SLAB to simplify summary "interests of justice" test

The Scottish Legal Aid Board has launched a consultation about how it applies the "interests of justice" test in summary criminal proceedings in the sheriff court.

It follows work with the Scottish Government on a programme to give effect to some of the themes in last year's Government consultation on legal aid reform, following the review by Martyn Evans.

This was required in advance of changes that the Government may decide to take forward that would need new legislation.

The consultation found strong support for simplification of the current system, while maintaining its broad scope.

SLAB's initial agreed focus is on identifying ways to simplify the application of the interests of justice test in summary criminal cases (legal aid and ABWOR).

Current policy is that the test is met when an unrepresented accused person would be at a substantial disadvantage in relation to a prosecution, and/or an unrepresented accused person faces serious consequences if convicted.

SLAB is focusing on the sheriff court because its data suggest that very few applications in respect of sheriff court cases are ever refused solely on interests of justice grounds. Fewer cases at JP court level meet the threshold, and no change is proposed in the approach to these cases. 

For the sheriff court it does not propose to change policy as to the threshold to be met, but in how it determines whether it is met. The core approach is that the test could be shown to be met solely on the basis that the applicant is being prosecuted in the sheriff court.

Option A is that any summary case being prosecuted in the sheriff court is accepted as satisfying the IoJ test on that basis alone; option B would have an exception for locations with no separate JP court, where all cases would be subject to the current test.

Views are invited on the options and their benefits and disadvantages.

Click here to view the consultation document. The closing date is 5pm on 12 November 2020.