The Legal Aid Agency

An executive agency of the Ministry of Justice, established under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). It commissions and pays for legal services in civil, family and criminal matters, applies the means and merits tests, and contracts with solicitors and barristers under fixed fee schemes.

Criminal legal aid covers police station advice, magistrates' court representation, and Crown Court representation. Each stage has its own test. The police station scheme is automatic and free. Magistrates' court representation requires the Interests of Justice test and a means test. Crown Court representation requires the Interests of Justice test and is subject to a contribution scheme: income-based contributions while the case is live, capital contributions if convicted.

Set out in Schedule 3 LASPO. Factors include: whether conviction would risk a loss of liberty or livelihood or serious damage to reputation; whether the case involves a substantial question of law; whether the defendant can understand the proceedings or state their own case; whether the case involves tracing or interviewing witnesses or expert cross-examination; whether legal representation is in the interests of someone other than the defendant. Most contested cases meet the test.

In the magistrates' court, applicants with gross annual income under a threshold pass automatically; above the upper threshold they are ineligible; in between, a detailed assessment looks at disposable income. In the Crown Court there is no upper income limit but contributions can be required from income during the case and from capital if convicted. The means test does not apply to under-18s.

Defendants with disposable income above a threshold pay monthly contributions during the case. If acquitted, contributions are refunded with interest. If convicted, a capital contribution may also be required from realisable assets. Defendants found not guilty who paid privately cannot recover their costs from central funds at private rates: they recover only legal aid rates, which are substantially lower.

Where legal aid is not normally available for a category of case, ECF can fund representation if failure to do so would breach the applicant's rights under the European Convention on Human Rights or retained EU law. Grant rates are low and applications are demanding. ECF is most often used in immigration, inquests and complex family proceedings.

Criminal legal aid rates have not kept pace with cost. Many firms no longer take on legal aid work. The duty solicitor scheme faces a sustainability crisis: in some areas, no solicitor is available within the required time. Defendants in either-way and Crown Court cases face the choice of legal aid representation under pressure, or private representation at significant cost that is largely unrecoverable on acquittal. This is the structural reality behind the right.