An allegation has been made.... what are my options?
This is Abraham Lincoln's advice....
"He who represents himself has a fool for a client"
Whether that be a lawyer funded by the Legal Aid Agency or privately funded, it is never a good idea to go into the police station or a court without a legal representative. I lose count of the times that my head has sunk to the lawyers bench when an unrepresented defendant has been called into court and dug themselves deeper and deeper into a hole of their own making and always appearing to think that they are doing marvellously.
Legal Aid v Private Client
In the police station
First off, for the most part, anyone, regardless of means, will be entitled to free representation in the police station. If you were arrested without warning and are reading this, you will already be aware of this right. If you didn't have a solicitors number, you may have asked for the duty solicitor. You may however have actually been represented by an 'accredited police station representative' rather than a solicitor. Most of those on the duty rota and indeed police station representatives are good at their job. If you are being invited to the police station for a voluntary interview, similarly you may ask for 'duty' or arrange for a legal aid firm to attend with you free of charge. So why would you think of paying for your legal advice and representation at this stage? There are a few good reasons. Frequently when represented by a legal aid firm you will be one of many clients calling for their attention. They may have been on call for several hours.
You can be fairly confident that if you instruct us at the police station stage, you will be the sole focus of attention. Having obtained disclosure from the officer dealing with your case, of the evidence they say gave them reasonable cause to arrest you, we will give you calm, considered advice as to how to deal with the interview. We won't be worrying about those other detainees waiting for our services. Many cases are won or lost at the police station stage. Another consideration is continuity of representation. One of the most common complaints heard by those working in legal aid firms is "where is the person who represented me in the police station, or the last hearing.
Recognising that representation in the police station is free through the legal aid scheme, we offer a flat rate fixed fee of £300 for police station representation. This fee will cover all work carried out on your behalf during the 'investigation' stage of your case, regardless of how many times you are interviewed.
Not all investigatory interviews, ie interviews conducted within the rules set out by the Police and Criminal Evidence Act 1984, are conducted in the police station. Such interviews are also not always conducted by the police. Several bodies conduct PACE interviews, such as the benefits department of the local authority, the Serious Fraud Office, Trading Standards Departments and even the RSPCA.
Not all police interviews are conducted in the police station. Following some recent changes to the law, there is a growing number of interviews being conducted in the suspects own home. These interviews are, in our view particularly dangerous for the interviewee. For more on this topic view our blog post.
Regardless of where you are being interviewed or by whom, our fixed fee of £300 applies.
In the Magistrates Court
Most cases begin and end in the Magistrates Court. Legal Aid is available but is subject to both a 'merits test' and a 'means test'. The determination of the former is subject to the 'Widgery Criteria'. If there is a risk of a custodial sentence, a conviction would have a serious impact on your life, or the case involves issues of law, then you will probably have no difficulties here. However, many low level motoring offences fall at this hurdle. The means test is however where many fall into difficulties, either because they simply earn too much or because they are unable to provide the requisite proof of income. For a calculator to work out whether you would be entitled to legal aid, visit this page https://www.gov.uk/guidance/criminal-legal-aid-means-testing.
Even if your means and the nature of your case qualify for legal aid in the Magistrates Court, you may still want to consider paying privately for your representation. Legal aid rates, IE the amount of money the government pay for solicitors and barristers to run a case, are shamefully low. If you have taken your car to a garage recently or had the plumber in, you can guarantee you paid more for that service than a legal aid firm will get from the government. In fact, not only have they not risen for over a decade and a half, they have actually been cut and at the time of writing are likely to be cut by a further 8.5% in 2017. The only way a criminal legal aid firm can survive is to maximise their case load and minimise staff costs. Most firms and individuals within those firms. will strive to do there best for you but may not be able to give either you or your case the attention that you and it deserve. This is particularly so in these times where the court process is aimed at putting pressure on defendants to plead guilty at the earliest opportunity and where the defence is forced to identify the issues in the case with the barest of information at the first hearing. Mistakes are often made at this stage. Witnesses are agreed at this hearing, who on a cursory look at the papers may appear insignificant but when the case is examined in more detail, may have had some crucial significance. The days where the defence could ambush the prosecution are long gone and the defence are expected to identify the issues in the case at the first hearing.
To the unrepresented defendant, the Magistrates Court is not a welcoming place. Much will depend on your good fortune in finding a fair prosecutor and a legal adviser who takes their duties to unrepresented defendants seriously. Since 2003 the number of legal applications that the Crown can throw at you have steadily increased from 'Bad Character' 'Hearsay' through to 'Special Measures' for their witnesses. Many of these applications, despite the legal guidance, have become routine , are often without merit and should be opposed.
We guarantee that at any session in the magistrates court, we will represent no more than two clients. In reality we try to keep it to just one. You will get our undivided attention throughout the conduct of your case. We will deal robustly but politely with the court and the prosecution on your behalf.
The Crown Court
Most cases that find their way to the Crown Court, either for trial or sentence, do so because the Magistrates Court have sent them there, having determined that their sentencing powers are insufficient to impose a sufficiently lengthy sentence if the defendant is convicted. . If you are charged with an either way offence, you may still elect Crown Court trial. There may sometimes be a good case for doing so but in others 'electing' may be too much of a gamble. If Lincoln's precautionary advice is wise in the Magistrates Court, it is doubly so in the Crown Court, where the stakes are much higher, the formality greater and the need for an understanding of law and procedure are essential requisites.
Again, the 'austerity agenda' has had significant impacts on the procedures and 'atmosphere' of the Crown Court and even a preliminary hearing can be a daunting experience.
Most people are entitled to legal aid in the crown court, however, for those with an annual household disposable income of between £3,398 and £37,500 , you will be required to make a monthly contribution to the costs of you defence. This contribution can be as high as £900 per month. For more guidance on legal aid entitlement in the crown court follow this link
We offer the same guarantee in the Crown Court as we do in the Magistrates Court and that is, that we will not represent more than two people at the same hearing. In the majority of cases, we will successfully endeavour to keep that at one. You will have already met the advocate dealing with your case and all the necessary preparations will have been made. In many cases this will give us the advantage of being able to alert the usher that we are ready as soon as the court door opens.
For an idea of our charges for preparing your case and advocacy in the Crown Court, take a look at our guide here