Legal Aid (CRM14) Drafting Flashcards
Two part test
The form will require you to remember the two part test:
1) Interests of justice - it is in the interest of justice that the client receives public funding
2) Means test - they do not have the financial resources to fund their own legal costs
Which part will take thought to draft
The interests of justice test section will have to be drafted the best especially ‘Why do you want legal aid?’ - This address the factors
Why do you want legal aid - Lose my liberty
Here you need to show that you will likely lose your liberty if convicted. So you need to show that you will receive a custodial sentence. Need to address the Sentencing Guidelines - which categories the offence falls in e.g Harm 3 Culpability 3. You then need to look at aggravating factors to increased seriousness of the offence e.g previous convictions (nature of offence to which conviction relates and its relevance to current offence and time that has elapsed).
Additionally, if the client is likely to be refused bail (indictable only offence or either way and they were on bail when they committed it or another reason e.g fail to surrender)
YOU NEED TO PRESENT THE PROSECUTION’S CASE AGAINST THE CLIENT AS ITS MOST SERIOUS
Why do you want legal aid - Lose my liberty - Example wording - Custodial Sentence
The prosecution allege that I [STATE FACTS for harm category]. For sentencing purposes these facts constitute Category 1 Harm. [STATE FACTS for culpability category]. For sentencing purposes this fact constitutes Medium Culpability Category B. The seriousness of the offence is increased by the aggravating factor [INSERT e.g previous convictions descript of offence, sentences imposed and dates]. My sentence, if found guilty, therefore starts at [1 years’ custody]. As I received a high level community order 2 years ago so, I am advised that the custody threshold has been reached and that I may be sentenced for this offence towards the upper end of the range of 2 years’ custody.
Why do you want legal aid - Lose my liberty - Example wording - Refusing bail
It is likely that I will be refused bail in the proceedings and will be remanded in custody. There are substantial grounds for the court to believe that I will:
a) fail to surrender to custody because I have a previous conviction for absconding (failing to answer bail) 2 years ago; and
b) commit further offences whilst on bail because 2 years ago I committed the offence of burglary whilst on bail
Why Legal Aid - It is likely that I will lose my livelihood
Need to show that if convicted they will lose their job
Why Legal Aid - It is likely that I will lose my livelihood - Example wording
I am charged with assault occasioning ABH. I work as a security guard in a department store. I have been informed that I will lose my job if I am sent to prison. A prison sentence will also prevent my future employment as a security guard.
Why Legal Aid - Serious damage to reputation
Need to show that they will lose their reputation of honesty and integrity. Usually someone with a position of respect in society e.g charity worker. Where the disgrace of being convicted will be worse than the conviction itself. Where you have no previous convictions
Why Legal Aid - Substantial question of law
Need to show you will dispute prosecution evidence and why e.g adverse inference being drawn or because of breaches of PACE or you will be adducing character evidence that the prosecution will likely challenge the admissibility of. Need to mention how you will be challenging this e.g under S.76 or 78 or breaches of PACE
Why Legal Aid - Substantial question of law - Example wording - Excluding police interview
I will challenge the admissibility of my police interview and the drawing of any adverse inference against me for failing to mention that I acted in self-defence as the police officer failed to caution me and I am advised that the behaviour of the police officer who questioned me constituted significant and substantial breaches of PACE
Why Legal Aid - Substantial question of law - Disputing identification evidence
Need to explain how identification evidence will be explored and challenged during cross examination then how you will make representations concerning poor quality of the identification evidence and mention Turnbull
Why Legal Aid - Don’t understand proceedings
May be because of vulnerability (age, illiterate, blind, deaf, disability) or because they don’t speak or understand English. Relevant medical evidence needs to be included e.g any periods of hospitalisation, treatment received
Why Legal Aid - Don’t understand proceedings - Example wording
The client has severe learning difficulties which results in them being unable to read or write or understand the nature of the court proceedings
Why Legal Aid - Involves tracing of witnesses
Show that you require witness evidence and you will have to trace them and receive a statement from them. Also applicable if you’re using expert evidence - need to show complexities of law and fact to justify calling relevant expert at trial. Need to make clear:
1) Relevant issue the witness can address
2) Whether the witness is known to the client
3) How their evidence may be relevant to an issue in the case
4) Why legal representation is necessary to trace and/or interview them
Why Legal Aid - Involves tracing of witnesses - Example wording
A solicitor is necessary to find witnesses of the facts, to take proper proofs of evidence and to extract in the witness box their evidence that the client acted in self-defence
