Access to Justice (1.4)

OCR Revision Guide + Handout

What are the three difficulties in seeking justice?

• Lack of Legal Knowledge

• Costs

• The fear of Lawyers

What act introduced the Legal Aid Agency to help those on lower incomes?

Legal Aid, Sentencing and Punishment Act 2012

Role of the Legal Aid Agency:

• Run the Public Defender Service

• Fund the Civil Legal Advice Service

• Ensure Legal Aid Services are available to the general public.

• Publish evidence over decisions made on whether to fund cases.

Criteria assessed in terms of funding Civil cases:

• Likely Costs

• Availability of Resources and other services (For example, Negotiation)

• Importance to individual

• Likely success rate

• Interests of Justice

When is funding available and not available for civil funding?

Available:

• Children’s rights

• Individual’s Liberty

• Asylum

Unavailable:

• Tort

• Contract

• Trespass

What is assessed in Civil Funding’s means test?

An Applicant’s income and capital, as it must be under a certain level.

What does the Public Defender provide for Criminal funding?

• Free, full representation of defendants from the police station through to courts.

• Free advice and assistance whilst under arrest.

• An advocacy service with access to 25 advocates, including seven QCs.

What criteria must the applicant withhold under Criminal funding?

• Case may involve loss of freedom or serious damage

• Involves Points of law

• Applicant cannot himself understand

• The case involves expert legal skills

• Its in the interest of justice

Means test for Criminal Funding (Magistrates + Crown)

Magistrates (In-Out test):

• If on income support

• Under 16

• 16-18 in Full-time Equivalent or Income test

Crown Court (Income test):

• Maximum income of £37,500

Three methods of Private funding:

• Using their own resources to pay legal fees or raising the funds via a loan.

• People can take out legal insurance to pay for future court costs.

• Conditional Fee Arrangements

Evaluation of Private Funding.

• Lawyers reluctant to take on cases with little value and an outside chance of winning.

• LASPA 2012 limited the amount clients can claim through insurance or from success fee.

• But, still useful for Deformation cases where Legal Funding is not available.

Conditional Fee Arrangements:

• Client pays a nominal fee plus a ‘success fee’ which is capped in advance.

• No fee is then paid if client loses or client can take out insurance vs risk of losing.

• Since 2013, the ‘success’ fee cannot be recovered, but it is taken out of the compensation.

Alternative sources of legal advice:

• Citizens Advice Bureaux: Free legal advice (2.5m clients in 2015), cannot act on behalf of clients in court.

• Law Centres Network: In areas where few law firms. Offer free advice manned by solicitors/law students. Funded by Government and lottery yet left underfunded.

• Pro-Bono Bar Unit: In London offering advice and representing clients in court, very small impact.

• Trade Unions: Free advice to members on all work related issues.

How much did the average solicitor outside of London charge per hour in 2021?

£200 Per hour/rate

Evaluation of Conditional Fee Arrangements

Advantages:

• Offer alternative to Private Funding

• Remove financial anxiety of huge costs.

• Any deductions for costs set at 25%

• Insurance can be taken out to compensate for loss.

• Widely available

Disadvantages:

• Solicitors charge higher fees to cover the risk of losing.

• Court costs are not covered in the arrangement

• It encourages ‘cherry picking’ by solicitors to pick cases that stand a greater chance of winning.

• Encourages lawyers to use dubious tactics to win at all costs.

• Lawyers will generally insist on insurance, precluding poorer clients.

• Certain firms are contracted to take on specific publicly funded cases, restricting pool of potential firms.

Evaluation of Civil Funding:

Advantages:

• Wide variety of ways for C to obtain advice, don’t have to rely on lawyers.

• Many of these agencies employ specialists who can go beyond by representing C.

• Legal aid is available for those unable to pay, through either state-funded or private arrangements. C can still get the best, most experienced lawyers.

Disadvantages:

• Lawyers are unable to estimate fees at the start of a case. C may also have to pay two fees, theirs and the winners.

• For CFAs, a lawyer must be convinced there is a high chance of success. C must take out an expensive ‘after the event’ insurance policy for this. The compensation for C will also be deducted from the lawyers ‘success’ fee and thus cannot be recovered.

• Civil Legal aid budgets have been cut (1 billion to 740 million 2010-2019), whilst number of litigants have increased.

• Because of the above, delays have brought pressure onto advice agencies causing further delays.

Evaluation of Criminal Funding:

Advantages:

• A suspect in detention can obtain legal advice, as all possessions will have been taken so he can be offered advice at police station without the means test.

• D’s criminal charges have the potential to affect his future, thus it is just that a lawyer can investigate these charges.

Disadvantages:

• Criminal aid budget has been cut (£1.2 billion to £880 million 2010-2019). Crimes committed has increased.

• Fewer firms are offering legal aid as it is no longer financially viable. (1860 firms down to 1150 2010-2020)

• This caused an increased number of criminals in Magistrates and Crowns who do not have legal representation, this means cases take longer as procedure must be explained to D in simple terms.

• Criminal work is not attractive, remuneration is poor due to legal aid cuts and unsociable hours.

• An alternative of a Full Public Defender Service would cost too much.

• The strict means test means three-quarters of those who appear in Magistrates do not qualify.

• The ‘interests of justice’ test determines whether there is a real prospect of imprisonment, thus previous offenders are more likely to receive funding.

Four Problems with government funding:

• ‘Advice Deserts’: Not enough legal service providers. The numbers are dwindling, many areas of UK not covered and some legal areas are not covered eg welfare benefits. Reason is poor pay to lawyers.

• Non Availability: In popular civil actions such as TORT and Contract cases v Large Companies.

• Eligibility Levels: Only ¼ tested actually qualify.

• Lack of Funds: Priority given to criminal cases, Government regularly reduces amounts of funding.