Funding of Criminal Cases

The criminal department of MCP not only provides privately funded advice, assistance and representation but as we hold a contract with the Legal Aid Agency, we are able to provide legal advice and representation to those individuals who cannot afford to pay for representation themselves.

Legal aid is government funded assistance to individuals who face criminal proceedings and is subject to two criteria, namely financial eligibility and the interests of justice.

Police Station

Anyone who is arrested and taken to a police station is entitled to free and independent legal advice and representation, irrespective of their means. This can be from their own solicitor, if that solicitor holds a legal aid contract, or if they do not have a solicitor, a duty solicitor.

Following arrest, it is not unusual to be placed on bail or released under investigation while the police conduct further enquiries. Any work which we will be required to undertake during this period would not be carried out under the police station advice and assistance scheme but there may be an eligibility for legal advice and assistance

Magistrates Court

For representation at the Magistrates court there are two criteria which must be met for legal aid to be granted, namely financial eligibility and also the interests of justice test. Criminal legal aid is means tested and looks at both the defendants ’s income and capital.

The general rule is that the resources of the defendant’s partner are to be included in the calculation of the financial resources of the defendant, unless there is a contrary interest they are a victim in the prosecution.

To be eligible for criminal legal aid, the defendant must pass both the income and the capital eligibility test.

Some defendants are automatically passported, such as those who are aged under 18 or receive certain benefits, including Income Support, income-based Jobseeker’s Allowance, Universal Credit, State Pension Guarantee Credit or income-based Employment and Support Allowance.

Crown Court

For those defendants who are in receipt of passporting benefits then they will be eligible for legal aid in the Crown Court. This will cover representation by Counsel and the payment of any expert’s reports, subject to the payment of such reports being approved by the Legal Aid Agency.

For those defendants not in receipt of a passporting benefit then a means test assessment is carried against income and capital assets held by the defendant.  The defendant may then have legal aid granted, refused due to their means, or granted subject to the payment of a contribution. There is a hardship procedure to guard against this operating unfairly in an individual case.

Contributions

If an individual is required to make a contribution, then they will be given the opportunity to accept or decline the offer of legal aid. If they accept the offer then they will be required to pay either a lump sum payment of the contribution in full, 6 monthly instalments or 5 instalments if the payments are made on time. In the event of an acquittal then these contributions will be refunded.

A defendant who is convicted may in addition be required to pay an additional amount from their disposable capital towards the balance of their defence costs. While the individual’s income is considered for the purposes of the contribution order at the outset and during proceedings, an individual’s capital is only considered for this purpose at the conclusion of proceedings.

Duty Solicitor

The duty solicitor is a qualified and accredited criminal defence lawyer available to provide legal advice and representation at a Magistrates court. At MCP we have 7 duty solicitors who are assigned on a rota to attend court. If anyone appears before a Magistrates Court for any imprisonable offence, then they are entitled to the services of the court duty solicitor at court that day. This type of representation is free but limited to one hearing.

Court Appointed Advocate.

If a defendant has pleaded not guilty to an offence and is ineligible for legal aid and cannot afford to pay for private representation, then the court may appoint an advocate for the purposes of cross examining a witness where it is felt wholly improper for them to cross examine the witness in person. This covers preparation of the defence but does not include any advocacy other than cross examination of named witnesses.

Privately funded cases.

Where a defendant is ineligible for legal aid then instead of representing themselves, they may choose to pay privately for representation. Fees can be agreed for each hearing and in the event of an acquittal at trial then an application can be made for a Defence Costs Order. This is an order entitling the defendant to receive a reimbursement of their legal fees. Invariably this sum is calculated at a low hourly rate and so does not reimburse the defendant for the money they have expended. A complicating factor is that where the defendant is convicted of some offences at trial but acquitted at trial then the court need to make an assessment as to what percentage of the assessed legal fees should be re-imbursed.