New streamlined policy on criminal Interests of Justice test to go live

Our policy on the assessment of the interests of justice (IoJ) test in sheriff court cases is changing. A simplified approach to the assessment of the IoJ test for summary criminal legal assistance and ABWOR will go live on Monday 22 March 2021.

The change has benefits for applicants and solicitors. It will also reduce assessment time and provide clarity for the courts.

What is the change?

Our new policy is that the threshold is met for the IoJ test for all summary cases marked for prosecution in the sheriff court. There will be no requirement for us or solicitors to actively consider information about the IoJ test for sheriff court cases in summary criminal legal aid or ABWOR.

Full assessment of the IoJ test will only now apply in JP Court cases.

The policy on the financial eligibility test remains unchanged.

Why are we making the change?

The change was identified as a potential simplification as part of the programme of work arising from the Legal Aid Review. It was also prompted by requests from the profession for the IoJ test to be reviewed, particularly in sheriff court cases.

It follows a consultation we carried out at the end of last year. Details of the consultation and the responses are available on our website. All responses were in favour of this change.

For sheriff court cases, we considered whether our previous approach was both proportionate and rational. Our data showed that a very small number of applications in sheriff court cases are ever refused solely on interests of justice grounds. An important part of the context is the modern role of the sheriff court, and the range of cases marked for prosecution in that court as a result of the application of prosecution policy.

Our assessment is that this context creates an inherent likelihood – or near certainty – of any case being prosecuted in the sheriff court being able to satisfy one or more of the factors set out in our legislation, thereby enabling us to grant summary criminal legal aid, or a solicitor to grant ABWOR. As such, our view was that the fact of prosecution in the sheriff court is sufficient evidence that it is in the interests of justice for publicly funded representation to be provided.

What are the benefits of the new policy on the IoJ test?

The new process benefits applicants as it provides greater certainty about the availability of legal aid. We will also be able to make decisions faster.

This new process benefits solicitors as it removes the task of addressing the IoJ test in summary criminal legal aid applications or applying the IoJ test in ABWOR for cases in the sheriff court.

All that is now required is information to support the means test; and confirmation and appropriate supporting evidence that it is a sheriff court case. In most cases, we will get this confirmation from the complaint we will continue to access from COPFS. If COPFS are unable to provide us with a copy of the complaint, we will continue to ask solicitors to provide a copy of this.

It will also allow us to save some assessment time, while still letting us meet our statutory duties. It will allow us to use our resources for other tasks.

The change in policy will also provide clarity for the courts that, where legal aid is under consideration, the only issue is the applicant’s financial eligibility.

New guidance available

Our legal aid guidance will be updated when the new IoJ policy goes live on Monday.

The IoJ policy statement and our decision-makers’ guidance will also be available on our Guidance on the Administration of Legal Aid (GALA) pages.

Legal Aid Online changes for new IoJ policy

We have updated Legal Aid Online so that the interests of justice sections will no longer be displayed in sheriff court cases.

There are no changes for JP court cases. The current interests of justice questions still require to be completed.

For more information

Please contact Marie-Louise Fox, Director of Operations


Related News