Access to Justice
(Jersey) Law 2019
A LAW to make provision for improving access to justice by establishing a
legal aid scheme, and for connected purposes.
Adopted by the
States 1st May 2019
Sanctioned by Order of Her Majesty
in Council 8th October 2019
Registered by the Royal Court 18th
October 2019
Coming into force in accordance with
Article 23
THE
STATES,
subject to the sanction of Her Most Excellent Majesty in Council, have adopted
the following Law –
1 Interpretation
In this Law, unless the
context otherwise requires –
“applicant”
means an applicant for legal aid;
“Law Society”
has the meaning given by Article 1(1) of The Law Society of Jersey Law 2005[1];
“Legal Aid
Guidelines Advisory Committee” means the committee established under Article 6;
“Legal Aid
Guidelines” means the guidelines made under Article 7(1) or any
revisions to the Legal Aid Guidelines under Article 7(12);
“Legal Aid Scheme”
means the scheme established under Article 3;
“legal aid”
means the provision of legal services under the Legal Aid Scheme;
“legal services”
includes legal advice, legal assistance and legal representation;
“Minister”
means the Chief Minister;
“prescribed”
means prescribed by an Order made by the Minister.
2 Duty to
provide legal aid
(1) Without
prejudice to the generality of –
(a) the oath
of advocates of the Royal Court administered under Article 8(6)(a) of the Advocates and Solicitors
(Jersey) Law 1997[2] and set out in the Code of 1771[3]; or
(b) the
oath of office of solicitors of the Royal Court administered under Article 8(6)(b)
of the Advocates
and Solicitors (Jersey) Law 1997[4] and set out in Schedule 1 to that Law,
an advocate or a solicitor
is under a duty to provide legal aid to a person in accordance with this Law.
(2) A
failure by an advocate or a solicitor to provide legal aid in accordance with
paragraph (1) shall be professional misconduct and a complaint against an
advocate or a solicitor alleging professional misconduct on grounds of failure
to discharge that duty shall be made and determined under Part 3 of The Law Society of Jersey Law 2005[5].
3 Establishment
of the Legal Aid Scheme
There shall be
established in accordance with this Law, a scheme to be known as the Legal Aid Scheme,
for the provision of assistance in Jersey in a case where an individual is in
need of legal services.
4 Administration
of the Legal Aid Scheme
(1) The
Judicial Greffier shall be responsible for the administration of the Legal Aid
Scheme.
(2) Subject
to paragraph (1) and to such directions as the Judicial Greffier may from
time to time determine, the Judicial Greffier may entrust any part of the
administration of the Legal Aid Scheme to the Law Society or to such other
person as the Judicial Greffier deems appropriate, except for –
(a) the responsibility
for meeting payments under the Legal Aid Scheme; and
(b) the
requirements imposed on the Judicial Greffier under Article 16.
(3) For
the purposes of Article 3(b) of the Freedom of Information (Jersey) Law 2011[6], information in respect of the administration of the Legal Aid
Scheme held by a person to whom an entrustment is made under paragraph (2),
shall be information that is held on behalf of the Judicial Greffier.
(4) The
administration of the Legal Aid Scheme shall be carried out in accordance with
the Legal Aid Guidelines except that, notwithstanding any provision to the contrary
in this Law or Regulations or an Order made under this Law or the Legal Aid
Guidelines, the Judicial Greffier may, in exceptional circumstances, provide
legal aid to any person where the interests of justice requires it.
5 Resources
(1) The
States shall ensure that the Judicial Greffier is provided with sufficient
resources for the purpose of meeting payments under the Legal Aid Scheme.
(2) Without
prejudice to the application of the Public
Finances (Jersey) Law 2005[7] to the Judicial Greffier’s
Department, where a function is entrusted to the Law Society under Article 4(2),
the Law Society shall, to the extent of those functions, be a States aided
independent body for the purposes of Article 14 of the Comptroller and Auditor General (Jersey)
Law 2014[8].
6 Establishment
of Legal Aid Guidelines Advisory Committee
(1) There
is established a committee to be known as the Legal Aid Guidelines Advisory
Committee for the purpose of advising and assisting the Minister in making the
Legal Aid Guidelines.
(2) The
Legal Aid Guidelines Advisory Committee shall be chaired by the Judicial
Greffier who shall be a member of the Legal Aid Guidelines Advisory Committee.
(3) The
Legal Aid Guidelines Advisory Committee shall also consist of the following
members –
(a) the
Attorney General or a person nominated by the Attorney General;
(b) the most
senior officer of the Magistrate’s Court, or a person nominated by that
senior officer;
(c) the Bâtonnier or a person nominated by the Bâtonnier;
(d) the
President of the Law Society or a person nominated by the President;
(e) the
Chief Executive Officer of the Law Society or a person nominated by the Chief
Executive Officer;
(f) two
persons nominated by the Bailiff;
(g) two other
persons nominated by the Minister who are residents of Jersey and who are not members
of the States; and
(h) two members
of the States, nominated by the States.
(4) Before
nominating a person under paragraph (3), the Judicial Greffier, must first
be consulted.
(5) A
person shall be nominated under paragraph (3) for such period as may be
specified by the person who has nominated him or her.
(6) The
Legal Aid Guidelines Advisory Committee may, subject to a quorum of not less
than 7 members, meet for the conduct of business, adjourn and otherwise
regulate its procedures as it thinks fit.
(7) The
Legal Aid Guidelines Advisory Committee shall, before advising and assisting
the Minister –
(a) consult the Bailiff and Magistrate;
(b) consult such other persons as it considers
appropriate; and
(c) meet (unless it is inexpedient to do so).
(8) The
reports of the Legal Aid Guidelines Advisory Committee must be signed by not
less than 7 members of the Legal Aid Guidelines Advisory Committee.
(9) The
Legal Aid Guidelines Advisory Committee must make a report to the Minister for
the purpose of advising and assisting him or her under paragraph (1) no
later than 6 months after its establishment under that paragraph.
(10) The
States may, by Regulations, amend the members of the Legal Aid Guidelines
Advisory Committee listed in paragraph (3).
7 Legal
Aid Guidelines
(1) The
Minister shall, with the advice and assistance of the Legal Aid Guidelines
Advisory Committee, make and publish guidelines for the purpose of providing
for the administration of the Legal Aid Scheme, including providing –
(a) for the
conditions under which legal aid shall be provided in Jersey;
(b) for the
responsibility for meeting the reasonable costs of legal services under the
Legal Aid Scheme;
(c) for the
financial cost to individuals provided with legal aid; and
(d) information
regarding the Legal Aid Scheme to applicants and to advocates and solicitors
who provide legal services under the Legal Aid Scheme.
(2) Without
prejudice to the generality of paragraph (1), the Legal Aid Guidelines may
do any of the following –
(a) subject
to Article 9, specify the types of cases that may be eligible or not
eligible for legal aid;
(b) provide
for different types of cases to be dealt with in accordance with different
systems of legal aid under which –
(i) legal
services are provided by an advocate or a solicitor who is paid out of public
funds for those legal services, or
(ii) legal
services are provided by an advocate or a solicitor who is not paid out of
public funds but may receive contributions from an applicant in accordance with
the provisions made under sub-paragraphs (f), (g), (h) and (i);
(c) specify
the factors that may be relevant to providing legal aid, take into account the
circumstances in which it is appropriate to provide legal aid, and may, in
particular, set out the extent to which the factors ought to reflect the
following –
(i) the
likely cost of providing the legal services and the benefit which may be
obtained by the legal services being provided,
(ii) the
appropriateness of applying available resources to provide the legal services,
having regard to present and likely future demands for the provision of legal
services,
(iii) the
importance to an individual of the matters in relation to which the legal
services would be provided,
(iv) the
nature and seriousness of the act, circumstances or other matter in relation to
which the legal services are sought,
(v) the
availability to an individual of legal services provided and the likelihood of
the individual being able to make use of such legal services,
(vi) if
the legal services are sought by an individual in relation to a dispute, the
individual’s prospects of success in the dispute,
(vii) the
conduct of an individual in connection with legal services made available or in
connection with an application for such legal services,
(viii) the
conduct of an individual in connection with any legal proceedings or other
proceedings for resolving disputes about legal rights or duties,
(ix) the
public interest, and
(x) an
individual’s residential status, length of residency, or other connection
with Jersey;
(d) set
out the system for determining whether legal aid is provided, including
provisions in respect of –
(i) obtaining
legal opinions, and such other advice as is required to make a determination,
(ii) making
provision for the involvement of the Bâtonnier,
the Law Society, its employees, or any of its officers in the exercise of
functions under this Law, and
(iii) obtaining
of an advocate or a solicitor, whether by a system of compulsory assignment of
an advocate or a solicitor, or otherwise providing legal representation where
an applicant is unable to obtain legal representation;
(e) establish
financial eligibility criteria by reference to income and capital, including
that of the applicant’s household;
(f) make
provision for determining whether a case falls within a class for which the advocate
or solicitor must be paid by the Judicial Greffier for the provision of legal
services;
(g) make
provision for determining the rates and amounts of payments for the provision
of legal aid,
(h) make
provision for the criteria for the payment of financial contributions by persons
eligible for legal aid to –
(i) their
advocate or solicitor, or
(ii) the
Judicial Greffier;
(i) make
provision for limiting financial contributions under sub-paragraph (h) to –
(a) a maximum specific
payment; or
(b) a maximum periodic
payment and for limiting the length of time for which periodic payments are to
be made;
(j) make
provision in respect of procedures for billing persons provided with legal aid,
and the recovery of amounts unpaid;
(k) make
provision for legal aid to be conditional on an arbitration agreement (within
the meaning given by Article 1 of the Arbitration (Jersey)
Law 1998[9]) that disputes as to fees payable for work done shall be subject to
arbitration and for the form of that arbitration;
(l) set
out the duties of advocates and solicitors in respect of work undertaken in
respect of legal aid and for the provision of legal services and other
assistance in the administration of the legal aid scheme;
(m) provide for
the establishment and maintenance of panels of advocates or solicitors, or
both, to undertake particular categories of work;
(n) provide
for the waiver of contributions to legal aid, whether payable to the advocate
or solicitor or in respect of public funds provided by the States, on the grounds
of hardship arising from a change in financial circumstances since the legal
services were provided;
(o) provide
for the review, revocation and revision of grants of legal aid;
(p) impose
requirements for an applicant to provide information to the Judicial Greffier;
(q) impose
requirements for an applicant to co-operate with the advocates or solicitors providing
legal services under this Law, and impose requirements as to the conduct of the
applicant in respect of claims supported by legal aid;
(r) impose
conditions for the renewal of applications;
(s) impose
conditions for the making of payments whether directly or by way of the advocate
or solicitor assigned to the client for the purposes of meeting disbursements,
such as the obtaining of records or payment of expert witnesses;
(t) set
out conditions whereby amounts paid under the Legal Aid Scheme for the benefit
of an applicant will be recoverable under Article 10(3);
(u) provide
for any matters of procedure to be specified by a practice direction published
by the Judicial Greffier.
(3) The
Legal Aid Guidelines may do any of the following –
(a) make
different provisions, both in terms of the tests for eligibility and the
procedures to be followed, depending on when in the course of litigation an
application is made;
(b) make
particular provision (which may include the complete exclusion from
eligibility) in respect of companies, partnerships and claims brought in
respect of businesses;
(c) provide
for such other matters as are necessary or expedient.
(4) In
preparing the Legal Aid Guidelines, the Minister shall publish the
Minister’s proposals and seek representations from the public.
(5) The
manner in which –
(a) the
Minister’s proposal for the Legal Aid Guidelines shall be published; and
(b) representations
may be provided by members of the public,
shall be prescribed.
(6) The
Minister shall consider the representations that he or she has received in
preparing the Legal Aid Guidelines.
(7) If
the Minister makes Legal Aid Guidelines, before publishing the Legal Aid
Guidelines –
(a) the
Minister shall lay the Legal Aid Guidelines before the States;
(b) the
Minister shall, in the Legal Aid Guidelines, specify the date that they are to take
effect, being at least 4 weeks after they are laid before the States.
(8) A
member of the States may, within 4 weeks after the Legal Aid Guidelines
are laid before the States under paragraph (7), lodge a proposition
requesting that the States annul them.
(9) The
Legal Aid Guidelines shall not come into effect during any period within which
a proposition requesting their annulment under paragraph (8) is
outstanding.
(10) If
the proposition requesting that the States annul the Legal Aid Guidelines under
paragraph (8) –
(a) is approved
by the States, the Legal Aid Guidelines shall be annulled and shall not come
into effect; or
(b) is
withdrawn, the Legal Aid Guidelines shall come into effect on the date
specified in the Legal Aid Guidelines and shall be published in a way that
makes them available to the public..
(11) The
Minister may at any time revoke any Legal Aid Guidelines published under this
Article.
(12) The
Minister may, from time to time, revise the Legal Aid Guidelines made under this
Article and a reference to the Legal Aid Guidelines includes a reference
to the revised Legal Aid Guidelines.
8 Transfer of cases
(1) The
Legal Aid Guidelines may provide for the transfer of different types of cases
between the different systems of legal aid referred to in Article 7(2)(b).
(2) Without
prejudice to the generality of paragraph (1), the Legal Aid Guidelines
may, in particular, provide for the transfer of cases in respect of legal
services referred to in Article 7(2)(b)(ii) if there are insufficient
advocates or solicitors to support the system of legal aid under which those
legal services are provided.
9 Exceptional
circumstances
The Legal Aid Guidelines
must make provision for legal aid to be provided in exceptional circumstances which
shall include cases in respect of which compliance with –
(a) the
Human Rights (Jersey) Law 2000[10] or any other enactment;
(b) obligations
arising under Article 2 of the European
Union (Jersey) Law 1973[11]; or
(c) obligations
arising under international obligations,
makes it necessary that
such legal aid be provided.
10 Contributions
(1) Where
funding for legal aid is by way of public funds, the Judicial Greffier may, in
accordance with the Legal Aid Guidelines, determine that such funding shall be
subject to contributions by the individual provided with such legal aid.
(2) An
individual provided with legal aid shall not raise any issue of law or fact as
regards the duty to pay contributions if it concerns an issue that could have
been raised under appeal rights given by Regulations made under Article 17.
(3) Contributions
recoverable from an individual provided with legal aid under this Law shall be
recoverable as a civil debt by the Treasurer of the States.
(4) The
determination by the Judicial Greffier of contributions, and a certificate by
the Judicial Greffier of amounts payable shall be sufficient evidence of the
civil debt referred to in paragraph (3).
11 Conditional
fee agreement
(1) Notwithstanding
any other rule of law to the contrary, an advocate or solicitor may enter into
a conditional fee agreement with any person.
(2) The
Minister may by Order make provision in respect of conditional fee agreements
entered into under paragraph (1).
(3) An
Order made under paragraph (2) may prescribe –
(a) the
form of a conditional fee agreement;
(b) the
types of cases that may be subject to a conditional fee agreement;
(c) the
conditions applicable to a conditional fee agreement.
(4) A
conditional fee agreement entered into under paragraph (1) shall not provide
for a success fee.
(5) For
the purposes of this Article –
(a) a
conditional fee agreement is an agreement with a person providing legal services
which provides for his or her fees and expenses, or any part of them, to
be payable only in specified circumstances; and
(b) a conditional fee
agreement provides for a success fee if it provides for the amount of any fees
to which it applies to be increased in specified circumstances above the amount
which would otherwise be payable.
12 Restriction
on disclosure of information
(1) Information
received by any person in connection with the person’s functions or any
other person’s functions under this Law shall not be disclosed by that
person except –
(a) to
another person acting in the execution of this Law so far as may be necessary
for the proper discharge of the functions of that person under this Law;
(b) as
may be required for any purpose prescribed;
(c) for
the purposes or in the course of any legal proceedings.
(2) Any
person who discloses information in contravention of paragraph (1) shall
be guilty of an offence and liable to a fine.
(3) It
is a defence for a person charged with an offence under this Article to
prove that he reasonably believed –
(a) that the disclosure was lawful; or
(b) that the information had already lawfully
been made available to the public.
13 Legal professional
privilege
(1) For
the purpose of determining if legal professional privilege applies, any
information provided by an applicant to any person for the purpose of determining
entitlement to legal aid shall be treated as if it had been provided in a
client and lawyer relationship.
(2) It
shall not be a breach of legal professional privilege for an applicant’s
advocate or solicitor to provide otherwise privileged information to a person
carrying on a function under this Law.
(3) Paragraph (2)
shall apply at any time during the client and lawyer relationship and after the
end of such a relationship.
14 Protection from liability
for damages, costs and loss
(1) This
Article applies to any person who carries out a function under this Law (including
any person who assists in carrying out a function under this Law or carries out
a function under an entrustment pursuant to Article 4(2)) other than a
person carrying out a professional obligation in a client and lawyer
relationship.
(2) Subject to paragraph (3), a person to
whom this Article applies shall not be liable –
(a) in
damages;
(b) for consequential loss;
or
(c) for costs in legal proceedings,
in respect of any act done
in the discharge or purported discharge of that person’s functions under,
or authorized by or under, this Law unless it is shown that the act was done in
bad faith.
(3) Paragraph (2)
shall not apply so as to prevent an award of damages made in respect of an act on
the ground that the act was unlawful as a result of Article 7(1) of the Human Rights (Jersey)
Law 2000[12].
(4) The Minister may by
Order exclude any type of damages, costs or consequential loss from the
application of this Article.
15 Annual report and
other reports
(1) The
Judicial Greffier shall prepare an annual report in respect of the Legal Aid
Scheme and provide the report to the Minister as soon as reasonably practicable
(and in any case no later than 4 months) after the end of the financial year
to which the report relates.
(2) An
annual report referred to in paragraph (1), shall contain such matters as
the Minister may require.
(3) The
Judicial Greffier may, on his or her own motion or at the request of the
Minister, provide an interim report, or a report on specific matters arising in
respect of the Legal Aid Scheme, to the Minister.
(4) The
Judicial Greffier shall use his or her best endeavours to exclude from a report
referred to in paragraph (1) or (3), any matter relating to a person mentioned,
or identifiable from information contained in, the report if the Judicial
Greffier considers that the publication of such matter would or might seriously
and prejudicially affect the person’s privacy, reputation or commercial
interests, unless –
(a) the person has
consented, prior to the provision of the report, to publication of the matter
in the report; or
(b) the Judicial Greffier considers that the importance of the public interest in the matter
outweighs the effect of publication on the person’s privacy, reputation
or commercial interests.
(5) The
Minister shall present an annual report or interim report provided under
paragraph (1) or (3) to the States as soon as is reasonably practicable.
16 Rules of Court
The power to make Rules
of Court under the Royal Court (Jersey) Law 1948[13] shall include a power to make Rules for the purposes of this Law.
17 Regulations
(1) The
States may by Regulations make any provision as the States think fit for the
purposes of carrying this Law into effect.
(2) Without
limiting the generality of paragraph (1), Regulations made under this Law
may –
(a) provide
for appeals to a court or tribunal against decisions made pursuant to this Law;
(b) modify
the application, in relation to an appeal under the Regulations, of a Law
relating to the conduct of appeals by a body or tribunal to which an appeal
under the Regulations may be made;
(c) provide
for recovery of the amount paid or awarded for legal aid;
(d) provide
for administrative expenses to be payable to members of a body or tribunal
referred to in sub-paragraph (a) or (b);
(e) create
offences for contravention of the Regulations and specify penalties for such
offences not exceeding imprisonment for 2 years and a fine;
(f) amend
Articles, 4, 5(2), 6, 7(4) to (11), 8, 10, 11, 12 and 15;
(g) make
such consequential, incidental, supplementary and transitional provisions as
may appear to be necessary or expedient, including provisions making amendments
to any other enactment as appear to the States to be expedient –
(i) for
the general purposes, or any particular purpose, of this Law,
(ii) in
consequence of any provision made by or under this Law, or
(iii) for
giving full effect to this Law or any provision of it.
18 Orders
(1) The
Minister may by Order prescribe any matter which is to be prescribed under this
Law.
(2) An
Order made under this Law may make different provisions for different cases and
contain such incidental, supplemental and transitional provisions as appear to
the Minister to be necessary or expedient.
(3) The
Minister shall consult the Judicial Greffier and the Law Society before making
any Order under this Law.
19 Costs in Criminal
Cases (Jersey) Law 1961 amended
In Article 6 of the
Costs in Criminal Cases (Jersey) Law 1961[14], after the words “out of public funds” there shall be
inserted the words “or by the defendant”.
20 Extradition
(Jersey) Law 2004 amended
In the Extradition (Jersey)
Law 2004[15] –
(a) in
Article 14(4) –
(i) after
the words “Article 2 of the Costs in Criminal Cases (Jersey)
Law 1961” there shall be inserted the words “and the
Regulations made under Article 6 of that Law”,
(ii) in
sub-paragraph (a), after the words “that other Law” there
shall be inserted the words “and Regulations made under Article 6 of
that other Law”,
(iii) in
sub-paragraph (b), after the words “that other Law” there
shall be inserted the words “and Regulations made under Article 6 of
that other Law”;
(b) for
Article 50 there shall be substituted the following Article –
“50 Costs on appeal to Royal
Court
On any appeal under this Part, Article 3 of the Costs in Criminal
Cases (Jersey) Law 1961[16] and Regulations made under Article 6 of that Law shall apply
as if the references in that Law and Regulations made under Article 6 of
that Law to a conviction, or a sentence, were references to an order that the
person be extradited under this Law.”;
(c) in
Schedule 2 –
(i) in
paragraph 1(4) –
(A) after the words
“Article 2 of the Costs in Criminal Cases (Jersey) Law 1961”
there shall be inserted the words “and Regulations made under Article 6
of that Law”,
(B) in clause (a),
after the words “that other Law” there shall be inserted the words
“and Regulations made under Article 6 of that other Law”,
(C) in clause (b),
after the words “that other Law” there shall be inserted the words
“and Regulations made under Article 6 of that other Law”,
(ii) for
paragraph 35 there shall be substituted the following paragraph –
“35 Costs on appeal to Royal
Court
On any appeal to the Royal Court under this Schedule, Article 3
of the Costs in Criminal Cases (Jersey) Law 1961[17] and Regulations made under Article 6 of that Law shall apply
as if the references in that Law and Regulations made under Article 6 of
that Law to a conviction, or a sentence, were references to an order that the
person be extradited under this Law.”.
21 Magistrate’s
Court (Miscellaneous Provisions) (Jersey) Law 1949 amended
In the Magistrate’s Court
(Miscellaneous Provisions) (Jersey) Law 1949[18] –
(a) Article 23
shall be repealed;
(b) in
Article 26, after paragraph (3) there shall be added the following
paragraph –
“(4) Costs ordered to be paid
under this Part shall be subject to such rates or scales of payment of any
costs payable out of public funds or by the defendant as are provided for by
Regulations made under Article 6 of the Costs in Criminal Cases (Jersey)
Law 1961[19].”.
22 Police Procedures
and Criminal Evidence (Jersey) Law 2003 amended
In Article 106 of
the Police
Procedures and Criminal Evidence (Jersey) Law 2003, for paragraph (4)(c) there shall be substituted the following
sub-paragraph –
“(c) make an order as to costs
subject to such rates or scales of payment of any costs payable out of public
funds or by the defendant as are provided for by Regulations made under Article 6
of the Costs in Criminal Cases (Jersey) Law 1961[20].”.
23 Citation and
commencement
This Law may be cited as
the Access
to Justice (Jersey) Law 2019 and shall come into force on such day or days as the States may by Act appoint, and different
dates may be appointed for different provisions and different purposes of this
Law.
l.-m.
hart
Deputy Greffier of the States