The Criminal Justice System

Sunday, September 13, 2009

The following forms of legal aid and assistance exist. In general legal aid is much more geenrous than in civil cases.
Duty solcitor schemes
The government funds solicitors to attend at police stations in order to advice persons in detention. The scheme exists under the Police and Criminal Evidence Act 1984 section 59 and was part of a package of measures which recognised that the expansion in police powers required some balancing safeguards.

The availability of the advice is universal. There are few circumstances in which the police can refuse access to a solicitor by a detainee. This point was made in a case called R v Samuel [1988] 2 WLR 920. (This case will be available in full soon)



In addition, it is a right to advice which is not means-tested, though persons who can afford it may of course choose to pay for a solicitor of their own choice.
Similar duty solicitor schemes apply at first hearings in magistrates’ courts.
Legal aid and advice (the "Green Form scheme")

This is a scheme allowing two hours’ worth of legal advice on any legal issue. It is normally used for giving initial advice to a client and perhaps the drafting of simple documents. It can also be used to take steps to apply for full legal aid. It does not cover representation in court.
The scheme is available to persons over the age of 16 but is means-tested (if eligible, then it always covers 100% of the costs - there is no contribution from the client and the solicitor claims directly from the area board). Eligibility does not depend on the merits of the case - one of its main uses is for assessing the merits of a case.
It will arise in criminal cases where a person visits a solicitor’s office in order to seek advice - often after receiving a summons to attend a magistrates’ court in order to answer charges (for example, about motoring offences). The solicitor cannot use the scheme to appear in court but can advise the client, for exapmle, as to how to plead and what the proceedings will involve.
Legal aid ("full legal aid")
Full legal aid is in theory available for all criminal proceedings, but the decision to grant it is for the court (initially a magistrates’ court which will either deal with an application in the courtroom or more commonly by written application). The assessment is based on
the interests of justice test - whether the court would impose a sentence which would deprive the accused of his/her liberty, or lead to loss of livelihood or serious damage to reputation (Legal aid Act 1988 s.22).
the means test - based on income and capital possessed by the applicant
Subject to the means test, legal aid must be granted in a case of murder or where the accused is likely to be kept in custody (Legal Aid Act 1988 s.19).