SECTION A : ACCESS TO JUSTICE 12 MARKER PAPER 1 Flashcards
Discuss the problems with government funding in civil cases
advice desserts
strict means test
availability
fixed budget
advice desserts
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 - ppl have to travel far for legal aid. people may not be able to actually find affordable law firms close by, and may be unable to afford to travel and to stay across the country just to try and find one. However, if the government were to pay more, this would probably increase costs to the taxpayer or the court fees to people paying privately.
strict means test
Most homeowners won’t be eligible due to the disposable capital test being much lower than the value of a home. 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. likely people get help now when they don’t need it. However, it may still be possible for these people to get assistance outside of the government, ie with conditional fee agreements
availability
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. however encourages people to resolve their problems outside of court (ie with ADR) to avoid expenses.
fixed budget
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. people who need financial help cannot get justice if the budget has already been used. However, this may mean that legal aid will only be given to those who need it most to avoid the government running out of money.
Discuss problems with government funding in criminal cases
Advice desserts
means testing for magistrates court
interests of justice test
availability
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 - ppl have to travel far for legal aid. people may not be able to actually find affordable law firms close by, and may be unable to afford to travel and to stay across the country just to try and find one. However, if the government were to pay more, this would probably increase costs to the taxpayer or the court fees to people paying privately.
means testing for magistrates court
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. arguably this is still better than civil
funding due to the amount of people given automatic funding
interests of justice test
often 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. not seem like justice because surely those who have never committed a crime before deserve more help that those who have. However, it could be argued that non-government help can be gained for these first time offenders such as the pro-bono unit
availability
availability of such non-government is one of the reasons it is so hard to actually get
legal aid. because the means test is based around other services that are available
and is the reason it is so restrictive. problem because services such as the Pro-
Bono Unit only work in certain areas. However a counter argument to this is that legal aid lawyers sometimes have a conflict of interest as they are being paid by the state to defend D against the state.
Discuss the advantages/disadvantages of private funding
adv - Conditional fee agreements allow create access to justice
neg - private money ppl may not get justice
adv - non government agencies
neg - not all ppl helped by these themes
adv - Conditional fee agreements
beneficial because they allow someone to risk going to court to get justice while minimising the cost. because the client will probably be paying less than standard fees if they do not win the case. useful in defamation cases where it is impossible to get legal aid, and therefore the costs would normally be very high. Therefore CFAs allow greater access to justice.
neg - private money
someone paying their own legal fees is expensive. civil cases, the claimant must pay a court fee proportionate to the amount they are claiming, as well as their lawyers costs. 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.
adv - non government agencies
can help get justice without the cost of lawyers. CAB can offer free advice and representation to people who cant afford to privately fund a case, but are ineligible for legal aid. CAB advises nearly 2.5 million people a year. This means more people are able to get access to justice despite the restrictive legal aid.
neg - not all people are helped by these schemes
CAB only advise on matters of social welfare and so does not cover a wide range of law.
Pro Bono Unit operates in London, meaning it cannot assist people in other parts of the country. Therefore these agencies may not always allow people to get access to justice.
