The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 1997

Statutory Instrument 1997 No. 3070 (S.197)

Entered intoforce 1st January 1998

(Excerpts)

The Secretary of State, in exercise of the powers conferred on him by sections 9 and 37(1) of the Legal Aid (Scotland) Act 1986[1] and of all other powers enabling him in that behalf, hereby makes the following Regulations, a draft of which has, in accordance with section 37(2) of that Act, been laid before Parliament and approved by resolution of each House of Parliament:

Citation commencement and interpretation

1.- (1) These Regulations may be cited as the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 1997 and shall come into force on 1st January 1998.

(2) In these Regulations unless the context otherwise requires-

"the Act" means the Legal Aid (Scotland) Act 1986;

"the 1995 Act" means the Criminal Procedure (Scotland) Act 1995[2];

"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 1993[3];

"disciplinary proceedings", in relation to aprisonermeans an inquiry before a governor held in pursuance of rules 94, 97 and 99 of and Schedule 3 to thePrisonsand Young Offenders Institutions (Scotland) Rules 1994[4] in respect of a breach of discipline which theprisoneris alleged to have committed;

"governor" means the person who is appointed by the Secretary of State under section 3(1) of thePrisons(Scotland) Act 1989[5] as the governor of aprisonand includes any officer of a governor grade or where there is no such officer present for the time being in theprison, the most senior officer who is present in theprisonat that time;

"officer" means an officer of theprisonappointed by the Secretary of State;

"Parole Board case" means a case of aprisonerto which Part IV of the Parole Board (Scotland) Rules 1993 applies;

"prison" has the same meaning as in section 43(1) of thePrisons(Scotland) Act 1989 and also includes a young offenders institution;

"prisoner"-

(a) in relation to disciplinary proceedings, has the same meaning as in section 43(1) of thePrisons(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 thePrisons(Scotland) Act 1989.

Application of Part II of the Act to assistance by way of representation: proceedings under the 1995 Act

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) under section 232 in relation to failure to comply with the requirements of a probation order;

(b) under section 233 in relation to the conviction of a probationer by a court in Great Britain of an offence committed during his probation period;

(d) under section 240(1) and (3) in relation to amendment or revocation of a community service order;

(e) under paragraph 4 of Schedule 7 in relation to failure to comply with the requirements of a supervised attendance order;

(f) under paragraph 5(1) and (3) of Schedule 7 in relation to amendment or revocation of a supervised attendance order.

Disciplinary Proceedings

10.The assistance by way of representation which may be provided under Part II of the Act in relation to disciplinary proceedings shall be for representation of theprisonerat all stages of the proceedings before the governor.

Parole Board Cases

11.The assistance by way of representation which may be provided under Part II of the Act in relation to a Parole Board case shall be for representation of theprisonerat all stages of the proceedings before a tribunal relating to that case.

Assistance by way of representation requiring approval of Board

13.The approval of the Board shall be required as a pre-condition of the provision of assistance by way of representation in relation to the proceedings described in regulations 3(g), 3(j) and 5 above.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations consolidate with amendments and revoke the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 1988 and subsequent amending instruments.

The main amendments provide:-

(a) for assistance by way of representation to be made available in relation to certain additional proceedings under the Criminal Procedure (Scotland) Act 1995 (regulation 4(2)(d) and regulation 4(2)(f));

(b) for assistance by way of representation to be made available in relation to the certain proceedings under the Proceeds of Crime (Scotland) Act 1995 (including those proceedings under the Criminal Justice (Scotland) Act 1995 for which assistance by way of representation was previously available) (regulation 5);

(c) for assistance by way of representation to be made available in civil proceedings to a person who is at risk of imprisonment for:

(i) failing to pay a fine or other sum; or

(ii) failing to obey a court order.

(d) for assistance by way of representation to be made available in relation to proceedings under section 31(6) of the Criminal Law (Consolidation) (Scotland) Act 1995.

The opportunity has also been taken to make minor and drafting amendments.

Notes:

[1] 1986 c.47.

[2] 1995 c.46.

[3] S.I. 1993/2225 amended by S.I. 1997/2317.

[4] S.I. 1994/1931 amended by S.I. 1996/32.

[5] 1989 c.45.

[6] 1964/1143.

[7] 1984 c.36.

[8] 1985 c.66; section 5(2) of the 1985 Act was substituted by section 3(2) of the Bankruptcy (Scotland) Act 1993 (c.6).

[9] 1988 c.53; section 42 was amended by the Road Traffic Act 1991 (c.40), Schedule 4, paragraph 98.

[10] 1994 c.33.

[11] 1995 c.39.

[12] 1995 c.43.

[13] S.I. 1996/513.

Source: HMSO - Her Majesty Stationery Office