Legal Aid and Human Rights

In Jersey, when someone applies for legal aid in a civil matter (ie not relating to a criminal matter), the legal aid office (effectively a Jersey lawyer plus assistants) farms out the application to a lawyer on a rota system, and that lawyer must review the matter, meet with the applicant, and provide advice on the merits of the claim (or defence to the claim, as the case may be).

That advice is for the benefit of the legal aid office, and if the conclusion is that there is an adequately-high prospect of success as compared to the sums at stake and the possible costs, the legal aid office will appoint the lawyer who provided the advice to represent the applicant. Lawyers are required to produce the advice for free, and if appointed after a positive advice is delivered, will very often be required to work for free until the completion of the matter.

The amount they can charge to the legally-aided client depends on the financial circumstances of the applicant, but in all cases, the lawyer’s legal aid fees will be lower than those he or she would ordinarily charge a non-legal aid client. Matters can run for years, and require tens, if not hundreds, of hours of work by the lawyer.

Why, then, would any lawyer provide a positive opinion? Does the system not set up a conflict between the lawyer’s own self-interest and that of the applicant for legal aid?

The Royal Court has recently had cause to consider whether this system is fair to those applying for legal aid. In Holmes v Law Society of Jersey [2018]JRC010, Mr Holmes sought to challenge a number of the decisions of the legal aid office which saw his applications for legal aid declined. Mr Holmes contended that as well as specific decisions which were wrong, the system of administering legal aid breached his human rights.

The Court noted that the provision of a legal aid system that complies with Article 6 of the European Convention of Human Rights (concerning the right to a fair trial) is the obligation of the state. But in order to discharge that obligation, the state is not required to administer legal aid itself. The Court found that the manner by which legal aid is offered and administered in Jersey did not breach the ECHR unless that manner actually caused prejudice to Mr Holmes’ right to a fair trial and the manner was inherently or systemically unfair.

If there is any unfairness, so the Court found, it was the advocate appointed to represent the legally aided person for free who was the victim of unfairness and therefore had the right to bring the challenge. The Court found that the method of deciding whether to grant legal aid, although dependent on the opinion of an advocate who might encounter a conflict, was not systemically flawed. Advocates owed professional duties and could generally be relied upon to discharge those duties properly and without advantaging themselves. If some lawyers on occasion did not meet the standards of integrity expected, this was not a systemic flaw of the legal aid system.

As a lawyer, it is gratifying to read that the Court (in this case the Deputy Bailiff, Tim Le Cocq), has faith in the professional integrity of the lawyers appearing before it. Over recent years, the Royal Court has been swift to criticise lawyers, often in the context of the difficult (and arguably human rights non-compliant) obligation of providing advice and representation for free under the legal aid scheme. Nonetheless, this judgment will give the community cause for concern as it sanctions the system that asks a lawyer effectively to determine whether or not they must act for free.

The legal aid system in Jersey is due a significant overhaul to ensure that the perception which caused Mr Holmes to bring his systemic challenge does not persist. As well as actually being done, justice must be seen to be done.

This will be of no comfort to a person denied legal aid, in their view, incorrectly. However, one interesting point to come out of the case is that the Royal Court appeared to accept that the decisions of the legal aid office were subject to the judicial review jurisdiction. This is a type of (public law) claim in which a decision that can be said to rest with the state can be reviewed.

The Court confirmed in the Holmes case that judicial review proceedings must be brought swiftly, and ordinarily within three months of the decision complained of. What is not clear is how a person deprived of legal aid can then bring the judicial review proceedings. Mr Holmes did so without the assistance of a lawyer, so it is possible. But this is itself another potential flaw in the present legal aid system.