Access to justice

Magna Carta

Magna Carta

Historical document ensuring equal access to justice and equality before courts. (Clause 40 of the Magna Carta expresses equal access to justice and equality of arms before the courts.​)

McLibel (1997)

Longest English legal case involving McDonald's and activists.

HC ruled against them and awrded McDonalds £60,000 damages (later reduced to £40,000 on appeal)​

Feb 2005 - ECHR says that the lack of legal aid denied the two activists a right to a fair trial​

Ferguson v British Gas (2009)

Case where British Gas sought money not owed, countered under Protection from Harassment Act.

Roberts v Royal Bank of Scotland (2013)

Case where claimant sued RBS for harassment under Protection from Harassment Act.

Legal Aid

State-funded legal assistance for those unable to afford legal help.

Unmet Need for Legal Services and why it exists

Situation where individuals can't access legal help despite needing it.

Many people have an unmet need for legal services, which simply means that they have a problem which could be solved by going to a solicitor or as court, but they are not able to get help from the system. This could be for a number of reasons.​

A person may:​

- Fail to see that their problem has legal implications. ​

- Not be aware of the law.​

- Not have the money to seek advice or go to court.​

- Not have time to attend as solicitor's office during the week.​

- Be scared of the legal system.

Importance of access to justice

Access to justice forms part of the bedrock of human rights protection in any state. ​

Equal access to legal services is a fundamental principle of the rule of law, as advocated by Dicey.​

People cannot enforce their rights.​

Criminal cases - liberty may be at risk.​

All people should be equal before the law - 'Justice is blind'. However, people do not have equal access to the law.

History of Legal Aid

1949 - 1st state-funded legal aid scheme was established after the Second World War as part of the welfare state. ​

1980s - The system had developed into 6 different schemes, still administered by the Legal Aid Board.​

1999 - Access to Justice Act 1999 - Made major changes to the system. The Legal Aid Agency was replaced by the legal Services Commission, which administered the Community Legal Services for civil legal aid and the Criminal Defence Service for criminal cases.​

2011 - Lord Jackson 'Review of Civil Litigation' recommended further overhaul of the legal aid system, and has been extensively criticised.​

2012 - Legal Aid, Sentencing and Punishment of Offenders Act.

2012 - introduced further cuts to legal aid, and added more stringent eligibility criteria and a reduction in the amount paid to legal professionals for undertaking legal aid work.​

Access to Justice Act 1999

Legislation reforming legal aid system, replacing Legal Aid Agency.

Lord Jackson Review

Review recommending legal aid system overhaul in 2011.

LASPO Act 2012

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force in April 2013 and created the publicly funded legal aid system that we use today. It has dramatically reduced the availability of civil legal aid and criminal legal aid is also being reduced. ​

The aim of the Act was to help those most in need and cut the legal aid budget by £350 million - mainly in the areas of family, immigration, welfare benefits, employment and clinical negligence - despite widespread opposition from many in the legal profession, organisations including the Law Society and the House of Lords.

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The system is overseen by the Legal Aid Agency, which replaced the Legal Services Commission, and is an executive agency sponsored by the Ministry of Justice.​

Civil Legal Aid

Civil legal aid began in 1950, when it provided 80% of the population with a means tested entitlement to legal services. By 1973 this had dropped to 40%. Today, as a result of legal aid cuts, 70% of the population has no entitlement to civil legal aid.​

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Prior to LASPO 2012, legal aid was available to help people with almost all aspects of civil law. This situation has now been completely reversed. ​

Civil legal aid is now only available for a narrow number of cases listed in Schedule 1 This concerns cases primarily that are directly concerned with an individual's human rights.​

People have to meet the financial conditions for getting legal aid. In some cases, legal aid is free. In other cases, litigants may have to pay towards the cost.

Legal Aid Agency

Entity overseeing publicly funded legal aid system in the UK.

Means Test

Assesses income and capital to qualify for civil legal aid.

Income and capital must be within certain limits before a person is entitled to civil legal aid; Income limit: to receive legal aid, the client's gross monthly income must be less than £2,657, with a disposable income of less than £733 per month; Capital limit: the client can have capital of no more than £8, 000.

Merits Test

Considers case importance, success prospects, public interest, and damages. The following factors will be considered:​

Prospects of success - chances of success must be more than 50%.​

Public interest - in the wider public interest.​

Proportionality test- benefit of funding outweighs cost.​

Likely damages - higher damages are more favourable.​

Excluded Civil Cases

Categories like:

- Medical negligence ​

- Welfare benefits ​

- Personal injury cases​

- Employment. Consumer disputes ​

- Education (except special needs cases)​

- Immigration​

- Housing cases ​

- Private family cases do not qualify for legal aid unless the case involves domestic violence, child abduction or a forced marriage ​

Retained Civil Cases

- Environmental law​

- Asylum​

- Clinical negligence cases (where negligence occurred during the first few weeks of life)​

- Mental health and child welfare cases​

- Judicial Review ​

Problems with funding of civil cases:

Civil legal aid is now only available in a limited number of cases, so that the government saves money.​

Claims for damages for personal injury are excluded from the scheme. Any such case has to be paid for privately or through a conditional fee agreement. This works well where people have suffered minor injuries, but it can be argued that it creates difficulties for people who have been left with serious disabilities. They need all the help they can to get to make sure they receive adequate compensation.​

Hazel Glenn says that the civil cuts will lead to an inevitable deterioration in effective access to justice.'​

Lord Neuberger: 'the most vulnerable in society are going to be affected by the cuts.'​

Many people have to pay privately, find charitable help, or represent themselves.​

People representing themselves will increase court delays.​

The telephone gateway service has been criticised for a lack of public awareness.​

Some solicitors' firms are going out of business because there are not enough legally aided cases.​

Two-thirds of family cases going through court have at least one side without a lawyer.​

People are being forced to look for an alternative to court, such as mediation, aribitration, tribunals, out-of-court settlements etc.​

Applications to the Bar Pro Bono Unit (a charity which helps people find free legal assistance from volunteer barristers) have doubled since 2012. This has led to a serious strain on this service.

Hazel Glenn

Predicts a decline in access to justice due to civil legal aid cuts.

Lord Neuberger

Warns that vulnerable groups will suffer from legal aid cuts.

Telephone Gateway Service

Critiqued for lack of public awareness in accessing legal aid.

Court Delays

Self-represented litigants contribute to delays in court proceedings.

Criminal Legal Aid - help at the police station

1. Help at the police station ​

S.13 LASPO 2012 states that a duty solicitor is free for everyone at the police station, regardless of income. If a person is going to be interviewed by the police under caution or has been arrested they are always entitled to FREE legal advice and representation. ​

The Public Defender Service (PDS) is a department of the Legal Aid Agency. It Ensures people suspected or accused of a crime have access to advice, assistance and representation, as the interests of justice require. It offers "Advice and Assistance" - duty solicitor scheme and is no means test and free to everyone. There are also Defence Solicitor Call Centres (- manned by paralegals) available and a telephone service called Criminal Defence Direct which was set up in 2005 - it provides free telephone advice to people detained by the police for non-imprisonable offences.

Criminal Legal Aid - Help with representation in court

At the Magistrates Court​:

Two tests need to be satisfied to qualify for a representation order, which is criminal legal aid at the magistrates' court; this is provided for by s. 14 LASPO 2012. It is a way of capping the availability of criminal legal aid to those suspects who could afford to pay for their own defence.​

Means test - this is a financial test which looks at household income, capital and outgoings. If the client's household income is between 12, 474 - £22, 325 then a full means test is carried out. This will then consider annual costs. Receipt of certain benefits means the claim is automatically granted.​

Merits test: Interests of justice test - in general, the more serious the charge and the consequences, the more likely it is the person will qualify. The solicitor will have to consider the Widgery Criteria, by the suspect agreeing to one or more of these statements:​

It is likely that I will lose my liberty.; It is likely I will lose my livelihood; It is likely I will suffer serious damage to my reputation; A substantial question of law may be involved.​

I may not be able to understand the court proceedings or present my own case; I may need witnesses to be traced or interviewed on my behalf; It is in the interests of another person that I am represented etc.​

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At the Crown Court​

A defendant's household disposable income must be under £37, 000 in order to be granted legal aid, they might be liable for contributions towards the cost of the case. ​

Public Defender Service (PDS)

Department ensuring legal advice and representation for criminal cases. It Ensures people suspected or accused of a crime have access to advice, assistance and representation, as the interests of justice require. It offers "Advice and Assistance" - duty solicitor scheme and is no means test and free to everyone. There are also Defence Solicitor Call Centres (- manned by paralegals) available and a telephone service called Criminal Defence Direct which was set up in 2005 - it provides free telephone advice to people detained by the police for non-imprisonable offences.

Problems with funding:

Apart from having a duty solicitor, defendants need to pass a means and merits test to get help to be represented in court. This has huge implications for undermining the rule of law.​

In 2014, solicitors challenged a government proposal to further cut criminal legal aid by 8.75% and to reduce the number of contracts providing 24-hour cover at police stations in local communities from 1, 600 to 527. They lost their case and the cuts went ahead. The cuts saw solicitors participate in strikes and walk-outs, refusing to take on anymore legal aid clients.​

The interests of justice test is applied very strictly. Even where a defendant is charged with an offence for which a prison sentence can be given, for example theft, it does not necessarily mean that he will pass the interests of justice test. The rule is that there must be a real risk of imprisonment. This has the effect that defendants, who have several previous convictions for theft, will qualify for legal help as they are likely to be imprisoned. However, someone with no previous convictions is not likely to be sent to prison. So, if they are pleading not guilty, they will have to represent themselves or pay for private legal help.​

The means test is also a very strict test. The levels of income allowed are very low. About three-quarters of adults do not qualify for legal aid in criminal cases. If means testing is extended to the Crown Court where it is more expensive to defend a case, then there is a real risk of injustice due to lack of availability of legal help.​

Budget - The budget given by the Government for legal funding has not risen in line with inflation. This means that there is less money to allocate for funding.

Rule of Law implications

Challenges in passing means and merits tests for legal representation.

Interests of justice test

Stringent assessment for legal aid eligibility based on risk of imprisonment.

Budget Allocation

Government funding not keeping pace with inflation for legal aid

LASPO impact

Legal Aid, Sentencing and Punishment of Offenders Act effects on justice access.

1. Legal Aid Coverage Reduction: - 1950: 80% of population entitled to legal aid. - 1973: Coverage dropped to 40%. - Recent cuts: 70% no longer entitled.

2. Fixed Fees & Experts: - Fixed fees make it hard to pay for necessary experts. - Creates disparity between those on legal aid and others.

3. Legal Aid Agency Stricter Approach: - Replaced Legal Services Commission. - More stringent application assessments. - Increased application refusals.

4. Complex Paperwork: - Complicated requirements leading to returned applications. - Causes cashflow issues for law firms.

5. Court Delays & Strained Resources: - More self-represented litigants. - Court inefficiencies and increased costs.

6. Pressure on Free Legal Support Providers: - Unsustainable demand on services offering free legal support.

7. Impact on Children and Young People: - Private family law cases affected. - Poor decisions due to lack of legal representation.

8. Migrants and Refugees Affected: - Exclusion from immigration and family reunion cases. - Difficulty navigating the legal system.

9. Challenges for Vulnerable Individuals: - Cases of those with mental health issues and other disadvantages. - Legal help often not received until crises arise.

10. Reduction in Civil Case Help: - Post-LASPO: Legal aid cases dropped by 46%.

11. Reluctance for Complex, Low-Value Cases: - Solicitors and barristers hesitant to take on intricate, low-paying cases.

12. Declining Interest in Legal Aid Work: - Only 4% of young lawyers interested in legal aid work.

Civil Legal Aid Decline

Reduction in population entitlement to civil legal aid due to legal aid cuts.

Complex Paperwork

Extremely intricate documentation required for legal aid applications.

Billing issues

Creates problems for firms related to invoicing and payments

Self-representation

Forcing individuals without legal representation to represent themselves in court

Frontline Providers

Facing unsustainable pressure while offering free legal support

Impact on children

Affects cases involving children's best interests due to lack of legal assistance

Impact on Migrants

Removal of legal aid affects migrants navigating complex legal processes

Additional vulnerabilities

Challenges faced by individuals with mental health issues, disabilities, etc., in legal processes

Reduction in civil cases help

Significant decrease in legal aid granted for civil cases post-LASPO implementation

Reluctance of lawyers

Growing unwillingness of legal professionals to handle complex, low-value cases

Interest in Legal Aid

Only 4% of young lawyers show interest in legal aid services

Law centre

Provides legal advice, casework, and representation on a not-for-profit basis

Bar Pro Bono Unit

Charity providing free legal assistance through volunteer barristers.

Trade Union

Group of workers negotiating pay, benefits, and working conditions

Pro Bono

Professional work done voluntarily or at a reduced fee for public service

Pro Bono week

Annual event encouraging legal professionals to offer free services

LawWorks

National charity supporting solicitors and law students in pro bono work

Citizens Advice Bureau (CAB)

Provides free, confidential advice on various issues to millions annually. They cover things such as debt and consumer issues, benefits, housing, legal matters, employment, and immigration. Advisers can help fill out forms, write letters, negotiate with creditors and represent clients at court or tribunal.

There are 2,000 CAB outlets in England, Wales and Northern Ireland. Each CAB is an independent charity, relying on funding from the local authority and from local business, charitable trusts and individual donations. There are now more than 30,000 people working in the Service. Ninety per cent are volunteers.

Each bureau belongs to the National Association of Citizens Advice Bureaux (NACAB), which sets standards for advice, training, equal opportunities and accessibility.

Conditional Fee Agreement (CFA)

Private agreement where lawyer is paid only if the case is won. introduced by the Access to Justice Act 1999.

Damages-Based Agreements (DBAs)

Lawyer takes a percentage of awarded damages upon case success

What does LASPO stand for?

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Coventry v Lawrence (No 2) (2014)

Legal case highlighting potential unfairness of CFA cost arrangements.

Case facts: Homeowners had won a claim for insurance against a small business operating a noisy speedway track near their home. The claim was worth £74,000, but the costs order against the business was £640,000. ​

Case principle: The Supreme Court suggested that cost arrangements for conditional fee agreements might breach a defendant's right to a fair trial, since defendants who lose their case have to pay the lawyer's success fee and after the event insurance of the winning party, which can be extremely costly, as in this case.​

Motto v Trafigura (2011)

Landmark case involving high costs under a conditional fee agreement

This is the biggest costs case in legal history. Here lawyers brought a claim on behalf of 30,000 Africans who had suffered ill health when a contractor illegally dumped toxic waste in the sea near where they lived. They won the case and were awarded £30 million, which meant £1 000 compensation for each person. The lawyers working under a conditional fee agreement charged 100% success fee which took their bill to over £100 million; the defendants challenged this and the bill was reduced by 40%.

Advantages and Disadvantages of CFAs

Advantages:

Legal Services Board research says CFAs have "brought the profession closer to the consumer" since people find lawyers offering these services less formal and more accessible in terms of cost.​

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Disadvantages:

CAP say 'no win, no fee' is misleading because it implies the client will be liable for no costs whatsoever.​

​Culture of 'ambulance​ chasing' and fraudulent claims, which has driven up insurance. ​

Advantages and Disadvantages of DBAs

Advantages:

It enables the solicitor and the client to share the risks and costs of litigation.​

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If the case is lost, the client might only have to pay expenses.​

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Following LASPO, client does not have to pay a 'success fee'.​

Disadvantages: ​

Some layers going back on their word.​

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Unclear terms and conditions - the agreements are sometimes complex. DBAs are impenetrable to most consumers. ​

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Due to competition - some firms forfeiting a vetting process, taking high risk approach that sees them taking on cases with a low chance of success. ​

What is the Legal Services Board

Research body indicating CFAs make legal services more accessible