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Defendants (criminal proceedings)


Getting independent legal advice is very important when you are involved in some way with the criminal process. The factsheets tell you when and in what circumstances you are entitled to be represented by a lawyer. They also tell you what a lawyer will do for you. This general factsheet tells you how to find a lawyer and how the costs of the lawyer will be met if you cannot afford to pay.

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When you are arrested, the police will tell you of your right to contact a lawyer. Your rights to legal advice and legal aid depend on whether you have been kept in police custody after your arrest.

Your rights if you are held in police custody

At a police station, a suspect who is arrested or attending voluntarily has a statutory right to a private consultation with a solicitor before questioning begins and at any other time during questioning.

The telephone Solicitor Contact Line is operated by Scottish Legal Aid Board (SLAB) employed solicitors and shall be the initial point of contact by the police. This service operates 24 hours a day, 7 days a week. If you request a named solicitor, SLAB will contact that solicitor/firm so they can assist you. A named solicitor shall always be contacted first by SLAB, even when they are not a duty solicitor in the police station duty scheme. In the event that a named solicitor is unavailable, contact will be made with the duty solicitor on your behalf.

All grants of Advice and Assistance made by solicitors for police interviews are available for free.

In some situations (e.g. if you are held in custody, or if you have been released on an undertaking to appear in court at a later date), you have the right to use the services of a duty solicitor. There are a number of duty solicitor schemes across Scotland with solicitors employed by Public Defence Solicitor Office also providing assistance. Duty solicitors can represent you at your first appearance in court and, depending on the circumstances, for the duration of your case. You do not have to pay for using the duty solicitor. If you are not held in custody and are cited to appear in court, you cannot use the duty solicitor and you will have to instruct your own solicitor for your case.

Criminal legal aid is only available in summary prosecutions after you plead not guilty. If you qualify for criminal legal aid it is free and you will not have to pay a contribution. Your solicitor will submit an application for legal aid to the Scottish Legal Aid Board, who will decide if your case requires the help of a lawyer. Another form of criminal legal assistance may be available to you in a summary prosecution where you plead guilty.

If you are an accused in a solemn case, you are automatically entitled to legal aid while you are in custody until a decision is made about whether to grant you legal aid or you are released from custody on bail. SLAB has to consider only whether paying your own legal costs would cause hardship to you or your dependents.

The criminal legal aid granted will cover all of the remaining stages of your case, but you will have to make a new application for an appeal. If you are eligible for criminal legal aid, you will not have to pay a contribution towards the cost.

Your rights if you are not held in police custody

If you are not held in police custody you should contact a lawyer as soon as possible. If you do not know a lawyer based in Scotland you should refer to the 'Find a Solicitor' section on SLAB's website or contact The Law Society of Scotland or Citizens Advice Scotland who will find one for you.

In some cases you will be released on investigative liberation, which means you can be released from police custody with certain conditions attached. These conditions must be necessary and proportionate and can include a condition that you do not interfere with a witness or evidence. The police may also require you to not be in a specified place at a specified time.

The conditions cease to apply 28 days after the conditions were first imposed, or before then if you are arrested for a relevant offence, or if you become officially accused, or the conditions are removed by a Sheriff.

On your release from custody you do not have to accept the conditions but you must request the conditions are removed through your solicitor. Your solicitor will apply to the Scottish Legal Aid Board for a grant of Assistance by Way of Representation (ABWOR) on your behalf. Criminal ABWOR is available if you qualify under statutory tests including financial eligibility. Your solicitor can also apply for this type of assistance to challenge bail conditions or post charge questioning.

In the majority of cases your right to legal advice and legal aid are the same when someone is held in custody. However, the duty solicitor can help you only when your first court appearance follows on from you giving an earlier undertaking to the police to appear in court. The situation is different if the first time you appear in court is after you receive a formal document (a citation) from the prosecutor. In this case your own lawyer can give you assistance but you may have to pay some of the costs.

If you plead not guilty your rights are the same as in cases where someone was held in custody. If you are given legal aid, this will cover all of the remaining stages of your case, but you will have to make a new application for an appeal.

I am not happy with my lawyer. Can I complain?

If you are not satisfied with a solicitor or a solicitors' firm, you need to raise your concerns with the firm in the first instance. Solicitors' firms have a client relations manager who will listen to your problem and try to resolve it. This is usually the quickest and most effective way of sorting out the problem.

You can contact the firm and ask for the name of the client relations manager or contact the Law Society's Public Communications team on 0131 226 7411 for that information.

The client relations manager has an important role in clarifying and explaining any possible misunderstandings and working to resolve your problem. It may be that a different client relations manager could step in if the problem relates to the client relations manager.

If the problem is not resolved with the client relations manager, you may submit a formal complaint to the Scottish Legal Complaints Commission (SLCC). The SLCC acts as a gateway and a point of contact for all complaints against legal practitioners in Scotland. The SLCC operates independently of the Scottish Government, Scottish legal profession, the Law Society of Scotland, the Faculty of Advocates and the Association of Commercial Attorneys. Their position of independence is valued by service users as providing a greater sense of impartiality and objectivity to reviewing complaints.

If you wish to make a complaint against a legal practitioner, the SLCC can be contacted by the following methods:

Online: Scottish Legal Complaints Commission

By mail:

Scottish Legal Complaints Commission
The Stamp Office
10-14 Waterloo Place

Related links

Legal Aid (Scotland) Act 1986
Scottish Legal Aid Board
The Law Society of Scotland
Citizens Advice Scotland
Citizens Advice Bureau Guides (UK)
Your Rights If Arrested
Criminal Justice (Scotland) Act 2016

Last update: 05/02/2020

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