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Legal Aid...
In Scotland the state may provide financial aid towards legal costs in the form of Legal Aid. The legal aid system is administered by the Scottish Legal Aid Board.
The criteria for obtaining legal aid is, for the most part, based on strict financial limits. Some people who qualify for legal aid may have to pay a financial contribution towards a proportion of the legal costs. This is common in civil cases such as divorce. The amount of the contribution depends on the level of their income.
A person who receives legal aid in a civil case will not normally pay legal expenses if that person loses a Court case although such an outcome cannot be guaranteed in any case. Nevertheless, in some circumstances the legally aided person may have to pay the other side’s legal expenses up to the limit of their financial contribution. It is important to be aware that if a legally aided person is successful in a civil court action for recovery of property, money or damages, it is necessary to make payment first and foremost to the Legal Aid Board who will decide how much of the money recovered is to be set off against the total legal expenses incurred. The Board will then normally pay the balance left over to the legally aided person.
There are three forms of legal aid available in Scotland, namely:-
1. Legal Advice and Assistance
Legal Advice and Assistance for general legal advice in both civil and criminal matters.
The Legal Advice and Assistance Scheme is available to those people who have a limited income. The scheme covers advice from a Solicitor or an Advocate on any matter of Scots law, both civil and criminal. For example, the scheme can cover advice relating to divorce, separation, children, contractual disputes, leases, personal injury, debt, Wills, etc. The assisted person may have to pay a contribution out of their own income.
2. Legal Aid for civil proceedings.
Subject to the fulfilment of certain conditions, legal aid may be available in civil cases where a dispute or claim can only be settled by way of a court action. Legal aid may be available for both pursuing and defending court actions.
The legal aid cover would normally extend to civil proceedings in the Sheriff Court, Court of Session, House of Lords, Lands Valuation Appeal Court, Lands Tribunal for Scotland and Scottish Land Court.
This type of legal aid would cover most types of civil action with the exception of defamation actions, actions for verbal injury, simplified divorce actions and small claim actions.
Anyone applying for civil legal aid must fulfil the following conditions:-
- Statements and documentation must be produced to the Legal Aid Board to show that you have reasonable grounds for commencing court proceedings or for defending or being party to any such proceedings. Normally, the Board insist on statements from other persons as well as the applicant to ascertain how much evidence is available to support the applicant’s case.
- The applicant must not have the benefit of any insurance company, trade union or the like who is in a position to provide financial support in the case.
- The civil legal aid regulations set down financial limits from time to time and the income of the person applying for legal aid must not exceed these limits.
- The Legal Aid Board must be satisfied that it would be reasonable in the circumstances to grant legal aid. For example someone may apply for legal aid to commence a court action in one of the higher courts but the Board may decide only to grant legal aid to allow the action to commence in a lower court.
3. Criminal Legal Aid.
The Legal Aid Scheme provides different forms of criminal legal aid, namely:-
- In relation to prosecutions brought in the District Court, Sheriff Court, High Court of Justiciary and in appeals from all criminal courts.
- In relation to cases in which a prosecution is brought by way of a Complaint (known as summary cases). Normally an application is necessary by the applicant to the Legal Aid Board where a not guilty plea is tendered. If a guilty plea is tendered in such cases legal aid is normally available under the Legal Advice and Assistance Scheme described above.
- In relation to referrals or appeals from a Children’s Hearing. Legal aid is not available for representation at a Children’s Hearing – only for referrals or appeals to the Sheriff Court or a higher court.
- In relation to cases in which prosecutions are brought by way of an Indictment (known as solemn proceedings) the criminal legal aid application is determined by the court in such cases.
Miscellaneous Matters
- Duty Solicitor
An accused person who is in custody in a Police Station usually has the right to free legal advice from the Duty Solicitor. This covers advice up to and including the first court appearance.
A Duty Solicitor is also available for those persons who have given to the Police an undertaking that they will appear at court at a given date and time. This applies at all District and Sheriff Courts. The Duty Solicitor is also available to represent people who are required to appear in an identification parade.
In summary cases in which an accused person first appears from custody that person is entitled to the services of a Duty Solicitor at his first court appearance in order to obtain the benefit of legal aid. The accused person can then select another Solicitor after the first court appearance. In solemn cases, the accused has a choice between the Duty Solicitor and any other Solicitor of his or her choice. - Assistance by Way of Representation
The Legal Advice and Assistance Scheme provides Assistance By Way Of Representation (ABWOR) allowing the Solicitor to represent someone who is not in custody but intends to plead guilty or has changed his plea to guilty.
Legal aid under the Legal Advice and Assistance Scheme may be available to an accused person who consults a Solicitor prior to pleading not guilty at the first court appearance. An application for criminal legal aid can only be made after a not guilty plea has been tendered to the court. Legal Advice and Assistance may cover any legal advice given by a Solicitor before the not guilty plea is given to the court (depending on the person’s means).
If a person wishes to appeal against a conviction or sentence imposed in a criminal court, legal aid may be available under the Legal Advice and Assistance Scheme to obtain advice on the merit of lodging such an appeal. An application for criminal legal aid may be granted if the applicant has insufficient means available to him and there are good grounds for the appeal.
We have extensive experience of dealing with legal aid cases in both civil and criminal matters and we may be able to obtain emergency legal aid cover in civil cases of extreme urgency such as child abduction, interdicts in relation to violence at home or elsewhere, etc. Please contact us for further details.
The above information not a full or exhaustive statement of the legal aid regulations. The regulations are amended from time to time and therefore the above information should not be relied upon as an up to date statement of the relevant regulations. Reference is made to the terms of the Disclaimer within this site. For full advice on all legal aid matters you should contact the Scottish Legal Aid Board, 44 Drumsheugh Gardens, Edinburgh, EH3 7SW (telephone 0131 2267061). Alternatively you should consult the Legal Aid Board’s website, namely, www.slab.org.uk.
