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Legal Aid for Criminal Matters
17 Dec 2018
A client contacted me a few days ago under the impression that Legal Aid was no longer available for criminal proceedings.
If that is a common misconception then it is certainly something that should be quickly corrected.
1. Legal Representation at a Police Station interview under caution (or elsewhere if the interview is being conducted by a Police Officer) is always available free of charge regardless of the financial circumstances of the suspect and regardless of the seriousness or otherwise of the allegations.
2. Legal Representation at Magistrates Court and/or Crown Court hearings is available if the case meets the interests of Justice Criteria and the Defendant satisfies a financial eligibility test.
A case should meet the interests of Justice Criteria if:
a) It is likely the Defendant will lose his liberty or
b) The Defendant is already subject to a Community penalty (or a suspended prison sentence) or
c) It is likely the Defendant will lose his livelihood and this may be avoidable or
d) It is likely the Defendant will suffer serious damage to reputation and this may be avoidable or
e) A substantial question of law may be involved or
f) The Defendant may not be able to present his or her own case (for example because of learning difficulty or a mental health condition) or
g) Potential defence witnesses need to be traced and/or interviewed or
h) The proceedings may involve expert cross examination of prosecution witness(es) or
i) It is in the interests of another person (for example the Complainant or a vulnerable witness) that the Defendant should not cross examine him or her directly
The Defendant should satisfy the financial eligibility test if:
a) He or she receives Income Support, Income-related ESA or Income-based Job Seeker’s Allowance or
b) He or she and any partner have a joint income before deductions of less than £12,475 per year. If such income exceeds £12,475 Legal Aid may still be available depending on dependants, outgoings, assets etc.
3. Even if a Defendant in court proceedings does not qualify for Legal Aid, the Court will sometimes appoint a Legal Representative under “Section 38” to cross examine Prosecution witness(es) at trial.
This is likely to arise if it appears to the Court that the quality of evidence given by the witness on cross examination is likely to be diminished if the cross examination is conducted by the Defendant in person and the quality of the evidence would likely be improved if the court appointed a Legal Representative to cross examine in the interests of the Defendant.
Such appointments are made most often in cases of alleged domestic violence, but can be made in any case where the criteria apply, for example where a witness or witnesses are vulnerable.
In Summary, Legal Aid is always available for Police interviews under caution and for representation in court proceedings Legal Aid is available is a substantial proportion of cases for a substantial proportion of Defendants. Even if a Defendant does not qualify for Legal Aid the Court may appoint a Legal Representative to cross examine a Prosecution witness(es) at trial.
So if you are to be interviewed by the Police, or if you are charged with an alleged offence, contact Grainger Appleyard. A free half hour interview will enable us to advise you as to whether you are likely to qualify for Legal Aid or for a “Section 38” appointment.
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