1A.4.3 Evaluation of Access to Justice Flashcards
Positives to access to justice in civil cases
1) There are many ways in which a claimant in a civil case can obtain legal advice and assistance from a variety of sources.
2) Claimants don’t have to rely solely on lawyers for such advice and assistance.
3) Many sources of free or cheap advice and assistance are specialists in their fields, and have much greater knowledge and skills than high street lawyers in matter of employment law, housing and entitlement to welfare benefits.
4) It is possible to obtain legal advice and representation in a number of fields, if it is necessary to take a case further than just obtaining advice.
5) For those unable to pay privately there is, in certain specific cases, state-funded legal aid.
6) CFAs with layers are the main source of funding for those claiming compensation for personal injuries suffered in an accident. They allow a claim to be made if the claimant is unable to afford to fund a case privately.
7) Using private funding for legal advice and representation allows the choice of the best or most experienced lawyer for the case.
Problems with access to justice in civil cases
1) Legal fees: lawyers are generally unable to give an estimate of their fees at the start of a case. In addition, the client might have to pay two amounts of fees, due to the rule that the loser of a civil case has to pay the winner’s costs. Private funding of claims will be expensive and out of the reach of many.
2) Problems with the system of CFAs:
- A lawyer has to be convinced at the outset that there is a high chance of the claim succeeding before an agreement can be entered into.
- A potential claimant has to take out an ‘after the event’ insurance policy which is likely to cost several hundred pounds – the premium will be based on the chanced of the claim succeeding.
- The amount of compensation paid to the claimant will be reduced by the deduction from the lawyer’s success fee which cannot be recovered from the defendant.
3) Civil legal aid funding has been cut significantly. From a peak of £1bn in 2010 to £600m in 2015.
4) As a result of the lack of funding in civil cases, there has been a rise in the number of litigants in person, which in turn has led to more delays in court.
5) With the cuts to funding and the expense of using lawyers, more pressure is being put on other advice agencies at a time when their budgets are stretched. This means there are likely to be greater delays in accessing legal advice.
Positives to access to justice in criminal cases
1) A suspect in police detention is able to obtain legal advice and assistance, as it will prevent the police from breaking the rules in the PACE 1984.
2) When a suspect is detained, all their possessions are taken from them and they cannot access any of their documents or salary details, so the availability of free advice without being means tested is vital.
3) A person facing criminal charges that could seriously affect their future should be able to instruct a lawyer to investigate those charges, obtain evidence and, if appropriate, put forward a defence on their behalf.
Problems with access to justice in criminal cases
1) The government has cut the budget for criminal legal aid: in 2018-2019 the legal aid budget for England and Wales was £879 million, down from a peak of £1.2bn in 2007-2008.
2) There has not been a corresponding drop in the number of crimes being committed, or coming to court, so the amount of money available to fund the scheme has been steadily reducing.
3) Fewer firms are providing criminal legal aid services as it does not pay them to do so. In 2010, there were 1861 firms undertaking criminal legal aid work. In 2010, this number has dropped to 1147.
4) This has caused a rise in the number of defendants both in the Magistrates’ and Crown Courts who are not represented by lawyers. This means that:
- Cases are taking longer as points and procedures have to be explained in simple terms to defendants
- There is a greater chance of defendants being found guilty and denied justice.
5) The longer-term future for solicitors’ firms practising in the area is not promising:
- Solicitors do not want to practice in criminal law as it is not as well renumerated as other areas of law.
- Unsociable work hours: they can be called out during the night to attend a police station and then go to court the following morning.
6) The only alternative to the present system is for the government to set up a public defender service, to represent all defendants charged with criminal offences. This is likely to cost far more than is presently being spent.
7) As a result of the strict means test, especially in the Magistrates’ Court, about 3/4 of adults appearing do not qualify for legal aid. In Crown Courts, there are less severe financial limits, but cases dealt with there are more serious and it is more expensive to defend a case – therefore, there is less money available for each case and a greater risk of injustice.
8) The ‘interests of justice’ merits test is strictly applied, and it has to be shown there is a real prospect of imprisonment to satisfy the test. One result of this is that a D with a greater number of past convictions is more likely to be imprisoned, and therefore, they are more likely to receive legal aid. A defendant who is charged with a serious offence but less likely to go to prison is less likely to receive legal aid.
