Civil Courts & Appeals PDF
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This document provides an overview of civil courts, including county and high courts. It discusses different types of cases, procedures, and appeals. The poster also explains the concept of alternative dispute resolution (ADR).
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↓ COUNTY & HIGH COURT APPEALS & APPELLATE COURTS jurisdiction of civil courts...
↓ COUNTY & HIGH COURT APPEALS & APPELLATE COURTS jurisdiction of civil courts decide liability, legal argument as to why original decision should be altered county court hears cases in open court with a single district judge compensation, remedies heard by the next highest court by a panel of 3 judges e.g. negligence claims, debt claims and probate claims and who pays costs appeal has to be made within 21 days high court hears cases in open, single court and case is then assigned to 3 divisions court can agree or reverse the original decision 1. King’s Bench Division: claims over £100,000 and complex point of laws - split into administrative and circuit commercial court case was first heard by district judge then appeal will be a circuit judge 2. Chancery Division: tort claims over £100,000 case was first heard by circuit judge then appeal is to a high court judge - split into insolvency and companies list court 3. Family Division: heard in private as deal with sensitive matters second appeal from decision of circuit or high court judge goes to Court of Appeal - child is made ward of court or welfare of children exceptional circumstances and only with Court of Appeal’s permission - hears appeals and cases with foreign elements appeal from multi-track decision, whether heard by district or circuit judge, goes to the Court of Appeal pre-trial matters to issue a claim, claimant complete form N1 (includes names, addresses, reasons for claim, amount of money) appeal from High Court is to the Court of Appeal or leapfrog appeal to Supreme Court filing claim, can be done at the county court, high court or online general public importance is needed assigning a claim, based on amount of compensation 1. admit claim and pay full amount further appeal from Court of Appeal to the Supreme Court but only if either court gives permission 2. admit claim and pay instalments 3 track system 3. dispute claim and file defence small claims (less than £10,000 or £1,000 personal injury) final appeal for case to be referred to European Court of Justice if a point of EU law is involved 4. file Acknowledgment of Service - district judge, no lawyers, lasts 2 to 3 hours fail to respond = default judgement fast track (£10,000 to £25,000) jury trial is possible in tortious cases e.g. defamation and malicious prosecution and claim is won - open court by circuit judge, lasts 1 day with 30 week timetable multi track (£25,000 to £50,000) judges in civil cases are responsible for - county court with a circuit judge “case management” - deals with complex points of laws or more responsible to ensure any cases they than £50,000 then passed to high court EMPLOYMENT civil courts & ADR preside over run effectively ALTERNATIVE TRIBUNALS DISPUTE disputes between employees and employers duty to use ADR to resolve dispute RESOLUTION role decision isn’t binding unless both parties agree to a binding resolution hearing claims from citizens who think someone e.g. employer, potential employer or trade union, treated due to “case management”, judges insist ADR is used before litigation them unlawfully deal with specific areas of employment rights jurisdiction negotiation unfair dismissal attempt to resolve issue directly, privately and possibly face to face with the other party preliminary matters discrimination e.g. returning faulty goods to a shop, receiving poor service from tradesperson and noise caused by brought within 3 months from the event unfair deductions from pay neighbours contact ACAS for early conciliation, receive advice from specialist lawyers or trade unions mediation procedure neutral 3rd party individual attempts to resolve issue with both parties, without giving their opinion claimants use an ET1 form to make a claim to Tribunal Office formal method is called a “mini trial” respondent has 28 days after receiving the form to complete a response of an ET3 e.g. business negotiating contracts or marriage guidance to avoid separation or divorce if employer doesn’t respond then judgement is made in favour of claimant if employer disputes, case goes to “case management” and hearing is held to resolve dispute conciliation 3rd party is active in raising ideas for compromise between parties in dispute hearings are heard by a panel of 3 (employment judge, employer’s representative and employee’s ACAS helps with employment and industrial disputes representative) e.g. alleged discrimination, employment disputes and family law matters hearings are heard in individual rooms arbitration decisions 3rd party decides case when disputing parties refer the case to it favour employee = encourage settlement and award compensation arbitrator is impartial (they don’t take sides but hear all arguments and make decision based on the claim lost = employee doesn’t have to pay employer’s costs evidence) dissatisfied = review decision within 14 days Scott V Avery clause - agreement in initial contract stating dispute is left to panel of arbitrators Arbitration Act 1996 - court refuses to deal with dispute if there is a clause appeal clause names arbitrators or provide a selection method within 42 days to employment appeal tribunal on point of law decision is an “award” and is legally binding appeal further to Court of Appeal or Supreme Court with permission e.g. package-holiday contracts, disputes between employees and employers using ACAS = evaluation I CIVIL COURTS, ADR & EMPLOYMENT METHODS OF ADR TRIBUNALS negotiation + straightforward contact between parties so most informal way of settling a dispute civil courts + low or no cost as there is no need for lawyers + court system provides open justice as public and media, can sit and report on cases, supports democracy + relationships between the parties are preserved + lawyers can give their clients informed advice based on precedent to help assess strength of case + form of funding may be available for the payment legal fees — one of the parties may not be prepared to negotiate with each other leading to an abandonment of the case which increases costs or delays — difficult for a claim to be a case without legal assistance due to the requirements of pre-action protocols — either party may believe that they are “right” and not prepared to settle and formal hearings — court proceedings may be the only way to resolve the dispute — uncertainty in outcome as there’s no guarantee of winning a case until judge or appeal court makes final ruling conciliation — lawyers tend to lead to greater confrontation between parties which produces further delay and cost + cheaper than taking a court case + parties have some control over choosing the conciliator and the process of resolving the dispute alternative dispute resolution + future business relationships can be preserved + using a method of ADR is less formal, for example: negotiation involves just the parties, mediation/ conciliation encourages the parties and arbitration sets out the process — conciliator could force a resolution on one or both of the parties + lawyers aren’t encouraged meaning lower costs and less confrontation so parties can continue relationships — process may not bring about a resolution, meaning case is referred to courts + decision doesn’t have to be strictly legal and more likely based on compromise, preserving future — results may not be binding on one or both of the parties relationships between parties mediation — parties can’t be forced to engage in the process therefore dispute could lead to abandonment and court + cheaper than a court case action which results in future delay and cost + parties are in full control over the process — if claim is settled, they are more likely to receive lower compensation then they would’ve been awarded by + future business and personal relationships can be maintained courts — no funding is available so unrepresented claimants may be at a disadvantage if business or employer is likely — weaker parties may be unable to stand up for their own rights as mediator can’t provide opinion only guide the to be legally represented party — limited rights of appeal, for example: arbitration can appeal on serious irregularities and employment — choice of mediators can result in issues, for example: skilled mediators are expensive and unskilled mediators tribunals can only be appealed on points of law result in an unproductive process — result may not be binding on one or both of the parties employment tribunals + claims are heard by specialist panels arbitration + hearings are often heard without the public or media present to ensure confidentiality for both parties + agreement to arbitrate can be made at any time as it is usually included in contract under a Scott V Avery + employees can be represented by a non-lawyer e.g. trade union, which is then cheaper clause + decision is binding and can be legally enforced by the courts — funding isn’t available therefore an employee may be at a disadvantage against the employer who can pay for + arbitrators are qualified and experienced legal representation — more formal process than alternative dispute resolution if settlement is not possible — use of a professional arbitrator can make the process more expensive than going to court — delays in setting hearing dates and claim has to be issued quickly after the issue arises — not a suitable process if a complex point of law is involved — arbitration is the most formal method of alternative dispute resolution It CRIMINAL PROCESS APPEALS & APPELLATE COURTS jurisdiction of Magistrates’ Court appeals from Magistrates Court to Crown Court first instance = court only available to the defence against sentence or conviction 97% of criminal cases are dealt with here and 90% are finished there where criminal case starts heard by a single circuit judge and 2 magistrates try summary offences and most triable-either-way offences carry out plea-before-venue hearings for either-way offences possible to appeal to King’s Bench Division on point of law and possible further appeal to Supreme Court sentencing defendants that are found guilty (limited powers but reflect seriousness of crimes) result is appeal being quashed, confirmed or remit the case back to Magistrates’ Court deal with first hearing for indictable offences and ancillary matters trying cases in the Youth Court for defendants aged 10 to 17 case-stated appeals from Magistrates’ Court to King’s Bench Division available to the prosecution and defence on a point of law jurisdiction of Crown Court heard by a panel of 2-3 High Court judges which might include a Court of Appeal judge trial begins with plea and case management hearing where defendant pleads guilty or not guilty possible to appeal to Supreme Court on general public importance (must have leave to appeal) deal with most serious indictable offences e.g. murder, manslaughter and robbery result is appeal being quashed, confirmed or remit case back to the Magistrates’ Court deal with appeals against Magistrates’ Court on conviction or sentence deal with cases passed from Magistrates’ Court for trial or sentencing appeals from Crown Court by defendant appeal is rare but possible against sentence or unsafe conviction classification of criminal offences heard by the Court of Appeal within 6 weeks (granted permission) on the grounds of fresh evidence 1. indictable: administrative hearing in Magistrates and transferred to Crown Court possible to appeal to Supreme Court on general public importance (must have leave to appeal) sentencing powers are maximum for specific offence by common law or statute result is appeal being quashed or confirmed first hearing, plea & trial preparation hearing, indictment and disclosure by prosecution & defence e.g. murder, manslaughter, robbery, section 18 GBH appeals from Crown Court by prosecution 2. triable-either-way: plea before venue (Magistrates/Crown), sentencing powers are max for specific offence against acquittal of defendant or by Attorney-General to clarify point of law relevant to acquittal Magistrates’ Court Act 1980 (plea before venue and mode of trial) against sentence if Attorney-General considers it to be unduly lenient e.g. theft, section 20 GBH, ABH heard by the Court of Appeal possible further appeal to Supreme Court 3. summary: heard in Magistrates’ Court, on general public importance (leave to sentencing powers up to 6 months appeal) pre-trial procedure is 90% plead guilty result is appeal being quashed or criminal courts & lay people e.g. common assault confirmed SENTENCING & JURIES COURT POWERS aims of sentencing (section 142 Criminal Justice sentencing = any only 2% of criminal trial use juries punishment given to Act 2003) punishment of offenders offender who has been MAGISTRATES qualification reduction of crime convicted of criminal qualification 6 key qualities aged 18 or over and under 76 rehabilitation offence aged over 18 and under 65 — good character registered on the elector register public protection no legal training or formal qualifications — reliable lived in the UK for at least 5 years since the age of 13 reparations by offenders unlikely to be appointed if have serious — aware of social issues not disqualified from jury service criminal convictions, minor convictions, — logical thinking factors of sentencing banned from driving in past 10 years or — communication selection aggravating: something that makes a crime more serious declared bankrupt — mature jury summons issued from the electoral register mitigating: something that makes a crime less serious jury vetting can be used by prosecution or defence pre-trial to selection challenge appropriateness of individual jurors or entire jury types of sentencing recruited by 14 local advisory committees (made up of serving once a jury is sworn in, individual jurors or entire jury can be magistrates and local non-magistrateS) challenged by prosecution or defence custodial character references and rigorous training imprisonment - offender’s behaviour is so serious that no other 2 interviews in front of Senior Presiding Judge appointment sentence will suffice, serve 1/2 of sentence in prison individual court divides jurors into groups of 15 and 12 are drawn out and other 1/2 on licence in community appointment at random non-custodial Crime & Courts Act 2013: statutory power to appoint magistrates by first name selected at random is appointed the foreperson of the jury community sentence - offenders carry out between 40 and 300 hours the Lord Chief Justice community work or treatment programmes delegates function to Senior Presiding Judge for England and Wales role fines - for less serious offences and amount depends on severity sit in the Crown Court as a panel of 12 people discharges - being brought in front of judge or magistrate is enough role decide the verdict only for the defendant punishment, conditions can be set with discharge sit in benches of 3 decide facts of case whilst judge directs them on points of law tries summary and triable-either-way offences independent and without fear of pressure from judge to convict or preliminary hearings e.g. administrative for indictable offences, decide verdict quickly remand hearings and bail allowed a majority (11-1 or 10-2) rather than unanimous decision (12-0) sit in the Crown Court to hear appeals from Magistrates’ Court = evaluation I ADVANTAGES OF THE USE OF JURIES DISADVANTAGES OF THE USE OF JURIES + public confidence is instilled due to traditional idea of being judged by ordinary members of society rather — slow and expensive as there is need for an explanation on points of law which increases the time taken and than professional judges costs of the judges and legal personnel + jury equity upholds democracy and freedom of will — unpopular use of juries as the compulsory nature means many jurors would rather not serve due to the R V Ponting - civil servant was charged after leaking information on the sinking of a ship, jury refused impact on their working or family life to convict as actions were in public interest R V Kronlid - jury found them not guilty after causing criminal damage to a plane used in alleged genocidal campaign — outside influences like media and social media coverage can influence jurors or jurors could be “nobbled” R V Randle & Pottle - jury refused to convict due to a time lapse between offence and prosecution R V Twomey - defendants charged with large robbery but 3 previous trials had collapsed due to jury tampering + open system of justice as the process is public and assumes no legal knowledge of jurors as points are explained which keeps the law clear and more understandable — no explanation of verdict as the decision is made in secret with no reason given behind the decision therefore bizarre methods could be used to reach the decision R V Young - jurors used a Ouija board to contact the dead victims to find out who killed them + privacy of decision-making process as juries decide the verdict in private without outside pressures — failure to understand the case due to the complex nature of law meaning juries may not follow on issues + random selection process allows for a cross-section of the community to be picked from which allows a clearly representative selection of society than professional judges or lay magistrates — lack of neutrality as a complete cancelling of bias is speculative and highly unlikely + neutrality as a jury should be impartial and as it is a panel of 12, any individual prejudices should be cancelled Sander V UK - 2 Asian defendants, it was found that jurors were sending racial comments so defendant out appealed under the Human Rights Act and got a retrial R V Connor & Rollock - jury convicted the defendants in order to “teach them a lesson” — use of juries can lead to perverse decisions (results that are unjustified) which results in a lack of public confidence R V Kronlid - defendants charged caused damage to plane to prevent attacks, but jury acquitted defendant R V Randle & Pottle - defendants helped a spy escape prison but case occurred after 25 years so jury acquitted because of the time lapse ↓ ROLE OF LEGAL PERSONNEL JUDICIARY judiciary = collective Barristers Supreme Court term of different self-employed advocates who practice outside of chambers, sharing administrative staff includes Justice of Supreme Court and President of Supreme Court types of judges hears appeals on points of law in civil and criminal cases briefed by solicitors on behalf of a client or approached differently in certain civil matters rights of audience in all courts to represent clients, particularly in Crown Court or higher courts Court of Appeal acting as a specialist legal adviser which gives clients independent and objective advice and opinion on includes Lord Justice of Appeal, Lord Chief Justice (criminal division) and Master of Rolls (civil division) merits of a case (counsel’s opinion) hears appeals in criminal cases (conviction/sentence) and civil case appeals (liability/compensation) if appointed onto the King’s Council then they handle very serious or complex cases draft legal documents for court High Court includes High Court judge, Head of Chancery Division, Head of Family Division, Head of King’s Bench Division Solicitors judges sit in 1 of the divisions, hear large-value, first-instance civil cases, hear appeals from lower courts act as a first contact with clients needing legal advice act as an advocate for clients, generally in lower courts (Magistrates’ or County Court) Crown Court give legal advice to clients on range of specialist areas e.g. conveyancing or family matters includes High Court judge (serious cases), Circuit judge, recorder organising a barrister for client if case goes to Crown Court or higher court hear complex criminal cases, appeals from Magistrates, cases without a jury, assist jury and pass sentences drafting contracts on other legal documents e.g. wills generally work in private practice but can work for large business that have a legal department or for local County Court authorities includes Circuit judge, recorder and District judge Magistrates’ Court (small claims court) includes District judge Legal executives hears civil cases and decide liability or remedies hears low level criminal cases, decide qualified lawyers specialising in one particular area of law, working alongside solicitors verdict and civil cases act as a first contact with clients needing Tribunals legal advice in straightforward cases includes Tribunal judge and Senior limited rights of audience in lower courts President of Tribunals (County Court) hear cases on specific civil issues e.g. give legal advice and draft contracts REGULATION OF legal personnel employment disputes SEPARATION OF LEGAL POWERS PERSONNEL regulation = process proposed by Montesquieu doctrine = set of beliefs laid down, Barristers whereby actions of held in a theoretical way individuals are overseen doctrine of separation of powers is a tripartite model of governance in governing body is the Bar Council and regulatory body is Bar Standards Board judicial review = allows decisions of and governed by democratic society body sets education/training, standards of conduct, handles complaints and government to be takes disciplinary actions authorised organisation challenged executive (government) - administers the law powers of body includes fines, individual sanctions, suspension and disbarment legislature (parliament) - law-making no contractual liability and can be sued for negligence (Hall V Simons) judiciary (judges in courts) - application of the law Solicitors powers shouldn’t be held by one specific body or person to ensure no one holds all the power in society governing body is Law Society and regulatory body is Solicitor’s Regulatory Authority separate bodies work independently and can be challenged separately in their operation body sets standard for qualifying, rules for professional conduct, handles complaints and operates compensation fund for clients (lost money via solicitor’s dishonesty) overlap powers of body includes fines, written rebuke, reprimand and severe reprimand executive & legislature contractual liability and can be sued for negligence (White V Jones) ministers form the government and sit in parliament therefore active in the law-making process Lord Chancellor is involved in all 3 functions Legal Executives governing body is Chartered Institute of Legal Executives and regulatory body is CILEx Regulation important case emphasising judicial independence from executive body oversees education, qualification and practice standards as well as taking action against legal executives who don’t meet those standards R V Prime Minister powers of body includes rejection of a complaint, imposing conditions on future work, exclusion from joint appeal to Supreme Court regarding decision to prorogue British Parliament membership, fines and order to pay costs of the case decision was for Prime Minister’s benefit to prevent important vote of UK’s withdrawal from EU contractual liability and can be sued for negligence case brought through judicial review and initially rejected by High Court Supreme Court rejected decision stating it was justiciable and prorogation of parliament was unlawful and further regulation void Legal Services Board - second check for regulatory bodies and suggests reforms and recommendations to modernise services (act with integrity, maintain proper standards, best interests) Legal Ombudsman (Legal Services Act 2007) - independent scheme resolving complaints about lawyers e.g. costs (unclear or different), delay (no clear reason), poor information (lack of explanation) I SECURITY OF TENURE IMMUNITY FROM SUIT judges shouldn’t be under control of the government (executive) judges shouldn’t be removed as a government changes, in order to serve new government’s purpose or desire judges are free from any legal action while serving correctly in capacity as a judge individual judges aren’t criticised in parliamentary debates any judicial removal mechanisms and length of tenure should be firmly established in law on grounds of public policy immunity from suit = free no minimum age to be appointed as a judge from any legal action Sirros V Moore judge wrongly ordered a person’s detention judges must be able to serve for “reasonable length of service” which is minimum of 5 years claim was then launched for false imprisonment against the judge judges must retire when they are 70 years old Court of Appeal decided that no action against judge as he acted in good faith as believed he had not allowed to serve after they reach 75 years old power to imprison judges hold office “during good behaviour” and can be removed if there’s an allegation of misconduct doesn’t prevent a complaint being raised against a judge because of their behaviour, language or conduct possible for a judge to be removed from office in certain circumstances High Court and Court of Appeal judges, removal is by petition to the Crown after address presented to both Houses of Parliament Supreme Court judges can appear before a tribunal before any parliamentary motion is set Circuit & District judges can be removed by the Lord Chancellor grounds of misconduct or incapacity can only happen if Lord Chief Justice agrees INDEPENDENCE judicial independence INDEPENDENCE FROM 2 OF FROM CASE - I OTHER ARMS judge’s impartiality is as important as independence from external impartiality = independence influences e.g. government pressure independence from executive and legislature is set out by doctrine of separation of powers from pressure vital that defendants, claimants and public have confidence that judges decide cases fairly and in harmony with law executive during judicial function in court, judges must be free of any adverse influence ignore pressure to manoeuvre or coerce a judge into making a certain pro-government decision influence could come from influential litigants, heavy-handed pressure groups, media/social media, own ignore pressure to force a judge to rule against those who oppose the executive’s policies or plans self-interest or bias, other judges (particularly senior judges) other influences the judge must ignore legislature (Parliament) - other judges particularly senior judges REASONS FOR INDEPENDENCE unless bound by law e.g. precedent ensure verdict or decision is only decided upon by the evidence of the facts and the law pressure groups ensure that in jury trials that juries decide verdict based on facts and not on any other influence their own self-interest, opinions and beliefs deliver fair and impartial justice protect citizens and their rights against unlawful actions of government, state-run agencies, or any Re Pinochet person/organisation that tries to infringe or remove rights claim to extradite him back to Chile to face charges for torture and murder House of Lords agreed to this found that one of the judges (Lord Hoffman) was part of Amnesty International (party to the case) - decision couldn’t stand as panel wasn’t completely unbiased or unconnected from the case METHODS TO ACHIEVE INDEPENDENCE media judges have immunity from being prosecuted for acts whilst carrying out judicial function judges have immunity from being sued for defamation from things they say about parties in court case any errors made by judge can be appealed against rather than being a rigid and permanent decision judges’ salaries and pension rights aren’t set by executive, set by independent bodies = evaluation I ADVANTAGES OF THE JUDICIARY ADVANTAGES OF JUDICIAL INDEPDENCE + judges are highly experienced legal professionals who bring extensive knowledge of law to their roles, + judicial independence ensures judges are free from external pressures e.g. political influence or interference ensures that cases are decided based on a deep understanding of legal principles and precedent. This from the government, allowing judges to make decisions solely on the law and facts rather than other promotes consistency through judicial precedent as decisions are based on facts, providing predictability in influences the law + judges with security of tenure (protection from dismissal) means they can focus on long-term justice + judiciary is a key defender of individual rights and freedoms, particularly through judicial review, where without fearing consequences for decisions that may be unpopular or politically inconvenient judges can challenge legality of government decisions, ensuring public bodies don’t exceed their powers, safeguarding democracy and rule of law + independent courts can carry out judicial review to ensure the government doesn’t exceed their legal powers, this acts as a check on executive actions to maintain the balance of powers between branches of + judges can adapt the law to meet changing societal needs through distinguishing, overruling or interpreting government cases differently, this ability to develop common law ensure legal system remains relevant and responsive Miller V Secretary of State - demonstrated independence by ruling against government to ensure parliamentary sovereignty + judicial decisions are subject to appeal in higher courts which ensures accountability, therefore any errors made can be corrected by a senior judge + when judges are seen as independent, the public are more likely to trust the legal system, this confidence ensures that individuals and businesses feel secure in seeking justice as they aware the courts will be fair and unbiased DISADVANTAGES OF THE JUDICIARY DISADVANTAGES OF JUDICIAL INDEPDENCE — judges are unelected and therefore not directly accountable to the public, this leads to concerns about unelected individuals having significant powers especially when they make decisions that impact public — judicial independence can make judges resistant to change or external guidance, for example: attempts to policy e.g. judicial review, therefore judiciary lacks democratic accountability introduce modern practices or address systematic issues, may be resisted due to protection of independence, this can result in a judiciary that appears out of touch with societal progress — judges are not always free from bias, historically the judiciary has been criticised for lacking diversity in terms of gender, ethnicity and social background, which can lead to unconscious bias or a perception that — judicial indepdence allows judges to interpret and develop the law without interference, however this can certain groups are underrepresented lead to “judicial activism” where judges are perceived as creating new laws rather than interpreting existing 2020 - 76% were over the age of 50 and 40% over the age of 60 ones. For example: decisions in judicial review cases can be seen as overstepping constitutional boundaries 2020 - 32% were women and 26% of superior level judges were women between judiciary and Parliament 2020 - 8% were from a BAME background — independent judges may strike down or challenge government policies through judicial review, this creates — some cases include points where the law is ambiguous or require judicial interpretation, this is influenced by tension between the judiciary and executive, whilst it ensures balance it can be seen as judicial interference personal values and beliefs of judges that can impact their decision, creating a perception of partiality even in political matters, which some believe should be left to elected representatives if it was unintended — there may be inconsistencies in decision-making as different judges may interpret similar cases differently, particularly seen when applying subjective concepts like “reasonableness” ↓ GOVERNMENT FUNDING PRIVATE FUNDING Legal Aid, Sentencing and Punishment of Offenders ACt 2012 requires citizens to pay or contribute for legal services themselves runs legal aid scheme in England and Wales providing civil and criminal legal aid and advice own resources use own resources to pay legal fees Legal Aid Agency raising funds via a loan or remortgaging a home ensure legal aid services from solicitors, barristers and non-profit sector are available to the general public can put people into financial difficulties fund Civil Legal Aid Service prevents people from pursuing a case publish evidence about decisions made on whether or not to fund a case run the Public Defender Service Civil Legal Advice Service provides free and confidential advice in civil-law matters e.g. debt, housing and domestic abuse merit tested via government website Public Defender Service provides services within criminal defence market free, full representation of defendants from police station through to the courts, even on appeal free advice and assistance when person is under arrest at any time advocacy service with access to 25 advocates, including 7 King’s Councils merit tested but eligibility for free criminal legal aid is handled by defendant’s solicitor or barrister CONDITIONAL access to justice OTHER ADVICE FEE AGREEMENTS AGENCIES Citizens Advice Bureaux CFAs = “no win, no fee” arrangements town centre-based legal advice agency providing general legal advice purpose 3,500 locations throughout the country introduced to alternatively privately fund a civil case client only pays the solicitor’s fees if they win therefore they pay nothing if they lose Law Centres Network free access to legal advice from solicitors for those who can’t afford a lawyer method 45 locations in England agreement struck between client and solicitor that any costs are paid from compensation received along with a “success fee” Pro Bono Lawyers until 2013, “success fee” could be recovered from losing party, but stopped and now taken from client’s lawyers who offer free legal advice and representation compensation Free Representation Unit provides free legal representation for public provides advocacy experiences for junior lawyers Trades Unions specific, targeted advice on issues relevant to trade unions (employment issues) e.g. National Union of Teachers, British Medical Council, National Union of Journalists Insurance Companies taken out before or after the event in anticipation of fighting or defending a legal case insure against losing a case and paying the other side’s costs as well as damages e.g. RAC/AA for car insurance or home insurance companies Charities specific, targeted advice on issues relevant to the charity e.g. MIND for mental health, Shelter for homelessness and housing, Sense for deaf and blind persons = evaluation I ADVANTAGES OF GOVERNMENT ADVANTAGES OF CONDITIONAL FEE FUNDING AGREEMENTS + government funding ensures that individuals who can’t afford legal representation or advice can still + clients don’t have to pay legal fees if they lose their cases, therefore reducing the financial burden and access the legal system, supporting vulnerable individuals e.g. eviction, domestic abuse, unfair dismissal, encourages people to bring valid claims without fear of incurring significant costs enabling them to protect their rights + conditional fee agreements are often tailored to suit individuals circumstances, such as offering a “success + legal aid funded by the government ensures that individuals can enforce their rights under the law, for fee” if the claim is won, this flexibility enables claimants to manage their financial commitments more example: those guaranteed under the Human Rights Act 1998, this helps individuals challenge unlawful effectively while pursuing justice actions by public bodies through judicial review + these agreements reduce the reliance on government-funded legal aid for civil cases, which has become + government-funded legal aid helps individuals challenge powerful organisations or the state, ensuring that increasingly restricted due to budget cuts (LASPO 2012), this means claimants can still access legal justice isn’t dominated by wealth or influence, this is important in areas like employment disputes or housing representation even in areas where legal aid is no longer available issues where there’s a significant imbalance of power + conditional fee agreements allow individual who can’t afford legal fees to pursue a claim without needing to + by funding legal aid, the government reduces the impact of social and economic inequalities, ensuring that pay upfront costs, this is particularly beneficial for people with limited financial means, enabling them to low-income individual aren’t disproportionately disadvantaged in legal matters, contributing to social seek justice regardless of their wealth cohesion and fairness DISADVANTAGES OF GOVERNMENT DISADVANTAGES OF CONDITIONAL FEE FUNDING AGREEMENTS — government funding for legal aid is subject to budgetary constraints which can result in insufficient — solicitors under these agreements charge a “success fee” if the case is won, which can significantly support, cuts to funding under LASPO 2012 have excluded many individuals from accessing legal assistance, increase the client’s costs, whilst the fee cannot exceed 25% of damages, it still reduces the final this leaves people unable to enforce their rights or defend themselves effectively in court compensation — access to legal aid is restricted by strict financial and merits test, which can exclude those just above the — clients may lack complete understanding of the terms of the agreement, for example: how the success fee is income threshold but still unable to afford legal representation, this creates a “justice gap” where many calculated or the risks involved, this can lead to confusion and dissatisfaction, suggesting conditional fee people can’t access either legal aid or private legal services agreements lack regulation and transparency — due to funding restrictions, only certain types of cases are now eligible for legal aid, for example: under — conditional fee agreements have been criticised for encouraging a compensation culture, where solicitors or LASPO 2012 areas of welfare benefits, housing and private family law matters are no longer covered, leaving claims management companies aggressively advertise and pursue claims, this creates the perception that many individuals without support. This creates inequality in access to justice as those with resources can the legal system is overly litigious, which undermines the public trust pursue claims whilst others can’t — claimants are often encouraged to take an “after the event” insurance policy to cover the risk of paying the — as government funding decreases or remains inadequate, charities and pro bono legal services are left to fill defendant’s costs if they lose, this insurance can be expensive and not recoverable from the losing side the gap, this places significant strain on these organisations which often lack the resources to meet the after changes under LASPO 2012, therefore adding to the claimant’s financial burden demand fully = evaluation I ADVANTAGES OF ACCESS TO JUSTICE IN ADVANTAGES OF ACCESS TO JUSTICE IN CIVIL CASES CRIMINAL CASES + many sources of free or cheap advice and assistance are specialists in their fields, therefore having a + suspect in police detention is able to obtain legal advice and assistance, as it prevents the police from greater knowledge and skills in matters of employment law, housing and entitlement to welfare benefits breach rules in the Police & Criminal Evidence Act 1984 + Conditional Fee Agreements with lawyers are the main source of funding for those claiming compensation for + when a suspect is detained, all their possessions are taken from them therefore they can’t access any personal injuries suffered in an accident, it allows a claim to be made if the claimant is unable to afford to documents or salary details, therefore the availability of free advice without being means tested is vital fund a case privately + a person facing criminal charges that could affect their future, should be able to instruct a lawyer to + using private funding for legal advice and representation allows the choice of the best or most experienced investigate the charges, obtain evidence and put forward a defence on their behalf, this is seen as justice lawyer for the case being served + for those individuals who are unable to pay privately there is state-funded legal aid DISADVANTAGES OF ACCESS TO JUSTICE DISADVANTAGES OF ACCESS TO JUSTICE IN CIVIL CASES IN CRIMINAL CASES — legal fees: lawyers are unable to estimate their fees at the start of their case, in addition the client may — there hasn’t been a corresponding drop in the number of crimes being committed or coming to court, therefore the amount of money available to fund the in 2018-19 the budget was have to pay 2 amount of fees due to the rule that the loser pays the winner’s costs as well as this options of scheme has been reducing £879 million down from private funding is expensive and out of reach for many £891 million in 2017-18 — Conditional Fee Agreements: lawyers have to be convinced of a high chance of success, potential claimant — fewer firms are providing criminal legal aid services as the budget doesn’t cover it, in 2010 there were 1861 has to take out an “after the event” insurance policy which is expensive, amount of compensation will also firms undertaking criminal legal aid and it decreased to 1147 be reduced by the deduction from the lawyer’s success fee which can’t be recovered from the defendant — civil legal aid funding has been cut, in 2010-11 it was £1 billion and then it fell to £600 million in 2015-16, during — budget cuts have caused a rise in the number of defendants both in the Magistrate’s and Crown Court who this the number of civil court claims increased as more people are prepared to take action to enforce their aren’t represented by lawyers, meaning that cases take longer as procedures have to be explained more rights simplistic and there is a greater chance of defendants begin found guilty and denied justice — lack of funding in civil cases has led to a rise in the number of litigants which increased delays in court — longer-term future for solicitor firms practicing in the area isn’t promising, solicitors don’t want to practice criminal law as it isn’t well paid, as well as unsociable work hours because they can be called out during the night to attend a police station or go to court early morning — cuts to funding and expense of using lawyers, more pressure is being put on other advice agencies at a time when their budgets are stretched, meaning greater delays into accessing legal advice — the strict means test especially in the Magistrate’s Court, leads to about 3/4 of adults not qualifying for legal aid. In Crown Court, there are less severe financial limits but cases are dealt more seriously so more expensive to defend a case. Therefore there is less money available for each case and a greater risk of injustice — the “interests of justice” test is strictly applied and has to show a prospect of imprisonment to satisfy the test, for example: a defendant with greater number of past convictions is more likely to be imprisoned and more likely to receive legal aid whereas a defendant charged with serious offence but is less likely to go to prison is less likely to receive legal aid