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;
Investigation
interviews under Caution after arrest or voluntary interviews with the Police or other investigative bodies
Court Proceedings
where a case is taken to court and heard either in the Magistrates’ Court or Crown Court.
If you have any questions regarding the information on any of the articles above, please contact our office on 01978 291000 or email criminal.team@allingtonhughes.co.uk
Interviews under Caution in accordance with the Police and Criminal Evidence Act (PACE) 1984
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 criminal 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 and 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 before attending, 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 with you in person.
Voluntary interviews under Caution conducted at a Police Station and conducted by a Police Officer
Due to fairly 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 Police Station and avoid any delays or having to rearrange 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 us 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 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.
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 if 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.
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 assessed.
Privately Funded
If you are not deemed eligible for Legal Aid we will be able to discuss 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 enquiry@allingtonhughes.co.uk so that we can make the relevant enquiries and offer our advice and assistance.
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;
- 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.
- 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.
- 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.
- There is a substantial legal issue which needs to be addressed, such as a point of law.
- 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.
- You will require witnesses to be traced and interviewed on your behalf, which have not already been spoken to by Police.
- The case will involve cross-examination of the prosecution witnesses which requires the expertise of a solicitor.
- 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.
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.
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.
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:
- National Insurance number and details of the benefits you receive
- Your charge sheet/postal summons/postal requisition
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.
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:
- Monthly instalments over 6 months. If payments are made on time, only 5 monthly contributions will be collected.
- 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.
Our Criminal Law Specialists
Our Criminal Law Funding department is composed of dedicated specialists committed to providing expert legal support.
