Legal aid in criminal cases is administered by the Legal Aid Agency("LAA"). Since April 2001 this has been through the Criminal Defence Service of which this firm forms part. The rules and regulations are complex and change constantly. In certain circumstances legal aid in criminal matters is non-means tested. This firm undertakes a large amount of legal aid work.
Police Station advice
If you are arrested you are entitled to free and independent legal advice irrespective of your means and the offence for which you have been arrested. This advice can be delivered on the telephone but if you are to be interviewed by police, it is usually desirable to have a solicitor with you at the police station to advise in person.
Legal aid at the police station is available not only through the Duty Solicitor scheme (of which Birds Solicitors is a member) but also if you wish to contact this firm to seek advice directly. We run an emergency service to provide advice for those in police custody 24 hours a day 365 days a year. Call us on 07966 234994.
In some circumstances you may be asked to pay for this advice Such a situation may be if you specifically request a very senior solicitor to attend to advise you, the matter is at a considerable distance from our base and you wish a member of our team to attend personally or if for any reason the attendance would not be covered by the scheme.
DSS benefit fraud interviews
In order to obtain advice for a DSS benefit fraud interview, you have to satisfy a very stringent means test and sign a legal aid form in advance. Legal aid for such cases is limited to those on a low income. If you do not qualify for such advice, you will have to pay privately for any advice and/or representation.
Magistrates Court cases
Legal aid for a case in the Magistrates Court is means tested. In general terms, if you earn more than £21000, you are unlikely to qualify for legal aid unless you can show exceptional hardship. It is essential that you complete the appropriate legal aid application forms in advance of your first court hearing so that your application can be considered before you appear at court. You will need to provide documentary proof of your income and outgoings unless you are in receipt of a "passporting" benefit such as Jobseekers Allowance or Income Support when you automatically pass the means test.
Legal aid is also subject to a merits test so that legal aid is not generally granted for very minor offences. If you are to appear in the Magistrates Court you should speak to a solicitor about legal aid as soon as possible.
If you arrive at court unrepresented and have not previously applied for legal aid, in some cases, you are able to obtain the advice of a duty solicitor at court.
Once a decision has been made that your case will ultimately be heard at the Crown Court, legal aid will usually be granted subject to a contribution dependent on an assessment of your means.
Crown Court cases
Legal aid for cases which are to be tried in the Crown Court is also subject to a means test. Legal aid will normally be granted more easily for such cases as they are generally more serious than those which are tried in the Magistrates Court but there may well be payments to be made to finance the case either from income on a monthly basis or from capital.
You will be required to provide proof of your means as in the Magistrates Court in order to assess your entitlement to legal aid and any contributions towards costs that may be required.
Court of Appeal cases
If you have a case in the Court of Appeal where leave has been granted for the appeal to go ahead, you will generally have legal aid for an advocate. In some cases your legal aid may also allow a solicitor to prepare your case. This legal aid remains non-means tested. However, you are not able to mix and match private and public funds by paying for a solicitor but having the advocate under legal aid.
Other Appeal cases (including CCRC applications)
If you are seeking advice from us in relation to an appeal where we did not represent you at trial or in relation to an application to the Criminal Cases Review Commission, legal aid may be available to you. The advice and assistance scheme is strictly means tested and will not allow public funds to be spent on your case if you have more than a specified amount of capital or income. Most people in prison serving long sentences will qualify for such advice subject to the value of their assets. The scheme will not allow clients merely to obtain a second or third opinion because the first solicitor did not give advice that they agreed with.
If you do not qualify for legal aid you will have to pay privately for your representation and should contact us for an estimate of the likely costs.
In the event that you are successful in your case (i.e. the case does result in a conviction), you will no longer be able to apply for your costs to be reimbursed from Central Funds if your case was heard in the Crown Court or the Court of Appeal. You may make an application to have costs paid from Central Funds in the Magistrates' Court but your claim for reimbursement will be limited to the amount that the case would have cost had it been legally aided. Legal aid rates are so poor nowadays that as an average you will receive reimbursement of only about 20% of the fees actually incurred in defending the case.
We consider this development to be unfair and unreasonable. The Labour Government tried to bring in this change at which time it was vehemently opposed by both the Conservatives and the Liberal Democrats. Unfortunately the Coalition Government once in power wasted no time in introducing the changes themselves in an effort to save money.
URGENT UPDATE CONCERNING LEGAL AID RATE REDUCTIONS AND ACTION BEING TAKEN BY THIS FIRM AS A RESULT FROM 1ST JULY 2015
The current problems with legal aid for criminal cases
This firm is committed to providing its clients with a top quality service whether they are privately instructing us or we are acting under the legal aid scheme. Access to proper legal advice and representation, access to justice should not depend on your income. It has long been recognised as a basic human right and necessary for a fair trial.
This Government is aware that continued cuts to legal aid have led to a system where your chance of justice is dictated by the size of your bank balance. Mr Gove (the new Lord Chancellor) said exactly that in a speech in June 2015. So what is he going to do about it? He is going to cut the legal aid rates again.
Like the NHS and education, legal aid has to be properly funded to be effective. In order for us to provide a service of sufficient quality under legal aid, we have to be paid an adequate amount for the case. We are committed to providing a service to those members of society who cannot afford to pay for a lawyer themselves but only in so far as the level of service we can provide is of sufficient standard to allow us to fulfil our professional obligations to our clients.
The underlying rate of pay for criminal legal aid has not increased since at least 1996, nearly 20 years. There have been no inflationary increases in that time. In March 2014 the rate was reduced by 8.75% and from 1st July 2015 it is to be reduced by the same amount again. This is a cut of 17.5% in the last 15 months. These cuts mean that the underlying rate has in effect been halved in the last 20 years. Can you think of anything else where the cost is half of what it was 20 years ago?
The most recent cut is to come into effect on 1st July 2015. It is a cut too far. It is time for lawyers to make a stand in order to prevent proper access to justice disappearing altogether for the vast majority of people in the UK. These cuts will mean legal aid firms cannot survive. They will close or stop undertaking legal aid work. It will be harder to find a quality legal aid lawyer and soon it may be impossible. Without proper representation, a fair trial will be impossible.
We need the Government to understand that what they are doing is unnecessary and dangerous. Unnecessary in financial terms as the legal aid budget has been falling each year in any event and will continue to fall for reasons unrelated to rates of pay. Dangerous because it will lead to immense problems within the criminal justice system, more wrongful convictions and will have devastating long term effects on the quality of criminal justice in the UK.
Action from 1st July 2015
With the greatest of regret this firm will not be taking on any new legal aid cases from 1st July 2015. We will continue to provide the emergency cover required under our contract with the Legal Aid Agency by providing duty solicitor services in the police station and court.
We will not be representing clients (other than duty clients) at the police station and will take on no new legal aid cases at the magistrates' or the Crown Court until the Government withdraws the recent cut and starts talking to the profession about future changes to legal aid in a constructive manner. This is a decision that we have reached on consideration of our professional obligations to our clients and the lack of economic viability in the new fees. We understand that hundreds of other firms around the country will be doing the same thing.
We hope that this will not be a long term situation and it will not be easy for us or our clients. We would ask our clients to consider the longer term effect and to try to understand why we have been forced into this position following years of cuts and underfunding in legal aid. Lawyers are not radical by nature and it is a measure of the magnitude of the problem that we are compelled to take action of this nature. We hope that this action will preserve legal aid for the longer term.
What do you do if you are arrested or in court
If you are arrested and require advice at the police station, you should make it known that you want this firm to act for you. However, you are unlikely to be able to speak to us as the police have to call a third party (the Defence Solicitor Call Centre) who may not give us details of your case if we are not accepting the case. You should ask for advice from the duty solicitor and tell the duty solicitor that originally you wanted this firm to represent you. Ask them to contact us after the police station attendance. You should remain in contact with us if you are bailed to return or charged.
This action may mean that the duty solicitor is very busy and interviews may be delayed as a result. The police may ask you to agree to an interview without a solicitor if it is taking a long time. Do not agree to this. If you ask for a solicitor and one cannot be found the police will either have to release you on bail or interview you without a solicitor. If they do interview you and as long as you do not agree to be interviewed without a solicitor they cannot hold anything against you if you make no comment.
This is very important:
> Ask for advice from the duty solicitor;
> Do not agree to be interviewed without a solicitor however long it takes;
> If you are interviewed without a solicitor and still say you want one present, you should consider making no comment as it cannot be held against you;
> if you agree to be interviewed without a solicitor or refuse the duty solicitor when offered, you can be interviewed and evidence of a no comment can be used against you (although it may well still be the best course of action).
If you are charged and taken to court, you should make it clear to the court that you want this firm to act and you may be able to get advice from the duty solicitor at the first appearance. After that you will either have to represent yourself or choose to be represented by a firm that is not taking this action.
There will be firms who are continuing to work under the new rates. It is a matter for you if you would wish to be represented by one of them given that they must have made a commercial decision that they can operate on the vastly reduced rates. You may want to consider what level of service they may be able to provide for those rates.
We hope that this action will not last too long and you should use the duty solicitor where available in the meantime. Please keep in contact with us and we hope you understand the reasons why we have been forced into this invidious position: if we do not make a stand, access to justice for those who cannot afford to pay for a lawyer will disappear.