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Legal merits test

The second part of the qualification for Legal Aid looks at the legal merits of your case. 

In civil cases, the Administrator looks at the strengths and weaknesses of the matter for which you are requesting Legal Aid to decide whether it would be reasonable in all of the circumstances for you to receive public funding for your case. The Advocate you have consulted will write an opinion for the Administrator based on the legal position and what you have told them about the matter. The Administrator will assess your application against a set of criteria which have been approved by the States of Guernsey. 

Legal Aid does not exist to place legally aided persons in any better position than privately paying clients. At its simplest, the Administrator will be asking:  -  "Would a person of average means be advised to pursue or defend this matter if they were paying the full legal costs themselves?" 

In criminal cases, the Administrator looks at the Interests of Justice, that is the merits of the case - which include a consideration of a person's previous convictions, the nature of the offence and the risk of custody - to determine if an applicant qualifies for Legal Aid. The more serious the charge or possible consequences for the applicant, the more likely that their case will qualify for Legal Aid. 

The legal merits test in criminal cases is likely to be met if your Advocate considers that if convicted, you run the real risk of: a custodial sentence; of losing your livelihood, or a serious loss of reputation. It is also likely to be met if you are under 18 years old, you have insufficient understanding of English or you suffer from a physical or mental disability. 

Full details for the legal merits assessment criteria are set out in:

Circular 2: The Civil Legal Aid Scheme -Scope & Legal Merits.
Circular 3: The Criminal Legal Aid Scheme- Scope and Legal Merits.
Guide to Probable Cause and Reasonableness.

Legal Aid will only be granted once the Administrator is satisfied with both your financial assessment and the legal merits. A Legal Aid certificate only provides cover from the day it is issued and will not cover legal costs retrospectively, that is, before the date of the certificate. 

It is very important for you to immediately provide all financial or other information requested by the Legal Aid office or there may be a delay in granting Legal Aid. This means you will be responsible for all of your legal costs until a Legal Aid certificate is granted unless some or all of these costs are covered under the Green Form Scheme. Your Advocate will explain this to you.

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