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12.63The proceedings class runs from the point of charge/summons/requisition and includes all magistrates’ court work and most Crown Court proceedings. The main funding types in the proceedings class are:
•advice and assistance/advocacy assistance as court duty solicitor;
•representation orders.
12.64You must be able to work with CJS Online (including the Crown Court Digital Case System
1https://crowncourtdcs.caselines.co.uk/.) to receive and serve papers and applications.
2Standard Crime Contract 2017 Standard Terms 7.24.Court duty solicitor work
12.65A duty solicitor is a solicitor who has previously been a member of a Scheme under a previous contract or is a current member of the Law Society’s Criminal Litigation Accreditation Scheme and undertaken the police station qualification.
3Standard Crime Contract 2017 Standard Terms 1.1.12.66Duty solicitors whose firms have successfully bid in a procurement area will be allocated sessions as a duty solicitor whose role is to advise and assist otherwise unrepresented defendants.
12.67Technically speaking, two different funding types are available to a court duty solicitor – advice and assistance and advocacy assistance, to advise the client outside court and represent the client in court respectively. In practice, however, there is no distinction and a single consolidated claim is made for all work done for all clients on a duty day.
12.68Court duty advice is available to clients whose cases qualify for assistance without regard to their means, and no application form is needed. However, a file note of the details of the client and the case will be needed.
4Standard Crime Contract 2017 Specification para 10.6.12.69However, clients can only be represented where their case comes within the scope of the scheme:
•The duty solicitor must in all circumstances:
5Standard Crime Contract 2017 Specification para 10.7. •advise any client who requests it who is in custody;
•make a bail application where a client in custody requires a bail application and such an application has not previously been made by a duty solicitor;
•advise a client before the court in connection with ‘prescribed proceedings’ (civil orders deemed to be criminal for legal aid purposes). The full list of prescribed proceedings appears below at para 12.71.
6Criminal Legal Aid (General) Regulations 2013 reg 9. •cross-examine, save in exceptional circumstances, under Youth Justice and Criminal Evidence Act 1999 s38 if appointed to do so by the court.
7Standard Crime Contract 2017 Specification para 10.15. •The duty solicitor must also:
8Standard Crime Contract 2017 Specification para 10.8. •advise and represent any client who is in custody on a plea of guilty and wishes the case to be concluded that day;
•advise and represent any client before the court for failure to pay a fine or other sum or to obey an order of the court, and such failure may lead to the client being at risk of imprisonment;
•advise and represent a client not in custody in connection with an imprisonable offence;
•help a client in making an application for a representation order, whether the nominated solicitor is the duty solicitor or another solicitor;
•advise and represent a client seeking to vary police-imposed bail conditions pre-charge.
•The duty solicitor must not:
•represent in committal proceedings (note that although committals have been abolished, the 2017 Contract Specification still refers to committal hearings);
•represent at a not guilty trial or in relation to a non-imprisonable offence unless within the provisions above;
9Standard Crime Contract 2017 Specification para 10.9. •advise or represent a client who has had the services of a duty solicitor at a previous hearing in the proceedings (except where they are before the court this time as a result of failure to pay a fine or other sum or comply with an order imposed previously).
10Standard Crime Contract 2017 Specification para 10.10. As duty solicitor, with the client’s permission you are entitled to take on the case and apply for a representation order. However, you must not apply for a representation order where the case concludes on the day of the duty.
11Standard Crime Contract 2017 Specification para 10.14.Representation orders – magistrates’ court
Scope
12.70A representation order is the main method of funding proceedings in the magistrates’ court.
12.71It covers representation of clients charged or summoned for criminal offences, and also covers proceedings deemed to be criminal for the purpose of legal aid funding, as set out in Criminal Legal Aid (General) Regulations 2013 reg 9:
12As amended by the Criminal Legal Aid (General) (Amendment) Regulations 2015 and the Civil and Criminal Legal Aid (Amendment) Regulations 2015.(a)civil proceedings in a magistrates’ court arising from a failure to pay a sum due or to obey an order of that court where such failure carries the risk of imprisonment;
(b)proceedings under sections 14B, 14D, 14G, 14H, 21B and 21D of the Football Spectators Act 1989 in relation to banning orders and references to a court;
(c)proceedings under section 5A of the Protection from Harassment Act 1997 in relation to restraining orders on acquittal;
(d),(e) [Revoked.]
(f)proceedings in relation to parenting orders made under section 8(1)(b) of the Crime and Disorder Act 1998 where an order under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014 or a sexual harm prevention order under section 103A of the Sexual Offences Act 2003 is made;
(g)proceedings under section 8(1)(c) of the Crime and Disorder Act 1998 in relation to parenting orders made on the conviction of a child;
(h)proceedings under section 9(5) of the Crime and Disorder Act 1998 to discharge or vary a parenting order made as set out in sub-paragraph (f) or (g);
(i)proceedings under section 10 of the Crime and Disorder Act 1998 in relation to an appeal against a parenting order made as set out in sub-paragraph (f) or (g);
(j)proceedings under Part 1A of Schedule 1 to the Powers of Criminal Courts (Sentencing) Act 2000 in relation to parenting orders for failure to comply with orders under section 20 of that Act;
(ja)proceedings, in a youth court, in relation to a breach or potential breach of a provision in an injunction under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 where the person subject to the injunction is under 14.
(k)proceedings under sections 80, 82, 83 and 84 of the Anti-social Behaviour, Crime and Policing Act 2014 where a person has engaged in or is likely to engage in behaviour that constitutes a criminal offence on the premises;
(ka)proceedings under paragraph 3 of Schedule 2 to the Female Genital Mutilation Act 2003 in relation to female genital mutilation protection orders made other than on conviction and related appeals;
(kb)proceedings under paragraph 6 of Schedule 2 to the Female Genital Mutilation Act 2003 in relation to female genital mutilation protection orders made under paragraph 3 of that Schedule;
(l)proceedings under sections 20, 22, 26 and 28 of the Anti-social Behaviour Act 2003 in relation to parenting orders–
(i)in cases of exclusion from school; or
(ii)in respect of criminal conduct and anti-social behaviour;
(m)proceedings under sections 97, 100 and 101 of the Sexual Offences Act 2003 in relation to notification orders and interim notification orders;
(n)proceedings under sections 103A, 103E, 103F and 103H of the Sexual Offences Act 2003 in relation to sexual harm offences prevention orders and interim sexual harm offences prevention orders;
(o)[Revoked.]
(p)proceedings under sections 122A, 122D, 122E and 122G of the Sexual Offences Act 2003 in relation to sexual risk orders;
(q)[Revoked.]
(r)proceedings under section 13 of the Tribunals, Courts and Enforcement Act 2007 on appeal against a decision of the Upper Tribunal in proceedings in respect of–
(i)a decision of the Financial Conduct Authority;
(ia)a decision of the Prudential Regulation Authority;
(ii)a decision of the Bank of England; or
(iii)a decision of a person in relation to the assessment of any compensation or consideration under the Banking (Special Provisions) Act 2008 or the Banking Act 2009;
(s)proceedings before the Crown Court or the Court of Appeal in relation to serious crime prevention orders under sections 19, 20, 21 and 24 of the Serious Crime Act 2007;
(t)proceedings under sections 100, 101, 103, 104 and 106 of the Criminal Justice and Immigration Act 2008 in relation to violent offender orders and interim violent offender orders;
(u)proceedings under sections 26, 27 and 29 of the Crime and Security Act 2010 in relation to–
(i)domestic violence protection notices; or
(ii)domestic violence protection orders;
(ua)proceedings under sections 14(1)(b) and (c), 15 and 20 to 22 of the Modern Slavery Act 2015 in relation to slavery and trafficking prevention orders;
(ub)proceedings under sections 23 and 27 to 29 of the Modern Slavery Act 2015 in relation to slavery and trafficking risk orders, and
(v)any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.
Sub-paragraph (v) includes contempt other than in the face of the court in the High Court (
King’s Lynn and West Norfolk Borough Council v Bunning13[2013] EWHC 3390 (QB).) and county court (
Brown v London Borough of Haringey14[2015] EWCA Civ 483.).
Case study
My client is in arrears on council tax. She has been summoned to appear at the magistrates’ court. I cannot represent her. Can I advise her to see the court duty solicitor?
She is in principle eligible to see the duty solicitor, since she is before the court for failure to pay a sum due. Whether she can use the duty depends on whether she is at risk of imprisonment, which is the merits test. That will depend on the facts of her case and is more likely if she is in wilful default.
12.72An order also covers advice on appeal, and any related bail proceedings in the Crown Court or High Court.
15Standard Crime Contract 2017 Specification para 10.36.Financial eligibility
12.73Representation orders are means tested. Therefore a full application for a representation order (including means information) must be completed in all cases.
12.74Applications for representation orders are made to the LAA which will apply the means test to decide whether the client is eligible. However, you will need an understanding of the test in order to advise clients whether they are likely to be eligible. You can use the LAA’s calculator on its website
www.gov.uk/guidance/criminal-legal-aid-means-testing.
12.75The details of the test, together with the eligibility limits applying from time to time can be found in the Criminal Legal Aid (Financial Resources) Regulations 2013. The eligibility limits are very occasionally amended, and the discussion that follows is based on the limits applying in June 2016. There is guidance in the Criminal Legal Aid Manual and on the LAA website at
www.gov.uk/guidance/criminal-legal-aid-means-testing.
12.76Eligibility for a representation order is based solely on income – capital is not taken into account except where there is a conviction at the Crown Court. There are three stages to the test:
1)Is the client under the age of 18, or directly or indirectly in receipt of a passport benefit?
2)If not, is the client’s gross income below the initial test threshold?
3)If not, is the client’s disposable income below the full means test threshold?
If the answer to all three questions is no, the client is automatically not eligible.
12.77The means of the client’s partner should always be taken into account, unless the partner has a contrary interest in the proceedings (for example, is a victim or prosecution witness), together with the resources of any other person which have been or are likely to be made available to the client.
16Criminal Legal Aid (Financial Resources) Regulations 2013 reg 19.12.78The passporting benefits are:
17Criminal Legal Aid (Financial Resources) Regulations 2013 reg 2.•income support;
•income-based jobseeker’s allowance;
•guarantee state pension credit;
•income-related employment and support allowance (ESA);
•universal credit.
If the client is directly or indirectly in receipt of any of these, he or she will automatically be eligible for legal aid. Indirectly in receipt means that the client is included as a dependant on another person’s claim.
12.79If the client is not passported, you will need to proceed to the two-stage means test. If gross income is below the initial threshold, currently £12,457, then he or she is eligible. If gross income is over £22,325, he or she is not eligible.
18Criminal Legal Aid (Financial Resources) Regulations 2013 reg 18. If gross income is between those two figures, then a full means test to determine disposable income will be required. Following that test, if disposable income is less than £3,398 the client will be eligible. All figures are annual.
12.80‘Gross income’ is all income from all sources, excluding certain benefits:
19Criminal Legal Aid (Financial Resources) Regulations 2013 reg 20.•attendance allowance;
•severe disablement allowance;
•carer’s allowance;
•disability living allowance;
•constant attendance allowance;
•housing benefit;
•council tax benefit;
•payments out of the social fund;
•direct payments under the Care Act 2014, Children and Families Act 2014, the Direct Payments (Northern Ireland) Act 2002 and the Social Services and Well-being (Wales) Act 2014;
•exceptionally severe disablement allowance;
•service pensions paid under the Naval Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006;
•independent living funds payments;
•financial support paid for the foster care of a child;
•reasonable living expenses provided for as an exception to a restraint order under section 41 of the Proceeds of Crime Act 2002.
12.81Where the client has a partner or children in the same household, the gross income threshold increases according to the following weighting:
20Criminal Legal Aid (Financial Resources) Regulations 2013 Sch.
Person | Weighting | | |
Partner | 0.64 | | |
Child 0–1 years | 0.15 | | |
Child 2–4 years | 0.30 | | |
Child 5–7 years | 0.34 | | |
Child 8–10 years | 0.38 | | |
Child 11–12 years | 0.41 | | |
Child 13–15 years | 0.44 | | |
Child 16–17 years | 0.59 | | |
12.82To calculate the weighting, add the relevant factors to 1 and divide household income by the result.
Case study
My client earns £25,000 per year. He lives with his partner and their children, aged 6 and 3. Is he eligible for a representation order?
The client has a partner and two children, so the weighting is 1 + 0.64 + 0.30 + 0.34 = 2.28. Weighted income = £25,000 divided by 2.28 = £10,964.91. The gross income threshold is £12,457 and the weighted income is below that, so your client is eligible.
12.83Where the client is not eligible on gross income, but the (weighted) household income is below the upper threshold, you will need to consider whether the client is eligible on disposable income.
21Criminal Legal Aid (Financial Resources) Regulations 2013 reg 18.12.84‘Disposable income’ is gross income minus:
•tax and National Insurance paid;
•council tax paid;
•rent, mortgage, etc;
•childcare costs;
•maintenance payments;
•living expenses allowance.
12.85The living expenses allowance is a notional cost of living allowance, currently £5,676 per year. Where the client has a partner and/or children, the allowance is increased using the scale in the table above – so, in the case study, the allowance would be £5,676 x 2.28 = £12,941.28.
12.86Proof of means will always be required to accompany the application, except where the client is in custody, in which case a statement of truth (now incorporated within form CRM15) should be signed instead, or unless the client’s sole income is state benefits, in which case the courts can use their direct computer link with the Department for Work and Pensions to check against the client’s National Insurance number that the means information is correct.
12.87Where the client is not financially eligible, but can demonstrate that to pay privately would cause him or her real hardship, an application can be made for hardship funding. This application is made on form CRM16 to the LAA, and whether to grant is at the LAA’s discretion.
Merits test
12.88The merits test for the grant of representation orders is the ‘interests of justice’ test. The test is set out in LASPO s17(2), which says:
In deciding what the interests of justice consist of [in relation to any individual], the following factors must be taken into account–
(a)whether, if any matter arising in the proceedings is decided against the individual, the individual would be likely to lose his or her liberty or livelihood or suffer serious damage to his or her reputation,
(b)whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,
(c)whether the individual may be unable to understand the proceedings or to state his or her own case,
(d)whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and
(e)whether it is in the interests of another person that the individual be represented.
12.89Applications for representation orders should be made to the LAA, electronically. There is information about electronic submission of crime forms on the LAA website
www.gov.uk/guidance/legal-aid-crime-eform. Forms CRM14 and CRM15 (where required) should be completed and submitted. Where your client is not in custody, full evidence of means will be required. Where the client is in custody, the declaration in form CRM15 can be signed instead – this is a statement of truth that the information regarding means is accurate.
12.90An application should be submitted as soon as possible after charge. Orders are deemed to be granted on the date a properly completed application was received, which will be immediate if submitted electronically.
22Criminal Legal Aid (General) Regulations 2013 reg 23.12.91Where an application is granted, funding for the magistrates’ court element of the case is in place and preparation can begin.
12.92Where the application is refused on means, there is no right of appeal, although applicants can ask for a recalculation if they believe an error has been made, and a fresh application can be submitted at any time (if, for example, there is a change of circumstances). Where the application is refused on the merits, there is a right of appeal to the magistrates’ court, who will either confirm the original decision or grant an order.
23Criminal Legal Aid (General) Regulations 2013 reg 29.Funding in the absence of an order
Virtual courts
12.93Advocacy assistance is available for work conducted in a virtual court, whether the work is done at the police station or in a court.
24Standard Crime Contract 2017 Specification para 10.22. There is no merits and financial test.
25Standard Crime Contract 2017 Specification paras 10.23–10.24 Basic information must be recorded.
26Standard Crime Contract 2017 Specification para 10.26. Claims can be made if the case concludes at the first hearing or if the solicitor’s representation ends at that hearing.
27Standard Crime Contract 2017 Specification para 10.28. The Virtual Court Appearance Fee must not be claimed if a representation order is subsequently granted to the same firm of solicitors.
28Standard Crime Contract 2017 Specification para 10.29. Nor is the fee available if a representation order has already been granted.
29Standard Crime Contract 2017 Specification paras 10.30–10.31.Other pre-order costs
12.94The general rule is that no work can be done and no costs claimed until such time as a representation order has been granted.
12.95However, an order can be backdated so that a claim can be made for pre-order work where:
30Standard Crime Contract 2017 Specification para 10.40.•urgent work was required (defined as being a hearing within ten working days of taking initial instructions);
•there was no undue delay in making the application (that is, it was submitted no more than five working days after taking initial instructions); and
•an order is subsequently granted.
If all these conditions are granted, you are able to claim for work done from the time of initial instructions onwards – where you acted for a client in the investigations stage, from the point of charge onwards.
12.96Where an order is subsequently refused, you can nevertheless make a claim for work done in certain circumstances:
•Where the application is refused on means, an Early Cover
31Standard Crime Contract 2017 Specification para 10.122. fixed fee of £75 may be claimed if:
•the application was submitted by 9 am on the sixth working day following initial instructions;
•you have taken all reasonable steps to assist the client to complete the forms and provide appropriate evidence;
•no decision had been made on the application by the first hearing;
•you represent the client at the first hearing, and that hearing moves the case forward and any adjournment is justified; and
•the eventual decision is that the case passes the interests of justice test but the client fails the means test.
•Where the application has been refused on the merits, a Pre-Order Cover
32Standard Crime Contract 2017 Specification para 10.115. claim, limited to one hour’s work at preparation rates, may be made if:
•a qualified solicitor documents on file why it was believed the interests of justice test was passed; and
•no claim for early cover is made.
33Standard Crime Contract 2017 Specification para 10.116. •You can claim a means test form completion
34Standard Crime Contract 2017 Specification para 10.124. fixed fee of £25 where:
•you complete an application for representation on behalf of the client, whether or not it is actually submitted;
•you advise the client that although the interests of justice test is in all probability satisfied, the client would fail the means test and the file is marked accordingly;
•such advice was given within ten working days of charge or summons;
•the client does not go on to instruct you privately; and
•you do not make a claim for early cover or pre-order cover.
Disbursements and prior authority
12.97Disbursements can be incurred in accordance with the general rules – see above. When you are considering large expenditure, you can apply to the LAA for prior authority to incur the disbursement.
35Standard Crime Contract 2017 Specification para 5.27. The effect of prior authority is that, provided the expenditure does not exceed the terms or amount of the authority, no question can normally be raised as to it on assessment – in other words, you are generally guaranteed to be paid.
36Standard Crime Contract 2017 Specification para 5.29. If authority is refused by the LAA, or not granted in full, the application automatically goes before a Costs Assessor, but beyond that there is no appeal – though there is nothing to stop you making a further application at any time.
37Standard Crime Contract 2017 Specification para 5.28.12.98If authority is refused, that does not prevent you from incurring the disbursement, it merely means that you do not have the security of knowing it will be paid on assessment.
12.99Prior authority will be refused, and so will the disbursement if incurred, where it is a disbursement that should have come out of central funds, for example a court ordered report in consideration of a Mental Health Act disposal.
38Standard Crime Contract 2017 Specification para 5.35(a).12.100Where an application for prior authority has been made and refused, and the client nevertheless instructs you to incur the expense, you may accept payment from the client or a third party for that expense.
39Standard Crime Contract 2017 Specification para 8.43. This is an exception to the rule that legal aid is complete remuneration for the case and no additional charge may be made to the client or a third party.
40Standard Crime Contract 2017 Specification para 8.41.Counsel
12.101A representation order for work in the magistrates’ court is usually limited to representation by solicitor only. This does not mean that you cannot instruct counsel at all, it just means that counsel is not assigned by the order and therefore the rules regarding unassigned counsel apply.
41Standard Crime Contract 2017 Specification paras 10.46–10.55. This means that you are responsible for agreeing and paying counsel’s fees.
12.102In more serious cases, you can apply to the court for counsel (or an independent solicitor advocate) to be assigned. Where counsel is assigned, they are entitled to be paid directly by the LAA at the rates prescribed in the contract, though you should submit their bill with your own – see chapter 14.
12.103Whether or not counsel is assigned, you must provide them with the UFN and a copy of the representation order when briefing them.
42Standard Crime Contract 2017 Specification para 10.46.12.104For more details on the instruction of counsel, please refer to chapter 15.
Separate matters
12.105All work done in the proceedings class is described by the LAA as a case. Only one bill can be submitted per case.
43Standard Crime Contract 2017 Specification para 10.59. A case is all work done for all clients in respect of:
•one offence; or
•more than one offence where the charges are laid at the same time; or
•more than one offence where the charges are founded on the same facts; or
•more than one offence where the charges form a series of offences.
44Standard Crime Contract 2017 Specification para 10.69. 12.106‘Founded on the same facts’ covers situations where one charge is withdrawn and replaced by another, or where two charges are laid as alternatives.
12.107‘Series of offences’ means offences of a similar nature. For example, where a client is charged with two separate offences which could be tried together, that would constitute one case. Similarly, where two clients are charged with the same offence (assuming you act for both), that would also be one case. There is no hard and fast rule here; the contract does not offer definitive guidance and it is a matter for your judgment whether you decide there is one case or two.
45Standard Crime Contract 2017 Specification para 10.72.Co-defendants and conflict of interest
12.108Note that the Regulations say that ‘where an individual who is granted a right to representation is one of two or more co-defendants whose cases are to be heard together, that individual must select the same litigator as a co-defendant unless there is, or is likely to be, a conflict of interest’.
46Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 13. Therefore, if you are making an application for a representation order on behalf of a client whose co-defendant is separately represented, you should ensure that you demonstrate on the application form why there is a potential conflict requiring separate representation.
…the regulations are not intended to put solicitors in a position where they are asked by the court to act contrary to their professional responsibilities. If asked by the court for your reasons why you cannot act for both defendants, you must not give information which would breach your duty of confidentiality to your client(s). This will normally mean that you can say no more than that it would be unprofessional for you to continue to act.
12.110Therefore, you do not have to disclose reasons why a potential conflict of interest exists which prevents you from acting for more than one defendant. However, where such a reason exists you should make clear on the application that there is a (potential) conflict, to avoid you being appointed for both defendants, or to avoid delay while the court makes further enquiries.
Transfer cases
12.111Where the client wants to transfer from one solicitor to another, the court must agree to the transfer of the order.
12.112Transfers are governed by regulation, not by the contract. The regulations say that the court may grant an application to transfer where:
•the solicitor appointed under the order considers himself or herself under a professional duty to withdraw;
•there is breakdown in the relationship between solicitor and client such that effective representation can no longer be provided;
•through circumstances beyond his or her control, the authorised solicitor can no longer represent the client;
•there is some other substantial compelling reason.
48Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 reg 14. 12.113Note that any explanation will be strenuously tested by the courts. Solicitors must exercise a proper and independent judgment when considering the applicant’s grounds.
49R (Sanjari) v Birmingham Crown Court [2015] EWHC 2037 (Admin).Matter ends
12.114A matter ends, and a bill must be submitted, when the case comes to an end in the proceedings class. This will happen when:
•the case has concluded (for example, by acquittal, sentence or committal);
•it is known that no further work will be needed (eg where the client has transferred);
•it is unclear whether further work will be required but at least one month has elapsed since the last work was done;
50Standard Crime Contract 2017 Specification para 10.62. •the LAA notify you that the case is a VHCC (very high costs case); or
•the representation order is withdrawn.
51Standard Crime Contract 2017 Specification para 10.56. Representation in the Crown Court
12.115Cases in the Crown Court are generally funded by representation orders.
The merits test
12.116The merits test for a Crown Court representation order is the interests of justice test, just as in the magistrates’ court – see above.
52Criminal Legal Aid (General) Regulations 2013 reg 21; Standard Crime Contract 2017 Specification para 10.144.12.117Where a case goes from the magistrates’ to the Crown Court, except on appeal, the magistrates’ court representation order will automatically continue into the Crown Court,
53Criminal Legal Aid (General) Regulations 2013 reg 24. and no application to extend or amend the order is required (although additional supporting evidence as to means may have to be provided). Even if counsel were not assigned under the order in the magistrates’ court, once the case goes to the Crown Court the order is deemed to include representation by one junior advocate (that is, any advocate other than a QC) automatically.
54Criminal Legal Aid (General) Regulations 2013 reg 18.12.118For more information on the instruction of advocates in the Crown Court, see chapter 17.
Means testing
12.119Representation orders in the Crown Court are means tested. However, the means test takes into account both a client’s income and capital.
12.120Depending on their means:
•clients may be granted an order without any financial contribution;
•be required to make payments towards the cost of their representation either immediately or following the conclusion of their case, if they are convicted; or
•be refused legal aid.
55Criminal Legal Aid (Contribution Orders) Regulations 2013 SI No 483. 12.121Certain clients are still passported. These are the same clients who would be passported in the magistrates’ court, ie those under 18 or in receipt of income support, income-based jobseeker’s allowance, guaranteed state pension credit or income-related employment and support allowance (ESA) or universal credit.
12.122For those who are not passported, the client’s means must be considered. In the Crown Court, unlike in the magistrates’ court, this involves assessment of the client’s capital as well as income. The means test is the same as in the magistrates’ court save that if the household disposable income is £37,500 or more the applicant is not eligible for legal aid. The means test can be considered in two stages, as follows.
Income
12.123When the case becomes a Crown Court case, the client who is eligible with a contribution will be required to make monthly contributions towards the cost of their representation for the first five months after the case is sent to the Crown Court. Their annual disposable income will be divided by 12 and they will be asked to pay 90 per cent of the monthly figure each month for the first five months. Alternatively they can pay all five payments up-front in one lump sum.
12.124Late payment of any of the five monthly contributions will result in an additional month’s payment, ie the client will have to pay the same amount again for a sixth month.
12.125There is a cap on
income contributions which is determined by the type of offence. If a client’s contributions reach the maximum level they will be notified and they will not be required to make any further income contributions.
56Criminal Legal Aid (Contribution Orders) Regulations 2013 reg 16.12.126If a client’s case concludes within the first five months of being transferred to the Crown Court, they will not be required to continue paying income contributions.
12.127Assuming the case continues beyond five (or six) months from transfer to the Crown Court, the client will not be required to make any further contributions until the conclusion of their case.
12.128If the client is acquitted, they will not be required to make any further payments at all and their income contributions will be refunded in full with interest (currently set at a rate of two per cent annual compound interest). (Note that any costs associated with late payment may be deducted, and very occasionally a client may be required to make a contribution towards their defence costs where, for example, they have misled the prosecution or the court or brought the prosecution on themselves by their conduct. This would be a matter for the judge to decide.)
12.129However, if the client is convicted, their position will depend on the costs of their case. If the client’s income contributions have exceeded the actual costs of their case, the overpayment will be re- funded with interest (again subject to any deduction associated with late payment). However, if the income contributions are less than the actual costs incurred, the client’s capital will then be considered.
Capital
12.130A client will only be required to contribute from their capital
57Criminal Legal Aid (Contribution Orders) Regulations 2013 reg 27. at the conclusion of his or her case if:
•the client is convicted;
•any payments already made from income do not cover the client’s defence costs; and
•the client has more than £30,000 of assets (eg savings, equity in property, shares or Premium Bonds).
58Criminal Legal Aid (Contribution Orders) Regulations 2013 reg 28. Not only can this result in a further payment towards profit costs but significantly towards high cost disbursements.
12.131A client with less than £30,000 worth of assets will not be required to make any further contribution even if the client’s income contributions have not covered his or her defence costs. (Note, however, that this threshold may be removed if evidence of the client’s assets has not been provided.)
12.132A client with more than £30,000 worth of assets whose income contributions have not accounted for the full costs, will be required to make up the shortfall from their assets. The costs may be recovered in various ways. For example, the LAA may apply an interest-bearing or non-interest-bearing charge to a property or, as a last resort, apply for an order for sale.
Applications
12.133If the order was not granted at the magistrates court stage, Crown Court means testing means that a complete application for a representation order (forms CRM14 and CRM15 when appropriate) must be submitted to the LAA.
12.134The same rules apply in the Crown Court as in the magistrates’ court regarding applications from children and vulnerable adults.
12.135A major difference between applications for funding in the magistrates’ court and in the Crown Court is that clients who are in custody cannot self-declare as to their means when their case is in the Crown Court.
12.136This does not mean that all evidence (payslips, bank statements, tax returns, share certificates and so on) must be provided with the initial application, although the CRM15 must contain all of the required information. Provided the completed forms have been submitted, a representation order will be issued. The client then has 14 days in which to provide the required documentary evidence. If the required documents are not provided in this time, sanctions may be imposed with respect to both income and capital:
•If evidence of income is not provided, the client’s monthly contribution could increase to £900 or 100 per cent of the client’s monthly disposable income, whichever is higher.
•If evidence of capital is not provided (or the information provided is subsequently found to be incorrect), the LAA may remove the £30,000 capital threshold and require a client who has less than this amount in capital to pay towards the costs of their defence.
12.137Where the evidence required is over and above what would normally be required for a magistrates’ court legal aid application, you may be able to claim an evidence provision fee for helping the client to provide this evidence. For standard applications a fee of £45 plus VAT can be claimed. For more complex applications, involving five or more pieces of evidence, or a self-employed client whose application is referred to the National Crime Team, a fee of £90 plus VAT can be claimed.
12.138When the completed application has been assessed, the client will be issued with a Contribution Notice or Order alongside the representation order, detailing how much they will be required to pay and the sanctions for late or non-payment.
12.139A client can also apply for a review on the grounds of hardship if they feel they have higher than usual outgoings or would suffer financial hardship as a result of the means assessment. A completed form CRM16 must be submitted. This can be submitted either at the same time as the CRM14 and CRM15 forms, or afterwards.
Assessing case costs
12.140Case costs in the Crown Court will vary considerably, depending on the type of case, the volume of evidence, the need for expert witnesses and so on. Therefore at the outset of a case it may be difficult to foresee whether a client’s contributions will match the actual case costs.
12.141The cap imposed on income contributions is intended to prevent clients from paying substantially more than the likely case costs up front, although it should be noted that according to the LAA figures, the cap is well above the average cost to trial in all categories of cases.
12.142The actual case costs will be calculated at the end of the case and will include the total litigator and advocate fees and any payments to expert witnesses and other disbursements. At the end of the case this amount will be compared with the amount the client has already paid in income contributions: if the client has already paid more than the actual costs, the difference will be refunded with interest; if the client has paid less, they may be required to contribute further from capital as described above. The Collection and Enforcement Agency will notify the client of the position and any amount they owe once the full costs have been established at the end of the case.
Effects of Crown Court means testing
12.143Because of the potentially high costs of Crown Court cases and the obligation to keep the client informed of the potential costs (Code of Conduct 2011, O1.13) it is essential that the cost implications of any step in the proceedings are thoroughly considered. This will be particularly important in cases where, for example, expert evidence is required: the client should be advised of the cost implications prior to the instruction of any expert and cost considerations may have an impact on the conduct of the case.
12.144Clients may also be more reluctant to instruct a solicitor at all, and therefore it will be important to advise clients at the outset as to the potential costs (given the type of case), the advantages of being represented and, if appropriate, the possibility of a hardship application. Such an application takes account of the potential private client rates to see if the applicant has sufficient funds to meet them.
12.145The supporting evidence requirements for a Crown Court legal aid application are more onerous than those in the magistrates’ court. Therefore where a case is sent to the Crown Court and evidence has not already been provided, it is essential that this evidence is obtained as quickly as possible, as failure to provide this evidence within 14 days may have serious financial consequences for the client (see above).
Disbursements
12.146Disbursements may be incurred in exactly the same way as in the magistrates’ court. The test as to whether they are justified is the same, and applications for prior authority may be made.
59Criminal Legal Aid (Remuneration) Regulations 2013 reg 13. The process is exactly the same as for magistrates’ court cases: applications are made directly to the LAA.
12.147Where the disbursement exceeds £100, you have prior authority and have in fact incurred the disbursement, you can make an application for payment on account of that disbursement at any time. Provided that the amount and scope of the prior authority have not been exceeded, payment should be made.
60Criminal Legal Aid (Remuneration) Regulations 2013 reg 14. See also chapter 14.
Prescribed proceedings in the Crown Court
12.148Some civil proceedings have been deemed to be criminal for the purposes of legal aid
61Criminal Legal Aid (General) Regulations 2013 reg 9 as amended; see para 12.69 for the full list. (designated ‘prescribed proceedings’), and where orders are imposed in the magistrates’ court, the appeal lies to the Crown Court. Examples include stand-alone parenting orders, football banning orders, and Sexual Offences Act orders. The full list is given above in the section covering magistrates’ court work.
12.149Where a stand-alone order is made by the magistrates’ court, and the client wants to appeal it to the Crown Court, this will also be funded on an application by way of a representation order.
12.150As for other representation orders in the Crown Court, funding for such cases is means tested and the client will need to submit completed forms CRM14 and, if appropriate, CRM15 (if non-passported), in this situation even if a representation order had been granted for the magistrates court proceedings.
12.151There is an upper limit to the costs that can be claimed for such work. Unless extended, this is £1,368.75.
Appeals to the Crown Court
12.152Appeals to the Crown Court from the magistrates’ court, whether against conviction, sentence or other order require a fresh application for funding. The means test is similar to that applied in the magistrates’ court.
12.153Clients who are passported or pass the means test will not be required to pay any contribution towards the cost of their appeal.
12.154Clients who do not pass the means test will be required to pay a defined contribution in the following appeals:
•£500 if an appeal against conviction is dismissed or abandoned;
•£250 if an appeal against conviction is dismissed but sentence is reduced;
•£250 if an appeal against sentence or order is dismissed or abandoned.
12.155All applications for funding will also be subject to the interests of justice test.
Recovery of defence costs orders
12.156Prior to the introduction of Crown Court means testing, Recovery of Defence Costs Orders (RDCOs) were the mechanism used to recover the costs paid out to wealthy defendants who were convicted. RDCOs no longer apply in cases where funding is subject to the Crown Court means testing rules.
12.157However, RCDOs may still be imposed to recover defence costs in the High Court, including the Court of Appeal, as means testing does not apply to these proceedings