access to justice

Question 1

describe how government funding (legal aid) works in civil cases (8)

Answer 1

• civil legal advice service offers specialist initial advice to people who qualify for legal aid,
• to prove their eligible, applicant must be means tested to prove their poor enough to qualify,
• civil legal aid provides funding and access to lawyers for claimants in certain civil disputes, this can involve legal advice about whether the case is worth pursuing, representation and advice during the mediation process and preparing the case and representing the claimant in court,
• limited types of cases covered since LASPO, funding is not allowed for majority including personal injury,
• if applicant passes mean and merits test they can apply for legal aid,
• must pass ‘Merits Test’ which considers likelihood of success and benefit to claimant,
• must also pass ‘Means Test’ which is based on income and capital,
• below limits = fully funded,
• above limits = no funding,
• between = partly funded but pay increasing contribution,

Question 2

describe how government funding (legal aid) works in criminal cases(8)

Answer 2

• anyone held as a suspect at a police station has the right to advice from a duty solicitor,
• the scheme is free of charge regardless of income, available 24/7 365 days a year,
• if suspect requires further advice in preparing the case and representation they must apply for legal aid,
• the D also must pass the ‘Interests of Justice Test’ to receive representation in court,
• part of the test is applying the ‘Widgery Criteria’ with a solicitor,
• they must also pass a ‘Means Test’ based on income and capital,
• In Mags court if amount is below the minimum = fully funded, above limits = no funding, between = detailed means test carried out,
• limits are set very low, only 1 in 4 adults qualify for legal aid,
• Crown court, below limits = fully funded, above limits = no funding, between = partly funded but pay increasing contribution,
• limits more generous so more people get legal aid,

Question 3

evaluate funding in criminal cases, positives (12)

Answer 3

• can self-fund, people able to do so have free choice regarding which lawyer they want to represent them,
• they can pick the best lawyer for the case rather than having the choice chosen by the Legal Aid Agency,
• free access to duty solicitor scheme ; anyone held as a suspect at a police station has the right to advice from a duty solicitor,
• the scheme is free of charge, regardless of income and available 25 hours a day, 24/7, 365 days a year,
• advice can be given in person or over the phone,
• people on low incomes have access to legal aid,
• if a suspect requires further advice, assistance in preparing the case or representation they must show they are eligible under the ‘interests of justice test’ and a ‘means test’,
• people on low incomes who are unable to fund cases themselves should be able to obtain legal aid in order to access legal advice,

Question 4

evaluate funding in criminal cases, negatives (12)

Answer 4

• uncertain costs when self-funding, legal advice and representation is expensive and unpredictable,
• lawyers usually do not give a fixed fee for taking a case as it will depend on how many hours will be spent on the case, how easy evidence is to obtain, whether the case has to go to trial and a barrister will be required,
• uncertainty around legal costs can leave many feeling anxious about their situation,
• changes made by LASPO 2012 to eligibility criteria has seen a reduction in people eligible for legal aid and how many people are now denied ‘access to justice’,
• only people with very low levels of income and capital are eligible for public funding,
• in the Magistrates Court only 1 in 4 adults now qualify for legal aid, 3/4 are denied ‘access to justice’ which could seriously impact their future,
• evidence not enough solicitors have contracts with Legal Aid Agency which means some areas are ‘advice deserts’,
• the number of firms doing legal aid work in 2000 was 5000 but in 2021 it has fallen to 1401,
• this has the law society very concerned,

Question 5

overall conclusion on funding in criminal cases (12)

Answer 5

• no universal access to justice,
• bad for the individual and the legal system,

Question 6

describe the types of private funding available when bringing a case (8)

Answer 6

• self funding,
• those who can afford it pay for a solicitor or barrister to deal with their legal matter,
• no fixed costs - can be expensive,
• solicitors charge about £150/hour in small city firms or up to £1000/hour in top city firms or for specialists,
• conditional fee agreements,
• agreement between lawyer and client for legal services to be provided on the basis the payment is only due if the case is successful, ‘No win, no fee’,
• in return for accepting the risk of getting no fee, lawyer charges a higher free than usual if the case is won (a success fee),
• under ‘no win, no fee’ nature of CFA a client will not have to pay anything if they lose, however this could result in a large bill,
• to prevent this, they will be expected to take out ‘after the event insurance’ so the insurer pays the legal fees,

Question 7

describe the services offered by other advice agencies (8)

Answer 7

• citizens advice - general advice free of charge,
• also provide info about which solicitors will undertake legal aid work or who offer free first interviews,
• some have limited access to solicitors,
• law centres, offer free advice often from law students but most have a qualified solicitor working full time,
• can provide representation if a case goes to court,
• free representation unit - London and Nottingham only,
• similar to law centres, help those who do not qualify for legal aid, advice given by volunteers often law students or legal professionals in the early stage of their career,
• Pro bono - free legal advice and representation from solicitors firms and advocate for needy individuals,
• Trade Unions - advice and representation for their members,
• Insurance - insurance as add on to house or car insurance plus before and after the event insurance,
• Charities - free advice in their area of interest ;
• Gingerbread for family issues and Shelter for housing issues including homelessness,