Public Funding Flashcards
what does the ECHR provide?
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
when can a solicitors’ firm obtain LAA funding?
- Solicitors’ firm must have a ‘general criminal contract’ with the LAA to obtain funding
what are the stages of the solicitors’ advice?
Solicitor’s Work at the Police Station
Solicitor’s Work after Charge
re: solicitor’s work at the police station
what is the position?
- S at the station (by arrest or voluntary) is entitled to free legal advice, regardless of means
re: solicitor’s work at the police station
how does a solicitor claim?
- Solicitor claims a fixed fee under Police Station Advice & Assistance Scheme
re: solicitor’s work at the police station
what is the fee?
One fee regardless of how much time is spent with the client / how many visits (unless the case is very serious / very time consuming
re: solicitor’s work at the police station
can non-solicitors claim?
- Non-solicitors (i.e. trainees) can claim so long as they are accredited or probationary police station representatives
re: solicitor’s work at the police station
how does the duty scheme work?
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
re: solicitor’s work after charge
what are the types?
Court Duty Solicitor Scheme
Representation Order
re: court duty solicitor scheme
explain this
- Duty solicitor will be at court to advice any Ds who do not have a solicitor but require legal advice/representation
re: court duty solicitor scheme
how does the solicitor claim their costs
- Solicitor claims costs from the LAA under the Advocacy Assistance (Court Duty Solicitor) Scheme
re: representation order
what is this?
an order authorising payment of legal aid for D
re: representation order
how does D obtain this?
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
re: representation order
how does a solicitor claim their costs?
- At conclusion of the case, solicitor claims costs under RO from LAA
re: representation order
what tests are applied in the CC and MC?
The same test is applied in the MC and the CC (but outcome is different)
Part 1 – Interests of Justice
Part 2 – Means Test
re: representation order
if successful, what are the possible outcomes on the CC and MC?
- 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
re: representation order
explain the interests of justice test in relation to the CC
- NB: this limb is always satisfied in the CC
re: representation order
what happens if D fails to satisfy the interest of justice test?
- If D fails to satisfy this limb, they can appeal by adding more information to the form and re-submitting or requesting an appeal
re: representation order
what are the statutory factors?
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
re: representation order
explain CRM14
Statutory interest of justice factors are regurgitated on CRM14.
D must tick the relevant ones and provide an explanation
re: representation order
which 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
re: representation order
explain a) D is likely to lose liberty
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)
re: representation order
explain b) D was given a suspended/non-custodial sentence
presumption an earlier custodial sentence is activated if an offence is committed during suspension
re: representation order
explain c) D is likely to lose livelihood
D employed and may face a prison sentence or a conviction means they will lose their job
re: representation order
explain d) D may not be able to understand the proceedings or present their own case
D has a physical or mental disability, poor English or otherwise vulnerable (i.e. age, emotionally immature)
re: representation order
explain e) D will suffer serious reputational damage
D has no pre-cons or for very minor offences and D would lose reputation for honesty or trustworthiness
re: representation order
explain f) Case involves substantial question of law
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
re: representation order
explain g) W may need to be traced or interviewed
inc. expert Ws
D will need to explain why they need legal rep to do this
re: representation order
explain h) Case involves cross-examination of a P witness (inc. expert)
legal rep required where issues pertain to: a question of law; admissibility; it is complex/technical; or expert evidence is in dispute
re: representation order
explain i) It is in someone else’s interests
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.
re: representation order
explain j) Any other reasons in the interests of justice
i.e. D is likely to receive demanding community sentence or D’s W requires skilful examination in chief
re: representation order
who automatically satisfies the means test?
- 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
re: representation order
unless they automatically satisfy, what must D do in terms of the means test?
- 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
re: representation order
how is the means test approached?
- 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
re: representation order
explain the means test in the CC
- CC annual disposal income more than £3,389 = eligible, but required to contribute (if disposable income is over £37k D is not eligible)
re: representation order
explain the means test in the MC
- MC annual disposable income more than £3,389 = not eligible
re: representation order
what are annual expenses for the purposes of the means test?
o Annual expenses inc. tax & NI, housing costs, childcare costs, maintenance to former partner/children, adjusted annual living allowance
re: representation order
what is important to remember about the means test?
- NB: capital is not considered
re: representation order
what happens if D fails the means test?
- 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
re: representation order
what is the scope of the RO where granted by the MC in a summary / either way?
RO covers all work done by the solicitor in the MC. Can be extended to cover an appeal to the CC.
re: representation order
what is the scope of the RO where granted by the MC in a either way heard in the CC?
o RO will automatically extend to CC
re: representation order
what is the scope of the RO where granted by the MC in an indictable?
RO covers work in the MC and the CC
re: representation order
what can D do if the MC refuse an RO and the case is then sent to the CC?
- 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
