Access to Justice in the English Legal System

Access to Justice Legal aid was introduced after the Second World War to permit people who could not otherwise afford the services of lawyers to be provided with those services by the State.[1]The system and costs grew hugely over the decades and underwent various restrictions and cutbacks during the late 1990s.[2]Although there have been many high cost claims on the legal aid budget, the scale of the continued rise in spending is not the result of individual or collective wastefulness.[3] It is the result of systemic weaknesses in the way legal aid services are obtained and therefore inefficiencies in the way those services are delivered.[4] The process for evaluating if an individual meet the requirements for civil legal aid and criminal legal aid is different. In civil legal aid, a person’s income and capital must be within definite limits, this is called the means test and their case needs to have a reasonable chance of winning; the merits test.[5] In criminal legal aid, the means test is also considered but in a different way. In addition, the more serious the charge and possible consequences, the more likely it is that the person will qualify for the interests of justice test.[6] The Community Legal Service (Financial Amendment) Regulations 2007 set out the onsets for financial eligibility for all requests for funding. The test uses basic concepts of ‘disposable income’, that is, income available to a person after deducting essential living expenses, and ‘disposal capital’, that is, the assets owned by a person after essentials items like a home.[7] In addition to the financial eligibility, an applicant’s case must also satisfy a new merits test. The commission prepared a Code (2007) which replaces, and is intended to be more flexible than, the merits test that was used for civil legal aid. The code sets out the criteria for determining whether legal aid services should be provided in a particular case.[8] Further legal aid restrictions endanger access to justice; say MPs.[9]Joint committee on human rights warns that Ministry of Justice(MoJ) should not fall into trap of 'knowing the price of everything but value of nothing'.[10]MoJ proposed one-year residence test, the committee calls for broader exemptions, specifically in cases involving children.[11] It said: "Refugees may be unable to access civil legal aid during their first few months of lawful residence in the UK. This is particularly worrying as this is the time that many refugees may need assistance in securing services they are entitled to." [12]Under the MoJ reforms prisoners will lose legal aid for challenges over prison conditions but can keep it for legal challenges involving their liberty. The report said: "In some cases only the retention of public funding will be sufficient to prevent infringements of prisoners' right of access to court arising in practice."[13] Removing legal aid funding for borderline cases could affect human rights challenges and save only A£1m a year, the JCHR added.[14] The orthodox view is that individual’s rights to access justice cannot be denied when considering Article 6 of the European Convention of Human Rights (ECHR). Article6givesyou therighttobringacivil or criminalcasetocourt, the right to a fair and public hearing embodied in international human rights treaties. Thelegalsystemmust besetupinsuch a waythatthe general publicarenotomittedfrom thecourtprocess.Therightofaccessto courtisnot,however,unlimitedandthe ECHRhas acceptedthatcategoricalpeople[15] can berestrictedfrombringingcases. However, Article6doesnotgiveageneralrightto legalaidineverycivilcaseinvolvinga personwhocannotafford tobring proceedings[16]. However, legalaid mayberequiredbyArticle6insomecivil cases,forexampleincasesor proceedingsthatareverycomplex,orin circumstanceswhere a personisrequired tohavealawyerrepresentingthem.[17] In criminal cases, those who cannot pay the service of a lawyer to exercise their procedural rights are affected by the lack of effective protection of the right to legal aid. It may lessen their chance to influence the outcome of the proceedings when their liberty is at stake.[18] In civil cases, citizens are unable to protect and declare their civil, economic, social and cultural rights because of the lack of available mechanisms for resolving legal disputes. In both criminal and civil cases, the lack of access to justice results in reduced public assurance in the legal system, which is cornerstone for every democratic state rooted in the principles of the rule of law, human rights and democracy[19]. In a criminal case, a police custody officer will help you get legal aid if you’ve been detained and held at a police station. A solicitor will check if you qualify for legal aid if you’re charged with a crime. You will get legal aid automatically if you’re under 16 or on certain benefits.[20] However there was no right under common law to legal aid in all circumstances, but Grayling said that common law undoubtedly recognised a right of effective access to court, "which means that legal aid may be required in certain circumstances in order for the right of access to be meaningful".[21] Meanwhile, the justice secretary's plan to cut defence barristers' fees by at least 30% in the most complex and demanding criminal cases came under attack in the House of Lords.[22] For instance, in the case of O.F. v Norway[23] the accused was deprived of legal aid by the State Party in defending charges of a traffic offence.[24] The State Party argued that there was no concern raised under article 14 3(d) owing to the triviality of the offence, therefore the consequence should only result in a small fine.[25] The Human Rights Court (HRC) concurred that the accused had not been able to show that in his particular case the interests of justice would have essentially required legal aid services.[26] Obviously when determining to grant or refuse legal aid in the context of “interests of justice”, the severity of the offence is considered. There has been a suggestion in the case law that a State may refuse legal aid to litigants on the basis of a value judgment on the objective chances of success, even in a case where the severity of the offence is not doubtful. In Z.P. v Canada[27] the Court upheld the decision by the Canadian authorities to deny access to legal aid in an appeal against a conviction for rape on the basis of an apparent lack of merits in the appeal. However, cases regarding capital punishment would be an exception to this rejection of legal.[28] Another issue presumably relevant to this header is the quality of representation. The issue is addressed in the jurisprudence of the HRC[29] on stating that lawyers should be able to counsel and to represent their clients in line with their established professional standards and judgment without any constraints, influences, pressures or undue interference from any quarter. The jurisprudence of the HRC also states that the authorities owe a duty to take measures as to ensure that the accused is efficiently represented[30]. Furthermore, in the case of a lawyer representing an accused on appeal, there should be effective support[31]. In Estrella v Uruguay[32] the HRC held that when an accused was offered only a limited choice of officially appointed counsel and the counsel then adopted “the attitude of a prosecutor”, an adequate defence has been violated and there is a breach of Human Rights.[33] The Alternative Funding Arrangements[34] (AFA) increases access to justice whilst limiting public expenditure. AFA occur when payments to a law firm are based on a method other than billable hours[35].The conditional fee is the classic example of an AFA for which the percentage of the money won at trial or on settlement is collected by the firm; only if the legal action is financially successful that the client pays. However, AFAs encompass a large variety of arrangements and there is a disruptive but inevitable move to AFA[36]. The most recent approach intended to promote access to justice at proportionate cost is the Jackson Report in 2013. The idea is to dissuade avoidable claims from going to court[37]. According to the MoJ spokesman ‘this will require changes to legal rules and regulations’[38].There can be no doubt that the Jackson reforms comprise significant changes[39] to civil procedure and will have a wide-ranging impact. However, the impact remains solely on how future court reports on their application and how alterations will really work in practice. The Access to Justice Act 1999 (ss 27-31), together with the Conditional Fee Order 2013, reformed the law relating to conditional fees with the intention to discourage weak cases and encourage settlements. Conditional fee agreements play a valuable role in helping people with valid claims to obtain access to justice.[40] This Order implementsSection 44of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which eradicates recoverability of success fees from the losing party in relation to any conditional fee agreements[41]. Insofar, it can be further argued that there has been an optimistic approach to allow potential individuals to access justice through legal aid system. WORD COUNT: 1540 Bibliography STATUTES:

1. Access to Justice Act 1999
2. Conditional Fee Order 2013
3. Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)
4. Community Legal Service (Financial Amendment) Regulations 2007
5. Code (2007)

CASES:

6. O.F. v Norway [1984] CCPR/C/OP/2 at 44 (1990)
7. Z.P. v Canada [1991] CCPR/C/41/D/341
8. Kelly v Jamaica [1991] CCPR/C/41/D/253
9. Estrella v Uruguay [1990] CCPR/C/OP/2

BOOKS:

1. Gary Slapper & Kelly, English Legal System, fourteenth edition, Routledge,2013
2. Ministry of Justice, makingsenseofHumanRights:Ashort introduction (summarybooklet), October2006

WEBSITES:

1. https://www.lccsa.org.uk/assets/documents/consultation/carter%20review%2013072006.pdf , accessed on 02/12/2013
2. https://www.theguardian.com/law/2013/dec/13/further-legal-aid-restrictions-endangers-access-justice , accessed on 16/12/2013
3. https://www.gov.uk/legal-aid/eligibility ,accessed on 13/12/2013
4. https://www.nuigalway.ie/sites/eu-china-humanrights/seminars/ds0406d/marcela%20rodriguez-farrelly-eng.doc ,accessed on 13/12/13
5. https://www1.umn.edu/humanrts/gencomm/hrcom13.htm ,accessed on 12/12/13
6. www.justice.gov.uk , accessed on 12/12/2013
7. https://www.theguardian.com/law/2013/dec/13/committee-warns-legal-aid-cuts-may-breach-human-rights, accessed on 16/12/2013
8. https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted accessed on 24/01/2014 accessed on 24/01/2014
9. https://www.newsquarechambers.co.uk/files/Newsletters/Legal%20Update%20-%20April%202013.pdf accessed on 24/01/2014
10. https://www.rawlisonbutler.com/news/22342 accessed on 25/01/2014
11. https://www.lawgazette.co.uk/64021.article accessed on 25/01/2014
12. https://www.lawdable.com/2009/02/articles/practice-areas/alternative-fee-arrangements-gain-traction/ accessed on 25/01/2014
13. https://www.hgexperts.com/article.asp?id=7551 accessed on 25/01/2014
14. https://www.afalaw.co.uk/ accessed on 26/01/2014

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[1] Gary Slapper & Kelly, English Legal System, fourteenth edition, Routledge,2013,page 651 [2] Ibid [3] https://www.lccsa.org.uk/assets/documents/consultation/carter%20review%2013072006.pdf, pg 3, accessed on 02/12/2013 [4] Ibid [5] www.justice.gov.uk accessed on 12/12/2013 [6] Ibid [7] Ibid [8] Gary Slapper & Kelly, English Legal System, fourteenth edition, Routledge,2013,page 661 [9] https://www.theguardian.com/law/2013/dec/13/further-legal-aid-restrictions-endangers-access-justice, accessed on 16/12/2013 [10] Ibid [11] https://www.theguardian.com/law/2013/dec/13/further-legal-aid-restrictions-endangers-access-justice, accessed on 16/12/2013 [12] https://www.theguardian.com/law/2013/dec/13/further-legal-aid-restrictions-endangers-access-justice, accessed on 16/12/2013 [13] Ibid [14] Ibid [15] Ministry of Justice, makingsenseofHumanRights:Ashort introduction (summarybooklet), October2006, page 19 [16] Ibid [17] Ibid [18] https://www.nuigalway.ie/sites/eu-china-humanrights/seminars/ds0406d/marcela%20rodriguez-farrelly-eng.doc accessed on 13/12/2013 [19]Ibid [20] https://www.gov.uk/legal-aid/eligibility, accessed on 13/12/2013 [21] https://www.theguardian.com/law/2013/dec/13/committee-warns-legal-aid-cuts-may-breach-human-rights, accessed on 16/12/2013 [22] Ibid [23] O.F. v Norway [1984] CCPR/C/OP/2 at 44 (1990) [24]https://www.nuigalway.ie/sites/eu-china-humanrights/seminars/ds0406d/marcela%20rodriguez-farrelly-eng.doc page 6, paragraph 5 accessed on 13/12/2013 [25] Ibid [26] Ibid [27] Z.P. v Canada [1991] CCPR/C/41/D/341 [28] Ibid [29] https://www1.umn.edu/humanrts/gencomm/hrcom13.htm, HRC Comment 13, paragraph 9, accessed on 12/12/13 [30] Kelly v Jamaica [1991] CCPR/C/41/D/253 [31] ibid [32] Estrella v Uruguay [1990] CCPR/C/OP/2 [33] Estrella v Uruguay [1990] CCPR/C/OP/2 [34] https://www.afalaw.co.uk/ accessed on 26/01/2014 [35] https://www.lawdable.com/2009/02/articles/practice-areas/alternative-fee-arrangements-gain-traction/ accessed on 25/01/2014 [36] https://www.hgexperts.com/article.asp?id=7551 accessed on 25/01/2014 [37] https://www.rawlisonbutler.com/news/22342 accessed on 25/01/2014 [38] https://www.lawgazette.co.uk/64021.article accessed on 25/01/2014 [39] https://www.newsquarechambers.co.uk/files/Newsletters/Legal%20Update%20-%20April%202013.pdf accessed on 24/01/2014 [40] Gary Slapper & Kelly, English Legal System, fourteenth edition, Routledge,2013 [41] https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted accessed on 24/01/2014

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