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 solicitors to tell them that you have been arrested, and they can attend at the government's expense. The government's funding is a small fixed fee, which may be inadequate in some less serious cases to properly represent you.
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. As with the police station, the legal aid fee payable to criminal legal aid solicitors is a small fixed fee, even for typical Magistrates' Court trials.
Stage One - The Interests of Justice Test
The first stage of the test to see if someone qualifies for legal aid 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 a person's reputation is considered, or that not understanding the proceedings without a firm of criminal legal aid solicitors 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. 'Means' is a word which describes your income and assets, which have to be below a certain level to qualify for legal aid.
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 passed, Legal Aid won't be granted, no matter what the income of the defendant is. If someone fails in a legal aid application, they can make another application on the grounds of hardship. These hardship applications are not accepted very often by the Legal Aid Agency who are the decision makers.
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. But 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 what it calls a 'contribution' to his or her legal aid. The word 'contribution' here is not completely accurate, however. In many cases the defendant will be asked to pay a contribution to the Legal Aid Agency which is more than the criminal legal aid solicitors or barristers are even paid. This means that it is sometimes in the defendant's best interests to not apply for legal aid, or to accept legal aid if they 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 a small amount of added interest.
However, if the defendant is found guilty or pleads guilty, and if they have assets of £30,000 or more, then it is likely that they will have to pay back the total cost of the case. Assets here means savings, equity in property, stocks or shares.
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. Criminal legal aid solicitors may assist you with this, but it's something that they aren't obliged to do. They do not have contact with the Legal Aid Agency about a person's contributions etc.
What do Mary Monson Solicitors think about legal aid?
It's sad that legal aid has been turned into an area full of pitfalls, where serious cases are well funded but other, less serious but still deserving cases are not. With some regret our criminal legal aid solicitors now have to advise clients in many cases (especially those who have not been convicted of an offence before) to pay privately if they can. However, we continue to strive to provide a high quality level of free legal advice on legal aid if the client qualifies. It's also now true that on cases where the legal aid funding available for a type of case is very small, we may not be able to act on legal aid. To some extent this goes against our history of acting for clients on legal aid going back 40 years, but we can't take on a case if we don't believe we can deliver a proper and ethical service. We would advise you to call us and see if we can help. We're always happy to discuss your situation for a few minutes.