Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Bar Council of England & Wales (LA 09)

The Bar Council

· This is the response of the General Council of the Bar of England and Wales ("the Bar Council") to the Legal Aid, Sentencing and Punishment of Offenders Bill Committee’s call for evidence.

· The Bar Council is the governing body for all barristers in England and Wales. It represents and, through the independent Bar Standards Board, regulates over 15,000 barristers in self-employed and employed practice. Among its principal objectives are to ensure access to justice on terms that are fair to the public and practitioners, to represent the Bar as a modern and forward-looking profession which seeks to maintain and improve the quality and standard of service to all clients, and to work for the efficient and cost-effective administration of justice. This memorandum is submitted to the Bill Committee by the Bar Council acting in its representative capacity, in the public interest.

· This submission has been prepared with the benefit of detailed and specific representations made by the Family Law Bar association (FLBA), the Criminal Bar Association (CBA), the Personal Injury Bar Association, the Young Barristers’ Committee (YBC), the Immigration Law Practitioners’ Association [1] and the Remuneration Committee of the Bar Council.

· The remainder of this submission summarises the Bar Council’s general concerns about the Bill, before proceeding to examine particular clauses and schedules of the Bill to which it wishes to draw Committee Members’ attention.

General Concerns

The Bar Council’s main concerns are as follows:

· The Government has ignored thousands of responses to its consultation warning of the serious consequences of its proposals. These included the 173 page response of the Bar Council to the legal aid proposals and our related response to the Government’s proposals for implementing Lord Justice Jackson’s recommendations. [1] The removal of large numbers of cases from the scope of legal aid remains largely unchanged, even though there is virtually no support for these proposals.

· Abolishing legal aid for legal advice and representation in private law family cases is manifestly wrong. This was the almost unanimous response of the respondents to the consultation. A paltry 3% of the respondents supported the Government’s proposal to remove large numbers of cases from scope. [2]

· If legal aid is withdrawn from substantial areas of law, many people will be unable in practice to enforce their legal rights. Without the benefit of quality legal representation, vulnerable people, honest, hardworking families and victims of serious injury will have to go to court by themselves. This is DIY justice, not access to justice.

· The Government’s proposals will disrupt the courts, increase costs and cause delays. Litigants in person prolong the length of cases in which the best points are not always put before the judiciary. The Bar’s concerns have been echoed by the Judges’ Council of England and Wales [3] and by the Government’s own research, commissioned as part of Consultation Paper CP12/10. [4]

· Proposals for the reform of legal aid in family justice should await the final report of the Family Justice Review. The Government rightly acknowledges the valuable work of the Family Justice Review, running in parallel with the legal aid consultation. It recognises that the Family Justice Review is considering options for a quicker, simpler, more cost-effective and fairer system, whilst continuing to protect children and vulnerable adults from risk of harm. [5] It should therefore await the final report of the Family Justice Review before considering whether to remove large swathes of family law from the scope of legal aid.

· Citizens disarmed. Under the Government’s proposals the state will be disarming its citizens when they most need help and representation. It is an alarming imbalance. The Government is limiting the universal right to legal advice.

· Injured claimants unable to bring valid claims. If implemented, proposals provided for within Part 2 of the Bill will result in widespread injustice for people who are injured through the fault of others but who cannot fund their own claims.  Removing the recoverability of the success fee from the wrongdoer and setting an unrealistically low cap on any success fee chargeable from the injured person will result in a large number of claimants with valid cases but without private means – in particular those with serious injuries and complex cases – being unable to secure representation.

· Reduction in damages for injured claimants with valid claims. The current system carefully calibrates injury damages to reflect actual financial loss and need.  Valid injury claims must, therefore, be compensated in full.   Under these proposals, those claimants who are (notwithstanding the above) able to find representation will have their vital damages significantly ‘raided’ in order to fund the success fee. 

· Double whammy. It is clear that, in many instances, the proposals to withdraw entire areas of legal aid from scope will create acute problems around access to justice. This is of particular concern in the light of the success fee proposals discussed above. The combination of cuts in legal aid with proposals that will impact severely on the funding of smaller cases must not be allowed to exclude whole categories of party from the ability to seek legal redress.

The Bill Examined: Clause-by-Clause Submissions

1. Clause 1: Lord Chancellor’s Functions

1.1. Clause 1 (1) currently provides :

"The Lord Chancellor must secure that legal aid is made available in accordance with this Part."

1.2. Schedule 5, paragraph 49 removes sections 1 to 26 and Schedules 1 to 3A of the Access to Justice Act 1999, which include a duty for the Legal Services Commission (LSC)to ensure that individuals have access to services that effectively meet their needs. This is a crucial provision that has no equivalent within this Bill.

1.3. As such, the Bar Council recommends that Clause 1(1) be amended to read:

"The Lord Chancellor must secure that legal aid is made available in order to ensure practical and effective access to justice."

2. Clause 2(3): Funding Regulations

2.1. This clause currently provides:

"The Lord Chancellor may by regulations make provision about the payment of remuneration by the Lord Chancellor to persons who provide services under arrangements made for the purposes of this Part."

2.2. Section 25 of the Access to Justice Act 1999 (removed under Schedule 5 of the Bill) provided that:

" When making any remuneration order the Lord Chancellor shall have regard to-

a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies,

b) the cost to public funds, and

c) the need to secure value for money. "

2.3. The Bar Council submit s that there ought to be a similar provision within the Bill to emphasise the importance of ensuring that fee levels do not drop to such a level that a "sufficient number of competent persons and bodies" are no longer secured. In short, there needs to be some protection against the emergence of advice deserts.

2.4. Without such an amendment, the combined effect of the provisions highlighted above are that the Lord Chancellor is enabled to set fees at any level desired, without due regard for the impact on the provision of services.

2.5. In addition, the House of Commons Library Research Paper 11/53, 27 June 2011, prepared for the Bill’s second reading, states: "The Government’s response to the Green Paper consultation outlines what the Ministry of Justice intends. For criminal legal aid, an overall fee of £565 would be introduced for either way cases deemed suitable for summary trial (with the fee split between litigation and advocacy)."

2.6. We do not accept that £203 for advocacy in all cases falling within Question 24 of the consultation CP12/10 would amount to proper remuneration. In our opinion, this would lead to a breach of the duty to ensure a sufficient supply of competent providers.

2.7. For family lawyers, 10% cuts to fees are proposed. [6] This will inevitably cause many solicitors ’ firms to fold, as publicly funded work becomes wholly uneconomic; advice deserts will emerge; access to justice for t he public will become much more difficult to obtain . It is no wonder that 88% of the respondents to the consultation opposed the cuts. [7]

2.8. In the Bar Council’s view , t hat 88% figure is un likely to represent only those whose livelihoods depend on public funding. It is also the view of th e senior judiciary (§10: Judges’ Council response):

"There is a real concern, especially in relation to family and criminal work, that the pool of skilled advocates willing to undertake the work will diminish, to the disadvantage of litigants and to the detriment of the efficient running of cases. Moreover, there are likely to be longer term adverse consequences for the recruitment of able advocates into these fields of work and, at the other end of the spectrum, for the existence of a sufficiently large and diverse pool of able advocates suitable for appointment as judges in such cases."

2.9. At the Bar, women and B ME practitioners will be the hardest hit by these fee proposals . [8] Overall, the legal profession (and in due course the judiciary) will become less representative of the public it serves. This outcome runs counter to the efforts of successive governments to ensure that the composition of the judiciary reflects , in its diversity , the society it is meant to serve.

2.10. Accordingly, the Bar Council recommends that Clause 2(3) should be amended to provide as follows:

"The Lord Chancellor may by regulations make provision about the payment of remuneration by the Lord Chancellor to persons who provide services under arrangements made for the purposes of this Part, having regard to-

a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies,

b) the cost to public funds, and

c) the need to secure value for money . "

3. Clause 8: Shrinking Categories of Legal Aid

3.1. Clause 8 currently provides:

"The Lord Chancellor may by order modify Schedule 1 by omitting services from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of the Schedule)."

3.2. The Bar Council recommends that the clause should be amended to provide as follows :

"The Lord Chancellor may by order amend Schedule 1 by including or omitting services from Part 1 of the Schedule (whether by modifying that Part or Part 2, 3 or 4 of the Schedule)."

3.3. The Bill allows only for ‘shrinkage’ of the services supported by legal aid. Since the cuts have been justified by the current economic situation, we do not think it is right that they cannot be reversed once this situation has improved. The Bill should thus permit the Lord Chancellor hereafter to include legally aided services and not just omit them.

4. Clause 9: Exceptional Cases

4.1. Clause 9 (provision for funding in exceptional cases) does not go far enough to address the gap in funding for parties needing representation.

4.2. The proposed scheme for funding exceptional (excluded) cases where it is shown to be necessary in order for the United Kingdom to meet its legal obligations (under the European Convention on Human Rights) is unduly narrow. It would not be sufficient to counter the adverse effects of litigants being forced to pursue litigation in person in areas of civil and family law where legal representation is important for the proper conduct of the case (On this issue, see §9 of the response of the Judges’ Council to the Consultation Paper).

4.3. An oddity immediately arises from the prima facie exclusion of private family law from legal aid, given the apparent Strasbourg view that at least some non-domestic violence private family cases can be sufficiently important to require legal aid, given the importance of the issues to the lives of the parties, especially the children. Crucially, it may be necessary to consider whether potential litigants in person would have the emotional detachment necessary to advocate effectively.

5. Clauses 12: Limiting Advice and Assistance at the Police Station

5.1. According to this clause, an individual may qualify for such assistance depending on:

· financial resources

· criteria (to be determined) set out in regulations, and

· the interests of justice

5.2. The Government did not consult on restricting advice in the police station. Section 58(1) of the Police and Criminal Evidence Act 1984 states that "a person arrested and held in custody in a police station or other premises shall be entitled if he so requests to consult a solicitor privately at any time."

5.3. Clause 12 significantly undermines this fundamental right. Furthermore, the criteria required in order to qualify for assistance are unacceptably vague at present, and are to be administered by the holder of a new and as yet untested office: the Director of Legal Aid Casework.

5.4. The Bill represents a significant departure from the Access to Justice Act 1999 because "Advice and assistance is not currently means tested under the equivalent provisions of the 1999 Act" (see 3.4 at page 18 of Research Paper 11/53, and Explanatory Notes to the Bill at paragraph 111).

5.5. While there is merit elsewhere in ensuring that wealthy individuals pay for legal services which would otherwise represent a drain on legal aid, we contend that the introduction of means testing is inappropriate at the police station, when individuals are at their most vulnerable and in need of professional assistance.

5.6. Accordingly, the Bar Council recommends that Clause 12 be amended to provide as follows:

"Initial advice and assistance are to be available under this part to any individual who is arrested and held in custody at a police station or other premises."

5.7. The remainder of the clause should be deleted.

6. Clause 16: Advice and Representation in Criminal Proceedings

6.1. Section 12(1) of the Access to Justice Act 1999 enshrined the right to legal advice for those who faced criminal proceedings as follows:

"The Commission shall establish, maintain and develop a service known as the Criminal Defence Service for the purpose of securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require."

6.2. The importance of this statement of principle cannot be underestimated. It encapsulate s the duty to provide legal aid in cr iminal matters, imposed on the G overnment by the European Convention on Human Rights, Article 6(3): "Everyone charged with a criminal offence has the following minimum rights…(c) to defend himself in person, or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the i nterests of justice so require."

6.3. The Legal Aid Bill contains no corresponding provision positively stating the G overnment’s commitment to continue to provide legal aid in this area . I t is further feared that Clauses 14 and 15 pave the way for a ‘watered down’ version of this duty, by creating regulations which set the level of means testing so low that legal aid is effectively denied to all but the most impoverished.

6.4. The Bar Council recommends that the following clause should be inserted:

"Individuals involved in criminal investigations or criminal proceedings shall have access to such advice, assistance and representation as the interests of justice require."

6.5. The interests of justice test contained in Clause 16 in the Bill is unclear, and is to be administered by the holder of a new and untested office: the Director of Legal Aid Casework. It is not stated whether the qualifying factors in Clause 16(2) are to be read conjunctively or disjunctively (albeit that the factors mirror those at paragraph 5 of Schedule 3 to the Access to Justice Act 1999).

6.6. The Bar Council recommends that Clause 16 should be amended thus:

"In deciding what the interests of justice consist of for the purposes of such a determination, the presence of any one or more of the following factors will be determinative in favour of the individual qualifying for representation..."

7. Clause 45: Financial Remedies for the Unrepresented Litigant

7.1. This clause makes provisions for orders to be made by the court, in divorce/nullity proceedings, for one party to pay the other an amount sufficient for them to obtain legal services.

7.2. An application for such an order may involve a detailed study of bank accounts and company accounts, with likely opposition from the proposed payer. As a task requiring forensic analysis, this is not one that will be easily handled by, for example, a wife struggling to cope with the ordeal of a relationship breakdown and the new demands of childcare as a single parent.

7.3. The Bar Council recommends that applications for such an order should be included within ‘scope’ in Schedule 1 and that the Bill should be amended accordingly. If such an application is conducted professionally, it is far more likely to be successful in establishing the ability of the respondent to make the lump sum payment that would fund the litigation, and consequently enable both sides to be properly funded.

8. Schedule 1: Scope of Civil Legal Services

8.1. Paragraph 10 of Schedule 1 defines the situations in which legal aid will be provided with respect to victims of domestic violence (DV) and family matters.

8.2. We question why, in paragraph 10(9), the Government has chosen not to use the Association of Chief Police Officers’ (ACPO) definition of DV; namely:

"Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality.’ (Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.)"

8.3. Even under the Government’s recently revised proposals to include more DV victims within scope, we predict that over 40% of those who currently receive legal aid will still fail to receive it under these changes, of whom half will be at risk of serious harm (psychological and physical).

8.4. Given the high number of domestic violence incidents which go unreported, the Bar Council recommends that consideration should be given to further routes for legal aid, including:

· Admission to a w omen’s r efuge

· Accessing domestic violence s ervices

· Accessing medical professional services (general practitioner/ health visitor), and

· Situations in which the mediation assessment concludes that, because o f domestic abuse, the couple is not required to mediate.

8.5. The Government has not made any revisions to its proposals for providing legal aid in family cases for the perpetrator of domestic violence , or in protection from harassment cases. There are serious "inequality-of-arms" issues created by the lack of representation for the alleged perpetrator against the represented complainant.

8.6. In cases of this kind, issues around third-party disclosure often arise, requiring expertise that unrepresented respondents are unlikely to possess.

8.7. Furthermore, the legal process contemplated by these proposals will see the victim facing direct questioning by the unrepresented abuser. Far from protecting the victim from abuse, this will only serve to perpetuate (and increase) the victim’s trauma.

8.8. According to paragraph 11 of Schedule 1, legal aid for representation will only be available in private family law cases involving custody disputes where there is objective evidence of the risk of child abuse. These proposals are not likely to cover the "significant" number of private law cases where "serious child protection concerns are raised" (see the Interim Report of the Family Justice Review (30 March 2011)). [9]

8.9. The Bar Council recommends that Schedule 1 should be amended to ensure that parties to family proceedings automatically fall within scope if the court makes a section 37 order under the Children Act 1989:

"Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances."

8.10. At the very least, this should trigger an application to the Director of Legal Aid Casework for consideration of making legal aid available.

8.11. Moreover, it is not understood why this provision is limited to the provision of legal aid in proceedings relating to the children , and not the associated financial remedy proceedings. The child’s economic welf are is important in abuse cases; particularly given the higher incidence of abuse in low-income households.

8.12. Paragraph 12 of Schedule 1 provides for the provision of mediation in relation to private law family disputes. In failing to support mediation with the provision of legal advice and representation in such cases, the Government is choosing to ignore its own research – conducted alongside the preparation of the Bill and its Response to Consultation Paper CP12/10 – which revealed that parties experienced "problems" in mediation if they did not have the benefit of legal representation.

8.13. The Government continues to place excessive reliance on the likely impact of mediation on diverting cases away from the family court system. In its Response to Consultation Paper CP12/10, the Government maintains that it has considered (private law) family court diversion proposals, and relies on the fact that the Family Justice Review interim report outlined the benefits of mediation in supporting parties to resolve their disputes.

8.14. However, the Family Justice Review recognises that mediation is not a panacea, and that the prospects for successful mediation should not be over-emphasised:

"Where possible, disputes should be resolved independently or using Dispute Resolution Services such as mediation, when it is safe to do so. Parents who choose to use the court system must understand it will not be a panacea" (emphasis added) . [10]

8.15. Paragraph 13 of Schedule 1 provides for representation for the child in proceedings in which an order under Rule 16.2 is made, where the child is to participate in proceedings without a guardian under rule 16.6, or where the child is to be the applicant or respondent to the application.

8.16. The Bar Council recommends that legal aid should be available for all parties in such proceedings. These cases are, by definition, extremely complex and sensitive, and include situations in which:

· There are serious allegations of physical, sexual or other abuse in relation to the child

· There are complex medical or mental health issues to be determined, or other unusually complex issues

· There is an intractable dispute over residence or contact, including where all contact has ceased, where there is irrational but implacable hostility to contact, or where the child may be suffering harm associated with the contact dispute

· There are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court

· There is a contested issue about blood testing

8.17. Without amendment, the lack of representation for adult parties in such disputes will result in litigants-in-person being required to marshal (and cross-examine on) relevant and expert evidence in cases concerning the physical or sexual abuse of a child, when there may be concurrent police investigations, and evidence relevant to the court practice of foreign jurisdictions.

8.18. The Bar Council recommends that paragraph 13(1) of Schedule 1 be be amended to provide:

"Civil legal services provided to all parties in family proceedings – "

9. Schedule 5: the Right to Choose One’s Representation

9.1. As previously noted, Schedule 5 (paragraph 49) provides for the removal of sections 1 to 26 and Schedules 1 to 3A of the Access to Justice Act 1999.

9.2. Section 15 of the Access to Justice Act provided that an individual who has been granted a right to representation may select any representative willing to act for him and, where he or she does so, the LSC is to comply with the duty to provide for that representation.

9.3. There are no provisions within the Bill which replicate this important right. The importance of being able to choose one’s own representation - particularly to enable confidence in that representative - hardly needs stating, and should be provided for within the Bill.

9.4. Accordingly, the Bar Council recommends that the Bill should be amended to provide as follows:

"An individual who qualifies for representation may select any representative or representatives willing to act for him and where he does so, such selected representative or representatives should be funded."

10. Schedule 6: Costs in Criminal Cases

10.1. Part 1 at paragraph 3 of this schedule amends section 16A of the Prosecution of Offenders Act 1985 so that, where an individual is accused of a crime, chooses to pay for their own legal defence rather than burdening the state, and is later acquitted, they can only reclaim costs incurred in the Magistrates’ Court (or the Crown Court on appeal).

10.2. This alone is both unfair and illogical; even more so when the Government is doing nothing to reduce the burden on the legal aid fund by forcing wealthy defendants whose assets have been restrained to pay for their own defence, rather than granting them free legal aid and inflating the cost of legal aid to the taxpayer.

10.3. Despite the Bar Council’s repeated representations on the latter subject, the Government has refused to engage with these cost-saving proposals; yet it intends to make sweeping changes to defendants’ cost orders (DCOs) without consultation.

10.4. The Bar Council recommends that Schedule 6 should be either removed entirely or amended at Part 1(3) to read:

"(4) Condition B is that the accused is an individual and the legal costs were incurred in proceedings which were-

(a) proceedings in a Magistrates’ Court or

(b) proceedings in a Crown Court, including proceedings on an appeal to the Crown Court."

July 2011