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English Legal System Notes
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These are my notes from my A-Level Law Course. This is for the English Legal System module. I received a grade A.
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Summary Notes: Access to JusticeMost people need expert help from a lawyer when faced with a legal problem, but there are
three main difficulties:
• Lack of knowledge – knowing which solicitor to instruct
• Fear of dealing with lawyers – intimidation
• Cost – solicitors typically charge £150 per hour but can range up to £600 per hour
when using a large firm in a specialist field.
If a person cannot get the help that he needs, he is being denied access to justice.
Access to Justice involves both an open system of justice and also being able to fund the
costs of a case.
Various schemes have been set up to improve access to justice. For example, the Citizen’s
Advice Bureaus which started in 1938, however, many have closed down due to lack of
funding.
However, the cost is still an obstacle to obtaining legal advice. The cost of civil cases in the
High Court may run into hundreds of thousands or even millions of pounds. Even in the
cheaper County Court, the cost will possibly be more than the amount recovered in damages.
There is the additional risk in all civil cases that the loser will have to pay the winner’s costs.
In criminal cases, a person’s liberty may be at risk, and it is essential that he or she should be
able to defend himself or herself properly.
Government schemes
Since 1949, the Government has run schemes to enable those on low incomes to access legal
advice for civil cases, and for criminal cases since 1964.
In 2000, the Legal Services Commission was set up to run legal aid for both criminal and civil
cases. It was abolished in 2012 after receiving criticism for its financial management in 2010.
In 2012, the government decided to bring legal aid under the control of the Ministry of
Justice. This was done by passing the Legal Aid, Sentencing and Punishment of Offenders
(LAPSO) Act 2012, which set up the Legal Aid Agency.
Under this Act, there are various services available. The main services are:
• Legal Help under which advice can be given
• Legal Representation which gives full legal services for the whole case
,There are also services aimed at specific types of case, for example, Family Mediation, which
allows both advice and representation in mediation proceedings and Legal Representation in
immigration cases.
Some government-funded schemes include:
Help lines
Civil Legal Advice (CLA) is a government-funded scheme for providing advice in civil cases. It is
possible to get telephone help from CLA for problems such as:
• Debt if your house is at risk
• Housing – if you are homeless or at risk of being evicted
• Domestic abuse
• Family issues – such as family mediation or if your child is being taken into care
• Special education needs
• Discrimination
In the 12 months from July 2015 to June 2016, nearly 160,000 people rang the CLA telephone
service.
Help in civil cases
The Legal Aid Agency has contracts with law firms for not-for-profit organisations, such as
some Citizens Advice offices. Under these contracts, they can give free advice to people on
lower incomes. However, the income limits are very low. No one who is above the limits can
use any of these services.
Advice in criminal cases
Anyone held as a suspect at a police station has the right to free legal advice. There is a duty
solicitor scheme available 24 hours a day. This is a government-funded service. In 2016,
advice was given to over 650,000 suspects at police stations. The advice may be by telephone
or face to face. There is no means test for this service.
Government funding in civil cases
The government set aside an amount for legal aid each year, this means they cannot make
legal aid available to everyone.
Under the LAPSO 2012 Act, legal aid is not available for civil cases unless it is in a special
category, for instance, those involving children’s rights and involving the liberty of an
individual as to whether or not a person should be detained under the Mental Health Act.
Funding is not available for contract or tort claims.
,Criteria for civil legal aid services
LAPSO 2012 gave the Lord Chancellor the power to set criteria for making civil legal aid
services available. It also sets out the factors that the Lord Chancellor must consider when
setting the criteria. These factors are set out in s10 (3) of the Act, and they include:
• The cost of providing the services and the likely benefit to be obtained by providing
them
• The availability of resources to provide the services
• The availability of other services, such as mediation
• The individual’s prospect of success in the case
• The public interest
In addition, there is also a strict means test that they will have to pass, which is not so great
as it looks at the individual’s gross money, not the net money.
Availability of legal aid
Under previous legal aid systems, aid was available for all cases except those specifically
excluded. There always were certain types of case excluded, for example, small claims.
Under LAPSO 2012, the starting point is that legal aid is not available for civil cases unless it is
in a category specifically mentioned in the Act or other regulations.
The types of cases for which legal aid is allowed include those involving children’s rights, and
those involving the liberty of the individual. This includes cases being held at Mental health
Tribunals as these are about whether a person should continue to be detained in a mental
hospital and cases involving claims for asylum.
Public funding is not available for breach of contract cases; nor is it available for claims in
tort, such as claims for personal injury, trespass to that person, to land, or to property. These
contract and tort cases used to be government funded prior to the 2012 Act.
The means test
A person applying for funding must show that they do not have sufficient money to pay for
their own lawyer.
In order to decide if the applicant is poor enough to qualify for government-funded help,
their income and capital are considered.
People receiving Income Support or Income-based Job Seekers’ Allowance automatically
qualify, assuming that their disposable capital is below the set level. For all other applicants,
their gross income is considered first. If a person’s gross income is above a set amount per
month, then he or she does not qualify.
, Disposable income
Disposable income is the amount of money that households have available for spending and
saving after direct taxes (such as Income Tax and Council Tax) have been accounted for. It
includes earnings from employment, private pensions and investments, as well as cash
benefits provided by the state.
If a person’s gross income is below a set amount, then his disposable income is calculated by
starting with their disposable income and taking away:
• Tax and National Insurance
• Housing costs
• Childcare or maintenance costs for children
• An allowance for himself and each dependent
If the amount left after these deductions is below a minimum level, he will receive full
funding, so will not pay any contributions.
If it between the minimum and maximum levels, he will pay a contribution as he is not
available to receive full funding from any of the schemes provided by the Legal Aid Agency.
Disposable capital
These are the person’s assets, such as savings in the bank, stocks or shares, jewellery etc. If
they have assets worth over £8000, they must pay for their own legal advice, although, if
they have spent the money in excess of £8000, they can become eligible for funding. People
with assets below £8000 may still be asked to make a contribution towards the case.
Where a person owns a home, the value of that home is taken into account in deciding the
disposable capital. This is so even though the person may have a large mortgage. Only the
first £100,000 of any mortgage is deducted from the value of the home. This rule means that
any person can be regarded as having too much disposable capital because of the value of
their house, although in reality, they may not have any spare money.
Public funding criminal cases
Since 2013, the Legal Aid Agency in the Ministry of Justice deals with criminal legal aid and
services. The Agency makes contracts with law firms to offer advice to people charged with
criminal offences; most providers are solicitors.
In order to get representation in court for a criminal trial, the defendant must qualify under
the “interests of justice” test, and there is also a means test. The factors are:
• Whether, if any matter arising in the proceedings is decided against him or her, the
individual would be likely to lose his or her liberty or livelihood or suffer serious
damage to their reputation.
• If the case involves consideration of a point of law
• The defendant cannot understand the proceedings or state his case
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