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Should you privately fund your criminal defence?

Should you privately fund your criminal defence?

Being accused of a criminal offence can have a devastating impact on every aspect of your life. For suspects with no previous experience of the criminal justice system, the impact can be even more devastating. A criminal conviction can result in the loss of employment, family and friends, and the destruction of established reputations and future careers. If you were facing such an impact on your life, would consider paying for the best legal advice available? But are there advantages if you privately fund your criminal defence compared to Legal Aid?

Many of our clients are eligible for Legal Aid, but for some clients the option of paying privately is more attractive, and for a variety of reasons. For anyone considering paying privately for representation, a key question is; what's the benefit compared to funding with the assistance of Legal Aid?

For some clients privately funding a case may be the only option if they are not eligible for Legal Aid. This is because either they earn too much or because the case is not considered serious enough to merit Legal Aid.

But for those with the option of both, funding a case privately has several advantages:

  • Firstly, the lawyer who has conduct of your case will remain as your lawyer throughout the case from beginning to end. This is not always possible in legally aided cases because of the cuts to Legal Aid funding.
  • Secondly, and perhaps most importantly, your appointed lawyer will be able to represent your interests on matters that would not be covered under Legal Aid. For example, funding under Legal Aid only starts at the point of charge. Legal Aid does not cover anything that might have to be done on a case between an initial police interview and the time a decision is made to prosecute. This period of time can be when the client needs a lawyer most. It can take many months and there may be much that needs to be done within that time. Witnesses may need to be traced and spoken. Clients may have to attend the office to provide further instructions. It may be necessary for enquiries to be made as to the availability of CCTV to prove innocence. All of these enquiries are capable of influencing the direction of a case, including as to whether a matter is ever prosecuted at all. If these enquiries are not made at this crucial stage, not only is a matter more likely to be charged, but the outcome of the case when it comes to the trial may also be adversely affected.
  • Finally, another advantage of paying privately is that you and your experienced lawyer can TOGETHER control how your case progresses and is managed. The enquiries that you feel will help your case can be made because you are funding your case. You will not be constrained by the financial limitations of Legal Aid where permission is required before any expenditure is incurred.

Frequently Asked Questions

How do I know if I'm eligible for Legal Aid or not?

In the Magistrates Courts Legal Aid is means tested and only available to those who qualify. Working out whether you are eligible for Legal Aid is not always a straightforward process and so we advise that you to contact us to discuss your own position. As a general rule, if you are in receipt of benefits then you are likely to qualify. The position becomes a little more complex when you are working.

Legal Aid is also available in the Crown Court but can be the subject of a financial monthly contribution. Legal Aid in the Crown Court is also subject to means testing and eligibility is determined by household disposable income. Where such disposable income is under £37,500, you are likely to be eligible for Legal Aid and contributions determined by reference to how much disposable income you as a household have. Contributions may be payable for up to the first six months of the case.

In the event of a conviction, the Court has the power to make a Recovery of Defence Costs Order. This means that you may have to pay for the cost of your case either in full or in part.

I am considering paying privately, but what are my options?

There are two options; to agree a fixed fee covering the total cost of representation, or to apply an hourly rate. The hourly rate will be determined by the level of experience of the lawyer who has conduct of the case. There are advantages of both methods.

Fixed fees give you the certainty of knowing what your total costs will be. Fixed fees protect you against unforeseen circumstances such as delays which do, from time to time, occur. Under an hourly rate arrangement this would be likely to increase costs.

The alternative is that you agree an hourly rate arrangement where you pay for the work that is done as it is done and you are billed on a regular basis during the course of the case. Cases can also start this way and then move on to a fixed fee at a later stage.

Will I get my money back if I am found not guilty?

If you pay privately for a Magistrates Court case and you are found not guilty, then the court can grant your costs to be paid from government central funds. The work that has been carried out on your case will be assessed by a taxing officer and paid at Legal Aid rates meaning that you will not get back everything you paid, as Legal Aid rates are much lower than private rates.

In the Crown Court, you are not entitled to any costs unless you initially made an application for Legal Aid and the application was not successful. As with the Magistrates Court, the work that has been carried out on your case will be assessed by a taxing officer and paid at Legal Aid rates meaning that you will not get back everything you paid.

If you're considering privately funding your case and have any questions please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.

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