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- Created on: 05-04-13 13:56
About Access to Justice
What is Access to justice?
Where a person cannot get help they need, it is said they are being denied access to justice.
Access to justice involves both an open system of justice and also being able to fund the costs of a case.
Came into effect in 1999.
Access to Justice schemes
There have been various schemes aimed at making the law more accessible to everyone.
The National Network of Citizens' Advice Bureaux was started in 1939 and now operates in most towns.
Law Society has relaxed the rules to that solicitors are allowed to advertise and inform the public of the areas of law they specialise in.
A judge, Mr Justice Darling, once said "The law courts of England are open to all men like the doors of the Ritz hotel" - meaning the courts are there for anyone to use but cost may prevent many people from seeking justice.
History of Legal Aid and advice schemes.
A system of Government-funded legal aid and advice began after the report by the Rushcliffe committee in 1945.
The Government accepted the proposals in principle and this led to the Legal Aid and Advice Act 1949.
The initial scheme only covered civil cases. It was not until 1964 that the scheme was extended to criminal cases.
The main areas of advice came from the Green Form scheme of advice which was set up in 1972.
Due to the Police and Criminal Evidence Act 1984 :-
duty solicitor schemes in Police stations and Magistrates' Courts were established.
The entire system was consolidated in the Legal Aid Act 1988.
When the scheme started in 1949, about 80% of the population were eligible.
Financial limits for qualifying did not keep pace with inflation, the number qualifying gradually went down to about 48% by 1978.
In 1979 nearly 80% of the population qualified.
-This didnt last long and in 1993 there were severe cuts to the limits so that only 40% qualified and many of these had to pay large contributions towards their funding.
Access to Justice Act 1999
The cost of funding cases under the legal aid scheme was very expensive.
There were also critisims that advice was not available to those who really needed it.
In their white paper the Government stated that it needed to tackle the following problems:
- Inadequate access to good quality info' and advice.
- The inability to control legal aid.
- The neeed to target legal aid within a budget the taxpayer can afford.
The advice sector was described as "fragmented and unplanned".
Under the Access to Justice Act the old legal aid scheme was replaced by two new schemes.
These are the Community Legal Service for Civil matters and the Criminal defence Service for criminal cases.
The Community Legal Service came into effect on 1 April 2000.
The Criminal Defence Service started in April 2001.
The legal services commission oversees the public funding of both schemes.
The Legal Services Commission
- The members of the commission are appointed by the Lord Chancellor.
- The Lord Chancellor must ensure that when appointing a member they must have a wide range of expertise and experience.
The Legal Services Commission is responsible for managing the community Legal Service Fund and it is able to make contracts with providers of all types of Legal service.
The Commission is also responsible for developing local, regional and national plans.
It also has a role in respect of Criminal legal aid and the Criminal Defence Service.
Community Legal Service
The Community Legal Service provides the following services for matters involving civil law:
- General information about the law and legal system and the availability of Legal Services;
- Legal advice;
- Help in preventing or otherwise resolving disputes about legal rights and duties.
- Help in enforcing decisions by which such disputes are resolved.
The money to pay for this service comes out of the Community Legal Fund. There is a set limit for the fund.
Certain types of civil cases are not funded by the Community Legal Services fund, such as:
- Claims for personal injury, or death or damage to property through someone else's negligence;
- Defamation or malicious falsehood cases;
- Claims for amounds of less than £5000;
- Most tribunal hearings, except for cases involving human rights, eg asylum or mental health reviews.
The person must show that their case should be funded. To decide this, the following points are considered:
- The likely cost of funding and the benefit which may be obtained;
- The amount of money in the Community Legal Fund;
- The importance of the matters for the individual;
- The availability of other services;
- How likely it is that the case will be won; there must be a realistic chance of the case succeeding before public money is made available for it.
Other funding criteria points to consider
The person must qualify financially.
To decide this, their disposable income and disposable capital are calculated.
Disposable income is the amount of income available to a person after taking into account essential living expenses.
Disposable capital is the assets owned by the person. It includes the equitable value of the home above £100,000.
More Funding criteria
If disposable income and capital are below the minimum limits, the person will recieve free funding. BUT if their disposable income and capital are above the maximum allowed, then they do not quality for help.
If their disposable income and capital are between the minimum and maximum figures they will have to pay a contribution towards the cost of the funding.
The limits are quite low, eg anyone with more than £8,000 capital will not qualify.
Problems with funding of civil cases
-Money is allocated to regional offices of the Commission according to the amount indentified as neccessary for that area. This could result in one area not having enough to fund all the cases it needs.
-Very expensive cases are funded on a case-by-case basis through individually negotiated contracts from a central fund.
-About 2,500 firms of solicitors have contracts. This is less than a third of the number who previously did legal aid work. There are problems of access to justice in some areas where there is no solicitor doing publicly funded work.
More problems with funding of civil cases
-Even solicitors who do publicly funded work are cutting back on the number of cases they take because of the low rates of pay.
-The Citizens Advice Bureau reported in 2004 that there were 'advice deserts' in some parts of the country where there were no legal aid solicitors available for important cases such as those involving housing or health law.
-The statutory charge can mean that a claimant has very little left from their damages even though they won the case.
Private funding for civil cases
Paying privately for a lawyer is very expensive, especially in London.
Most individuals who do not qualify for help and representation under the government scheme cannot afford to pay full private fees.
For this reason conditional fee agreements have been developed.
These were first allowed by the Courts and Legal Services Act 1990 and extended by the Access to Justice Act 1999.
The solicitor and client agree on the fee that would normally be charged for such a case, with a "success fee" payable if the case is won.
If the solicitor does not win the case, then the client pays nothing. If the solicitor is successful then the client pays the normal fee plus the success fee.
The Access to justice Act 1999 allows courts to order that the losing party pays the amount of the success fee to the winning party.
It is possible to insure against losing a case and, if the case is won, s29 Access to Justice Act 1999 allows the court to order the losing party to pay the cost of insurance premiums.
Free advice can be obtained from a number of agencies. Some of them specialise in a particular area of law, others give general advice. Some examples are:
- The Citizens Advice Bureau;
- Law centres;
- The community Legal Service website;
- The Bar's Free Representation Unit which represents litigants in court.
The Criminal Defence Service
1. Since April 2001 the Criminal Defence Service has been responsible for the funding of criminal cases for defendants.
2. This service is aimed at "securing that individuals involved in crimnal investigations or proceedings have access to such advice, assistance and representation as the interests or justice require".
Advice and assistance
1. There is a duty solicitor scheme for people who are arrested and held in custody at a police station. This is free.
2. This is now organised through the Defence Solicitors' Call Centre.
3. When someone is arrested, the custody officer at the police station must tell them about this scheme.
4. Criminal Defence Service Direct provides telephone-only advice for minor matters. But if a suspect is being interviewed by the police they are entitled to have a solicitor present at the interview.
5. There is also a duty solicitor scheme at many Magistrates' Courts for people to recieve free advice on their cases. The solicitor may also represent them on matters such as bail applications.
The Legal Services Commission has the power to decide when a defendant should have a legal representative paid for by the state.
This is done by deciding if it is in the interests of justice for the defendant to be represented in court. 5 categories are considered. These are whether:
- The individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation;
- The determination of any matter arising in the proceedings may involve consideration of an substantial point of law;
Defendants in the Magistrates' courts are means tested. They will only qualify for publicly funded representation if they are on a low level of income.
During 2010, means testing for Crown Court cases is being brought in. The levels of disposable income and capital are higher than those allowed for Magistrates' Court.
There is no fixed budget and the funding of Criminal cases is demand led.
If the cost of criminal cases becomes very heavy, then it is possible for funds from the civil budget to be transferred to the criminal budget.
The Public Defender Service
The Public Defender Service has salaried lawyers to represent defendants. It initially opened offices in eight areas, but four them have been closed because they were not financially viable.
There is criticism that such a system means that the state is both prosecuting the defendant (through the Crown Prosecution Service) and defending the defendant.
There have been criticisms that the Service is more expensive than using lawyers in private practice.
Representation continuation points