Before making criminal legal aid available, we must be satisfied:
We must also be satisfied that your client does not have:
It is important that you always discuss this possibility with your client before applying for legal aid.
For example, we would expect to be satisfied in a Road Traffic Act case that your client does not have a right to assistance:
If we are not satisfied on these matters, we must refuse legal aid unless there is special reason for making it available. If your client has a reasonable expectation of receiving financial help, your client may be asked to give us a written undertaking to pay us any sum received from that body.
We will take into account certain statutory factors when considering if it is in the interests of justice to grant criminal legal aid [section 24(3) of the Legal Aid (Scotland) Act 1986]. However, we may take additional unlisted factors into account. Overall, we must be satisfied it is reasonable your client be given representation at public expense.
The Act does not indicate that
We have to consider all the circumstances of the case, and there may be factors, which strongly suggest that granting criminal legal aid is not in the interests of justice, even if there are other factors suggesting a grant.
We may decide to grant legal aid on the basis of factors other than the statutory factors listed at section 24(3) of the Act.
The approach we should adopt in determining an application for criminal legal aid in summary proceedings was considered by the Court of Session in the case of K v. The Scottish Legal Aid Board 1989 SCLR 144 where an applicant, who had been refused criminal legal aid, judicially reviewed our decision. The Lord Ordinary (Lord Cullen) found against the petitioner and in the course of his judgement made the following observations
“…. It is clear that the purpose of subsection (3) of section 24 is to set out a number of factors as favouring the grant of an application and to ensure that the respondents, when considering whether they are satisfied that it is in the interests of justice that an application should be granted, take those factors into account, in so far as they may apply to the particular case. The weight to be attached to them is a matter for the respondents to assess in the particular circumstances of each case. It is also clear that these factors are not intended to be exhaustive of what the respondents might properly take into account from the information put before them. For example, in some cases they might take into account a consideration which was closely related to but fell short of what is set out in one of the heads of the subsection. Thus, for example, if they were satisfied that there was a real risk as opposed to a likelihood that the accused would lose his liberty if he were convicted it would be proper for them to take that into account along with the other circumstances of the case. However I do not accept the argument that merely because one or more factors are, as I will assume, satisfied in the particular case, it follows that there was no reasonable course for the respondents to adopt but to grant the application. According to the system which is set out in section 24 of the Act the granting of legal aid does not depend upon whether the applicant has accumulated a sufficient number of points in his favour but whether he has satisfied the respondents that it is in the interests of justice that he should be granted legal aid for the purpose of obtaining representation in the criminal proceedings to which the application relates. It is to that end that the respondents are enjoined to take into account, so far as applicable, the factors set out in the various heads contained in the subsection. Whether a particular head is satisfied and, if so, what weight should be attached to that factor is a matter for the respondents in the particular circumstances of the case. For the same reasons I also cannot agree that the refusal of legal aid in face of the fact, if it be the fact, that a number of heads had been satisfied creates a presumption that the decision to refuse legal aid was unreasonable. I should add that even if I had been disposed to grant reduction I would have declined to ordain the respondents to grant the petitioner’s application for legal aid. In my view that would have been tantamount to the court usurping the power to determine a legal aid application, which lies solely with the respondents.”
(K v. Scottish Legal Aid Board, 1989 SCLR 144, Lord Cullen at pages 147 and 148)