LEGAL AID UNIT 8

Preview Problems History Access to justice Legal Aid Agency Providers and receivers of legal aid Legal aid in civil and criminal cases: The Public Defender Service (PDS) and Civil Legal Service (CLA) Summary

Problems 1. Lack of knowledge 2. Fear of dealing with lawyers 3. Costs

Costs Mr. Justice Darling: ‘The law courts of England are open to all men like the doors of the Ritz hotel’ Costs of civil cases in the High Court – thousands of pounds Costs of the County Court – often higher than money recovered in damages The loser has to pay the winner’s costs

ACCESS TO JUSTICE The Rule of Law: everyone should be equal before the law Implications: everyone should have equal access to the law and to justice Full use of legal rights, through adequate legal services: advice, assistance and representation, regardless of financial means The ability to make full use of the court structure and rights of appeal

History 1949 Legal Aid and Advice Act: only civil cases 1964: the scheme extended to criminal cases 1984 The Police and Criminal Evidence Act: duty solicitor schemes established 1988 The Legal Aid Act – the system was consolidated

Access to Justice Act 1999 The old legal aid scheme replaced by two schemes: Community Legal Service for civil matters – came into effect in 2000 Criminal Defence Service for criminal cases – started in 2001

Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 Abolished the Legal Services Commission The Legal Aid Agency established on 1 April 2013 the new statutory office of the Director of Legal Casework – takes decisions on the funding of individual cases

THE LEGAL AID AGENCY Provides both civil and criminal legal aid and advice in England and Wales Public Defender Service (PDS) Civil Legal Service (CLA)

Legal Aid

WHO CAN PROVIDE LEGAL AID? Solicitors, barristers and not-for-profit sector Contracted solicitors or advice agencies have to meet certain standards and provide a quality service

Providers of Legal Services A) solicitors’ firms B) advice agencies (Citizens’ Advice Bureaux and Law Centres) C) welfare associations D) consumer protection groups All providers must meet certain minimum standards and undergo regular quality audits

WHO CAN GET LEGAL AID? Income: those receiving income support, income based jobseeker’s allowance or guaranteed state pension credit savings, shares, investments, etc. should not exceed £ 8,000; value of property, e.g. a house should not exceed £100,000 An applicant has to provide a statement about his income and capital

Who is eligible for legal aid? Means test Merits test

MEANS TEST - to establish whether the candidate is on low levels of income and capital (people receiving Income Support or income based Job Seeker’s Allowance automatically qualify)

MERIT TEST Civil cases – the test on whether the case has a reasonable chance of success and the damages will be worth more than the costs) Criminal cases - the test on whether a defendant’s case is in the interest of justice (whether it is relevant enough to be funded publicly)

Penalties Penalties for deliberate false statements about capital and income Public funding is taken away if a client gives a solictor wrong information about his finances

Civil Legal Advice You can get help with legal aid for: benefit appeals debt, if your home is at risk special educational needs housing discrimination issues help and advice if you’re a victim of domestic violence issues around a child being taken into care

TYPES OF LEGAL AID IN CIVIL MATTERS Legal Help Help at Court Legal Representation Support Funding

LEGAL HELP A solicitor or legal adviser who has a contract with the Legal Aid Agency can give advice, write letters, negotiate, get a barrister’s opinion and prepare a written case for court Covers advice but does not include issuing or conducting court proceedings

HELP AT COURT A solicitor or legal adviser can appear in court on a client’s behalf at a particular hearing, without formally acting for him in the whole proceedings

Legal Representation All aspects of a case including starting or defending court proceedings and any advocacy needed in a case

Support Funding Partial funding of cases which are otherwise being pursued privately, e.g. a very high cost case under a conditional fee agreement

EXCLUDED MATTERS Most personal injury cases arising from negligence Conveyancing Boundary disputes The making of wills Matters of trust law Defamation Matters of company or partnership law Matters arrising out of the carrying on of a business

Legal Aid, Sentencing and Punishment of Offenders Act 2012 Excluded matters: Family cases where there is no proof of domestic violence, forced marriage or child abduction. Immigration cases that do not involve asylum or detention Housing and debt matters unless they constitute an immediate risk to the home Welfare benefit cases; except appeals to the upper tribunal or high court Almost all clinical negligence cases

PRIORITY FOR FUNDING Child protection cases and cases where a person is at risk of loss of life or liberty Other cases concerning the welfare of children Domestic violence cases Cases alleging serious wrong-doing or breaches of human rights by public bodies Social welfare cases, including housing proceedings, advice about employment rights, social security entitlements and debt

Problems with funding of civil cases: eligibility levels 2004 the Select Committee on Constitutional affairs pointed out: ‘At present, the legal aid system is increasingly being restricted to those with no means at all. There is a substantial risk that many people of modest means but who are home owners will fall out of the ambit of legal aid. In many cases this may amount to a serious denial of access to justice’.

Public Defender Service (PDS) The CDS ensures that individuals involved have access to such legal advice assistance and representation as the interests of justice require

Public Defender Service PDS lawyers – available 24 hours a day, seven days of week to: Give advice to people in custody Represent clients in magistrates’, crown and higher courts where necessary

LEVELS OF CRIMINAL DEFENCE SERVICE Duty solicitor schemes Advice and assistance Legal representation These three levels are administered under the general guidance of the Lord Chancellor

POLICE STATION ADVICE AND ASSISTANCE If the police questions a person about an offence, he has a right to free legal advice from a contracted solicitor; no means test for such advice Once the accused has asked for legal advice, he does not have to answer any questions until he has spoken to a solicitor The longest one can wait before speaking to a solicitor is 36 hours after arriving at the police station (48 hours in cases of suspected terrorism)

TYPES OF ADVICE A duty solicitor can advise the defendant about: Bail Whether to plead guilty or not guilty Applying for a representation order Type of sentence a defendant might get Enforcement of fines or other court orders where there is risk of imprisonment

Legal Representation Covers the cost of a solicitor to prepare a defence Covers the cost of a barrister, if a case is to be heard in the Crown Court

WHEN IS REPRESENTATION GRANTED? Representation is granted if it is in the ‘interests of justice’ that the accused should be represented: Indictable offences Substantial questions of law Defendant is unable to follow the proceedings because he does not speak English or is mentally ill

Summary Legal aid in civil matters: 1) Legal Help, 2) Help at Court, 3) Legal Representation and 4) Support Funding. Levels of Criminal Defence Service: 1) duty solicitor at the police station, 2) advice and assistance, and 3) legal representation.

Fill in the missing words: access, aid, equality, fairness, litigation, plaintiff Many societies grant legal ___to persons incapable of paying for a lawyer. The right of ____ to justice to the poor, especially in criminal cases, is granted. Even in respect of civil ___, however, elementary norms of___ would be undermined where an impecunious defendant is sued by an affluent ____or the state. Any semblance of ___before law would be shattered.

Key Many societies grant legal aid to persons incapable of paying for a lawyer. The right of access to justice to the poor, especially in criminal cases. Even in respect of civil litigation, however, elementary norms of fairness would be undermined where an impecunious defendant is sued by an affluent plaintiff or the state. Any semblance of equality before law would be shattered.

Fill in the missing words: charged, civil, clients, cost, jurisdictions The ___involved (to both the state and individual seeking legal aid) generally results in preference being given to assisting those ___ with criminal offences, though some ___supply free legal aid in ___cases. Certain systems of legal aid provide lawyers who are employed exclusively to act for eligible, impoverished____.

Key The cost involved (to both the state and individual seeking legal aid) generally results in preference being given to assisting those charged with criminal offences, though some jurisdictions supply free legal aid in civil cases. Certain systems of legal aid provide lawyers who are employed exclusively to act for eligible, impoverished clients.