Access to Justice in the English Legal System

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Access to Justice Legal aid was introduced after the Second World War to permit people who could not otherwise afford the services of lawyers to be provided with those services by the State.[1]The system and costs grew hugely over the decades and underwent various restrictions and cutbacks during the late 1990s.[2]Although there have been many high cost claims on the legal aid budget, the scale of the continued rise in spending is not the result of individual or collective wastefulness.[3] It is the result of systemic weaknesses in the way legal aid services are obtained and therefore inefficiencies in the way those services are delivered.[4] The process for evaluating if an individual meet the requirements for civil legal aid and criminal legal aid is different. In civil legal aid, a person’s income and capital must be within definite limits, this is called the means test and their case needs to have a reasonable chance of winning; the merits test.[5] In criminal legal aid, the means test is also considered but in a different way. In addition, the more serious the charge and possible consequences, the more likely it is that the person will qualify for the interests of justice test.[6] The Community Legal Service (Financial Amendment) Regulations 2007 set out the onsets for financial eligibility for all requests for funding.

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The test uses basic concepts of ‘disposable income’, that is, income available to a person after deducting essential living expenses, and ‘disposal capital’, that is, the assets owned by a person after essentials items like a home.[7] In addition to the financial eligibility, an applicant’s case must also satisfy a new merits test. The commission prepared a Code (2007) which replaces, and is intended to be more flexible than, the merits test that was used for civil legal aid. The code sets out the criteria for determining whether legal aid services should be provided in a particular case.[8] Further legal aid restrictions endanger access to justice; say MPs.[9]Joint committee on human rights warns that Ministry of Justice(MoJ) should not fall into trap of ‘knowing the price of everything but value of nothing’.[10]MoJ proposed one-year residence test, the committee calls for broader exemptions, specifically in cases involving children.[11] It said: “Refugees may be unable to access civil legal aid during their first few months of lawful residence in the UK. This is particularly worrying as this is the time that many refugees may need assistance in securing services they are entitled to.” [12]Under the MoJ reforms prisoners will lose legal aid for challenges over prison conditions but can keep it for legal challenges involving their liberty. The report said: “In some cases only the retention of public funding will be sufficient to prevent infringements of prisoners’ right of access to court arising in practice.”[13] Removing legal aid funding for borderline cases could affect human rights challenges and save only £1m a year,

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