In September this year, Jason Roberts faced the daunting prospect that his lawyers may withdraw from his case due to a funding crisis. Roberts, fighting to prove his innocence from lifetime imprisonment for murder in 1998, has relied on Legal Aid funding to pay his legal costs. But his lawyer, anticipated that his case may come to a sudden stop as restrictions on Legal Aid funding are making it almost impossible for this case to continue.
This is just one example of the impact of cuts to Legal Aid Funding. At Gallant Law, we believe in access to justice for everyone. We recognise that our legal system is complex and convoluted, especially for those unfamiliar with it. Without legal assistance, an accused person becomes frighteningly more vulnerable to a guilty verdict. Difficulties in understanding legal terminology, unfamiliarity with court procedures and inferior defence skills are just some of the issues an accused faces without legal representation.
In fact, according to Victoria’s Sentencing Advisory Council, Victoria’s prison population has nearly doubled in recent years and recidivism rate is almost 45%. While not always the case, there is strong evidence to suggest that those without legal representation are faced with much harsher penalties– including an untruthful verdict– and jail time than they would receive if they had a lawyer.
Currently, if you have a legal problem but are unable to afford a lawyer, you can apply to Legal Aid for a grant of legal assistance. If your grant is successful, Legal Aid will pay for a lawyer to run your case for you. If not, Legal Aid may be able to assist you by offering free legal advice or referring you to a lawyer.
Unfortunately, securing Legal Aid funding is extremely unlikely for most people. Eligibility is determined by three tests: the means, applicable guidelines and merits tests. Because Legal Aid’s funding is low, assistance is generally only provided to those who are struggling the most. This means that if you are struggling financially, you may not be struggling enough to qualify for a grant of legal assistance. This completely ignores the fact that legal fees can be particularly expensive.
Even if you receive a grant of legal assistance, you may be required to pay some or all of Legal Aid’s costs in running your case. Some cases have a ‘cost ceiling’, meaning there is a limit to how much money is available for them. If your matter reaches the cost ceiling, you will either have to finish the case without Legal Aid’s assistance or apply for further help.
For more information regarding Legal Aid Funding, visit https://www.legalaid.vic.gov.au/get-legal-services-and-advice/free-legal-advice
So what happens to those who don’t qualify for a grant of legal assistance, but are unable to afford a lawyer?
For many persons, the answer is self-representation. But forcing people into self-representation often results in more severe penalties than would have applied had the accused had a legal professional defending them.
Not only that, but the increase in self-representing persons increases the workload of an already overburdened criminal justice system and its magistrates. Since 2012, the caseload in the Victorian Magistrates’ Court has increased from 100,000 to 500,000, while the number of magistrates has barely risen. Oftentimes in these cases, the accused are self-representing.
When self-represented persons appear in court, a magistrate spends more time explaining legal procedures and their decisions than they would to a legal professional. Magistrates often adjourn matters and encourage self-representing persons to seek legal representation before proceeding. A prominent example is Magistrate Spencer in Dandenong who, on a work day in November last year saw approximately 80 cases. Before lunchtime, Magistrate Spencer had seen nine persons without legal representation.
Clearly, cuts to Legal Aid Funding are detrimental to the entire legal system, from the accused to the Magistrate. The funding gap between those eligible for assistance and those able to afford legal representation is huge, and fails to recognise the cost of legal fees and the increased risk an accused incurs of a guilty verdict when forced into self-representation.
At Gallant Law, we believe in access to justice for all, not just those who can afford legal representation. Cuts to Legal Aid Funding significantly limit access to justice fail to give litigants a fair trial and ultimately, increase the risk of an unfair jail sentence.
As always, if you are seeking legal advice regarding a criminal matter, Gallant Law can assist you through this difficult time on 03 8374 7657.