Overview
A brief overview of the proposed Legal Aid Guidelines, identifying changes from the current system. To be read in conjunction with the full Guidelines, available within R.191/2021.
Introduction
The current legal aid scheme is administered by the Law Society of Jersey and, unlike elsewhere in the British Isles, legal aid in Jersey is not currently publicly funded except in certain cases (e.g. Public Law children's cases) and is dependent on the professional obligation of lawyers. All Jersey advocates and solicitors ("Lawyers") of less than 15 years call are required to participate in the scheme. Legal aid is allocated on a rota basis from the list of participating lawyers known as the "Tour de Role".
The Access to Justice (Jersey) Law 2019 provided a statutory basis for the legal aid scheme in Jersey and the establishment of a Legal Aid Guidelines Advisory Committee to consider and consult on the legal aid scheme and develop new guidelines.
The Access to Justice (Jersey) Law 2019 (Appointed Day) Act 2021 brought Articles 1,6,7,8 and 9 into effect with the remaining Articles (other than Article 11) to come into effect on the day on which the first Legal Aid Guidelines published by the Chief Minister come into effect. The Chief Minister lodged R.191/2021 "Publication of Legal Aid Guidelines" (the "Guidelines") on 23rd December 2021 – with the Guidelines intended to be in place from 1st April 2022.
This paper provides a brief overview of the Guidelines but should be read in conjunction with the full guidelines as set out in Appendix 1 of R.191/2021 which provide further explanations (e.g. of the different areas/types of law), definitions (e.g. income and capital) and details of any exemptions.
Administration of Legal Aid
In accordance with the 2019 Law the Judicial Greffier will, for the first time, be responsible for the administration of the scheme. In essence the day-to-day administration of legal aid will not change but additional funding will be provided to assist in the centralisation of legal aid and provision of more resources.
Funding of Legal Aid
| Type of Law | Current | Proposed |
|---|---|---|
|
Public/Criminal Law |
Provided at the cost of the legal profession, albeit that public funding is presently available for public law children’s cases and for allocation by the Judicial Greffier in certain other onerous cases (where the provision of legal aid is likely to cause significant hardship to a lawyer). |
Publicly funded on a fixed fee/tariff basis for eligible representation. No personal contributions will be required Payment will be made for representation in all cases. |
|
Private Law |
Provided at the cost of the legal profession, with no public contribution. Lawyers provide representation based on the “Tour de Role”. |
Funded by the legal profession, with no public contribution. Lawyers will continue to provide representation based on the “Tour de Role” but no longer for criminal matters. |
Eligibility Criteria
Applicants for legal aid are required to meet certain criteria which vary depending on the area/type of law involved.
The Judicial Greffier will have a discretion to provide legal aid in exceptional circumstances to any person where the interests of justice require it (R.191/2021).
Financial
If an applicant exceeds either the capital or income financial limit then they will not be eligible for legal aid, although applicants who are only in receipt of Income Support are deemed to have met this test.
- Income – will now be assessed for an INDIVIDUAL not a household (as currently).
- Capital – will now be assessed for an INDIVIDUAL not a household (as currently) and includes equity in a property.
- New Thresholds – the Legal Aid limits will be adjusted in line with the Average Earnings Report issued annually in July.
| Type of Law | Capital Limit (Individual) | Income Limit (Individual) |
|---|---|---|
| Public Law (Criminal/Human Rights) | £48,000 | £48,000 |
| Private Law (Family/Civil Matters) | £48,000 | £32,000 |
- Financial eligibility does not apply in relation to criminal matters in the Youth Court or in relation to Public Law Children, Mental Health and Capacity. representation.
- Personal Contributions – will be payable ONLY in Private Law matters where income exceeds £20,000. There is a scale for contributions with a maximum of 30% of the Legal Aid rate and a limit of £100 per month that an individual will be asked to pay.
Residency
- Residency will ONLY be applicable in Private Law matters where an applicant is required to have been ordinarily resident in Jersey for a period of no less than 12 months immediately prior to the application for legal aid and is registered with social security.
- Residency will, therefore, no longer be applicable in criminal matters.
Aspect of Law
Eligibility for legal aid differs depending on the nature of Public Law matter or criminal offence and the area of Private Law – for example, the following matters are not eligible for legal aid:
- Corporate and business activities.
- Minor motor-related and criminal offences (where the maximum available sentence is a fine at Level 2 on the Standard Scale of Fines).
- Certain family matters where there are no dependent children.
Choice of Representation
Private Law
Lawyers will continue to be allocated under the "Tour de Role" basis.
Public Law
- Panels will be established for Public Law matters (Criminal, Mental Health and Public Law Children) from lawyers specialising in these areas.
- In criminal matters clients will be able to choose their legal representation from the specialist Criminal Law Panel.
Further Reading
- Legal Aid In Jersey - Analysis of Proposed Changes to Scheme (The Law Society of Jersey website)
- Scrutiny Panel welcomes updated Legal Aid Guidelines