Statutory factors to be taken into consideration when applying the interests of justice test

This section considers the statutory tests to be applied when determining whether it is in the interests of justice to make summary criminal legal aid available.

There is likely to be a loss of liberty or livelihood

You may consider that a custodial sentence is likely upon conviction.  If this is likely, you should address why in your application for legal aid with reference to the following:

  • The gravity of the offence.
  • Your client’s schedule of previous convictions.
  • If the overall circumstances of the case increase the possibility of a custodial sentence. This could include the sentencing practice of an individual Sheriff or JP or any offences, which are receiving particular attention in the local area or media.

Where loss of livelihood is said to be likely, you should provide detailed information to back up this up. You should tell us if:

  • Your client has good prospects of employment that would be jeopardised by a conviction.
  • Existing employment is likely to be lost by your client due to the employer’s attitude towards convictions.
  • A conviction will impact your client’s ability to obtain or renew a licence that they rely on for their livelihood.

If your client has been unemployed for some time and is taking no positive steps to seek work, we are unlikely to consider this to be a factor.

We will also consider factors outside of employment where a conviction may adversely affect your client, such as:

  • For students, a decrease in career prospects.
  • For immigrants, increased chance of deportation.

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

You should consider whether there are complexities in law and / or procedure which you are required to present to ensure fairness to your client.

Examples of such complexities:

  • Your client is charged in a special capacity.
  • There is a special or statutory defence to the charges.
  • Your client may be prejudiced by the plea or evidence of a co accused.
  • Hostility exists between your client and a witness.
  • The evidence of a police officer must be closely examined and challenged.

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

One of the statutory factors we have to take into account is the inability of your client to understand the proceedings or state their own case. This may be because of their:

  • Age.
  • Inadequate knowledge of English.
  • Mental illness.
  • Mental or physical disability.

We will consider this to be a reasonable factor where your client:

  • Does not recognise the significance of the criminal charges libelled against them because of their advanced years or youth.
  • Is an immigrant without a working knowledge of English.
  • Has a mental disability.
  • Has significant hearing or speech impairment.

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 abilities to follow proceedings or provide instructions.
  • Any difficulties you have in obtaining instructions from your client.
  • The particular effects of any addiction.
  • Specific nature and practical effects of any mental health issues.

It is not enough to satisfy this factor by providing an argument that your client:

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

Legal representation is in the interests of someone other than your client

It may be in the interests of someone other than your client, that your client is legally represented. Examples of situations where this factor is valid are:

  • Where a witness is a child or is deemed vulnerable.
  • There is a history of hostility between the client and the complainer or other witness.
  • A hostile defence witness is to be cited to give evidence.

The defence to be advanced by your client does not appear to be frivolous

It must be shown that your client’s defence does not appear to be frivolous.

You must provide us with sufficient information to enable us to assess this:

  • It is not enough merely to state “denial” or “alibi” and to give no information as to the circumstances of the charge or defence
  • Your client should state what they know of the substance of the charge and provide their version of events when stating a defence

The absence of a defence is not a bar to legal aid being granted as there may be other factors present which indicate a need for legal representation.

Your client is remanded in custody pending trial

The final statutory factor is the fact that your client has been remanded in custody pending trial.

The fact your client has been remanded in custody may advance the argument to provide your client with legal representation as:

  • It may indicate that a custodial sentence is likely in the event of conviction.
  • Your client has, where required, been unable to precognosce witnesses or to view Crown labels.


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