Transforming legal aid: delivering a more credible and efficient system Consultation Paper CP14/2013

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1 31st May 2013 Philip Fletcher Chairman Mission and Public Affairs _ Transforming legal aid: delivering a more credible and efficient system Consultation Paper CP14/2013 Response by the Mission and Public Affairs Division of the Archbishops Council of the Church of England The Mission and Public Affairs Division welcomes the opportunity to respond to this consultation paper, in the pages that follow. Philip Fletcher Chairman Mission and Public Affairs Council The Mission & Public Affairs Council of the Church of England is the body responsible for overseeing research and comment on social and political issues on behalf of the Church. The Council comprises a representative group of bishops, clergy and lay people with interest and expertise in the relevant areas, and reports to the General Synod through the Archbishops Council. Church House, Great Smith Street, London SW1P 3AZ Direct Line +44(0) Switchboard: +44(0) Fax: +44(0) Website: DX: Westminster 5 The Archbishops Council of the Church of England is a registered charity

2 Transforming legal aid: delivering a more credible and efficient system Consultation Paper CP14/2013 Response by the Mission and Public Affairs Division of the Archbishops Council The Mission and Public Affairs Council does not wish to make representations on the proposals about competitive tendering for provision of legal services, or about the levels of fees. Our concern is that good legal advice and advocacy should be readily available to all who need it, especially those whose vulnerability places an obligation on society to ensure that they are not defenceless against unjust treatment by any person, organisation or agent of government. While many have raised concerns that both quality and choice in legal assistance may be prejudiced by a drive towards economies of scale and downward pressure on price, this response focusses rather on the needs of vulnerable people, as they are dealt with in Chapter Three (Eligibility, Scope and Merits). 1) Restricting the scope of legal aid for prison law Q1. Do you agree with the proposal that criminal legal aid for prison law matters should be restricted to the proposed criteria? Please give reasons. A. The equality implications of the proposals need further examination. The main text of the paper says We have had due regard to the impact of these proposals on those sharing protected characteristics, including those with learning difficulties and/or mental health issues, referring to Annex B. The relevant part of Annex B reads: The current prisoners complaints system was introduced in April 2012 and is set out in PSI 02/2012. The existing formal complaints process is predicated on a paper-based system. However, the policy documentation makes clear that governors must have arrangements in place that will allow a prisoner to make a formal complaint orally to a member of staff where the prisoner has difficulty doing so in writing. Often prisoners who have difficulty expressing their complaint in writing and who prefer not to make an oral complaint will seek the help of a fellow prisoner such as a Listener to assist with the process. These provisions are indeed contained in Prison Service Instruction 02/12. It is welcome that foreign national prisoners may write their complaints in their own language. However, the following problems arise: i. The PSI lays down detailed procedures to ensure that written complaints are not seen by any member of staff who may be directly involved with the prisoner. The suggestion that those who cannot write their complaint should speak to a member of staff contradicts this principle ii. The PSI then says that prisoners unable to write their own complaint can seek help from peers. In some cases this may be apt, but this group of prisoners is more likely than others to be vulnerable to influence or intimidation from other prisoners, so that reliance on those peers to write down their complaints is not appropriate. iii. The PSI lays down a special process for confidential access complaints likely to concern the most sensitive matters. There is no provision for those with 1

3 specific needs in this case the whole system presupposes ability to write on one s own behalf. Given that these are the current arrangements in prisons, it is reasonable to expect that those who, especially through disability, are not able to formulate or write down their own complaints should have access to legal aid to make a complaint, including complaints about treatment. B. Segregation. Where a prisoner is removed from association under Prison Rule 45 (segregation for good order or discipline) or under Rule 46 (close supervision centre), they will not have recourse to legal aid under the current proposals. These are severe restrictions, amounting in most cases to solitary confinement. It seems harsh to remove access to legal aid in this context, especially for that significant proportion of segregated prisoners who have significant vulnerabilities and very little support from family or peers. C. Adjudications. The paper proposes that disciplinary cases which did not engage the Tarrant criteria, which were not referred to an independent adjudicator and which did not involve the determination of a criminal charge and so did not engage the criminal limb of Article 6 ECHR, would no longer be funded. To date, the Tarrant criteria have been applied only when deciding whether to grant legal representation in person at a disciplinary hearing; that is the basis on which the criteria were established in the Divisional Court in 1983, and they do not include any reference to the prisoner s ability to understand what is happening. It is the experience of many NOMS adjudicators that those placed on report, especially those who are not experienced in adjudication processes through a consistent pattern of rulebreaking, often do not understand the quasi-legal processes and terms of the adjudication process. While adjudicating governors are generally conscientious in trying to explain everything to the prisoner, the accused prisoner frequently does not know what the charge formula means or how to plead in response to it. This applies still more clearly amid the complexities of charging for positive drug tests. Access to legal advice over the telephone is not a waste of public funds in such circumstances: at the least, adjudicating governors should have discretion as to whether there is a genuine need for access to legal advice in the particular instance, guided perhaps by a more appropriate set of criteria than Tarrant. D. Release on parole. While an exception is made in the consultation paper for Article 5.4 ECHR (right to have on-going detention reviewed), this is likely to relate only to direct challenge to a decision on continuance of detention, normally by the Parole Board. There are a number of administrative actions within NOMS which will significantly affect the outcome of such decision processes, especially in the case of indeterminate sentences, and notably post-tariff IPP prisoners. Some provision for legal aid for IPP prisoners, in respect of matters directly affecting their prospect of release (such as availability of offending behaviour programmes, and recategorisation) would be just. 2) Imposing a financial eligibility threshold in the Crown Court Q2. Do you agree with the proposal to introduce a financial eligibility threshold on applications for legal aid in the Crown Court? Please give reasons. In view of the current financial pressures, we do not wish to comment on the eligibility threshold provided that the hardship review system mentioned in the proposals is effective 2

4 in providing for those who genuinely cannot cover the cost of their defence. (Q3. Do you agree that the proposed threshold is set an appropriate level? Please give reasons.) 3) Introducing a residence test Q4. Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Please give reasons. The consultation paper proposes a blanket 12-month residence test. This creates some anomalies, firstly in respect of four groups which contain some vulnerable people who, in natural justice, merit some legal aid support, and secondly in respect of two specific groups of victims of crime: A. Four groups in particular would find their access to legal aid restricted under these proposals: 1) Asylum seekers who are granted status will not be able to access legal aid until 12 months after the date of grant (unless they had legal aid as asylum-seekers and are still receiving it at the date of grant). This appears to contravene Article 16 of the Refugee Convention 16.2 A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance 2) An asylum seeker whose appeal rights are exhausted will not be able to access legal aid to make a fresh claim although once they have made a fresh claim, they will again have the exemption for asylum-seekers. This is a Catch-22, since the great majority will need legal advice in order to make a fresh claim at all, especially if they have vulnerabilities additional to those inherent in their position as migrants. People in this group will not be able to obtain legal assistance on any issues connected with support and accommodation, even if they are destitute. Nor will anyone without status be able to obtain legal assistance in challenging removal on the basis of Article 8 rights to private and family life. 3) Those held in immigration detention under administrative powers will almost always not meet the residence test. This will hinder them, for example, in bringing legal challenge against their continued detention. 4) Many foreign national prisoners are also likely to be ineligible for legal aid under this provision including those who are mentally ill. B. The consequences are especially serious for the two groups who were specifically guaranteed access to legal aid in LASPO 2012, in relation to compensation claims and to their immigration status: victims of human trafficking, and those who have come to this country with a partner whose relationship then breaks down because they are victims of domestic violence. In relation to trafficking victims, the relevant European Directive commits HMG to: ensure that victims of trafficking in human beings have access without delay to legal counselling, and, in accordance with the role of victims in the relevant justice system, 3

5 to legal representation, including for the purpose of claiming compensation. Legal counselling and legal representation shall be free of charge where the victim does not have sufficient financial resources The provisions in LASPO 2012 should be maintained, as does not appear to be the case (save where there is an exceptional case determination) in the current proposals, until and unless the victim has been lawfully resident for 12 months. 4) Paying for permission work in judicial review cases Q5. Do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)? Please give reasons. This introduces a system analogous to no-win-no-fee for applications to the High Court for permission to bring a judicial review. It is evidently designed to restrict judicial reviews to those cases which the lawyer concerned believes to be almost certain to receive permission. This sets the bar very high, since there will be relatively few cases in which a lawyer is so certain of success as to risk being paid nothing for the work.. While it is fair to place some restrictions on legal aid for JR applications, it would be preferable to target those cases where there is no reasonable expectation of success, rather than to use the blunt criterion of actual success or failure. 5) Civil merits test removing legal aid for borderline cases Q6. Do you agree with the proposal that legal aid should be removed for all cases assessed as having borderline prospects of success? Please give reasons. Borderline cases are those which cannot be categorised either as having at least a 50% chance of success, or as having a poor chance; the inability to place in either of these categories being due to disputed law, facts or expert evidence. The small class of borderline cases currently eligible for legal aid includes court orders for possession of the applicant s home; domestic violence; and public law children cases, as well as a variety of other carefully defined types of case with special features. The stakes in many such cases are clearly high; and it still seems reasonable that in these cases the benefit of any doubt should be given. Borderline sounds, as presented in the consultation paper, as if it means poor in all but name it does not, and the rigorous definitions which are currently enshrined in the regulations should remain. 4

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