Provision of legal services - funding of criminal cases

Legal Aid for criminal cases is allocated by the "Criminal Defence Service"
Legal aid is granted to 750 000 defendants a year. This includes over half of those tried summarily (excluding motoring offences) and most of those tried on indictment in the Crown Court.
Criminal Defence Service	The Criminal Defence Service (CDS) is administered by the Legal Services Commission. The purpose of the CDS is to ensure that people suspected or accused of a crime have access to advice, assistance and representation, as the interests of justice require.
General Criminal Contracts	Private practice solicitors are only be able to carry out criminal defence work funded by the Commission if they have a General Criminal Contract. Firms are audited against the Contract to ensure they continue to meet quality assurance standards. The CDS logo is a mark of quality and is displayed in the window of contracted solicitors offices.
Public defenders	Since May 2001, the Commission directly employs a number of criminal defence lawyers, known as public defenders. The public defenders are able to provide any of the services in exactly the same way as lawyers in private practice.
Levels of service	A contracted solicitor is able to provide three levels of service: Advice and Assistance, which covers advice and assistance on criminal matters Advocacy Assistance, which covers some advice and some representation at court. Representation for criminal offences, which covers preparation of a case and representation in court and is subject to a "means" and "merits" test.
1. Legal services provide free
Low cost interviews	In some areas, some solicitors are prepared to give a free or low-cost interview.
CDS logo Indicates franchised solicitors	Choice of solicitor now restricted to those that are franchised.
2. Duty solicitor schemes
Duty solicitor scheme at police stations	The Criminal Defence Service (CDS) offers "Advice and Assistance" through the duty solicitor scheme to any individual arrested and held in custody, or attending a police station "voluntarily" while suspected of a criminal offence. Anyone is eligible for such advice: there is no means test and the service is free to everyone. The arrested person can get advice on their rights from Defence Solicitor Call Centre which is manned by paralegals. They can also ensure fair treatment, and assist them in applying for bail and/or full legal aid. After requesting legal advice, the police normally must not question the detained person who need not answer any questions until he has received legal advice. An exception to this rule is the drink-driving procedure which cannot be delayed for the obtaining of legal advice.
Duty solicitor or own solicitor can be called	Any person detained at the police station is entitled under the General Criminal Contract to free and independent legal advice and assistance. However, in most circumstances that advice will only be provided by telephone. When legal advice is requested two options are available the Duty Solicitor the detainee’s own solicitor. Police station representatives have to be "accredited".
Non-imprisonable offences	The scheme does not extend to the provision of Advice and Assistance for an offence that is non-imprisonable.
Police station scheme - Criminal Defence Service Helpline	The Criminal Defence Services Direct helpline offers legal advice to people arrested for non-imprisonable offences instead of them using an independent solicitor who would be paid for by legal aid. The helpline advisers are often former police officers who have passed the basic Police Station Qualification legal exam. It is thought to save £10million a year, each case is estimated to cost taxpayers £22, much less than the £300 for a solicitor visiting a police station. From April 2008, anyone requesting free legal advice when arrested for a minor crime, including first offences for drink-driving, criminal damage, theft or assault, will have to use CDS Direct. It works by a police officer phoning the call centre to book advice for the detainee, an adviser calls the station back. Sometimes their calls are not answered and suspects end up agreeing to questioning without legal advice.
Duty solicitor name change	From January 2008 the duty solicitor scheme became known as the Defence Solicitor Call Centre (DSCC) to reflect its new role. All requests for publicly funded representation at police stations including where a detainee chooses a named solicitor must be routed by the DSCC.
Duty Solicitor Scheme at court	A duty solicitor already in court can give legal advice or assistance (short of representation). This service is available to anyone without other legal representation, regardless of means, and is free to the client.
Cases restricted to telephone advice only are	(a) Cases under Sections 4,5,6,7 and 7A Road Traffic Act 1988, of driving with excess alcohol, driving whilst unfit through drink or drugs, drunk in charge, and failing to provide a specimen. (b) Cases in relation to a non-imprisonable offence. (c) Cases of warrants for failing to appear at Court, failing to pay court fines – a means warrant or warrant for commitment, arrested on a warrant for recall to prison (d) Cases of breach of Police or Court bail conditions.
Exceptions to cases which are restricted to telephone advice only and where attendance at the Police Station is allowed are:	(a) An interview or an identification procedure is going to take place. (b) The client is unable to communicate over the telephone. (c) The client complains of serious maltreatment by the police. (d) The investigation includes another alleged offence which does not fall within the cases limited to telephone advice. (e) The supplier is already at the police station, in which case the supplier may attend the client but may not claim more than the telephone advice fixed fee. (f) The client is arrested on a warrant for failing to attend court, and the solicitor has clear documentary evidence available that would result in the client being released from custody.
3. Advice and Assistance
Preliminary help	Advice and Assistance covers help from a solicitor including giving general advice, writing letters, negotiating, getting a barrister’s opinion and preparing a written case. It enables people of small or moderate means to get help from a solicitor. It is not available during criminal proceedings, after charge or summons. It does not cover representation in court. It may be available in relation to appeals or prison law. Further help can be obtained from "Representation" ; or, in some cases, "Advocacy Assistance".
£500 worth of work covered by "Advice and Assistance" scheme	The Advice and Assistance scheme covers £500 worth of work by a solicitor (formerly 2hrs). The solicitor can apply for extra time to finish the work under the scheme. This is usually known as an extension.
Criteria for funding of “Advice and assistance”	Income and capital limits here
4. Advocacy Assistance
Covers case preparation and initial representation	It covers the cost of a solicitor preparing a case and initial representation in certain proceedings in both the magistrates’ court and the Crown Court. It covers representation for prisoners facing disciplinary charges. It also covers representation for those who have failed to pay a civil fine or obey a civil court order of the magistrates’ court and are at risk of imprisonment and applications for anti-social behaviour orders and some closure orders.
5. Representation
“Representation” in criminal proceedings	A person who has been charged with or summoned for a criminal offence can apply for "Representation". Legal Aid can cover the cost of preparation of a defence and representation by solicitors or barristers, and for bail applications. Getting criminal legal aid depends mainly on whether it is 'in the interests of justice' that the defendant is legally represented. A person may have to pay a contribution. Criminal legal aid does not cover an individual who brings a criminal prosecution her/himself. ("Legal Representation" replaced Civil Legal Aid and replaced Advice By Way Of Representation [ABWOR])
Criteria for funding of “Criminal legal aid”
The "interests of justice" test decides which cases attract criminal legal aid is laid down in Schedule 3 Access to Justice Act 1999 Formerly known as the Widgery Criteria	Since October 2006, Legal Aid has only been granted if it is in the "interests of justice" to provide it, sometimes called the "merits test". In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account- whether the individual would be likely to lose his liberty or livelihood or suffer serious damage to his reputation, whether the case involves a substantial question of law, whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses whether it is in the interests of another person that the individual be represented.
Not motoring offences	Minor offences such as motoring offences do not usually qualify for criminal legal aid.
Means testing	In addition to the "merits test" the Legal Services Commission also calculates whether a defendant can pay for his own representation, this is called the "means test". There is no means test for police station or court duty solicitor. The old criminal legal aid scheme which was abolished by the Access to Justice Act 1999 provided for means testing. The Access to Justice Act 1999 did not include provisions parallel to these, other than the powers in section 17 for courts other than magistrates' courts to order a defendant to pay a contribution to defence costs. The Criminal Defence Service Act 2006 has corrected this. This reversal of policy after a few years has angered some observers (Conservative party statement by Oliver Heald MP, here)
The Criminal Defence Service Act 2006 has led to the introduction of a new means testing scheme under which high earners no longer receive free criminal legal aid representation	The new scheme was implemented in the Magistrates' Courts in 2006 and in Crown Courts by the end of 2007. The test is simple to understand and straightforward to administer. Legal aid is automatically be given to individuals who are on certain benefits e.g. income support, or those under 16, or those under 18 and in full-time education. An individual have to make contributions towards a Representation Order if his gross income is between £11,590 and £20,740 (after deductions). Those receiving over £20,740 are not eligible for assistance. Higher earners are expected to meet the full costs of representation before the Magistrates' Court, although in the Crown Court a system of contributions will be applied. If acquitted a defendant can get all contributions back unless he "brought the prosecution on himself ". Privately funded defendants who are subsequently acquitted, in the vast majority of cases, are able to recover some or all of their legal costs from central funds. An applicant wishing to qualify for criminal legal aid needs to satisfy both the existing “Interests of Justice” test, as well as the new means test. The “Interests of Justice” test seeks to determine whether the defendant needs to be represented by a lawyer (e.g.; where conviction is likely to result in a custodial sentence, or where conviction is likely to result in a loss of livelihood). The "means test" seeks to determine whether it is right that the state should pay for that defence, or whether such costs should fall to the defendant. Criminal Defence Service Act 2006: Means testing scheme, Information Pack (pdf).
Legal aid for all those under 18 subject to Interests of Justice test	The 'passporting' provisions for youths covers all defendants appearing before the youth court and all under 18-year-olds appearing before the magistrates' court. They are exempt from the means test. This applied to all cases from 1 November 2007. All cases still need to satisfy the Interests of Justice test.
How obtained	Using forms from the court. The “legal help” scheme can pay for a solicitor's advice in filling in the form. Since 2006 the Legal Services Commission decides whether to grant criminal legal aid and not the court as before. Relevant legislation: The Criminal Defence Service (Financial Eligibility) Regulations 2006 and The Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006.
The Carter review	In 2007/08, the government implemented many of Lord Carter's recommendations. Lawyers now bid for all legal aid work generated by groups of police stations, rather than being paid by the hour. The plans have faced fierce opposition from the legal profession which has staged strikes in opposition. In February 2008 barrister refused to sign up for Very High Cost Cases (VHCC) contracts. The VHCC contract offers QCs a rate of £476 for each day spent in court. Top junior barristers receive £390, and a junior acting alone is paid £285 per day. For preparatory work, silks will earn £91-£145 an hour. Only 130 of 2,300 barristers in England and Wales who were selected to handle the 100 most complex trials (VHCCs) a year signed the contracts. The dispute centered on the reform where QCs would be paid less and junior barristers paid more. The Carter report "Procurement of criminal defence services: market based reforms". introduced: fixed pricing for all criminal legal aid work; the award of contracts to efficient and good quality suppliers that can take on more cases: and managed price competition between efficient, good quality suppliers. Review website here.
Complex detail for obtaining legal aid	The provision of legal aid is becoming more complex and there is a significant amount of complex material detailing the arrangements for means testing. The main points are: Passported means testing for (a) those under 16, (b) those under 18 in full time education, (c) those receiving certain benefits provided that they give a national insurance number. Facility for those detained in custody to provide a statement of truth in support of the means form in lieu of formal evidence Hardship scheme An early cover scheme The interests of justice test is strictly applied. News and updates from the LSC, here.