Private Funding vs. Legal Aid: Key Considerations

Why would I pay privately instead of applying for legal aid?

In our experience, people tend not to factor in the possibility of a criminal prosecution as an element of their financial planning.  Having to defend yourself against the State, during the course of a police or HMRC investigation, followed by lengthy court proceedings, rarely appears in the “anticipated costs” column of any years’ household budget.  It is also an accepted truth that the vast majority of people finding themselves within reach of the long arm of the law have below average incomes, often significantly so.  This is why the criminal legal aid system was first developed – to ensure that everyone has access to a lawyer and the opportunity to build a defence case worthy of the name, regardless of ability to pay. 

Sadly, the obvious need for a well funded and fairly operated criminal legal aid system stands in stark contrast to the gradual decline of that system over the past 20 years.  It is likely you will have read articles about the erosion of legal aid in recent years.  Even while the Government has periodically attempted to label the solicitors and barristers who work within the system as “fat cats”, the public have come to realise that criminal legal aid lawyers have not had a pay increase for over 20 years and that such labels simply do not adhere so easily anymore.

Legal Aid Eligibility under Attack

Government attempts to reduce the legal aid budget have not rested on the lawyers’ pay.  Eligibility for legal aid has also come under attack in numerous ways.  Means testing has removed legal aid from many people altogether in the Magistrates’ Courts.  You do not have to be a salaried professional, earning at city based levels, to find yourself outside the scope of legal aid.  Many self employed tradesmen, such as painters, electricians, plumbers or those working in the field of construction, will not qualify for legal aid at all in the lower court.

In the Crown Court, a greater number of defendants will pass the Financial Means Test but most will find that they need to pay monthly contributions.  The calculations carried out by the Legal Aid Agency will prioritise Legal Aid contributions above other household costs or outstanding debts.  This can lead to situations where your “disposable income” is deemed to be considerably higher than you might imagine.  Appeals by way of “Exceptional Hardship” applications are now a regular aspect of these cases but the success rate is low.  It is important to note that if you’re acquitted of all charges faced, these contributions will be reimbursed.  However, a conviction can lead to the State requiring a “Capital Contribution” from you after the case has concluded leading to further hardship at a time when you can least afford it.

Limited ability to recoup defence costs – even on acquittal

Most people would probably accept that those guilty of committing a criminal offence should have to contribute towards the costs of their defence.  However, the squeeze on costs has not been directed solely at the convicted.  Those that choose to fund their defence on a private basis should be aware that, even on acquittal, they may not be entitled to recoup any of their outlay.  Further, in cases where some reimbursement is possible, the refund will only be paid at legal aid rates (which may only cover a third or a quarter of the fees paid out).

So if legal aid is not what it used to be, what other options do I have?

Are you covered for legal costs by your household insurance? 

You might be one of the lucky (or especially prudent) few who find that their household insurance covers the costs of a criminal defence case.  Policies offering cover in these circumstances are few and far between and, as stated above, most will not select their insurance policy based on the risk of criminal prosecution.  If your policy does provide such cover, the solicitors at Old Bailey Solicitors have experience of working within the tight framework required by insurance companies (providing costs estimates in advance and regular updates throughout the case to ensure that fees are both reasonable and agreed).

Legal Aid vs Private Funding

If insurance cover is not an option, you are left with the choice of applying for legal aid or funding your case privately.  There are a number of factors to weigh in the balance before you make your decision and you will need to discuss some or all of the following with your solicitor:

1. Estimate of total case costs. This much is obvious, if you have access to £5,000 but your case is likely to cost £20,000, you will need to consider an application for legal aid.

2. Can a fixed fee be agreed? Knowing at the outset what the total cost of your case will be (and whether that includes a barrister’s Brief Fee or not) is essential. At Old Bailey Solicitors, we will always look to offer a fixed fee and we will set out exactly what the fee covers and what it doesn’t to help you make an informed decision.

3. How will you raise the money to fund your case? Some people, but perhaps not many, will be able to rely on their savings.  Others may have to consider taking out a loan or releasing capital from their property.  Often it is a family member who is prepared to cover the costs on your behalf.  There are also “Crowd Funding” options which may be worth investigating.

4. Will the fee differ depending on the advocate that is instructed in your case? It may be that you instruct a Solicitor who can conduct all the advocacy in your case.  This should help to reduce costs.  Alternatively, you may want a Barrister to be instructed to conduct your trial.  The level of experience and expertise that the advocate brings to your case will often determine the cost.  You will want to consider a range of options and understand what each advocate will bring to your case.

5. Should Queen’s Counsel be instructed? Who wouldn’t want to be represented by the very best advocate available?  However, a QC will also be the most expensive option.  Is your case so serious or complex that a QC is strictly necessary?  Even if not, you may want to consider this option.  The instruction of a QC is strictly controlled in legal aid cases and the option will only be available to you on the say so of the trial judge.  If you are paying privately, you can instruct whoever you want, cost and availability allowing.

6. Who will have primary conduct of your case and what level of client care do you expect to receive? The experienced solicitor who determined which firm you decided to instruct may not retain primary conduct of your case on legal aid.  This is worth checking before you decide how to proceed.

The tight profit margins provided by legal aid has, by necessity, led to many cases being overseen by paralegal assistants, supervised by a more experienced solicitor.  Similarly, a solicitor attending upon the barrister at court has become a rare occurrence in legal aid cases.  A privately paying client may have the benefit of both lawyers at court and that exemplifies the difference in client care generally.  Consider whether you will want to have access to the senior lawyer whenever you email or call in with a question.  Consider who you would want to be analysing the prosecution evidence and then meeting with you to provide advice.  On legal aid, these options will be more limited.

As with most things in life, you get what you pay for.  

How Old Bailey Solicitors can help

Whatever your financial circumstances, you should consider your options carefully and you will need to assess the quality of the advice you receive.  At Old Bailey Solicitors we will provide you with an honest appraisal of each option and allow you to make your decision.  If Legal Aid is available to you, we will tell you.  But we will also not shirk from drawing your attention to the potential drawbacks.