What is Legal Aid?
Legal Aid is public funding that provides either full or part payment (depending on an individuals income and circumstances) to legal practitioners who are representing people either during the investigation of an offence or throughout legal proceedings in the Falkland Islands. It is set out in the Legal Aid Ordinance 2020 and Legal Aid Regulations 2020.
Not all cases attract legal aid and the Legal Aid Ordinance and Regulations detail the test that is applied when considering whether the grant of legal aid is merited.
Dependant upon someone's financial circumstances, legal aid may be granted with a requirement that a percentage of the overall cost of representation and/or a lump sum contribution amount is paid by the represented person. All grants of Legal Aid for representation are given a financial limit and detail what they are granted for.
Criminal Advice and Assistance is also known as 'police station advice'.
If you are under the age of 18 years, advice and assistance is available to you whether or not the offence is imprisonable or not.
If you are over the age of 18 years, you are able to access advice and assistance if:
a) you are a witness, suspect or person of interest in criminal proceedings for or in connection with an offence punishable by imprisonment; or
b) you attend voluntarily at, or are taken in the charge of a police officer to, a police station for questioning under cause by a police officer for or in connection with an offence punishable by imprisonment; or
c) you are or may be detained in police custody whether or not you are arrested for an offence punishable by imprisonment.
Yes, criminal advice and assistance is not charged to the person but to the legal aid scheme. Everyone is entitled and it is not subject to a means test.
Criminal Representation is a type of legal aid which may be available to you if you are charged with a criminal offence, or summonsed to court to answer a criminal charge.
The grant of criminal representation is subject to a two-part test:
1) Means (financial eligibility); and
2) Merits test.
Civil advice and assistance legal aid is available to a person who meets the financial eligibility criteria for any civil matter except:
(a) a conveyance of property;
(b) a deed or other document dealing with a change of name;
(d) an application for planning permission under the Planning Ordinance 1991;
(e) an application for a building permit under the Building Regulations 1999;
(f) administration or winding up of a deceased person’s estate; or
(g) representation in any proceedings.
This certificate is available to a person who is, or wishes to
(a) participate as a party to proceedings —
(i) concerning the wardship of a child;
(ii) under Part 4 (Care and supervision) or Part 5 (Protection of children) of the Children Ordinance 2014; or
(iii) under the Mental Health Ordinance 2010 concerning an application or referral to the Mental Health Tribunal;
(b) examine a witness in an inquest into the death of a child.
The legal aid administrator will apply the merits test to any application received for this certificate.
This certificate is available for all civil proceedings, except:
(b) breach of copyright, a patent or a trademark;
(c) a matter under admiralty law;
(d) arbitration or conciliation;
(e) winding up or dissolving a company, or restoring a company to the Register of Companies;
(f) an application for probate or letters of administration of an estate;
(g) proceedings under the Electoral Ordinance 1988;
(h) proceedings instituted to enforce a mortgage or other charge over property;
(i) proceedings under the Licensing Ordinance 1994 except an application for a prohibition order under section 76 of that Ordinance;
(j) a relator action; or
(k) prescribed proceedings.
The prescribed proceedings are proceedings:
(a) relating to the recovery of any debt or other property of an amount or value of less than £5,000;
(b) by the applicant for possession of any premises;
(c) in the Tax Appeal Tribunal or any other Tribunal established by law; or
(d) in the Summary Court under the Employment Protection Ordinance 1989.
(2) A civil representation certificate for a personal injury claim arising from an accident at work may only be granted if the circumstances of the accident are not covered by, or the damages recoverable through civil proceedings are likely to be substantially greater than, the compensation payable under any law in force in the Falkland Islands which provides for the payment of workmen’s compensation.
(3) Save in exceptional circumstances, a civil representation certificate may only be granted in relation to matrimonial proceedings for
(a) a financial order of any kind for the benefit of —
(i) the applicant; or
(ii) any child of the applicant or of the applicant’s spouse or former spouse; and
(b) the custody, care, control, welfare, maintenance or upbringing of or access to any child arising out of the matrimonial proceedings.
If you become entitled to proceeds of proceedings (an award of the court) you will be required to reimburse the legal aid fund, please see regulation 25 of the Legal Aid Regulations for further information.