(RED) Access to Justice

Question 1

What is meant by legal services?

Answer 1

Advice and representation- often from solicitors and barristers.

Question 2

Why are some people unable to get legal help (so are denied access to justice)?

Answer 2

• People don’t know how to get effective legal services i.e. what legal services exist and where to find these services.
• People are intimidated by the idea of dealing with lawyers.
• Cost of lawyers and court fees can be too expensive for people to afford (from £150 an hour for routine advice in a small firm to over £600 an hour for specialist work in a top firm).

Question 3

What is meant by legal funding?

Answer 3

The government pay organisations to advise and represent a client or give money directly to the client to pay for the services themselves.

Question 4

Who is responsible for funding under LASPO 2012?

Answer 4

The Legal Aid Agency

Question 5

What are the 3 factors for deciding if someone gets civil funding under LASPO?

Answer 5

• The Lord Chancellor’s criteria for eligibility
• The type of cases allowed funding
• The means test

Question 6

What are some of the factors the Lord Chancellor considers when deciding if civil cases get funding?

Answer 6

• The cost of the service and benefits of providing them
• The availability of resources to provide services
• The importance to the individual
• Other available services (i.e. mediation)
• Prospect of success through the service
• Public interest

Question 7

What is the starting position under LASPO for which type of cases get funding?

Answer 7

No civil case can get funding.

Question 8

What are the only types of civil cases that get funding?

Answer 8

Children’s rights and individual liberty (human rights issues).

Question 9

Who automatically passes the civil cases means test?

Answer 9

Those on income support or job seekers allowance.

Question 10

What are the 3 parts to the civil cases means test?

Answer 10

• Gross income
• Disposable income
• Disposable capital

Question 11

How does gross income affect the civil cases means test?

Answer 11

It looks at salary or wages before any deductions like tax. If this is over a certain amount, funding is unavailable.

Question 12

How does disposable income affect the civil cases means test?

Answer 12

It looks at gross income minus costs such as tax, NI, housing costs, childcare and an allowance for the applicant and dependants. There is a maximum and minimum amount allowed here. If the applicant is over the maximum, no funding is available. If they are under the minimum, full funding is given. If they are between the maximum and minimum, partial funding is given and the closer they are to the maximum, the more they have to pay.

Question 13

How does disposable capital affect the civil cases means test?

Answer 13

It is the value of assets such as savings, stocks, jewellery, a house etc. If the assets are worth over £8000, the applicant must pay at least part of their legal fees, if not all. When the applicant owns a home, only the first £100,000 of their mortgage is ignored. Most houses are worth much more than this so almost anyone who owns a home will fail the means test.

Question 14

How many civil cases were funded 2009-2010?

Answer 14

933,616

Question 15

How many civil cases were funded 2012-2013 (after LASPO)?

Answer 15

573,632

Question 16

How many civil cases were funded 2016-2017 and what does this show about civil funding?

Answer 16

107,703. It is now much harder to get a civil case funded.

Question 17

What is the 2 part test for criminal funding under LASPO?

Answer 17

-Interests of justice test
-Means test

Question 18

What are the 5 factors (only 1 must be passed) that prove the criminal case is in the interest of justice?

Answer 18

• If found guilty, the defendant would lose their liberty, livelihood or suffer serious damage to their reputation
• The case involves considering a point of law
• D is unable to understand the proceedings or state their own case
• The case involves tracing, interviewing or expert cross examination of witnesses
• It is in the interests of another person that D be represented (e.g. in sexual assault cases)

Question 19

Who is automatically eligible for funding in the Magistrates Court?

Answer 19

Defendants on income support, under 16 or under 18 and in full time education.

Question 20

How does the means test work in the Magistrates Court for defendants who are not automatically eligible?

Answer 20

The first part of the test is the gross income test like in civil law. There is a maximum and minimum amount. If you are over the maximum, you are ineligible. If you are under the minimum, you are eligible. If you are in between, you go through the disposable income test like in civil law.

Question 21

What percentage of people fail the means test in the Magistrates Court?

Answer 21

75%

Question 22

Who fails the means test in the Crown Court?

Answer 22

There is no upper limit on gross income but those who have a disposable income of more than £37,500 are ineligible.

Question 23

When does a defendant get full or partial funding in the Crown Court?

Answer 23

They will get full funding if they have a low gross income and under £37,500 disposable income. They will get partial funding if they have under £37,500 disposable income but a very high gross income.

Question 24

How does the verdict of a case affect the amount the defendant pays?

Answer 24

If D is found guilty, they may have to pay even more for their fees but if they are found not guilty, they will usually be refunded for anything paid.

Question 25

What is the Police Station Advice and Assistance (PSAA)?

Answer 25

A type of criminal legal aid. Under section 58 PACE 1984, any person detained at a police station is entitled to consult a solicitor privately and should be informed of this entitlement by the police. PSAA is free legal advice from a contracted solicitor (known as a duty solicitor) and is not means tested. Usually, this is a telephone conversation because visiting in person would be more expensive.

Question 26

How is advice and assistance a form of criminal legal aid?

Answer 26

A 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.

Question 27

How is the Representation Scheme a form of criminal legal aid?

Answer 27

This scheme kicks in the moment someone has been charged with a criminal offence and therefore covers the cost of a solicitor or barrister to handle the case in court. It also covers any appeals. This uses the interests of justice test as well as the means test.

Question 28

How is the Public Defender Service a form of criminal legal aid?

Answer 28

It is run by the Legal Aid Agency and offers advice and representation at the police station and at court to those who pass the interests of justice and means test. 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.

Question 29

What does privately funding a case mean?

Answer 29

Some people can afford to get their own legal services or find ways to make it cheaper for themselves.

Question 30

How is insurance a method of private funding and what are the different types of insurance?

Answer 30

Insurance policies help with legal fees for various situations like car or home insurance. Before the event insurance is when D pays for insurance before any legal claim is made. After the event insurance is when someone is about to go to court so insures against having to pay their opponents legal fees if they lose.

Question 31

What is a conditional fee arrangement?

Answer 31

Lawyers and client will agree on the normal amount to be paid as well as a ‘success fee’ if they win the case (usually for civil cases). Often the agreement will be ‘no win, no fee’ but some simply charge the normal rate without the success fee.

Question 32

What can the winner of a civil case do and what is the exception?

Answer 32

They can make the loser pay their lawyer’s fees. This is why people often get after the event insurance because this can cost a significant amount even if they have a ‘no win, no fee’ arrangement with their own lawyers. However, the winner must pay their own lawyer’s success fee.

Question 33

What does the Citizens Advice Bureau do?

Answer 33

It is an independent organisation that gives free and confidential information and advice to assist people with social welfare problems like legal, debt, consumer and housing problems. It advises nearly 2.5 million people a year although it doesn’t cover a wide range of law.

Question 34

What do Law Centres do?

Answer 34

They offer free legal advice, casework and representation to individuals and groups, specialising in social welfare law. Priority is given to work that affects the most disadvantaged. They are non-profit making and independent from both the local authority and the Legal Services Commission.

Question 35

What do the Pro Bono Unit and Free Representation Unit (FRU) do?

Answer 35

They will represent a client in court for free. However, the Pro Bono Unit only work in certain areas like London and the FRU often work with trainees meaning their help might not be as good as lawyers in legal aid firms.

Question 36

What are the problems with government funding in civil cases?

Answer 36

• Advice deserts because the government don’t pay firms very much to offer legal aid meaning people have to travel far to find legal aid. Only 1500 firms offering legal aid in 2017 compared to 5000 firms in 2000 (increased legal aid means increased cost to taxpayer).
• Strict means test means people who need legal aid, especially homeowners who almost always fail the disposable capital test can’t get legal aid- nearly a million civil cases funded in 2010 compared to 107,000 2016-2017 (non government agencies offer legal aid).
• Availability of non-governmental legal aid means it is hard to get legal aid because these services are often limited but because they exist, the cases fail the Lord Chancellor’s criteria (encourages people to resolve problems outside court like ADR).
• Fixed budget means Lord Chancellor’s criteria may fail even if legal aid is needed (avoids the government running out of money).

Question 37

What are the problems with government funding in criminal cases?

Answer 37

• Advice deserts because the government don’t pay firms very much to offer legal aid meaning people have to travel far to find legal aid. Only 1500 firms offering legal aid in 2017 compared to 5000 firms in 2000 (increased legal aid means increased cost to taxpayer).
• Strict means test for Magistrates Court- 75% don’t qualify yet 97% of all criminal cases are handled in the Magistrates Court (no fixed budget and more people automatically available than civil).
• Interests of justice test often means D only gets funding if they are facing jail which is more likely for repeat offenders meaning it benefits them over first time offenders-unfair (first time offenders can use non government agencies).
• Availability of non-governmental legal aid means it is hard to get legal aid but Pro Bono Unit only work in certain areas like London and the FRU often work with trainees so their help may not be as good as lawyers in legal aid firms (legal aid firms have a conflict of interest- paid by the state to defend D against state?)

Question 38

What are the advantages and disadvantages of private funding?

Answer 38

• Conditional Fee Agreements (CFAs) allow greater access to justice because it minimises the cost of losing the case so people will be more likely to go to court and try to get justice.
• CFAs are not cost effective- C may also have to get after the event insurance, can’t claim this or the success fee back from D and even the reduced lawyers costs may still be expensive.
• Non government agencies like CAB and Pro Bono Unit help people get free justice if they are ineligible for legal aid but can’t privately fund a case. CAB advises nearly 2.5 million people a year and Pro Bono Unit assists in a wide range of legal areas.
• Non government agencies can’t help everyone- CAB only advise on social welfare and Pro Bono Unit operates in London.
• Using private money is expensive so not many people can afford this (although could use ADR to avoid these expenses).
• Insurance is often cheaper than legal fees (especially after the event insurance) and this allows for greater access to justice. However insurance premiums can be expensive and may not be cost effective.