Legal Aid - Law (WJEC)

Legal Funding:  At the time of arrival at the police station it is the custody officer’s duty to ensure a poster of available rights is accessible to the suspect to look at. This is a requirement under Code C. It is the job of the custody officer to inform D that legal advice is available privately and free of charge. There is a duty solicitor scheme in the police station which under s.58 Police and Criminal Evidence Act 1984, every person arrested on suspicion of a crime has the right to free legal advice, either in person or over the telephone.

Following the Access to Justice Act 1999 (AJA 1999), the Legal Services Commission (LSC) was divided  into two parts – the Community Legal Service (CLS) relating to civil matters and the Criminal Defence Service (CDS) relating to criminal matters. Established under s.12 Access to Justice Act 1999, the CDS is aimed at “securing that individuals involved in criminal investigation or proceedings have access to such advice, assistance and representation as the interests of justice require.” Its purpose is to maintain the fundamental principle that those facing a criminal trial should not be afraid that lack of resources and proper representation might lead to a wrongful conviction. The CDS came into operation in April 2001 andas cases are met on a demand basis, all cases which fit the merits criteria and the means test are funded.

Criminal legal aid is divided in a number of schemes, covering all types of criminal proceedings and pays for a solicitor to prepare a case and represent a client in court. It may also cover the cost of a barrister, particularly if the case is heard in the Crown Court. There are three levels of service offered by the CDS: advice and assistance, advocacy assistance and representation.

Under s.13 AJA 1999 the CDS offers duty solicitors who will offer completely free advice and assistance as is considered appropriate for individuals arrested/held in custody, available at the police station and Magistrates’ Court 24 hours a day. This is because s.58 Police and Criminal Evidence Act 1984 provides that any person detained at a station is entitled to consult a solicitor privately, and should be informed of this entitlement by the police. This can include general advice, writing letters and getting a barrister’s opinion. There are some restrictions on this, such as where a suspect is detained for a non imprisonable offence and drink driving offences, or where they are in breach of their bail conditions. In such situations, only telephone advice will be available via ‘CDS Direct’. A duty solicitor must be LSC approved and have met the quality mark to ensure the standard of advice is acceptable. In some areas there is a lack of duty solicitors containing this quality mark.

Advocacy assistance covers the cost of a solicitor to prepare the case and initial court proceedings. This is mainly used for those individuals who would not be represented on their first court appearance because they do not have their own solicitor. Representation is arguably the most important aspect of help provided by the CDS. This applies once a suspect has been charged with an offence. It therefore covers the cost of a solicitor applying for bail, preparing a defence and representation by a solicitor in court (or barrister in Crown court).

Since the Criminal Defence Service Act 2006, for representation in the magistrates’ court there is now a means test, which is administered by the LSC. Representation is not available for anyone whose annual income exceeds £22,323. There is also a merits test which is known as the ‘interests of justice’ test. This is found in s.5 of schedule 3 AJA 1999 and states the criteria are, inter alia, whether if convicted D is likely to lose his liberty or livelihood or suffer serious damage to reputation; whether the case concerns a substantial point of law; whether D would be unable to understand proceedings or to state his own case though lack of knowledge or physical disability; whether the case requires expert cross examination/interviewing of witnesses on behalf of the client or whether it is in the interests of another person that the client is represented.

For representation in the Crown court, there is now (since 2010) a means test which eliminates those with a monthly disposable income of £283 or more from free representation. If they are acquitted, the money would be paid back with interest. The LSC estimates that only around 25% of Ds have to contribute to their defence costs. Those who are under 18 or on benefits will continue to get legal aid automatically in the Crown Court.

There is no fixed budget for criminal legal aid as it is impossible to predict the amount of suspected criminals needing representation each year and it would be against human rights to deny them legal assistance.

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