All change for legal aid

Friday 01 April 2022

On 1 April, after hundreds of years, the legal aid system in Jersey undergoes a big change; no joke. The rules about who is entitled to legal aid, when they are entitled and then how it is delivered has all been overhauled.

Are the changes good or bad? Will the public who are in need of legal services be better served? Will you, as a taxpayer be better or worse off? “Not sure”... is the answer: the jury is still out.

One big change is that the various areas in which legal aid is delivered has been sliced up. Criminal, civil, public law and personal injury have been separated so that different rules apply. A major change is that people wanting to pursue a personal injury claim will not, except in exceptional circumstances, be entitled to legal aid.

It’s obvious why this change has been brought about: people who have a good claim will nevertheless be able to secure a lawyer because the lawyer will be able to predict that ultimately the person liable will have to pay the costs. So, this change is probably going to result in a saving to the taxpayer and only negatively effect those claimants with ‘marginal’ cases because lawyers may not be willing to represent them.

Legal aid for civil claims will still exist and will operate in a similar fashion to the current system.  Someone who is eligible for legal aid and has a civil claim will be appointed a lawyer on a ‘rota basis’ which means they will be assigned the lawyer who is ‘next on the list’ and will be provided with free legal representation or only be required to contribute an amount according to their monetary means.  

Pictured: If you can't afford to get a lawyer, legal aid will be given.

The big change is criminal legal aid. Previously, if you qualified to be provided with legal aid you were appointed the next lawyer on the ‘tour de rôle’ (rota) but now, ding ding, all change, you’re allowed to pick one to your liking; well, almost.

The new scheme has a much smaller pool of lawyers who are considered experienced enough to undertake criminal law work. In fact, all of them were required to sit examinations recently to confirm they were in fact competent enough. I am one of those specialist lawyers included to provide criminal representation, and I have to say, sitting exams so far into my career to test and prove my ability and knowledge doing something I’ve been doing for over 20 years was bizarre.

So, it means if you are entitled to a lawyer on the legal aid scheme, you will be presented with a list of lawyers and you can then go and pick one from the specialist group, rather than have one thrust upon you. 

Will you be entitled to legal aid?  As before, it is means tested, but the rules have changed. The assessment will be personal to you and so will not be calculated on a ‘household’ basis.  You will be required to earn less than £50,000 per annum and, if you do, you will also be required to have less than £50,000 of assets (including equity in property etc).  If you fail any of those threshold tests then legal aid will not be available. 

Pictured: Lawyers will be paid with taxpayers' money if providing legal aid. 

The other change is financing the scheme.  Previously, all legal aid work was carried out by Jersey advocates and solicitors without pay (generally).  Now criminal lawyers performing legal aid will be paid from taxpayers’ money on a fixed fee basis according to what work they do.  In a way, it is similar to how doctors are funded in the island except, unlike going to see your GP, there will be no contribution from the client at all.  While I have no issue with the new operation of legal aid in this context, it is slightly odd that for years upon years when we were doing it for nothing, it didn’t matter if we were competent; but now we are going to get paid we needed to be examined and tested to make sure we really are good enough.  But competence in the job was something that always concerned me in legal aid matters: I do not do any matrimonial, or family law, work and would consider myself as wholly incompetent in that field.  I would not, even if offered substantial fees, carry out such work - but it didn’t stop me being told by the legal aid department I had to represent clients needing assistance with family matters.  Anyway, those days are gone. 

Whether or not all this will result in a saving in public funds is still to be seen.  I haven’t done the maths (and I’m not going to) but I suspect there will be an overall saving. In the past, even though lawyers were not paid for criminal work, they did get paid if they were successful at trial.  If they represented a client who was acquitted, then the Crown – rightly so - would have to pay the legal costs, which of course, came from taxpayers’ money.  Under new rules, the lawyers will be paid a fixed fee which will be paid, and remain the same, whether or not the result is conviction or acquittal at trial. 

Pictured: People might have to start borrowing money, building up debt, to pay for legal aid. 

What is my general view of it all?  A few things of note.  First, there will be far fewer people who will qualify for legal aid under the new guidelines. This may prejudice certain middle earners.  I am a bit worried about that.  Those who do not qualify may have to start borrowing money and their homes could be put at risk.

I do not think the service a client receives will change in any way whatsoever; that will remain constant. However, I am concerned that all of this may be used to pave the way to a more worrying change, and that is how private paying clients are awarded costs against the Crown when acquitted. At the moment, if I represent you on a criminal charge at trial, and you are acquitted I can claim your costs (most of them) from the Crown.

Those costs are not paid at the ‘fixed fee’ rate which I have mentioned above.  If the Crown’s obligation to pay was changed then there would be a serious human rights issue, which I believe exists in the UK.  How can it possibly be right that you are wrongly charged with a crime, pay for your legal representation, are then acquitted and then told that all money you have paid is not recoverable?  I have long had a problem with clients not getting all their money back; but if the amount they do recover is eroded even further then our States’ representatives needed to be pressured.