Public Funding

Question 1

what does the ECHR provide?

Answer 1

everyone charged with a criminal offence has the right to defend themselves with legal assistance of their own choosing or, if he does not have sufficient means, it to be given free if it is in the interests of justice to do so

Question 2

when can a solicitors’ firm obtain LAA funding?

Answer 2

• Solicitors’ firm must have a ‘general criminal contract’ with the LAA to obtain funding

Question 3

what are the stages of the solicitors’ advice?

Answer 3

Solicitor’s Work at the Police Station
Solicitor’s Work after Charge

Question 4

re: solicitor’s work at the police station

what is the position?

Answer 4

• S at the station (by arrest or voluntary) is entitled to free legal advice, regardless of means

Question 5

re: solicitor’s work at the police station

how does a solicitor claim?

Answer 5

• Solicitor claims a fixed fee under Police Station Advice & Assistance Scheme

Question 6

re: solicitor’s work at the police station

what is the fee?

Answer 6

One fee regardless of how much time is spent with the client / how many visits (unless the case is very serious / very time consuming

Question 7

re: solicitor’s work at the police station

can non-solicitors claim?

Answer 7

• Non-solicitors (i.e. trainees) can claim so long as they are accredited or probationary police station representatives

Question 8

re: solicitor’s work at the police station

how does the duty scheme work?

Answer 8

stations have duty solicitor schemes which solicitors can be members of.

When they are ‘on duty’, they may be called to the station to give advice to S without legal representation

Question 9

re: solicitor’s work after charge

what are the types?

Answer 9

Court Duty Solicitor Scheme
Representation Order

Question 10

re: court duty solicitor scheme

explain this

Answer 10

• Duty solicitor will be at court to advice any Ds who do not have a solicitor but require legal advice/representation

Question 11

re: court duty solicitor scheme

how does the solicitor claim their costs

Answer 11

• Solicitor claims costs from the LAA under the Advocacy Assistance (Court Duty Solicitor) Scheme

Question 12

re: representation order

what is this?

Answer 12

an order authorising payment of legal aid for D

Question 13

re: representation order

how does D obtain this?

Answer 13

D will need to apply for this (two-part test)

Ds must complete online form CRM14 application for legal aid + (unless D automatically satisfies the means test) CRM15 financial statement

Question 14

re: representation order

how does a solicitor claim their costs?

Answer 14

• At conclusion of the case, solicitor claims costs under RO from LAA

Question 15

re: representation order

what tests are applied in the CC and MC?

Answer 15

The same test is applied in the MC and the CC (but outcome is different)

Part 1 – Interests of Justice
Part 2 – Means Test

Question 16

re: representation order

if successful, what are the possible outcomes on the CC and MC?

Answer 16

• MC > D not be required to contribute to legal fees (LA is free or not available)
• CC > D may be required to contribute to fees, depending on their income

Question 17

re: representation order

explain the interests of justice test in relation to the CC

Answer 17

• NB: this limb is always satisfied in the CC

Question 18

re: representation order

what happens if D fails to satisfy the interest of justice test?

Answer 18

• If D fails to satisfy this limb, they can appeal by adding more information to the form and re-submitting or requesting an appeal

Question 19

re: representation order

what are the statutory factors?

Answer 19

a) D is likely to lose liberty
b) D was given a suspended/non-custodial sentence
c) D is likely to lose livelihood
d) D may not be able to understand the proceedings or present their own case

NB: these factors are only relevant where D pleads NG

e) D will suffer serious reputational damage
f) Case involves substantial question of law
g) W may need to be traced or interviewed
h) Case involves cross-examination of a P witness (inc. expert)
i) It is in someone else’s interests
j) Any other reasons in the interests of justice

Question 20

re: representation order

explain CRM14

Answer 20

Statutory interest of justice factors are regurgitated on CRM14.

D must tick the relevant ones and provide an explanation

Question 21

re: representation order

which factors are only relevant where D pleads NG?

Answer 21

e) D will suffer serious reputational damage
f) Case involves substantial question of law
g) W may need to be traced or interviewed
h) Case involves cross-examination of a P witness (inc. expert)
i) It is in someone else’s interests
j) Any other reasons in the interests of justice

Question 22

re: representation order

explain a) D is likely to lose liberty

Answer 22

relevant if D is likely to be refused bail and / or a conviction will likely result in a custodial sentence

D will need to present case at its most seriousness i.e. factual allegations making the matter more serious and any pre-cons (aggravating factors)

Question 23

re: representation order

explain b) D was given a suspended/non-custodial sentence

Answer 23

presumption an earlier custodial sentence is activated if an offence is committed during suspension

Question 24

re: representation order

explain c) D is likely to lose livelihood

Answer 24

D employed and may face a prison sentence or a conviction means they will lose their job

Question 25

re: representation order explain d) D may not be able to understand the proceedings or present their own case

Answer 25

D has a physical or mental disability, poor English or otherwise vulnerable (i.e. age, emotionally immature)

Question 26

re: representation order explain e) D will suffer serious reputational damage

Answer 26

D has no pre-cons or for very minor offences and D would lose reputation for honesty or trustworthiness

Question 27

re: representation order explain f) Case involves substantial question of law

Answer 27

common if evidence is in dispute i.e. Turnbull guidelines to be applied; court may draw adverse inferences; a party is seeking to persuade the court to admit hearsay evidence

Question 28

re: representation order explain g) W may need to be traced or interviewed

Answer 28

inc. expert Ws D will need to explain why they need legal rep to do this

Question 29

re: representation order explain h) Case involves cross-examination of a P witness (inc. expert)

Answer 29

legal rep required where issues pertain to: a question of law; admissibility; it is complex/technical; or expert evidence is in dispute

Question 30

re: representation order explain i) It is in someone else’s interests

Answer 30

i.e. D charged with sexual assault and V is a child. D cannot argue it is in the general interests of D’s family or the court.

Question 31

re: representation order explain j) Any other reasons in the interests of justice

Answer 31

i.e. D is likely to receive demanding community sentence or D’s W requires skilful examination in chief

Question 32

re: representation order who automatically satisfies the means test?

Answer 32

* Those in receipt of benefits and under 18 automatically satisfy this limb o If in receipt of benefits D must provide their NI number to check this

Question 33

re: representation order unless they automatically satisfy, what must D do in terms of the means test?

Answer 33

* Others must complete CRM15 and provide the following supporting evidence: o Pay slips, tax returns (business owners), bank statements, tax forms, mortgage statements, rental/tenancy agreements, proof of child care costs

Question 34

re: representation order how is the means test approached?

Answer 34

* D’s disposable income is calculated to determine if they are eligible o Gross annual income – annual expenses* = disposable income o Annual expenses inc. tax & NI, housing costs, childcare costs, maintenance to former partner/children, adjusted annual living allowance

Question 35

re: representation order explain the means test in the CC

Answer 35

* CC  annual disposal income more than £3,389 = eligible, but required to contribute (if disposable income is over £37k D is not eligible)

Question 36

re: representation order explain the means test in the MC

Answer 36

* MC  annual disposable income more than £3,389 = not eligible

Question 37

re: representation order what are annual expenses for the purposes of the means test?

Answer 37

o Annual expenses inc. tax & NI, housing costs, childcare costs, maintenance to former partner/children, adjusted annual living allowance

Question 38

re: representation order what is important to remember about the means test?

Answer 38

* NB: capital is not considered

Question 39

re: representation order what happens if D fails the means test?

Answer 39

* If D fails the means test, this cannot be appealed but if they can demonstrate that they genuinely cannot afford legal rep, they can ask for the decision to be review on the grounds of hardship by completing Form CRM16

Question 40

re: representation order what is the scope of the RO where granted by the MC in a summary / either way?

Answer 40

RO covers all work done by the solicitor in the MC. Can be extended to cover an appeal to the CC.

Question 41

re: representation order what is the scope of the RO where granted by the MC in a either way heard in the CC?

Answer 41

o RO will automatically extend to CC

Question 42

re: representation order what is the scope of the RO where granted by the MC in an indictable?

Answer 42

RO covers work in the MC and the CC

Question 43

re: representation order what can D do if the MC refuse an RO and the case is then sent to the CC?

Answer 43

* If the MC refuse an RO in an either-way case which is then sent to the CC, D can reapply. If granted, funding is for CC work only