§ 7.32 p.m.
§ The Lord Advocate (Lord Cameron of Lochbroom) rose to move, That the draft regulations laid before the House on 5th March be approved. [14th Report from the Joint Committee.]
§ The noble and learned Lord said: I beg to move. Section 21(3) of the Legal Aid (Scotland) Act 1986 provides that, subject to certain exceptions, 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. One of the exceptions is the automatic availability of legal aid for persons in custody up to the pleading diet.
§ During the passage of the Act it was made clear that provision would be made by regulation for assistance by way of representation, which I think was commonly called ABWOR, to be made available by solicitors to accused persons not in custody where the accused opted to plead guilty or to submit a plea as to the competency or relevancy of the charge, and that if certain criteria were satisfied. It was indicated that these criteria would be related to certain factors to be taken into account by the Scottish Legal Aid Board in determining whether criminal legal aid should be made available in the interests of justice in so far as they were relevant to a guilty plea.527
§ The regulations before the House make provision accordingly. Regulation 4(a) and (b) set out the circumstances in which ABWOR may be available for pleas as to competency and relevancy and the like which are comparatively rare, and for even rarer references to the European Court. Regulation 4(c) covers the much commoner case where the accused, who has not previously pleaded not guilty, tenders a plea of guilty and provides that ABWOR continues until the case has been finally disposed of.
§ Regulation 5 sets out the criteria for determining whether ABWOR should be provided. The criteria for pleas as to competency, relevancy and the like are related to the seriousness of the offence, the merits of the plea and the reasonableness of making ABWOR available for a particular case. The criteria for guilty pleas are related to factors (a) and (c) of Section 24(3) of the Act; namely, the seriousness of the offence and the capacity of the accused to follow the proceedings or to make his own plea in mitigation.
§ As noble Lords will notice, the decision as to whether the criteria are met will rest with the solicitor. This is one of the features which we and the board will be monitoring in considering the effectiveness of the arrangements.
§ ABWOR in criminal cases is an important feature of the new arrangements, which come into operation on 1st April; that is to say, tomorrow. I commend the regulations to your Lordships.
§ Moved, That the draft regulations laid before the House on 5th March be approved. [14th Report from the Joint Committee]—(Lord Cameron of Lochbroom.)
§ Lord Morton of Shuna
My Lords, we are very grateful to the noble and learned Lord for his explanation of these regulations. I have a personal and fairly strong dislike of the word "ABWOR", which is to be avoided if at all possible. The criteria seem to me also to be rather difficult and, to be more serious, the solicitor has a duty to provide these services only if he is satisfied that the offence is one that:if proved it is likely that the court will".That appears to me to raise the difficult question that one first must decide which sheriff will hear the case and what that sheriff's attitude to that type of offence is likely to be. It is very difficult to see how that can work in practice. I should have thought that perhaps "liable" would be a better word than "likely", but otherwise the regulations are helpful and necessary.
§ Lord Cameron of Lochbroom
My Lords, I take note of what the noble Lord says about my use of a diminutive, ABWOR. I would certainly not have done so save that I wished to save the House time when explaining the regulations. I note what the noble Lord says about the solicitor's duty and that is one of the matters that we shall be monitoring.
§ On Question, Motion agreed to.