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

Explanatory Note

(This note is not part of the Regulations)

These Regulations make provision requiring the Scottish Legal Aid Board (“the Board”) to make arrangements for solicitors to be available to provide advice and assistance and criminal legal aid to people in certain circumstances.

Regulation 3 requires the Board to make arrangements for a solicitor to be available to provide advice and assistance to anyone to whom section 15A of the Criminal Procedure (Scotland) Act 1995 applies. That section applies to any person suspected of committing an offence who (i) attends a police station or other place on a voluntary basis for questioning, (ii) any person detained within the meaning of section 14 of the Criminal Procedure (Scotland) Act 1995 and (iii) any person arrested but not charged who is being detained for the purposes of questioning. Advice and assistance can be provided to a person in any of those circumstances only by a solicitor made available by the Board.

Regulation 4 requires the Board to make arrangements for a solicitor to be available to provide criminal legal aid at any identification parade to which section 21(4)(b) of the Legal Aid (Scotland) Act 1986 applies. The regulation does not apply where regulation 5 requires the Board to arrange for a solicitor to be available to the person.

Regulation 5 requires the Board to make arrangements for a solicitor to be available to anyone taken into custody in connection with a charge of murder, attempted murder or culpable homicide until the person is either released on bail or committed until liberated in due course of law.

Regulation 6 requires the Board to make arrangements for a solicitor to be available to anyone who is in custody and being prosecuted under solemn procedure (other than in relation to one of the charges covered by regulation 5), from the first day the person is brought before a sheriff for examination until the person is admitted to bail or liberated in due course of law.

Regulation 7 requires the Board to make arrangements for a solicitor to be available, in certain circumstances, to provide criminal legal aid to anyone who is being prosecuted under summary procedure. Assistance by way of representation may be provided in similar circumstances to a person in custody by virtue of regulation 6A(1) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003. Specifically, assistance by way of representation can be provided to anyone who appears from custody to answer to a complaint for the first time. It may be provided from that day until the conclusion of the case's first calling (including any adjournment or subsequent application for liberation) if the person pleads not guilty or, if the person pleads guilty, until the conclusion of the case. Where a person is eligible to be given assistance by way of representation under the said regulation 6A(1), and the person has an appointed solicitor who is immediately available to provide that assistance by way of representation, regulation 7 of these Regulations does not require the Board to make a solicitor available. Regulation 7(3) and (4) of these Regulations specifies who may be an appointed solicitor. In any other case, only the solicitor made available by the Board under regulation 7(1) of these Regulations is entitled to be paid from the Scottish Legal Aid Fund for representing the person in the circumstances where regulation 7(1) applies, meaning no other solicitor can provide assistance by way of representation or criminal legal aid.

Regulations 4 to 7 of these Regulations re-enact the Board's duty under regulation 5 of the Criminal Legal Aid (Scotland) Regulations 1996 to make arrangements for a solicitor to be available in the circumstances mentioned. Accordingly, regulation 5 of the Criminal Legal Aid (Scotland) Regulations 1996 is revoked by regulation 8 of these Regulations.