Access to Justice
Concerns the ability of ordinary people to access legal advice and representation. Links to the concept of the rule of law and to the concept of justice. Equality before the law embraces the idea that access legal advice and representation should not be limited to ability to pay.
There are currently major issues concerning the funding of civil and legal cases and "access to justice". Over £900 million in cuts over an 8 year period. Has resulted in "advice deserts"; reliance on the CAB; increase in litigants in person
Criminal Cases
Civil Cases
most legal aid (State funding) is allocated to criminal cases. There are several schemes - which are administered by the Legal Aid Agency - created under LASPO 2012.
Police Station - Duty Solicitor Scheme
Representation Order
Magistrates' Court
Crown Court
Civil legal aid is now limited to certain areas - e.g. Asylum and Immigration; Domestic Violence in family cases; mental health. The scheme is administered through the Legal Aid Agency and uses a means and merits test.
Most civil claims involving money are financed using a no-win, no-fee agreement (CFA or DBA). CFAs became legal in 1990. DBA were introduced more recently. In both cases, lawyers agree to take cases and will not charge a fee unless they win. If they do win, the other side will pay the damages and the "normal" legal fees (as loser pays the winner).
Other sources of advice and representation
An increased reliance on the CAB as a source of advice
An increase in litigants in person
Has resulted in "advice deserts"
Law Centres and University Law Clinics
CAB - Citizens Advice Bureau
Pro-Bono Schemes - where lawyers agree to take a case or give advice at no cost.
Insurance and Trade Union Schemes
These are persons representing themselves e.g. in family cases there has been a dramatic increase in the number of unrepresented litigants on at least one side of the case (36% of private family cases). Only 71% of persons defending a civil case in 2018 had legal representation.
Persons representing themselves ion criminal cases - e.g. in the Magistrates Court. In the Crown Court 8% of defendants were unrepresented at their first hearing (5% in 2010).
Important areas of law are no longer being funded by legal aid. A key example is discrimination cases. Most tribunal cases do not attract legal aid funding (except in exceptional cases). Between 2013/14 and 2017/18 no workplace discrimination cases were backed by legal aid for representation in the employment tribunal. This is a problem as workers may not have the means to fund a case and the law can be complex. Trade Unions will support such cases but not all workers belong to a trade union. Only 1 in 200 of the discrimination claims is funded by legal aid.
CFA - solicitor charges a success fee - up to 100% of their normal fee (but no more than the equivalent of 25% of damages)
DBA - solicitor takes a % of the damages awarded
Means (income based - estimated 75% of public do not qualify) and merits tests (interests of justice test). In a large numbers of cases defendants are unrepresented or pay privately e.g. motoring cases
Means and merits test - most people qualify as the limits are higher (disposable income of below £37,500). The merits test is usually satisfied as all defendants risk imprisonment and cases will involve cross examination of witnesses. So, most people are represented by a lawyer funded through legal aid. However, contributions are payable (unlike the Magistrates Court)