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Legal Aid


Legal Aid Crown Court Eligibility

Household with an annual disposable income of £37,500 or more will be ineligible for legal aid in the Crown Court from the 27 January 2014. There will be a review mechanism to ensure that those who cannot afford to pay privately for their defence costs are able to be represented via legal aid.

Means Testing In Criminal Proceedings - Background

Two tests must be passed to get legal aid:

  • Interests of Justice test considers the seriousness of the case against specified criteria e.g loss of livelihood, the nature of the offence and the risk of custody. Due to the more serious nature of proceedings in the Crown Court, these cases automatically pass the Interests of Justice test.
  • Means test considers the person's financial position, e.g. household income, capital, and outgoings. This test determines whether a defendant has the financial resources to contribute towards or pay for all of their defence costs.

Means Testing In The Magistrates' Court & Crown Court

  • If a person fails the means test and their case is being heard in the magistrates’ court, they will not be given legal aid and will be expected to pay privately or represent themselves.
  • Before 27 January 2014, if a person’s case was to be heard in the Crown Court they would be automatically eligible for legal aid and the means test would determine how much they needed to contribute towards their defence costs, which could be from their income, their capital or a combination of both.
  • After 27 January 2014 a financial eligibility threshold applies for all new applications for legal aid in the Crown Court. For people whose annual household disposable income is below the threshold, the existing regime which may require a contribution from income, capital or a combination of both, will remain unchanged.

Crown Court Financial Eligibility Threshold

The financial eligibility threshold will be introduced for all new applications for legal aid made (i.e. sign and dated) in the Crown Court from 27 January 2014.

From that date, a person who is assessed under the means test as having an annual household disposable income of £37,500 or more will be ineligible for legal aid in the Crown Court.

For people whose annual household disposable income is below the threshold, the existing regime, which may require a contribution from income, capital or a combination of both, will remain unchanged.

Applying For Legal Aid In The Crown Court

The process for applying for legal aid in the Crown Court will not change.

The financial information, evidence requirements and method by which annual household disposable income is calculated will not change.

Applicants must continue to apply on a CRM14 (Application for legal aid in criminal proceedings) - and, where applicable, a CRM15 form (Financial statement) - and submit this to the magistrates' court where the first hearing in the case will take place.

Refused Legal Aid In The Crown Court

If a person is assessed as having an annual household disposable income of £37,500 or more, they will be refused legal aid.
There are two ways in which the decision to refuse legal aid can be reviewed:

  • Mistake in calculation or administrative error: If it is believed that a mistake has been made in the calculation of annual household disposable income or there has been another error in processing the application; or
  • Eligibility Review: If the applicant is above the threshold but can demonstrate that they cannot afford to pay privately for their particular case.

Refused Legal Aid In The Crown Court

Mistake in calculation or administrative error:

  • The applicant should inform the court immediately, within 21 days of the date of refusal notice sent by the court (unless otherwise agreed with the LAA).

Eligibility Review

  • The applicant must apply to the LAA via HMCTS on a CRM16 (Application for review on the grounds of hardship) within 21 days of the date of refusal notice sent by the court (unless otherwise agreed with the LAA).
  • The CRM16 asks for details of types of expenditure that are not taken into account in the means test and also for an estimate of the likely private costs of the case. The estimate must be provided by the applicant's solicitor.
  • The information provided in the CRM16 will be used to review the applicant’s eligibility against the Crown Court financial eligibility threshold and their level of contribution if deemed to be eligible following the review.

Eligibility Review - Example

An applicant’s annual household disposable income is assessed under the means test at £50,000. The applicant is assessed as ineligible for Crown Court legal aid.

The applicant applies to the LAA for an Eligibility Review. On assessment of the information provided, the applicant’s additional allowable expenditure is assessed at £1,000 and estimated private legal costs at £30,000. Both the additional expenditure and estimated costs are subtracted from the amount assessed under the means test to produce the applicant’s revised annual disposable income.

Revised annual household disposable income = £19,000.

The applicant's revised annual household disposable income is now below the financial eligibility threshold and the applicant is granted legal aid in the Crown Court.

Eligibility Review - Contribution Orders

If an applicant is granted legal aid in the Crown Court following an Eligibility Review they may be required to contribute to the costs of their defence from income, capital or a combination of both.

The assessment of the applicant's income, which will be used to determine the level of income contribution, will take account of their annual disposable household income assessed under the means test and any allowable additional expenditure assessed under the Eligibility Review.

The assessed estimated private legal costs will not be included when determining the applicant's income for the purpose of working out their level of contribution. This is because, once the applicant has been granted legal aid, they will not be required to pay privately from their income.

In the example previously given, where the applicant’s annual household disposable income was assessed at £50,000 and they applied for an Eligibility Review, their new disposable income was calculated at £19,000. as the assessed estimated private legal costs are not included, the amount used to determine the applicant's level of contribution would be £49,000 annual disposable household income.

Once an applicant has been granted legal aid in the Crown Court the Contribution Orders process will not change and defendants who pay contributions towards the costs of their defence will continue to have the value of those contributions refunded with interest if they are acquitted.

Change In Financial Circumstances - Legal Aid Granted

Once an applicant has been granted legal aid in the Crown Court they are required to inform the LAA of any change in their financial circumstances. This is to enable the LAA to adjust the level of any Contribution Order to reflect the change in income.

This requirement will not change following the introduction of the financial eligibility threshold and the LAA will continue to adjust income Contribution Orders following changes in financial circumstances.

If an applicant, who has been granted legal aid, has a change in financial circumstances which means that their annual disposable household income is above the financial eligibility threshold, the LAA will not withdraw legal aid.

In these circumstances the applicant's Contribution Order will be amended to reflect the change in financial circumstances.

Change In Financial Circumstances - Legal Aid Refused

If an applicant has been refused Crown Court legal aid as a result of being above the financial eligibility threshold and either:

  • The 21 day time limit to apply for an Eligibility Review has expired; or
  • The applicant is assessed as ineligible following an Eligibility Review

The applicant can reapply for Crown Court legal aid at any time during the case if their financial circumstances change and bring them below the financial eligibility threshold.

To reapply for Crown Court legal aid the applicant must submit a new CRM14 and - where appropriate - CRM15 to the relevant magistrates' court. If legal aid is granted following submission of a new application, the applicant will be eligible for legal aid from the point the application is made onwards. Legal aid will not be backdated to the date of the first application.

Defence Costs Orders

People who are refused Crown Court legal aid because they are above the financial eligibility threshold will be required to pay privately for the costs of their defence.

If they are found not guilty, they can apply to reclaim their defence costs from central funds - a separate source of funding managed by the Ministry of Justice.

The maximum that can be reclaimed is the same as would have been paid by legal aid and a refusal notice, to demonstrate that legal aid was applied for and refused, will be required in order for costs to be reclaimed.

Transitional Arrangements

The financial eligibility threshold for Crown Court legal aid will come into force for applications signed and dated by the applicant on or after 27 January 2014.

The financial eligibility threshold has been introduced through the Criminal Legal Aid (General) (Amendment) Regulations 2013, the Criminal Legal Aid (Financial Resources) (Amendment) Regulations 2013, the Criminal Legal Aid (Contribution Orders) (Amendment) Regulations 2013, the Costs in Criminal Cases (General) (Amendment) (No.2) Regulations 2013 and the Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013.