Funding - Overview Flashcards
How can a defendant in criminal proceedings obtain public funding for their defence?
- By applying for a representation order.
What is a representation order? What is the test for it?
- A grant of public funding for legal representation in criminal court proceedings.
- It is only granted if the defendant passes two tests:
o The means test.
o The merits test (interests of justice).
Is a suspect entitled to free legal advice at the police station?
- Yes, all suspects are entitled to free legal advice, regardless of their financial situation.
How can a suspect access free legal advice at the police station?
- Through the Defence Solicitor Call Centre (DSCC).
Can all suspects receive in-person legal advice at the police station?
- No. If the offence is non-imprisonable, the advice may be limited to telephone advice only.
Who can provide free legal advice at the police station?
- Only accredited representatives on the Legal Aid Agency (LAA) register.
- This includes trainees, paralegals, and ex-police officers who have completed the accreditation process.
When must public funding be arranged for a defendant?
- Once the defendant has been charged and needs representation in court.
What are the two tests for obtaining a representation order?
- The Means Test – Assesses financial eligibility.
- The Merits Test – Assesses whether public funding is in the interests of justice.
Who automatically passes the means test is Magistrates?
- Defendants who are under 18.
- Defendants receiving certain welfare benefits (e.g., Universal Credit, income-based Jobseeker’s Allowance).
How does the means test work in the Magistrates’ Court?
- It assesses the defendant’s gross annual income.
- Income below £12,475 – Eligible for public funding.
- Income above £22,325 – Not eligible.
- Income between £12,475 and £22,325 – Requires a full means test.
What happens in the full means test Magistrates?
- It calculates the defendant’s annual household disposable income.
- If the disposable income is below £3,398, the defendant qualifies for funding.
- If they fail, they may still qualify if they have unusually high outgoings or defence costs.
What factors are considered in the Crown Court means test?
- Income and capital assets, including property equity.
How does the means test work in the Crown Court?
- If a defendant has over £30,000 in combined income and capital, they may have to contribute to legal costs.
- Contributions may be:
o Paid from income (throughout the case).
o Paid from capital (at the end of the case, if income is insufficient).
Who is eligible for public funding in the Crown Court?
- Income above £37,500 – Not eligible for public funding.
- Income below £3,398 – Eligible without contribution.
- Income between £3,398 and £37,500 – Eligible but must contribute.
Who automatically passes the interests of justice test?
- A defendant charged with an indictable-only offence.
- A defendant charged with an either-way offence that is later sent to the Crown Court.
What does the merits test assess?
- Whether public funding is justified based on the case’s seriousness and complexity.
- The defendant must provide information supporting one or more of the 10 propositions in form CRM14.
What are the 10 propositions that justify public funding?
- I will lose my liberty (e.g., a custodial sentence is likely).
- I have a suspended or non-custodial sentence that could be activated.
- I am likely to lose my livelihood (e.g., job loss due to conviction).
- I will suffer serious damage to my reputation.
- A substantial question of law is involved (e.g., breach of PACE).
- I may not be able to understand the proceedings or present my case.
- Witnesses need to be traced or interviewed on my behalf.
- The case involves expert cross-examination of a prosecution witness.
- It is in the interests of another person that I am represented.
- Other exceptional reasons why funding is needed.
Does a custodial offence automatically qualify for funding?
- No, the defendant should reference sentencing guidelines to show aggravating factors.
Can a defendant apply based on loss of livelihood?
- Yes, if a conviction could impact employment (e.g., needing mitigation to avoid job loss).
When is a question of law considered ‘substantial’?
- When the case involves admissibility issues, PACE breaches, or key case law.
When is a defendant considered unable to understand proceedings?
- If they do not speak English and an interpreter is not sufficient.
- If they have learning difficulties or mental health issues.
- If they are a youth.
When might witness tracing be a valid reason for funding?
- If the witness is difficult to locate.
- If the solicitor, rather than the defendant, needs to interview them.
- If the witness holds key evidence for the defence.
What is required for expert cross-examination to justify funding?
- The defendant must show:
o The trial involves legal arguments.
o The complainants are also witnesses.
o A police officer will require cross-examination.
Why might another person’s interests justify representation?
- Example: The victim is a young child, and the defendant must not cross-examine them.
What legal work is covered by a representation order?
- Preparation – Taking instructions, interviewing witnesses, assessing the prosecution case, advising on plea, preparing documents, instructing experts.
- Advocacy – Applications for bail, court representation.
- Routine legal communication – Letters, phone calls.
Can a defendant appeal if they fail the means test?
- No right of appeal, but they can reapply if their circumstances change.
Can a defendant appeal if they fail the merits test?
- Yes, they can submit an interests of justice appeal online to the Legal Aid Agency.
What options are available if a defendant is refused public funding?
- Consult the duty solicitor (only available for imprisonable offences and one hearing).
- Instruct a solicitor privately and pay for legal representation.
- Represent themselves, with support from the court.
What are the key points regarding public funding in criminal cases?
- Police station advice is free for all suspects.
- Court representation requires a representation order.
- The means test determines financial eligibility.
- The merits test assesses whether legal aid is justified.
- If refused, a defendant can pay privately, use a duty solicitor once, or represent themselves.
