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Criminal Legal Aid Manual Applying for Legal Aid in Criminal Cases in the Magistrates’ and Crown Court

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Criminal Legal Aid Manual Applying for Legal Aid in Criminal Cases in the Magistrates’ and Crown Court Criminal Legal Aid Manual Applying for legal aid in criminal cases in the magistrates’ and Crown Court Version Issue date Last review date Owned by 21 October 2020 October 2020 Legal Aid Agency October 2020 1 Version History Version Date Reason 1 January 2010 Original version – replacing the Consolidated Legal Aid Guidance and incorporating changes that reflected the extension of criminal legal aid means testing to relevant Crown Court proceedings 2 November 2010 Updated to coincide with the release of the V7 CDS forms 3 April 2011 Updated to coincide with the release of the V8 CDS forms 4 October 2011 Updated to coincide with the implementation of the Legal Aid Reforms which come into effect on the 3rd October 2011 5 February 2012 Updated to coincide with the release of the V9 CDS forms 6 April 2013 Updated to coincide with the transition to Legal Aid Agency and the introduction of V10 CRM forms 7 January 2014 Updated to coincide with Legal Aid Transformation and the introduction of Crown Court eligibility threshold and the release of V11 CRM forms. Other key changes: Section 18.1 Child Benefit to reflect High Income Child Benefit Charge, Section 22 and Annex 18 to clarify evidence requirements for additional expenditure 8 July 2014 Appendix 1 – Solicitor Payments updated to reflect Legal Aid Transformation fee changes Other key changes: Section 21 - Revisions to means appeals/reviews guidance to clarify the 28 day rule for change in circumstances and the approach to be taken where information is provided that was omitted from the original application. 9 April 2015 Appendix 15 - Prescribed proceedings updated to reflect the changes arising from the Anti-social Crime and Policing Act 2014 Section 18.5 – Disregarded benefits updated to include Community Care and Special Education Needs direct payments Section 8.4 – Full means assessment updated to clarify that application will be rejected for evidence of outgoings above £500 per month. (Limiting to £500 only applies to Crown Court.) October 2020 2 10 August 2015 Updated following the completion of the transfer of grant from HMCTS to the LAA. The manual is now designed primarily for defence practitioners. Key changes: Added guidance about the eForm Added guidance on the application process for civil contempt (including new FMGPOs) and breaches of part 1 civil injunctions under the Anti-social Behaviour, Crime and Policing Act 2014. Expanded the guidance on date stamping and dating of Representation Orders Added Annex with hints and tips for avoiding rejects. Similar hints and tips for the CRM16 added to the Hardship & eligibility review section Expanded the guidance around collection and enforcement for Crown Court Means Testing. Added Annex about the role of the Debt Recovery Company. Added Annex with suggested paragraphs for client care letters 11 February 2016 Updated to coincide with the implementation of a new process for requesting a transfer of Legal Aid to a new Legal Aid representative 12 March 2016 Key Players section updated to reflect the move to a single helpline number for the Criminal Applications Teams. 13 July 2016 Updated to coincide with mandating of the CRM14 eForm for all criminal legal aid applications. 14 February 2017 Key Players section updated to reflect the move to a single helpline number for all CAT and NCT queries including complex means, hardship and contributions. 15 April 2017 Updated to reflect 2017 Standard Crime Contract 16 November 2018 Clarification of capital assessment 17 January 2019 Updated to coincide with the branding of the Debt Recovery Company (DRC) as ‘Rossendales – A Marston’s Regulated Services Ltd Brand’ Updated in relation to where to send the paper CRM16 – see sections 15.1 and 15.5.2. 18 April 2019 Updated to coincide with the branding of the Debt Recovery Company (DRC) as ‘Rossendales a Marston (Holdings) Limited Company’ Changed references to DPA in light of GDPR for data protection October 2020 3 19 July 2019 Updated to coincide with the new legal name of the Debt Recovery Company (DRC), Marston Holdings Ltd 20 January 2020 Annex H - Prescribed proceedings updated to include Stalking Protection Orders, brought in by the Criminal Legal Aid (General) (Amendment) Regulations 2020 that came into force on 20 January 2020. 21 October 2020 Section 3.4 – Dating the representation order updated to include how to get the appropriate representation order to claim the Sending Hearing Fixed Fee. October 2020 4 Contents 1 Means Testing in the magistrates’ and Crown Courts: An overview 9 1.1 Introduction and overview 9 1.2 Administering the scheme 9 2 Key Players (including contact details) 10 3 Applying for criminal legal aid 19 3.1 Legal aid application forms 20 3.2 Apply online using the CRM14 eForm 22 3.3 Submitting applications 25 3.4 Dating the Representation Order 26 3.5 Documentation required to make an application 33 3.6 Length of application process 43 3.7 Prioritising of applications 43 4 Key differences between magistrates’ and Crown Court schemes 44 5 Magistrates’ court scheme 45 5.1 Assigned Counsel 45 5.2 Either way funding process 46 5.3 Virtual Courts 46 6 Crown Court scheme 48 6.1 Relevant proceedings covered by Crown Court Means Testing (CCMT) 48 6.2 Interests of Justice Criteria for Crown Court proceedings 49 6.3 What can the Crown Court grant? 49 6.4 Scenarios where CCMT does not apply 49 6.5 Crown Court trials 51 6.6 Making contributions in the Crown Court 52 6.7 Voluntary Bills of Indictment 59 6.8 Retrials from the Court of Appeal – Criminal Division 59 6.9 Committals for Sentence 59 6.10 Appeals to the Crown Court 60 6.11 Appeals to the Court of Appeal 60 6.12 Appeals by way of Case Stated to the High Court 60 6.13 Civil Contempt 61 6.14 Breach of an injunction under part 1 Anti-Social Behaviours Crime and Policing Act (ASBCPA) 2014 62 6.15 Legal Persons 62 October 2020 5 6.16 Extradition and Terrorism Proceedings 62 6.17 Multiple offences or a series of offences 63 6.18 Adding offences to an existing Representation Order 63 7 Transfer & withdrawal of Representation Orders 65 7.1 Transferring representation orders 65 7.2 Withdrawal of application 66 7.3 Solicitor transfer process - apply for a novation 67 8 The Interests of Justice (IoJ) test 68 8.1 Interests of Justice Appeals (magistrates’ court) 68 8.2 Interests of Justice Appeals for Appeal proceedings to the Crown Court 69 9 General principles of assessment 70 9.1 Levels of means test 70 9.2 Summary of Pre and Post Crown Court Eligibility Threshold – Means Test Map 71 9.3 Initial means test formula 72 9.4 Full means test formula 74 9.5 Aggregation of means 76 9.6 Calculating annual disposable income 78 9.7 Magistrates’ Court Means Test Examples 79 9.8 Crown Court Means Test Examples 80 10 Passported applicants 82 10.1 Category one: Department for Work and Pension (DWP) benefits 82 10.2 Category two: age-related passporting criteria 84 11 Means tested applicants 85 11.1 Types of income - income categories explained 85 11.2 Applicants subject to freezing, restraint orders or confiscation proceedings 86 11.3 Applicants who have been made bankrupt 87 12 Non-passported applicants: Other benefit and income categories 88 12.1 Child benefit 88 12.2 Tax credits 88 12.3 State benefits 89 12.4 Disregarded benefits 89 12.5 Pensions 90 12.6 Income from other sources 90 12.7 Armed forces 92 12.8 Benefits in kind 92 12.9 Erratic income/seasonal workers 93 12.10 Agency workers and Agency only paid staff 93 October 2020 6 12.11 Cash in Hand – employed 93 12.12 Self-Employed applicants 93 12.13 Unobtainable evidence 94 13 Outgoings 95 13.1 Summary of evidence requirements for outgoings 95 13.2 Tax and National Insurance 95 13.3 Housing / accommodation costs 96 13.4 Board and lodgings 96 13.5 Childcare costs 96 13.6 Maintenance payments 97 14 Means appeals and reviews - income 98 14.1 Review of means where there has been a change in financial circumstances 98 14.2 Review of means where there has been an error 99 15 Hardship / Eligibility Review 101 15.1 What is a Hardship / Eligibility Review? 101 15.2 The magistrates’ court hardship review process 101 15.3 The Crown Court eligibility review process 102 15.4 The Crown Court hardship review process 103 15.5 Completing the application form (CRM16) 104 15.6 How the hardship application is processed 106 15.7 Appealing a hardship / eligibility review decision 109 16 Means appeals and reviews - capital 111 16.1 Review of Capital Contribution Order where there has been an error 111 16.2 Review of Capital & Equity where there has been a change in circumstances 111 17 Legal Aid Key Performance Indicators (KPI) 112 18 Annex A: Solicitor Payments 114 19 Annex B: Retrial ordered by the Court of Appeal 118 20 Annex C: Voluntary Bill of Indictment 119 21 Annex D: Sentence Review hearings under section 74 of the Serious Organised Crime and Police Act 2005 (SOCPA) 120 22 Annex E: Criminal Funding in Proceeds of Crime Matter 121 23 Annex F: Statutory provisions protecting witnesses from cross- examination 123 24 Annex G: Interpreters Costs 124 25 Annex H: Prescribed proceedings 125 26 Annex I: Magistrates’ Court Means Test Examples 131 October 2020 7 27 Annex J: Crown Court Means Test Examples 133 28 Annex K: Case Costs 135 29 Annex L: Judicial Apportionment 137 30 Annex M: End of process guidance 138 31 Annex N: Debt Recovery Company’s role in collecting criminal legal aid contributions 140 32 Annex O: Standard paragraphs for client care letters 142 33 Annex P: Hints and tips on applying for Legal Aid 144 34 Annex Q: Forms Guidance 151 35 Annex R: Guidance on Retention of Files & Evidence 182 36 Annex S: State Benefits 183 37 Annex T: Further Guidance & Tools of the Scheme 188 38 Annex U: Definitions 190 39 Annex V: Glossary 191 October 2020 8 1 Means Testing in the magistrates’ and Crown Courts: An overview 1.1 Introduction and overview This manual is designed to provide comprehensive information and guidance on the criminal legal aid application process for magistrates’ court and relevant Crown Court proceedings.
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