access to justice

• government funding for civil and criminal cases

  • state-funded legal assistance (open legal system)
  • government funded schemes to help those people who can't afford to get legal advice or legal representation.
• there are 3 main difficulties

  • a person fails to see that their problem has legal implications
  • when a person fails to pursue the case because of implications like cost, or sees solicitors as unapproachable
  • when a person doesn't know of the existences of a legal service or cannot find the one who could help.
• Legal Aid agency

  • made in LASPO 2012
  • government agency set up to administer the civil and criminal legal aid in England and Wales
  • various services were made available such as Legal help (where advice can be given) and legal representation (which gives full legal services)
• legal aid agency role

  • ensure that legal aid services provided by barristers, solicitors and the not-for-profit sector are available to the general public
  • fund the civil legal advice service
  • run the public defender service to give a range of services within the criminal defence market
• government funding for civil cases

  • Civil Legal Advice is a national telephone service and website that provides legal advice on civil matters. can get advice on debt, education, discrimination, housing, family issues.
  • to qualify for funding, claimant needs to pass both means and merits test
• means test

  • look at both the claimants income and capital, will also look at their partner's finances unless they have a contrary interest.

  merits test

  • looks at the reason for taking the action, and the chance of success.
• certain limited types of claims are able to be funded by civil legal aid

  • repossession of a property
  • asylum and immigration cases
  • medical negligence cases
  • mental health and child welfare cases
  • protection from violence or harassment
• government funding for criminal cases

  • under the jurisdiction of the Legal Aid Agency
  • agency makes contracts with law firms to provide legal services to people charged with criminal offences
  • under s13 of the LASPO 2012, legal aid for advice is provided for a suspect detained in police custody and who has requested legal advice.
• criminal cases advice and assistance for individuals held in custody

  • not means tested
  • advice is provided by duty solicitors
  • duty solicitor decides whether a suspect qualifies for the scheme and for either fact-to-face advice
  • solicitors can only claim for attending at the police station if they can show that attendance was expected to 'materially progress the case'
• criminal cases advice and assistance for criminal proceedings following charge

  • defendants need to pass a means and merits test in order to receive legal aid for advice and assistance from a solicitor or barrister.
• means testing criminal courts

  • in magistrates court only those on very low incomes who receive legal aid.
  • about 3/4 of adults do not qualify for legal aid in criminal cases in the magistrates.
  • in crown court a defendant who has an annual household disposable income of £37,500 or more will not be eligible for legal aid.
  • if their disposable income is above £3,398 but less than £37,500 they'll have to make a contribution towards their costs.
  • if defendant receives state benefits, they will automatically pass this test.
• merits testing criminal courts

  • considers the merits of the case and whether legal aid should be granted (any previous convictions, nature of offence, risk of custody)
  • the more serious the charge, or possible consequences, more likely the defendant will qualify for legal aid.
• merits testing criminal courts

  • takes into account the Widgery criteria which apply to the case e.g.
  • it's likely I'll loose my liberty
  • it's likely I'll loose my livelihood
  • it's likely I'll suffer serious damage to my reputation
  • I may not be able to understand the court proceedings or present my own case
  • I may need witnesses to be traced or interviewed on my behalf
  • it's in the interests of another person that I'm represented.
• problems of litigants in person

  • misunderstanding of the law and procedure
  • bias: when courts make decisions against litigants in person it's easy for litigant to form views that judge is biased against them
  • failure to provide the court with appropriate documentation as they don't always know what documents are relevant or required
  • inappropriate communication with the court: parties are guilty of bombarding courts with emails
  • refusal to accept decisions of the court: without advice from lawyers litigants will keep appealing.
• private funding

  • own resources - consulting a solicitor or a barrister
  • insurance - 'before the event insurance' and 'after the event insurance'
  • conditional fee agreements - 'no win, no fee'
• own resources

  • consulting a solicitor or a barrister can be very expensive
  • lawyers tend to charge from £150 to £650 an hour and some large corporate firms charge £1,000 an hour
• insurance

  • 'before the event insurance' - these are taken out where there is no known claim at the time of purchase
  • 'after the event insurance' - (expensive) someone who is taking a case to court will often insure against losing the case. this type of insurance is often used with CFA's
• conditional fee agreements - 'no win, no fee'

  • can only be used for civil claims
  • in civil cases the 'loser' pays the other sides legal costs.
  • solicitor and claimant agree on legal fees, agreement will set out a success fee
  • success fee - what solicitor will get if case is won, can be 100% of normal fee but is often capped at 25% so claimant doesn't lose all compensation in legal fees. if case is lost then claimant pays nothing.
  • term of the CFA that client takes out an 'after the event' insurance policy, to cover costs of other party in case the case is lost
• strengths of CFA

  • have helped thousands of people to bring cases to court and obtain justice
  • number of personal injury cases have mushroomed and there's been no drain on the Legal Aid Bill
  • legal aid has never been available for defamation but lawyers have been keen to take on CFA's, allowing ordinary people to bring such cases against individuals and even the press
• weaknesses of CFA's

  • low value cases are not attractive to lawyers
  • success fee can no longer be claimed from losing side
  • cost of 'after the event' insurance can no longer be claimed back either
  • a proportion of claimant's compensation will often go to paying lawyer's success fees.
• other advice agencies

  • citizens advice bureau
  • law centres
  • pro bono unit - advocate
  • free representation unit
  • trade unions
  • charities
• citizens advice bureau

  • charitable organisation, staffed by full-time employees and trained volunteers who give general advice across a wide range of issues by face to face, telephone, email, webchat.
  • main areas of advice are for debt, consumer issues, claiming welfare benefits, housing problems, employment matters
  • often have arrangements with local solicitors who offer clinics to give purely legal advice
  • solicitors are likely to offer a cheap/free first advice session
• law centres

  • offer free, non-means tested advice to people living in their area and representation in areas where there are no or few solicitors
  • funded by central or local government but found it difficult to gain enough funding
  • most law centres have a qualified solicitor working full-time supported by volunteers
• pro bono unit

  • volunteer barristers, give free legal advice on a range of legal issues to members of the public who cannot afford legal fees. the unit may also represent a member of the public in any civil legal proceedings.
• free representation unit

  • provides advice and legal representation in social security and employment tribunals.
  • they help members of public who aren't eligible for legal aid and cannot afford lawyers.
  • all FRU representatives are trained and supervised by legal officers.
• trade unions

  • offer members free legal advice on a range of employment related matters and other matters like personal injury in an accident outside work
  • members of a union generally pay a subscription which will cover the giving of advice.
  • often employs full-time specialist advisers.
• charities

  • offer some form of free specialist advice in their area of work
  • employs either trained advisers or volunteers to provide initial advice and assistance to those who contact them
• advantages of civil cases

  • multiple ways for claimants to obtain legal advice and assistance.
  • claimants don't rely on just solicitors for advice
  • many sources of free advice and assistance are specialists in their fields and have knowledge and skills in their areas of expertise.
  • it's possible to obtain legal advice and representation in a number of fields
  • for those who can't afford = state funded legal aid.
  • CFA's are main source of funding for those claiming on personal injury's
  • using private funding = choice of experienced lawyers
• disadvantages of civil cases

  • lawyers can't estimate fees upfront, loosing case = pay both lawyer and winner costs = priv funding too costly
  • lawyers only take cases they think they'll win. claimants may need 'after event' insurance, comp is reduced by success fees.
  • civil legal aid funding dropped from £1B to £600M then rose to £739M
  • reduced funding = more litigants in person = delays in system
  • cuts in funding + high legal costs = increase demand for free advice agencies, leading delays in accessing help.
• advantages of criminal cases

  • suspect in police detention can obtain legal help which prevents police breaking rules.
  • when a person has been detained, all possessions are taken so availability of free advice is essential.
  • person facing criminal charges that could seriously affect their future should be able to instruct a lawyer to investigate those charges and obtain evidence.
• disadvantages of criminal cases

  • gov cut legal aid budget for CLA £1.2B to £879M
  • no drop in offences committed or court cases so money available is reducing.
  • fewer firms are providing criminal legal aid services as it's not cost effective.
  • areas of UK don't have access to legal advice and local people have to travel further for help.
  • caused rise in defendants representing themselves
  • criminal law is less attractive due to lower pay and unsociable hours.
  • state run public defender system for all criminal cases is unlikely = too expensive
  • legal aid is given based on risk of imprisonment