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 in JP Court cases.
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. We will consider that the statutory factor is met in the following circumstances:
The statutory factor will not be met if:
Where loss of livelihood is thought to be likely, you should provide detailed information in support of this. We will consider that the statutory factor is met in the following circumstances:
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 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 where the statutory penalties listed in Schedule 2 of the Road Traffic Offenders Act 1988 mean that disqualification is not competent in the event of conviction.
You should consider whether there are complexities in law and/or procedure which you are required to present to ensure fairness to your client.
We will consider the factor to be met in the following circumstances:
This factor will not be met in the following circumstances where it has not been demonstrated that a solicitor is required to present this to the court:
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:
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:
It is not enough to satisfy this factor by providing an argument that your client:
It may be in the interests of someone other than your client, that your client is legally represented. We will consider that this factor has been met where:
It is not enough to say that it is in the interests of the Justice of the Peace, prosecutor and witnesses that every accused should be legally represented.
Parliament did not legislate for criminal legal aid to be available for every case and as a result this statutory factor must relate to the specific circumstances of the case.
You must show that your client’s defence does not appear to be frivolous.
The Act does not define the word “frivolous” and we will give it its ordinary meaning. It is not for us to try the case and matters of credibility are obviously for the court alone and the standard we will apply is low.
You must provide us with sufficient information to enable us to assess this:
It is not enough to say that the applicant simply wants to put the “Crown to proof”.
The absence of a defence, however, is not a bar to legal aid being granted, as there may be other factors present which clearly indicate a need for legal representation. Where this is the case, we can grant legal aid even where the intention is to withdraw the plea of not guilty and tender a plea of guilty to the charges libeled.
Section 143 of the Road Traffic Act 1988
Strict liability applies in any charge of driving or using a vehicle without insurance. On that basis your client will not have a stateable defence,and this factor will not be met, where their position is that there was a mistaken belief that insurance was in place at the relevant time. In those circumstances there may be special reasons for non endorsation (Marshall v McLeod 1988 SCCR 317).
Other examples where this factor will not be met include where your client:
In prosecutions alleging contraventions of section 143 of the 1988 Act where any of the above apply you should give consideration to granting ABWOR for any guilty plea and resulting special reasons proof.
This is important to make sure you obtain the correct cover because, where a summary legal aid application has already been made, we cannot approve any subsequent ABWOR grant.[Regulation 6 2003 ABWOR Regulations]
The fact your client has been remanded in custody may indicate that a custodial sentence is likely in the event of conviction.
We will consider that the factor is met where the nature of the case suggests a need to precognose witnesses, or to view Crown labels, as the applicant will be unable to do so while in custody.