Criminal Law Funding and Proceedings

A Guide to Legal Representation & Funding Crown Court

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.

Court Proceedings – Crown Court

The Crown Court deals with all Indictable only offences (offences which can only be dealt with in the Crown Court) together with many either way offences (which can be dealt with by both the Magistrates’ Court and the Crown Court). For example if the Magistrates’ Court do not feel that their sentencing powers are sufficient or if a defendant chooses to be dealt with in the Crown Court for trial the case will be ‘sent’ to the Crown Court.

The Crown Court deals with 6% of all criminal cases and, by their very nature, they are the most serious criminal matters. If you are charged or receive a postal summons or requisition your case will always be dealt with by the Magistrates’ Court first before it can be sent to the Crown Court.

If your case is sent to the Crown Court you have 2 potential options in respect of representation; Legal Aid or funding the matter privately.

Legal Aid

Eligibility for Legal Aid in the Crown Court is subject to the same two tests as in the Magistrates’ Court; Interests of Justice and Means. You must pass both tests to be granted Legal Aid.

If you were granted Legal Aid in the Magistrates’ Court then you will automatically be granted Legal Aid in the Crown Court.

It is important to note that if you were refused Legal Aid in the Magistrates’ Court and your case is sent to the Crown Court for sentence, known as a Committal for Sentence, you will not be eligible for Legal Aid.

Interest of Justice Test

Broadly speaking most proceedings sent to the Crown Court will automatically meet the Interest of Justice Test;

• Cases which have been sent to the Crown Court for trial
• Cases which have been committed for sentence
• Cases which have been directed for a retrial by the Court of Appeal

The only time the full Interest of Justice Test, as noted in the previous article, will be applied is where you are appealing a case, either conviction or sentence, to the Crown Court.

Means Test

The second limb of whether you are eligible for Legal Aid is a Means Test. Both the Initial Means Test and Full Means Test are explained in detail in the previous article.

Initial Means Test

If you passed the Initial Means Test in the Magistrates’ Court then you will be eligible for Legal Aid in the Crown Court; if your Adjusted Income is less than £12,475 per year (before tax).

Full Means Test

If 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 Disposable Income per year. How this is calculated is illustrated in the previous article.

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.

If your Disposable Income is between £3,398 and £37,449 per year you will be granted Legal Aid at the Crown Court but you will have to make some contributions towards the Legal Aid Agency in the funding of your case.

If your Disposable Income is over £37,500 per year you will be ineligible for Legal Aid at the Crown Court for trial.

You would be eligible for Legal Aid for any appeal to the Crown Court, but you will be subject to contributions.

Contributions towards Legal Aid

Depending on your Disposable Income or capital/savings/equity you may be required to make contributions towards the defence costs of your case. These contributions are paid directly to the Legal Aid Agency, not to us or the solicitors you instruct, and are not something which we have any decision over.

If you are found not guilty after trial then any contributions you have made will be returned to you with interest, currently set at 2%.

If you are found not guilty of some, but not all, of the charges which you face then the trial Judge will determine what proportion of your contributions, if any, should be returned to you.

If you do not apply for Legal Aid or choose not to take up the offer of Legal Aid then, even if you are found not guilty, you will not be able to recover the money you have spent paying a solicitor or barrister privately.

Income Contributions

If you have a Disposable Income above £3,398 but below the £37,500 per year then income contributions are required once your case has been sent to the Crown Court. Contributions are set at 90% of your Disposable Income for a maximum of 6 monthly instalments.

As an example, if you have a Disposable Income of £3,398.01 (just above the threshold) the monthly contribution would be £254.85.

Annual Disposable income £3,398.91

90% = £3058.21 ÷12 months = £254.85

Income Contributions

£254.85 x 6 months = £1,529.11

There are two payment options:

1. Monthly instalments over 6 months. If payments are made on time, only 5 monthly contributions will be collected.
2. You can pay a lump sum equivalent to the value of 5 monthly instalments, on or before, the first payment date.

If you have a higher Disposable Income than the likely cost of your case, contributions will be limited to a maximum income contribution to reduce the risk of overpayment. The maximum income contribution is determined by the most serious offence which you face. For example the maximum income contribution for an offence of burglary is £6,731.

Capital/Savings/Equity Contributions

If you are found guilty or plead guilty in the Crown Court and your income contributions (if any were required) have not covered the defence costs in full you will have to make a further contribution if you have capital/savings/equity above £30,000.

If you are convicted at the Crown Court the LAA will establish whether a Capital Contribution Order should be issued.

If you were not “passported” through the Means Test, i.e. in receipt of benefits, you will have your capital and equity assessed.

A Capital Contribution Order will only be made if the costs of your case have not already been met by any income contributions.

Private

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

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. This quote would include an estimate of your barrister’s fees

Defence Costs Order in the Crown Court

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.

However in order to be eligible for a Defence Costs Order in the Crown Court you must have applied for Legal Aid and been refused it on the grounds of financial ineligibility.

If you applied for Legal Aid but decided you did not want to make the contributions calculated by the Legal Aid Agency and decided to fund the case privately, then you will not be able to apply to recover any costs.

If you did not apply for Legal Aid at any point then you will not be able to apply to recover any costs.

Allington Hughes does hold the relevant Legal Aid contract but some firms do not, meaning you would not be able to recover any costs.

If you are concerned about potential court proceedings or wish to discuss us representing you at court 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.