Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003
| Year | 2003 |
2003 No. 179
LEGAL AID AND ADVICE
The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003
Made 7th March 2003
Coming into force 24th March 2003
The Scottish Ministers, in exercise of the powers conferred by sections 9 and 37(1) of the Legal Aid (Scotland) Act 19861, and of all other powers enabling them in that behalf, hereby make the following Regulations, a draft of which has, in accordance with section 37(2) of that Act, been laid before and approved by resolution of the Scottish Parliament:
Citation, commencement and interpretation
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;
“adjudicator” means an adjudicator appointed by virtue of Schedule 3 to the 1999 Act2and includes–
(a) an adjudicator who acts as a special adjudicator for the purposes of section 8 of the Asylum and Immigration Appeals Act 19933; and
(b) an adjudicator who acts as a special adjudicator for the purposes of section 3 of the Asylum and Immigration Act 19964;
“the 1995 Act” means the Criminal Procedure (Scotland) Act 19955;
“the 1999 Act” means the Immigration and Asylum Act 19996;
“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 19937;
“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 19948in 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 19969;
“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 198910as 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.
“Immigration Appeal Tribunal” means the Tribunal continued in force by virtue of section 56(1) of the 1999 Act;
“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 1993 applies;
“prison” has the same meaning as in section 43(1) of the Prisons (Scotland) Act 198911and 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 1993;
“tribunal” in relation to a Parole Board case, means a tribunal formed under Rule 18 of the Parole Board (Scotland) Rules 1993, 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.
Revocation
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
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) 196412;
(c) proceedings under section 17 of the Matrimonial Homes (Family Protection) (Scotland) Act 198113;
(d) proceedings under Part V of the Mental Health (Scotland) Act 198414;
(e) petitions by a debtor for the sequestration of that debtor’s estate under section 5(2)(a) of the Bankruptcy (Scotland) Act 198515;
(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 198816for the removal of a disqualification;
(i) proceedings under section 66(6) of the Criminal Justice and Public Order Act 199417for 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 199518;
(l) proceedings before an adjudicator or the Immigration Appeal Tribunal;
(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 200019;
(o) proceedings before a hearing established under–
(i) paragraph 12 or paragraph 59 of the schedule to the Convention Rights (Compliance) (Scotland) Act 200120; or
(ii) section 10(2F) of the Prisoners and Criminal Proceedings (Scotland) Act 199321;
(p) proceedings under section 5 of the Protection from Abuse (Scotland) Act 200122; and
(q) proceedings before the VAT and Duties tribunals for Scotland23which consist of an appeal against a penalty imposed under–
(i) section 60 of the Value Added Tax Act 199424; or
(ii) section 8 of the Finance Act 199425.
Application of Part II of the Act to assistance by way of representation: proceedings under the Criminal Procedure (Scotland) Act 1995
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–
(a)
(a) under section 23226in relation to failure to comply with the requirements of a probation order;
(b)
(b) under section 23327in relation to the conviction of a probationer by a court in Great Britain of an offence committed during his or her probation period;
(c)
(c) under section 239(4) to (6) in relation to failure to comply with the requirements of a community service order;
(d)
(d) under section 240(1) and (3) in relation to amendment or revocation of a community service order;
(e)
(e) under paragraph 4 of Schedule 7 in relation to failure to comply with the requirements of a supervised attendance order;
(f)
(f) under paragraph 5(1) and (3) of Schedule 7 in relation to amendment or revocation of a supervised attendance order;
(g)
(g) under section 234A(6)28in relation to revocation or variation of a non-harassment order;
(h)
(h) under section 234E, 234F or 234G29in 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)
(i) under section 245E or 245F30in 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.
(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.
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
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 199531.
(2) Part II of the Act shall apply to assistance by way of representation in relation to–
(a)
(a) applications under section 5(3)32in relation to an application for property not to be treated as a gift;
(b)
(b) appeals under section 5(4) in relation to an appeal against a refusal of an application under section 5(3);
(c)
(c) applications under section 6(3) in relation to an application for property not to be treated as an implicative gift;
(d)
(d) appeals under section 6(4) in relation to an appeal against a refusal of an application under section 6(3);
(e)
(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)
(f) applications under section 2533in relation to a recall or variation of a suspended...
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