LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS BILL. Parliamentary Briefing by the Bar Council For Report Stage, House of Commons

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1 LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS BILL Parliamentary Briefing by the Bar Council For Report Stage, House of Commons The Bar Council represents over 15,000 barristers in England and Wales. 1 A strong and independent Bar exists to serve the public and is crucial to the administration of justice. As specialist, independent advocates, barristers enable people to uphold their legal rights and duties. They often act on behalf of the most vulnerable members of society and sometimes in unpopular cases. The Bar makes a vital contribution to the efficient operation of criminal and civil courts. It provides a pool of talented men and women from increasingly diverse backgrounds from which a significant proportion of the judiciary is drawn, on whose independence the rule of law and our democratic way of life depend. Introduction In times of financial austerity, all must tighten their belts, and the Bar accepts that it must bear its share of the burden. But justice does not come at any price. The Government has opted for cut price justice, against the views of the overwhelming majority of respondents to its consultation on legal aid. The Bar Council is very seriously concerned about the Legal Aid, Sentencing and Punishment of Offenders Bill. Our concerns reflect those of the profession as a whole, including the Family Law Bar Association, the Criminal Bar Association, the Personal Injury Bar Association and the Young Barristers Committee. Earlier this year the Bar Council submitted a substantial response, 2 on behalf of the entire Bar of England and Wales, to the Ministry of Justice s consultation (CP12/10) on the reform of legal aid. The response, which drew on the submissions of eight Specialist Bar Associations, six Circuits, economists, statisticians and academics, included proposals for savings of 350m in the administration of justice. The Bar Council also submitted a separate response to the Ministry s proposals for reform of civil litigation funding to implement Lord Justice Jackson s recommendations %20Green%20Paper%20Legal%20Aid%20Reform%20-%20Final%2014%2002% pdf 3 %20Green%20Paper%20Civil%20Litigation%20Funding%20-%20Final%2014%2002% pdf 1

2 The Government s response to the consultation on legal aid reform (CM 8072), 4 published on 21 June, showed that the Bar s views (including its proposals for alternative cost savings) have been almost completely ignored. The Bar s main concerns summarised Part 1 Part 1 of the Bill removes from the scope of legal aid every area of law except those expressly included in Schedule 1. It also repeals sections 1 to 26 and Schedules 1 to 3a of the Access to Justice Act 1999, which sets out the statutory framework for legal aid in England and Wales. It abolishes the Legal Services Commission, transfers the administration of legal aid to the Lord Chancellor and creates a new statutory office holder, the Director of Legal Aid Casework. The Bar Council s main concerns about Part 1 of the Bill can be summarised as follows: The Government has failed to replace the duty enshrined with the Access to Justice Act (and repealed by this Bill) to ensure that individuals have access to legal services which effectively meet their needs. As a result, access to justice will be seen as an unaffordable luxury. Page 1, line 9 [Clause 1], after `aid) insert `for the purpose of securing practical and effective access to justice for individuals. Page 2, line 3 [Clause 1], after `aid) insert `for the purpose of securing that individuals involved in criminal investigations or criminal proceedings have access, regardless of their means, to such advice, assistance and representation as the interests of justice require. 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 and honest, hardworking families will have to go to court by themselves. This is DIY justice, not access to justice. The Bill allows the Lord Chancellor to omit further services from the scope of legal aid, but not to include them again in the future. The Government has justified swingeing cuts to the justice budget, and to legal aid in particular, by the dire state of the nation s finances. It also promises that difficult decisions now will lead to a healthier economy in the future. In the light of the significant social and financial costs likely to be incurred by 4 2

3 these cuts, the Lord Chancellor should be empowered to bring services back within the scope of legal aid in less austere times. Page 5, line 41 [Clause 8], before `omitting insert `adding services to or. Page 5, line 42 [Clause 8], after `Schedule insert `or by amending any description of services included in that Part. The Bill proposes that legal aid should be provided for some alleged victims of abuse in private divorce and children proceedings, but not the alleged perpetrator. The Government has chosen to retain legal aid for some alleged victims of domestic abuse, and children where they are parties to private family law proceedings, while other adults will go unrepresented. This will almost certainly result in those alleging abuse, including children, being cross-examined by the accused, creating significant risks to their welfare through the court process. Page 103, line 4 [Schedule 1], at end insert `or where an allegation is made that B has been abused by A or is at risk of being abused by A. Page 105, line 42 [Schedule 1], leave out `to a child. Page 105, Page 106, Page 106, line 43 [Schedule 1], leave out the first `the and insert `a. line 12 [Schedule 1], leave out the first `the and insert `a. line 3 [Schedule 1],leave out the first `the and insert `a. The circumstances in which a person suffering domestic abuse can qualify for civil legal aid, as outlined within the Government s response to its consultation on legal aid, are excessively narrow. The Bar Council urges the Government to ensure that vulnerable victims receive the advice and assistance they need by allowing them to qualify for legal aid if they have been admitted to a refuge, referred by a mediator for reasons of domestic abuse, or obtained medical or other professional services as a consequence of their abuse. We also see no reason why the Government should not adopt the definition of domestic abuse used by the Home Office and the Association of Chief Police Officers (ACPO), which is wider than the definition put forward in the Bill. The Government has 3

4 recently stated its intention for those who fall within the ACPO definition to be eligible for legal aid and we call on it to remove any uncertainty by adopting the ACPO definition in the Bill. Page 103, line 3 [Schedule 1], after `family insert `or other intimate. Page 100 line 35 [Schedule 1], leave out `physical or mental abuse and insert `any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional). Removing legal aid for victims of clinical negligence will leave many with valid claims unable to seek legal redress. Even in the most distressing cases, establishing whether a victim of clinical negligence has a legitimate case to pursue involves interpreting complex medical reports and witness statements. No win, no fee lawyers are unlikely to be willing to undertake this intricate work without payment. Clause 12 threatens to limit advice and assistance at the police station through secondary legislation, which may include the introduction of financial means testing. This has the potential seriously to undermine the fundamental right to legal advice upon arrest and detainment, at a time when individuals are at their most vulnerable and in need of assistance. Experience over the years shows that errors and abuses at the police station are responsible for miscarriages of justice which can be exceptionally difficult and costly to resolve. Bar Council amendment: Page 8, line 32 [Clause 12], leave out from `premises to the end of line 21. 4

5 Part 2 Part 2 of the Bill seeks to bring in selected recommendations from Lord Justice Jackson s review of civil litigation funding. These include capping the amount of any success fees and removing the recoverability of both success fees and after the event ( ATE ) insurance premiums from unsuccessful defendants, which would shift the cost of civil litigation onto successful claimants. The Bar Council s main concerns about Part 2 of the Bill are as follows: The Government s proposals will lead to claimants being undercompensated for their injuries. In our legal system, damages are calculated to compensate precisely each claimant for the loss he or she has suffered. If success fees and ATE insurance premiums are not recoverable from unsuccessful defendants, they will have to be paid by `raiding the damages awarded to the claimant. The Bill s civil litigation provisions have been cherry-picked from Lord Justice Jackson s wide ranging recommendations. He also recommended a 10% increase in damages to soften the impact of these changes, and for the investigatory stages of clinical negligence claims to remain within the scope of legal aid. Both of these proposals which the Bar Council accepts would have gone some way to counterbalancing the negative effects of the changes have been excluded from the Bill. Lord Justice Jackson himself has expressed very great concern about this. The banning of commercial referral fees a highly popular recommendation of Jackson LJ must be implemented across the board. The Government has now tabled an amendment to the Bill for a ban for personal injury cases, but the Bar Council urges it to go further. The choice of lawyer should not be influenced by who paid what to whom, but should be decided purely on the quality and skills of the individual and their ability to advocate the client s best interests. The net effect of these reforms will be to deter no win, no fee lawyers from taking on many worthy cases, thus limiting access to justice for those who have suffered loss or injury and who cannot afford to take the risk of losing and having to pay their own legal costs, and those of the other side, by their own means. Since the abolition of legal aid for normal personal injury cases, lawyers have relied upon the receipt of success fees in cases which are won in order to fund their work on the cases which are lost. The upshot of these reforms is that they will only be able to take on cases which are obvious winners. That will shut out from legal representation large numbers of claimants with good but complex cases, who will either have to represent themselves or bring no claim. In contrast, in most litigation bought under this system, the defendant is a business and is fully insured against paying damages and costs. So the overall cost of funding 5

6 litigation in this way is distributed among the insured community as a whole. It is businesses and insurance companies which will benefit from these changes, and injured individuals who will suffer. Withdrawing access to justice for vulnerable people is no way to remedy a perceived compensation culture. In fact, ATE insurance is itself a commercial market, acting as a brake on unmeritorious litigation. Most ATE insurers require an independent opinion on the merits of a claim before agreeing to insure. The system is a valuable filter, ensuring that bad claims are not carried forward. These reforms have been further justified by the misinformed assumption that claimants will police costs more carefully if they have more of a stake in the litigation. In reality, claimants have very little control over the quantum of costs, while defendants liability in costs is, to a large extent, in their own hands (as the cost shifting regime provides an incentive for them to make early admissions and offers). Part 2 of the Bill seeks to turn back the clock to the days when the only people adequately compensated for harm caused by others wrongdoing were the very rich, who could take on the risk of losing. These reforms will not save the taxpayer money. Indeed, they will result in a significant increase in the number of cases being brought by unrepresented litigants, which will in turn lead to lengthier trials and an increased court costs burden on the taxpayer. Page 29, line 6, leave out Clause 41 Page 31, line 1, leave out Clause 43 At the end of Part 2, rather oddly located, is another worrying proposal: namely to amend defendant cost orders (DCOs) 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). 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. 6

7 Bar Council amendment: Page 146, line 17 [Schedule 6], leave out from `proceedings to `under and insert `in the Crown Court including an appeal. Part 3 Part 3 of the Bill makes provisions relating to the sentencing and punishment of offenders (which nevertheless remains largely governed by the Criminal Justice Act 2003). The Bar Council and the Criminal Bar Association (CBA) broadly welcome many of these provisions, and applaud the Government s efforts to convert prisons into places of hard work and rehabilitation. Nevertheless, the Bar Council and the CBA have four key concerns about Part 3 of the Bill: The potential impact of the extension of recall provisions within the Criminal Justice Act 2003 to all prisoners, and not just those sentenced after this stricter regime was put in place in 2005, may have been underestimated. We call on the Government to ensure that the making of any such order occurs only when the Lord Chancellor is content that it will not adversely affect the management of prisons. Bar Council amendment: Page 82, line 41 [Clause 102],at end insert `( ) A draft laid pursuant to subsection (5) must be accompanied by a written statement that the Secretary of State is satisfied that the making of the proposed order would not adversely affect the management of prisons (as a result of any consequent increase in the prison population or otherwise). The Bill only allows for prisoners to be incentivised to work through monetary payment. Other tangible rewards could enable further savings to be made from the justice budget, as well as reinforcing hard work, such as increased visitation rights, day or weekend release and, ultimately, early release on licence. 7

8 Bar Council amendment: Page 83, line 27 [Clause 103], at end insert `( ) early release of prisoners, or the award to prisoners of privileges or benefits in relation to the place, conditions or other circumstances of their detention, instead of the whole or part of any such payment. The new offence of threatening with an offensive weapon is already covered by existing laws, and is little more than tough on crime window dressing on a Bill which is actually intended to reduce the prison population and the associated cost to the State. The imposition of yet another new offence on the statute books, with no real implications in practice, would be a waste of Government time and resource. Bar Council amendment: Page 93, line 19, leave out Clause 113. The Bill contains little to convince us that the Government is committed to using the expertise of the private, voluntary and community sectors to develop the working prison. The Bar Council and the Criminal Bar Association wholeheartedly endorsed the intentions expressed within the Breaking the Cycle consultation paper to call on these sectors for advice, and call upon the Government to enshrine them in statute. Bar Council recommendation: To move the following Clause - `Advice on exercise of Chapter 4 and 5 functions Placement: after Clause 105 (1) The Secretary of State must make arrangements to receive advice from independent persons about the exercise of the functions conferred on him as a result of any provision of Chapter 4 or 5 of this Part. (2) Those persons must include individuals with expertise or experience which the Secretary of State considers relevant to the placement of offenders with social and commercial enterprises.. 8

9 Further information Toby Craig Head of Communications The Bar Council High Holborn London WC1V7HZ Tel: (direct) E: 9

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