Liability For Costs In Crown Court Criminal Defence Cases: The Perils Of Cohabitation And Solicitor's Duties

The Government believes strongly that those convicted of crime should make a contribution to some or all of their publicly-funded defence costs. By ensuring that finite legal aid resources are better targeted at those individuals who most need them, means testing will help to put the legal aid budget on a more sustainable footing.

Every defendant who appears for trial at the Crown Court will be granted a representation order provided they have submitted a completed application form1. This raises the question of a solicitor's duty towards a defendant's partner. Their income and assets form part of the assessment. To date, this has not been a significant issue as means testing in the magistrates courts simply determined whether they were eligible or not. It was a "yes / no" test and not a partial test. But in the new system (Statutory Instrument No. 142, The Criminal Defence Service (Contribution Orders) (Amendment) Regulations 2010, Commencement - 1 January 2010 – this has been run as a pilot scheme but since 28 June 10 is of general application), capital is up for grabs, including shared capital.

As part of the application process, defendants will be asked to provide information about their income and capital assets, in a number of circumstances they will also be required to provide supporting evidence. On assessment of a defendant's disposable income, a test which aggregates his2 means with his partner's, the eligibility test will determine whether a defendant falls into one of four categories:

Entitled to free legal representation; Exempt from the payment of an income-based contribution (as the joint disposable income is in less than £3,398 pcm); but liable for all or part of his legal aid costs following a conviction based on having capital or equity in excess of £30,000. Required only to pay a capped income-based contribution on a monthly basis Required to pay a capped income-based contribution and liable for the remainder of his legal aid costs following conviction because of the high value of their capital assets, including equity, in excess of £30,000. Capital and equity contributions will only be taken from that portion which is above the £30,000 threshold and includes equity in property. It should also be noted that there are circumstances in which a convicted person can be required to contribute to the costs of his prosecution.

A dilemma for defence solicitors arises. You need the partner (note: there is...

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