Legal Aid at the Police Station
Legal advice from a solicitor of your choice is free at the police station. A police officer must telephone your criminal legal aid solicitor to tell him or her that you have been arrested, and they can attend at the Government's expense.
Legal Aid in the Magistrates Court
In the Magistrates Court, there is a two-stage test for whether a person qualifies for Legal Aid. Both stages must be passed, or Legal Aid will not be given. The duty solicitor is available at court only for individuals who qualify for legal aid, not for anyone who arrives at court needing representation.
Stage One - The Interests of Justice Test
The first is called the ‘Interests of Justice' test. To pass this stage of the test, the defendant must show that he or she is genuinely in need of legal advice. The Legal Aid form says that damage to one's reputation is considered, or that not understanding the proceedings without a criminal legal aid solicitor is relevant. However, the reality is that usually only the possibility of a prison sentence for the offence alleged is enough to pass this stage of the test.
In extreme cases, where the defendant is disabled, driving offences may qualify for legal aid under this stage of the Legal Aid two-stage test. In general, only the most serious driving offences qualify for Legal Aid.
Stage Two - The Means Test
The second stage of the two-stage test for Legal Aid is the means test, this is a determination of whether an individual is eligible for Legal Aid based on their income and assets.
No-one who has a joint income (with their partner) of over £22,000 (approx) can qualify for Legal Aid in the Magistrates court. Anyone who has a joint income of over £11,000 (approx) is only entitled to partial Legal Aid.
People in custody will usually pass the means test.
If the Interests of Justice Test is not satisfied, no Legal Aid will be granted, no matter what the income of the defendant. If someone fails in an application for legal aid, they can make another application on the grounds of hardship. Such an application is rarely accepted by the Legal Services Commission, who decide how legal aid is distributed.
How Crown Court Legal Aid Funding Works
Once a case reaches the Crown Court, Legal Aid is generally available for those who qualify under the means test. However, where the defendant has above average income or any assets (such as equity in their home), the court will usually make an order that the defendant makes a contribution to his or her legal aid. The word 'contribution' here is misleading, however. In many cases the defendant will be asked to pay a contribution to the Legal Aid Agency more than the criminal legal aid solicitor or barrister are even paid. This means that it is sometimes in the defendant's best interests to not apply for legal aid, or accept legal aid if required to make a 'contribution'.
A contribution order is an amount that the Legal Aid Agency believe the defendant can afford to pay towards their legal costs. This can be paid in up to six instalments. It is important that a defendant notifies the Legal Aid Agency of any change in their financial circumstances during the case. If a defendant cannot afford to make the contribution payments or believes that a mistake has been made, they can ask for a review of the amount they have been asked to pay.
At the end of the case, if the defendant is found not guilty, then any payments made to the Legal Aid Agency will be refunded with interest.
However, if the defendant is found guilty, or pleads guilty then it is likely that the defendant will have to pay back the total of the cost of the case, if they have assets to the value of £30,000 or more (such as savings, equity in property, stocks or shares) or the contributions already made do not cover the cost of the case.
It is important to note that the Legal Aid Agency will contact the defendant directly, and it is the responsibility of the defendant to provide any requested information to the Legal Aid Agency.
Our advice to clients in general (especially those who have not been convicted of an offence before) is to pay privately if they can. However, we continue to strive to provide a high quality service on legal aid, if the client qualifies.