Funding Access to Justice PDF

11. Funding Access to Justice The English Legal System (9th edn) Alisdair Gillespie and Siobhan Weare p. 376 11. Funding Access to Justice Alisdair Gillespie, Professor of Criminal Law and Justice and University Academic Dean at...

11. Funding Access to Justice The English Legal System (9th edn) Alisdair Gillespie and Siobhan Weare p. 376 11. Funding Access to Justice Alisdair Gillespie, Professor of Criminal Law and Justice and University Academic Dean at Lancaster University, and Siobhan Weare, Senior Lecturer in Law at Lancaster University https://doi.org/10.1093/he/9780198889632.003.0011 Published in print: 16 August 2023 Published online: August 2023 Abstract This chapter examines how litigation is funded. It considers the growth, and eventual decline, in legal aid, and how alternative sources of funding have begun to be used. The chapter considers both criminal and civil litigation. It notes how there is an increase in defendants in person before the criminal courts because of restrictions in legal aid. It questions whether this is appropriate, particularly where the loss of liberty is a real possibility. The chapter also considers how civil litigation is now funded. This includes how ‘no win, no fee’ arrangements were at first encouraged, but then subject to restrictions because it was felt the balance of risk vs gain was inappropriate. The chapter charts the growth of before and after the event insurance, and the increase in third-party funding where the litigation is for large sums of money. Keywords: litigation, funding, legal aid, human rights, defendants in person, alternative funding By the end of this chapter you will be able to: Understand how legal aid was developed, and how it has subsequently been severely restricted in recent years. Identify sources of funding civil and criminal litigation. Understand some of the difficulties that are caused when a person cannot afford to litigate without assistance. Identify how cuts in legal aid has meant that universities and the legal profession are increasingly trying to fill the gap through providing free legal advice. Page 1 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Begin to understand that some people will now invariably have to litigate without assistance (known as litigants in person). Introduction Perhaps the most controversial aspect about the legal profession and litigation is how it is funded. As was noted by the ‘Secret Barrister’ in their latest book, the media puts forward a particular narrative, whereby we spend the most expensive legal-aid bill in the world, which allows ‘fat cat’ 1 lawyers to line their pockets. The reality, as will be seen, is that this is far from true. While a small number of privately funded silks specializing in commercial law may earn a considerable amount of money, the position for High Street solicitors or the junior bar is very different, as was noted in Chapter 10. This is because of changes to the way that litigation, both civil and criminal, is funded. In essence, this chapter is a story about the move away from legal aid. p. 377 11.1 Background to legal aid Legal aid is a comparatively modern concept within the English Legal System and in effect traces its history to the Second World War. But it has expanded to the point where it is considered to be an everyday feature of the legal process. Since the 1980s, however, it has become an incredibly political ‘hot potato’ with Conservative, Labour, and Coalition governments suggesting that ‘fat cat’ lawyers have abused the system, although at least one commentator argues that the latest attacks are arguably just more noticeable 2 since legal aid has always had a troubled existence. It has been suggested that the principal justification for legal aid is that failing to assist the poorest in society accessing the law is a ‘significant denial of 3 justice’. This is a particularly strong argument since it is frequently the very poor who are most in need of the law’s protection as they can be readily exploited by those who know they are unable to take action. Within the sphere of employment law this was one of the reasons why unions became important since they would assist with legal proceedings to enforce conditions of employment. A similar rationale lies behind the national minimum wage (see the National Minimum Wage Act 1999) and here the state, through HM Revenue and Customs, acts on behalf of the low-waged to ensure that they are given an appropriate wage. 4 It has been suggested that there have been three stages of legal aid in this country although since 2013 a fourth must now probably be added. The first stage was when it was funded directly by the state and administered by the Law Society. This period lasted forty years (1949–89). The second stage was when the Legal Aid Board (LAB) took over the administration of the scheme from the Law Society, in part because there were concerns at solicitors being responsible for their own payment. This also marked the beginning of the principal political controversy surrounding this area. This second phase is said to have lasted from 1989 to 1999 but realistically it was not until 2000 when the third phase began. The third phase was the creation of the Legal Services Commission (LSC) created by the Access to Justice Act 1999 with a remit to revolutionize the legal aid scheme. The fourth, and current phase, has been introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA), which has abolished the LSC and brought legal aid back under the direct control of the Ministry of Justice. Page 2 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice A common aspect within all the phases of the legal aid scheme has been the concept of means-testing. Since legal aid is considered to be a solution for those who cannot access lawyers it was considered appropriate that it should be restricted to those who could prove they were of low income. This was particularly true in respect of representation at court but was also supposed to happen at the pre-trial hearings. However, there has, for many years, been suspicion about how high-profile figures have managed to obtain legal aid, including key businessmen who lived in houses worth millions. Some have suspected that it is possible to ‘hide’ money by ensuring that income and assets are held elsewhere. p. 378 ↵ Linked to the concept of means was the recovery of legal aid. As will be seen later in this book, the general rule in civil litigation is that the ‘loser pays’ all costs. Accordingly, if a person who is legally aided wins then the costs of the litigation should be claimed against the opposing side, meaning that the legal aid budget does not suffer. There are several exceptions to the ‘loser pays’ principle (see 17.1.5), and the legal aid provisions did allow for legal fees to be recovered from any awards that were made to the claimant. Perhaps the biggest change from the initial legal aid scheme and the current one is that of budgets. Theoretically, throughout all stages of legal aid there has been a budget set but until the most recent set of reforms there was no upper limit on the expenditure set, i.e. it did not matter if the budget was overspent, often by significant amounts. This led to enormous pressures on the system and transformed the way the practices operated. One commentator noted that the greatest growth was in the period 1975–84 where the 5 Bar’s legal aid earnings rose threefold and accounted for half of the Bar’s income. The rise for solicitors 6 was even more pronounced, rising from £40 million in 1975 to £280 million in 1984, a sevenfold increase. The then Conservative government was determined to cut back on legal aid and commented that although 7 it was an important feature of the legal system it ‘could not be a blank cheque from the taxpayer’. One of the strongest criticisms was that it encouraged cases to be dragged out since lawyers were paid by the hour. However, the profession’s response to this was that this was also true with private cases but they were a professional body and accordingly would not prolong matters that were not justified. Academics agreed that the legal aid system potentially encouraged lawyers to pursue cases even when there was little 8 9 prospect of success. This meant that the legal aid budget became one of the biggest in the world. The Conservative government argued that it was necessary to centralize the legal aid system, in part to recognize that it was not just private law firms that provide advice but that other bodies (e.g. Citizens Advice Bureaux, Law Centres etc) also provided assistance and were supported by the state. The 10 government wished to rationalize this system but also ensure that there was a control mechanism on spending. It proposed the creation of the LSC and suggested that it would be operationally independent although funded by the government. The LSC would have the power to decide what areas of law to fund and there was an intention that not every area of law would continue to be funded. Ultimately the Conservative reforms were left unfinished and the incoming Labour government had to decide what to do. In opposition, the Labour Party had been strongly opposed to many of the Conservative 11 measures, arguing that limiting legal aid could be considered a barrier to access, but this position altered p. 379 dramatically after it was ↵ elected and at least one commentator has suggested that the Labour 12 government effectively ended ‘legal aid as we know it’ which, whilst dramatic, is undoubtedly correct. Page 3 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice The reality of the system was that legal aid continued to place increased pressure on the government’s budget and that it was unsustainable for this to increase whilst the government sought to limit funding on other aspects of the state. The professions reacted badly to the proposals of the government and it culminated in a heated debate between the professions and the government. Perhaps the most notable aspect of the debate was when the government produced a list of the top earners from legal aid which was 13 condemned by the professions as an attempt at humiliating them. However, the government argument was that it demonstrated a problem with the legal aid scheme, that a judge would receive a salary of only £100,000 per year but some lawyers earned £1 million per year from legal aid. However, at the junior end 14 of the profession the position was significantly different with small rewards being given. Nonetheless, the media debate inevitably focused on the ‘high end’ of the profession since it was easy to portray lawyers as ‘fat cats’. This ultimately turned the tide of the discussion and led to the government winning the battle for legal aid. In the end, the budget continued to grow and controversy existed over the types of persons and cases that provided for legal aid. Ironically, given they were responsible for the creation of the LSC, the Conservative- led Coalition government abolished it and decided to centralize legal aid within the Ministry. This gives the Lord Chancellor more direct control over the budget and how it is to be spent. 11.1.1 Reviews of legal aid Continued pressure on the legal aid budget led to a major review of legal aid conducted by Lord Carter in 2005. A further review (the Magee Review) was held in 2009 and this was read in conjunction with the report of Jackson LJ on costs in civil litigation. Many of the recommendations of these reviews have been brought forward in LASPOA. Carter believed that a more market-orientated approach to legal aid should be developed and certainly this was something that quickly took hold. The primary response was to ensure that a smaller number of firms held a larger proportion of the work, these contracts being awarded through a competitive bid process whereby (generally) the lowest bid won the contract (subject to certain quality thresholds and performance indicators). The reforms were extremely controversial since it meant that many firms did not hold a contract for legal aid work meaning that a person could not necessarily have their lawyer of choice. Another key change was the manner in which legal aid was paid to lawyers. Traditionally, legal aid was similar to ordinary payments of fees, i.e. a lawyer was paid depending on how much work he undertook. 15 Carter recommended a move away from negotiated fees to standardized graduated fees. This means that a lawyer would be given a set fee for a set classification of work. It was designed to promote efficiency but, of course, some critics noted that no two law cases are the same and this may mean that lawyers would p. 380 have less time to spend on complex matters. A safeguard against lawyers ↵ cutting corners was the introduction of a peer-review scheme to assess the quality of service provided by firms. A unique problem within criminal law is that known as Very High Costs Cases (VHCC) which were the small number of complex criminal cases that would cost the most in terms of legal aid (murder, fraud etc). Carter 16 believed that this accounted for a disproportionately high part of the legal aid budget and that tendering could be used to try and reduce costs. The initial approach by the Legal Services Commission was to attempt Page 4 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice to limit the pay of counsel conducting VHCC work. The rates of the Bar would have been cut dramatically but the response was one of intransigence, with many silks and senior juniors refusing to undertake legal aid work. They could do this without breaching the ‘cab rank rule’ because the process of tendering meant that lawyers, including advocates, would have to ‘sign up’ to the scheme in order to receive work. Thus by not signing up to the scheme they were never put in the position of refusing a case since it could not have been offered to them in the first place. The stand-off led to some heated words and potential injustices. In the autumn of 2008, it was reported that the trial of the persons accused of the murder of the schoolboy Rhys Jones might have had to be postponed because there was no agreement as to fees. In the event, the LSC backed down and provided an exemption from the scheme. A compromise was reached in 2010 when a panel-based system was rejected for individual contracts but with fixed fees being paid for much of the work. The fees were also a reduction in what had previously been paid but not to the extent that was first proved. That said, VHCC continues to be extremely controversial and it is likely to prove so under the new scheme. Civil legal aid was similarly problematic and there was thought to be a case for reducing the type of cases that would be funded by civil legal aid. Carter appeared to believe that, subject to certain exemptions, the civil legal aid budget should not be fixed but would rather be whatever was left of the overall budget after criminal legal aid had been paid. There was concern that the tendering process adopted for legal aid work could lead to communities being without any legal representation services and he suggested that firms 17 could form alliances with community organizations to overcome this. The Magee review differed in some respects from Carter, most notably in recommending that there should 18 be separate budgets for civil and legal aid which would have, in effect, led to more protection for civil legal aid than was envisaged by Carter. One of the principal recommendations made by Magee was acted upon quickly when the administration of legal aid was removed from the LSC, a non-departmental public body, and brought back within the Ministry of Justice. Magee suggested that social welfare law could be removed from legal aid funding and replaced by providing additional assistance to community organizations, including the Citizens Advice Bureaux (CABs), to permit social advice to be provided in a more efficient manner. Whether this has happened is more questionable. Whilst there has undoubtedly been a greater expectation that social welfare advice should be provided by the CAB there was a question of whether the budget was similarly carried over. Many CABs had legal aid contracts but the ending of legal p. 381 aid for certain types of advice (discussed later) meant that they ↵ lost a substantial amount of income. Ultimately the government had to step in because they realized that CABs are essential to the functioning of advice and large grants were ultimately made to individual bureaux. 11.1.2 Legal aid today Legal aid, for both criminal and civil litigation, is now set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Page 5 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice 11.1.2.1 Legal Aid Agency One of the key reforms of LASPOA was to return legal aid to executive control. Previously, legal aid was 19 administered by the Legal Services Commission, which was a non-departmental body, meaning that it was quasi-autonomous. The Legal Aid Agency now has responsibility for the administration of justice and it is 20 formed as an executive agency of the Ministry of Justice. The Lord Chancellor (who is also the Secretary 21 of State of Justice) is charged with ‘securing’ legal aid, although that is then subject to the qualification that the duty applies only to those proceedings within Part I of LASPOA. Thus, the statutory duty to an extent masks the fact that the primary purpose of LASPOA was to reduce the availability of legal aid. The day-to-day running of the LAA is left in the hands of a senior civil servant who acts as chief executive 22 and Director of Legal Aid Casework. As will be seen the Director has responsibility for making decisions in respect of individual cases. In order to protect the independence of the legal process, the Act specifically provides that whilst, as would be expected, the Director can be directed as to how to carry out his 23 functions which, in essence, means detailing how the legal aid scheme will be carried out, the Lord 24 Chancellor is expressly prevented from making directions in respect of an individual case, and ‘must ensure that the Director acts independently of the Lord Chancellor’ when making such decisions. The latter phrasing is quite interesting because it is potentially wider than not making directions. It is difficult to believe that when the Secretary of State for Justice, a senior governmental minister, makes his views known, a civil servant may not be influenced by that, but the phrasing of s 4(4)(b)—to ensure that independence is maintained—would arguably cover such situations meaning the Lord Chancellor may have to be extremely careful about making comments in respect of an individual case. The Lord Chancellor is empowered to set quality standards for those who wish to provide legal aid 25 26 services, including by creating a system of accreditation. This carries on an initiative that had existed under the LSC, where under the Access to Justice Act 1999 (AJA 1999) the LSC only granted legal aid contracts to those who achieved a ‘quality mark’ and a failure to adhere to that mark, meant that the contract could be removed. The idea behind such an approach is that the state guarantees that its money is providing a service of a particular standard, but it does create the theoretical possibility that the government can influence which firms have contracts. 27 p. 382 ↵ The Director of Legal Aid Casework must ensure that an annual report on legal aid is produced, and the Lord Chancellor must ensure that this is laid before Parliament and published. Whilst this is statutory recognition of the need to be transparent about the legal aid budget and how it has been administered, it does not differ dramatically from what happened under the LSC as the LSC and its daughter agencies (the Community Legal Service and Criminal Defence Service) all provided annual reports. 11.2 Criminal legal aid The first issue to consider is that of criminal legal aid. It will be seen in Chapter 12 that legal aid exists as of right for certain aspects of the criminal justice system. Perhaps the most notable example of this is the ‘duty solicitor’ scheme whereby a person who is arrested can receive free legal advice (although it will be seen that it is now no longer the case that it will necessarily be either in person or by a qualified solicitor— see 12.3.2.2). What of the position where someone is brought before the courts? Page 6 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Historically, legal aid in criminal trials was relatively easy to obtain. Through the years, changes were introduced to try and restrict costs, perhaps most notably when legal aid changed from a per-hour to a 28 per-case payment, something that remains true even today. There are different views as to whether this change has had an impact. One study showed a majority of lawyers questioned thought that a fixed-fee was 29 acceptable because there tended to be an averaging between complicated and straightforward cases. However, Thornton found that some lawyers believed that they were more likely to encourage a client to 30 plead guilty because the fee was so low. Of course, what that study could not know is the strength of the cases in which a person was convinced to plead guilty. It could well be that it is in their client’s best interests for a guilty plea to be advanced (discussed in 10.6.2.1). However, it does raise the suspicion that clients are put under pressure to plead guilty when they may not otherwise wished to have done so. LASPOA introduced radical changes, including the use of means testing. This means that some people are not eligible for legal aid due to their income, meaning they either must defend themselves, or pay a solicitor or barrister privately. As will be seen, the thresholds for payment are low, raising questions about whether ordinary people can receive legal aid to defend themselves. Setting aside the issue of pre-charge advice, the rules for representation are set out within LASPOA. Section 14 defines criminal proceedings and this is given a broad definition so as to include, amongst others, trials, sentencing hearings, and appeals. The Lord Chancellor is to provide, by regulations, the 31 provision of advice and assistance in connection with legal proceedings. This is then taken further by s 16 which provides the right to representation in criminal proceedings. p. 383 ↵ The test for representation is set out in s 17. The basic test is that a person must satisfy the financial 32 eligibility (‘means-testing’) and that representation is ‘in the interests of justice’. The latter requires the following to be considered: 1. whether the individual would be likely to lose his liberty or livelihood or suffer serious damage to his reputation if he were to lose 2. whether the proceedings involve consideration of a substantial question of law 3. whether the individual may be unable to understand the proceedings or to state their own case 4. whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individuals 33 5. whether it is in the interests of another person that the individual be represented. Example Substantial question of law Factor 2 is quite important because it will sometimes be the case that what appears to be a simple case is actually more complicated because of issues that have not been raised before. A good 34 example of this is in respect of the parliamentary expenses claim. In R v Chaytor, three former Members of Parliament sought to argue that they could not be tried for fraud in respect of their parliamentary expenses because to do so would have breached the Bill of Rights which excludes Page 7 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice court action from the proceedings of Parliament. This was an important issue that had not been raised before and eventually reached the Supreme Court. The Supreme Court accepted that it was an important point but ultimately ruled that privilege did not apply. Leaving aside privilege, the facts of the cases were relatively simple but it was in the interests of justice for this matter to be considered by the courts, including the Supreme Court, before being tried. The decision to grant legal aid is one for either the Director of Legal Aid or a court. Previously, it was the courts that ultimately made the decision, but now it is a shared responsibility and it is comparatively rare for the courts to order legal aid funding, believing that it is properly the role of the Legal Aid Agency to decide such matters. 11.2.1 Means testing The more controversial aspect is the means testing that is now required. The result of this test will decide whether someone is either funded, partially-funded (i.e. a person will need to contribute to their costs), or not funded. Two elements are required to calculate a person’s means. The first is the adjusted gross income. This is the person’s salary (or other income) before tax, national insurance, pension contributions, or other expenses are paid. However, it is subject to adjustment where a person has a family. p. 384 ↵ A partner has a factor of 0.64 and a child’s multiplier depends on the age of the child. Age Multiplier 0–1 0.15 2–4 0.30 5–7 0.34 8–10 0.38 11–12 0.41 13–15 0.44 16–18 0.59 Page 8 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Example Adjusted gross income Adrian has an annual salary of £34,000. His wife has a salary of £18,000. They have two children; a girl aged 2 and a boy aged 5. Adrian and his wife have a factor of 1.64 (1 for him and 0.64 for his wife), and the children have a factor of 0.64. This provides a total factor of 2.28. Their gross income is £52,000. Dividing this by the adjustment, means that they have an adjusted gross income of £22,807. The second part of the means test is to calculate the ‘disposable income’. While it may be thought that this means the income after all expenses etc have been settled, it only relates to certain outgoings. These include: tax and national insurance council tax annual rent or mortgage payments childcare maintenance payments (where the person is divorced or paying child support) and 35 living costs. 36 ‘Living costs’ are set at £5,676 per annum, but this is multiplied by the same factor as before. Example Disposable income Adrian has an annual salary of £34,000. His wife has a salary of £18,000. They have two children; a girl aged 2 and a boy aged 5. They rent a house and the rent is £675 per month, and their council tax is £120 per month. They pay childcare of £160 month. Adrian will be liable to pay £7,238 in tax and national insurance, and his wife will be liable to pay £2,118 for tax and national insurance. p. 385 ↵ As before, Adrian and his wife have a factor of 1.64 (1 for him and 0.64 for his wife), and the children have a factor of 0.64. This provides a total factor of 2.28 for the living costs. Adrian’s disposable income will be: Page 9 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025 11. Funding Access to Justice Household income 52,000 Tax & NI 9,356 Rent 8,100 Council Tax 1,440 Childcare 1,920 Living costs 12,941 Total expense (33,757) Disposable income 18,243 As you can see, working out a person’s income is not straight forward! While the ‘living costs’ factor means that the costs rise with a family, it is still not by very much. So, for example, in the example of Adrian we have just used, the living costs are £12,941. This is £1,078 per month. That might seem a lot but, remember, the only other expenses that have been deducted (other than tax and national insurance) are rent, council tax and childcare. So that £1,078 has to cover food, travel expenses, clothes, debt repayments etc. A small car will cost approximately £250 a month to buy, £80–100 per month for insurance, and perhaps £100 per month of fuel. Thus, they now have just over £500 per month for food, clothes, and everything else. Is that realistic? 11.2.1.1 Magistrates’ courts It will be seen in Chapter 14 that c. 95 per cent of criminal cases are dealt with in the magistrates’ court. What are the rules for the means test there? (a) the individual’s gross annual income does not exceed £12,475; or (b) the individual’s gross annual income is more than £12,475 and less than £22,325, they are eligible 37 if the annual disposable income does not exceed £3,398. Where the gross annual income is above £22,325, then they are not eligible for representation within the magistrates’ court. The first point to note is that these sums are not very high. Of course, it does not take account of the adjustments above, but it is still a low threshold. The example of Adrian was given earlier. We noted his adjusted gross income was £22,807. Therefore, if Adrian was charged with an offence before the magistrates’ court then he would not be eligible for representation. Let us take another example. Page 10 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice p. 386 Example Minimum Wage Carla works in a factory for 37.5 hours per week at minimum wage (currently £8.72 per hour). She is 26 and has a four-year-old child. She pays £525 in rent, £96 in council tax, and childcare of £110. Carla’s gross income will be £17,004. Her 4-year-old child attracts an adjustment of 0.3, so her adjusted income is £13,080. This is above the £12,475 that permits automatic granting of legal aid, so we must look at the disposable income. Carla’s disposable income is: Salary 17,004 Tax and NI 1,802 Council Tax 1,152 Rent 6,300 Childcare 1,320 Living expenses 7,378 Total expenses (17,952) Disposable income (948) Here, Carla will be eligible because her disposable income is more than her actual income, and so it is less than £3,398 required under the second rule. Had Carla received the average UK wage (c. £26,000), then she would not have been eligible, as her disposable income would have been £8,048. Question for Reflection Are you surprised at the threshold at which representation in the magistrates’ court will work? Let us take the example of Carla earning the average wage. Her disposable income would be £8,048, or £670 per month. That would need to cover all of her food, travel, clothes, work expenses, loans, credit card bills, toys for her child etc. How realistic is it that someone who has £670 per month could afford to pay privately for a solicitor? If the average expenses of a car was included, that would leave her with c. £300 month. Is that a rich person? Page 11 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Assuming a person is eligible for legal aid, the process of obtaining legal aid can be quite time consuming. This is problematic because, at least in the magistrates’ courts, there has been a push to reduce delays. This means that solicitors are finding that there is a need to contemplate representing their client at a time 38 when they do not know whether they are going to be paid for their work. If this happens too often, then it is likely that increasing numbers of solicitors will refuse to engage in criminal legal aid work. p. 387 ↵ Thornton presents an interesting quote from a solicitor which can show the issue with merits and means. [Y]our ideal shoplifting client is somebody who’s in receipt of incomes support [easy to prove 39 means test] [sic], on a suspended sentence, in custody [easy to pass merits test] [sic]. This is interesting because of what would happen if the variable changed. As noted earlier, that would be an ideal person for a solicitor. What about a person who earns £16,000 per year? This is someone who will earn significantly less than the average income, but this person will not be eligible for legal aid. They are unlikely to be able to pay for a private solicitor with such an income, and thus the risk for this second defendant is that he could receive a custodial sentence, whereas the person on income support may not. 11.2.1.2 Crown Court As will be seen in Chapter 15, the Crown Court hears the most serious offences. It may be thought that someone charged with a serious offence before the Crown Court would receive legal aid, but they are also subject to both the merit and the means test, although the merits test is usually more easily satisfied. The same means test calculation is used to identify Crown Court means, but the thresholds are increased. The basic means test-rule is as follows: (a) has a gross income that does not exceed £12,475, or (b) has a gross income that exceeds £12,475 but whose disposable income is less than £37,500, or (c) is a child, or 40 (d) is in receipt of a relevant benefit. The difference between (a) and (b) is that, in (b), a defendant is likely to be required to make a contribution to her defence costs. This contribution is set at six payments of 90 per cent of one-twelfth of the annual 41 disposable income. In other words, 90 per cent of the monthly disposable income is paid for a period of six months. Given the limitation of ‘disposable income’ above, this potentially means that there could be real hardship. Where a person has a disposable income of over £37,500 then they are not eligible for legal aid, and must pay for any representation privately. Let us consider two examples. Page 12 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Esther is accused of false accounting from a local charity. Paresh is accused of actual bodily harm, but it was Her salary is £36,000 but she also receives dividend income committed while serving a suspended prison sentence. of £2,000 from shares. Paresh has a salary of £16,000, but he is given £1,500 per She has two children, aged 3 and 7. Her mortgage is £650 month from his parents. His rent is £800, and his council tax per month. Her council tax is £110 per month and childcare is £125. He has no children. is £125 per month. p. 388 ↵ Paresh’s gross income is £34,000 which is over the £12,475 initial threshold. Thus, his disposable income will need to be considered. Esther’s income is £38,000, but this must take into account her children. Using the factor presented earlier, the income must be divided by 1.64 (1.0 for her, 0.3 for one child, and 0.34 for the second child). This produces an income of £23,170. Thus, Esther comes within the second category. Again, we must work out her disposable income. Esther Paresh Income 38,000 Income 34,000 Tax & NI 8,518 Tax & NI 1,478 Mortgage 7,800 Rent 9,600 Council tax 1,320 Council tax 1,500 Childcare 1,500 Living costs 5,676 Living costs 9,308 Total expenses (18,254) Total expenses (28,446) Adjusted income 15,746 Adjusted income 9,554 It can be seen here that Esther’s adjusted income is less than £12,475 and, accordingly, she will be given legal aid without the requirement to contribute anything. However, Paresh’s income is £15,746. This means that he earns more than £12,475 but less than £37,500. He is, therefore, entitled to legal aid, but he needs to make a contribution. The contribution is set at one-twelfth of the adjusted income (£1,312), and he must make six payments (£7,872). It will be remembered from the earlier section (11.2.1) that the living costs of £5,676 is to cover all expenses, including shopping, travel, and clothes etc. This works out as £473 per month. If Paresh has a car, bank loans, or credit card debts, it is highly likely that Paresh will be out of pocket during the six months he must pay the legal aid contributions. Page 13 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Civil legal aid is controversial but, in some instances, it can be seen why the state refuses to pay for the litigation. In many instances, a person chooses whether to litigate and this may include where, for example, they feel that an offer of compensation is not sufficient. As it is a private matter between two parties, the state could say ‘not our problem’ requiring private funding mechanisms (discussed later at 11.5). Criminal litigation is different. Nobody chooses to be the subject of the criminal justice system. It is the state, through the police and the Crown Prosecution Service, that decides to bring a prosecution against someone. The individual has no choice. One of the foremost principles of the criminal justice system in England and Wales is that a person is innocent until proven guilty. In other words, unless a person admits their guilt, then at the time of the trial they are not guilty of a crime. Why is it that an innocent person should be told to contribute to their costs (either partly or in full) when it is the state that is deciding to prosecute them? A person who is either told to pay contributions, or is not eligible for legal aid, can suffer real financial hardship in defending themselves in the Crown Court. p. 389 Example Nigel Evans MP Nigel Evans MP is the Member of Parliament for the Ribble Valley. In 2013, he was arrested on suspicion of sexual assault, something he denied rigorously. The CPS decided to prosecute him, and in 2014 he was tried in the Crown Court and acquitted. Evans had voted for LASPOA but indicated he had not understood the implications of it, and subsequently said the changes it made were wrong. As an MP, his disposable income was such that he was not eligible for legal aid. He spent over £130,000 defending himself against allegations that were not proven. Evans admitted that LASPOA 42 was wrong and that if it were to be voted on now, he would vote against it. Evans had to sell his grandfather’s business and remortgage his house, but even then he used up his life-savings. He also discovered that his costs were not fully recoverable even after acquittal (see 11.2.2.2). The problem of criminal legal aid is not in it being given, it is in the fact that it is not recovered from a convicted defendant. While a defendant can be ordered to repay the legal aid costs, it comes lower down the ‘pecking order’ than fines or compensation. If recovery was considered differently, then the acquitted could be given legal aid, while those who are ultimately convicted would be required to pay. That arguably strikes a better balance than the state forcing financial disadvantage on a person by its own actions. A consequence of the current legal aid funding is that people are starting to defend themselves in criminal proceedings, both in the magistrates’ court and the Crown Court. The Home Affairs Select Committee has noted that there are a number of difficulties with unrepresented defendants, including the fact that they 43 rarely understand the proceedings, slow proceedings down, and lead to a reduction in guilty pleas. Page 14 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice There is also the perception of fairness. The prosecution will be represented. For serious cases in the Crown Court, this could include representation by King’s Counsel, one of the best and most experienced advocates. How realistic is it that a defendant in person is able to respond to issues as well as a trained lawyer? If you study Law of Evidence, you will see that many of the laws on what is, or is not, admissible within a criminal trial are extremely complicated. Is it realistic or, indeed, fair to expect an unrepresented defendant to be able to understand these rules? That must put them at a disadvantage, particularly in the Crown Court where a jury may understandably wonder why the defendant is not represented and may, for example, believe that it is because no barrister or solicitor would take their case, implying that it is weak. Question for Reflection The Unrepresented Defendant. Do you think a jury would find it odd that a defendant is not represented? The only thing most people know of courts is what they see on television, where everyone is represented by a bewigged barrister. Is there a chance that a jury will think that a lawyer was not prepared to represent the client? If so, will that prejudice the jury against the defendant? p. 390 11.2.2 (Criminal) legal aid payments The second issue of concern around criminal legal aid is the payments that are given to lawyers representing the defence. A linked issue relates to the amount that an acquitted defendant can reclaim in fees if they are acquitted. 11.2.2.1 Fixed fees As noted earlier, one of the first changes to criminal legal aid was the introduction of fixed fees. Instead of a lawyer submitting what their usual fee is per hour, and the number of hours that have been worked on, the Legal Aid Agency now decides what fee a matter is worth. In some matters, this is a per-case fee where the same is paid irrespective of how much time a person works on the matter (discussed briefly at 11.2). The same is true for trials. There are two schemes: the Advocates Graduated Fee Scheme (AGFS), which pays the costs of the advocate representing the defendant. The second scheme is the Litigators Graduated Fee Scheme (LGFS). The latter pays for the non-advocacy aspects of the trial (e.g. legal advice, instructing counsel, taking notes for counsel, preparing witness statements etc). For simplicity, we will focus on the AGFS, as this is perhaps the most illustrative in a court scenario. The AGFS separates crimes into seventeen bands, although some have sub-bands within them. Murder and manslaughter are considered to be ‘band 1’, rape is ‘band 5’, burglary is ‘band 11’, and there is a catch-all 44 ‘band 17’ which includes all offences that are not otherwise categorized within a band. Each band attracts Page 15 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice a particular fee. There are two fees; a ‘basic fee’ and a ‘daily fee’, which is then provided for the second and subsequent days of trial. The payment also depends on the status of the advocate, with there being three categories: junior counsel acting alone, or being led junior counsel leading another junior counsel King’s Counsel. 45 For band 5 (rape), the basic fee would be £1,900 for a junior acting alone, rising to £3,800 for a KC. The daily fee is £530 for a junior acting alone, rising to £1,060 for a KC. This money is subject to VAT, tax, chambers expenses, and person expenses (e.g. travel and sustenance). Additional fees are paid for each page of prosecution evidence that needs to be read (although there is a reduced payment once the number of pages exceeds a defined threshold). Similarly, an additional fee is paid for each witness in the case, although the amount is token and bears little resemblance to the amount of preparation that is required to prepare cross-examination. In addition to the fees, the LAA also limits the amount of personal expenses that can be received. So, for example, the LAA states the limits for payment of overnight accommodation. If a lawyer needs to stay in London, Birmingham, Manchester, Leeds, or Newcastle-upon-Tyne, then they will receive up to £85.25 per night and £55.25 for anywhere else. However, how realistic is this? You would be hard-pressed to get a p. 391 hotel in London or Birmingham for £85 and certainly hard-pressed to get a hotel in most ↵ towns with a Crown Court for £55 per night. This invariably means that the lawyer will have to pay the difference between the cost and allowance themselves. Fewer barristers were engaging with legally aided cases and in March 2018 it culminated in barristers 46 performing an unprecedented strike. This led to cases being delayed or, in many instances, defendants having to represent themselves. While the government referred to a small number of leading KCs who make six or even seven figure sums from legal aid (although, it should be noted, that the fees paid in a single year might actually reflect fees from multiple years, particularly in respect of complex cases that span several years), the reality of life at the Bar is very different. The ‘Secret Barrister’ notes that a ‘typical’ 47 barrister doing legal aid work will have an income of around £27,000. This is approximately the UK average wage. This is subject to tax in the usual way. Is it the amount that you would expect a barrister of several years’ call to earn? If you are living in London, will that give you a decent standard of living? While the strike was settled, and a review conducted, the issue never went away properly, and erupted again in 2022. The Bar complained that the government had used ‘sleight of hand’ and not actually increased the fee as promised. It was noted that although the government announced it had raised the fee, this only applies to cases that began after 2022. As fees are paid at the end of the trial process, this meant several months, and in some cases, years of the old fees. Page 16 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Industrial action recommenced. This led to the collapse of some cases, and in other cases defendants needing to represent themselves. Interestingly, the 2022 action did not lead to public outrage, with several media outlets commenting that barristers had a point and that the ability to secure free representation in the Crown Court was an important principle of justice (although, as noted earlier, that is not necessarily true). One surprising reaction to the barrister’s strike was the reaction of the Lord Chief Justice. He issued ‘guidance’ to judges that stated, ‘a failure to attend court, having accepted instructions, may amount to professional misconduct’ and instructed judges to inform the Senior Presiding Judge of the names of any 48 barristers on strike. This was an extraordinary step and led to suggestions that he had picked a side and 49 was trying to intimidate barristers. In response, the Lord Chief Justice issued an ‘update’, which basically 50 said the same thing. The threat was extraordinary and was clearly ill advised. Its compatibility with Article 11 European Convention on Human Rights (ECHR) was questionable but it also neglected the fact that the strike largely involved refusing to take new instructions, not refusing to attend cases where they were already briefed. The comments of the LCJ made it look like he was supporting the government during the dispute, casting doubt on his independence. It is known that some judges strongly disagreed with the LCJ and a few weeks 51 later the instruction was quietly withdrawn without any publicity. The political turmoil of 2022 saw the Lord Chancellor, Dominic Raab MP, being briefly replaced by Brandon 52 p. 392 Lewis MP. He sought to resolve the dispute and the strike ↵ eventually ended. When Dominic Raab MP resumed the position of Lord Chancellor, he made clear that he did not agree with the deal but did not feel 53 that he could renege on it. That suggests that funding is likely to remain politically sensitive for some time, and further disputes may occur. 11.2.2.2 Recouping defence costs Let us start with an example. Example The acquitted defendant Stephen was charged with two counts of sexual assault. A band manager earning £60,000 per annum and with two grown-up children, he was not eligible for legal aid. Instead, he instructs a solicitor and barrister to represent him. Immediately after the conclusion of the prosecution evidence, the judge accepts that there is no case to answer (see 15.2). Stephen is acquitted. The judge, discharging him from the dock, states ‘you leave without a strain on your character’. Stephen has paid £23,000 in defence costs. Page 17 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice In this example, Stephen has been acquitted. Not only has he been acquitted, but he has been acquitted at the earliest possible opportunity. The prosecution could not even establish their case, and it was unnecessary for him to put forward his case for the defence. Surely, Stephen will have his costs repaid, since the state has failed to show that he committed an offence? The answer is ‘yes … ish’. It is true that he will get some defence costs returned to him, but the second sting in the tail of criminal legal aid is that you do not receive the costs back that you paid. Rather, you receive a contribution based on what would have been paid had you been eligible for legal aid. The difficulty here is that, as noted previously, legal aid rates are low, and the expense regime is restrictive. Private legal advice is going to be more expensive as counsel are going to charge a rate that reflects their true market value. This means that a person accused of a crime has effectively no ‘good’ option. They can pay for the best counsel, but lose money despite them being acquitted, or they can choose to go with counsel who will only charge private clients legal aid rates, in which case they may not be particularly good. 54 The Secret Barrister refers to the fact that you do not get your full costs back as the ‘innocent tax’. By 55 this, (s)he means that a person who is found to be innocent is, in essence, taxed by the state for being acquitted. It is this innocence tax that cost Nigel Evans MP so dearly, and which he considered so unfair. p. 393 Question for Reflection The Secret Barrister expresses the dilemma thus: We have a system which focuses a wrongly accused person from a middle-class family to choose between financial destitution and the fool’s gamble of self-representing in 56 criminal proceedings. It is probably right that the state should not pick up the expenses of a party irrespective of what they are. To do so, would allow private counsel to charge exorbitant fees in cases where there is a reasonable chance of acquittal. This would game the system and mean that prosecution decisions could be based on how expensive the defence lawyers are. However, it cannot be right for defendants to be tends of thousands of pounds out of pocket in order to defend their name. The old rules allowed for reasonable costs to be paid, and the courts decided whether claims were too high. Does that not strike the right balance? 11.3 Civil legal aid Civil legal aid has seen even more dramatic changes than the criminal system. This section will explore some of the more contentious aspects, including noting how few are now covered by legal aid. Page 18 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice 11.3.1 Matters covered by legal aid Until LASPOA, legal aid operated under an exclusionary model. That is to say, all forms of litigation were eligible for legal aid unless a rule said to the contrary. LASPOA reversed this by creating an inclusionary 57 rule. Legal aid is now only permissible if the Act says it is. The detail of what is permitted is set out in Sch 1 LASPOA. Part 22 of Sch 1 excludes specific types of actions even if they appear to fall within Part 1. Broadly speaking, Sch 1 limits funding to issues relating to: public childcare proceedings (i.e. where a child is sought to be placed under the supervision or care of a local authority) special educational needs of a child abuse of a child or vulnerable adult challenging decisions relating to being banned from working with children or vulnerable adults mental health or mental capacity clinical negligence and severely disabled infants community care funding facilities for those with a disability welfare appeals p. 394 housing where there is a risk of homelessness child abduction domestic violence forced marriage judicial review where a breach of fundamental rights is being alleged habeas corpus (i.e. an order of the court to release a person from unlawful detention) applications for asylum victims of trafficking. A range of work that used to be covered by legal aid is now no longer eligible. Actions for personal injury are generally not eligible for legal aid, and neither are private family law disputes (e.g. divorce or residence of a child). The government argued that private family law disputes do not require legal aid as it will generally not be in the child’s best interests to go to court. For that reason, they provide legal aid for mediation (a form of Alternative Dispute Resolution discussed in 19.3.2.1). The government actively seeks to portray family litigation as a failure, and that it is a ‘battle’ that does not 58 acknowledge the interests of the child. There is undoubtedly an element of truth behind this, but this does not acknowledge the potential imbalance of power that exists. The government appears to base its logic on the fact that neither party will be represented, when it is not clear that this is the case. It is eminently possible that one party can afford (private) representation and the other cannot. In those Page 19 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice instances, mediation is unlikely to assist. The party who can afford litigation may well believe that they have a better chance in court than a negotiated agreement. They have little to lose, as the courts are not going to prevent a parent seeing their child to mark their disapproval, and thus litigation is inevitable. During that litigation, the represented party has all the advantages that legal representation brings, and yet the party denied legal aid does not. Where, for example, the party is nervous, shy, or is culturally unused to speaking in public, they are going to be disadvantaged. It is difficult to see how this accords with the best interests of the child. Question for Reflection Edith and Fred marry in 2013 and have two children (aged 4 and 2). Fred has an affair with someone he works with and Edith takes the children to her parents. Fred moves his mistress into the house and says he wants to divorce Edith. Edith does not work because Fred has a good job and it was decided that Edith would bring up the children. Fred says he is going to seek residence of the children, ‘because they’re better off with me’. Edith only has the money that she is given from Fred. Even if she sought interim maintenance as a separated spouse (for which she would probably need legal assistance), this is not going to be enough to pay for a lawyer to resist the residence application. Fred, on the other hand, can afford to pay for a solicitor and barrister. p. 395 ↵ Who is going to be better prepared in any court proceedings? Surely Fred, with his legal team, is going to be able to put forward rational, supported arguments in a way that draws upon their experience. Edith will not. Where is the justice here? Edith is at a disadvantage, and yet the state will not assist. Is that fair? 11.3.1.1 Exceptional cases Where an issue is not within Sch 1 then it is not ordinarily eligible for legal aid. That said, LASPOA 2012, s 10 provides the Director of Legal Aid Coursework with discretion to provide legal aid for matters outside the Schedule in exceptional cases. The extent to which exceptional cases have been accepted has been the subject of some controversy. In R 59 (on the application of Gudanaviciene and others) v Director of Legal Aid Coursework and the Lord Chancellor, the Court of Appeal held that guidance issued on how s 10 should operate was incompatible with the ECHR because it was overly restrictive. The guidance suggested s 10 should only be used where a failure to offer legal aid would make ‘the claim practically impossible or lead to an obvious unfairness in proceedings’. It was held that this was too high a threshold, and that other factors should also be taken into account so as not to limit exceptional circumstances to those cases where Article 6 was potentially breached. Page 20 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Following this case the guidance was revised, but it remains controversial. An issue of particular concern is the fact that the form required to apply for exceptional circumstances under s 10 is extremely complex. The guidance under s 10 also suggested that it should only be used where a claim would be impossible or unfair 60 without legal aid. In Director of Legal Aid Casework and the Lord Chancellor v IS, the criteria was, once again, challenged as being unfair. The Court of Appeal this time rejected the challenge, albeit unenthusiastically. A key point was that the form under s 10 was so complex that, realistically, it required the assistance of a lawyer to complete, and yet legal aid would not be available to do this. The Court of Appeal criticized the form, its complexity, and how literally the form was read by the LAA, but ultimately 61 concluded that complexity was not, by itself, sufficiently unfair to render it unlawful. 62 Following criticism, the form has been altered again. However, it remains eleven pages long, and uses internal jargon. For example, the very first question (after personal details) is this: Type of case Complete this section if either: 1. You are applying for Controlled Work services. 2. You have not completed type of case details on page 5 of CIVAPP1 or page 3 of CIVAPP3. 3. The type of category is not listed on CIVAPP1 or CIVAPP3. p. 396 ↵ While there is accompanying guidance, it is far from user-friendly. How likely is that a person without any legal knowledge or background would be able to complete this question? Legal aid is not available to make an application under s 10 (although costs can be backdated where it is successful), meaning that a litigant in person would need to write this or a solicitor firm needs to operate pro bono while they assist someone to make that application. 11.3.1.2 Inquests In recent years, one of the more controversial examples of legal aid restrictions has been inquests, particularly in high-profile cases. An inquest is a formal hearing that takes place in a coroner’s court to ascertain the identity of a deceased and how their death arose. An inquest is normally required where the death was violent or unnatural, sudden or of unknown cause, or when the person who died was a prisoner of the state. Coroner’s courts were mentioned briefly in Chapter 6, and differ from most of the courts of England and Wales in that they are inquisitorial in nature. In recent years, a coroners’ inquiry has sometimes been replaced, or superseded, by a judicial inquiry. This is the case where there are multiple deaths, and it is thought that circumstances beyond that which an inquest could investigate mean that a judicial inquiry is necessary. A good example of this is the inquiry 63 that is ongoing into the Manchester Arena attack at the time of writing. Page 21 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Example Manchester Arena On 22 May 2017, Salman Abedi committed a suicide attack on the Manchester Arena, that was hosting a pop concert. In addition to the attacker, twenty-two people lost their lives, including children. An inquest was initially opened but it was thought that its powers would be limited. An inquest is primarily there to ascertain who the deceased were, the time of the death, the cause of death (sadly, obvious in most instances here), and the circumstances of their death. The assistant coroner who was appointed for this inquest (Sir John Saunders, a former High Court judge) decided that the rules of an inquest would not allow for an investigation into why the attack happened, and whether opportunities were missed. He stated that Article 2 ECHR required a fuller investigation, and recommended a judicial inquiry instead. The Home Secretary agreed, and the Manchester Arena Inquiry now has fuller powers to investigate the attack. Inquiries, as with inquests, are inquisitorial rather than adversarial. This causes a difficulty because the government and Legal Aid Agency then question whether families of the bereaved, or those who were injured in attacks, require legal representation. The argument is that the coroner or presiding judge (for an inquiry) should be able to ensure that the proceedings are understandable to those who are not represented. While that may be true, there can be little doubt that having legal representation can be p. 397 useful, not least as it can help focus the questions being asked, and suggest new avenues to ↵ be examined, and better questions to be asked of witnesses. Indeed, that is why many parties to an inquest come legally represented, and it is this which causes the problem. At several inquests or inquiries, the relevant public bodies will be represented by counsel, often King’s Counsel. These are state bodies, and thus the state is ultimately paying for them to be represented at the inquest or inquiry. At the same time, however, the state refuses to give public money (in the form of legal aid) to family members. This has the appearance of both a conflict of interest and unfairness. The state will pay for the best legal representation to save itself from the questions of the family while, at the same time, not providing legal assistance to those same families. Article 2 ECHR protects the right to life (see 5.4.2). This is both a substantive right (‘the state will not kill’) but also a procedural right, i.e. that Article 2 provides the right to an effective investigation as to the circumstances in which a person was killed. This is generally where there is an allegation that the state has failed to protect a person and is particularly relevant to deaths in custody, but can also apply to the suicide 64 of people who should be under its care. There is not an automatic right, but the extent to which an individual could properly participate in an inquest without legal assistance is a matter that must be taken 65 into account. Page 22 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Example Molly Russell Molly Russell was aged 14 when she committed suicide after looking at self-harm websites. Considerable disquiet arose form the case, and it was used as an example of how social media can be negatively impacting children. A coroner’s inquest was to be held, and this was going to look at how social media firms protect children from inappropriate content. Not unsurprisingly, it became clear that the large social media firms would be represented at the inquest by senior counsel, potentially including KCs. Molly’s family asked for legal aid to be represented at the inquest. They were initially turned down because of the usual rule that families do not need legal representation. Article 2 is not engaged against the state either. The decision led to considerable disquiet. The family appealed and this time the LAA provided assistance. There is no doubt that Molly’s family would have been at a disadvantage if they had not received legal assistance. The case also demonstrates a fallacy in the argument. How can grief-stricken parents be expected to act dispassionately in a court of law? An official review of legal aid at inquests rejected the suggestion that there should be automatic legal aid 66 even when the state is represented by a lawyer. The Ministry of Justice argued that providing legal aid 67 ‘could have the unintended consequence of undermining the inquisitorial nature of the inquest system’. It is difficult to accept that point. Surely it would not be legal aid that has the potential to undermine the inquisitorial system. It would, on that logic, be legal representation that undermines the inquisitorial approach. There has, however, been no serious suggestion that legal representation should be withdrawn from coroner’s courts. p. 398 11.3.2 Eligibility The mere fact that a case comes within Schedule 1 does not mean that it will receive legal aid. Before granting legal aid, the LAA will need to consider both means-testing and the merits of the case. As will be seen, these tests are very strict and it has been estimated that 62 per cent of people who were eligible for 68 legal aid prior to LASPOA are no longer eligible. 11.3.2.1 Means test As with criminal legal aid, the principal limitation on funding is a person’s means. The eligibility 69 requirements are set out in a statutory instrument, and are somewhat complicated. Indeed, the guides that are produced to explain the eligibility to solicitors is forty pages long for family matters and 141 pages 70 long for general work. Page 23 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Where a person is in receipt of certain benefits, there is no requirement to means-test their income, 71 although their capital needs to be assessed. This is because the income threshold to receive these benefits are sufficiently low to automatically meet the legal aid means-test. The benefits include: income support income-based job seekers allowance income-related employment and support allowance universal credit. For all others, both their income and capital need to be assessed. Where a person has a partner, their 72 income and capital must be assessed and treated as though it is accessible by the applicant. ‘Partner’ has a wide definition: (a) an individual’s spouse or civil partner, from whom the individual is not separated due to a breakdown in the relationship which is likely to be permanent (b) a person with whom the individual lives as a couple (c) a person with whom the individual ordinarily lives as a couple, from whom they are not separated 73 due to a breakdown in the relationship which is likely to be permanent. Technically, there is no legal obligation for unmarried couples to support each other, but the rule is obviously designed to ensure that people do not escape liability by simply residing with each other and not marrying. What constitutes ‘living together’ or a temporary breakdown in the relationship is not defined in the regulations, and is, presumably, for the LAA to determine. Where the applicant (including their partner) have a gross income above £2,657 per month then they are p. 399 ineligible. Gross income is before any deductions for tax, national ↵ insurance, etc. This equates to a salary of £31,884. This is higher than the average UK salary for women (approximately £22,000) but less than the average UK salary for men (approximately £32,000). Where the income is less than this then tax and national insurance etc are deducted. Deductions for legal aid contributions (e.g. from criminal proceedings) are also deducted, presumably because otherwise there is a risk that the LAA would not recover money owed to it. The regulations recognize that where a person is paying maintenance for a former partner or a child (or, 74 presumably, both) then a ‘reasonable deduction’ should be made. It is notable that they do not state that the maintenance payments will be deducted, only that a reasonable deduction will be made. Where a court has ordered these maintenance payments (including, presumably, in a consent order) it would presumably be difficult for the LAA to decide that such rates were ‘not reasonable’ but there is nothing in the regulations to say this. After this, housing costs are deducted. This is the net rent or mortgage payment. Where someone is not formally renting or paying a mortgage, the maximum housing costs are £545 per month. This could include, for example, an adult who is still living in the parental home. It is unlikely that such an adult would pay formal rent, but they may be paying a sum to the parent to take account of the fact that they continue to reside at home. Page 24 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Set payments are then deducted as follows: Description Amount per month (£) 75 Employment-related expenses 45.00 Partner 181.41 Child aged 15 or under 290.70 76 Child aged 16 or over 290.70 Note that this ‘disposable income’ does not take account of any outstanding loans or finance (e.g. car finance), nor does it include shopping or clothes etc. The latter are considered to come out of the fixed ‘allowances’ given for the partner and children. Similarly, travel costs are not considered. While £45 is given for ‘employment-related expenses’, that is just over £10 per week. Most travel to work is likely to be in excess of this. Example Means-testing Sheila is applying for legal aid in respect of a dispute. Sheila lives with her wife, Alison. Sheila has a 10-year-old son and a 12-year-old daughter from her previous marriage. Sheila has an income of £28,000 per year, and Alison has an income of £9,000 per year. Sheila pays £250 to her former husband as spousal maintenance. Sheila and Alison own a house and pay £680 per month in mortgage payments. p. 400 ↵ Sheila’s income will be £22,578 after tax and NI, meaning £1,881 per month. Alison’s income will be £8,956 or £746 per month. Thus, their monthly income is £2,627. They are therefore just under the £2,657 limit. Sheila’s expenses are the mortgage (£680), plus the £45 per month as ‘employment-related’ expenses. An allowance of £181.41 is given for Alison and £581.40 for the two children. The maintenance payment of £250 to her former wife will also be included. Thus, her expenditure totals £1,737.81. Her disposable income is considered to be £889.19. Page 25 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Where a person’s disposable income exceeds £733 per month, as in Sheila’s case, then funding must be refused as it fails to meet the means test. This is a very low cap. £733 per month equates to approximately £170 per week. Given how few expenses are discounted when considering the cap (including finance costs, clothes, costs of running a car etc) then it seems unrealistic. It undoubtedly means that the average person will be ineligible for legal aid. Where they meet the income threshold, there is then a capital threshold. All capital held by an individual, 77 including capital that is achieved through loans, must be counted. Where the capital is not cash then it 78 must be valued by what it could be realized for. Presumably in respect of, for example, cars and houses this would not be what the advertised sale price would be, but would instead be what realistic sum could be 79 achieved through disposal. Furniture within a house, personal clothing, and the tools of trade are not to be considered disposable income, save where they are exceptionally valuable. So, for example, while ordinary furniture would not count, the fact that someone had an antique clock worth £50,000 may be considered relevant (of course, where this is a family heirloom, it is likely to be of concern to the applicant that they may be forced to sell it). There are a number of relatively complicated rules surrounding property, land, and businesses, but for our purposes we do not need to worry about what these are, save to understand that these are valued and would constitute capital. However, this is subject to allowances. So, for example, if there is a mortgage on the property then an allowance of the mortgage or £100,000 is allowed, whichever is the smaller. The first £100,000 of the remaining capital is also offset. It does mean, however, that someone with a house worth over c. £250,000 is likely to be considered to have capital irrespective of how much mortgage is actually held against the house. Where a person has disposable capital exceeding £8,000 then they will not meet the means test irrespective of whether they meet the income threshold. Where someone does not own a house, this could mean that somebody with either modest savings or a reasonable car (that is no longer financed) will be denied legal aid. p. 401 11.3.2.2 Merits of the case If a person does ‘pass’ the means test, it is then necessary to consider the merits of the proposed case. 80 Again, the test is set out in a statutory instrument. Some proceedings are not subject to the merits test, 81 most notably public childcare proceedings and abduction proceedings. The merits of a case are referenced as the ‘prospects of success’, which means ‘the likelihood that an individual who has made an application for civil legal services will obtain a successful outcome at a trial or 82 other final hearing …’. In other words, how likely it is that the party will ‘win’. In determining this, 83 prospects are categorized accordingly as set out in Table 11.1. Page 26 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice Table 11.1 Prospects of success Category Likelihood (%) Very good 80+ Good 60–79 Moderate 50–9 Borderline Unclear or c. 50 Marginal 45–50 Poor < 45 The merits test will only be satisfied if the prospects of success are at least moderate, i.e. that it is more likely than not that the case will succeed. Perhaps that would seem logical: why would the law provide assistance when it is likely that a person will lose, but it has been noted that one difficulty with a merits 84 test is that it almost automatically rules out any challenge to existing law. As noted in Chapter 3, courts are bound by precedent. Therefore, if a case seeks to challenge a decision of the Court of Appeal then the initial litigation in the High Court will have no prospects for success as the High Court is bound by the Court of Appeal. This could be important where a precedent does not consider the nuances of a particular situation. Chapter 13 provides a good example of this. In that chapter, the issue of assisted dying will be discussed, in particular whether someone should be prosecuted for helping a spouse die (see 13.1.1.4). When the first judicial review was brought, the law was clear: assisted suicide is a criminal offence, and so the merits were negligible. Yet, as will be seen, the litigators won, and the position is now more nuanced. Even where the probability test is satisfied, there is public-interest criteria that must be satisfied in respect of different types of litigation. This is to ensure that there is a real need to litigate and that it could not be dealt with differently. The complexity of the criteria is beyond the scope of this book. p. 402 11.4 Legal aid as a human right This chapter is entitled funding access to justice, and it is deliberately called this. The legal system is supposed to allow a litigator the right to justice in resolving a dispute. While there will sometimes be trivial matters litigated, the Secret Barrister notes: The circumstances in which you might need legal assistance are often those you would rather not contemplate. A sobering rule of thumb is that, if you are seeking legal help or representation, 85 something in your life has most likely not gone to plan. Page 27 of 52 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 05 February 2025  11. Funding Access to Justice This is undoubtedly true. While businesses may litigate for commercial reasons, the reality is that most ordinary people only see the inside of a courtroom when things have gone wrong, something particularly true when it is a criminal court. Where someone cannot afford a lawyer during one of those bad points in life, it raises questions about whether a person is denied access to justice in these circumstances. Access to justice is considered a