Course Notes The English Legal System Published by Routledge Catherine Easton 2012

COURSE NOTES THE ENGLISH

LEGAL SYSTEM

Model Answers to Potential Exam Questions

Chapter 7
2) Evaluate the changes to the legal aid system introduced by the Access to
Justice Act 1999.

Legal aid involves the provision of funding to allow individuals to bring cases in the
courts system. The Rushcliffe Committee Report of 1945 contained a number of key
recommendations in relation to the legal aid system. These included:

legal aid should be available in all courts;

the availability of legal aid should not be limited;
legal aid should be means tested;
the State should bear the cost; and
legal aid lawyers should receive adequate pay.

These recommendations led to the passing of the Legal Aid and Advice Act 1949
which gave the Law Society the duty of ensuring legal aid and advice were available.
This initially only applied in relation to civil cases, but in 1964 the scheme was
extended to include criminal cases. By 1979 around 80 per cent of applicants were
eligible for legal aid, by 1990 this fell to around 48 per cent

The Access to Justice Act of 1999 established the Legal Services Commission with
two services: the civil Community Legal Service and the Criminal Defence Service.
These are government-funded with an annual fixed amount and criminal cases can be
funded from any civil case surplus. Under s.13(2) of the Act, the Commission was
given the power to employ lawyers and this led to the development of the Public
Defender Service.

The Legal Services Commission contracts with solicitors firms and not-for-profit
agencies. These both have to gain a Quality Mark. However, recently the number of
solicitors with contracts to undertake publicly funded work in civil cases has fallen
drastically.

Under s.8 of the Access to Justice Act 1999 the factors to be taken into account on
deciding whether to fund a civil case include:

cost
benefit
availability of funds
importance to the individual
availability of other (non-funded) services
prospects of success
conduct of the individual and the public interest.
Course Notes The English Legal System Published by Hodder Education Catherine Easton 2012
Course Notes The English Legal System Published by Routledge Catherine Easton 2012

COURSE NOTES THE ENGLISH

LEGAL SYSTEM

The Act also splits civil cases into highest priority, which includes child protection
cases and cases that risk loss of life or liberty, and high priority which includes
domestic violence cases and cases involving serious wrongdoing or human rights
violations.

Funding will be refused if other avenues (e.g. the Ombudsman) should be and have
not been pursued, if a conditional fee agreement is likely to be available, or if
prospects of success are unclear or borderline without any wider public interest. The
Act also excluded a number of cases from funding, these include: allegations of
negligence (not clinical), conveyancing, boundary disputes, making a will, trusts and
defamation. Each case undergoes a merits test, which requires an examination of the
prospect of a cases success and a finding that it is reasonable to fund the case.
Subsequently, an evaluation is undertaken of the ratio of potential damages to the cost
of the relevant case.

In relation to criminal law, the Access to Justice Act s.12 created the Criminal
Defence Service which came into existence in April 2001 and covers duty solicitor
schemes, advice/assistance and representation. Duty solicitors are governed by s.13
of the Act. They are requested through the Criminal Defence Direct telephone
service. Since May 2004, duty solicitors are not available (unless client is vulnerable)
in cases of non-imprisonable offences, drink/drive offences, arrest on a warrant and
breach of bail.

Representation covers the cost of a solicitor preparing case, representation in court

and a barrister (if required). The test for representation is based on merit. However,
this test is waived for Crown Court cases. Schedule 3 Access to Justice Act 1999
outlines the key factors relating to the funding of representation, such as the
likelihood of loss of liberty or serious damage to reputation, whether a substantial
point of law will arise, the capacity of the individual to understand the case, the
likelihood of the need for tracing, interviewing or expert cross-examination, and the
possibility of it being in the interests of another person that the individual is
represented.

The number of legal aid solicitors has decreased on an on-going basis, mainly due to
dissatisfaction with the changes to legal aid contracts. Furthermore, the Carter Report
of 2006 recommended a number of changes such as:

best value tendering

fixed fees for solicitors working in police stations
revised graduated fees for Crown Court advocates; and
a graduated fee scheme for Crown Court litigators.

These changes are currently being implemented and it is expected that they will lead
to even fewer solicitors and firms providing legal aid services.

Course Notes The English Legal System Published by Hodder Education Catherine Easton 2012