Legal Aid Changes – A Step Too Far For Some?

Whether appearing as the defendant or the plaintiff, having your day in court can be a nerve-wracking prospect. Having to endure this ordeal without the services of a lawyer to assist you is somewhat akin to heading out to sea without an experienced captain and crew to guide you safely to your destination.

Yet, as a result of government cuts to the legal aid system, this terrifying situation is exactly where many financially disadvantaged people can find themselves. The irony of these cuts is especially highlighted in negligence cases, where people face the prospect of being sent to prison. Unfortunately, each year there are some people sent to prison that arguably ought not to be, and of course in prison they are usually much more of a burden on the nation than would be the case if they were free.

Even in civil cases, the reforms can be just as damaging and the stakes can be just as high. For example, in the case of child custody disputes, quite often the result can be absolutely devastating if the wrong parent is awarded custody. Another example would be victims of domestic violence not having access to the full protection of the law. Both examples are evidence of how cuts to legal aid have the potential to affect people’s lives in very profound ways.

Negative Reception

Since the cuts were first introduced in April 2013, legal experts have generally been highly critical of the changes. Many have cited cases known to them where decent people have become what can only be described as victims of the system. One particularly contentious change requires that victims of domestic abuse must provide proof of their allegations before legal aid is available as an option. There are potentially many considerable risks that the victim may be exposed to as a result of this.

The BBC recently reported that up to a third of domestic violence victims could not provide sufficient evidence to get legal aid. It appears the intended effect of the changes to the rules is to ensure legal aid is only provided to cases where it is virtually certain that the recipient will win. Effectively, this means the client is brought to trial twice: firstly in the law office, and then in the court.

This is affecting those belonging to one of the most vulnerable segments of society. It is the sort of situation that has traditionally been associated with some Middle Eastern nations with questionable human rights records. That this could happen in Britain would have been almost unthinkable just a few years ago, which is why lawyers and barristers across the nation have repeatedly protested against the changes since they were introduced.

In fact, barristers took the unusual step of going on strike in January 2014 as a sign of the strength of their objection. This was the first time in the history of Britain that anything like this had ever happened, and of course the barristers were taking on very great personal risk in doing so (as the Bar Standards Board went to great lengths to make them aware), which is a very good indication of their passion and strength against these legal aid cuts.

It is not only members of the legal profession who have spoken out against the reforms. Lord Bach, for example, criticised the reforms, stating that they “attacked the poorest and most disadvantaged”, while Lord Neuberger went a step further, indicating that the reforms could lead to an increase in vigilantism. The logic of this argument is that if only the rich are able to avail of the justice of the courts themselves, then the poor may seek justice by other means, including perhaps by their own hands.

A Policy in Conflict with Human Rights

In addition to the legal aid reforms, there have been other policy changes intended to discourage people from seeking legal aid, such as the measure introduced in July 2013 allowing the government to seize the assets of legal aid recipients if they fail to win in court. It may well seem to some defendants that they will be damned if they do seek assistance and damned if they don’t. Ultimately, this austerity measure means that individuals can stand to lose more than just their freedom if they are convicted.

The system also fails to take into account that defendants don’t always plead against their charges. If the defendant wishes to plead guilty, he or she would still benefit from retaining the services of a lawyer to help explain to the court any mitigating circumstances that should be taken into account before sentencing is decided. Access to these services should be considered a basic human right and not a privilege.

Indeed, in the United States it is a constitutional guarantee that anyone who is unable to afford an attorney may have one appointed by the court. Britain does not provide any such assurance to her populace. In effect this means the people of Britain may be denied rights that ought to be available to them as a basic human right, not a privilege.

As a result of being both unable to obtain legal aid and unable to afford to pay solicitors fees, it is inevitable that some people will simply “fall through the cracks” due to the legal aid reforms. Fortunately however, even for those individuals all hope is not lost.

Legal Help is Still Available to Those Denied Legal Aid

An alternative option exists between self-representation and retaining a solicitor. This option is to engage legal consultants who can assist in preparing a case and provide guidance and advice to their clients. Many legal consultants offer free initial consultations, and many also operate on a “no win – no fee” basis. So even though legal aid has become much more difficult to obtain, it’s still possible to go in and fight your case with the confidence that you have a strong support team in your corner fighting alongside you and giving you strength and guidance through this challenging time.