You must consider the interests of justice test [regulation 7] before providing ABWOR under regulation 6(1) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003:

“7. (2A) The assistance by way of representation described in regulation 6(1) above is to be provided under Part II of the Act only if the solicitor to whom the application has been made is satisfied that it is in the interests of justice for the assistance to be provided.

    (2B) The factors to be taken into account in determining whether it is in the interests of justice for the assistance to be provided include those listed in section 24(3)(a) to (c) of the Act.

(3) This regulation shall not apply in relation to summary criminal proceedings in a sheriff court which has been designated as a youth court or as a domestic abuse court by the sheriff principal.”

 

 

 

Criteria for Interests of Justice ABWOR

The criteria, referred to [section 24(3)(a) to (c) of the Legal Aid (Scotland) Act 1986] are as follows.

Deprivation of liberty/loss of livelihood

  • the offence is such that if proved it is likely that the court would impose a sentence which would deprive the accused of his liberty or lead to loss of his livelihood

Where you consider this factor is present, you should explain why such a sentence is likely.  It is not sufficient for a custodial sentence to be a possible outcome of a case.  The test to be applied is whether such an outcome is likely.  In completing this section, you should refer to the nature and circumstances of the offence(s).  If appropriate, include details of the estimated value of any goods stolen, property damaged and injuries suffered.  You may also find it useful to attach any supporting documentation such as a copy of a driving licence or a copy of a letter from an employer where loss of livelihood is possible.

Question of law/evidence of complex nature

(b)      the determination of the case may involve consideration of a substantial question of law, or of evidence of a complex or difficult nature

You should explain what these issues are. Any narrative or references to case law should make clear that such complexities arise in the circumstances of the case and are relevant to the proceedings.

Client unable to understand proceedings

(c)      the accused may be unable to understand the proceedings or to state his own case because of his age, inadequate knowledge of English, mental illness, other mental or physical disability or otherwise

If you consider the applicant’s physical or mental health to be a factor, you should give details of any medical assistance or support that they receive. You should show how this affects their abilities to follow proceedings, or provide instructions etc. The particular effects of any addictions should be shown, and you should make clear any difficulties you have in getting instructions from the applicant.

When addressing a client’s ability to understand the proceedings or state their own case, it is insufficient to state “depression” or “mental health difficulties”; rather, you should give details to expand on the nature of the client’s difficulties. For example, medication your client is taking, any support they receive from a health worker, and details of the impact their disability has on their everyday life are all relevant.

The list is not exhaustive and other factors may arise in the circumstances of an individual case. We consider that the following factors can also be taken into account in the assessment and approval of criminal ABWOR cases.

Is it in the interests of someone other than the accused that the accused be legally represented?

It is recognised that it may be in the interests of someone other than the accused for the accused to be legally represented. Although it may be in the interests of the sheriff, Justice of the Peace, or prosecutor that every accused should be legally represented, to help dispose of the case, Parliament has not legislated for criminal ABWOR to be available for every case. Therefore, this factor must relate to more specific or exceptional circumstances. For example, subject always to the seriousness of the charge, where negotiation is required to adjust a plea, including where the case is continued without plea.

Is the client in custody on another matter?

This could also indicate a likely custodial sentence and should also be advanced as an argument in support of that particular factor. However, if the nature of the case suggests a need to carry out work but the inability of the accused to do this while in custody prevents it, this may be an argument in favour of providing them with legal representation. Clearly, the circumstances would need to be pointed out to us.

Is the client a first offender?

If the client is a first offender, then it may be the case that they would be unable to understand the proceedings or state their own case. Where this does apply, then a first appearance in court, particularly the sheriff court, could be a factor, which could be taken into consideration.

Generally, even if you consider the matter to be relatively serious you must always provide sufficient information to show that legal representation is necessary and can make a material difference to the outcome of the case.

Notification of grant of ABWOR and factors

When submitting a notification that you have granted ABWOR, you should provide full information to show the basis on which you considered that it was in the interests of justice to grant. We may have regard to these reasons in the event that the case is identified in our post-grant verification checks. If you do not, and it appears that you have inappropriately applied the merits test, we may not pay your account or, having already paid your account we may seek to recover the payment.

For full information about the factors you should consider for each of these criteria, you should refer to our guidance on the application of these factors in the context of summary criminal legal aid.

You must consider the interests of justice test [regulation 7] before providing ABWOR under regulation 6(1) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003.

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