Criminal legal aid / contributions to legal aid

Aim of this information

The purpose of this information is to set out who might be eligible for legal aid, and also to look at who might be subject to paying for their legal aid costs.

Why is this important?

We believe that everybody should have the right to legal representation before they accept a caution, or when they go to court. However, it’s important to be aware that you may need to contribute towards the cost of your legal aid and this can have consequences long after the conviction.

Getting free advice at the Police Station

If you interviewed by the police under caution, or have been arrested, you are always entitled to free legal advice and representation. You will not incur any costs for this legal representation. In some circumstances, for example where you’re interviewed about a minor offence, that this right will be limited to advice over the telephone.

Getting advice in-between the Police Station and going to court

Often the police will release you from the police station to make further inquiries before a decision is made on whether to proceed with a case against you. You will usually be placed on pre-charge unconditional bail whilst these inquiries take place.

During this time, the legal representation you received in the police station won’t cover any work you want them to do. There are however, other ways that you may be eligible to have publicly funded legal advice and assistance. The availability of this particular type of legal representation depends on your financial position.

To get a representation order (what used to be called Legal Aid) an application has to be made to the court. Your legal representation will help you do this. If you didn’t receive any while you were at the police station, you should contact some criminal legal aid providers near to where you live.

The application is subject to two tests.

The first test is called the “interests of justice” test. Essentially, an order will only be granted if the court considers your case “serious enough” for you to need full legal representation.

Generally, if you are charged with a non-imprisonable offence your case will not pass this first test. Such offences include driving document offences, minor Public Order Act offences and being Drunk and Disorderly. However, even if you are charged with one of these types of offence, you may still be able to get representation – you should be guided by the solicitors you’re in touch with about this.

If you are charged with an “indictable only” offence (an offence that can only be heard in the Crown Court) your case will always satisfy this first test.

For those offences that fall in-between these two categories, your solicitor should be able to advise whether or not you’re likely to pass this first test.

The second test is a means test. This is based on your earnings. It’s not possible for us to give the details of this, as it’s quite complex. We suggest you speak with a criminal legal aid solicitors near to where you live and explain your financial situation.

There is no contribution system in with Magistrates Court legal aid; you are either financially eligible and you will receive a full representation order or you will not. If you are not eligible for legal aid, then you will have to consider whether you wish to pay privately, or represent yourself. There may also be other local schemes where you can get help with representation.

If your application for legal aid is refused you can appeal the decision. You would also be able to re-apply if your circumstances were to change after an unsuccessful application.

If you are convicted you may be required to pay a contribution to the prosecution costs of the case. This is regardless of whether you received legal aid.

If you appear in the Magistrates Court but are not eligible for a full representation order then you may be able to receive advice and assistance from the Duty Solicitor at court that day. This type of representation is limited to one hearing. However, they’re not able to assist if you are facing non-imprisonable offences.

If your case goes to the Crown Court for Trial you will automatically qualify for legally aid representation once you have completed an application form. After you have been means tested, you may have to pay towards the cost of your defence. This contribution could be from your income whilst the case is ongoing and/or from your capital, if you are convicted.

You will be asked to provide evidence of your income and assets. If you do not your payments could be increased which would result in you paying more towards your defence costs. If you do not tell the truth on your legal aid application you could also be prosecuted.

You will not have to pay towards the costs of your case if you are under 18 when you make your application or if you receive any of the following benefits: income support, income-based jobseekers allowance, guaranteed state pension credit or income related employment and support allowance.

You may have to pay towards the costs if your monthly disposable income is above a certain level. If this is the case, you will receive a Contribution Order from the court and you will have to make payments as required under the order. The first payment will be due within 28 days of your case being committed, sent or transferred to the Crown Court.

You must tell the court about any changes to your financial circumstances during your case because a change may affect the amount you have to pay towards your defence costs. If you do not think you can afford to pay, or you think a mistake has been made, you can ask for a review of the amount that the court has told you to pay. If you do this you will have to provide additional evidence of your financial position.

At the end of the case if you are found not guilty, any payments you have made will be refunded to you with interest. If you paid late or not at all and action was take against you, the cost of this action will be deducted from the refund.

If you are found guilty, you may have to pay towards your defence costs from any capital assests you have. You will be told at the end of your case if you have to make a payment from capital.

Capital Contribution Orders

A Capital Contribution Order (CCO) is an order to make over a lump sum payment to contribute towards the cost of your legal representation fees in criminal proceedings if you are unsuccessful in defending the prosecution.

An Interest Contribution Order is an order to make over some of your income.

CCO’s are recovered by debt collectors often posing as ‘bailiffs’, but the regulations (Regulation 19 of the Criminal Defence (Contribution Orders) Regulations 2009) do not (as yet) provide for levying on goods, breaking into homes or charging you fees.  For more information see here.

As part of a Capital Contribution Order the Legal Aid Agency (LAA) can ask you to agree to pay all your legal fees if you are found guilty at court. Fees would have to be paid from any capital you have and your family home will be taken into consideration.

If you don’t have immediate access to monies to pay the legal fees, the LAA could take out a charge on your home. This means that when you come to sell, your debt to the LAA will be paid directly to them from the proceeds of the sale.

A recent Freedom of Information request based on criminal cases since 2013 found:

table 1

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This page was last fully reviewed and updated in March 2017. If you’ve spotted something that needs updating, please let us know by emailing the details to advice@unlock.org.uk
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