1A.4.1 Government funding for civil and criminal cases Flashcards
History of legal aid.
Various government schemes have been set up to help those in lower income brackets with the funding of cases.
1949 – First form of legal aid for civil cases.
1964 – First form of legal aid for criminal cases.
2000 – Legal Services Commission was set up by the government to run legal aid for both civil and criminal cases.
2012 – LASPO 2012 was used to reform (cut back on) legal aid.
Why is cost a major hurdle when dealing with legal issues?
- In the High Court, civil cases may cost hundreds of thousands or even millions of pounds.
- In the County Court, civil cases are still likely to cost more than the amount recovered in damages
- There is also the additional risk in all civil cases that the loser has to pay the winner’s costs.
Problems with government funding of cases
1) Advice deserts
2) Non-availability
3) Eligibility levels
4) Criteria set by the Lord Chancellor
5) Lack of funds
[Problems with government funding of cases]
1) Advice deserts
- There aren’t enough legal service providers. Since 2004, more government funded solicitors have been dropping out. In 2000, there were 5,000 law firms doing civil legal aid work but only 1,500 in 2016.
- This means people may have to travel long distances to seek help.
- The availability of legal aid for housing cases has fallen dramatically.
[Problems with government funding of cases]
2) Non-availability
- Funding is not available for many civil claims (e.g personal injury claims)
Positive:
- Works well for those seeking smaller amounts of compensation.
Negative:
- Can create difficulties for people with serious disabilities to receive adequate compensation.
- People bringing claims against large companies are at a disadvantage, as the company will be able to afford a lawyer, unlike the individual. e.g. McLibel
[Problems with government funding of cases]
3) Eligibility levels
Even where legal services are available, only people with very low levels of income and capital and qualify for help.
The cuts to legal aid have limited access to justice for some of those who need legal aid the most. The number of people who have no choice but to represent themselves in court has risen sharply.
[Problems with government funding of cases]
4) Criteria set by the Lord Chancellor
In 2013, the Lord Chancellor set criteria aimed at restricting the circumstances in which legal aid was to be granted.
This was deemed as controversial because it set a very high threshold.
[Problems with government funding of cases]
5) Lack of funds
Each year the government sets a budget for all of its departments and the budget for legal aid is dwarfed compared to others.
In addition, as criminal cases take priority on funding, will be even less left for civil cases. This could lead to civil cases of merit being refused funding due to lack of funds.
Why are there not enough legal aid providers?
Low pay makes it not economically viable for them to continue the scheme.
When was the legal aid system created?
1949, as part of the post war welfare state.
The Legal Aid Agency
The government agency is responsible for the administration of civil and criminal legal aid in England and Wales.
Role of the Legal Aid Agency
- Make sure that legal aid services provided by solicitors, barristers 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.
Civil legal aid
Civil legal aid provides funding for claimants in certain civil disputes when legal advice, mediation or representation in court are required.
The claimant will have to pass a means and merits test.
Only certain limited types of claims are able to be funded by civil legal aid.
- If civil legal aid is granted, this will pay for advice, assistance and legal representation by a lawyer.
- If a claimant does not qualify for legal aid, or the case they are taking is not within the qualifying types of case, they will have to pay their own legal costs unless they can obtain a Conditional Fee Agreement.
Means and merit tests for civil legal aid
The means test looks at both the C’s income and capital. It will also look at their partner’s finances unless they have a contrary interest. The figures alter each year.
The merits test looks at the reason for taking the action, and the chance of success.
[Criminal Legal aid]
Advice and assistance for individuals held in custody
Under s13 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012), legal aid for advice and assistance is provided for a suspect detained in police custody and who has requested legal advice.
- The scheme is not means tested.
- Advice is provided by duty solicitors, usually over the telephone at first.
- The duty solicitor decides whether a suspect qualifies for the scheme and for either telephone or face-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’.
