The Real Cost of Legal Aid

Are your legal aid contributions too expensive? Am I eligible for legal aid? What are the alternatives to legal aid? All of these questions may arise when a person is charged with a criminal offence.

This article will examine eligibility for legal aid for criminal cases in the crown court and the often unexpected costs for the defendant even if they have been granted funding.

Eligibility:

Eligibility for legal aid is a two stage test, firstly the interests of justice (always satisfied in crown court proceedings) and secondly the means test.

There is automatic eligibility, known as ‘passporting’, in the following situations:

The means test is always satisfied if the defendant receives:

• Income Support
• Income Based Jobseeker’s Allowance
• Guarantee State Pension Credit
• Income Related Employment and Support Allowance
• Universal Credit

Defendants under the age of 18 on the date that they signed the application are also ‘passported’.

For the crown court the means test amounts to an assessment of annual household disposable income. If a defendant’s annual household disposable income is under £37,500 they will be eligible for legal aid.  

Eligibility for legal aid does not amount to the provision of free representation.  If the defendant’s annual household disposable income is over £3,398 but under the £37,500 eligibility threshold they will be entitled to legal aid but will be required to make contributions to the cost of their representation.

The contribution figure is 90% of the disposable income amount. The payments are on a monthly basis capped at a maximum of six.

This potentially sizeable contribution is to be paid in one of two ways. The first is monthly, if this is done punctually each month five payments will be taken, if the payments are not on time the maximum of six payments may be payable.  The second is that it is possible for the defendant to pay five payments in one lump sum no later than the date that the first payment is due.

Payments are due from 28 days after the case is sent to the crown court.

Capital and Equity Contribution:

Should the income contributions of a defendant in the crown court who has been found guilty not cover the cost of their representation they may be required to pay an additional amount from capital and equity that they hold over £30,000.

The £30,000 threshold can be removed, this is known as a capital sanction.  A capital sanction will be imposed when it is proportionate and fair, when there has been wilful resistance to providing evidence, and there is reason to believe that the defendant has the funds or assets to pay towards contribution.

Private Funding vs Legal Aid

The fact that eligibility for legal aid often does not provide cost free legal representation poses the question as to whether a better option would be to privately fund the case if possible.

A contribution amount could place the cost of representation through legal aid relatively close to the cost of the services of a private direct access barrister (a barrister that is qualified to act without a solicitor and deal with the client direct, therefore saving the cost of instructing a solicitor and counsel). 

There are a number of pros and cons to both legal aid and private funding:

If a legal aid funded defendant is found not guilty they will be reimbursed for their contribution payments plus interest. In order for a privately funded defendant to claim back their costs they must, pursuant to s.16A of the Prosecution of Offences Act 1985, have applied for legal aid and been assessed as ineligible. In this situation the defendant can claim back their costs capped at the legal aid rate.

A clear benefit of private funding is both the flexibility and quality of service that can be provided. A privately funded barrister is likely to be able to have more contact with their client by means of correspondence and conferences. In addition, privately funding a direct access barrister allows a defendant to seek legal advice from the person who will ultimately represent them in court as early as the pre charge stage. Early contact with trial counsel allows for quality case planning and vital strategic advice about important decisions from the outset. For example, it is counsel who will have to deal with inadvertent damage done to the defence case during a police interview and so there are clear benefits in receiving advice from that barrister as soon as possible when criminal proceedings are anticipated.

Should you find yourself facing a criminal matter it is vital that you obtain legal representation as soon as possible. Quentin Hunt is an experienced criminal barrister who has an excellent track record of getting results for clients charged with even the most serious offences. Contact Quentin for a free initial conversation about your case.