Representation orders
17. Criminal legal representation is only funded
by the Criminal Defence Service where a representation order has
been obtained by the defendant. Although the Legal Services Commission
is responsible for funding the CDS, the courts grant representation
orders. Most often this is done by magistrates' courts, even if
the case is to be tried in the Crown Court. The Justices' Clerks
explained to us that, in practice, clerks or other court staff
decide whether legal aid should be granted in the majority of
cases and that this decision may then be appealed to the court.[8]
Interests of justice test
18. Representation orders may only be granted where
it is in the interests of justice to do so. In broad terms, it
is in the interests of justice to provide a defendant with free
legal representation in cases:
- where the outcome could have
serious implications for the defendant, such as imprisonment,
loss of livelihood or serious damage to their reputation;
- where the proceedings would be difficult for
a defendant to understand or defend in person;
- which involve an important question of law; or
- where representation is necessary to protect
a victim or witness against personal cross-examination by the
accused.[9]
Means testing
19. At present, a defendant's means are irrelevant
in the determination of whether or not they should receive publicly
funded criminal legal representation. If the interests of justice
test is satisfied, the cost of a defendant's legal representation
would be paid by the Criminal Defence Service. In the Crown Court,
a Recovery of Defence Costs Order may, however, be made at the
end of a case resulting in a defendant paying some or all of their
legal aid costs.
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