Statutory factors to be taken into consideration when applying the interests of justice test in JP Court cases

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 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
• the applicant 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
• the application states 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
• the applicant has previous convictions but they relate to non-analogous offences
• custody is not likely in the event of conviction because the applicant has no recent, analogous convictions
• the application states that the applicant 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 apply to each.

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:

• 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, 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:

• your client is charged in a special capacity, or
• your client wishes to lodge a special defence, or avail themselves of a statutory defence, or
• your client may be prejudiced by the plea or evidence of a co accused, or
• some hostility exists between your client and a witness, or
• the evidence of a police officer must be closely examined and challenged.

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:

• in a theft case, the applicant’s defence is that it was intended that the goods were to be paid for
• in a fraud case, the applicant’s defence is that another person undertook to pay the taxi fare
• in a vandalism case, the applicant’s defence is one of accident.

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
• 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 your 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 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.

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:

• there is a history of hostility between the accused and the complainer, or other Crown witness, to avoid the applicant cross examining the witness.

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 merely to state “denial” or “alibi” and to give no information as to the circumstances of the charge or defence
• you should tell us what your client knows about the substance of the charge and provide their version of events when stating a defence.

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:

• paid insurance through direct debit and bank declined payment causing insurance company to terminate contract; or
• thought that insurance was in place having been told by another party that this was the case; or
• contacted the insurance company and made arrangements to have vehicle insured and fault lies with insurance company.

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.