Sexual Offences (Procedure and Evidence) (Scotland) Act 2002

2 Appointment of solicitor by court in such cases and availability of legal aid

(1) After section 288C of the 1995 Act (as inserted by section 1 above) there is inserted—

“288D Appointment of solicitor by court in such cases

(1) This section applies in the case of proceedings in respect of a sexual offence to which section 288C above applies.

(2) Where the court ascertains that—

(a) the accused has not engaged a solicitor for the purposes of his defence at the trial; or

(b) having engaged a solicitor for those purposes, the accused has dismissed him; or

(c) the accused’s solicitor has withdrawn,

then, where the court is not satisfied that the accused intends to engage a solicitor or, as the case may be, another solicitor for those purposes, it shall, at its own hand, appoint a solicitor for those purposes.

(3) A solicitor so appointed is not susceptible to dismissal by the accused or obliged to comply with any instruction by the accused to dismiss counsel.

(4) Subject to subsection (3) above, it is the duty of a solicitor so appointed—

(a) to ascertain and act upon the instructions of the accused; and

(b) where the accused gives no instructions or inadequate or perverse instructions, to act in the best interests of the accused.

(5) In all other respects, a solicitor so appointed has, and may be made subject to, the same obligations and has, and may be given, the same authority as if engaged by the accused; and any employment of and instructions given to counsel by the solicitor shall proceed and be treated accordingly.

(6) Where the court is satisfied that a solicitor so appointed is no longer able to act upon the instructions, or in the best interests, of the accused, the court may relieve that solicitor of his appointment and appoint another solicitor for the purposes of the accused’s defence at the trial.

(7) The references in subsections (3) to (6) above to “a solicitor so appointed” include references to a solicitor appointed under subsection (6) above.

(8) In this section “counsel” includes a solicitor who has right of audience in the High Court of Justiciary under section 25A (rights of audience in various courts including the High Court of Justiciary) of the Solicitors (Scotland) Act 1980 (c. 46).”.

(2) In section 22 (automatic availability of criminal legal aid) of the Legal Aid (Scotland) Act 1986 (c. 47), in subsection (1), after paragraph (dc) there is inserted—

“(dd) where a solicitor has been appointed under section 288D of the Criminal Procedure (Scotland) Act 1995 (c. 46) (appointment by court of solicitor for person accused of sexual offence and thereby prohibited from conducting defence in person) to act on his instructions or in his interests;”.

(3) In section 31 of that Act of 1986, in subsection (1A) (exceptions to provision entitling person receiving legal aid or advice and assistance to select a solicitor and counsel)—

(a) the word “and” immediately preceding paragraph (e) is repealed; and

(b) after that paragraph there is inserted “; and

(f) section 288D of the Criminal Procedure (Scotland) Act 1995 (c. 46)”.