Criminal Litigation - Legal aid (8) Flashcards
What is an overview of legal aid?
Legal Aid: Defendants may qualify for publicly funded legal aid, provided by the Legal Aid Agency.
(1) Human Right: Defendants have the right to free legal assistance in the interests of justice (Art 6).
(2) General Criminal Contract: Firms must apply for a ‘General Criminal Contract’ with the LAA to represent publicly funded defendants.
What kind of legal aid is available to a suspect/defendant at the police station and first hearing?
Police Station and First-Hearing: Everyone has the right to free legal assistance at a police station and their first-hearing.
What kind of legal aid is available at the police station?
Police Station: Suspects are entitled to free legal advice at the station.
(1) Representation: Suspects are assisted by duty solicitors (on rotas) as well as trainees and other accredited or probationary police station representatives.
(2) Funding: Representatives are paid fixed fees by the Police Station Advice and Assistance Scheme.
>Special provisions exist for extremely serious or time-consuming matters.
What kind of legal aid is available at the first hearing?
First-Hearing: Duty solicitors provide advice at first hearings, through the Advocacy Assistance (Court Duty Solicitor) Scheme.
What is a representation order?
Representation Order: Defendants must apply for a Representation Order to be funded for full legal representation at trial.
(1) Magistrates’ Trial: Public funding will cover all costs in the magistrates’ court (if the defendant qualifies).
(2) Crown Court Trial: Public funding can cover some or all costs in the Crown Court (if the defendant qualifies).
What is the application process for a representation order?
Application Process: Defendants must successfully apply for full legal aid (a solicitor usually applies on their behalf).
(1) Interests of Justice: Defendants must pass the Interests of Justice Test, on Form CRM14.
- Appeal: Defendants can appeal by amending the form, or requesting an in-person hearing.
(2) Means Test: Defendants must pass the Means Test, on Form CRM15.
- Appeal: Defendant cannot directly appeal, but can seek review of genuine inability to pay on Form CRM16.
What is the effect of a representation order?
Effect of Order: The effect of a Representation Order differs by classification of offence. Solicitors are paid at the end of case.
(1) Summary-Only: Covers all work in the Magistrates’ Court. May cover Crown Court appeal.
(2) Either-Way: Varies by trial venue.
Magistrates’ Court: Covers all work in the Magistrates’ Court. May cover Crown Court appeal.
Crown Court: Covers work done in Magistrates’ if means test is met, otherwise Crown Court only.
(3) Indictable-Only: Covers all work done in both courts.
What is the interests of justice test?
Interests of Justice Test: Defendants will only be funded if the interests of justice allow. This test is automatically met for Crown Court trials (AJA 1999). The Court will weigh up the effect of the following factors, submitted on Form CRM14.
(1) Loss of Liberty: Defendant likely to be imprisoned, refused bail, or is currently serving a suspended sentence.
(2) Loss of Livelihood: Defendant is likely to lose their job.
(3) Loss of Reputation: Defendant is likely to suffer serious damage to their reputation.
(4) Questions of Law: A substantial question of law is likely to arise, i.e. Turnbull, Adverse Inference, Hearsay etc.
(5) Capacity/Vulnerability: Defendant is unable to understand or present their own case.
(6) Witness Evidence: Defendant needs to trace or interview a witness.
(7) Cross-Examination: Defendant requires expert examination of a witness.
(8) Interests of Others: It is in the interests of other persons that the Defendant is represented (i.e. Defendant accused of sexual assault, so should not be the one to examine his accuser).
(9) Other Reasons: Any other reasons.
What is the means test?
Means Test: Defendant must show that they do not have financial means to pay their own costs, submitted on Form CRM15. The test is automatically met for recipients of welfare support, and youth defendants. This is a test of income, not capital.
(1) Adjusted Income: The Defendant’s gross annual income is divided by a figure based on partners and/or children to give adjusted income. This may result in automatic eligibility, or mean they continue to a full means test.
£12,475 or Less: Full funding in both courts.
£12,475-£22,324: Full means test in both courts.
£22,325 or More: Ineligible in MC, full means test in CC.
(2) Full Means Test: The full means test is adjusted income minus essential expenses (i.e. rent) to produce a disposable income figure.
£3,398 or Less: Full funding in both courts.
£3,399-£37,499: Ineligible in MC, partial funding in CC.
£37,500 or More: Ineligible in both courts.
