LEGAL AIDLEGAL AID

UNIT 8UNIT 8

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ProblemsProblems HistoryHistory Access to justiceAccess to justice Legal Aid AgencyLegal Aid Agency Providers and receivers of legal aidProviders and receivers of legal aid Legal aid in civil and criminal cases: The Legal aid in civil and criminal cases: The

Public Defender Service (PDS) and Civil Public Defender Service (PDS) and Civil Legal Service (CLA)Legal Service (CLA)

SummarySummary

ProblemsProblems

1. Lack of knowledge1. Lack of knowledge 2. Fear of dealing with lawyers2. Fear of dealing with lawyers 3. Costs3. Costs

CostsCosts

Mr Justice Darling: ‘The law courts of Mr Justice Darling: ‘The law courts of England are open to all men like the England are open to all men like the doors of the Ritz hotel’doors of the Ritz hotel’

Costs of civil cases in the High Court – Costs of civil cases in the High Court – thousands of poundsthousands of pounds

Costs of the County Court – often higher Costs of the County Court – often higher than money recovered in damagesthan money recovered in damages

The loser has to pay the winner’s costsThe loser has to pay the winner’s costs

ACCESS TO JUSTICEACCESS TO JUSTICE

The Rule of Law: everyone should be equal The Rule of Law: everyone should be equal before the lawbefore the law

Implications: everyone should have equal Implications: everyone should have equal access to the law and to justiceaccess to the law and to justice

Full use of legal rights, through adequate Full use of legal rights, through adequate legal services: advice, assistance and legal services: advice, assistance and representation, regardless of financial representation, regardless of financial meansmeans

The ability to make full use of the court The ability to make full use of the court structure and rights of appealstructure and rights of appeal

HistoryHistory

1949 Legal Aid and Advice Act: only 1949 Legal Aid and Advice Act: only civil casescivil cases

1964: the scheme extended to 1964: the scheme extended to criminal casescriminal cases

1984 The Police and Criminal Evidence 1984 The Police and Criminal Evidence Act: duty solicitor schemes Act: duty solicitor schemes establishedestablished

1988 The Legal Aid Act – the system 1988 The Legal Aid Act – the system was consolidatedwas consolidated

Access to Justice Act 1999Access to Justice Act 1999

The old legal aid scheme replaced by The old legal aid scheme replaced by two schemes:two schemes:

Community Legal Service for civil Community Legal Service for civil matters – came into effect in 2000 matters – came into effect in 2000

Criminal Defence Service for criminal Criminal Defence Service for criminal cases – started in 2001cases – started in 2001

Legal Aid, Sentencing and Punishment Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012of Offenders (LASPO) Act 2012

Abolished the Legal Services Abolished the Legal Services CommissionCommission

The Legal Aid Agency established on The Legal Aid Agency established on 1 April 20131 April 2013

the new statutory office of the the new statutory office of the Director of Legal Casework – takes Director of Legal Casework – takes decisions on the funding of individual decisions on the funding of individual casescases

THE LEGAL AID AGENCYTHE LEGAL AID AGENCY

Provides both civil and criminal legal Provides both civil and criminal legal aid and advice in England and Walesaid and advice in England and Wales

Public Defender Service (PDS)Public Defender Service (PDS) Civil Legal Service (CLA)Civil Legal Service (CLA)

WHO CAN PROVIDE LEGAL AID?WHO CAN PROVIDE LEGAL AID?

Solicitors, barristers and not-for-profit Solicitors, barristers and not-for-profit sectorsector

Contracted solicitors or advice Contracted solicitors or advice agencies have to meet certain agencies have to meet certain standards and provide a quality standards and provide a quality serviceservice

Providers of Legal ServicesProviders of Legal Services

A) solicitors’ firmsA) solicitors’ firms

B) advice agencies (Citizens’ Advice B) advice agencies (Citizens’ Advice Bureaux and Law Centres)Bureaux and Law Centres)

C) welfare associationsC) welfare associations

D) consumer protection groupsD) consumer protection groups

AAll providers must meet certain ll providers must meet certain minimum standards andminimum standards and undergo undergo regular quality auditsregular quality audits

WHO CAN GET LEGAL AID?WHO CAN GET LEGAL AID?

Income: those receiving income support, Income: those receiving income support, income based jobseeker’s allowance or income based jobseeker’s allowance or guaranteed state pension creditguaranteed state pension credit

savings, shares, investmentssavings, shares, investments, etc., etc. should should not exceed not exceed ££ 8,000; value of property, 8,000; value of property, e.g. a house should not exceed e.g. a house should not exceed £100,000 £100,000

An applicant has to provide a statement An applicant has to provide a statement about his income and capitalabout his income and capital

Who is eligible for legal aid?Who is eligible for legal aid?

Means testMeans test Merits testMerits test

MEANS TESTMEANS TEST

- - to establish whether the candidate is to establish whether the candidate is on low levels of income and capitalon low levels of income and capital (people receiving Income Support or (people receiving Income Support or iincome ncome bbased Job Seeker’s Allowance ased Job Seeker’s Allowance automatically qualify)automatically qualify)

MERIT TESTMERIT TEST

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

PenaltiesPenalties

Penalties for deliberate false Penalties for deliberate false statements about capital and income statements about capital and income

Public funding is taken away if a Public funding is taken away if a client gives a solictor wrong client gives a solictor wrong information about his financesinformation about his finances

Civil Legal AdviceCivil Legal Advice

YouYou can get help with legal aid for: 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 housinghousing discrimination issues discrimination issues help and advice if you’re a victim of domestic help and advice if you’re a victim of domestic

violenceviolence issues around a child being taken into careissues around a child being taken into care

TYPES OF LEGAL AID IN CIVIL TYPES OF LEGAL AID IN CIVIL MATTERSMATTERS

Legal HelpLegal Help Help at CourtHelp at Court Legal RepresentationLegal Representation Support FundingSupport Funding

LEGAL HELPLEGAL HELP

A solicitor or legal adviser who has a A solicitor or legal adviser who has a contract with the Legal Aid Agency contract with the Legal Aid Agency can give advice, write letters, can give advice, write letters, negotiate, get a barrister’s opinion negotiate, get a barrister’s opinion and prepare a written case for courtand prepare a written case for court

Covers advice but does not include Covers advice but does not include issuing or conducting court issuing or conducting court proceedingsproceedings

HELP AT COURTHELP AT COURT

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

Legal RepresentationLegal Representation

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

Support FundingSupport Funding

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

EXCLUDED MATTERSEXCLUDED MATTERS

Most personal injury cases arising from Most personal injury cases arising from negligencenegligence

ConveyancingConveyancing Boundary disputesBoundary disputes The making of willsThe making of wills Matters of trust lawMatters of trust law DefamationDefamation Matters of company or partnership lawMatters of company or partnership law Matters arrising out of the carrying on of a Matters arrising out of the carrying on of a

businessbusiness

PRIORITY FOR FUNDINGPRIORITY FOR FUNDING

Child protection cases and cases where a Child protection cases and cases where a person is at risk of loss of life or libertyperson is at risk of loss of life or liberty

Other cases concerning the welfare of Other cases concerning the welfare of childrenchildren

Domestic violence casesDomestic violence cases Cases alleging serious wrong-doing or Cases alleging serious wrong-doing or

breaches of human rights by public bodiesbreaches of human rights by public bodies Social welfare cases, including housing Social welfare cases, including housing

proceedings, advice about employment proceedings, advice about employment rights, social security entitlements and debtrights, social security entitlements and debt

Problems with funding of civil Problems with funding of civil cases: eligibility levelscases: eligibility levels

2004 the Select Committee on 2004 the Select Committee on Constitutional affairs pointed out:Constitutional affairs pointed out:

‘‘At present, the legal aid system is At present, the legal aid system is increasingly being restricted to those with increasingly being restricted to those with no means at all. There is a substantial risk no means at all. There is a substantial risk that many people of modest means but that many people of modest means but who are home owners will fall out of the who are home owners will fall out of the ambit of legal aid. In many cases this may ambit of legal aid. In many cases this may amount to a serious denial of access to amount to a serious denial of access to justice’.justice’.

Public Defender Service (PDS)Public Defender Service (PDS)

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

Public Defence ServicePublic Defence Service

PDS lawyers – available 24 hours a PDS lawyers – available 24 hours a day, seven days of week to:day, seven days of week to:

Give advice to people in custodyGive advice to people in custody Represent clients in magistrates’, Represent clients in magistrates’,

crown and higher courts where crown and higher courts where necessarynecessary

LEVELS OF CRIMINAL DEFENCE LEVELS OF CRIMINAL DEFENCE SERVICESERVICE

Duty solicitor schemesDuty solicitor schemes Advice and assistanceAdvice and assistance Legal representationLegal representation

These three levels are administered These three levels are administered under the general guidance of the under the general guidance of the Lord ChancellorLord Chancellor

POLICE STATION ADVICE AND POLICE STATION ADVICE AND ASSISTANCEASSISTANCE

If the police questions a person about an If the police questions a person about an offence, he has a right to free legal advice offence, he has a right to free legal advice from a contracted solicitor; no means test from a contracted solicitor; no means test for such advicefor such advice

Once the accused has asked for legal Once the accused has asked for legal advice, he does not have to answer any advice, he does not have to answer any questions until he has spoken to a solicitorquestions until he has spoken to a solicitor

The longest one can wait before speaking The longest one can wait before speaking to a solicitor is 36 hours after arriving at to a solicitor is 36 hours after arriving at the police station (48 hours in cases of the police station (48 hours in cases of suspected terrorism)suspected terrorism)

TYPES OF ADVICETYPES OF ADVICE

A duty solicitor can advise the defendant A duty solicitor can advise the defendant about:about:

BailBail Whether to plead guilty or not guiltyWhether to plead guilty or not guilty Applying for a representation orderApplying for a representation order Type of sentence a defendant might getType of sentence a defendant might get Enforcement of fines or other court Enforcement of fines or other court

orders where there is risk of orders where there is risk of imprisonmentimprisonment

Legal RepresentationLegal Representation

Covers the cost of a solicitor to Covers the cost of a solicitor to prepare a defenceprepare a defence

Covers the cost of a barrister, if a Covers the cost of a barrister, if a case is to be heard in the Crown case is to be heard in the Crown CourtCourt

WHEN IS REPRESENTATION WHEN IS REPRESENTATION GRANTED?GRANTED?

Representation is granted if it is in Representation is granted if it is in the ‘interests of justice’ that the the ‘interests of justice’ that the accused should be represented: accused should be represented:

Indictable offences Indictable offences Substantial questions of lawSubstantial questions of law Defendant is unable to follow the Defendant is unable to follow the

proceedings because he does not proceedings because he does not speak English or is mentally illspeak English or is mentally ill

SummarySummary

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

aid, Commission, Community, aid, Commission, Community, Defence, limited, representationDefence, limited, representation

Legal__ is state funded legal__, advice and Legal__ is state funded legal__, advice and assistance for people of __means. The assistance for people of __means. The Legal Services__ runs two schemes: the Legal Services__ runs two schemes: the __Legal Service and the Criminal__ __Legal Service and the Criminal__ Service. Service.

KeyKey Legal aid is state funded legal Legal aid is state funded legal

representation, advice and assistance for representation, advice and assistance for people of limited means. The Legal people of limited means. The Legal Services Commission runs two schemes: Services Commission runs two schemes: the Community Legal Service and the the Community Legal Service and the Criminal Defence Service. Criminal Defence Service.

Fill in the missing words: access, aid, Fill in the missing words: access, aid, equality, fairness, litigation, plaintiffequality, fairness, litigation, plaintiff

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

KeyKey

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

Fill in the missing words: charged, Fill in the missing words: charged, civil, clients, cost, jurisdictionscivil, clients, cost, jurisdictions

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

KeyKey

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