Access to Justice Flashcards
Lecture 4
The legal system consists of complex set of rights and responsibilities …
1) You are aware of them
2) Have the resources and ability to enforce them
In simple terms, what is legal aid?
Provision of free legal advice to those who cannot afford it.
What are some of the unmet needs for legal services?
- Failure to recognise having legal problems
- Do not know of legal services that could help
- Choose not to make use of legal services
(data from Pascoe Pleasance and Legal Services Board)
Describe the snowball effect in simple terms.
- One issue has not be dealt properly
- More issues arise each time and potentially can be life-changing
- Example: person suffers accident that’s not their fault, they didn’t seek legal advice, affected ability to work, lost home, potential illness
Who pays the lawyer?
- Clients themselves
- Free or low cost from government grants
- Free by the legal profession (pro bono)
- Membership of organisations (e.g., trade unions)
- Insurance companies
What are some of the issues regarding affordability?
- Most ‘ordinary’ people feel lawyers and legal advice are beyond their budget
- Large majority felt lawyers were intimidating
- People travelling a long way to find legal aid solicitor (most from London)
Briefly, provide the history of State funded legal services (part 1)
- Legal Aid scheme (1949): concern over cost and reduction in eligibility
- Legal Aid Act (1988): creation of the Legal Aid Board -> more cuts
Briefly, provide the history of State funded legal services (part 2)
- Access to Justice Act (1999): creation of Legal Services Commission
- LASPO (2012): scope of scheme severely restricted. Legal Aid Agency created.
What are the different cases available for civil legal aid and circumstances surrounding it?
- Environmental law
- Asylum
- Mental health
- Child welfare cases
- Only available where a person’s life or liberty is at stake/risk of serious harm/immediate loss of their home
Which type of cases are abolished for the Civil legal aid?
- Medical negligence
- Welfare benefits
- Employment
- Consumer
- Education
- Immigration (unless detained)
- Housing (unless homeless/serious disrepair)
- Family law (only mediation offered)
What are the issues regarding civil legal aid?
- Test and exceptional case funding system needs to be “simplified and reformed”
- Providers facing sustainability challenges
- Not great relationship between Legal Aid Agency and providers
If applying the legal aid you go through the means test. What are some of the elements involved?
- Below lowest threshold = they pay nothing
- Fail above lowest but below highest = they pay contribution
- If damages/other financial provision is likely outcome = charge in favour of LAA payable
- Exceptions found in section 10 of LASPO (case-by-case basis)
What can we learn from the case of In the Matter of D (A Child) [2014]?
- Judges halts serious fraud trial after defendants claim they could not get adequate representation
- Not fair trial under common law of Art 6 {R v Crawley}
- Overturned by CA
What can we learn from the case of R (Unison) v Lord Chancellor [2017]?
- C could pursue proceedings in an ET without paying any fees
- UNISON brought JR proceedings on appeal that fees interfered with right of access to justice
- SC allowed appeal led by Lord Reed (fees orders was unlawful preventing access to justice)
What did the Public Law Project campaign do?
- Put pressure on government about recommendations (increase number of people eligible financially for legal aid, increase accessibility, improve sustainability)
- Engaging with the MoJ
- Acting for some people unable to access legal aid despite able to cover legal costs privately
{R (GR) v Direction od LAC [2020]}
What are the circumstances regarding criminal legal aid?
- Cuts were not as dramatic
- Not fixed budget
- Legal services provided by lawyers in private practice
- Criminal barristers underpaid
- Number of criminal legal aid firms has halved since 2007
(Eventually Government concluded funding would be increased for barristers and solicitors by 15%)
What legal services do criminal legal and providers deliver?
- Pre-charge advice at police station
- Legal representation in magistrates’ court
- Litigation and advocacy services in CC and HC
- Legal advice/advocacy assistance for prisoners
What are some alternatives to individual public funding?
1) Not-for-profit organisations (trade unions, university law clinics etc.)
2) Government agencies
3) Law firm charging structures
4) Third party funding/litigation funder {Arkin v Borchard Lines case}
5) Charities
6) Crowd-funding
What are the advantages (+) and disadvantages (-) for contingency fees? (relating to option 3 in previous flashcard)
(+) Reduce satellite litigation
(+) No cost to the state
(+) Wider access to justice
(-) “No win, no fee” is actually “no win, pay anyway”
(-) Lawyer’s financial interests
(-) Uncertain cases
