qualfication for legal aid

samslade

If someone is charged with a crime they maybe entitled to legal aid, in which case the government pays for a solicitor etc.
How are people's eligibility for this assessed? Is there set criteria, or is it on a case-by-case basis? Is it just to do with income or are savings and/or assets considered too?

edit: Also, it seems that being arrested can effect the entitlement to legal aid. Is it possible to be charged with a criminal offence without being arrested?

Our man in Havana

Generally if you are not working the judge will grant free legal aid. From my observations in the district court there is no other means test as such.

Is it possible to be charged with a criminal offence without being arrested?

Yes it is. They charge you by way of a summons.

johnnyskeleton

Legal aid generally (criminal, civil and family) is generally granted where a person is at risk of having a fundamental right interefered with, and they cannot afford to pay for legal representation themselves.

In the criminal context, the fundamental right is loss of liberty. So legal aid will often be refused when the offence doesn't carry a custodial sentence, or, as judges like to say "the person is at risk" of a prison sentence. Thus, people will rarely get legal aid for minor road traffic offences, but they might where, due to the serious nature (e.g. dangerous driving causing death) or the previous convictions (e.g. repeat drink driver), they are exposed to the risk of a prison sentence if convicted.

The second stage is whether they can afford it or not. However, different courts require different levels of representation. District Court is the lowest, the fee for a small amount of the solicitor's time. The next level is the Circuit Court. This involves a lot more of the Solicitor's time and a junior counsel barrister so is more expensive. The most serious offences (rape & murder for the most part) are tried in the Central Criminal Court, and for that there is the addition of a senior counsel barrister. The costs involved in the district court are manageable by most people with a job, so therefore most judges will only grant legal aid for a district court offence to persons who are unemployed. For a circuit court offence it would be difficult for someone on minimum wage, low wages, or someone with a decent job but with a mortgage and a family to support to pay for the services, so it would be judged on that basis. For the central criminal court, the cost of defending a rape or murder charge could be the equivalent of the cost of a small luxury car, so legal aid for the Central Criminal Court will often be granted.

Also, if the person is a minor they will nearly always get legal aid, irrespective of the circumstances.

samslade

How is it decided if the person is at risk of a prison sentence?
I mean, consider a person is accused of a crime that is technically punishable by a prison sentence, but they are very unlikely to be actually given one in their particular case (no previous convictions, accused of a non-severe instance of the offence etc):
In the context of granting legal aid, are they considered to be at risk of loss of liberty because on paper the offence is punishable by prison, or are they not considered to be at risk because even if found guilty a prison sentence would not be given in their particular case?

johnnyskeleton

samslade wrote: »

How is it decided if the person is at risk of a prison sentence?
I mean, consider a person is accused of a crime that is technically punishable by a prison sentence, but they are very unlikely to be actually given one in their particular case (no previous convictions, accused of a non-severe instance of the offence etc):
In the context of granting legal aid, are they considered to be at risk of loss of liberty because on paper the offence is punishable by prison, or are they not considered to be at risk because even if found guilty a prison sentence would not be given in their particular case?

It's not necessarily about whether the offence carries a custodial sentence or not (although if it doesn't it's highly unlikely legal aid will be granted). Nor is it about the specifics of an offence.

It is more based on the risk of a prison sentence. It depends on whether the offence could realistically attract a prison sentence. To give a few examples:

If someone is charged with threatening behaviour in public or no insurance (both of which in theory carry prison sentences), and it is unheard of that someone would get a custodial sentence for a first offence for these offences, legal aid will not generally be assigned. However, people often get prison sentences for a second conviction for those offences, in which case they would be at risk.

The situation is different where someone has committed a serious offence that would ordinarily attract a custodial sentence but the reality is that they are probably going to get a suspended sentence. So, for example, a young adult who has a good job, no previous convictions and has worked hard to rehabilitate themself commits a serious theft (e.g. 10k) and repays what was stolen would be very unfortunate to get a prison sentence, will still probably get legal aid.

The difference can be somewhat illusive, so I would say that if there is any real risk (even if it is unlikely) the person should qualify for legal aid (subject to the ability to pay).