Criminal appeals - help to ensure legal aid cover is in place

Wednesday, Aug 30, 2017

The revised procedures we introduced in 2015 for criminal appeals appear to be working well in the majority of cases. However, the Law Society’s Criminal Legal Aid Team has made us aware that some solicitors and counsel find the timescales very tight to apply for full legal aid once leave to appeal has been granted.

One of the examples we were given was the difficulty in taking time to visit the client in custody to sign a new online declaration form for the full appeal application.

We have also noticed a very small number of recent cases in which counsel have done work immediately after the sift but before legal aid has been applied for by the solicitor, when there was no legal aid cover in place.

How to avoid difficulties

There are a number of ways in which time pressures can be eased:

  • Criminal legal aid appeal declaration where legal aid granted at first instance

We do not need a new criminal legal aid declaration form to be signed if legal aid was granted at first instance in the original case.

This is because no new financial test is required if there has been no change in the client’s financial circumstances. In 2015/16, that was the position in 77% of appeal cases.

So in the majority of cases you only need to ask your client to sign the criminal appeal declaration form LAO/APP/1.

This must also be signed by the nominated agent and the application submitted online with any supporting documentation.

LAO/APP/1 is in the declarations section of our website. See Criminal handbook Part 3 Chapter 15 for more details.

  • Where legal aid not in place at first instance

In the remaining 23% of cases, where legal aid was not in place at first instance, we do need to assess financial eligibility.

To do this we need the criminal legal aid appeal declaration form LAO/APP/2 to be signed and submitted.

In these cases where there is a financial test, you should consider obtaining the client’s financial information at the time of taking the instructions for the appeal. You will then be ready to send the appeal application as soon as the case passes the sift, eliminating any possible delays.

The appeal declaration includes the financial details of the client. If you got these at the start of the appeal process you would need to check if there has been any subsequent changes in their financial circumstances.

Client in custody?

If the client is in custody and has no income and capital and the only reason to visit the client would be to obtain their signature, the online declaration can be signed by the nominated solicitor. It can then be submitted online with any supporting documentation.

LAO/APP/2 is in the declarations section of our website. See Criminal handbook Part 3 Chapter 15 for more details.

  • Work done after the sift but before legal aid in granted

You should make counsel aware that they cannot undertake any work until legal aid cover is in place.

Regulation 15 is very limited and only covers work of an urgent nature. Regulation 15 legal aid only remains in force until such time as leave to appeal is granted, either in part, in full, or is refused. It ceases once the sift procedure is completed. Therefore any work done by counsel or the solicitor as a step in proceedings after the sift procedure is completed but before legal aid is granted for the appeal, cannot be paid. See Criminal handbook Part 3 Chapter 15 for more details.

Further details of the current procedures for consideration of criminal appeals and UK Supreme Court applications can be found here.

For more information, please contact:
Kingsley Thomas, Head of Criminal Legal Assistance,

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