Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Cris McCurley, Partner Ben Hoare Bell LLP (LA 42)

1. I am gravely concerned about the provisions in the bill which concern domestic abuse. Her Honour Baroness Hale in the case of full citation (Yemshaw v London Borough of Hounslow [2009] EWCA CIV 1543; [2010 8LR23]) quoted the United Nations CEDAW convention in terms of the definition of domestic violence. It is quite clear that the Green Paper on Legal Aid, relying so heavily as it did on domestic violence in terms of actual physical violence was not compliant with the United Kingdom’s duties and responsibilities as signatories to the CEDAW convention.

2. Many of those giving evidence have been challenged by members of the Public Bill Committee (particularly members from the Conservative Party) and it has been repeated many times that the bill has widened the definition from purely physical violence which was the requirement under the Green Paper. This either betrays an ignorance of the law or at worst, dishonesty on the part of those members. Under the bill, three forms of evidence are required in the alternative as proof that there has been domestic abuse:

a) A criminal conviction within the last 12 months,

b) A finding of fact hearing against the perpetrator within civil or family proceedings within the last 12 months,

c) The victim of abuse has had their case taken up by MARAC and a plan instituted within the last 12 months.

3. What is the point of extending the definition of domestic abuse to include the non physical when all three types of proof required in order to trigger the granting of legal aid are entirely and completely reliant on physical violence? They render redundant the gesture, and it can only be called a gesture made by this "concession" as mere lip service without substance.

4. Women’s Aid have done some truly excellent research on domestic violence over the last 20 years. Without exception, this research shows that women can be completely crushed emotionally just as capably by emotional cruelty as by physical. This renders them unable to fight their own corner. As a minimum, the means of proving domestic abuse should be extended to those required to prove domestic abuse for the satisfaction of the UK Border Agency in immigration "two year domestic violence concession" rules namely a report from a doctor or a report from an IDVA or refuge worker, even a retrospective report.

5.  In my experience, women do not make up allegations of abuse. They find the whole issue of going to court highly traumatic and no-one has ever entered into lightly. My own experience of over 23 years as a domestic violence specialist is that it is extremely traumatic for women to talk about the abuse and having to give evidence in court amounts to re-living it. It is consequently difficulty to get some of the worst aspects of abuse out into the open because of women’s reluctance to discuss it.

6. Possibly the most vulnerable of all women are the women who come into the country as spouses. They are deprived of contact with the outside world in many cases, often suffering abuse from extended family members. Many do not speak English and are refused permission to learn. Their ability to access professionals to report abuse to, is incredibly limited. Many would not know about police assistance, and would not trust it because of what the police are like in their home jurisdictions, many are escorted and monitored so that they are never able to speak openly to a helping professional such as a police officer or a doctor. How are these extremely vulnerable women, often the most abused victims that I deal with, to be expected to make their own application for a two year domestic violence visa concession? My practice does not deal with immigration work but this is probably one of the most concerning aspects of the proposed legislation as far as I am concerned. I would urge a re-think on removing legal aid for this one aspect of immigration law if nothing else.

7. Lastly, the bill itself begins with a statement by Ken Clark that there is nothing incompatible with UK equality legislation on international legislation. I would like to ask him in what sense he means that because as far as I can see, it discriminates against women, black and minority ethnic people, people with disabilities and the LGBT communities: in other words the most vulnerable members of our community. It was recently pointed out to me at the Family Justice Council Diversity Committee of which I am a member, that the percentage of the BME population when taken as a part of the whole of the UK population is approximately 8%. Statistically therefore anything that impacts the BME community over and above 8% is a disproportionate impact. The Government’s equality impact assessment makes it clear on that basis that the bill is discriminatory and one can only draw the conclusion that the declaration in the Green Paper and in the bill that the intention is to preserve legal aid for the most vulnerable is a knowingly dishonest statement.

July 2011

Prepared 20th July 2011