1. LEGAL AID UNIT 8

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

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

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

5. ACCESS TO JUSTICE The Rule of Law: everyone should be equal before the law The Rule of Law: everyone should be equal before the law Implications: everyone should have equal access to the law and to justice 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 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 The ability to make full use of the court structure and rights of appeal

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

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

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

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

10. Legal Aid

11. 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

12. 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

13. WHO CAN GET LEGAL AID? Income: those receiving income support, income based jobseeker’s allowance or guaranteed state pension credit 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 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 An applicant has to provide a statement about his income and capital

14. Who is eligible for legal aid? Means test Means test Merits test Merits test

15. 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)

16. 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) 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)

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

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

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

20. 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 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 Covers advice but does not include issuing or conducting court proceedings

21. 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 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

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

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

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

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

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

27. Problems with funding of civil cases: eligibility levels 2004 the Select Committee on Constitutional affairs pointed out: 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’. ‘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’.

28. 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 The CDS ensures that individuals involved have access to such legal advice assistance and representation as the interests of justice require

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

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

31. 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 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 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) 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)

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

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

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

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

36. 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. 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.

37. 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. 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.

38. 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____. 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____.

39. 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. 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.