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Criminal Defence Service (Advice and Assistance) Act 2001

The duty solicitor scheme

17.A duty solicitor under the old legal aid scheme (under arrangements made by the local duty solicitor committee) would attend a magistrates’ court to give advice and assistance to accused individuals, including assistance by way of representation, such as-

  • making a bail application;

  • representing a defendant in court proceedings who entered a guilty plea and wished the case to be concluded on that day;

  • representing an accused person who was at court and at risk of being imprisoned for failure to pay a fine or obey a court order.

18.It was arguable that section 13 as originally enacted did not allow the Commission to fund limited representation in the form of advocacy in the types of situation listed in paragraph 16. The concern was that a person involved in a hearing before a court or other body might not be involved in a criminal investigation while the hearing takes place (even though he has been and may later again become so involved). The fact that “assistance” was not defined in the Access to Justice Act 1999 to include advocacy arguably compounded the uncertainty, particularly as it was so defined in the legal aid provisions.

19.Further, representation, granted in accordance with section 14 of and Schedule 3 to the Access to Justice Act 1999, would not have been (without the amendment made by the Act) available to individuals in the types of situations currently covered by the ABWOR scheme. Representation would not have been available where an individual needed it urgently - for example where an individual is charged with an offence, he or she will often appear in court within 48 hours. Such an individual may not have time to apply for (and there may not be time for the court to consider) the grant of representation under section 14. It is also recognised that an individual may not be entitled to representation under section 14 because he fails to satisfy the interests of justice criteria, but that it is still appropriate that he receives some limited assistance in prescribed circumstances.

20.The Act amends section 13 to put beyond doubt that limited advocacy assistance can be funded.

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