Criminal Legal Aid Information Sheet

POLICE STATION ATTENDANCE SCHEME

Under this scheme, where a person is suspected of having committed an offence, the suspect receives free advice from a Solicitor (or his/her representative).  The advice can be given face to face or over the telephone.  There is no means test, and no form to complete.  This system only applies whilst the suspect is at a Police Station.

COURT DUTY SOLICITOR SCHEME

Like the scheme described above, there is no means test under this scheme.  The scheme covers persons who appear at the Magistrates Court unrepresented, whether on bail or in custody.  It does not cover advice or representation for persons who have already received advice from a Solicitor, pleaded not guilty and their matter is listed for trial or where they have pleaded guilty and the case has been adjourned for pre-sentence reports before sentencing.  The Duty Solicitor advice or representation facility is only available once during the course of a case.

After a person has been arrested and charged with an offence, advice and representation is available from either the Court Duty Solicitor on rota or any Duty Solicitor of your choice at Magistrates Court which deal with early first hearings.  The Duty Solicitors can provide representation free of charge, as there is also no means testing involved for such court hearings.  If required, further advice and representation can be dealt with under Criminal Representation Orders.

ADVICE AND ASSISTANCE SCHEME

Under this scheme, a person suspected of an offence can be advised and assisted by a Solicitor up to when a person is charged with an offence.  The scheme does not cover representation at a Court hearing.

There is a simple and immediate means test.  If you are financially eligible, we can carry out two hours work on your behalf.  Please note we need to see proof that you are in receipt of benefits (if appropriate) e.g.: by showing us your benefit book, or proof of your earnings, e.g.: by showing to us an up to date payslip.

If further work is required we can apply to the Legal Aid Agency for an extension of that limit.  If that extension is granted we would inform you and also notify you of a costs estimate.  If the extension were refused we would then discuss with you how to proceed.

REPRESENTATION ORDER

This type of funding applies if a person has been charged with an offence and the matter has not been covered under the above-mentioned schemes.  An application form is completed.  The application is considered by the Legal Aid Agency who decide whether the facts of the case merit public funding.  You would be likely to qualify for Representation if the Legal Aid Agency decides that it is in the interests of justice that you be represented.  Representation might be granted, for example, where the charge is so serious you would be likely to be sent to prison or to lose your job if found guilty, or where it is clear that you would have difficulty in understanding the proceedings.

The means test process determines if you qualify for legal aid to cover some or all of your defence costs. It takes into account income, family circumstances, e.g. number of children and essential living costs, e.g. mortgage or rent. Eligibility also depends on the type of case and where it’s heard.

Means testing is one aspect of determining if someone qualifies for criminal legal aid as set out in Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). All clients must also pass the Interests of Justice test (IoJ) to qualify for legal aid, as mentioned above.

If you fail the means test but believe that paying for your legal costs would cause financial hardship, then you can ask for a review of your additional expenses (not yet taken into account). The following is a link to a Criminal Legal Aid Calculator which you can use to calculate if you are eligible for criminal legal aid.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/314808/LAA-financial-eligibility-calculator-for-criminal-legal-aid.xlsm

PASSPORTING

In certain circumstances applications are “passported”. These applicants are those individuals, who automatically pass the means test because they are on either Income Support, Income based job seekers allowance, Income based Employment and Support Allowance or Guarantee State Pension Credit. The initial means test assesses the applicant’s income and how it is spread between partners and children. A person seeking Legal Aid who is under the age of 18 will also be passported through the means test. Applicants must also pass the IOJ (Crown Court trials are deemed to automatically satisfy this test).

If you receive one of the passporting benefits then you will need to provide your National Insurance number (unless you have been remanded into custody by the court). Once your National Insurance Number has been provided then the LAA will then confirm your benefit status. In certain circumstances you may be required to provide evidence to show that you are in receipt of certain benefits if the LAA is unable to confirm the same electronically using the details you have provided. In this situation we will write to you. It is also imperative that if you have missed your benefits sign-on date, to include your sign-on date so that the LAA can carry out a more detailed check electronically to confirm your benefit status.

When applying for legal aid you will also need to list any benefits that you receive which aren’t listed as above as passporting benefits or deemed as ‘disregarded benefits, such as Child Benefit, Tax Credits, Incapacity Benefit, Industrial Injuries payments, Disablement Benefit, Savings Pension Credit, contribution-based JSA

Subject to certain qualifying criteria if your income is £12,475.00 or less then your Legal Aid will be funded by the LAA (subject to passing the interests of justice criteria. If your income is more that £12,475.00 but less that £22,325.00 then the LAA will carry out a full means test and you may be required to make an income contribution. If your income is more that £22,325.00 the LAA will not grant you Legal Aid for any Magistrates Court matter or for a Committal for Sentence to the Crown Court. However, you may be able to get Legal Aid for an appeal to the Crown Court depending on a full means test. For Crown Court trials you may have to make an income contribution towards your legal aid, however the amount of any contribution will depend on a full means test.

Applicants with a household disposable income of £37,500.00 or more are not eligible for Legal Aid for a Crown Court trial.

If a Representation Order is granted and the case progresses to the Crown Court, the Representation Order will usually be extended to include the Crown Court case, provided that details of your means (and if relevant, those of your Partner) are provided.  This will require production of information and proof of income, capital, essential expenses and, for homeowners, details of any mortgage and the approximate equity in the home.  The statement of means must be returned at, or before, the first hearing in the Crown Court.  Failure to return the form could result in a Recovery of Defence Costs Order being made against you for the full costs of the case, (unless there are exceptional circumstances).  The effect of a Recovery of Defence Costs Order is explained below.

You have a duty to provide an accurate statement of your means and must co-operate with the Court and respond promptly to any enquiries about your financial eligibility.  If you make an untrue statement or fail to disclose any material fact regarding your financial resources this could result in a Recovery of Defence Costs Order being made against you for the full costs of the case, (unless there are exceptional circumstances).

If a Representation Order has been granted for proceedings in the Crown Court, at the end of the case, the Judge has a duty to consider whether to make a Recovery of Defence Costs order against you.  This is separate from any other financial orders or penalties that might be made.  A Recovery of Defence Costs Order can be made whether or not you are convicted and does not form part of any sentence, although an order would only be made in exceptional circumstances against a Defendant who had been acquitted.  The order can be for any amount up to the full costs incurred for the representation you have received and can included costs incurred in other Courts.

RECOVERY OF DEFENCE COSTS ORDER

A Recovery of Defence Costs Order cannot be made against an individual who has been committed for sentence to the Crown Court or is appealing against sentence to the Crown Court.

If a Recovery of Defence Costs Order is to be made, the Judge will make an order specifying the amount and terms of payment.  The Court has the power to freeze a Defendant’s assets where it is appropriate to do so.  Generally, an order will not be made against the first £3,000 of any capital available.  A Defendant’s main dwelling may be treated as capital for this purpose but the first £100,000 worth of equity will be disregarded.  Income will only be taken into account where a Defendant’s gross annual income exceeds £24,000.

If you are granted a Representation Order you should be aware that it may be withdrawn in the following circumstances:-

  • Where any charge or proceedings brought against you are varied, the Court or the Legal Services Commission have a duty to consider whether it is still in the interests of justice for you to be represented in respect of the varied charge or proceedings and may withdraw the order if it is decided that it is not in the interests of justice;
  • Where you decline to accept a Representation Order in the terms which are offered;
  • At your request; or
  • Where your Solicitor who is named on the Representation Order declines to continue to represent you.

If your Representation Order is withdrawn, public funding for your legal costs would end and thereafter if you wished us to continue to act for you, you would be personally liable for our costs.  Our retainer would be terminated and we would seek a payment on account of costs before we could act for you further.  If that payment were not made we would be unable to act for you further.  If you were to make a further application for a Representation Order in respect of the same proceedings, you would be obliged to declare the fact that your previous Representation Order had been withdrawn and the reason for the withdrawal.

If you plead guilty or are found guilty, the court may order you to pay all or part of the prosecution costs in addition to any other financial penalty that the court might order.

FULL MEANS TESTING

The full means test if the annual income was found to be more than £12,475.00 and less than £22,325.00 works out your  ‘disposable income’. It’s calculated by deducting living costs from your gross annual income. The adjusted income from the initial means test is not valid for the full means test. Living costs include tax and National Insurance, annual housing costs, annual childcare costs, annual maintenance to former partners and any children and an adjusted

COMPLEX MEANS

A small number of applicants may have complex financial circumstances, e.g. if they’re self-employed, in a business partnership, a company director, in the armed forces or subject to a restraint or freezing order. They’re still means tested and such cases may be referred by the LAA to their National Courts Team, which works with solicitors to collect any further information required.

MEANS TESTING AND ELIGABILITY FORMS

At the start of your case we will give you various Legal Aid forms to complete and return to us with the requisite evidence to support. You must give your means information in the application for Legal Aid.

MAKING CONTRIBUTIONS IN THE CROWN COURT

For Crown Court trials there are two types of contribution you may have to make – either from income and/or capital. You may have to pay all, some or none of your defence costs, depending on what the means test decides you can afford from your income and capital assets. For Appeals to Crown Court if you fail the means assessment, and then abandon, or are unsuccessful in your appeal then you may have to pay towards the cost of the appeal as follows:

  • £500 for an appeal against conviction abandoned or dismissed
  • £250 for an appeal against conviction dismissed but sentence is reduced
  • £250 for an appeal against sentence or order (e.g. an ASBO) abandoned or dismissed

Where payment is required you will be contacted after the outcome of the appeal.

ENFORCEMENT ACTION

If you fail to make payments after you’ve received Contribution Orders, then you’ll face enforcement action. Where payment is not made or a payment arrangement is not maintained, the LAA will instruct Rossendales / Marstons to enforce unpaid contributions.

If payment is not made interest may be charged at 6% – enforcement action may follow. The costs of any action will be added to the amount clients owe. Enforcement options include but are not limited to:

  • charging order secured against any property owned
  • 8% interest on charging orders
  • third party debt order against any money deposited in an account
  • attachment of earnings order, where payment can be deducted at source
  • High Court enforcement, via writ of Fi Fa
  • distress warrants, where goods can be seized, removed and sold
  • order to clamp and/or sell any vehicle owned

CONTACTING CLIENTS

Collection and Enforcement Agency, Rossendales, is instructed by the Legal Aid Agency to collect and, if necessary, enforce non-payment. Where necessary they will contact you regarding nay collection or enforcement.

EXCEPTIONAL CIRCUMSTANCES: HARDSHIP & ELIGIBILTY REVIEWS

MAGISTRATES COURT HARDSHIP APPLICATION

If you believe you can’t afford to pay for your case or are likely to be refused – even though you failed the means tests, then you can make a hardship application. The LAA will consider further expenditure, e.g. loans, credit card debt, civil legal aid costs and utility arrears, as well as the estimated costs of the case. The NCT will assess whether additional expenditure takes your disposable income below £3,398.

CROWN COURT ELIGIBILITY REVIEW

If you believe you can’t afford to pay for your case or are likely to be refused – even if your disposable income following the means test is £37,500 or more then you can apply for an eligibility review.

You will need to give details of types of expenditure that aren’t taken into account in the means tests. You may also need to estimate the likely private costs of their case.

If your application is successful, the LAA will calculate whether you’re liable for any income contribution towards costs.

CROWN COURT HARDSHIP APPLICATION

If you are under a Crown Court Representation Order but are asked to make monthly contributions from your income or are likely to be granted Legal Aid with an Income Contribution you may want additional expenditure to be considered. In such circumstances you will need to make a Crown Court hardship application.

A revised contribution order will be issued if your disposable income is reduced. If it’s £3,398 or less the contribution order will be revoked.

HOW TO APPLY FOR A HARDSHIP ELIGABILITY REVIEW

You can seek a hardship review at the save time as you initial Legal Aid application or afterwards. You will need to complete a CRM16 hardship application form.