Month: September 2017

The Bach Report: (6) The effect of the cuts on Legal Aid Providers

On By Henry BrookeIn BACH COMMISSIONLeave a comment

This is the fourth in the new series of blogs which will start with relevant extracts from the Bach  Commission’s Final Report. These will be followed by  the more detailed treatment I gave to the topic  in one of the chapters in Appendix Five to the Report

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

 

EXTRACT FROM THE REPORT

In person advice

In addition to online and telephone services, there are a number of organisations that provide advice in physical locations within communities. These include Citizens Advice , whose offices are situated around the UK, and law centres and legal advice practices, which have been closing at an alarming rate in recent years. Ministry of Justice research shows that the number of all not-for-profit legal advice centres fell from around 3,226 in 2005 to 1,462 by 2015. And, as we wrote in our interim report:

“More than half of the 700 who responded to the Ministry of Justice survey reported that they had client groups who they were unable to help due to lack of resources, expertise, or because they fell outside the centre’s remit.” [1]

These centres, along with other advice organisations, provide a vital service – from free information through to expert advice and representation funded by legal aid. In the context of today’s low levels of legal capability the commission is concerned by the loss of a physical place which members of the public can visit for free, initial support. For those people who do not use the internet or telephone helplines to solve their legal problems, these serve as vital signposting sites.

APPENDIX 5

CHAPTER 1 (extract)

Number of legal aid providers

Legal Help & Controlled

Legal Representation

2012-13

 2016-17

Reduction
Community Care

166

 118

48
Debt

466

 29

437
Education

33

 4

29
Employment

223

 3

220
Family

2,383

 1,399

994
Housing

646

 427

219
Immigration

240

 237

3
Mental Health

203

 178

25
Other

659

 212

447
Welfare Benefits

436

 60

376
Totals

5,455

 2,667

2,798
Civil Representation 2011-12

2016-17

 Reduction
Community Care

104

 89 15
Debt

125

40

85
Discrimination

0

 2

+2
Education

28

 13

15
Employment

27

 1

26
Family

2,816

 2,026

790
Housing

681

 449

232
Immigration

167

 93

74
Mental Health

105

 108

+3
Other

1,033

 658

375
Welfare Benefits

19

 2

17
Totals 5105 3481

1634

 

In September 2017 the Ministry of Justice published statistics that showed a decline in legal providers across all regions of the country – with Wales showing the largest drop of 29%. The figures were also high in the south-west (28%), the north-west (27%) and Merseyside (24%).

The smallest fall was 13%, in London.[2]

 

CHAPTER 13: The Effect of the Cuts on Legal Aid Providers

The reduction in the numbers of legal aid providers post-LASPO:

 

Number of Legal Aid

Providers’ Offices

 Crime Civil

2012-13

 7,015

4,173

2016-17

5,671

2,092

 

 

Number of offices of legal aid solicitors’ firms (civil)

 Legal Help

Civil Representation

2012-13

 2,732

3,315

2016-17

 1,751

2,350

 

 

Number of offices of legal aid not for profit agencies (civil)

 Legal Help

Civil Representation

2012-13

 483

145

2016-17

 253

145

 

These statistics demonstrate the way the number of solicitors’ offices providing civil legal aid services has decreased dramatically during the four years since LASPO was introduced. In contrast, although the number of not for profit agencies offering legal aid help has nearly halved during the same period, the numbers providing civil representation services in the courts have remained unchanged.

The number of offices handling legal aid criminal work has gone down by 20%.

There has been no increase in civil legal aid fees, even to allow for inflation, since the 1990s. In 2010 there was a general all-round reduction of 10%, and in April 2013 the LASPO changes came into effect, taking large areas of civil legal aid work out of scope altogether. It is therefore not surprising that many firms have given up civil legal aid altogether, and others have moved much of their capacity towards acting for privately funded clients. Two very large legal aid firms[3] have disappeared completely, and another[4] told the Commission that the funding cuts represented a huge loss to their practice as a major regional provider. They said that massive hidden costs involved their individual fee-earners undertaking huge volumes of pro bono work just so that their clients could be in a position to apply for legal aid.

The practical effect of LASPO

Adam Tear, a solicitor who had the experience of working in a firm that was very rapidly increasing in size as it bought up failing practices throughout the country[5], said that only the most efficient firms would be able to continue carrying out business lawfully, and even then they would only be making a small profit. This would never encourage external investment, and without significant investment when there is a downturn, the firms will simply fall over and cease to be effective. Currently larger firms were picking up the work, but this is expensive in cash terms, not to mention the human costs involved when a client, who may be a very vulnerable person, has to instruct a new solicitor and start building a relationship of trust all over again.

The Legal Aid Practitioners’ Group (LAPG) spoke, quite bluntly, of the lack of sustainability in civil legal aid work which had been caused by inflexible fee regimes, the LASPO cuts, too much bureaucracy, and the shortcomings of the CCMS system used by the LAA.   For criminal legal aid, the cuts had made it difficult for practices to survive, far less to be sustainable over the next ten years. Although the introduction of fixed fees was originally said to be fair on a “swings and roundabouts” approach, the fact that only complex cases remained in scope while large swathes of simpler work had been taken out of scope, made this practice unfair in the absence of any compensating increase in fees.

The Liverpool Law Society said that fewer private firms were available to provide publicly funded services. It mentioned one long established legal aid firm which had ceased to do legal aid work,[6] and said that others no longer saw legal aid work as viable, and all too often it was not.

The Mary Ward Legal Centre said that because so many firms and individual solicitors were withdrawing from legal aid practice, there had been a huge increase in demand from the remaining organisations, which were already thinly stretched. They had to turn people away even if they had a good case and qualified for legal aid, because they had no capacity to help.

Rights of Women, for its part, referred to the 20% drop in the number of civil legal aid providers between April-June 2012 and January-March 2015. It said that one of the reasons why many firms had stopped or reduced the legal aid work they took on was that the fixed fees they received were so low that the work was not financially viable for them as a business. The knock-on effect of this was that even women who were eligible for legal aid were finding it increasingly difficult to find a solicitor to represent them. 70% of respondents to a 2015 survey[7] said it was difficult (40.7%) or very difficult (34.3%) to find a legal aid solicitor in their area. 33% of respondents were having to travel between 5 and 15 miles to find a legal aid solicitor, and 23% had to travel more than 15 miles.

Both Southall Black Sisters (SBS) and the Coram Children’s Legal Centre described the unwillingness of many legal aid firms to take on asylum clients due to lack of capacity and the high probability that their client would be dispersed elsewhere in Great Britain. SBS wrote:

A particularly difficult and distressing outcome for our users who claim asylum is the fact that even when their case is taken on by a legal aid solicitor, they find themselves having to seek a new legal aid solicitor when they are dispersed to another area. As we understand it, the LAA will not cover the costs of a solicitor travelling to their client beyond a limited distance. The client is therefore expected to find a solicitor and build trust all over again with a new solicitor in her new location. The reality is that the client not only struggles to find any legal aid solicitors in their new area, but even if she does, she is forced to re-tell her story and in doing so is often re-traumatised.

In its March 2015 report[8] the House of Commons Justice Committee devoted Chapter 5 to the question of sustainability and “advice deserts” in the legal aid market and concluded:

The National Audit Office found that 14 local authority areas saw no face to face civil legal aid work at all in 2013-14 and very small numbers of cases were started in a further 39 local authority areas. We are deeply concerned that this may indicate the existence of a substantial number of “advice deserts”.

We urged the Government in 2011 to carry out research into the geographical distribution of legal aid providers to ensure sufficient provision to prevent access to justice. Not only did the Ministry of Justice failed to heed our warning, it has also failed to monitor the impact of legal aid reforms on the geographical provision of providers. We do not know for certain if there are advice deserts in England and Wales, and nor does the Ministry of Justice. This work needs to be carried out immediately because once capacity and expertise are lost the Ministry of Justice will find it difficult, and potentially expensive, to restore them. In some areas it may already be too late.

In its response[9] the Government expressed general satisfaction about the availability of civil legal aid across the country, but concluded:

“The Ministry of Justice recognises it could do more and will continue to investigate geographical variations in the take up of legal aid. To support this, three pieces of research have been commissioned and are due to report later in 2015[10]. Once the conclusions from the reports are available, the department and the Legal Aid Agency will compare this to the provision of services by area and implement any appropriate action.”

The situation has deteriorated still further in the two years since the Justice Committee’s report was published.

On the criminal side of things, in addition to the reduction in the number of criminal legal aid firms the average age of the solicitors practising in the criminal legal aid firms that remain in business is uncomfortably high, on account of the difficulties of attracting new entrants to a way of life which involves working long hours in unsatisfactory working conditions for inadequate reward. These issues are more fully explored in Chapters 11 and 14.

 

 

 

 

 

[1]The Bach Commission. (2016) The crisis in the justice system in England and Wales. Accessed September 2017: http://www.fabians.org.uk/wp-content/uploads/2016/11/Access-to-Justice_final_web.pdf

[2] Accessed September 2017: https://www.theguardian.com/law/2017/sep/19/number-of-legal-aid-providers-falls-20-in-five-years-figures-show

[3] Blakemores (the largest civil firm outside London in 2014) and Blavo & Co (the second largest civil firm in 2015). The Solicitors’ Regulation Authority intervened in the latter practice to protect its clients, saying there were grounds to suspect the firm’s principal solicitor of fraud.

[4] Ben Hoare Bell.

[5] Duncan Lewis. Founded in 1998, it now has 22 offices in London and 32 in cities outside London.

[6] Yaffe Jackson Ostrin.

[7] Rights of Women. (2015) Evidencing domestic violence nearly 3 years on. Accessed September 2017:

http://rightsofwomen.org.uk/wp-content/uploads/2014/09/Evidencing-domestic-violence-V.pdf

[8] House of Commons Justice Committee. (2015), Impact of changes to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, 4 March 2015. See fn 83 above.

[9] The Government’s response to the Justice Committee’s Eighth Report of Session 2014-15 (2015) p 12. Accessed September 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/444939/response-to-justice-committee.pdf

[10] See, for instance, Survey of Legal Advice Providers in England and Wales, Ashley Ames et al, Ministry of Justice Analytical Series, 2015. Accessed September 2017:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/485636/not-for-profit-la-providers-survey.pdf

 

Abuse, false accusations and a new website

On By Henry BrookeIn FALSE ACCUSATIONS1 Comment

Readers of these blogs will know that over the last year I have been concerned with the increase in the number of complaints that our  current arrangements for criminal justice are resulting in more people (usually men) being charged, convicted and imprisoned – with all the accompanying social stigma – for offences of sexual abuse they are adamant they did not commit. I have recently grouped what I have written about this under a new heading “False Accusations”.  It includes my review of n excellent new book on the topic.

Of course we should welcome the fact that the number of successful prosecutions has soared now that the police and prosecution authorities are learning how to handle these cases with greater sensitivity.  But we must always be vigilant about the risks created by false allegations, and to ensure that the criminal justice system is much better equipped, through training and procedural reform, and if necessary through law reform, to identify these cases and to ensure that this flow of unjust convictions is reversed. All too often I worry that over-enthusiastic campaigners forget Sir William Blackstone’s adage

“It is better that ten guilty persons escape than that one innocent suffer“.

In recent months the report of Sir Richard Henriques into Metropolitan police practice in some of these cases, together with the blistering criticisms contained in the joint report of the Police and CPS Inspectorates about service failings in the disclosure of unused evidence to the defence in Crown Court cases, suggest that some of these worries are now being taken seriously, but there is a lot more to do. I still receive a steady flow of complaints from members of the public. Often there is little I can do but sympathise.

This is why I was so pleased when Jane wrote to me out of the blue the other day. She has had experience as a primary school teacher both in this country and in the United States (where she is now based), and she told me that a large part of her work used to involve looking after the welfare of her students. This led her to become involved with cases in which students were being abused (in one way or another) outside school hours, and she quickly realised just how serious this could be. She also learned, first as a teacher and then as a counsellor, how she could help children passing though such a difficult time.

Jane is clearly not one to walk by on the other side. She is now working as the Content Manager for “On the Wagon”,  a small substance abuse campaign site. They are determined to help victims of drug abuse, and to prevent new ones, which is why she believes it is important the site covers many different aspects of the topic, including the effects of child abuse and domestic violence.  It provides information in clear, well-written terms, on the warning signs to look out for, the different types of drug abuse, and the resources available for victims and the relatives of victims.

She was keen that I should draw attention to the work she is doing, and I am happy to do so. On the basis of her experience on each side of the Atlantic she volunteered to write a piece about the effect of false accusations. Here it is. It is well worth a read.

Domestic Violence – The Detrimental Effects of False Accusation

There has been a 31% increase in reporting domestic abuse related crimes in England and Wales between 2013-2015. Anyone making false allegations of rape or domestic abuse could be charged with two offences: perverting the course of justice and wasting police time. However, prosecution for these offences is extremely rare. There is lifelong anonymity for the accuser but those on the other side face naming and shaming on every social media outlet possible. Lives are destroyed and they are left with a stigma they may never wash away.

Accusers don’t need evidence. They often don’t even have to be physically present in court. It is literally one person’s word against another and there are unfortunately many stories of injustice.

The motivation behind falsely accusing someone is of no importance. The majority of domestic violence cases being reported come from low to mid-income households. There are many who cannot afford good defence lawyers, further hindering the little chance they have to prove their innocence.

Guilty until proven innocent

The Justice system was set up so everyone remains innocent until proven guilty. With domestic violence cases, though, it seems to be the other way around. Dealing with such life changing circumstances, having to constantly defend oneself and tolerate the abuse from outsiders takes a huge toll on one’s health.

As it is, 75-90% of doctor’s visits are stress-related.  Short and long-term effects of stress include anything from losing hair, developing high blood pressure and sleeplessness; but more seriously chronic stress can result in mental health issues, heart disease and even cancer. Not to mention the high possibility of becoming suicidal just out of sheer helplessness.

Lifelong suspicion

Being wrongly accused affects the life of anyone. However, the impact on those in the trusted care profession, such as teachers, is magnified by parents going frantic, social media feeds getting out of hand, and the prospect of having to appear on national television. Their livelihood disappears. They will never be able to work in their profession. Once someone is accused, even if the court decides in their favour, the suspicion will linger on forever.

Finding a support network

There are many support groups helping those wrongly accused to find counselling and advice. Various campaigns are also going on to try and influence a change in the current legislation and have more protection for the falsely accused as well as to improve the lives of those already suffering. Campaigners believe there should be lifelong anonymity unless proven guilty.

The integrity of the police and the Crown Prosecution Service have also been questioned before. Some people wonder whether they pursue certain convictions only to enhance their target rates.

This is not to say that true victims of domestic violence and child abuse should think twice before reporting the incident to the police. No. These are serious offences and those committing such acts need to be brought to justice. It is, however, important to remember that such allegations are not to be taken lightly and false accusation is a punishable crime in itself.

 

So much of this provides an echo to the opening statement on the website of FACT, the excellent campaigning organisation which represents the interests of “Falsely Accused Carers and Teachers” over here:

 

If you have just been wrongfully accused read ‘I have been falsely accused, what happens next?’ and phone our HELPLINE on 0843 289 2016

FACT abhors abuse of children and adults whether sexual, physical or emotional. However not all allegations of abuse are true, wrongful allegations may be made for a variety of reasons and are not necessarily made maliciously. Wrongful allegations have a devastating effect on the wrongfully accused and their families. The accused can lose their reputations, their careers, their health and even their freedom. When an allegation of child abuse is made there is always a victim, either the complainant or the accused.

‘I have never visited the GP so many times in my life. I went into a state of shock for some weeks after my arrest… I suffered from depression, suicidal thoughts, self-harming, fear, immense anger against the police and my accuser and anger at the lack of support from anyone in authority … I suffer stress-related physical pain and shaking. Nightmares. I was very close to suicide on at least three occasions.’
From The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices

 

 

People like this must be confident that we have a criminal justice system which will protect them from being convicted of offences they never committed.  Many of them do not have that confidence today.

 

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The last Canadian case in the Privy Council (1)

On By Henry BrookeIn LEGAL HISTORY1 Comment

Laycraft

 

James Herbert (Herb) Laycraft, a former Chief Justice of the Alberta Court of Appeal, died in August 2015 at the age of 91. The Calgary Herald, announcing his death, wrote:

It’s hard to fathom how different the legal profession might be today for Albertans and the rest of Canadians, for that matter, if not for the gigantic footprints left behind by James Herbert (Herb) Laycraft over a momentous four-decade career as a litigator and judge.

Nearly a year later the current holder of that , Catherine Fraser (who greeted me on my only visit to her province in 2001 with the gift of a bowl of fruit) unveiled this bust at the Cavalry Courts Centre (which I did not visit: I remember that Calgary was full of multi-coloured sculpted cows when I was there).

She said that Chief Justice Laycraft was

“a mixture of the practitioner, the scholar, the reformer, the mentor and the administrator. [He] was instrumental in helping shape the post-Charter world in which we now live. An elegant and compelling writer, Herb wrote a number of the leading judgments of his era. He combined a true talent for precise analytical reasoning with unfailing courtesy and fairness. His respect and consideration for others were exhibited in his sensitive and balanced approach to the law.”

Jim Laycraft told the Calgary Herald that in 1959 his father had been lucky enough to go on the last Canadian case that went to the Privy Council in Britain, in a case that had dragged on for a decade after changes to the Privy Council in 1949.

This blog contains his father’s memory of that case, as recounted to my indefatigable Canadian friend John de P Wright – and by him to me.

The name of the case was Ponoka-Calmar Oils ltd v Earl F. Wakefield Co. The point at issue was whether the appellants’ mechanics’ lien (which came into existence after they had been unpaid for some oil-drilling work they had done) followed the proceeds of sale after a Receiver had sold the oil and gas which were subject to the lien and paid the proceeds of sale into court to await further order. The Privy Council upheld the Supreme Court of Canada in giving the answer “yes” to this question.

At that time Herb Laycraft was 35. He was one of five counsel who signed the Respondents’ case. Another was Percy Grieve QC, MP, the father of Dominic Grieve QC MP (who was our Attorney-General until 2014). Godfrey LeQuesne, who became a giant of Privy Council practice – I remember him on the other side in the first case in which I appeared before the Privy Council[1]) – was junior counsel for the appellants.

Herb had three memories of this case:

 “One point of interest, is the process of renting a wig in London.  I was dispatched by our London agents to see a most impressive gentleman in a wig shop near Gray’s Inn  He took a wooden device with many spokes going inside a square frame which he put around my head.  Then he pushed in the spokes until they all touched my head.in a dozen or so places.  I present some challenge in that respect.  But he showed no sign of despondency as he placed the spokes against the various planes, points, knobs and angles of my head.  He went away and a few moments later arrived with a wig with the strings inside all adjusted and dropped it on my head; it was a perfect fit.  Fortunately I didn’t offer money; I gave him my card with the London Agent’s name written on the back.  Gentlemen don’t discuss money.

When everyone had his wig, Bill Morrow produced a photographer who was singularly lacking in talent.  The photograph he took now hangs in the Court House at Calgary.  We all look like we had had bad clams for lunch.”

 

“On the opening day it was necessary to arrive early for rehearsal on how to enter the room to appear before the Judicial Committee.  That was a very formal process and the Registrar was plainly dubious that we had the wit to master it.  The process started with all the Judicial Committee seated at their table in the room and all counsel outside in the hall.  You then entered one at a time, in strict order of seniority.  You took ten steps into the room to a point where a brass plate was inset into the floor.  You stopped and bowed.  Then you took another ten steps to a second brass plate, bowed again and then turned left, if an appellant, and right, if a respondent, and went to your seat.

The argument commenced with Viscount Simonds pointing out that they did not have a mechanic’s lien statute in England and so ‘let us read through this one’.  Bill Morrow commenced to highlight it but was quickly made aware that they meant what they said.  Read it through clause by clause.  He spent most of the first day doing just that.  At the conclusion, Lord Denning remarked: ‘a most enlightened statute’.

 

I have one other bit of trivia.  A prerogative of counsel appearing before the Privy Council was to have lunch in the House of Lords dining room if special arrangements were made.  Our London agents arranged that for us but, of course, a certain protocol had to be observed.  On the appointed day, we left the Privy Council Building (No. 14, Downing Street) and proceeded fully robed and wearing wigs in single file across 6 or 8 lanes of traffic to the House of Lords across the street.  The traffic constable stopped all traffic for our stately march while tourist cameras whirred and clicked.  We arrived at the House of Lords where we were served a meal that has my nomination for the title

“Worst since the Invention of Cooking Over Fire”.

Again, of course, money was not discussed but I have often wondered what our London agents paid for that meal.

[1] Guiana Industrial & Commercial Investments Ltd v Inland Revenue Commissioners [No 2) [1971] AC 841. I appeared there as counsel on only one other occasion before I sat there occasionally as a judge following my retirement from the Court of Appeal. That was an appeal as of right from the Court of Appeal in Fiji in a fatal accidents case which arose after a car had collided with a steam engine puffing its way through a sugar cane plantation. The only issue was apportionment of liability. Once again, I was on the losing side. See  Santlal v South Pacific Sugar Mills Ltd (Judgment No 11 of 1974).