Criminal Litigation - Funding

What is required to obtain public funding for criminal court proceedings?

A representation order must be applied for, passing two tests: the means test and the merits test.

What is the means test for public funding eligibility?

Defendants under 18 or on specified welfare benefits automatically pass (they are 'passported').

Others must demonstrate eligibility, means tests differs depending on whether the case is in the magistrates' court or Crown Court

What is the merits test, also known as the interests of justice test?

A defendant automatically passes if charged with an indictable-only offence or if an either-way offence is sent to Crown Court.

Otherwise, must pass the ten propositions in form CRM14.

What happens if a defendant does not qualify for public funding?

They can pay privately or represent themselves

For imprisonable offences, they may consult with a duty solicitor who can represent them on one occasion.

Who is entitled to free advice at the police station?

All suspects are entitled to free legal advice at the police station regardless of their means.

For non-imprisonable offences, will speak to a lawyer over the phone rather than in-person.

How is free legal advice accessed for non-imprisonable offences?

Through the Defence Solicitor Call Centre (DSCC) via telephone only.

What does a reference to a solicitor mean in the context of the Police and Criminal Evidence Act 1984 (PACE)?

A solicitor with a practising certificate or an accredited representative on the Legal Aid Agency (LAA) register.

Who can be considered as accredited representatives?

Trainees, paralegals, or ex-police officers.

What is the means test in the magistrates' court?

An initial assessment works out their weighted gross annual income

Eligible for public funding = £12,475 or less

Ineligible for public funding = £22,325 or more

Required to undertake a full means test = in between the lower and upper thresholds. This will establish the applicant's annual household disposable income- if it is below the threshold the applicant will be funded.

What is the means test in the Crown Court?

Assessed on their income and capital, including any equity in properties.

After a combined capital and equity allowance of £30,000, applicants can be required to contribute any balance towards their defence costs.

the outcome of the assessment may require defendants to pay all, some, or none of the costs of defending their case.

Ineligible for public funding = disposable income of £37,500 pa or more.

Eligible for public funding without any contribution- disposable income £3,398 pa or less.

Eligible for public funding with a contribution- if in between the thresholds. The income based-contribution is 90 percent of disposable income for a maximum of six months in instalments (refunded with interest if the defendant is acquitted).

What form must a defendant complete to pass the merits test for legal aid in criminal proceedings?

CRM14 - Application for Legal Aid in Criminal proceedings.

Under what circumstances does a defendant automatically pass the interests of justice test?

If charged with an indictable-only offence or if an either-way offence is sent to the Crown Court.

What is the purpose of the 10 propositions in the legal aid application form?

To evaluate whether the matter is serious or complicated enough that the defendant cannot conduct their own defence.

What are the 10 propositions in the interests of justice test? - must know these for MCQs!

I will lose my liberty

I have been given a (prior) sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence.

It is likely I will lose my livelihood

It is likely I will suffer serious damage to my reputation

A substantial question of law may be involved

I may not be able to understand the court proceedings or present my own case

Witnesses may need to be traced or interviewed on my behalf

The proceedings may involve expert cross examination of a prosecution witness

It is in the interests of another person that I am represented

Any other reasons

What can D do if they fail the means and/or merits tests for funding?

Fails the means test - no right of appeal, but can submit another form if their circumstances change

Fails the merits test in the magistrates' court - can submit an interests of justice appeal online to the Legal Aid Agency.

Will either have to pay privately or represent themselves.

Can clients use no-win no-fee agreements?

This does not apply to criminal cases, only applies to civil cases.