ABWOR where client not appearing from custody: the interests of justice test

In applicable cases, 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.”

Our policy is that the threshold to meet the interests of justice test is reached when an unrepresented person would be at a substantial disadvantage in relation to the prosecution and/or an unrepresented person faces serious consequences if convicted.

Sheriff court cases

Our policy is that the threshold is met for all cases prosecuted in the sheriff court. You do not need to undertake any active assessment of the interests of justice test. You do not need to provide any information to us about this test.

Justice of the peace court cases

You should assess the interests of justice test in justice of the peace court cases.  For these cases, it is our policy is that the interests of justice test is satisfied where one or more of the factors is reasonably stateable.

In these ABWOR cases, you determine whether the interests of justice test is met and we check how it has been applied. The possible outcomes are that we:

• verify that the interests of justice test was applied by you correctly; or
• determine that you incorrectly assessed the interest of justice test.

Our policy is that your grant of ABWOR is a valid grant if we are satisfied that you properly decided that the test was met on the basis that one or more of the specified factors is reasonably stateable.

Statutory factors

• 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 livelihood
• the determination of the case may involve consideration of a substantial question of law, or of evidence of a complex or difficult nature
• 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.

Non-statutory factors

The statutory factor of loss of livelihood, considered as part of an expanded non-statutory factor:

• there is likely to be a loss of livelihood or other effects of conviction such as damage to reputation, blighting career prospects, psychological trauma, emigration or travel difficulties, potential loss of tenancy or inability to find a mortgage, impact on caring responsibilities such as contact with children.

There is likely to be a loss of liberty or livelihood

Loss of liberty

You may consider that a custodial sentence is likely upon conviction. If this is likely, you should address why in your application. The test will be met in the following circumstances:

• the offence itself may be of such a serious nature that a custodial sentence will be appropriate
• a number of convictions for similar offences may mean a custodial sentence is likely. A previous custodial sentence for a similar offence may make a further custodial sentence highly likely
• the particular sentencing practices of a court may be relevant
• your client may be on bail for another matter or currently on an order imposed in a previous case, such as a Community Payback Order.

The statutory factor will not be met if:

• there is merely a possibility of a custodial sentence, or by simply stating that imprisonment is a competent sentence
• you state that, although the original charge is a non-imprisonable offence, there is a bail aggravation and custody is likely. This is not the case: a non-imprisonable offence does not become imprisonable if there is a bail aggravation included in the complaint
• your client has previous convictions but they relate to non-analogous offences
• custody is unlikely in the event of conviction because your client has no recent, analogous convictions
• you state that your client will be sentenced to custody if found guilty of a non imprisonable road traffic offence. Schedule 2 of the Road Traffic Offenders Act 1988 lists the relevant penalties that apply to each.

Loss of livelihood

Where loss of livelihood is thought to be likely, you should provide detailed evidence of this. The test will be met if the following circumstances apply:

• your client is an unemployed taxi or bus driver seeking work, who could be seriously affected by a conviction leading to the loss of their driving licence
• your client has good prospects of employment which would be jeopardised by a conviction
• your client’s existing employment is likely to be lost, due to the attitude of the employer to a conviction
• your client’s livelihood depends on possession of a type of licence, and the effect of a conviction on that licence, or on an application for renewal of the licence, has been made clear.

If your client has been unemployed for some time and is taking no positive steps to seek work, this is unlikely to meet the test.

Our policy is that you can also consider a non-statutory factor: where a conviction may adversely affect your client where there are likely to be other effects of conviction such as damage to reputation, blighting career prospects, psychological trauma, emigration or travel difficulties, potential loss of tenancy or inability to find a mortgage, impact on caring responsibilities such as contact with children.

Road Traffic Act 1988 – disqualification from driving or revocation of licence

This factor will not be satisfied if the application incorrectly states that disqualification from driving or revocation of licence is a consequence of being found guilty of the charge. You should consider the penalty the court can impose and any penalty points the applicant already has.

There is a substantial question of law or evidence of a complex or difficult nature

You should consider whether the case is one where a legal argument requires to be presented or where the evidence is of a complex or difficult nature.

The test will be met where the following circumstances apply:

• the accused is charged in a special capacity, or
• there are complex or sensitive issues which require to be highlighted in any plea in mitigation, or
• a proof in mitigation or a special reasons/undue hardship proof has been fixed by the court, or
• they may be prejudiced by the plea or evidence of a co accused, or
• there is a plea to the competency or relevancy, or
• there is a plea in bar of trial.

Your client is unable to understand the proceedings or to state their own case

You should consider whether your client is able to understand the proceedings or state their own case. They may be unable to because of:

• their age
• their ability to understand English
• a physical disability, learning disability or difficulty, development disorder, mental health condition
• deafness/partial hearing loss, blindness/partial sight loss, or full/partial loss of voice or difficulty speaking
• other relevant long term illness, disease or condition.

This list is not exhaustive. If you think that there are other issues, you should tell us what these are.

Where appropriate, you should give details of any medical assistance or support your client receives. Please demonstrate:

• how this affects their ability to follow proceedings, or provide instructions
• any difficulties in obtaining instructions from your client
• whether the client is taking any medication to help them manage their condition and relevant side effects
• the particular effects of any addiction
• any support they receive from a caregiver, or details of the impact their disability has on their day to day life.

It is not enough to satisfy this factor by stating that your client:

• is of low intelligence or is a poor communicator; or
• should be allowed to state their case through you to put them on equal terms with the prosecutor

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.