New legal aid system 'could harm access to justice'

Friday 14 January 2022

Upcoming changes to legal aid may leave islanders without the financial means to pay for their own lawyer worse off because the Government hasn't funded the new system properly, a senior lawyer is warning.

Soon, Jersey’s long-established system, which is mostly arranged and paid for by the legal profession, will be replaced by a taxpayer-funded model.

With the States agreeing to the change in 2019, the new system – which is expected to cost the Government between £750,000 and £1.5m extra a year – is due to begin on 1 April.

The Chief Minister recently issued a set of guidelines establishing the details, including the fixed fee structure.

However, there are still concerns over how effective it will be. Advocate Jeremy Heywood, a partner at BCR Law who has been involved in numerous Royal Court criminal cases and trials, said he supported the aims of the new structure, and he hoped it would work well, but had grave concerns that it wouldn’t.   

Pictured: Advocate Jeremy Heywood.

“I am supportive of the underlying principles behind the scheme and the desire to improve access to justice is a laudable one,” he said. “The Government is under a legal obligation to ensure that those who cannot afford representation in criminal matters have it provided, and advocates also have legal obligations imposed on them as to the level of service which they must provide.

“However, in my view, the proposed scheme is neither viable nor sustainable. The proposed notional hourly rate is too low to cover the costs associated with providing an appropriate level of service; and the indicative number of hours allowed under the scheme to do the necessary work are, in my experience, wholly inadequate.”

The current system

The key principle of the current system is that it is arranged and paid for by the legal profession. Certain individuals eligible for legal aid must, in theory, pay a contribution and lawyers can claim some costs from the Government, through the Judicial Greffe, where a case is particularly onerous - but these are few and far between.

According to Advocate Heywood, the current system has served the public and the public purse very well for a very long time.

“It is certainly the most generous legal aid system in the world - as far as the public are concerned - that I have come across, and far superior to the system in the UK,” he said. “Any effort to replicate the English legal aid system would, in my opinion, be a grave mistake.”

Pictured: Under the new system, there is a flat fee of £1,200 for any Magistrate’s Court matter that doesn’t go to trial.

Under the current system, generally between 500 and 600 legal aid certificates are issued each year for criminal matters. All advocates and solicitors who have qualified for fewer than 15 years are placed on the ‘Tour de Role’ and must provide legal aid when it is their name which appears at the top of the deck.

However, even though providing legal aid is a personal obligation, these certificates can be delegated to another lawyer to discharge, and even another firm. Some law firms pay others to do their legal aid work for them.

Under the existing system, an advocate can also earn ‘credits’ which is placed against their name on the Tour de Role. A credit can be given for, for example, appearing as Duty Advocate in the Magistrate’s Court and means that a lawyer won’t be called next time their name appears to provide legal aid.

The need for change

Advocate Heywood concedes that the current system is not perfect: the 15-year obligation, for instance, is a problem because it is a disincentive to non-criminal lawyers wanting to set up on their own. Being handed a complex criminal case could threaten the viability of, for example, a small employment- or commercial-law practice.

Another other significant problem, he says, is that any advocate on the Tour de Role can be handed a certificate to deal with any case – so, in theory at least, a non-contentious banking law specialist, for example, could be allotted a certificate requiring them to deal with a rape, or a drugs matter, in which they had no experience whatsoever.

“That plainly is not good either for the individual concerned or the advocate,” he said.

“The existing system also compels every locally-qualified lawyer to be on the Tour de Role for the first 15 years after qualification, effectively imposing an obligation to undertake a large amount of legal aid work for free over the course of those 15 years.

“No other profession on the Island has anything approaching a similar burden placed upon them. That cannot be human rights compliant.”

The proposed scheme

The key difference is that criminal legal aid will be funded by the taxpayer on a fixed-fee basis. The Tour de Role will also end and be replaced by a list of accredited lawyers, who choose to put their names forward. This also means that clients have an element of choice over who represents them.  

Where the individual does not elect a specific lawyer, legal aid will be allotted on a Tour de Role basis to the next accredited lawyer on the list.

Financial eligibility has also moved from being based on a household to being based on an individual. The current household income limit of £45,000 will be replaced by an individual limit of £48,000.

The capital limit, which includes equity in a property, moves from a £15,000 household limit, excluding £100,000 of equity, to a £48,000 individual limit, which includes equity.

There will also be no residency test – which there is currently for criminal matters, except where there is a risk of custodial sentence.

Advocate Heywood is concerned that the proposed fixed fees are too low and will act as a disincentive for law firms to engage with the scheme.

For instance, there is a flat fee of £1,200 for any Magistrate’s Court matter that doesn’t go to trial. At the proposed hourly rate of £165, that equates to just over seven hours’ work per case.

Looking at past cases at his firm, Advocate Heywood said that some were concluded in this time, but many were not and the average length of time was 23 hours. The longest case which concluded without going to trial took 70 hours.

“The real hourly rates under the proposed scheme will be substantially less than the current ‘Factor A’ rates [those set by the Royal Court which reflect the ‘break even’ point for lawyers],” he said.

“In effect, the entire proposed scheme is based on an hourly rate and assumptions as to the time needed to complete the work which, on my analysis of past cases undertaken by my firm, will result in a loss to any advocate undertaking the work. If lawyers cannot at least break even, then the proposed scheme will almost certainly be unsustainable – who is likely to opt in when doing so will result in a loss?”

He added: “I have a real concern that this scheme, despite having the best of intentions, is not adequately funded, which will likely place financial and time pressure on those lawyers undertaking the work and could have an impact on the level of service that people receive.”