Tag Archive | "The court of appeal"

The need for a review of legal aid

The Legal Aid Act has denied justice to the most vulnerable and must be reviewed. The government is committed to a review after three years but there is mounting evidence that it should come sooner.

On people trafficking, when LASPO came into force, the Legal Aid Agency (LAA) didn’t include such claims within a mainstream contract category, instead bundling them into the “miscellaneous” category along with around 20 other types of case. The result is that organisations bringing these sorts of cases are severely limited in their ability to do so. The Lord Chancellor has agreed to conduct an urgent review of legal aid provisions for people bringing compensation claims against their traffickers.

The legal aid cuts have added to the strain on divorcees. Evidence gathered by Citizens Advice shows that nine out of 10 people who have gone through the family courts, under new rules that heavily restrict access to legal aid, suffer strain in their mental and physical health, working lives and finances. The system is not set up to deal with “litigants in person” (LiPs). Of those who chose to be litigants in person, 90% reported a negative impact on their everyday lives.

Three years after the government scrapped legal aid across swaths of civil law, more ‘advice deserts’ are materialising in the sectors that remain in scope. A number of areas have no cover at all. The Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

The Court of Appeal has upheld a challenge to the government’s changes to legal aid for victims of domestic violence. The Law Society backed the challenge brought by the Public Law Project. Society president Jonathan Smithers said: “The LASPO legal aid cuts have resulted in radical consequences for access to justice with the worst impact affecting the poorest and most vulnerable sectors of society. Survivors of domestic violence should not be subjected to the over-strict tests required by the regulations as they now stand.”

The Low Commission was established by the legal education charity Legal Action Group in 2012 in the wake of the legal aid cuts to develop a strategy for access to advice and legal support in social welfare law in England and Wales. It was set up to examine the impact of legal aid cuts and develop a strategy to help ensure access to justice. It is to be wound up because of a lack of funds.

When Jeremy Corbyn was elected leader of the Labour party last September one of his first acts was to announce an immediate review of legal aid. He said: “I have asked Willy Bach, the former Shadow Attorney General, to undertake an immediate review of the assault on Legal Aid by the Government over the last five years.”

He went on to say: “Even though it is clear that the consequences of Part One of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) are disastrous, the Government refuses to review the way in which the Act is working.”

Corbyn will agree with the 22 signatories, including Chantal-Aimée Doerries QC Chair of the Bar Council and Jonathan Smithers President of the Law Society, to a recent letter in the ‘Guardian’. Short and to the point it said: “We believe the legal aid reforms have had a severe impact on the ability of vulnerable people to access justice since they came into effect on 1 April 2013. We agree with the justice select committee that the cuts have limited access to justice for some of those who need legal aid the most.”

It concluded: “The government has repeatedly said it will carry out a review to assess the full impact of the legal aid changes after three years. Today we call on ministers to fulfil this commitment at the earliest opportunity. We believe it is vital for government to ensure nobody is denied access to justice based on their ability to pay.”

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Legal aid restrictions

The government has loosened a controversial restriction preventing some victims of domestic abuse from accessing legal aid.

Domestic abuse victims currently have to provide evidence that abuse has taken place within the past 24 months in order to qualify for legal aid. A technical provision in the civil legal aid (procedure) regulations 2012 meant that when cases reached a final hearing, legal aid could be withdrawn if the evidence was considered to be out of date.

Having listened to concerns from representative groups, a spokesperson for the MoJ said the government was “absolutely clear that victims of domestic violence must receive legal aid in order to break free from abusive relationships.” He added: “Ministers have agreed to amend the rules so that victims of domestic violence can be confident they will receive the support they need.”

Law Society president Andrew Caplen expressed pleasure that the government had fixed ‘this unconsidered technicality’. The change follows intense lobbying by the Law Society and other practitioner groups. The Society argued that it could not have been parliament’s intention to grant legal aid initially only for it to be withdrawn in the middle of proceedings.

Another set of legal aid restrictions is now the subject of an action before the court of appeal. The restrictions delay prisoners’ rehabilitation and mean that thousands of prisoners are being prevented from starting rehabilitation because they are denied legal aid for parole board hearings.

Concerns over the removal of legal aid from internal prison hearings have focused on problems that inmates have in moving to open prisons so they can begin courses that pave the way to eventual release. It particularly affects prisoners serving indeterminate sentences.

The appeal, brought jointly by the Howard League for Penal Reform and the Prisoners’ Advice Service, argues that taxpayers are now having to pay to keep prisoners inside for longer than is necessary. According to the charities’ submission, without a move to open conditions a standard indeterminate-sentence prisoner will almost certainly never be released.

The barrister representing the Howard League for Penal Reform and the Prisoner Advisory service, said that all areas of prison law have been removed from the scope of legal aid in what amounts to a systematic unfairness.
She said: “Many prisoners cannot access the process themselves. Prisoners live in a closed world. They can’t access outside resources. They can’t go to the Citizens Advice Bureau. The complaints systems and the ombudsman system do not provide the fairness that is lacking [in the current system].”

She added that there was no provision for funding in exceptional cases. “There’s no flexibility here. Nothing can be done.”

The Legal Aid Agency argues, Kafka-like, that inmates who have not yet served their sentence tariff are not entitled to legal aid because their liberty is not at stake. The Ministry of Justice maintains that the internal prison complaints system and the prisons ombudsman are capable of dealing with the problem. That remains to be seen.

The court of appeal reserved judgment.

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