Legal Aid: Please Mind the Gap Between the Magistrates’ Court and Access to Justice

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Created on March 10, 2022

Legal Aid: Please Mind the Gap Between the Magistrates’ Court and Access to Justice

The Legal Aid threshold in the Magistrates’ Court is abhorrently low. Let’s give an overview of the “access to justice” and our thoughts below. Our fees and funding is here, for your ease of reference. 

Legal Aid and Access to Justice

To quality for Legal Aid in the Magistrates’ Court, one must earn below £12,475 per annum. To put into perspective quite how low this level is, an individual working 40hrs per week, earning the National Living Wage (as of April 2022) could be expected to earn £19,760 per annum. Meaning they would be earning £7,285 more than what would allow them to qualify for Legal Aid. Clearly, the rhetoric of ‘access to justice’ and the reality of the average person accessing justice are disparate, considering the ‘average’ person is unable to access free legal assistance. The make-up of society would look very different if the NHS operated under a means-tested payment system; this would cause outrage if the average person could not access healthcare, so why is the story so different with Legal Aid?

Legal Aid and the Cost of Living

With the cost of living ever rising and inflation beginning an upwards climb, paying for one’s legal fees leaves many in a position of choosing between paying for life’s essentials or being able to be represented in court. Based on research from the Money Advice Service, the average cost of living stands at £1,245 per month for an individual, 88% of the above-mentioned earnings. The remaining 12% leaves £172.75- much below the cost of private legal assistance.

Hence the title of this article, ‘Please Mind the Gap’. Those who earn large salaries are readily able to pay their legal fees and would not need Legal Aid. Those at the other end of the scale are entitled to Legal Aid. The ‘gap’ as it were, is those people who earn an average salary, but cannot afford legal fees; those are the persons left behind by the Government. When this is assessed more outwardly, the ‘gap’ entrenches persistent inequalities in English and Welsh society today; poverty, race and gender inequalities are all worsened by non-access. In addition, a cyclical pattern of crime can be linked to a lack of ability to access Legal Aid.

Salary and Legal Aid

Salary is not the only marker of whether one is entitled to Legal Aid and indeed, the interests of justice test has significant bearing on whether someone is entitled to Legal Aid or not. In many cases, an individual will not be entitled to Legal Aid regardless of their earnings if it is deemed not in the ‘interests of justice’, for them to have access to it. Mostly, this is for more minor offences relating to driving and low-leveldrugs charges, which cover many of the matters that come before the Magistrates. The effect of having a ‘minor’ drug or driving offence on your record is disproportionate to the ‘minor’ nature of the offence itself; having potentially devastating effects on employment, family life and more. With justice being the hallmark of our legal system, a more outward-looking assessment of the impact of even minor convictions would, by its very nature, necessitate broadening the scope of the interests of justice test. By doing so, however, strengthening this hallmark and creating a more equal playing-field for all facing criminal charges.

Duty Solicitors and Legal Aid

Duty solicitors are available in many circumstances to assist an individual on the day of court who may not be eligible for Legal Aid. However, a duty solicitor will not have prior sight of a case and could be juggling multiple cases during a day. When an individual is facing court, potentially for the first time, their first wish will inevitably be to have access to the best legal advice possible. The certainty of having a legal representative attending court for your case brings peace of mind.

It is perhaps pertinent to note that if a person applies for Legal Aid following representation by a duty solicitor at the first hearing and their application is rejected, a duty solicitor cannot be used as a fallback. Thus, adding further uncertainty to an already stressful time for many, making the prior mentioned ‘gap’ more of an abyss when one faces acting as a Litigant in Person. No matter what level of legal knowledge you have, it is always advisable to have an independent legal representative with you and bureaucracy should not stand in the way of this.

Summing up The Justice Gap and Legal Aid

 It is noted by ‘The Justice Gap’ that the benefits of Legal Aid significantly outweigh the cost to the public purse. Tangible benefits include more efficient administration of justice within the court system, whilst intangible benefits include personal empowerment and increased trust in government and the rule of law. In the shadow of Covid-19, with the court system crumbling under an immense backlog, now more than ever, the Legal Aid gap needs shrinking fast.

The team and I are on hand to help, if you’d like a discreet chat, do get in touch.

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