*/
The exceptional case fee funding “safety net” is not fit for purpose and fewer people have access to free legal representation than since legal aid was introduced in 1949, the Bar Council has claimed.
A Bar Council report, LASPO: One Year On, examined the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in its first year of implementation.
It highlights that whilst the Ministry of Justice estimated that 5,000-7,000 applications a year would be made for legal aid in “exceptional circumstances”, and that the majority of these would be granted, only 57 of just 1,519 applications for exceptional funding made between April 2013 and March 2014 were successful. Of the 57 granted, 42 were for inquests, only eight for family law and four for immigration cases. “Individuals dealing with life-changing legal issues are denied fair access to justice if they cannot afford it,” said Nicholas Lavender QC, Chairman of the Bar Council. “A rise in self-representation is clogging the courts and creating additional costs to the tax payer, free frontline legal advisers are creaking under the strain, pro bono lawyers cannot cope with the demand, and the safety net the Government created for providing legal aid in ‘exceptional cases’ is not fit for purpose,” he added.
The Bar Council called on the Government to change the criteria for funding cases to include cases of “significant wider public interest” and of “overwhelming importance to the client” and to provide funding for initial specialist legal advice and assistance.
The Justice Select Committee’s LASPO Inquiry on 2 September, meanwhile, heard further evidence on the plight of litigants in person in the family justice system. David Emmerson, a district judge, family law partner and mediator, argued that the exceptional fee funding process was unfair, particularly for the most vulnerable. “They’re setting the bar too high… the form itself is almost 30 pages long and you need a doctorate in law to complete it… [in] informal discussions… the Legal Aid Agency [has] almost agreed that if a litigant in person is able to complete that form, they’re almost able to show that they can represent themselves… it’s self-defeating,” he said.
Family Law Bar Association Chair Susan Jacklin QC told the Committee that litigants in person go to court “without the benefit of having had any advice whatsoever... they don’t understand what the effective issues are, they don’t understand what the necessary evidence is and so judges have to spend far too long trying to understand what the case is about”. This puts the judge “in the position of being adviser... and that really does dilute the justice process…[and] adds to the time in court,” she added. Many young barristers representing clients in court had reported to the FLBA that they felt the outcome was not fair for the non-represented parent. “They were very conscious of the fact that they were able to put forward their own client’s case in a very focused and effective way and no matter how good the judge is, especially with a long list, he will be beguiled by the best argument and the most focused case,” she said.
It highlights that whilst the Ministry of Justice estimated that 5,000-7,000 applications a year would be made for legal aid in “exceptional circumstances”, and that the majority of these would be granted, only 57 of just 1,519 applications for exceptional funding made between April 2013 and March 2014 were successful. Of the 57 granted, 42 were for inquests, only eight for family law and four for immigration cases. “Individuals dealing with life-changing legal issues are denied fair access to justice if they cannot afford it,” said Nicholas Lavender QC, Chairman of the Bar Council. “A rise in self-representation is clogging the courts and creating additional costs to the tax payer, free frontline legal advisers are creaking under the strain, pro bono lawyers cannot cope with the demand, and the safety net the Government created for providing legal aid in ‘exceptional cases’ is not fit for purpose,” he added.
The Bar Council called on the Government to change the criteria for funding cases to include cases of “significant wider public interest” and of “overwhelming importance to the client” and to provide funding for initial specialist legal advice and assistance.
The Justice Select Committee’s LASPO Inquiry on 2 September, meanwhile, heard further evidence on the plight of litigants in person in the family justice system. David Emmerson, a district judge, family law partner and mediator, argued that the exceptional fee funding process was unfair, particularly for the most vulnerable. “They’re setting the bar too high… the form itself is almost 30 pages long and you need a doctorate in law to complete it… [in] informal discussions… the Legal Aid Agency [has] almost agreed that if a litigant in person is able to complete that form, they’re almost able to show that they can represent themselves… it’s self-defeating,” he said.
Family Law Bar Association Chair Susan Jacklin QC told the Committee that litigants in person go to court “without the benefit of having had any advice whatsoever... they don’t understand what the effective issues are, they don’t understand what the necessary evidence is and so judges have to spend far too long trying to understand what the case is about”. This puts the judge “in the position of being adviser... and that really does dilute the justice process…[and] adds to the time in court,” she added. Many young barristers representing clients in court had reported to the FLBA that they felt the outcome was not fair for the non-represented parent. “They were very conscious of the fact that they were able to put forward their own client’s case in a very focused and effective way and no matter how good the judge is, especially with a long list, he will be beguiled by the best argument and the most focused case,” she said.
The exceptional case fee funding “safety net” is not fit for purpose and fewer people have access to free legal representation than since legal aid was introduced in 1949, the Bar Council has claimed.
A Bar Council report, LASPO: One Year On, examined the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in its first year of implementation.
Chair of the Bar reflects on 2025
Q&A with criminal barrister Nick Murphy, who moved to New Park Court Chambers on the North Eastern Circuit in search of a better work-life balance
Revolt Cycling in Holborn, London’s first sustainable fitness studio, invites barristers to join the revolution – turning pedal power into clean energy
Rachel Davenport, Co-founder and Director at AlphaBiolabs, reflects on how the company’s Giving Back ethos continues to make a difference to communities across the UK
By Marie Law, Director of Toxicology at AlphaBiolabs
AlphaBiolabs has made a £500 donation to Sean’s Place, a men’s mental health charity based in Sefton, as part of its ongoing Giving Back initiative
Professor Dominic Regan and Seán Jones KC present their best buys for this holiday season
Little has changed since Burns v Burns . Cohabiting couples deserve better than to be left on the blasted heath with the existing witch’s brew for another four decades, argues Christopher Stirling
Six months of court observation at the Old Bailey: APPEAL’s Dr Nisha Waller and Tehreem Sultan report their findings on prosecution practices under joint enterprise
Despite its prevalence, autism spectrum disorder remains poorly understood in the criminal justice system. Does Alex Henry’s joint enterprise conviction expose the need to audit prisons? asks Dr Felicity Gerry KC
With automation now deeply embedded in the Department for Work Pensions, Alexander McColl and Alexa Thompson review what we know, what we don’t and avenues for legal challenge