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Communtity Law Manual | Legal aid | The decision whether to grant criminal legal aid

Criminal legal aid

The decision whether to grant criminal legal aid

The Legal Services Commissioner will assess a criminal legal aid application and decide if the person is eligible for legal aid. Although employed by the Ministry of Justice, the commissioner is required by the Legal Services Act to make these decisions independently of the ministry and the government. In most cases, this power will be delegated to a legal aid grants officer in the local regional office.

Factors taken into account

Legal Services Act 2011, s 8

The Legal Services Commissioner takes the following factors into account in deciding whether to grant criminal legal aid:

  • the applicant’s financial circumstances
  • the seriousness of the offence
  • the interests of justice.

Financial circumstances

Legal Services Act 2011, s 8

You’ll only be granted criminal legal aid if you have “insufficient means” to pay for a lawyer. Legal Aid Services at the Ministry of Justice will take into account how much you earn and how much your disposable capital (your assets) is worth.

Legal Services Act 2011, s 8(3), Schedule 1

Generally, the applicant’s income is their total gross income for the year. However, some welfare benefits are not counted as income.

Disposable capital is the value of any assets owned by the applicant, after deducting:

  • any debts
  • the value of the equity the applicant has in their home up to a specified value ($80,000)
  • the value of any interest the applicant has in their main car for personal use
  • the value of the applicant’s furniture, appliances, clothing and tools of trade
  • the value of any contingent liabilities that may mature within the next six months (for example, if the applicant has guaranteed a loan and they may need to repay it within the next six months).

    Note: The financial position of an applicant’s spouse or partner will also be considered, unless the couple are living apart or they have conflicting interests in the case. Any support that family or others regularly give the applicant may also be taken into account, regardless of the applicant’s age.

Beneficiaries who have no assets will usually qualify for legal aid.

Seriousness of the offence

Legal Services Act 2011, s 8(1)(c)

Applicants will automatically qualify for criminal legal aid if the maximum prison term for the offence is six months or more (and if they can’t afford a lawyer).

Criminal legal aid is not normally available for less serious offences, like traffic offences or disorderly behaviour, but it may still be granted in these cases if there are special factors that require aid to be granted in “the interests of justice” (see below, “Interests of justice”).

It may be worthwhile to apply if a person is first time offender as “interests of justice” may include applications for discharge without conviction or negotiating whether diversion is available.

Interests of justice

Legal Services Act 2011, s 8(2)

To decide whether granting criminal legal aid is in the interests of justice, the Legal Services Commissioner must consider:

  • whether the applicant has any previous convictions
  • whether the applicant is charged with or convicted of an offence punishable by imprisonment
  • whether there is a real likelihood that the applicant, if convicted, will be sentenced to impri­son­ment
  • whether the proceedings involve a substantial question of law
  • whether there are complex factual, legal, or evidential matters that need to be decided by a court
  • whether the applicant is able to understand the proceedings or present their own case, whether orally or in writing
  • in relation to certain Parole Board proceedings, the consequences for the applicant if legal aid is not granted
  • if it is for an appeal, the grounds of the appeal
  • any other relevant circumstances.

The amount granted

Legal Services Act 2011, ss 23, 28

The Legal Services Commissioner grants criminal legal aid at standard amounts that depend on the nature of the case and the experience of the lawyer. The commissioner can specify a maximum amount for the particular case, and can express this in terms of a maximum number of hours or as a maximum dollar amount, or in any other way.

If circumstances require the applicant’s lawyer to do more work than the grant provides for, then in some situations the applicant or their lawyer can apply for and be granted more legal aid.

Being notified of the decision

Legal Services Act 2011, s 26

All applicants should be informed by letter whether their application is successful. If the application for criminal legal aid is successful, the Legal Services Commissioner must also inform them whether they must begin repaying the grant. Applicants may also find out if their grant is successful when they next appear in court. Applicants should contact the commissioner if they want further information about their application. Successful applicants should contact their assigned lawyer as soon as possible.

Changes in your situation

What happens if later my financial circumstances change?

Legal Services Act 2011, s 25

Anyone who applies for or who is granted criminal legal aid must tell the Legal Services Commissioner about any increase in their income or disposable capital that might affect their eligibility for legal aid.

People no longer receiving legal aid must also notify the commissioner if they realise that, while they were receiving legal aid, their income or disposable capital increased by an amount that could have affected their eligibility.

Legal Services Act 2011, s 111

It’s an offence to knowingly mislead or provide false information to the Legal Services Commissioner, or to fail to provide information required by the Act or regulations (for example, not notifying the commissioner of a change in circumstances). The penalty is a maximum fine of $2,000.

Note: Legal aid providers are obliged to inform the Legal Services Commissioner if they know of a change in their client’s circumstances that would change their eligibility for legal aid.

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