Criminal Legal Aid
Criminal legal aid is an important part of the criminal justice system. It helps make sure that a person accused of a crime can access legal advice and representation even if they cannot afford to pay for a solicitor themselves.
What is Criminal Legal Aid?
Criminal legal aid is public funding that helps pay for legal advice and representation in criminal cases. The Legal Aid Agency (LAA) administers criminal legal aid and contracts with solicitors and law firms to provide publicly funded legal services.
Legal Advice at the Police Station
Legal aid can apply from the very beginning of a criminal investigation. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), a person detained at a police station can receive free legal advice and assistance. This is usually provided by a duty solicitor. This is important because a suspect may not understand the legal consequences of the decisions they make at the police station. However, when a case progresses beyond the police station, different eligibility rules apply.
Whether a defendant can receive legal aid depends on the type of case and the applicable eligibility rules.
There are two tests:
1. The Means Test - This looks at the defendant's financial circumstances to determine whether the defendant can afford to pay for their own legal representation.
2. The Interests of Justice Test - This considers whether it is necessary for the defendant to have legal representation because of the circumstances of the case. It considers whether legal representation is necessary in the interests of justice.
The Means Test
The Means Test examines the defendant's financial circumstances. The aim is to establish whether the defendant has sufficient financial resources to pay for legal representation. The assessment can consider:
Gross income
Household circumstances
The number and ages of children
Housing costs
Childcare costs
Tax and National Insurance
Other relevant outgoings
Capital and equity (including savings and property), particularly in Crown Court cases
This means legal aid eligibility isn’t just based on salary. The wider household circumstances can affect the calculation. This is known as the ‘adjusted income’.
Some defendants can automatically satisfy the means test including those who are:
Under age 18
Universal Credit
Income Support
Income-based Jobseeker's Allowance
State Pension Guarantee Credit
Income-based Employment and Support Allowance
The Initial Income Test
Adjusted annual income | What happens? |
£12,475 or less | Passes the initial means test |
More than £12,475 but less than £22,325 | Full means test required |
£22,325 or more | Generally, fails the initial means test for the Magistrates' Court |
The Full Means Test
If the defendant's adjusted annual income is between £12,475 and £22,325 a full means test is carried out. This looks at the defendant's disposable income.
Income - allowable expenses = disposable income
Allowable deductions can include:
Tax
National Insurance
Housing costs
Childcare costs
Maintenance payments
An adjusted annual living allowance. The standard annual living allowance for a single person is £5,676, which is adjusted depending on household circumstances.
Criminal Legal Aid in the Magistrates' Court
For the Magistrates' Court, if the defendant's disposable income is £3,398 or less, they can qualify for legal aid. If their disposable income is above £3,398, they will generally not qualify.
Criminal Legal Aid in the Crown Court.
The rules are different in the Crown Court, where disponible income is:
£3,398 or less - the defendant can receive legal aid without an income contribution.
More than £3,398 but less than £37,500 - the defendant may still receive legal aid, but they may have to make an income contribution.
£37,500 or more - the defendant is not financially eligible for legal aid.
The assessment can also take account capital and equity including property and savings.
The Interests of Justice Test
This asks whether it is necessary for the defendant to have legal representation because of the circumstances of their case. Some of the factors that can be relevant include whether the defendant:
Could lose their liberty or livelihood.
Faces a complex legal issue.
Cannot understand or present their own case.
Needs witnesses to be cross-examined.
Could suffer serious damage to their reputation.
Some Crown Court cases automatically satisfy the Interests of Justice Test. This includes cases that are sent or transferred to the Crown Court.
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