Representation and funding
The criminal courts are a world within a world, which most of us have glimpsed on TV. They have their own rules and procedures which can be confusing or even intimidating to an outsider. It often seems as though an elaborate game is being played, but the stakes are high, your freedom or livelihood may be at risk, and it makes sense to secure the help of a knowledgeable insider.
Criminal lawyers fall into two categories:
1. Solicitors, who will be your first point of contact, see clients, take instructions, prepare cases and appear in the Magistrates' Court. Some solicitors with a higher qualification also appear in the Crown Court.
2. Barristers specialise in advocacy, mainly in the higher courts, and will be instructed by your solicitor on your behalf if necessary. Barristers work from chambers in central locations, while solicitors have offices that may be local to your home or to the court where you appear.
If you have not already seen a solicitor at the police station it is a good idea to consult one before your first court appearance, although you may have little time in which to do so. If you do not know of a solicitor your local Citizens' Advice Bureau or the court should have lists of local solicitors dealing with criminal work.
Legal services do not come cheap, and most defendants in the criminal courts rely on public funding to provide representation. This was known as the Legal Aid Scheme until recently. Free advice can also be obtained from local law centres, although they do not normally conduct cases in the criminal courts.
To be represented in court all defendants charged with imprisonable offences or in custody can seek the help of the court Duty Solicitor at their first appearance free of charge. This service is provided by a rota of independent local solicitors and is often the best way of obtaining advice and, if necessary, representation on a straightforward or minor case. However you can only use the services of the Duty Solicitor at one hearing in your case, usually the first hearing, and not at a contested trial.
If your case is at all serious or complex and you cannot afford a lawyer you will need to apply to the court for a Representation Order. In doing so you may nominate a lawyer of your own choice to represent you and you should seek his or her assistance in completing the application forms.
The court applies two tests in deciding whether to grant a Representation Order for Magistrates Court cases. Firstly, a ‘merits’ test to determine whether it is in the 'interests of justice’ for you to be represented at public expense. This means whether your case is serious enough or sufficiently complex. The basic threshold of seriousness is whether there is any risk of imprisonment. In the case of juveniles, the criteria are more relaxed.
If a Representation Order is refused on merits you can renew your application to the court in writing or orally in court.
Recently a second test, the means test, has been re-introduced in the Magistrates Court. Unless you are getting Income Support, income-based Jobseeker’s Allowance or Guarantee Credit, and provide your National Insurance number for this to be checked, you will be required to complete a lengthy statement of your finances. You will also need to provide documentary proof of your income and outgoings. You should take these, e.g. payslips, rent book etc, to a solicitor to help you complete the forms, which are not available from the courts.
If cohabiting, your partner’s finances will be added to yours and you will need to provide details and proof of these as well. Your partner will also need to sign the form unless he or she is involved in the case, for instance if you are accused of assaulting your partner.
If you are in custody when you sign the forms you can sign a ‘Statement of Truth’ instead of providing documents.
The signed forms must be given to the court, which will reject them if incomplete. A Means Test will then be carried out and you may have to ask the court to adjourn your case (put it off to a later date) if this has not been done by the date of your appearance, so that your solicitor can represent you.
The calculations are complex but broadly speaking, if you are left with no more than £60 a week, after tax ,National Insurance, housing costs, childcare and a living allowance for you and your family have been deducted, then you will be entitled to free Representation in the Magistrates Court, provided of course that your case passes the merits test.
If you do not qualify on means but cannot afford a Solicitor you can apply for a Review on the Grounds of Hardship.
The means test does not apply to Youths under 16, or under 18 if living at home or in full time education.
If granted a Representation Order there will be no charge to you for your defence costs in the Magistrates Court. However, if you plead Guilty, or are found Guilty, you will normally be ordered to pay a contribution to the Prosecution costs at the end of the case. Should your case proceed to the Crown Court you will be required to complete a further statement of means and may be ordered to pay a contribution to your defence costs in the Crown Court, as well as the prosecution costs, at the end of the case. However, this is very unlikely to happen if you are found not guilty.
At present there is no means test for the granting of a Representation Order in the Crown Court so if your case is sent straight there you will be assessed on the merits test alone. If your application was refused on means in the Magistrates Court and your case then progresses to the Crown Court you can make a further application without being means tested. However there are proposals to extend the means test to the Crown Court in the near future.
You may of course choose to pay privately for a lawyer to represent you whether or not public funding is available. Lastly, if you are not represented, you are still entitled to have a friend or adviser to sit with you in court to give you advice and help take notes. This person is referred to as a 'Mackenzie' friend, and cannot speak for you in court.
Criminal lawyers fall into two categories:
1. Solicitors, who will be your first point of contact, see clients, take instructions, prepare cases and appear in the Magistrates' Court. Some solicitors with a higher qualification also appear in the Crown Court.
2. Barristers specialise in advocacy, mainly in the higher courts, and will be instructed by your solicitor on your behalf if necessary. Barristers work from chambers in central locations, while solicitors have offices that may be local to your home or to the court where you appear.
If you have not already seen a solicitor at the police station it is a good idea to consult one before your first court appearance, although you may have little time in which to do so. If you do not know of a solicitor your local Citizens' Advice Bureau or the court should have lists of local solicitors dealing with criminal work.
Legal services do not come cheap, and most defendants in the criminal courts rely on public funding to provide representation. This was known as the Legal Aid Scheme until recently. Free advice can also be obtained from local law centres, although they do not normally conduct cases in the criminal courts.
To be represented in court all defendants charged with imprisonable offences or in custody can seek the help of the court Duty Solicitor at their first appearance free of charge. This service is provided by a rota of independent local solicitors and is often the best way of obtaining advice and, if necessary, representation on a straightforward or minor case. However you can only use the services of the Duty Solicitor at one hearing in your case, usually the first hearing, and not at a contested trial.
If your case is at all serious or complex and you cannot afford a lawyer you will need to apply to the court for a Representation Order. In doing so you may nominate a lawyer of your own choice to represent you and you should seek his or her assistance in completing the application forms.
The court applies two tests in deciding whether to grant a Representation Order for Magistrates Court cases. Firstly, a ‘merits’ test to determine whether it is in the 'interests of justice’ for you to be represented at public expense. This means whether your case is serious enough or sufficiently complex. The basic threshold of seriousness is whether there is any risk of imprisonment. In the case of juveniles, the criteria are more relaxed.
If a Representation Order is refused on merits you can renew your application to the court in writing or orally in court.
Recently a second test, the means test, has been re-introduced in the Magistrates Court. Unless you are getting Income Support, income-based Jobseeker’s Allowance or Guarantee Credit, and provide your National Insurance number for this to be checked, you will be required to complete a lengthy statement of your finances. You will also need to provide documentary proof of your income and outgoings. You should take these, e.g. payslips, rent book etc, to a solicitor to help you complete the forms, which are not available from the courts.
If cohabiting, your partner’s finances will be added to yours and you will need to provide details and proof of these as well. Your partner will also need to sign the form unless he or she is involved in the case, for instance if you are accused of assaulting your partner.
If you are in custody when you sign the forms you can sign a ‘Statement of Truth’ instead of providing documents.
The signed forms must be given to the court, which will reject them if incomplete. A Means Test will then be carried out and you may have to ask the court to adjourn your case (put it off to a later date) if this has not been done by the date of your appearance, so that your solicitor can represent you.
The calculations are complex but broadly speaking, if you are left with no more than £60 a week, after tax ,National Insurance, housing costs, childcare and a living allowance for you and your family have been deducted, then you will be entitled to free Representation in the Magistrates Court, provided of course that your case passes the merits test.
If you do not qualify on means but cannot afford a Solicitor you can apply for a Review on the Grounds of Hardship.
The means test does not apply to Youths under 16, or under 18 if living at home or in full time education.
If granted a Representation Order there will be no charge to you for your defence costs in the Magistrates Court. However, if you plead Guilty, or are found Guilty, you will normally be ordered to pay a contribution to the Prosecution costs at the end of the case. Should your case proceed to the Crown Court you will be required to complete a further statement of means and may be ordered to pay a contribution to your defence costs in the Crown Court, as well as the prosecution costs, at the end of the case. However, this is very unlikely to happen if you are found not guilty.
At present there is no means test for the granting of a Representation Order in the Crown Court so if your case is sent straight there you will be assessed on the merits test alone. If your application was refused on means in the Magistrates Court and your case then progresses to the Crown Court you can make a further application without being means tested. However there are proposals to extend the means test to the Crown Court in the near future.
You may of course choose to pay privately for a lawyer to represent you whether or not public funding is available. Lastly, if you are not represented, you are still entitled to have a friend or adviser to sit with you in court to give you advice and help take notes. This person is referred to as a 'Mackenzie' friend, and cannot speak for you in court.
