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TitleTransforming legal aid
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LanguageEnglish
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Vicky

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Employed clients are okay, although it can take time to get their wage slips. But heaven

forbid if you have someone who is self-employed ... I think the means test has had an

impact because it has removed a significant number of people from accessing justice.

Almost at a stroke, anyone who is self-employed is not going to get legal aid because

(DE2).



Solicitors were also concerned that the bureaucratic requirements of the means test were

too onerous when they were dealing with people who lead chaotic lives, have severe mental

illness, or have little or no English. This was because a relatively simple matter such as

supplying the national insurance number can be difficult if people have forgotten their

number or if they do not have such a number. One solicitor told us:



For the means

number wrong, or it comes back from the DWP that they are no longer getting

who could be comatose after having taken a drug overdose (ER5).



It seems that the administrative requirements of the means test could have the unintended

consequence of restricting access to legal aid, particularly for vulnerable people. In

particular, clients with severe mental health problems were raised by solicitors as a matter for

concern.
114

This was the situation described by one solicitor:



We had a case where the client was so dangerous and violent that she could not be given

a writing implement and so she could not sign the form. We could not give her a pen

because the people in the cells said she was dangerous. She was in custody for two

weeks with no one doing anything, simply because she could not sign the legal aid form.

Eventually, someone at the LSC made a se


114

However, it should be noted that those reporting mental illness or learning disabilities in this study were

more likely to be legally represented. Of the 65 such respondents in the Court Sample, 91% were represented

compared to 82% in the overall Court Sample.

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so we did. After she had been in custody for two weeks it was easier because

she had no income. Access to justice for people with mental health problems is a very,

very big issue (DE2).



The Law Society (2009) has raised similar concerns with regard to people suffering with

severe mental illness. In particular, owing to strict requirements for evidence of means,

clients have been left without representation or subject to delays because of their inability to

understand the requirements of the means form or to provide coherent information or

evidence in response to the evidence requirements. In response, the Ministry of Justice made

a concession which allows another person to sign the application form on behalf of clients

who are unable to do so themselves because of their mental state.
115





It is also important to consider the role of the means test as a potential barrier to legal aid

for defendants whose first language is not English. The vulnerability of these people was

depicted in the Interim Report. In particular, of the 73 respondents in the Courts Sample

whose first language was not English, 45% said they did not fully understand what was

happening at court compared to 22% of those whose who spoke English as a first language.
116



In addition, while 83% of those who spoke English as a first language were legally

represented, only 67% of those whose first language was not English were legally

represented.
117

When asked why they did not have a solicitor in court, only two of the

respondents whose first language was not English were able to give an explanation.
118





Although it is not known if the means test presents an obstacle to legal representation for

those whose first language is not English, we can learn from the experiences of those who

require an interpreter at court. One problem arises if the police have failed to arrange for an

interpreter to attend the hearing. A solicitor remarked, ‘We often come across these cases as

duty solicitors in courts. They have an interpreter at the police station but when they are


115

In addition, where solicitors are concerned about how to meet the legal aid application requirements because

of their client’s specific mental health issues, they are encouraged to contact the National Courts Team at the

earliest opportunity so that their concerns can be addressed and possible solutions identified.
116

See Kemp and Balmer, 2008:2.
117

See Kemp and Balmer, 2008:26.
118

There were also 69 people approached in the magistrates’ courts who could not take part in this study

because they did not speak English.

Page 147

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Sommerlad, H. and Wall, D. (1999) Legally Aided Clients and their Solicitors: Qualitative

Perspectives on Quality and Legal Aid. Law Society Research Study No. 34: London.



Souza, K. and Kemp, V. (2009) Study of D M Courts:

http://lsrc.org.uk/publications.



Stephen, F., Fazio, G. and Tata, C. (2008) ‘Incentives, Criminal Defence Lawyers and Plea

Bargaining’ in International Review of Law and Economics, pages 212-219.



Stephen, F. and Tata, C. (2006) Impact of the Introduction of Fixed Payments into Summary

Criminal Legal Aid: Report of an Independent Study. Edinburgh: Scottish Executive.



Tata, C., Goriely, T., Duff, P., Henry, A. and Sherr, A. (2004) ‘Does Mode of Delivery Make

a Difference to Criminal Case Outcomes and Client’s Satisfaction?’ Criminal Law Review,

Month? 120-136.



Tata, C. (2007) ‘In the Interests of Clients or Commerce? Legal Aid, Supply, Demand, and

‘Ethical Indeterminacy’ in Criminal Defence Work’ in Journal of Law and Society, Vol. 34,

No. 4, pp. 489-519.



Treasury (2010) Treasury Minutes on the Sixth to the Ninth and the Twelfth Reports for the

Public Accounts Session 2009-2010. London: Cm7829.



Tyler, T. (2003) ‘Procedural Justice, Legitimacy and the Effective Rule of Law’, in M. Tonry

(ed.) Criminal Justice, University of Chicago Press: Chicago.



Tyler, T and Huo, Y. (2002) Trust in the Law: Encouraging public Cooperation with the

Police and the Courts. Russell Sage Foundation: New York.



Wall, D. (1996) ‘Keyholders to Criminal Justice?: Solicitors and Applications for Criminal

Legal Aid’, in R. Young and D. Wall (eds.) Access to Criminal Justice: Legal Aid, Lawyers

and the Defence of Liberty. London: Blackstone Press.

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Wilcox, A. and Young, R. (2005) Understanding the Interests of Justice: A Study of

Discretion in the Determination of Applications

Courts. Oxford: University of Oxford.



Young, R. (1996) ‘Will Widgery Do?: Court Clerks, Discretion and the Determination of

Legal Aid Applications’, in R. Young and D. Wall (eds.) Access to Criminal Justice: Legal

Aid, Lawyers and the Defence of Liberty. London: Blackstone Press.



Young, R., Moloney, T. and Sanders, A. (1992) In the Interests of Justice? The

Determination o

Wales: Report to the Legal Aid Board. Birmingham: University of Birmingham.



Young, R. and Wilcox, A. (2007) ‘The Merits of Legal Aid in the Magistrates’ Courts’, in

Criminal Law Review, 109-128.

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