Tag Archives: legal aid

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LAA must give reasons about funding expert assessments in care proceedings – Eleanor Battie

justice24-300x199R (on the application of T) v Legal Aid Agency (formerly Legal Services Commission) [2013] EWHC 960 (Admin) Collins J, 26 April 2013 read judgment This successful challenge to a decision by the Legal Aid Agency (LAA) arose from an expert assessor in family proceedings – not unnaturally – refusing to begin work unless funding was in place. If the LAA are asked to fund an assessment on behalf of a party with legal aid, then it is common for lawyers to obtain prior authority from the LAA to ensure that the expert will be paid for their work. If not, then the lawyers themselves can be liable for an expert’s costs. In this case, prior authority to pay for the expert assessment had been refused by the LAA thus resulting in further court hearings and delay in the resolution of the case for the children.

The application for judicial review of the LAA came before Collins J. He concluded that:

For the reasons given the decision of the defendant was wrong in law. Reasons have not been given. This might not have led to any relief beyond a declaration if I were persuaded that the only result could be that the decision was confirmed. Not only am I not so persuaded but I find it difficult to see that it would be reasonable, at least without engaging with the judge whether in writing or orally, to fail to comply with what she has decided is necessary. Continue reading →

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No cash from the UK to avoid Indonesian firing squad

Lindsay SandifordSandiford, R(on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] 168 (Admin) – read judgment

In this highly publicised case, the Administrative Court has come up with some firm criteria for the scope of the Convention’s protective reach for UK citizens abroad. The judgment is also something of a body blow for those who are looking to the EU Charter of Fundamental Rights and Freedoms for a wider human rights umbrella.

Lindsay Sandiford, the 56 year old claimant, was arrested for drug smuggling in Indonesia and sentenced to death. She issued judicial review proceedings seeking an order requiring the FCO to provide and fund an “adequate lawyer” on the basis that she had not had proper representation in Indonesia. The broad basis of this claim was that the UK government should back up its opposition to the death penalty by putting its money where its mouth is. Continue reading →

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Legal aid: Government backs down on clinical negligence and domestic violence

The Ministry of Justice has proposed two important amendments to the Legal Aid, Punishment of Offenders and Sentencing Bill.

As has been predicted for a number of months, the proposals will bring a limited number of clinical negligence claims and claims arising as a result of domestic violence back within the scope of legal aid. The clinical negligence exception only relates to claims arising whilst a person was still in their mother’s womb, or 8 weeks after their birth. If the baby is born before 37 weeks gestation, the legal aid clock will begin to tick from the date they would have been 37 weeks gestation. The victim must also be “severely disabled” as a result.

As to domestic violence, the amendments are to provide legal aid for civil claims where:

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Lord Justice Jackson: legal aid should remain for clinical negligence

Lord Justice Jackson spoke in strong terms last week to the Cambridge Law Faculty on the controversial topic of legal aid and legal costs reforms.

The architect of the proposed reforms to legal costs made clear his position on the government’s proposed amendments, set out in the Legal Aid, Sentencing and Punishment of Offenders Bill, which was reviewed by the Committee of the House of Commons today, 13 September (listen to the committee recording here). He was keen to highlight which parts of the reforms reflect he views expressed in his report, and which parts he does not consider to be in the interests of justice. He said, in summary:

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Lady Hale on access to justice, legal aid and staying at The Ritz

As reported by Guardian.co.uk, Lady Hale, one of the 12 UK Supreme Court justices, has said in a speech to The Law Society that the government’s proposed reforms to legal aid will have a “disproportionate effect upon the poorest and most vulnerable in society“.

Although the current crop of senior judges has not been afraid to express opinions on controversial issues, it is unusual for a sitting senior judge to criticise current and controversial government plans. The Legal Aid, Sentencing and Punishment of Offenders Bill has only just been published, and is being debated tomorrow in Parliament. The Guardian.co.uk article presents the comments as a “direct challenge” to the policy. However, upon a closer reading, Lady Hale cleverly steered clear of criticising the plans in her own words, but rather quoted the government’s own analysis of the bill.

The speech was entitled Equal Access to Justice in the Big Society, and was in memory of solicitor Henry Hodge, and can be downloaded in full here (PDF). It is also republished below the page break.

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No legal aid cuts to avoid bad days in court

R (on the application of Evans) v The Lord Chancellor and Secretary of State for Justice [2011] EWHC 1146 (Admin) - Read judgment

The High Court has found that the Ministry of Justice, when making a decision to cease the state’s funding of judicial review challenges on purely public interest grounds (apart from one exception), took into account the fact that to do so would reduce the number of decisions being made which were not in the government’s interests. Unsurprisingly, the Court to concluded that the decision was unlawful and should be quashed.

The Applicant applied for judicial review of a decision by the Respondent to amend the Legal Services Commission (LSC) Funding Code, which funds litigation for those who meet certain criteria. The effect of the amendments, which were introduced in April 2010, was to prevent public funding by the LSC for judicial review proceedings (challenging decisions of public bodies) which were pure public interest challenges. That is, where the Applicant stood to gain nothing from the litigation and was bringing it solely to promote a particular public interest. The one exception was in environmental cases.

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Beware the poor lawyer: the legal aid reform responses

The consultation on the Government’s proposed reforms of legal aid closed on Monday 14th February. The reforms amount to a substantial reduction in the scope of and eligibility for legal aid.  When opposition to reform of access to forests can force a Government U-turn, can opposition to reform of access to justice do the same?

In a recent interview with the Daily Telegraph,  Clarke was said to be sanguine about criticism of legal aid cuts:

Oddly enough, I’m not in as much difficulty as I thought.

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Legal aid cuts: Do we spend more on legal aid than other countries?

Updated | One of the many points of interest from yesterday’s announcement that legal aid is to be cut by £350m per year was the underlying justification, put by Ken Clarke in his announcement, that England and Wales spend more on legal aid than other countries.

The Justice Secretary said that “we currently have one of the most expensive legal aid systems in the world“. But where does this often-quoted statistic arise from?

In its consultation document, the MoJ quotes (at para 3.43) a report commissioned from the University of York into comparative international legal aid systems. The report, Efficiency and quality of justice European Commission for the Efficiency of Justice (CEPEJ); International comparison of publicly funded legal services and justice systems, was produced in October 2009 by Roger Bowles and Amanda Perry. It investigated the legal aid systems in Australia, Canada, France, Germany, Netherlands, New Zealand and Sweden and compared these to the system in England and Wales.

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Legal aid cuts, the aftermath

Updated | The legal community has been digesting yesterday’s announcement of government plans for legal aid to be reduced by around £350 per year from 2014-15.

Most commentators and legal professionals are worried that less money for legal representation will lead to less access to justice for the poorer members of society. But some have also expressed relief that the criminal legal aid scheme has been left largely untouched, as have funding for inquests, judicial reviews and asylum cases.

For those who have a view on the reforms, the Ministry of Justice has an online questionnaire which can be filled in here.

Nicholas Green QC (Chairman of the Bar of England and Wales: “A permanent contraction of justice cannot be justified by the “big society” or by any sort of philosophical mantra. Ultimately an efficient justice system is fundamental to the wellbeing of the country. We only have to look at our television screen at events unfolding in Burma and elsewhere to see the undeniable truth of that proposition.”

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How much free work should a lawyer do?

Today marks the beginning of National Pro Bono Week, with events being held across the country to celebrate the range and impact of pro bono work undertaken by solicitors, barristers and legal executives. A calendar of events can be found here.

How much pro-bono, or free, work should a lawyer do? This is a question which I have heard asked surprisingly rarely. I cannot recall the topic being addressed during my legal training, although pro-bono work was generally encouraged not just as charity but also as an excellent way of gaining legal experience with a view to finding a job. This was certainly my experience, and I cannot stress enough how valuable my work at the Free Representation Unit was in providing an interesting and valuable insight into representing real clients.

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Feature | The duty to investigate deaths under human rights law: Part 2

R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) – Read case

Part 2 of Matthew Hill’s feature on the duty to investigate deaths under human rights law (read Part I).

A recent High Court decision (see previous post) concerning the funding of a party at a coroner’s inquest has highlighted the importance of distinguishing between the two different types of investigative duty that arise under Article 2 ECHR.

It is argued in this post that imprecise terminology and a failure to appreciate that Article 2 is engaged in Jamieson as well as Middleton inquests has confused this area, and that the learned judge in R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin) erred by eliding the investigative duties and the case-law from which they emerged.

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Inquests and legal aid for relatives of the dead

Recent weeks have seen considerable media attention paid to the role of inquests and their increasing significance for relatives of the deceased.

Article 2 of the European Convention on Human Rights, providing legal protection for everyone’s right to life, in some circumstances requires investigation into a death such as an inquest. It places a duty upon the state to ensure the investigation is properly conducted. This may entail providing funding, such as legal aid given to relatives so they may be represented at the hearing.

On 1 May 2010, The Times published “How coroners have become the public voice of grieving relatives” which considered the trend in recent years for coroners to take a role similar to that taken by a chair of a public inquiry. Frances Gibb wrote that David Ridley, a coroner in an inquest for two soldiers killed in Afghanistan, made comments which will give some comfort to grieving relatives. Only two days earlier, another coroner, David Masters, “castigated US authorities’ failure to cooperate in an investigation into the “friendly fire” deaths of three British soldiers”.

The article goes on to note that

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Refusal to grant legal aid to mother for inquest into son’s death was unlawful

Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)

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It would seem that legal aid is the topic of the day. Mr Justice Hickinbottom in the High Court has quashed the decision of the Legal Services Commission (LSC) not to grant an applicant for Judicial Review, Mrs Humberson, legal aid for representation at the inquest enquiring into the death of her son, Dante Lee Kamara. The judge took the opportunity set out five criteria which the LSC should apply when considering future applications (listed after the page break below).

Dante died in hospital on 1 July 2008 after an asthma attack. He was aged 10. The judge criticised the LSC’s decision not to grant funding to his mother, saying:

95. I regard the failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision making process: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.

Article 2(1) of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law“. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. This also encompasses a duty, in some circumstances, to investigate a death, and if necessary, provide funding so that the investigation, including an inquest, functions properly.
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Legal aid is a human right, even for politicians

Three MPs who are being prosecuted for their role in the parliamentary expenses scandal have been granted legal aid.

However, contrary to what the the Prime Minister said yesterday afternoon, Jim Devine, David Chaytor and Elliot Morley will only have to pay back the money if they are found guilty.

The case and ensuing political furore highlight two important aspects of the legal aid scheme from a human rights perspective.

First, that financial legal assistance in criminal cases is a human right. As Joshua Rozenberg points out on his Standpoint Blog:

Article 6(3)(c) of the Human Rights Convention says that everyone charged with a criminal offence has the right to defend himself through legal assistance of his own chosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

The second important point is that from June, the right to legal aid in serious criminal prosecutions will be limited by the introduction of means testing.

The scheme is undergoing significant changes primarily in order save costs. In 2008/9 £2.186 billion was spent on legal aid, with 53% spent in the criminal courts, amounting to 1/630 of government expenditure. In order to reduce that figure, from June 28 this year criminal legal aid in the Crown Court, where more serious criminal offences are tried, will become means tested. Legal aid in the Magistrates’ Courts, where less serious offences are tried, is already subject to means testing. The Legal Services Commission now hopes to save a further £35m per year.

From June, anyone with a net (i.e. after tax) disposable income of more than £3,398 per year and with capital of over £10,000 will have to contribute to their own legal expenses when prosecuted in the Crown Court. As such, the three MPs would probably not receive full legal aid under the new scheme.

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