Funding and Representation Order

Question 1

what must D satisfy to apply for a representation order? (2)

Answer 1

1. means test
2. merits test

Question 2

when does D automatically pass the means test?

Answer 2

• D is under 18
• D is on welfare benefits

Question 3

what is the means test in the magistrates court?

Answer 3

Depends on D’s weighted gross annual income = D’s annual income added to partners but weighted to account for number of people living in D’s household

• D eligible for public funding = £12,475 or less
• D not eligible for public funding = £22,325 or more
• if between = D must undertake a full means test which depends on their annual household disposable income - D is eligible if £3,398 or less

Question 4

what is the means test in the crown court?

Answer 4

• Depends on D’s income and capital, including any equity in properties owned
• D may be required to pay contribution even if representation order is granted
• thresholds of eligibility depend on D’s annual household disposable income

Question 5

if D fails the merits test, can they appeal?

Answer 5

no - but if in CC D can apply for an eligibility review if there was an error or if their circumstances have changed

Question 6

what is the merits test?

Answer 6

• D must demonstrate that it is in the interests of justice that their case is publicly funded
• D must provide information in support of the 10 propositions = the purpose is to evaluate if the matter is so serious or complicated that D could not conduct their own defence

Question 7

when does D automatically pass the merits test?

Answer 7

D is charged with:

1. indictable only offence
2. either way offence that is sent to the CC for trial

(so D must undertake the merits test assessment if charged with a summary only offence or an either way offence to be tried in the MC)

Question 8

what are the 10 propositions?

Answer 8

1. i will lose my liberty = D is likely to receive a custodial sentence considering the sentencing guidelines (the chance must be real and practical - it is not enough that the offence is imprisonable)
2. D was given a suspended sentence or a non-custodial sentence and D will receive a custodial sentence if the court deals with D for the original offence
3. it is likely I will lose my livelihood = if D is given a custodial sentence, this is easy to prove. If D is pleading guilty, explain why representation is needed to convey mitigation for sentencing.
4. it is likely i will suffer serious damage to my reputation = consider the nature of the charge and D’s profession (eg schoolteacher), and argue D’s good character. the damage must be serious.
5. a substantial question of law may be involved = admissibility of evidence, unsettled points of law, etc.
6. I may not be able to understand the court proceedings or present my own case = if D is youth or disabled or mentally vulnerable - if D cannot understand english, explain why an interpreter is insufficient
7. witnesses may need to be traced or interviewed = explain what evidence witnesses may adduce, why solicitor is needed, and why they cannot be traced
8. proceedings may involve expert cross-examination of prosecution witnesses = explain why D cannot cross-examine witnesses himself - requires more than a lack of legal knowledge
9. it is in the interests of another person that I am represented = if victim is a minor or uncomfortable with D (not interests of D’s family if D is imprisoned)
10. any other reason = e.g., D is pleading not guilty and the case will go to trial, trial is to be in CC, or witnesses are minors or vulnerable

Question 9

can D appeal if D fails the merits test?

Answer 9

yes

Question 10

when can D use the duty solicitor?

Answer 10

• Duty solicitors can only be used once - either at the police, first hearing, or at trial
• can only be used at trial or the first hearing if D is charged with an imprisonable offence