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12.16Investigations work is work done pre-charge or in the police station, and covers:
1Standard Crime Contract 2017 Specification para 1.3.•police station telephone advice;
•police station attendance;
•advice and assistance outside the police station;
•advocacy assistance:
•on a warrant of further detention;
•on an application to a magistrates’ court to vary police bail conditions;
•at an armed forces custody hearing;
•it is likely to be extended to oppose applications to prolong pre-charge bail under the Policing and Crime Act 2017.
Police station cases
Scope of work
12.17Police station work will consist of telephone advice, attendance in person at the police station, or both. It is generally available to anyone attending a police station, whether under arrest or as a volunteer, during the course of a criminal investigation.
2Standard Crime Contract 2017 Specification para 9.1. The exceptions to this rule are:
•where the matter falls within the scope of the Criminal Defence Direct scheme (eg arrests for non-imprisonable offences);
3Standard Crime Contract 2017 Specification para 9.9. and
•advice and assistance to a witness (which is covered in certain circumstances by the advice and assistance scheme).
4Standard Crime Contract 2017 Specification para 9.4. Police station work is not means tested.
5Criminal Legal Aid (General) Regulations 2013 Part 2 and Criminal Legal Aid (Financial Resources) Regulations 2013 Part 2.12.18Police station work can also be carried out post-charge, for example to deal with identification procedures, arrest on warrant or for breach of bail, or for caution or re-charge following discontinuance or dismissal. However, only post-charge work carried out at the police station can be claimed under the criminal investigations class of work,
6Standard Crime Contract 2017 Specification para 9.105. rather than as part of the claim in the criminal proceedings.
12.19For these purposes, a ‘police station’ is a place where a constable is present, and a ‘constable’ is an official with a power of arrest conferred by virtue of his or her office.
7Standard Crime Contract 2017 Standard Terms para 1.1 For example, an officer of HM Revenue and Customs (HMRC) is a constable, but a Department for Work and Pensions (DWP) benefit fraud investigator is not; therefore, a client arrested by HMRC is entitled to police station representation, but a client being interviewed by the DWP is not. However, such a client may be entitled to advice and assistance if the relevant criteria are met. See below for more on advice and assistance.
Case study
One of our clients has been invited to attend the DWP to be interviewed about an allegation that he has been working and claiming benefits. What should I do?
This will be an interview under PACE (Police and Criminal Evidence Act 1984) and so a criminal lawyer should attend. Since an officer of the DWP does not have a power of arrest, your client would not be entitled to police station legal aid. However, subject to means, your client would be entitled to advice and assistance. You should get the client to sign a CRM1 and CRM2 and provide proof of means, and then you will be funded to attend the interview with the client. You will have a costs limit of £273.75, but this can be extended on application to the LAA if necessary.
Sources of work
12.20All requests by persons seeking advice under the police station scheme must, to qualify for public funding, be placed through the Defence Solicitor Call Centre (DSCC).
12.21The call centre records the basic details of an alleged offence before passing the case on to the own solicitor requested, the duty solicitor or Criminal Defence Direct. Criminal Defence Direct provide telephone advice to clients detained for less serious matters such as drink-driving offences, non-imprisonable offences, breaches of bail and warrants.
12.22Where an attendance is likely to be necessary, Criminal Defence Direct will not deal with the matter and the case will be passed to the own solicitor (if requested) or the duty solicitor.
12.23However, you may also be contacted direct by a third party, for example the relative of a client, and requested to take on the case. You may also be contacted by a client direct, for example a client who is aware that the police are looking for him or her and wants to surrender. In such a situation you can take on the case and provide telephone advice and attendance as appropriate, but must report to the call centre that you have taken the case.
8Standard Crime Contract 2017 Specification para 9.20.Case study
My client’s wife phoned to say that he has been arrested for theft, and wants me to go to the police station. Can I go?
Yes. You can attend the police station when instructed to do so by a third party. However, you must notify the DSCC that you have taken the case. You must notify them before you contact the client and obtain a reference number. You must notify the DSCC in advance for third party instructions, and within 48 hours where you are at a police station and instructed direct, or where a client instructs you direct to attend a surrender or bail date. The 48 hour time limit, which includes weekends and bank holidays, is strictly enforced.
Permitted work
12.24Whatever the source of the case, you should consider whether or not to attend the police station. Attendance at the police station is mandatory where:
•the client has been arrested and is to be interviewed;
•there is to be an identification procedure (except a video parade, attendance at which is discretionary
9Standard Crime Contract 2017 Specification para 9.40.);
•the client complains of serious maltreatment by the police.
10Standard Crime Contract 2017 Specification para 9.38. 12.25You cannot claim for payment for attendance at the police station where:
•the client has been arrested solely for non-imprisonable offences;
•the client has been arrested on a warrant for failure to appear unless you have clear documentary evidence that would result in the client’s release, eg a bail form showing that the client is not in fact in breach of a condition;
•the client has been arrested for offences under the Road Traffic Act 1988 ss4, 5, 6, 7 and 7A (driving whilst unfit, drunk in charge of a vehicle, driving with excess alcohol or failure to provide a specimen).
11Standard Crime Contract 2017 Specification para 9.9. •The client has been detained in relation to breach of police or court bail conditions.
12.26However, attendance in a prohibited case will be permitted (or mandatory, as the case may be) if one of the exceptions apply:
•there is to be an interview or identification procedure;
•the client requires an appropriate adult;
•the client is unable to communicate over the telephone;
•the client complains of serious maltreatment by the police;
•the client is being investigated for an additional offence not covered by the above list;
•you are already at the same police station (but in this case you may only claim the Telephone Advice Fixed Fee);
•the advice relates to an indictable offence;
•the request is identified as a ‘Special Request’ by the DSCC.
12Standard Crime Contract 2017 Specification para 9.10. A special request will be identified by the DSCC as such; for instance because Criminal Defence Direct considers an attendance to be required
13Standard Crime Contract 2017 Specification para 1.2. In all other cases, attendance at the police station is at your discretion, and you should consider whether the ‘sufficient benefit’ test is met. This is the merits test for police station work and states that work may only be done where ‘there is sufficient benefit to the client, having regard to the circumstances of the matter, including the personal circumstances of the client, to justify work or further work being carried out’.
14Standard Crime Contract 2017 Specification paras 1.2 and 3.10–3.16.12.27The test would be automatically satisfied where the client has a right to advice under PACE, or where the client is a volunteer, or under equivalent military legislation – but only in relation to initial advice; you must apply the test to determine the extent of advice, and particularly whether attendance (as opposed to telephone advice) is necessary.
15Standard Crime Contract 2017 Specification para 9.14.12.28Where you intend to attend the police station, and it is not one of the mandatory attendances outlined above, you should be satisfied that the attendance is necessary for the purpose of giving advice that could not be given over the telephone, and is expected to progress the case materially. Specifically, the contract says that it might be reasonable to remain at the police station post-charge to provide advice or make representations on bail, but unless the client is particularly vulnerable it would not be reasonable to stay for photographs, fingerprints and DNA samples.
16Standard Crime Contract 2017 Specification para 9.16.Who may carry out work?
12.29Although almost all work comes through the Defence Solicitor Call Centre, there is a distinction between own client and duty work – own client being cases where you or your firm were specifically requested, and duty work where the client requested the duty solicitor and the case was allocated to you.
12.30In order to carry out police station work, you must be accredited and registered by the LAA. Only an accredited person may undertake duty work.
17Standard Crime Contract 2017 Specification para 9.28. An accredited representative is a person who has passed the police station qualification, which is administered by the LAA and consists of a two-part portfolio of cases, an oral examination known as the critical incidents test and a written examination (which need not be taken by a representative who has a legal qualification).
12.31To become a probationary representative you must pass the written examination (if required) and part one of the portfolio; you then have one year to pass the remaining elements to become fully accredited. The accreditation process is no longer bypassed by qualification as a solicitor; everyone must be accredited to do duty solicitor police station work. The training and quality assurance of probationary and accredited representatives must be documented.
18Standard Crime Contract 2017 Specification para 9.33.12.32To do own client work, a person must either be a solicitor or be accredited or a probationary representative. Probationary representatives cannot do duty cases, and cannot do cases where the offence under investigation is indictable only; fully accredited representatives can do all cases.
19Standard Crime Contract 2017 Specification paras 9.26–9.37. See chapter 19 for the obligations of those who manage and supervise representatives.
Starting a case
12.33Police station work is not means tested, and the client is not required to complete any application form.
12.34A case will be initiated when you are contacted, either by the DSCC or by the client or a third party, and requested to provide advice.
12.35When you take on a case where the client has been arrested and is at the police station, you must make first contact with the client within 45 minutes of being notified of the case.
20Standard Crime Contract 2017 Specification para 9.23. This is a target set out in the contract which should be met in at least 80 per cent of cases, and to enable monitoring of the target,
21Standard Crime Contract 2017 Specification para 9.24. your file should contain a note of the time the case was accepted and the time of first contact, together with a note of why contact was not possible inside the 45 minutes, if applicable.
22Standard Crime Contract 2017 Specification para 9.25.12.36Where a client has previously received police station advice on the same matter within the past six months from another firm, you cannot provide further advice on the same matter unless:
•there is a gap in time and a material change in circumstances between the first and second occasions; or
•the client has reasonable cause to transfer; or
•the first supplier confirms they will not make a claim.
23Standard Crime Contract 2017 Specification para 9.67. 12.37You should make reasonable enquiries of the client to see if there has been previous advice, and if there has been and the exceptions are not met, should not take the case and cannot make a claim. Reasonable cause for transfer will not be made out where the client finds sound advice unpalatable and wants a second opinion.
24Standard Crime Contract 2017 Specification para 9.70 and Criminal Legal Aid (Remuneration) Regulations Sch 4 para 3(4) as amended by Criminal Legal Aid (Standard Crime Contract) (Amendment) Regulations 2017 SI No 311. Where you take on a transfer case, you should note the reason on the file.
Conducting work
12.38Once you have accepted a case, you can continue to do such work as is necessary and complies with the requirements above. Where the client is bailed to return to the police station, attendance at the bail to return is funded on the same basis as the initial attendance and will be included in the same fixed fee – you should ensure that the sufficient benefit test is satisfied and that you are permitted to attend.
12.39There is no costs limitation for police station work.
12.40Police station work will come to an end at the point the client is charged or cautioned, the police decide to take no further action, or the case is otherwise ended. A bill should be submitted at that point
25Standard Crime Contract 2017 Specification para 9.104. – see chapter 14 for details of costs and the billing procedure.
Warrants of further detention
12.41Where a client is detained and the police seek an extension to the detention under PACE 1984 ss43 or 44, or under Terrorism Act 2000 Sch 8 para 29 or para 36, you can provide advocacy assistance to represent the client at the hearing of the application.
26Standard Crime Contract 2017 Specification para 9.141.12.42Advocacy assistance is not means tested
27Criminal Legal Aid (Financial Resources) Regulations 2013 Part 2; Standard Crime Contract 2017 Specification para 9.143. and the client is not required to sign an application form, but you should record on the file that you have granted funding.
28Standard Crime Contract 2017 Specification paras 9.144–9.146. The scope of advocacy assistance includes any reasonable preparation and follow-up work.
29Standard Crime Contract 2017 Specification para 9.147. However, counsel may only be instructed in applications before the High Court or a senior judge (effectively, only in terrorist cases).
12.43Similar provisions apply to armed forces custody hearings.
30Standard Crime Contract 2017 Specification paras 9.154–9.166.Applications in relation to police bail
12.44In certain circumstances, where the police have the power to impose bail conditions (or ‘street bail’ conditions), or wish to extend bail limits, a client can make an application to a magistrates’ court to vary the conditions or oppose the extension.
31PACE 1984 ss30CB and 47(1E).12.45You can grant advocacy assistance to represent such a client.
32Standard Crime Contract 2017 Specification para 9.167. It is not means tested,
33Criminal Legal Aid (Financial Resources) Regulations 2013 Part 2. and no application form is required, though a note of the grant should be made on the file.
34Standard Crime Contract 2017 Specification para 9.169. The scope of advocacy assistance includes any reasonable preparation and giving of any advice on appeal.
35Standard Crime Contract 2017 Specification para 9.171. However, counsel may not be instructed.
36Standard Crime Contract 2017 Specification para 9.172.Advice and assistance
12.46Advice and assistance can be given to a client who meets the means and merits tests, to advise and assist in respect of a criminal investigation – that is, before the client is charged, requisitioned or summoned for an offence. It will include representing the client at interviews with non-police agencies, such as the Department for Work and Pensions in a benefit fraud matter, as well as general advice, case preparation and related work.
Means test
12.47In order to qualify for advice and assistance, the client must pass the means test.
37Criminal Legal Aid (Financial Resources) Regulations 2013 reg 8. There are two elements to the test – income and capital – and the client must pass both parts. You are responsible for assessing the client’s means and deciding whether the test is met.
12.48Where the client is directly or indirectly in receipt of any of the following benefits, he or she automatically qualifies for advice and assistance without the need for an assessment of income or capital:
•income support;
•income-based jobseeker’s allowance;
•income-based employment and support allowance;
•guarantee pension credit;
•universal credit paid under Part 1 of the Welfare Reform Act 2012.
38Criminal Legal Aid (Financial Resources) Regulations 2013 reg 2. A person is indirectly in receipt of a benefit if they are included in another person’s claim, eg if a partner receives it on the basis of a couple.
12.49‘Capital’ means all the client’s assets and resources, excluding household furniture and effects, clothes and the tools of the client’s trade. Where the client owns property, the value to be taken into account is the equity after disregarding any mortgage, though only up to the value of £100,000. The first £100,000 of any equity is also disregarded, and the remainder is the capital value.
39Criminal Legal Aid (Financial Resources) Regulations 2013 reg 13. Where the client has a partner, the partner’s capital should also be taken into account.
Case study
My client has a flat worth £120,000, with a mortgage of £90,000. He has £650 in savings and his wife has £300 in her account. Is he eligible on capital?
The flat is worth £120,000. Disregard up to £100,000 of the mortgage – so the equity is £30,000. Disregard up to £100,000 of equity – so the capital is nil. Aggregate his and his wife’s savings, so the total capital is £950, so the client is eligible on capital.
12.50‘Income’ means all income from any source which the client may reasonably expect to receive within the seven days up to and including the day of his or her application,
40Criminal Legal Aid (Financial Resources) Regulations 2013 reg 6. with the following exceptions:
•any tax and National Insurance paid;
•any contributions paid under Part I of the Social Security Contributions and Benefits Act 1992;
•disability living allowance;
•attendance allowance;
•constant attendance allowance;
•any payment out of the social fund;
•so much of any back to work bonus received under section 26 of the Jobseekers Act 1995 as is, by virtue of that section, to be treated as payable by way of a jobseeker’s allowance;
•any direct payments made under regulations made under sections 31 to 33 of the Care Act 2014 (direct payments), section 49(3) of the Children and Families Act 2014 (personal budgets and direct payments); section 8(1) of the Carers and Direct Payments Act (Northern Ireland) 2002 (direct payments) or sections 50 to 53 of the Social Services and Well-being (Wales) Act 2014;
•any reasonable living expenses provided for as an exception to a restraint order under section 41 of the Proceeds of Crime Act 2002;
•any personal independence payment paid under Part 4 of the Welfare Reform Act 2012 Act; and
41Criminal Legal Aid (Financial Resources) Regulations 2013 reg 11. •any payments made under regulation 17 of the Universal Credit (Transitional Payments) Regulations 2014 (reg 17 of the 2016 NI Regs).
Where the client has a partner, the partner’s income should also be taken into account.
42Criminal Legal Aid (Financial Resources) Regulations 2013 reg 9. Where the client has a partner or other dependant member of the household, you should deduct the standard allowance for each member.
43Criminal Legal Aid (Financial Resources) Regulations 2013 reg 12.12.51The thresholds for capital and income, and the standard dependants’ allowances, can be found on the keycard at
www.gov.uk/guidance/criminal-legal-aid-means-testing. The levels are very occasionally up-rated and you should check the website for the most up to date figures.
12.52Evidence of the client’s means will be required, and should be retained on file.
44Standard Crime Contract 2017 Specification para 9.115. There is a power to assess means without evidence where it is not practicable to obtain it before the form is signed, but it should be obtained at a later stage and if it is not, any claim should be limited to the equivalent of two hours.
45Standard Crime Contract 2017 Specification paras 3.5–3.8. In exceptional circumstances, you may dispense with evidence altogether if the client’s circumstances make it impracticable to obtain it at any point.
46Standard Crime Contract 2017 Specification paras 3.6–3.7.Merits test
12.53Assuming the client qualifies on means, you should go on to consider whether there is merit. The merits test is the ‘sufficient benefit’ test – is there ‘sufficient benefit to the client, having regard to the circumstances of the matter, including the personal circumstances of the client, to justify work or further work being carried out’.
47Standard Crime Contract 2017 Specification para 3.10.12.54The sufficient benefit test must be applied throughout the case to determine the extent of the advice required,
48Standard Crime Contract 2017 Specification paras 3.11 and 3.15. and the provision of advice must cease if it becomes apparent that the test is no longer satisfied.
49Standard Crime Contract 2017 Specification para 3.12.The application
12.55The client must complete and sign the application forms – CRM1 and CRM2 – and you should retain the original copies of them on file. Advice and assistance is granted by you, with no application to the LAA required, and so the presence of the signed forms on file is sufficient to effect the grant.
12.56The usual rule is that the client comes to you to sign the forms. However, there will be situations where that is not possible, and therefore the contract allows for exceptions where certain criteria are met:
•A
postal application can be accepted where it is reasonable to do so (for example, where there is good reason why the client cannot attend your offices). However, you cannot accept a postal application where a client is temporarily resident outside the European Union and the matter can be delayed until they return, or another person in England and Wales could apply for advice and assistance on the same matter.
50Standard Crime Contract 2017 Specification para 4.31. •Where the client cannot attend immediately but can telephone you,
telephone advice can be given before the form is signed51Standard Crime Contract 2017 Specification para 9.121. and you can claim for that advice. In order to qualify, there has to be good reason why the client cannot attend the office, but the client must later sign the form and be eligible. This power can be combined with one of the others; for example, you could give telephone advice to a client in prison and then post the form to him or her.
•Where the client lacks capacity, you can accept
an application on behalf of a child or protected party (a person lacking mental capacity under the Mental Capacity Act 2005)52Standard Crime Contract 2017 Specification para 4.25. from another person, such as a parent, guardian, deputy or attorney, litigation friend, or any other person where there is good reason why one of the above-named persons cannot make the application. Again, the form will be signed by the authorised person but completed in the name of the client, and it will be the client’s means that should be assessed and evidenced.
•You can also accept
an application from a child direct53Standard Crime Contract 2017 Specification paras 4.28–4.30. where the client is entitled to defend proceedings himself or herself (which is true of almost all criminal work), or where you are satisfied that there is good reason why none of the authorised persons in the previous paragraph can make the application and the child is old enough to give instructions and understand the nature of the advice, or where the child is seeking police station advice only.
Where a client cannot attend the office for one of the good reasons outlined above, you may claim for outward travel expenses,
54Standard Crime Contract 2017 Specification para 9.122. and where the client is in custody, detention or hospital travel time
55Standard Crime Contract 2017 Specification para 9.123. for travelling to see the client before the form is signed in order to get the form signed.
12.57Where a client has received previous advice and assistance on the same matter within the last six months, there are restrictions on where you can accept a further application that would involve a change of solicitor.
56Standard Crime Contract 2017 Specification para 9.125. You cannot accept such an application unless:
•there is a gap in time and a material change in circumstances; or
•the client has reasonable cause to transfer from the first supplier; or
•the first supplier confirms they are making no claim; or
•previous advice and assistance was police station advice only.
You should make reasonable enquiries of the client to find out whether there has been previous advice and assistance. If so, and if you can justify the change of solicitor, there should be a clear note to that effect on the file.
Conducting work
12.58Once you have confirmed that the client is eligible and the form has been signed, you can proceed to work on the client’s case.
12.59Advice and assistance covers all necessary work (other than work in the police station) up to the point at which the client is charged with. summoned or requisitioned for an offence. It will cover you for attendance and advice to the client, case preparation, taking witness statements with a view to preserving memory or avoiding charge, and so on. It will also cover attendance at interviews with non-police agencies.
12.60Costs are limited to £273.75, though an application may be made to the LAA to extend that limit. The limit includes both time and disbursements. Where advice and assistance runs alongside police station work, you may not make a separate claim for the advice and assistance; all work pre-charge is covered by the police station fixed fee. However, the costs limit will continue to apply and you will need to be within the limit or have a granted extension for advice and assistance costs to count towards exceptionality. See chapter 14 for more on getting paid for criminal work.
Separate matters
12.61All work for a client that constitutes one matter will require one application and will lead to one claim. Where, however, work is a genuinely separate matter then a separate application and a separate claim will be required.
12.62All work in respect of a single investigation constitutes one matter and therefore one claim for costs, even if the investigation is subsequently extended to cover other offences. However, work may be treated as a separate matter if it amounts to a generally separate problem requiring separate advice,
57Standard Crime Contract 2017 Specification para 4.43. unless the client requires advice on one occasion only.
58Standard Crime Contract 2017 Specification para 4.46.Case study
I had a client who was arrested for theft and taken to the police station, where it was found he was also wanted for a separate incident of criminal damage, and he was further arrested for that. Is that one matter or two?
It depends on the outcome of the case. If he were charged with both offences and bailed to the same court date, that would be one matter and one claim. This is because the two allegations required advice on one occasion only. However, if he were charged with theft and bailed to return on the criminal damage, that would constitute two matters, if you could reasonably attend on the bail to return, since they would require separate advice on more than one occasion.