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LEGAL AID

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

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LEGAL AID

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  1. LEGAL AID UNIT 8

  2. Preview • Problems • History • Access to justice • Legal AidAgency • Providersandreceiversof legal aid • Legal aidin civil andcriminalcases: ThePublicDefender Service (PDS) and Civil Legal Service (CLA) • Summary

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

  4. 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

  5. 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

  6. Access to Justice Act 1999 • The old legal aidschemereplacedbytwoschemes: • Community Legal Service for civil matters – cameintoeffectin 2000 • CriminalDefence Service for criminalcases – startedin 2001

  7. Legal Aid, SentencingandPunishmentofOffenders (LASPO) Act 2012 • Abolishedthe Legal ServicesCommission • The Legal AidAgencyestablished on 1 April 2013 • the new statutory office oftheDirectorof Legal Casework – takesdecisions on thefundingofindividualcases

  8. 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

  9. THE LEGAL AID AGENCY • Providesbothe civil andcriminal legal aidandadviceinEnglandandWales • PublicDefender Service (PDS) • Civil Legal Service (CLA)

  10. WHO CAN PROVIDE LEGAL AID? Solicitors, barristersandnot-for-profit sector Contractedsolicitors or adviceagencieshave to meetcertainstandardsand provide a quality service

  11. Providersof 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 andundergo regular quality audits

  12. WHO CAN GET LEGAL AID? • Income: thosereceivingincomesupport, incomebasedjobseeker’s allowance or guaranteed state pension credit • savings, shares, investments, etc.shouldnotexceed£ 8,000; valueofproperty, e.g. a houseshouldnotexceed£100,000 • Anapplicanthas to provide a statementabout his incomeand capital

  13. Who is eligible for legal aid? • Means test • Merits test

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

  15. 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)

  16. 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

  17. 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

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

  19. LEGAL HELP • A solicitor or legal adviser who has a contractwiththe Legal AidAgencycangiveadvice, writeletters, negotiate, get a barrister’s opinionandprepare a writtencase for court • Coversadvice but doesnotincludeissuing or conducting court proceedings

  20. 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

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

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

  23. 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

  24. 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

  25. 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’.

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

  27. PublicDefence Service • PDS lawyers – available 24 hours a day, seven daysofweek to: • Giveadvice to peopleincustody • Representclientsinmagistrates’, crownandhighercourtswherenecessary

  28. 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

  29. 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)

  30. 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

  31. 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

  32. 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

  33. aid, Commission, Community, Defence, limited, representation • Legal__ is state funded legal__, adviceandassistance for peopleof __means. The Legal Services__ runstwoschemes: the __Legal Service andtheCriminal__ Service.

  34. Key • Legal aid is state funded legal representation, adviceandassistance for peopleoflimitedmeans. The Legal ServicesCommissionrunstwoschemes: theCommunityLegal Service andtheCriminalDefenceService.

  35. Summary • Legal aidin civil matters: 1) Legal Help, 2) Help at Court, 3) Legal Representationand 4) SupportFunding. LevelsofCriminalDefence Service: 1) dutysolicitor at the police station, 2) adviceandassistance, and 3) legal representation.

  36. Fillinthemissingwords: access, aid, equality, fairness, litigation, plaintiff • Manysocieties grant legal ___to personsincapableofpaying for a lawyer. Therightof ____ to justicetothepoor, especiallyincriminalcases, is granted. Eveninrespectof civil ___, however, elementarynormsof___ wouldbeunderminedwhereanimpecuniousdefendant is suedbyanaffluent ____or the state. Anysemblanceof ___beforelawwouldbeshattered.

  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.

  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____.

  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.

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