Legal aid — Eligibility checklist

Offence punishable by maximum term of imprisonment of six months or more
An appeal
Parole Board proceedings relating to postponement orders, recall orders and orders that prisoner not be released
Interest of justice require that applicant be granted legal aid include:
  • previous convictions
  • offence is punishable by imprisonment
  • real likelihood of imprisonment
  • substantial question of law
  • complex factual, legal or evidential matters that require determination of Court
  • whether applicant is able to present his or her own case, whether orally or in writing
  • what consequences will be for applicant if legal aid is not granted
  • in respect of an appeal, what grounds of appeal are
  • any other circumstances, for example, literacy problems or limited understanding of English language

Seriousness of the offence

Last reviewed: 31 October 2024
Cathie Sheat, Barrister and Solicitor
Meeting the seriousness threshold
In deciding whether legal aid should be granted, Legal Services must consider the seriousness of the offence.
If a client is charged with an offence that is punishable by a maximum term of imprisonment of six months or more, the seriousness threshold is met.
The seriousness threshold is also met in legal aid applications relating to:
References: Legal Services Act 2011, s 8
  • an appeal; or
  • New Zealand Parole Board proceedings relating to postponement orders, recall orders and orders that a prisoner not be released.
Legal aid may also be granted if it appears to Legal Services that the interests of justice require that the applicant be granted legal aid.
See Seriousness of the offence checklist.
Interests of justice
The legal aid application form contains a section relating to the seriousness of the offence. There is also a field on the form where you can outline issues which relate to the interests of justice. See Applications for legal aid — Applicants and applications.
References: Legal Services Act 2011, s 8
Wahrlich v Bate 1990 3 NZLR 97
Legal Services Agency v Minchington 2003 1 NZLR 263
Legal services must consider:
  • whether the applicant has any previous convictions;
  • whether offence is 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 require the determination of a court;
  • whether the applicant is able to present their own case, whether orally or in writing;
  • what the consequences will be for the applicant if legal aid is not granted; and
  • in respect of an appeal, what the grounds of the appeal are.
Legal Services must also consider any other circumstances that, in their opinion, are relevant.
Previous convictions
If the applicant has previous convictions, it may make the consequences of another conviction more serious for that applicant than someone else charged with the same offence.
If the applicant does not have any previous convictions, and they may be eligible for a discharge without conviction, the interests of justice may require that they are represented by counsel who can prepare a written application on their behalf.
Imprisonment
Although a person may have been charged with an offence punishable by less than six months imprisonment, they may face imprisonment because of their offending history or because they may have committed a very serious form of that offending.
Legal issues which require legal representation
There may be issues which require that a person charged with a less serious offence requires legal representation, such as:
  • legal defences;
  • defending a charge in court;
  • literacy problems; or
  • a limited understanding of English language.
Serious consequences
A person may be facing a more serious consequence of their charges which still falls short of imprisonment. In particular, breaches of sentences will often result in stricter sentences being imposed.
References: Sentencing Act 2002, s 69H
Sentencing Act 2002, s 70
Sentencing Act 2002, s 71
Sentencing Act 2002, s 80T
Merits of an appeal
The merits of an appeal must be taken into consideration when assessing an application for criminal appellate aid, but merit is only one of the seven mandatory criteria to be considered. Legal aid may be granted even if the appeal lacks merit. The existence of merit in an appeal is not a prerequisite to a grant of criminal legal aid.
References: Marteley v Legal Services Commissioner 2015 NZSC 127
Related checklists
See also: Attached - Diversion