Legal Aid Eligibility and Criminal Case Procedures

Introduction

The Legal Aid Agency (LAA) through the Legal Aid scheme funds the majority of criminal cases. LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) created the LAA. It governs legal aid. This memorandum will address whether or not Mr. Avid Yohannis is eligible to access the public funding. It will lay out the interest of justice test and means test to that effect. The current case is a criminal case where Mr. Avid Yohannis is arrested on the charge of Section 20 offence under the Offences Against the Person Act 1861. As such, this memorandum will also lay down the rules for Mr. Avid Yohannis in relation to bail. It will lay out the powers that the police and the courts possess in relation to bail. Chapple will be acting on behalf of Mr. Avid Yohannis. It is bound by the SRA Code of Practice, including the duties of the advocates and advisers. This Code is formulated by the Solicitors Regulation Authority that binds solicitors and firms and their professional conduct.

Tests to access public funding of advice and representation

LASPO, s13 provides that an accused, who is arrested and held in custody at a police station, may access initial advice and initial assistance. If an accused has been arrested, which in this case Mr. Yohannis is, he is entitled to a solicitor, whether over the phone or at the police station. Under the police station advice and assistance scheme, if Mr. Yohannis cannot afford his own solicitor, a duty solicitor can be asked to attend the police station. The solicitor will provide him with free legal advice ahead of the interview and free representation at the interview. The Criminal Legal Aid (General) Regulations 2013, regulation 15 provides that whether or not Mr. Avid Yohannis qualifies for advice and assistance for criminal proceedings will be determined according to i) LASPO, s21 and relevant regulations (according to s15(1)(a)); and the qualifying criteria set out in the 2010 Standard Crime Contract (according to s15(1)(b)). Paragraph 9.14 of the 2010 Standard Crime Contract provides the Sufficient Benefit Test where Mr. Yohannis can have access to legal advice at the police station. A request can be made according to Section 58 of Police and Criminal Evidence Act (PACE) 1984. Since Avid is a Hungarian national, he may access consular representation under the Police And Criminal Evidence Act 1984 (PACE) – Code C. Under Code 7.1, Avid must be informed of his right a to communicate at any time with the appropriate High Commission, Embassy or Consulate. His request should be acted upon as soon as practicable. Under Code 7.2, a notification must be sent of his arrest to the High Commission, Embassy or Consulate. Accordingly, under Code 7.3, Consular officers should visit Avid and may arrange for legal advice.

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1. Martin Hannibal and Lisa Mountford, Criminal Litigation 2019-2020 (Oxford University Press 2019) paragraph 4.7.4.
2. Home Office, ‘2010 Standard Crime Contract – Specification’ .
Mr. Avid Yohannis can have access to legal aid if he passes the two tests: i) the merits (‘interests of justice’) test; and then ii) the means test.

Interest of justice

This test considers the merits of the case. It is provided under Section 17(1)(b) of LASPO. It will consider Mr. Avid Yohannis’s previous convictions, the nature of the offence and the risk of custody. If the charge is serious, there is a more likelihood to qualify for legal aid. In order to be eligible for legal aid, the case of Mr. Avid Yohannis must be serious enough so as to warrant him a legal aid. For instance, in this case Mr. Avid Yohannis is charged with an imprisonable offence under Section 20 of the Offences Against the Person Act 1861, which makes an accused guilty for inflicting injury to a person. As such, Mr. Yohannis will pass the test. The seriousness of the offences will increase the chances of getting him a legal aid. The relevance of previous convictions depends upon how old they are, how serious they were, and how similar in character they are to the current charges. Mr. Avid Yohannis has a previous conviction of drink driving where he was disqualified from driving and fined. This record may not help him show the seriousness of the offence as the previous conviction is not similar to the current case, and it was not a serious case as the current one. The court will also consider other factors, including whether or not there is a possibility of the accused losing his livelihood; being exposed to the risk of damage of reputation; facing potential issues to follow the case; or needing a lawyer to question a witness; and if legal aid will be needed to protect a third party’s interests. In this case, Mr. Avid Yohannis has high possibility of losing his business and damage to his reputation and affecting his livelihood. Given that he has an 18-month old daughter with his girlfriend, imprisonment will affect his ability to follow up the case. The fact shows that Mr. Yohannis went out to the garden and there was a woman witness in the kitchen. This calls for a lawyer to question the witness. Further, legal aid will be need so that the interest of Maria and the daughter could be protected given that Mr. Avid Yohannis’s business only earns £25,000, which could be affected if he is not given the legal aid.

Means test

Mr. Yohannis’s case is applicable to pre-charge advice outside the police station. As such, there must be a reference made to the pre-chare advice and assistance scheme. For funding

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3. Alisdair Gillespie and Siobhan Weare, The English Legal System (Oxford University Press 2019) 1895.
4. Legal Aid Agency, ‘Guidance: Work out who qualifies for criminal legal aid’ (2020) accessed on 24 February 2021 .
5. Legal Aid Agency ‘Interests of Justice: Guidance on the Consideration of Defence Representation Order Applications’ (2020) accessed on 24 February 2021 .
6. Legal Aid Agency, ‘Guidance: Work out who qualifies for criminal legal aid’ (2020) accessed on 24 February 2021 ; Section 17(2) of LASPO.
under this scheme, forms CRM1 and CRM2 must be completed. This scheme is subject to means test. The means test is provided under Section 17(1)(a) of LASPO. It will consider Mr. Avid Yohannis’s financial circumstances based on his household income, capital and outgoing expenses. Mr. Avid Yohannis’ income will be ‘weighted’ against the number and ages of family members. If the limit of annual household disposable income is £12,475 or less, an accused will be funded in the Magistrates’ court. If the limit of annual household disposable income is £37,500 over, an accused will not entitled to legal aid in the Crown Court. The weighting calculation will need to be done in order to determine whether or not he will be funded, according to the guidance provided by the Legal Aid Agency.

Bail proceedings, powers of the police and the courts

The police are empowered under Sections 30A, 34, 37 and 38 of PACE 1984 to grant bail to people arrested either without a warrant or under a warrant not endorsed for bail. Section 30A(1) empowers a constable to release Mr. Yohannis, who was arrested to release him person without bail (s30A(1)(a); or on bail ((s30A(1)(b)). Section 30A(1A) provides that the constable can release the person if he is satisfied that releasing him on bail is necessary and proportionate given all the circumstances. Section 37(1) provides that the custody officer must determine before charge whether they have sufficient evidence to charge Mr. Yohannis with the offence under Section 20 of the Offences Against the Person Act 1861 for which he was arrested. If they do not have any such evidence, Mr. Yohannis must be released without bail unless the pre-conditions for bail are satisfied (Section 37(2)(a)), or on bail if the pre-conditions for bail are satisfied (Section 37(2)(b)). Section 34(1) and (2) provide that a person arrested for an offence cannot be kept in police detention if the grounds of the detention do not exist or there are no grounds to detain him. Section 38 provides that if Yohannis is charge, Mr, Yohannis will be ordered to be release from the police detention, either on bail or without bail. A variation in the bail may be made by the police or by the court under sections 30CA and 30CB respectively. Bail may be granted with conditions too. Section 3 of the Bail Act 1976 provides for bail on conditions. If the police do not have confidence that Mr. Yohannis would not answer the bail,

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7. Martin Hannibal and Lisa Mountford, Criminal Litigation 2019-2020 (Oxford University Press 2019) 161
8. Legal Aid Agency ‘Guidance: Criminal legal aid: means testing’ (2020) accessed on 24 February 2021 .
9. Ibid.
the police can attach conditions to ensure he surrenders to custody or does not commit further offences while he is on bail. The Magistrates may impose similar conditional bail.

The principles of legal professional ethics

The SRA Code of Conduct for Firms, Code 1.1 provides that the firm must not unfairly discriminate against the clients by allowing their personal views affect their professional relationships and the way in which the firm provide their services. Code 1.3 provides that the firm will perform all of its undertakings within the agreed timescale or within a reasonable amount of time. Code 4.1 provides that the firm will only act for a client on their instructions, or from a properly authorised person to provide instructions on the client’s behalf. The firm will not act on the instructions if the firm has reason to suspect that the instructions do not represent the client's wishes. The firm will satisfy itself that the instructions are that of the client. If the firm is not able to obtain or ascertain the instructions of the client, where it has legal authority to act, the firm will undertake to protect the client's best interests. Code 6 requires the firm to keep the affairs of the clients confidential subject to legal requirements or the client’s consents. Code 3.1 requires a firm to keep up to date with and adhere to the law and regulation governing the way the firm works. The firm will cooperate with the SRA and be accountable for its work undertaken. Code 5.1 requires the firm to properly account to the clients for any financial benefit the firm has received due to the client’s instructions. Code 5.2 requires the firm to safeguard the money and assets entrusted by the client to the firm. Code 8.1 requires the manager in the firm to be responsible for compliance by the firm with the SRA Code. This is a joint and several responsibilities where the manager shares the management responsibility with other managers.

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10. Home Office, ‘Bail and refusal of bail by criminal courts and police officers’ (2020) accessed on 24 February 2021
11. SRA ‘SRA Code of Conduct for Firms’ accessed on 24 February 2021 .
12. Ibid.
13. Ibid.
14. Ibid.
15. Ibid.
16. SRA ‘SRA Code of Conduct for Firms’ accessed on 24 February 2021
17. Ibid.
The professional conduct in reference to criminal matters may arise in case of duties to the clients and the courts; confidentially obligations; conflict of interest; interviewing the witnesses; and duties of advocates. The SRA principles reflect the professional conduct. They govern the principle of the rule of law, administration of justice, upholding public trust and confidence in solicitors' profession and legal services, independence, honesty and integrity, diversity, equality and inclusion, and the best interests of clients. In regard to criminal matters, SRA codes bind the firm or the solicitor to uphold the principle of rule of law. For example, confidentiality obligation applies to communication with the client and it is protected from disclosure even to the court due to legal privilege. This privilege extends to communication between a solicitor and a third party such an expert witness. Firms cannot attempt to deceive or misled the court. They must comply with court orders. They must also inform clients of situations whether their duties to the court outweigh the obligation to the clients.


Conclusion

LASPO, s13 allows Mr. Yohannis to access initial advice and initial assistance. He has a right to seek a solicitor over the phone or at the police station. He can also seek free advice and representation from a duty solicitor under the police station advice and assistance scheme. Given the charge under Section 20 of the Offences Against the Person Act 1861, if Mr. Yohannis is not given legal aid, he will be exposed to various detriments, which makes him meet the interest of justice test under Section 17(1)(b) of LASPO. Mr. Yohannis also meets the means test provided under Section 17(1)(a) of LASPO. His income will be subject to the weighting calculation in order to meet this test. After calculation, if his income is £12,475 or less, he will be funded in the Magistrates’ court; or is less than £37,500, he can access legal aid in the Crown Court. Mr. Yohannis may be released on bail under Section 30A(1A) of PACE as it is necessary and proportionate considering his circumstances. The facts do not show enough evidence to charge him under the Section 20 offence. As such, he will be released without bail under Section 37(2)(a) of PACE. Further, the police cannot keep him under detention as there is no ground of his arrest, under PACE, s34(1) and (2). While Chapple deals with Mr. Yohannis case, it is bound by the SRA Code. Chapple will pursue Mr. Yohannis’s case on time. Chapple will act only on client’s instructions and keep

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18. Martin Hannibal, Lisa Mountford and Andrew Keogh, Criminal Litigation Handbook 2013-2014 (Oxford University Press 2013) 18.
19. SRA, ‘SRA Principles’ accessed on 24 February 2021 .
20. Martin Hannibal, Lisa Mountford and Andrew Keogh, Criminal Litigation Handbook 2013-2014 (Oxford University Press 2013) 21.
21. Ibid.
all communication confidential. Chapple will comply with rules and regulations including proper accounting and safeguarding of any financial benefit received under Mr. Yohannis’ instruction. Chapple will uphold the principles of rule of law including complying with courts’ order and informing Mr. Yohannis of any conflict in Chapple’s duties to him and to the courts.

Books

Gillespie A and Siobhan Weare, The English Legal System (Oxford University Press 2019) Hannibal M and Lisa Mountford, Criminal Litigation 2019-2020 (Oxford University Press 2019) Hannibal M, Lisa Mountford and Andrew Keogh, Criminal Litigation Handbook 2013-2014 (Oxford University Press 2013)

Others

• Home Office, ‘Bail and refusal of bail by criminal courts and police officers’ (2020) accessed on 24 February 2021
• Home Office, ‘2010 Standard Crime Contract – Specification’
• Legal Aid Agency, ‘Guidance: Work out who qualifies for criminal legal aid’ (2020) accessed on 24 February 2021
• Legal Aid Agency ‘Guidance: Criminal legal aid: means testing’ (2020) accessed on 24 February 2021
• Legal Aid Agency ‘Interests of Justice: Guidance on the Consideration of Defence Representation Order Applications’ (2020) accessed on 24 February 2021 .
• SRA ‘SRA Code of Conduct for Firms’ accessed on 24 February 2021
• SRA, ‘SRA Principles’ accessed on 24 February 2021