Access to Justice: The Problem with Crowdfunding…

21 Nov 2018 | 5 min read

In the space of 5 years, spending on legal aid has shrunk by more than £1billion in the UK. By the autumn of 2019, the Ministry of Justice will have seen cuts to its budget of 40%. [1]When this number is quantified in terms of people eligible to make use of this service, The Guardian reported that this number has shrunk from 573,737 to 140,091. With government cuts contracting the scope of this service by 75%, it has become increasingly difficult for the most needy to gain legal representation under a public framework.

These cuts have aroused widespread denunciation from the legal community. Whilst the government maintains that these budgetary restrictions were put in place to detract from a “litigative society”, designed to encourage people to treat the courts as a last resort, these cuts have hit more deeply. This has resulted in what Amnesty International describe as a “two tier legal system” that discriminates against society’s most vulnerable despite government claims that cuts would only affect 2% of cases[2]. Whilst access to wealth has long been a defined an individual’s capacity to instruct council, these cuts have particularly impacted the most helpless and marginalised. For instance, legal aid has been withdrawn from all child cases and legal areas including: private family law, immigration and welfare benefits. The withdrawal of funds in these areas will deeply impact the efficacy of social equality as the poorest are forced to exist without the protection of civil justice, or the opportunity to receive legal aid.

As the Ministry of Justice has seen a downward trend in its funding, crowdfunding has arisen as one alternative funding source. Crowdfunding connects litigants with sponsors who are prepared to contribute funds to cases even though they have no pre-existing interest in the litigation. This is a model which has found some success and popularity in software development and investment circles typically emerging in the USA. The question is: is this a credible and sustainable model for providing legal support in the UK?  In this article we discuss the potential implications of crowdfunding as a funding component for the UK justice system and discuss whether—as a last resort— private investors should be picking up the pieces of a broken system?

In order to capture attention and investment, candidates must cultivate a “pitch” to describe their case to users. The reasons for this are twofold: first, this pitch provides insight into the specifics of a case to help explain the financial need and win support; second these pitches also lever an engaged audience who is emotionally invested in the outcome of their case. This is problematic for a number of reasons. It goes without saying that humans will naturally gravitate towards a certain type and quality of case; for instance, those accused of criminal activity may never secure the private funding necessary to help them secure representation. More gravely, this has profound implications for our justice system. If a system of selective funding was realised via Crowdfunding networks, “trial by public opinion”, could replace due legal process as potential investors come to their own conclusions of innocence and guilt, or blockade cases from receiving a fair trial or proper representation by constraining financial opportunity.

Crowdfunding also raises important questions surrounding the boundaries of Privilege. While it is given that a client must share some information about a case to convince potential donors, where should the line be drawn? Some commentators have suggested that investors should be updated throughout the trial to secure recurring funding if necessary. However, a necessity for transparency may raise difficulties and compromise the ability of the court to perform its duties with neutrality. This is particularly true if courts are bound by: non-disclosure agreements; out of court settlements or; involve minors or vulnerable people who must remain anonymous. How much do litigants owe their investors?  Similarly, should those seeking funding credibly certify that a case has a reasonable chance of success before involving private investors? Another potential blockade in the pursuit of legal representation, persuading private investors of the worthiness of any given case undermines our right to a fair trial, and access to the courts. If a claim is quashed before it ever receives a hearing due to a negative success rate there is little to suggest that justice will ever be realised for that individual.

While the ethics of crowdfunding remain foggy, there is certainly a case for an alternate source of funding in the UK specifically for those who are unable to make use of rapidly diminishing Legal Aid services. The growing popularity of these platforms attest their increasing importance. Cultivating a crowd is one significant benefit of crowdfunding that, with time, will likely have broader implications for legal aid spending. These “crowds” may even prove influential in mobilising louder public critique of government cuts to legal aid.

Although, crowdfunding is a far cry from the perfect system, in our current political climate the alternative of a section of society losing access to representation is much more grave.

 

 

[1] The Guardian “Cuts to legal aid and courts make a mockery of access to justice”: https://www.theguardian.com/law/2018/aug/17/cuts-to-legal-aid-and-courts-make-a-mockery-of-equal-access-to-justice

[2] Financial Times, UK court overturns government cuts to legal aid fees for solicitors: https://www.ft.com/content/6a1bedcc-9707-11e8-b747-fb1e803ee64e

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