Access to justice Flashcards
Who is legal aid in civil cases handled by and under what Act?
Legal aid in civil cases is handled by the Legal aid agency under the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 (LASPO).
There is a fixed budget for this so not all cases can get aid.
What are the 3 factors used to decide whether you gain legal aid in civil cases?
Firstly, giving aid must comply with the criteria set out by the Lord Chancellor in s11(3), for instance the importance to the individual and any other available services.
Secondly, the type of case must be eligible. Under LASPO, the starting position is that no cases can get funding, unless they deal with matters of liberty or children’s
Rights.
Lastly, the applicant must go through a financial means test. Those on income
support or job seeker’s allowance automatically pass this test.
What are the 3 parts to the mean test?
There are 3 parts to the means test.
First is the gross income test, which looks at the salary/wages of the applicant before tax. There is a maximum amount and the applicant will be ineligible if they make more than this.
If they have under the maximum amount, they then go through the disposable income test. This looks at how much money they have AFTER tax, and other similar financial commitments. If the applicant’s disposable income is over the maximum amount, they are ineligible for any funding at all.
There is also a minimum amount where the applicant may receive full funding if their disposable income is lower. If the disposable income is between these amounts, they must pay part of their fees.
Lastly is the disposable capital test, which looks at the value assets such as cars, savings etc. If the value of these is under £8,000, funding will be free. Anything over these amounts means the applicant must pay at least part of the fees. Importantly, only the first £100,000 of a mortgage is ignored when considering the value of a
house, so most homeowners will fail this test.
Who is legal aid handled by in criminal cases?
Legal aid in criminal cases is handled by the Legal aid agency under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). There is no fixed budget for this so any case that passes the 2 tests can get funding.
What are the two tests to get funding?
The first test is the interests of justice test. D must prove one of five things to pass. These are: If D is found guilty, he would lose his liberty, livelihood, or suffer serious damage to his reputation. The case involves considering a point of law. D is unable
to understand proceedings or state his own case. The case involves tracing,
interviewing or expert examination of witnesses.
Or lastly, that it is in the interests of another that D be represented.
If D can prove one of these factors, he must also go through means testing, which works differently in the Magistrates and the Crown.
How does it work in the Magistrates Court?
In the Magistrates, those on income support, under 16, or under 18 but in full time education will automatically pass. Anyone else goes through a gross income test which looks at wages/salary before tax. If D is over the maximum amount, he is ineligible for funding. If he has less than the minimum amount, he will receive full
funding. If the falls between these, he goes through a disposable income test. This looks at how much money they have AFTER tax, and other similar financial commitments. If the applicant’s disposable income is over the maximum amount, they are ineligible for any funding at all. There is also a minimum amount where the
applicant may receive full funding if their disposable income is lower. If the
disposable income is between these amounts, they must pay part of their fe
How does It work in the Crown Court?
In the Crown Court, the focus is on disposable income. If D has over £37,500 disposable income, they are ineligible. Anyone under £37,500 can get funding, but the more gross income D has, the more he will have to personally contribute towards his fees.
Another important thing to consider is the verdict. If D is found guilty, he may have to pay more towards his fees. However, if he is found not guilty, he may get a refund of any contributions made.
What are the different types of legal aid available in criminal cases?
Under section 58 PACE ‘84 any person detained at a police station is entitled to consult a solicitor privately, and should be informed of this entitlement by the police. Police station advice and assistance is free legal advice from a contracted solicitor, known as a ‘duty solicitor’ (this is not means tested). Usually, this is a telephone
conversation because attending in person would be more expensive.
Advice and assistance in general is when the Duty Solicitor at the Magistrates’ Court is available to offer free advice to all those in custody brought before the court who
would otherwise be unrepresented.
One hour of means tested criminal advice and assistance is available from
contracted/franchised solicitors.
The representation scheme may be used when someone has been charged with a criminal offence. It covers the cost of a solicitor or barrister to handle the case in court. It will also cover any appeals. This uses the Interests of Justice (merits) test as well as the means test.
The public defender service is run by the Legal Aid Agency. The service offers
advice and representation at the police station and at court to those who pass the means and merits test – the difference between this service and the above ones is that the PDS lawyers work for the Government directly, whereas other schemes are where lawyers in other firms are paid by the Government to offer legal aid.
What are the problems with government funding in civil cases?
-‘advice deserts’. Many firms do not offer legal aid because the
Government do not pay very much for these and so the firm would make lots more money for private paying clients. There were 5000 firms offering legal aid in 2000; this was down to 1,500 by 2017. Therefore can be expensive to travel to firms where legal aid is offered + counterpoint
-strict means test. Most homeowners won’t be eligible due to the
disposable capital test being much lower than the value of a home. We can see that the means test is overly restrictive because there were nearly a million civil cases funded in 2010, but just over 107,000 between 2016 and 2017. It is unlikely the 900,000 extra people in 2010 did not actually need funding, and so it is likely that these people are now not getting help even though they really need it. +counterpoint
-availability of such non-government is one of the reasons it is so hard to actually get legal aid. Lord Chancellor’s criteria also looks at other available services such as Alternative Dispute Resolution (ADR) or the CAB. However, the CAB only give advice on certain social issues; and not all cases can be solved through ADR. Therefore a
case may fail the criteria due to there being other services available, but they still may not really resolve the problem in the applicant’s case. +counterpoint
-fixed budget, meaning only a limited amount of cases can get funding. Under the Lord Chancellor’s s11(3) criteria, we must consider the
available resources, ie this budget. And so if the money is gone, this test will be failed. +counterpoint
What are the problems with government funding in criminal cases?
-‘advice deserts’. Many firms do not offer legal aid because the
Government do not pay very much for these and so the firm would make lots more money for private paying clients. There were 5000 firms offering legal aid in 2000; this was down to 1,500 by 2017. Therefore can be expensive to travel to firms where legal aid is offered + counterpoint
-means testing for Magistrates Court is incredibly strict due to the low limits on finance. 75% of adults do not qualify for legal aid in the Magistrates court. This is a problem because the Magistrates handles 97% of all criminal cases and so very few criminal cases are actually going to end up with funding, which may deny justice to a huge amount of people. +counterpoint
-interests of justice test. D only gets
funding if they are facing jail, and people with previous convictions are more likely to go to jail. Therefore those with previous convictions are more likely to get funding than first time offenders. +counterpoint
-availability of such non-government is one of the reasons it is so hard to actually get legal aid. means test is based around other services that are available
and is the reason it is so restrictive. This is a problem because services such as the Pro- Bono Unit only work in certain areas (eg. London) and the FRU often work with trainees, meaning their help may not be as good as lawyers in legal aid firms. +counterpoint
What are the advantages/disadvantages of private funding?
Conditional fee agreements (CFAs) are beneficial because they allow someone to risk going to court to get justice while minimising the cost. This is because the client will probably be
paying less than standard fees if they do not win the case. This is especially useful in defamation cases where it is impossible to get legal aid, and therefore the costs would normally be very high. +counterpoint
Non-government agencies can help get justice without the cost of lawyers. Places like the CAB and Pro Bono Unit can offer free advice and representation to people who cant afford to privately fund a case, but are ineligible for legal aid. The CAB advises nearly 2.5 million people a year and the Pro Bono Unit can assist is a wide variety of legal issues. +counterpoint
One problem with someone paying their own legal fees is that it is incredibly expensive. In civil cases, the claimant must pay a court fee proportionate to the amount they are claiming, as well as their lawyers costs which can add up to be a huge amount, especially if the case drags on. This means people may not be able to privately afford to bring a case to court and get justice. However, such people could try to use ADR to avoid incurring these expenses.
One benefit of insurance is that it works out far cheaper to pay for insurance than for legal fees. This is especially good because ‘after the event’ insurance even allows someone to cover themselves from paying their opponents legal fees if they lose their case. This makes going to court/paying for damages far more affordable and grants better access to justice. However, some insurance premiums are very expensive, and if nothing ever goes wrong this can be a large chunk of money wasted, making it a gamble as to whether insurance ends up
being cost-effective.
