If you are eligible, criminal legal aid pays for advice and assistance from a solicitor for anyone being questioned by the police in connection with a criminal offence, advice and assistance in connection with any criminal matter (for example, preparing a case for court) and representation in court by barrister or solicitor.

At the moment advice in the police station is free to any person being questioned in connection with criminal offence irrespective of their means. Other than that, anyone wanting to apply for criminal legal aid is subject to a means test except those in receipt of Jobseekers’ Allowance or Employment Support Allowance. Different means testing is used depending on whether a person is in the magistrates’ or Crown Court. The threshold is set relatively low with anyone earning just over annual minimum wage being subject to a means test.

Criminal legal aid is also subject to an ‘interests of justice’ test. This test considers, for example, whether a person faces imprisonment or whether they face losing their livelihood. In the Crown Court when the defendant may often face a more severe penalty than the magistrates’ court, the interests of justice is automatically met. Means testing in the magistrates’ court combined with the interests of justice test results in around one 3rd of all defendants being granted legal aid.

Means testing in the Crown Court is relatively new (June 2010). According to the Legal Service Commission, it is expected to save the taxpayer £50m per year from 2013. Applicants get free legal aid if their income £3,398  or less (adjusted annual household disposable income) and the capital is less than £30,000. Initially, defendants in the Crown Court can ‘self-declare’ their income and capital position so that legal aid can be granted quickly.  Evidence must be provided within 14 days of submitting a completed application. Monthly contributions are paid for up to six months, depending on the length of their case or likely case costs. Defendants may also be asked to make a further contribution from their capital at the end of the case.

Defendants who are acquitted are refunded anything they have paid with interest.

Those convicted defendants in Crown Court cases that started before the introduction of means testing may be subject to a Recovery of Defence Costs Order (RDCO) after the trial concludes. If someone who received public funding has (in the Legal Services Commission’s words) ‘an aura of wealth’ and are thought to be earning more than the eligibility criteria for legal aid, the Legal Services Commission can ask the trial judge to make a Recovery of Defence Costs Order. A RDCO allows the Commision to recover part or all of the costs it incurred on behalf of the defendant in respect of their defence. In 2009/10, almost £1million was collected by the LSC in Recovery of Defence Costs Orders.

Author: Jon Robins

Jon is editor of the Justice Gap. He is a freelance journalist. Jon’s books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council’s journalism award (2015 and 2005) and is shortlisted for this year’s Criminal Justice Alliance’s journalism award

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