Legal Aid

Anyone who has ever had occasion to peruse the pages of any published legislation will have, no doubt, been struck by the complex and indecipherable nature of the wording used.

Very early on in the publication, chapters seem to endlessly cross-refer to other relevant chapters and even other pieces of legislation altogether! What certainly is clear though, is that in most cases the law is very complex and that most people will need advice on any legal issues that they may have. If you add to this the confusion in many people's minds (perpetuated by being heard and then repeated along the line) about what constitutes a piece of law, then the confusion is greatly exacerbated.

Let me give a common example - how many times have you seen a sign saying 'Trespassers will be prosecuted'?

Seems straightforward, however, legally it is complete rubbish. 'Prosecution' is part of criminal law, whereas trespass is a Tort under common law. Legally it would be more correct, though admittedly less impressive, to have the sign say 'Trespassers will be Sued'

Some of the most common difficulties faced by people considering approaching a solicitor for legal advice are:

The Citizens Advice Bureaux were first established in 1938 and today they operate nationally from over 3,000 locations manned by some 20,000 volunteers. Most people will be within easy reach of a CAB office. They offer free advice on a variety of subjects such as Tax Credits, welfare benefits as well as legal matters. Their advice is independent and impartial and they can put you in touch with local solicitors, as well as advise as to which ones do legal aid work.

Most of the bureaux have referral schemes with solicitors that are willing to offer a short interview at low cost, or even no cost at all. Some Citizens Advice Bureaux offices have a 'residency' where local solicitors attend in rotation, weekly or fortnightly and some have contracts with the Legal Services Commission to provide legal help under government funded schemes.

The first Law Centre opened in 1970, the aim being to have a Law Centre in every community. Law Centres are not as widespread as was initially intended and today they are grouped under their national body the Law Centres Federation. The raison d'etre of Law Centres was to provide a friendly community or neighbourhood service in poorer areas, to which local people could turn, as they would, to their family doctor, or as someone who could afford it would turn to his family solicitor. Law Centres are staffed by full-time paid solicitors and operate just like a firm of private practice solicitors. The greatest problem faced by them has been funding; charities provide some money, along with the government, but the bulk is provided by Local Authorities. The work that Law Centres carry out can be classed as 'social welfare law', covering such things as employment rights, environmental issues, housing issues such as tenants' rights and women's rights. In most of these areas legal aid is not available. Law centres will advise and represent people both in court and in tribunals

The Community Legal Service deals only in matters of civil law and provides the following services:

Funding for this service comes from the Community Legal Service Fund. It is to be noted that certain types of cases are not funded - these include:

The Community Legal Service Fund is controlled by the Legal Services Commission, and the money is paid to the commission by the government. The Lord Chancellor actually decides on the budget for the year and sets a limit for the fund. What this means in practice is that once the money for the year has run out, there is no more legal aid!!  Because of this restraint, there are strict acceptance criteria for applicants and only those that are poor enough will qualify. Some of the non-financial criteria taken into account are:

Note: Even if a person can get funding, the Government will claim back the cost of the case from any money won. This can often leave the claimant with very little indeed of their damages, even though they won the case.

If it proves impossible to obtain government funding, it can prove very expensive indeed to fight a case in court. The major problem with proceeding is that it is not possible to know in advance how much the case will cost because one can never be sure as to how serious the other party is about defending the case.

It is possible that once the case has commenced, the other party will just 'fold' and settle quickly out of court. If, however, the case is defended, then the costs can easily reach hundreds of thousands of pounds for a High Court case. If they won, they would, of course, win all their expenses back. If they lost, however, they would have to foot the bill - this could easily put off anyone from proceeding, even if they had a very strong case.

Conditional fees arrangements were developed in order to help people in this situation. This is how it works - Both the Solicitor and his client agree on a fee that would normally be charged for such a case. Both parties also agree on a success fee, which can be up to 100% of the normal fee. If the client looses his case, then he pays nothing, however, if he should win then he is liable to pay the pre-agreed fees from his award. Many solicitors will put a limit on their success fee so that it cannot be higher than a certain percentage of the damages awarded.

The client still has a problem if he should loose his case, in that he will be liable for the other parties' costs. This can be hedged against by insuring against this possibility, although this must be done at the commencement of the case. If the case is won, the court can order the insurance premium to be returned to the claimant.

The Criminal Defence Service handles the funding of criminal cases for defendants. The aim of the service is to 'secure that individuals involved in criminal investigations or proceedings have access to such advice, assistance and representation as the interests of justice require'.
Anyone who has been arrested and detained can get advice and assistance from a solicitor. At the time of arrest, it is incumbent upon the custody officer at the police station to inform the detainee about this scheme.

There is a rota system of solicitors who are on call-out in all areas, and in some main police stations there may even be a permanent duty solicitor present, especially at particularly busy times such as weekends. This service is free to the defendant. Many Magistrates' Courts also operate a duty solicitor scheme so that an unrepresented defendant can receive advice about his case.

The Legal Services Commission has the power to decide when a defendant should have legal representation paid for by the state, and is dependant on whether it is in the interests of justice for the defendant to be represented in court. The main criteria used in making a decision are:

It is an interesting point that unlike the funding of the Community Legal Service Fund, which has a finite amount 'in the pot', the funding of the Criminal Defence Service is demand led with no upper limit, indeed, if the costs are becoming excessive, it is possible for funds to be transferred from the civil budget, thus putting civil cases at risk of loosing their funding!!