Thursday, May 10, 2012

Criminal Law - Legal Aid

To be eligible for legal aid that being free representation, a defendant needs to be able to pass the means test and interests of justice test. Legal aid is a fund from the government to people who would not otherwise be able to afford legal advice or a solicitor to represent them in court. The test applies to defendants being held in custody awaiting trial for criminal defence cases in the magistrates' courts and higher. It ensures that the people, who cannot afford to pay, will then be able to pay for legal representation, which saves at least £35million per year on legal funding since it has been introduced. The Legal Services Commission is the governing body that grants the legal aid to applicants, granting representation orders in the magistrates to Her Majesty's Courts Service. Applicants who do not pass the means test, which means they are not entitled to legal aid in the magistrates court, can choose to fund their defence privately, and can then apply to reclaim their costs if they are then found to be not guilty. They costs can be recovered from central funds which is a further source from the Ministry of Justice. The way of determining whether a defendant is entitled to this aid is by using a financial eligibility calculator, which can work out whether the applicant will be likely to pass or fail the test for legal aid in the magistrates court or pay a contribution if their case goes on to the Crown Court. The calculator will give a legal practitioner an idea of whether the defendant is likely to be entitled to legal aid before the test is carried out at court. When the test is carried out in the magistrates court, aid is only granted to a defendant who has passed the Interests of Justice test and does not have the financial means to fund for legal representation in the magistrates court. The financial means is the means test and establishes whether the defendant is financially able to fund their case. The means test will take into account income and expenses but not capital. Passported applicants will automatically pass the means test but will still need to pass the interests of justice test before they are entitled to legal aid. The means test establishes the applicant's income and how it is distributed between any partners and children. If the applicant's income is more than £12,475 and less than £22,325 then a full means test is carried out. This works by looking at the defendant's disposable income after deducting tax, maintenance and other annual costs from their gross annual income.