18(7) in relation to a discharge or variation of an order under section 18(2);

(f) applications under section 25 M25 in relation to a recall or variation of a suspended forfeiture order or section 26 in relation to property wrongly forfeited: return or compensation;

(g) appeals under section 27 in relation to an appeal against a court decision under section 25(1) or 26(1);

(h) applications under section 45(2)(b) in relation to the disposal of a family home where representations are made to the court by someone other than the accused; and

(i) representations made to the court under section 92 of the Proceeds of Crime Act 2002 M26 by any person, other than the accused, who is likely to be affected by a confiscation order.

Marginal Citations

M23 1995 c. 43.

M24 Sections 5, 6 and 18 were modified by S.I. 1999/673.

M25 Sections 25, 26, 27 and 45 were modified by S.I. 1999/675.

M26 2002 c. 29.

Summary criminal proceedings S

6.—(1) The assistance by way of representation which may be provided under Part II of the Act in relation to summary criminal proceedings shall be representation of an accused person who is not in custody–

(a) at any diet (other than a diet which has been preceded by a plea of not guilty) at which a plea to the competency or relevancy of the complaint or proceedings, or a plea in bar of trial, is tendered on the accused person’s behalf, and thereafter until that plea has been determined by the court and any related appeal to the High Court of Justiciary under section 174(1) of the 1995 Act has been disposed of or withdrawn;

(b) at any diet (other than a diet which has been preceded by a plea of not guilty) at which a question within the meaning of rule 31.1(1) of the Act of Adjournal (Criminal Procedure Rules) 1996 M27 is raised and thereafter until that question has been determined by the court;

[F13 (ba) at any diet to which the case has been adjourned under section 145 of the 1995 Act;]

(c) at any diet at which there is tendered, on behalf of an accused who has not previously tendered a plea of not guilty, a plea of guilty to the charges against the accused, or a plea of guilty to part thereof, which partial plea is accepted by the prosecutor, and thereafter until the case has been finally disposed of;

(d) at any diet at which the court is considering the accused’s plea of guilty to the charges and where there has been no change of plea, and thereafter until final disposal of the case;

(e) at any diet at which the court is considering the accused’s changed plea of guilty to the charges, provided that no application for criminal legal aid has been made, and thereafter until final disposal of the case; and

(f) at any diet where the judge orders a proof in mitigation, and thereafter until final disposal of the case.

[F14 (2) The assistance by way of representation which may be provided under Part II of the Act in relation to summary criminal proceedings in a sheriff court which has been designated by the sheriff principal–

(a) as a youth court; [F15 or]

(b) as a domestic abuse court; F16 ...

F16 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

shall include representation of an accused person following a finding of guilt but only where criminal legal aid has not been granted to that person in terms of section 24 of the Act.]

Textual Amendments

F13 Reg. 6(1)(ba) inserted (30.6.2008) by The Advice and Assistance (Limits, Conditions and Representation) (Scotland) Regulations 2008 (S.S.I. 2008/251), regs. 1, 4(2)(a)

F14 Reg. 6(2) substituted (12.6.2006) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2006 (S.S.I. 2006/345), regs. 1, 4

F15 Word in reg. 6(2) inserted (30.6.2008) by The Advice and Assistance (Limits, Conditions and Representation) (Scotland) Regulations 2008 (S.S.I. 2008/251), regs. 1, 4(2)(b)(i)

F16 Reg. 6(2)(c) and word omitted (30.6.2008) by virtue of The Advice and Assistance (Limits, Conditions and Representation) (Scotland) Regulations 2008 (S.S.I. 2008/251), regs. 1, 4(2)(b)(ii)

Marginal Citations

M27 S.I. 1996/513; rule 31.1 was amended by S.I. 1999/1282.

[F17 6A.— (1) The assistance by way of representation which may be provided under Part II of the Act in relation to summary criminal proceedings in [F18 any court] shall include the attending upon, advising and acting for any person who appears from custody on the day when that person is first brought to a court to answer to any complaint and thereafter–

(i) until the conclusion of the first diet at which he is called upon to plead and in connection with any application for liberation following upon that diet; and

(ii) where he has tendered a plea of guilty at that diet, until his case is finally disposed of.

[F19 (1A) Except where paragraph (1D) below applies, an appointed solicitor is the only person who–

(a) may provide the assistance by way of representation described in paragraph (1) above;

(b) is entitled to any fees attributable to the provision of that representation.

(1B) However, the provision of that representation by an appointed solicitor may be effected, from the appearance from custody onwards, through the services of another solicitor (except the duty solicitor) where–

(a) the other solicitor is expressly authorised by the appointed solicitor; and

(b) the services of the other solicitor are required in circumstances where the appointed solicitor cannot reasonably attend because of–

(i) illness or incapacity;

(ii) the arising (since 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.

(1C) Paragraph (1D) below applies where an appointed solicitor is not available to act immediately (whether in person or through the services of another solicitor under paragraph (1B) above) for the purpose of providing the assistance by way of representation described in paragraph (1) above.

(1D) Where this paragraph applies, the duty solicitor is the only person who may provide the representation under the Act in relation to the appearance from custody (and, accordingly, no other person is entitled to any fees attributable to the provision of that representation).

(1E) In this regulation, an “appointed solicitor” is a solicitor–

(a) with whom the person appearing in answer to the complaint has (or has had) a solicitor and client relationship that is demonstrable by reference to circumstances apart from those relating solely to the appearance; and

(b) who is instructed directly by that person for the purposes of that person’s representation.]

(2) The references to “attending upon, advising and acting” in paragraph (1) above shall include the services of the solicitor at any preliminary plea to the competency or relevancy of the complaint and at any plea in bar of trial or any mental health proof.]

Textual Amendments

F17 Regs. 6A, 6B inserted (12.6.2006) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2006 (S.S.I. 2006/345), regs. 1, 5

F18 Words in reg. 6A(1) substituted (30.6.2008) by The Advice and Assistance (Limits, Conditions and Representation) (Scotland) Regulations 2008 (S.S.I. 2008/251), regs. 1, 4(3)(a)

F19 Reg. 6A(1A)-(1E) inserted (30.6.2008) by The Advice and Assistance (Limits, Conditions and Representation) (Scotland) Regulations 2008 (S.S.I. 2008/251), regs. 1, 4(3)(b)

F20 6B.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F20 Reg. 6B omitted (30.6.2008) by virtue of The Advice and Assistance (Limits, Conditions and Representation) (Scotland) Regulations 2008 (S.S.I. 2008/251), regs. 1, 4(4)

[F21 7.— (2A) The assistance by way of representation described in regulation 6(1) above is to be provided under Part II of the Act only if the solicitor to whom the application has been made is satisfied that it is in the interests of justice for the assistance to be provided.

(2B) The factors to be taken into account in determining whether it is in the interests of justice for the assistance to be provided include those listed in section 24(3)(a) to (c) of the Act.]

[F22 (3) [F23 This regulation] shall not apply in relation to summary criminal proceedings in a sheriff court which has been designated as a youth court, or as a domestic abuse court, by the sheriff principal.]

Textual Amendments

F21 Reg. 7(2A)(2B) substituted for reg. 7(1)(2) (30.6.2008) by The Advice and Assistance (Limits, Conditions and Representation) (Scotland) Regulations 2008 (S.S.I. 2008/251), regs. 1, 4(5)(a)

F22 Reg. 7(3) substituted (28.6.2004) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2004 (S.S.I. 2004/307), regs. 1, 4

F23 Words in reg. 7(3) substituted (30.6.2008) by The Advice and Assistance (Limits, Conditions and Representation) (Scotland) Regulations 2008 (S.S.I. 2008/251), regs. 1, 4(5)(b)

Petitions for the appointment of an executor S

8.  The assistance by way of representation which may be provided under Part II of the Act in relation to petitions for the appointment of an executor shall be for representation of the petitoner in all stages of an unopposed petition until the petitioner be decerned executor and extract decree dative obtained.

Prescribed proceedings S

9.  In relation to the following, assistance by way of representation shall be available without reference to the financial limits under section 8 of the Act (availability of advice and assistance), and section 11(2) of the Act (client’s contributions) shall not apply as respects assistance by way of representation:–

(a) proceedings under section 17 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

[F24 (b) proceedings before the Mental Health Tribunal for Scotland;]

(c) proceedings in connection with an application for a warrant of further detention, or for an extension of such a warrant, made to the sheriff under paragraph 29 or 36 of Schedule 8 to the Terrorism Act 2000;

(d) proceedings before a hearing established under–

(i) paragraph 12 or paragraph 59 of the schedule to the Convention Rights (Compliance) (Scotland) Act 2001; or

(ii) section 10(2F) of the Prisoners and Criminal Proceedings (Scotland) Act 1993; and

(e) proceedings under section 5 of the Protection from Abuse (Scotland) Act 2001;

[F25 (f) proceedings under sections 90B to 90E of the Criminal Procedure (Scotland) Act 1995];

F26 (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F24 Reg. 9(b) substituted (5.10.2005) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2005 (S.S.I. 2005/482), regs. 1, 6 (with reg. 2)

F25 Reg. 9(f) inserted (1.4.2005) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2005 (S.S.I. 2005/165), regs. 2, 7

F26 Reg. 9(g) omitted (30.6.2008) by virtue of The Advice and Assistance (Limits, Conditions and Representation) (Scotland) Regulations 2008 (S.S.I. 2008/251), regs. 1, 4(6)

Disciplinary proceedings S

10.  The assistance by way of representation which may be provided under Part II of the Act in relation to disciplinary proceedings shall be for representation of the prisoner at all stages of the proceedings before the governor.

Parole Board cases S

11.  The assistance by way of representation which may be provided under Part II of the Act in relation to a Parole Board case shall be for representation of the prisoner at all stages of the proceedings before a tribunal relating to that case.

Civil proceedings where there is a risk of imprisonment S

12.  The assistance by way of representation described in regulation 3(j) shall be provided under Part II of the Act only where the solicitor to whom application has been made is satisfied that–

(a) it is reasonable in the particular circumstances of the case that assistance by way of representation be made available; and

(b) it is likely that the court will deprive the applicant of his or her liberty.

Assistance by way of representation requiring approval of the Board S

13.—(1) The approval of the Board shall be required as a pre-condition of the provision of assistance by way of representation in relation to the proceedings described in regulations 3(h), (k), (m) and (q) and 5 above.

(2) The Board shall only approve the provision of assistance by way of representation in relation to the proceedings described in regulation 3(m) where it is satisfied that–

(a) the case is arguable;

(b) it is reasonable in the particular circumstances of the case that assistance by way of representation be made available; and

(c) the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person.

(3) The factors to be taken into account by the Board in determining whether paragraph (2)(c) above applies shall include–

(a) the determination of the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficult nature;

(b) the applicant may be unable to understand the proceedings or to state the applicant’s own case because of age, inadequate knowledge of English, mental illness, other mental or physical disability, or otherwise.

(4) The Board shall only approve the provision of assistance by way of representation in relation to the proceedings described in [F27 regulations 3(q) and (s)] where it is satisfied that in all the circumstances of the case it is–

(a) in the interests of justice; and

(b) reasonable,

that assistance by way of representation be made available.

(5) The factors to be taken into account by the Board in determining whether it is in the interests of justice for the purposes of paragraph (4)(a) that assistance by way of representation be made available shall include the factors set out at paragraph (3)(a) and (b).

Textual Amendments

F27 Words in reg. 13(4) substituted (22.12.2006) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2006 (S.S.I. 2006/615), regs. 1, 5

JAMES WALLACE

A member of the Scottish Executive

St Andrew’s House, Edinburgh