By Sir Henry Brooke
This is the second volume of the Stories of Injustice I originally published last year. Their republication in this consolidated form has been timed to precede by a few days the publication of the Bach Commission’s Report on 22nd September 2017.
Contents
The Bach Commission: Stories of Injustice (Volume 2) 1
How the reforms stopped children from having a settled school career. 4
Three vignettes of life in Harrow today. 8
A wife who was kept in a shed. 10
Three people who badly need skilled advice. 14
A hospital bill for £3,000. 17
The problems if an asylum seeker is dispersed to another part of the country. 20
Legal aid refused for mentally ill man in possession of a knife. 22
My tenth story of injustice, like the first, relates to the way new legislation has made justice even more inaccessible to those who prefer to live in caravans/ mobile homes.
My first story showed vividly the injustice that may be caused by Parliament’s refusal to allow a site-owner’s breaches of the Mobile Homes Act 1983 to remain in scope for legal aid. This story illustrates the injustice that may occur because it is now so difficult to find solicitors who are willing to bring applications for judicial review “at risk” although this is the only method by which a New Traveller may challenge a local authority’s unlawful decision under the homelessness legislation.
The Tenth Story
How the reforms stopped children from having a settled school career
Mr and Mrs H are New Travellers who have to resort to roadside encampments with their two children due to the lack of authorised sites and the lack of vacant pitches in the areas they normally resort to. They have been desperately trying to get an authorised pitch. The children have been missing a lot of school and Mr and Mrs H had hoped that, if they could find an authorised pitch, the children would be enabled to go to school and their educational chances would greatly improve. Additionally, Mrs H has been suffering from severe depression due to frequent evictions and the problems with getting the children to school.
A local support group suggests that they make a homelessness application since they are homeless under the provisions of the Housing Act 1996 as they do not have anywhere where they are entitled or permitted to place their caravans. The local authority they apply to refuses to take an application because it considers that they already have a home i.e. their caravan.
This is unlawful. The only way to challenge this action is by way of judicial review.
Mr H is a wood carver but, due to frequent evictions, he has not been able to sell many of his carvings recently and he is on such a low income that the family are financially eligible for legal aid. However, they have great difficulty in trying to find a solicitor to take on this matter ‘at risk’.
By the time Mr and Mrs H find a solicitor who is willing to attempt to make a judicial review application, it is four months after the local authority refused to take the homelessness application. A judicial review application needs to be brought promptly or within 3 months. Nevertheless their solicitor manages to obtain legal aid and lodges a judicial review application asking for permission to proceed with the application out of time.
The matter comes before a High Court judge who looks at the matter on the papers and refuses permission for the matter to proceed because of the delay. Although there is then an automatic right to go to an oral hearing, the solicitor tells Mr and Mrs H that he is not willing to take that step because it will be expensive and the barrister whom he employs and his firm may not be paid for going to the hearing.
Mr and Mrs H have no alternative but to continue on roadside encampments and the children continue to have problems in attending school as a result.
This story was told to the Bach Commission by the Travellers’ Advice Team at Community Law partnership. They also told us:
“During the consultation process on proposals to amend the situation with regard to legal aid and judicial review, the vast majority of respondents indicated that most judicial review applications were successfully settled prior to permission being considered by the court. Despite this, the Government brought into force provisions which mean that legal aid providers would not be paid on a judicial review application unless either permission was granted or the matter was settled prior to permission without costs being awarded to the claimant and the Legal Aid Agency exercised their discretion in favour of the legal aid provider.
Following the successful challenge in the case of R (Ben Hoare Bell and Others) – v – the Lord Chancellor, the regulations were changed to bring in a few exceptions but it remains the case that a legal aid provider will have to begin a case entirely at risk in terms of costs and this is clearly dissuading a number of such providers from taking on these vital cases.
Judicial review is an essential tool for Gypsies and Travellers who are seeking to challenge unlawful actions of local and public authorities.”
The Mary Ward Legal Centre told us:
“Judicial review is now funded only if the case gets permission from the court (unless the claim is not issued at all). This can act as a deterrent for providers who will not take the risk on issuing what may actually be a perfectly good claim.”
While it was understandable that a judge might be unwilling (on paper) to permit this application to proceed out of time, the reason for the four-month delay was that it was so difficult for an impoverished wood-carver to find a solicitor who was willing to make a judicial review challenge “at risk” in a fairly specialised corner of the law.
As a result of all this the children’s schooling suffered. Is this justice?
The Eleventh Story
For my eleventh story of injustice, I have chosen three vivid scenarios sent to us by the Harrow Law Centre (whose Patron I am proud to be.)
They are particularly relevant on the day after the new Leader of the Conservative Party has made it clear that she wants to heal the wounds of a divided society.
The annual accounts of the Legal Aid Agency for 2015-16, which have just been published, appear to show at pages 66-67 that audited net expenditure on all forms of civil and criminal legal help and legal representation has been cut by £630 million, from £2.11 billion in 2010-11 (the first year of the Coalition Government) to £1.48 billion in 2015-16.[1]
This is a much greater cut than was ever envisaged when the LASPO proposals were first proposed in November 2010 and legal aid cuts of £350 million were suggested. The damage these excessive cuts have caused to so many people’s health and happiness is incalculable.
Lord Low’s Commission believed that additional expenditure of £100 million on social welfare law would make a great difference. I have summarised his oral evidence to the Bach Commission elsewhere on this site. He told us:
“We estimated that a further £100 million a year would be needed to provide a base level of provision of sufficient advice and legal support on social welfare law”.[2]
Commentary
The underlying causes of the human misery described by the Harrow Law Centre were explained by AdviceUK, which is the largest support network for free, independent advice centres in this country. It told us:
“The well-publicised problems with the introduction of Personal Independence Payments, Employment and Support Allowance (particularly in the use of Work Capability Assessments) have resulted in many people being without income to meet essential living needs. The length of time required to navigate bureaucratic legal procedures results in gaps in income, which in turn often leads to problem debt involving rent arrears, council tax arrears, pressure to use inappropriate or high-cost credit and a significant increase in the use of emergency support offered by local charities such as foodbanks. The introduction of mandatory reconsideration highlights the pernicious effects of the bureaucracy.
For many clients, the vulnerability and disadvantage associated with poor housing, problem debt and no income is compounded by poor physical and mental health, all of which make it much more difficult to understand and navigate legal procedures. Similarly, the inappropriate use of benefit sanctions has resulted in unnecessary legal action.
It is highly inefficient to deal with hundreds of individual cases where mistakes are predictably arising because of systems that are not fit for purpose, but there is little interest in changing such systems in ways that would both improve the lives of the people that have to navigate them and save money to the public purse.”
This was echoed in the evidence of the Law Centres Network, the spokesman for 44 not- for-profit legal practices across the UK:
“The biggest impact of LASPO has been the devastation of local legal and advice ecologies through the removal of funding for their essential services in social welfare law. Particularly hard hit was the early and preventative work used to nip problems in the bud. Since LASPO civil legal aid now backloads legal assistance to later stages when problems have already escalated, causing avoidable suffering for clients and greater expense to the state. As evidence, the only indicator that the Ministry of Justice reports on for civil legal aid in its annual report – average cost per case – has gone up.”[3]
And the Islington Law Centre told us that one of their three gravest concerns related to the escalation of problems due to the scale of need and the difficulty in securing help. They themselves have a “book ahead” time of over two months for many of their services, and for people with precarious incomes and few tenancy or employment rights, their situation can deteriorate badly during this time, leading to a need for more extensive work and with an impact on physical and mental health.
This link between injustice and damage to physical and mental health recurred often in the evidence we received.
In short, people have rights. They do not know they have those rights. They do not know where to turn for advice about them even if they know they have them. And the number of outlets for such advice has been decimated since LASPO.
How can this be justice?
My twelfth story of injustice is typical of the large volume of evidence the Bach Commission received because of the hardships caused by the rule that only evidence of domestic violence (according to tightly prescribed requirements) will be admissible to open the door to legal aid in family matters. The Government is now involved in consultation over ways in which some of the obvious hardships their rules have caused may be mitigated, but in the meantime people (particularly women – and their children) go on suffering.
A wife who was kept in a shed
Ms P’s in-laws and her husband subjected her to ongoing abuse. She eventually developed serious health conditions for which she needed urgent access to medical care. For two years, she was in and out of hospitals. At one stage, her in-laws visited her in the hospital and told her that she would never recover and she was better off dead. As a result, she became suicidal and she was kept on ‘suicide watch’ by a nurse.
She was discharged from the hospital and returned to the matrimonial home. There she was kept in a shed at the back of the house which led to a deterioration in her health. She was kept in the shed for one year even though all the professionals involved knew about her home circumstances.
Her father eventually contacted Southall Black Sisters and we managed to get her out of the matrimonial home. Ms P cannot apply for legal aid for divorce and make claims for financial support or relief because none of the professionals involved recognised her situation as a case of domestic violence. For example, the hospital recorded her experiences as ‘family problems’.
Without proper recording of domestic violence, Ms P cannot obtain the evidence needed to obtain legal aid and to pursue legal remedies for the abuse she suffered.
Commentary
I have recited some of the submissions the Bach Commission received on this troublesome rule in the fourth of my Stories of Injustice.
The Family Law Department at Simpson Millar LLP told us:
“The requirement for “acceptable evidence” from the police does not deal with the reality that many victims who do report an incident to the police then fail to press charges. In our view evidence of repeated call outs to the police even where no further action is taken at the request of the alleged victim should be sufficient evidence to satisfy the Legal Aid Agency.
The requirement to produce evidence in the forms specified still doesn’t reflect the reality that most victims of domestic abuse do not report the incidents – Women’s Aid say that on average a woman will be assaulted 35 times before reporting it to the police.
The term domestic abuse doesn’t only include physical violence, but describes any abusive behaviour repeatedly used by one person to control and/or dominate another person with whom they have had an intimate relationship. It also includes the exertion of control and/or domination of one family member over another. Financial, emotional and psychological abuse victims often don’t recognise they are being targeted.
The evidential requirements do not reflect the fact that the behaviour often experienced by the victim may not look intimidating or coercive if each incident is looked at in isolation but when looked at over a period of time a pattern of behaviour is evident.
A victim of emotional or financial abuse may report that pattern of behaviour to the police but if there is insufficient evidence to prosecute for a criminal offence that victim would not then meet the evidence requirements to obtain legal aid and access this legal advice which could help her separate from her abuser and protect her children.
The requirement that written evidence of admittance to a refuge is the only acceptable evidence from a domestic violence support organisation does not reflect the fact that many people engage with support organisations in other ways. Many of the domestic abuse organisations that we work closely with offer support to victims in the community rather than refuge facilities. In our view evidence of any engagement with a domestic abuse support organisation should be sufficient to meet the Legal Aid Agency’s requirements.”
Women’s Aid told us:
Women’s Aid welcomes the changes that were made to the Legal Aid regulations, increasing the time limit for evidence to five years, in April 2016 after a Court of Appeal ruling resulting from a Judicial Review case brought by Rights of Women. However, the regulations must be further altered to ensure that all survivors of domestic abuse are able to access legal aid. The guidelines should include further forms of permissible evidence, such as:
- A letter from a specialist domestic violence support service confirming that a survivor has sought help from that organisation.
- A letter from the 24 Hour National Domestic Violence Helpline that confirms the woman has contacted the helpline due to their experience of domestic violence.
The Legal Aid Agency must also ensure that survivors of domestic abuse do not have to pay for the evidence required for their legal aid applications. Women’s Aid are concerned to hear from some survivors of domestic abuse that they are being charged up to £50 for a Doctor’s note to accompany their application. For some women this is simply not possible. The issue of limited access to legal aid for survivors of domestic abuse is particularly pertinent with regards to child contact cases in the family courts.
Southall Black Sisters told us:
For example, the only acceptable evidence a domestic violence support organisation can provide is confirmation that the woman has been referred to a refuge. This is extremely restrictive given that many black and minority ethnic (BME) women who flee domestic violence do not report to outside organisations for a number of very valid cultural and religious reasons, or due to the lack of secure immigration status or mental illness or disability or due to mistrust and lack of awareness of their rights. Indeed, lack of immigration status prevents many migrant women from accessing refuges because refuges will not accept women who cannot access welfare benefits or pay the rent.
It is important that we look at the places where applicants go: it is not just to refuges. For example, we know that many councils outsource their provision of outreach services to CABs or local third sector organisations, knowing that they can be more effective at satisfying needs than state social services. Those agencies need to be included. At the moment the gateway does not include information from the police that there have been a number of attendances at a matrimonial home. The noble Lord will know that many victims do not press the matter on to charge or to conviction. The police may have been called many times, but if there is not a charge or a caution, the applicant—victim—will not be able to rely on that for legal aid…This is not a case when we can say, ‘We do not know. We hope it will not happen’. We have the empirical data. Over the last 30 years, we have learnt those lessons, so it is not a case of, ‘If we do this, it will be all right’. From my 35 years’ experience in this area, I can tell the House it will not. What we do really matters. There are women and children in this country who are frightened today because of what we are doing in this Bill, and if we wish to assist them, we will ask the other place to think again.
Her amendment failed, on a tied vote. As so often happens, the inevitable has occurred. And much avoidable suffering has followed in its wake.
Is this justice?
The Thirteenth Story
For the thirteenth story of injustice I am turning again to the real life problems encountered on a daily basis by front-line advisory services. I describe three very typical cases. In each of them something very important is at stake, central to their future life and happiness. I have anonymised the people concerned.
The Greater Manchester Immigration Aid Unit (GMIAU), who sent us these cases, told the Bach Commission:
“We see many people who have significant human rights immigration problems which, if not dealt with properly, will have consequences that will affect them for life, and who no longer have access to legal aid as a result of LASPO.
They include:
- refugees wishing to exercise their right to family reunion;
- families with no recourse to public funds;
- women subject to domestic violence but not entitled to access to public funds via the ‘destitution domestic violence’ (DDV) route;
- fathers and mothers facing removal and separation from the children; and
- people held in indefinite immigration detention at the end of their prison sentence or faced with deportation.”
Three people who badly need skilled advice
Ahmed is a 35-year old man who has been in the UK since the age of 2. He is under threat of deportation. He is no longer entitled to legal aid and has no money to pay a private lawyer.
Boris has a British child. The local authority and the Immigration Judge recognise that he provides absolutely essential care and support to his son and saves the State thousands of pounds by keeping his son out of the care and penal system. He is under threat of deportation and is no longer eligible for legal aid.
Christina is a child who has been in the UK for nine years. She and her family are fighting their removal from the UK. She is no longer eligible for legal aid and has no money to pay for private representation.
Commentary
GMIAU told the Bach Commission:
“Greater Manchester Immigration Aid Unit provides specialist immigration legal advice, representation, and support to people who are subject to immigration control in the North West of England. Typically, we represent adults, children, and families who are seeking protection in the UK; families with no recourse to public funds: people who face deportation; people who have been trafficked to the UK: and separated families including refugees. It is from this experience that we submit our evidence.
Our biggest concerns about the state of access to justice are that:
Access to justice is increasingly only for those who have the money to pay for it. It is not universal and those with least resources get left out. Inequality is increasing and there are parts of the population who are being disenfranchised by the state and the law.
Gross injustices are taking place hidden from public view and the State is not being held to account..
The Garden Court Chambers Immigration Team (GCCIT) told us:
Some parts of the public discourse support the notion that migrants should not have the benefits of our legal system – and this is no doubt why the many barriers to justice and the discriminatory treatments are being extended and enhanced. The architects of such restrictive models appear to have given no consideration to the unintended consequences
- the lost family life of British citizens – and the long term consequences for the children in stranded families;
- the many lawful foreign residents who will via procedural errors or the denial of appeal and status rights become unlawful residents and thus criminally culpable carrying out their normal lives;
- the British providers of services who will now be committing criminal offences by assisting certain migrants with housing, employment or care. It is no exaggeration to say that the array of restrictions will over time erode and create divisions and enmity in social and community relations.”
“Immigration law is voluminous, complex and unintelligible to all but working specialists. This helps no-one. The Chambers’ text Macdonald’s Immigration Law and Practice – generally seen as the leading text on the subject – has grown from a single to a 2 volume work. The commentary (volume 1) and legislative instruments (volume 2) texts are each over 2,000 pages in length and as the preface to each recent edition has made clear – the text is ‘out-of-date’ and therefore inaccurate in certain respects generally within weeks of publication.
The statutory and rule based appeals scheme is highly complex. Due to repeat legislative changes there are a number of transitional arrangements requiring consideration of whether the person has an appeal right, an in-country appeal right and the relevant grounds of appeal and the evidence that may be relied upon in support of the appeal. This complexity is well-recognised and much criticised. Thus:
Just in case anyone thinks that the law is simple and that non-lawyers can argue their cases before the immigration authorities without any help, GCCIT also said:
The Administrative Justice and Tribunals Council considers immigration to be an area of ‘extraordinary complexity’;
In just one of many judicial criticisms concerning complexity -in November 2011, Lord Justice Jackson said of an issue affecting the situation of persons liable to removal: ‘…this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions…’ (Sapkota [2011] EWCA Civ 1320);
The Immigration Services Commissioner’s scheme to regulate immigration advice and services regards work on family reunion, removals and deportation, cases of illegal entrants and overstayers, Article 8 applications, lodging notices of appeal and applications outside the rules as too complex to be done by those who have attained competence at only Level 1 of her scheme. Very few not-for-profit agencies have attained competence beyond Level 1;
The UK Visas and Immigration website section on “Staff guidance, instructions and country information” contains 14 distinct sets of policy guidance, many of which contain detailed chapters and sections making up a vast array of immigration policy and instructions, which is frequently subjected to revision and restructure;
The Immigration Rules are frequently changed. For example, they have been substantially changed 33 times from January 2012 to date.
The laws and rules not only prescribe the criteria for entry and stay but set strict procedural requirements requiring applicants to submit the correct application form, complete all the necessary components in the form and provide prescribed evidence via prescribed documentation. If applicants fail to comply with these procedural requirements, the application can be returned as invalid and the applicant in many cases will lose their legal status and with this their former rights to take employment, rent accommodation, drive their cars or have access to medical services. These are draconian provisions affecting not simply those long term overstayers or illegal entrants who have never held such rights, but lawful foreign residents who lose such rights via the vagaries of the application and appeal process.”
is ludicrous to think that any migrant can master it without the help of a lawyer.
How can all this injustice be allowed to continue?
I spent 16 years of my life as a senior judge doing my best to understand and interpret a corner of our law which has just grown like Topsy.
The Fourteenth Story
Here is another story from the Harrow Law Centre. “Adil” was not the client’s true name.
A hospital bill for £3,000
Adil is Romanian. Although he had worked in the UK for over six years he was presented with a medical bill for nearly £3,000 when his wife gave birth to their son. The hospital trust had decided that in the absence of an EU residence card Adil did not have residence. He must therefore pay for his wife’s time in hospital.
He tried to resolve the matter himself but he was unable to do so. The hospital trust took legal proceedings against him, and obtained judgment for the unpaid bill. It was only when he received notice that bailiffs would be coming to his home to seize his goods that he consulted the Law Centre for the first time.
They immediately saw that he should not have been charged anything, but they had to threaten judicial review proceedings before the Trust admitted they were in the wrong. Adil should have been treated as ordinarily resident in the UK (and therefore entitled to free NHS care) because he was living here on a lawful and properly settled basis for the time being.
In the old days he would have been able to obtain very low cost legal help as soon as the bill arrived, and all this worry and expense could have been avoided.
Commentary
How many more mistakes like this go undetected because private lawyers are too expensive and people can no longer access very low cost legal help?
The Fifteenth Story
For my 15th story of injustice, I am indebted to the Public Law Project, of which I am the patron.
Although the former rigid rules for exceptional case funding (ECF) have now been relaxed a little after the intervention of the courts, this story, taken from an early stage in a lamentable saga, shows why the Legal Aid Agency and all its works incurred such widespread odium while Mr Grayling was Lord Chancellor.
Unbelievable – but true
BXA
BXA was 52 years old and had been in this country for approximately 16 years. She had a history of street homelessness, a diagnosis of paranoid schizophrenia, had been detained under the Mental Health Act 1983 on several occasions, and had struggled to give a coherent account of her experiences. BXA required ECF in order that she could be represented in her immigration appeal in which she would need to argue that her removal would breach her rights under Article 8 of the European Convention on Human Rights.
An application for ECF was made for BXA, with our assistance, and marked as urgent. An immigration specialist had assessed the prospects of BXA succeeding in her appeal as good, but the LAA refused the application on the basis that, in their view, the prospects were poor.
An application for a review of the refusal was submitted to the LAA, but they upheld the refusal, again on the grounds that the prospects were poor. The LAA’s decision letter referred extensively to immigration case-law and asserted that the application had failed to demonstrate why BXA’s Article 8 ECHR rights would be breached if she was removed.
Following this, PLP instructed experienced counsel to prepare an advice, pro bono, on the merits of BXA’s immigration case. Counsel advised that the case was meritorious.
We sent this advice, together with a pre-action letter, to the LAA following which (nearly four months after BXA’s first application was made) the LAA granted her ECF.
We understand that BXA’s immigration appeal was successful.
Commentary
JustRights told the Bach Commission:
During the passage of the LASPO Bill, ministers repeatedly reassured MPs and Peers from all parties who were worried about the prospect of children and young people being denied access to advice and representation that an expanded Exceptional Case Funding scheme would provide an adequate safety net.[4] The Government’s pre-LASPO estimates of the percentage of ‘out of scope’ cases likely to be readmitted under the Exceptional Case Funding scheme were modest,[5] but nonetheless implied at least 847 children and 4,888 young adults being granted exceptional funding each year.
In the event, this “safety net” has proved inaccessible and unfit for purpose.[6] The Ministry of Justice’s data shows that only 8 children and 28 young adults were granted legal aid under the Exceptional Case Funding Scheme between October 2013 and June 2015.[7]
Thus, despite very recent data suggesting some relaxation of the Exceptional Case Funding Scheme,[8] it is clear that it has acted as a safety net for but a tiny proportion of those children and young people whose cases have fallen out of the scope of civil legal aid as a result of LASPO. Some legal aid providers specialising in working with children and young people have reported giving up applying for exceptional funding altogether as they consider it a waste of valuable time.[9]
Ben Hoare Bell LLP told us:
The exceptional case funding option which was identified to the United Nations CEDAW[10] Committee as being the “safety net” for women unable to obtain legal aid by proving they are victims of violence has been proved to be completely ineffective providing no safety net whatsoever and the recent research done by Rights of Women show that up to 43% of genuine victims of violence against women cannot access the proof that they need to obtain legal aid.
And in spite of the softening of the gateway criteria the Community Law Partnership told us only three months ago that:
Despite the [amendments], ECF is still relatively rarely granted and a lot of legal aid providers are not willing (on a pro bono basis) to expend the enormous time and effort involved in attempting to obtain ECF. Thus ECF remains an ineffective remedy.
If I were the new Lady Chancellor[11], I would give the overhaul of the ECF arrangements a very high priority. In a country in which, for the first time, the Prime Minister, the Home Secretary and the Lady Chancellor are all women, the scale of the hardship that LASPO has caused to women and children cannot be overstated. It deserves their early attention.
Otherwise justice for women and children will continue to suffer.
The Sixteenth Story
My sixteenth story of injustice relates to some of the typical difficulties which asylum-seekers face under LASPO.
This story describes very bad advice by a social worker; long journeys to access a legal aid solicitor; and the trauma that occurs when the asylum-seeker is relocated to a different part of the UK, where she knows no one, while her application is still pending.
The problems if an asylum seeker is dispersed to another part of the country
Ms B and her young daughter fled domestic violence from Ms B’s husband. They were living in West London. She was an ‘overstayer’ from India but did not know this as her husband was in control of her immigration matters. Moreover, she was unaware of her husband’s own immigration status as he had never been open with her about it. Ms B was advised by her social worker to go to Lunar House and claim asylum and booked her a taxi for this purpose.
When challenged by an advice agency as to what qualifications he had to give such advice, the social worker became defensive and said it had ‘worked’ for other clients. The agency advised Ms B not to present at Lunar House until she had obtained proper legal advice in respect of her immigration matter. After two months of searching for a legal aid solicitor who had the capacity to take on Ms B’s case, she received an appointment with a legal aid immigration solicitor in the north of London, a journey which regularly took her up to an hour and a half by public transport.
Ms B first saw her solicitor in December 2015, and over the next four months her solicitor spent a great deal of time working on the case and built a trusting relationship with Ms B. The solicitor was also able to organise the same experienced interpreter for Ms B for each appointment. This was very helpful since the interpreter also formed an excellent professional relationship and rapport with her.
Ms B went on to make an application for asylum and was granted NASS support whilst her claim was pending. She was, however, told that she would be dispersed to an unknown location in the country. Ms B was then advised by her solicitor that if she was dispersed out of London, she would be unable to continue to provide legal advice and representation due to the distance and costs involved.
The solicitor explained that the Legal Aid Agency would not fund her travel and would instead expect Ms B to access legal advice in her own area. Ms B – an isolated and very vulnerable woman – was left in a state of great anxiety and fear as she did not know if she would find a new solicitor and interpreter that she could trust. She was also worried about being made to relive painful and sensitive aspects of her case at a time when she was struggling to overcome her experiences of violence and abuse.
Commentary
Southall Black Sisters told the Bach Commission:
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. We cannot help but think this state of affairs represents a false economy on the part of the LAA. By making it financially unfeasible for solicitors to ensure continuity of representation; they are transferring and even increasing costs elsewhere – the emotional cost to the client as well as the financial cost – since a new solicitor will have to expend time and costs getting acquainted with the facts and indeed with the client. This case highlights the problem.
We encounter so many cases in which what seems to be a sensible cost-saving policy in fact leads to much greater expense – and added trauma.
The Seventeenth Story
My seventeenth story of injustice relates to the Legal Aid Agency’s much criticised handling of applications for legal aid in criminal cases. As usual, I have used a fictitious name.
Legal aid refused for mentally ill man in possession of a knife
Jason is in his early fifties. He has no previous convictions and is mentally ill.
His solicitor was asked to represent him at the magistrates’ court by a local homelessness unit. Jason came to his office and completed and sent off an application for legal aid two days before the court hearing.
He was charged with being in possession of a knife. This is now regarded both by the Sentencing Guidelines Council and by the Court of Appeal in R v Povey (2008) as an offence for which a custodial sentence for a first offender is very much on the cards.[12]
On the morning of the court hearing the solicitor was informed that Jason’s legal aid application had been refused because it was “not in the interests of justice” to grant him legal aid. He immediately appealed. An appeal is decided within the Legal Aid Agency itself. Even though legal aid had been refused, Jason’s solicitor represented him in court.
On his solicitor’s advice Jason pleaded guilty on his first appearance in order to obtain the maximum discount for an early plea. The magistrates then adjourned the case for two days for a pre-sentence report. Although he was released on bail, Jason was told that all sentencing options were open.
Although his appeal to the Legal Aid Agency was still undecided, his solicitor attended court again two days later, when he persuaded the court to find reasons why it should not apply the sentencing guidelines and to grant Jason a conditional discharge.
Two days later the solicitor heard that the Legal Aid Agency had allowed Jason’s appeal, and in the event he was recompensed at legal aid rates. In any event there was no way he would have allowed Jason, a mentally ill man of previous good character, to be unrepresented on such a potentially serious charge.
Commentary
This is just one example of the stories which solicitors have told me of incomprehensible decisions being taken by inexperienced staff within the Legal Aid Agency that lead to delay, to avoidable expense, and often to injustice.
I use the word “incomprehensible” because I do not understand how anyone could have thought it was not in the interests of justice that this mentally ill adult should be unrepresented in court when he faced such a potentially serious criminal charge.
As it was, Jason obtained the services of a solicitor who, as so often, took the risk that he might not be paid anything at all for his services in representing a man who was in real need of legal representation.
Today the operation of our criminal justice system depends too much on the goodwill of lawyers, to an extent that is seriously unfair.
[1] I omit the expenditure from central funds on the costs of acquitted defendants and on interpreters, which were not in the legal aid budget in 2010-11, but the inclusion of these items would only reduce the size of the cuts to £582 million.
[2] The expression “social welfare law” encompasses housing, welfare benefits, debt, education, asylum & immigration, and community care.
[3] See the Ministry of Justice’s Annual Report and Accounts for 2014-15 at p. 5.
[4] For example, Lord McNally, then a justice minister with responsibility for legal aid, stated on 16th January 2012 “where a child brings an action without a litigation friend, this will be an important factor in deciding whether they have the ability to present their case.” Hansard, 16 Jan 2012 : Column 447
[5] The Ministry of Justice’s ‘Impact Assessment Annex A: Scope’ (Reform of Legal Aid in England and Wales: The Government Response (London, TSO, 2011), para 10, Tables 1 and 3 show forecasted reductions in the volume of cases as a result of the legal aid reforms.
[6] M. Spurrier, Exceptional funding: a fig leaf, not a safeguard. (Public Law Project, 2013).
[7] Parliamentary answer by Lord Faulks, 17th November 2015
[8] ‘Legal aid statistics and the cuts that keep on cutting’
[9] See para. 59, House of Commons Justice Committee, Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012: Eighth Report of Session 2014–15 (UK Parliament, 2015).
[10] Convention on the Elimination of Discrimination Against Women.
[11] This was written in July 2016. Nothing has happened since then.
[12] According to the Guidelines, if a first-time offender pleads not guilty, and if the weapon was not used to threaten or cause fear, the starting point for sentencing is a high level community order, and the range of sentences is between a Band C fine and 12 weeks’ custody. The guideline is accompanied by this explanatory note:
Sentencing for possession of a weapon – knife crime
A guideline is provided in the Magistrates’ Court Sentencing Guidelines for sentencing offenders found in possession of a bladed article or offensive weapon. Significant attention has been paid to this guideline ahead of it coming into effect as a result of the current focus of the press/media on violent crimes involving knives.
The purpose of this note is to set out the effect of the guideline (which is not limited to the possession of knives) and of the Court of Appeal decision in Povey.
- The guideline has been strengthened from the previous Court of Appeal guideline Celaire and Poulton and is likely to result in many more offences (committed by adult offenders) crossing the custody threshold.
- In Povey, attention was drawn to the recent escalation in offences of this kind and the importance, for the time being, of courts focussing on the purposes of sentencing of reduction of crime (including its reduction by deterrence) and the protection of the public.
- In Povey, the Court of Appeal recommended that the Magistrates’ Court Sentencing Guidelines guideline should normally be applied at the most severe end of the appropriate range to reflect current prevalence concerns. This will be likely to lead to more cases being sentenced in the Crown Court.
- When the current concerns have been overcome, courts will be notified that the approach should return to the guideline as published.
- The guideline provides three categories of seriousness:
- level 1 is for the situation where a person has a weapon or bladed article, is not in a “dangerous circumstance” and the weapon or bladed article is not used to threaten or to cause fear; in those circumstances: – applying Povey, where the offensive weapon is a knife the starting point would be close to 12 weeks custody for a first time adult offender who has pleaded not guilty;
- – in relation to an offensive weapon other than a knife, the starting point for a first time adult offender who has pleaded not guilty is a high level community order.
- level 2 is for the situation where a weapon is in the possession of the offender in “dangerous circumstances” but is not used to threaten or to cause fear; in those circumstances: – applying Povey, where the offensive weapon is a knife the starting point for a first time adult offender who has pleaded not guilty is committal to the Crown Court and, therefore, a custodial sentence in excess of six months; – in relation to an offensive weapon other than a knife, the starting point for a first time adult offender who has pleaded not guilty is a custodial sentence of six weeks.
- level 3 is for …
- “Dangerous circumstances” has not been judicially defined but was used in the previous Court of Appeal guideline judgment in Celaire and Poulton. In relation to a knife, a circumstance is likely to be dangerous if there is a real possibility that it could be used.
Henry Brooke 