Criminal Investigations & Proceedings

A Guide to Legal Representation & Funding Magistrates’ Court

If you are arrested or interviewed under Caution or charged with a criminal offence it is important that you understand if 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.

Court Proceedings

Magistrates’ Court

The Magistrates’ Court deal with all summary only (offences which can only be dealt with by the Magistrates’ Court) together with either way offences (which can be dealt with by both the Magistrates’ Court and the Crown Court).

In reality the Magistrates’ Court deals with 94% of all criminal cases. If you are charged or receive a postal summons or requisition to attend court for a criminal offence you have 2 potential options in respect of representation by a firm of your choice.

Legal Aid

Eligibility for Legal Aid in the Magistrates’ Court in based on two criteria; the Interest of Justice Test and a Means Test. You must pass both of these tests to be eligible for Legal Aid.

Interest of Justice Test

Each application is decided upon its own merits dealing with the circumstances and details of each case. Broadly speaking you will satisfy the Interest of Justice Test if you fall into one of 9 categories;

1. There is a realistic prospect that you will received a prison sentence, immediate or suspended, based on the type of offence,  the facts of the case, the Sentencing Guidelines, your previous convictions and your compliance with previous court orders.
2. You are already subject to a suspended sentence or other court order which, if you’re an in breach of, is likely to result in you being resentenced and/or a prison sentence.
3. You will lose your job if you are convicted, either because of the type of offence you have been charged with or because of the likely sentence.
4. There is a substantial legal issue which needs to be addressed, such as a point of law.
5. You may not be able to understand the court proceedings or present your own case, e.g. if you have learning difficulties or substantial mental health issues.
6. You will require witnesses to be traced and interviewed on your behalf, which have not already been spoken to by Police.
7. The case will involve cross-examination of the prosecution witnesses which requires the expertise of a solicitor.
8. It is in the interests of another that you are represented, such as it being unsuitable for you cross examine the witnesses yourselves due to the nature of the allegations or if you have dependant family members.

Some offences such a being Drunk and Disorderly or a s.5 Public Order Act offence would be unlikely to satisfy any of the above categories and therefore Legal Aid would almost always be refused for such offences.

Magistrates’ Court Means Test

The second limb of whether you are eligible for Legal Aid is a means test which is based on your income, any rent/mortgage/board and lodgings which you pay and a “personal allowance”, which is dependent on your personal circumstances.

There are two levels of means test in the Magistrates’ Court; Initial Means Test and Full Means Test.

Initial Means Test

The Initial Means Test takes your Gross Household Income which is you, and your partner’s, total annual income before tax.

This is then divided by a Weighing Scale figure which places different values on you, your partner and any children you may have. For example you as the applicant are deemed as 1, your partner is deemed as 0.64. So your Weighing Scale for you both would be 1.64.

The figure remaining is your Adjusted Income.

Gross Household Income ÷ Weighing Scale = Adjusted Income

If your Adjusted Income is less than £12,475 per year (before tax) then you will have passed the means test and, providing you satisfy the Interest of Justice test above, you will be granted Legal Aid in the Magistrates’ Court (and the Crown Court).

If your Adjusted Income is over £22,325 per year (before tax) then you will not be eligible for Legal Aid in the Magistrates’ Court, even if you satisfy the Interest of Justice test.

If however your Adjusted Income is between £12,475 and £22,325 per year (before tax) then the Full Means Test will need to be completed, which calculates your annual Disposable Income.

Full Means Test

The Full Means Test takes your Weighing Scale figure and multiplies it by your Annual Living Allowance.

The Annual Living Allowance is currently set at £5,676 and represents an estimated average of the cost of living expenses including food, clothing, household bills etc for a single individual. The Annual Living Allowance is multiplied by your Weighing Scale figure to provide your Weighted Living Allowance which provides an estimate of the annual living expenses of everyone in your household, including your partner and/or children.

Weighing Scale x Annual Living Allowance = Weighted Living Allowance

Your Weighted Living Allowance is then deducted from you Gross Household Income together with any other Allowable Outgoings which are defined as; tax, National Insurance, annual housing costs (rent/mortgage/board & lodgings and Council Tax), annual childcare costs and annual maintenance to any former partner and children.

The figure remaining is your Disposable Income.

Gross Household Income – Weighted Living Allowance – Allowable Outgoings = Disposable Income

If your Disposable Income is under £3,398 per year you will have passed the Means Test and, providing you satisfy the Interest of Justice Test above, you will be granted Legal Aid in the Magistrates’ Court.

If your Disposable Income is over £3,398 per year then you will be ineligible for Legal Aid in the Magistrates’ Court and you will need to consider one of the other options available to you.

If you claim state benefits

If you are in receipt of qualifying benefits you will automatically be “passported” and deemed to have passed the means test.

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.

To enable us to apply for Legal Aid we will need your basic personal details including your full name, date of birth and address. If you have a husband/wife/civil partner or are cohabiting we will also require their details as above.

We will also require the following:

1. National Insurance number and details of the benefits you receive
2. Your charge sheet/postal summons/postal requisition

If you are employed

To enable us to apply for Legal Aid we will need details form you and, if you have a husband/wife/civil partner or are cohabiting, we will also require their details.

Your details;

1. Date of Birth
2. National Insurance number
3. Details of any income you receive and most recent wage slips for the past 3 months
4. Any dependants who live with you and their ages

Your Partner’s details (if you live together);

1. Full name
2. Date of birth
3. National Insurance Number
4. Most recent wage slips for the past 3 months

Your Address

1. Whether you own a property (including you own home)
2. Type of property – residential/commercial /land/Detached/semi-detached/bungalow/flat, number of bedrooms, estimated market value
3. Percentage of property owned (not including any mortgage)
4. Amount owing on any outstanding mortgage
5. Estimated market value of property
6. The amount you pay in rent/mortgage per month. If over £500 then we will need a copy of your tenancy agreement/mortgage agreement
7. Amount of Council Tax per year/month

Bank Accounts 

1. Details of any bank accounts/building society accounts/Cash ISAs/National Savings or Post Office Accounts/Cash investments you hold;

1. Bank
2. Sort code
3. Account number
4. Account type
5. Balance
6. Account holder

Other 

1. Details of any stocks/shares/PEPs/Share ISAs/Unit trusts/Investment bonds/other lump sum investments you hold.
2. Do you benefit of any trusts from the UK or overseas?
3. Details of any income, savings or assets which are under a restraint or freezing order.
4. Details of any other source of income.
5. The registration number of any motor vehicle which you own.

If you are self employed

To enable us to apply for Legal Aid we will require all of the information noted above as well as;

1. Your most recent Tax Return and/or set of accounts which shows your tax liability. (SA100)*
   1. Business type – self-employed or business partnership?
   2. Trading name
   3. Type of business
   4. When you began trading
   5. How many people you employ
   6. If you are in business with anyone else we will require their names and how the profits are divided by percentage

*Please be aware that a tax calculation sheet (SA302) is not adequate evidence of self-employed income when submitted on its own (it should be accompanied by a tax return, accounts or bank statements).  If the business is very new or particularly small so that no accounts or HMRC documents are available, we will need to submit bank statements or a cashbook or any other account information as evidence.

Granting Legal Aid in the Magistrates’ Court

Providing you satisfy both the Interest of Justice Test and the Means Test you will be granted Legal Aid in the Magistrates’ Court. We will receive a Representation Order from the Legal Aid Agency and you will not be required to make any contributions towards your representation at the Magistrates’ Court.

If your case progresses to the Crown Court then there are further rules and considerations for Legal Aid. Funding in the Crown Court will be dealt with in detail in the next article.

Private

If you are not deemed eligible for Legal Aid we will be able to provide you with a fair and realistic quote based on the likely length of the trial, the complexity of the case and the amount of preparation required.

If you have been charged and bailed to attend Court or have received postal charges or a summons and you do not believe you will be eligible for Legal Aid you should contact our office to discuss your options further. Any quote will be based on an estimate of time spent at court, attendances on you and any witnesses, preparation and any additional work or research which may be required, together with travel and any disbursements e.g. mileage.

Defence Costs Order

If you are found not guilty after trial then we would request a Defence Costs Order from the Court which would cover our costs of representing you, but only at Legal Aid rates. This would be deducted from your bill, at private rates, and you would be liable for the remaining balance.

Duty Solicitor

You have the option of instructing the Duty Solicitor at Court, the same as you do at the Police Station. They are a solicitor, usually from a firm local to the area, who is allocated to the Court on rota basis.

The role of the Duty Solicitor is to provide free and independent legal advice which is subject to the same confidentially at any other solicitor. They are obliged to deal with all cases where there is the potential of a prison sentence, but would not have to represent you for offences where the sentence would only be a fine only, such as being Drunk and Disorderly or a s.5 Public Order Act offence.

Depending on what happens at the first hearing your case may be adjourned to another day. If your case is adjourned for sentence or a trial then the Duty Solicitor at the next hearing cannot deal with your case, despite the fact that it may be a different Duty Solicitor.

If your case is adjourned you will need to secure representation, either through Legal Aid or fund the matter privately, in order to be represented.

Representing yourself and the role of the Court Appointed Instructed Advocate

With the decrease in cases funded by Legal Aid more and more defendants are choosing, or left with little option, to represent themselves, either at plea and sentencing hearings or even at trial. Whilst this is something which may not pose a problem in cases where the maximum sentence is a financial penalty it is not something we would recommend that you do in the majority of cases.

In many cases there is a risk of a prison sentence or loss of your good character, if you have no previous convictions.

In cases of a domestic context or, where the Court deems it unsuitable for you to question a complainant or other witnesses at a trial, they will allocate a solicitor to be a Court Appointed Instructed Advocate. This will enable the complainant, and possibly other witnesses, to be asked questions on your behalf by a solicitor. The solicitor would take your instructions in respect of the witness statements prior to the trial to establish what needs to be brought out in their evidence.

You would not have to pay for the Instructed Advocate but their involvement in your case would end after the Prosecution witnesses had given their evidence. The rest of the trial would be conducted by you with guidance, where necessary, from the Court’s Legal Adviser.

If you wish to discuss any matters relating to this article, then please contact Patrick Geddes for more information on 01978 291 000 or email [email protected]