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Funding Your Criminal Defence
Should you require privately or publicly-funded representation, JMW is able to offer unrivalled value for money and a first-class defence.
We provide a bespoke private client service, drawing on 40 years of experience to offer the very best in legal representation. Depending upon the nature of the case, we offer the following funding options:
Bespoke hourly rate services
Our competitive and flexible rates are calculated with reference to the nature of the case and the level of representation selected by our clients - ensuring the funds are allocated in the right way to give you the best chance of getting the outcome you want.
We are able to offer competitive and negotiable fixed-fee representation in the majority of cases heard at the Magistrates' and Crown Court. This has been particularly welcomed by our clients following recent changes to legal aid provisions.
Clients with a disposable household income of more than £37,500 per annum will no longer be eligible for Legal Aid in criminal cases unless very exceptional circumstances apply. In addition, those who are eligible may be required to pay a high level of contributions to their defence costs and there are many circumstances in which private funding is more cost effective.
Rather than publishing a table of our fixed fees, we assess your individual case - what you are facing, the level of representation you choose and what you want to achieve in the case - so that we can offer a fixed-fee tailored to your personal requirements.
When the complexity of the matter means we cannot offer a fixed-fee for the whole case, we may be able to provide fixed fees for stages within the case. If it is not possible for us to provide fixed fees, we can still help you budget properly by providing regular cost estimates and we can also offer payment plans for complex or long-running cases.
£900 investigation fixed fee
We receive daily enquiries through our website on a very broad range of professional and corporate regulatory topics. It is often impossible to accurately determine the prospects of success or the full extent of the required tasks during the initial phone call. This is most relevant to crypto-currency issues, enquiries in relation to asset recovery or individuals/companies seeking advice on potential private prosecutions.
If other funding options (e.g. insurance cover or Legal Aid) do not immediately apply, we sometimes offer a £900 fixed fee, including VAT, covering a maximum of three hours work to take more detailed instructions, make initial enquiries and provide the client with written advice on prospects, the tasks involved and the likely costs implications.
This can include advice on whether other funding options are available beyond the initial stage.
This means that cost exposure is limited in the first instance and the client obtains meaningful advice on their options, rather than very general and qualified free advice during the first telephone call.
If a client decides not to take the matter further than the £900 fixed fee, they know that they have fully explored their options. If they decide to pursue the matter, payment of the £900 fee means that some of the work has already been undertaken. Either way, we find that clients really appreciate this option as a facility by which they can obtain real cost-effective advice without long term commitment.
At JMW, we have many years’ experience in representing both individual and corporate clients with insurance policies providing cover for legal fees and expenses. We are also able to advise on whether the policy terms provide cover in a particular case. We are experts in regulatory and management liability cases - in which we often act for current or former company directors, officers and employees.
Many such cases are defended with the benefit of ‘Directors and Officers’ insurance cover, but other types of insurance will sometimes pay for legal expenses in a wide variety of cases. We have represented clients in complex matters where they were unaware of the facility and we saved them an enormous amount in terms of legal expenses.
Conditional fee arrangement (reduced fee)
Some of our cases are suitable for a type of Conditional Fee Arrangement (CFA). In personal injury matters, CFAs are sometimes referred to as a ‘no win no fee’ agreement. A conventional CFA is not normally available in our cases, but it is sometimes possible to offer a reduced fee CFA. This is an agreement in which our client pays a greatly reduced fee to us for the duration of the case.
The rate is calculated as a percentage of our normal hourly rates. If our client wins, we claim costs from the opponent and our client is reimbursed some or all of the fees already paid to us. If our client loses, they only pay the agreed percentage of our normal hourly rate, although some cases also involve exposure to payment of costs and other fees incurred by the opponent.
This type of CFA is most suited to Judicial Review and cases where the court normally awards costs to the successful litigant. The reduced rate ranges from 25% to 50% of the normal hourly rate.
For over forty years, we have had a contract with the Legal Aid Agency to provide publicly-funded defence services at the police station, Magistrates and Crown Courts, as well as the Court of Appeal and High Court, where applicable.
We have defended with the benefit of a Legal Aid certificate in many of the largest cases ever prosecuted in the UK.
Legal Aid can be a very effective way in which to defend a case, but it is not always free and other options offer higher, more experienced levels of representation. However, Legal Aid is sometimes the only option, particularly where our client has been served with a restraint order or freezing order. JMW is certainly one of the very few large, full-service, UK-wide law firms to offer Legal Aid representation by highly specialised teams supported by over six hundred other lawyers and staff across thirteen different departments.
When clients are acquitted or if relevant applications succeed, recovery of costs is a priority and JMW employs a specialist team of in-house costs lawyers for that purpose. Although the majority of costs applications can be handled by the lawyer with direct conduct of your case, our ability to offer the services of a dedicated costs recovery lawyer in complex cases can make a very real difference to the net level of funding.
Can I recover my private defence costs at the Magistrates' Court if I am found not guilty?
In most circumstances, acquitted defendants are entitled to the return of defence costs. Following changes to the law in October 2012, defence costs are returned at legal aid rates - and these can be lower than private rates.
Can I recover my private defence costs at the Crown Court if I am found not guilty?
Assuming that defence costs are not covered by a policy of insurance, you will need to apply for legal aid at the start of the case in order to stand a chance of recovering any defence costs at the Crown Court. This applies even if you know that you are ineligible. If legal aid is refused and you are found not guilty (or if the case is discontinued prior to trial), you can apply for the return of defence costs at the prevailing legal aid rates.
If I have Legal Aid and I am found not guilty, do I get my monthly contributions back?
In almost all circumstances, contributions paid from income will be refunded and this is a factor to consider when deciding whether private or public funding is appropriate. If you pay privately and you are found not guilty, you can only apply for the return of costs at legal aid rates. However, funding your defence with a legal aid certificate has implications for the level of available representation and other factors will influence the decision. We, therefore, find that clients appreciate a face to face meeting to discuss funding issues as well as case objectives.
If I have a Legal Aid order, why might I have to pay a contribution from my capital assets?
The full details are beyond the scope of this section but, in general terms, the Legal Aid Agency (LAA) will assess your financial means and, if your disposable household income reaches a certain level, they may require you to make five or six monthly payments from your income at the start of the case. At the end of the case, the LAA will calculate the total defence costs incurred by your representatives (at legal aid rates) and if the payments from income are insufficient to cover those costs, the LAA may require you make a payment from your capital (after disregarding the first £30,000 of capital). This claim against capital can apply to equity in a property, certain savings or investments etc. The LAA can apply to register a charge against property and it is therefore important to obtain early detailed advice on how a legal aid order operates at the end of a case. This can influence a client’s funding choices from the very beginning.
If I am found guilty of one charge and not guilty of another, can I recover some of the Legal Aid contributions or can I avoid making a payment from capital?
Yes. The Crown Court has the power to apportion defence costs between counts on the indictment, and your representatives should make the appropriate application to the court at the end of the case if you are acquitted of one or more counts. This can make a huge difference to the amount of income or capital recovered by the LAA and many solicitors are unaware of the facility. There are strict time limits and the applications are sometimes quite complex. Pro-active advice is, therefore, necessary to protect a client’s costs position.
Do I need to pay for anything other than defence costs?
There may be prosecution costs, compensation and/or a financial penalty to pay if you are found guilty. It is also possible that you will be required to pay disbursements, although these can usually be anticipated and calculated as part of the costs estimate or fixed-fee. These disbursements can include experts' reports or counsels' fees, depending on the nature and requirements of your defence.
If I am eligible for legal aid at the Magistrates' or Crown Court, is it better to pay privately?
This is dependent on the level of service you choose, as well as the level of legal aid contributions from income/capital that you may have been asked to pay. The nature and length of the case, together with your intended plea, will also be important. From our side, we are able to provide the relevant figures and explain what you can expect from your defence team - both in legal aid and privately funded scenarios - to help you make fully informed choices.
What level of service should I expect from a Legal Aid certificate?
A Legal Aid certificate is not designed to provide the levels of service ordinarily provided in privately-funded cases. The hourly rates paid to defence solicitors under a criminal Legal Aid certificate average between one-eighth to one-quarter of the hourly rates charged on a private basis. Many Legal Aid cases are paid as 'graduated' or 'standard' fees, as opposed to payment at an hourly rate. In other words, no matter how many hours are spent preparing the case, the same fee is paid.
All of this means that work undertaken in Legal Aid cases will usually be carried out by a junior lawyer, while some firms use clerks without legal qualifications. Where senior lawyers or partners become involve, it will usually be in a supervisory capacity or in specific aspects of the case. In order to make a profit, work needs to be carried out very efficiently and firms that cut corners to turn a profit are easy to spot. JMW benefits from 35 years of experience in criminal defence and we have successfully migrated into an award-winning full-service law firm.
Although Legal Aid cases at JMW must be resourced by staff of an appropriate level, and we are not involved in the high volume, low-cost aspects of criminal defence. We will agree to act with the benefit of a Legal Aid certificate where we believe that we can use our private client services without compromising quality. We do not offer 'two-tier' representation and this means that we may decline to act in some cases where clients wish to apply for Legal Aid.
What if my financial circumstances deteriorate during the course of a privately-funded case?
There is a possibility you will be able to make a fresh application for legal aid using evidence of the revised income and relevant living expenses. You should bear in mind, however, that legal aid does not always represent the most cost-effective approach - and we can assist with the calculations so that you can make the best decision.
Am I eligible for Legal Aid?
Representation in criminal matters during an interview at a police station can be free of charge, although this usually results in very junior representation.
Criminal Legal Aid is available for cases at the Magistrates Court when the charge is sufficiently serious and the applicant passes a means test. Legal Aid is available at the Crown Court, but is subject to a means test and sometimes requires the applicant to pay:
(i) contributions from income during the case
(ii) a contribution from capital at the end of the case.
We can advise on eligibility and we assist with making the application.
Can I transfer my Legal Aid certificate?
We often receive enquiries from defendants who are represented by other firms, but who wish to transfer their publicly funded case to us. Sometimes, it is better to resolve the problem with existing representatives.
In a small number of cases, discharging the Legal Aid certificate might be the better option. An application to transfer is first served upon existing representatives so that they can agree or disagree. It is then sent to the judge, who applies some fairly strict criteria to whether the Legal Aid should be transferred. We can advise on whether an application is likely to be granted.
Partner and Head of Department
Business Crime, Regulation & Driving Offences