Will I qualify for Criminal Legal Aid?

Whether it is in the interests of justice that someone qualifies for legal aid in connection with criminal proceedings is determined with reference to ten questions known as the “Widgery Criteria”

Under Section 17(2) of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 the decision maker (the Legal Aid Agency) must consider the following factors;

1. If there is a likely loss of liberty

This isn’t just an immediate prison sentence, but also includes suspended sentences. Most would agree that being placed on an electronic tag whilst subject to a curfew order is a loss of liberty but it is not a custodial sentence so the criteria is not made out. However, it is of note that many curfew orders are attached to suspended sentences which would qualify.

It is therefore important that the application specifically addresses the sentencing guidelines with regard to the starting point in relation to the offence and takes into account aggravating features. If a defendant is in custody then the test could be satisfied, but only where he or she has been remanded into by a court and an explanation for the refusal of bail has been provided.

2. If they are already subject to a suspended sentence or non-custodial sentence

In this instance there is a strong presumption that legal aid would be granted, because if convicted of the new offence there is a presumption that the court would impose the period (or part) of imprisonment of the suspended sentence as well as imposing any additional punishment for the new offence.

3. If there is a likely loss of livelihood

This can be quite complicated, but in effect it applies where for example a conviction is likely to result in you losing your job. But, if it is your intention to plead guilty it is unlikely that you would qualify if the sentence by law is likely to result in a loss of livelihood. If the loss of livelihood is discretionary and representation is to be used to try to convince the court to exercise discretion, it may be argued that there would be prejudice if you would have difficulty in persuading a court to exercise that discretion without representation. If the offence is admitted and you intend to plead guilty, it is important that the application is clear on why legal aid ought to be granted.

4. If there is likely damage to reputation/character

In this question there are three things to take into account, the current reputation of the defendant, the seriousness of the offence and the intended plea. If a defendant already has convictions then it is unlikely that they can successfully argue that there would be damage to a reputation and this is usually aimed more at people without previous convictions. But it may be successfully argued if those convictions are spent. In a previous case (R v. Chester Magistrates’ Court ex parte Ball, (1999) 163 JP 757) it was decided that a person should be granted legal aid if they were of good character and denying an offence more serious than a Section 5 Public Order Act offence or equivalent. In cases where there is to be a guilty plea it is unlikely that this criteria could be satisfied as the damage to reputation in inevitable and no amount of reputation would assist in mitigating that damage.

5. If there is a substantial question of law may be involved

There are many instances where complex areas of law may be involved. Prosecution applications for bad character or hearsay evidence are quite routine but could be used. More persuasive would be a defence application to adduce evidence of bad character of a co-defendant or prosecution witness or where there are likely applications by the defence for disclosure. Even more forcible are arguments where there are issues such as applications for exclusion of evidence in accordance with Police and Criminal Evidence Act or where the issue at trial is one of identification and that evidence should be challenged properly in cross examination.

6. If they may not be able to understand the court proceedings or present their own case?

Defendants who do not speak English do not have an automatic right to representation under this criteria as interpreters will be provided. But if a defendant is unable to read or write then there is a strong argument that they cannot understand the proceedings as they will be unable to read the evidence and prepare their case. Other examples may include the age of the defendant (young persons) or where a defendant is suffering with a mental health condition which is such that it satisfies the question.

7. If witnesses may need to be traced or interviewed on their behalf

In this question it is important to explain why the witness’ evidence is important and why legal assistance is required in order to trace and interview them. Often people miss this opportunity as an argument in granting criminal legal aid. But often alleged offences take place in a public place, a defendant disputes what the police and prosecution say has happened and it may have been witnessed by unknown members of the public or captured by CCTV. That might be a sufficient argument in granting legal aid in order to try to trace those witnesses or obtain any CCTV footage.

8. If proceedings may involve expert cross-examination of prosecution witness(es)

This is a question where there are so many variables and points to consider. One of the misconceptions is that it relates to cases where there are expert witnesses, it does not. It relates to expert cross examination of witnesses generally. In making an application various matters ought to be considered, such as the seriousness of the case, the nature of the matter in issue, the age and vulnerability of the witness or the number of witnesses. Every case is different and answering this question can be complicated so it is important that defendants receive expert legal advice.

9. If it is in the interests of another person that they are legally represented

In this question the answer tends to be that other “person” relates to a complainant or other prosecution witness, where it would be undesirable for the complainant to be cross examined by the defendant for example in a domestic abuse allegation. But, that is not always the case. The other “person” might actually be a co-defendant and representation is required particular where there is a conflict of interest or where it can be shown that there should be equality or arms.

10. Any other reasons

It is not usual for another reason on its own to merit an award of Legal Aid, but this is not always the case and will depend on the reason. Examples in this category could be expert cross examination of a co-defendant or a co-defendants witnesses or where a defendants conduct of the case might distract the court from exercising its function and representation might go some way to alleviate that distraction.

As well as the interests of justice test, there is also a financial test, meaning that those earning above a particular figure will not qualify for legal aid regardless of the questions above being answered satisfactorily. In the Crown Court, most will qualify for Legal Aid, but you may have to pay a contribution towards your legal costs. For more information about legal aid and other ways to fund a case, please see here

Burton Copeland have over 30 years experience in making legal aid applications on behalf of clients for all types of cases. So if you need any assistance with making an application, please feel free to contact us.