Criminal Investigations and Proceedings

A Guide to Legal Representation and Funding - Part 1


Introduction 

The majority of criminal cases are funded by the Legal Aid Agency (LAA) via the Legal Aid scheme however the number of cases funded in this way has reduced each year since 2008.

If you are arrested or interviewed under Caution or charged with a criminal offence it is important that you understand whether you are entitled to advice and/or representation funded by Legal Aid and, if not, what other options are available to you.

All criminal matters can be broken up into 2 separate categories;

  1. Investigation – interviews under Caution after arrest or voluntary interviews with the Police or other investigative bodies
  2. Court Proceedings – where a case is taken to court and heard either in the Magistrates’ Court or Crown Court.

We hope that this series of articles will help you in understanding how and when you are able to be represented and what funding options are available to you.

Investigation

Interviews under Caution in accordance with the Police and Criminal Evidence Act (PACE) 1984

As with all criminal and regulatory cases the first action the Police, or other investigative department or agency, will take after an allegation has been made, or a suspected offence has been committed, is to investigate the matter.

This will usually result in speaking to those suspected of being involved in the alleged offence at an interview conducted under Caution, in compliance with PACE.

An interview conducted in this way enables the contents of the interview to form part of any court proceedings.

Interviews conducted in accordance with PACE provide the interviewee with the right to obtain legal advice. You should always take up this right, even when you do not think you have done anything wrong, as it will enable you to be fully advised as to what the allegations against you are and your options before the interview begins.

Without a legal representative you will not be made aware of the details of the allegations before the interview begins.

Exercising your right to legal advice does not make you look guilty and it is important that you are fully advised of the allegations, evidence and your options as to how to proceed prior to being interviewed.

Interviews under Caution at a Police Station and conducted by a Police Officer

Everyone who is interviewed under Caution by a Police Officer is entitled to free and independent legal advice meaning that you have the right to speak to a solicitor or accredited representative over the phone or in person entirely free of charge.

You can request any solicitor or firm of your choice or alternatively you are able to request the Duty Solicitor; who is a solicitor, usually from a firm local to the area, who is “on call” for that Police Station on a rota basis.

Whether you request a solicitor of your choice or the Duty Solicitor, you will not be charged for the advice and representation you receive during attendances at the Police Station, this includes any re-interviews which may need to take place, provided the firm you request are contracted to provide Legal Aid work.

Interviews under Caution following arrest

If you are arrested you will be asked, whilst being booked into Custody by the Custody Sergeant, whether you wish to exercise your right to legal advice. We strongly advise anyone to exercise this right and ask for a solicitor, even if you consider the allegation to be trivial or you do not consider that you have done anything wrong.

Requesting to have a solicitor attend at an interview will not delay matters any longer than it takes travel to the Police Station. Having a solicitor does not suggest you have done something wrong, often the most important time to have a solicitor is when you are innocent. If you are arrested it does not mean that the Police will be ready to interview you immediately. There may be further enquires to be made or additional evidence to be gathered.

If you request our firm to represent you we are informed of your basic details and we will then make enquires with the Police as to what stage their investigation is at and when the interview is expected to take place.

We will also make efforts to speak to you on the telephone at this stage, but you must be advised that we will not discuss details of the case with you at this stage as this conversation is not confidential.

We will attend as soon as the Police notify us that they are ready to interview you. We will then discuss the case in more detail.

Voluntary interviews under Caution conducted at a Police Station and conducted by a Police Officer

Due to recent changes in Police bail, more and more interviews under Caution are being arranged by means of a voluntary attendance at a Police Station. You will not be placed under arrest, you will not be kept in a cell and you are free to leave at any time. However you are still entitled to the same rights as if you were arrested, meaning that you are still able to exercise your right to free and independent legal advice.

The Police may describe the interview as a “chat” or a “discussion”. It is important that you clarify with them whether this will be an interview conducted under Caution as a suspect.

You are again entitled to request a solicitor of your choice or the Duty Solicitor, but if you have arranged a date and time to attend at the Police Station we would advise that you instruct our firm beforehand so that we can meet you at the Station and avoid any delays or having to arrange the interview for an alternative date.

Similarly there are occasions when Police Officers may request that you attend the Police Station, seemingly for a voluntary interview, but with the intention of arresting you.

The Police have specific rules as to when they should arrest someone and if you instruct a solicitor beforehand we will be able to contact the Officer and make representations on your behalf that you should be dealt with as a volunteer and not be arrested.

Interviews under Caution conducted by other investigative agencies

Interviews under Caution can be conducted by, but not limited to, the following organisations:

  • Natural Resources Wales who deal with offences including waste disposal, tree felling and farming.
  • Trading Standards who investigate and prosecute matters including sales and purchases of counterfeit goods.
  • Local Authorities who deal with matters including fly tipping, littering, Tree Preservation Orders and non-school attendance.
  • Driving Vehicles Standard Agency
  • NHS who investigate and prosecute matters including billing practices and compliance within their internal regulations.
  • HMRC who deal with matters relating to fraud, tax, VAT, bribery and money laundering.
  • Information Commissioner’s Office (ICO) who deal with breaches of the Data Protection Act such as subject access requests.

If you are to be interviewed under Caution by anyone other than a member of the Police then you will not be entitled to free and independent legal advice and assistance despite the interview being conducted in accordance with PACE and the contents of the interview being able to form part of any court proceedings.

You are however still entitled to have a solicitor present during the interview but we will need to assess whether you are eligible for funding under the Legal Aid Advice and Assistance scheme, which is different to the scheme discussed earlier.

Funding and Fees

Legal Aid Advice and Assistance Scheme

Eligibility for the Advice and Assistance scheme is based on both your household income and capital. You will only be entitled to Legal Aid under this scheme is you satisfy both requirements.

Income

You will be eligible for Advice and Assistance if your disposable income does not exceed £99 per week. This is the money which is left over from your weekly income after tax, national insurance and any maintenance has been deducted. There are also Dependant Allowances for your partner (£41.30 per week) and/or children (£66.33 per week) which will be deducted from your weekly income to assess eligibility.

If you are in receipt of qualifying means tested benefits you will automatically be “passported” and deemed eligible for Legal Aid.

Qualifying benefits are as follows; Income Support, Income Based Job Seekers’ Allowance (JSA), Income Related Employment and Support Allowance (ESA), Guarantee State Pension Credit and Universal Credit.

You will also be deemed eligible if your gross income (income before tax) does not exceed £14,213.00 per year and you are in receipt of Working Tax Credit plus/Child Tax Credit/ Working Tax Credit with a disability element.

If you are in receipt of any other benefits which are not mentioned above they will be disregarded for the purposes of this assessment.

Capital

You will be eligible for Advice and Assistance if, as a person with no dependants, your capital (savings) does not exceed £1,000.

If you have one dependant then your capital limit increases to £1,335 and £1,535 for two dependants. Each additional dependant after this increases the limit by £100.00.

If you satisfy both the Income and Capital requirements above you will be eligible for Advice and Assistance and you will not have to make any contributions towards this type of Legal Aid.

To enable us to apply for Legal Aid under this scheme you will need to provide proof of all household income and capital, for example your benefit book, wage slips and bank statements.

Without this information and documentation your eligibility cannot be processed.

Privately Funded

If you are not deemed eligible for Legal Aid we will be able to discuss fully the potential cost implications based on the type of investigation interview you have been requested to attend. You should contact our office should you wish to discuss this option further. Any quotation will be based on an estimate of time spent at the interview itself and any additional work which may be required together with travel and any disbursements e.g. mileage.

Should you be in doubt as to whether the Police, or investigative agency, wish to speak with you under Caution or you are concerned about potential court proceedings, please contact our office on 01978 291000 or email [email protected] so that we can make the relevant enquiries and offer our advice and assistance.

If you wish to discuss any matters relating to this article, then please contact Patrick Geddes for more information. Alternatively, you can email him on [email protected]