Legal Aid, Sentencing, and Punishment of Offenders Act 2012 Impact

Legal Aid in the UK has always been a mean for underprivileged to have a right to access to justice. Cornford addressed the meaning of ‘access to justice’ as every citizen should be equally able to defend her legal right by having availability to professional assistance[1]. Also, Dicey expressed his view implicitly that the public authorities should liable to ordinary citizens’ legal right and make no difference than others[2]. However, the legal aid today seems to have not fulfilled the definition that academics suggested. Since Legal Aid, Sentencing, and Punishment of Offenders Act 2012 (LASPO) was implemented, more people are being denied access to justice. Its object is reducing budget on legal aid in order to locate resources in more urgent areas. Although the act is out of good faith, the cuts made to the budget have in fact shut the doors for the underprivileged who seek righteousness through the courts, as statistics show that the total legal aid grants have reduced from £2,431m in 2009/10 to £1,554m in 2016/17 after LASPO introduced[3]. By analyzing the radical changes in civil legal aid after the reform 2012, this essay will demonstrate an exponential population facing impediment in entering justice.

Impact on Family Law after LASPO 2012

Post-LASPO, the number of family legal help matter declined sharply from 309,054 in 2009/10 to 205,617 in 2012/13[4]. The geographical barrier is one of the culprits who holds responsible for the downfall of legal help. The Law Centres Network denoted after the first year of LASPO implemented, nine Law Centres have closed provoking a detrimental outcome — ‘advice deserts’ is formed[5]. The destitute public is more reluctant to seek legal help when they have to travel day and night for times and bear costly transport expenses. In 80% of family court cases in 2013-14 at least one side did not have legal representation[6]. Still, the government insisted that family law is less complex and significant compared to other legal issues, mediation is then deployed as the alternatives to family court. But there are cases where mediation is inapplicable and need to find resolutions in family court, for instance, domestic violence. To be eligible in civil legal aid, it requires ‘triggering evidence’ which shows the person is at risk of being a victim of domestic violence. Evidence criteria could be a merit in a sense of reducing admission cost when dealing with unnecessary cases. Yet, for victims, gaining this evidence could be costly and difficult where no help or funding would be given to the victims during the process. Based on a survey taken by Right of Women, Women’s Aid and Welsh Women’s Aid, it indicated that half of the women who suffered from domestic violence did not have the evidence that family law legal aid required[7]. Victims are forced to gain evidence with their own resources and those without evidence would have to drop the case or face the abuser on their own as a self-representing litigant. In Shazia Choudhry and Jonathan Herring’s article, it argues that victims of domestic violence should be protected by legal representative under cross-examination, or else it is a breach of human rights[8]. Cross-examining traumatized witnesses by alleged perpetrators without legal protection is an extension of the abuse itself. Without lawyers’ representing, the victim’s allegations might not be correctly interpreted, thus not a fair trial. Concerns also remain on the issue of child abuse after legal aid reform. Aid will only be granted ‘where the person seeking legal aid has evidence that the child who would be the subject of proceedings is at risk from the other party.’ Cases where children abused by step-parents or relatives will not be granted since they are ‘out of scope’. The authorities acknowledged the omission rising from LASPO, but they rather turn a blind eye to it.  According to Ministry of Justice data, 6,000 children under 18 years old lose entitlement to civil legal aid each year after the reform. Approximately 34,580 family cases per annual in the area of private law children fall out the scope of legal aid^[9]. The highly adversarial system with profoundly confined regulations is blocking helpless people from aid. Access to Justice does not merely meant access in court but providing equal means, including appropriate legal advice and representation in court. Therefore, after LASPO, the scope of legal aid is definitely stringent, resulting in growing numbers of cases rejected in legal help.

Impact on Immigration Law after LASPO 2012  

The provisions of LASPO has removed nearly all immigration cases from the scope of legal aid which led to a drastic decrease in the number of grants in legal help and representation from 23,526 in 2009-10 to 3,672 in 2016-17 [10]. Applicants who are experiencing family migrant, deportation from the UK, with cases relying on the right to respect for family and private life and unaccompanied migrant children would no longer have access to legal aid after 2013. Without legal advice and representation, immigrants would have difficulties regularizing their status, they could be homeless and unemployed. These people are likely jobless and no rights to benefits who are impossible to afford to pay for representatives. Denying their rights accessing to justice is a vicious loophole, without status, they are not able to be financially independent and would always rely on subsistence support. European Convention on Human Rights has great doing in the denial of fair trial applying to immigration matters. Article 6(1) guarantees the right to a fair trial and access to court. However, in Maaouia v France[11] said otherwise, the European Court of Human Rights held that ‘civil rights do not include disputes relating purely to public right’. This case set a precedent that Article 6(1) was not applicable to decisions on entry, stay and deportation of aliens. Immigrants and asylum seekers could not seek protection by bringing cases for breaching convention rights to the European Court of Human Rights as in Steel v Morris[12], where held there is failure to provide legal aid[13]. The plight of immigrants is concerning since their background, socio-economic status and the language barrier would leave them more burdensome, soul-breaking, frustrating in handling complex legal principle and prescribed documents. The complexity of the immigration law could be difficult to understand for judges or lawyers, let alone with poorly educated migrants. A highly strict procedural requirement is needed when filling the application form, if they fail to fill it precisely, the application will be seen as invalid, and the applicants might lose their legal status. Legal Aid Agency sets a high requirement without considering the capability of applicants, forcing them no choice but to give up their rights to access justice. Equality of arms under such circumstances is indeed deeply worrying. Nonetheless, the provision of immigration legal service is highly regulated. Organizations without the regulation of by Office for the Immigration Service Commissioner or by a qualifying regulator would be refrained from giving legal advice. The alternatives for immigration legal aid is limited, applicants who fell out the scope could only try their chances on Exceptional Cases Funding (ECF) since Conditional Fee Arrangement is not available in immigration cases. The number of application granted in 2013-14 is barely 3 cases, however, in Gudanaviciene & Ors v Director of the Legal Aid Casework & the Lord Chancellor[14], the number has increased rocket-high to 668 in 2016-17[15]. Mr Justice Collins in the case of Gudanaviciene ruled that the guidance issued by lord chancellor is unlawful to set such a high threshold. The court also disagreed the approach used in Maaouvia v France applied to the provision of immigration ECF. The effect of Court of Appeal’s decision has contributed to an incline of grants of ECF funding since 2016. Although more people are benefitted to gain access to justice, there are still many areas denying people’s access to legal help. The impact of cuts on separated migrant children is significant, most of them are desperate for legal help to remain infinite leave or regularize their status. If their uncertain status remains, it will jeopardize the future of those children that they could get isolated or suffer in poverty. Separated migrant children fell out of scope leading them to solve their problems alone. Most of them would have to pay a fortune for legal advice themselves or try to resolve the issue their own by preparing witness statement and gathering evidence. It is harsh that the government shrinking the scope of immigration legal aid, causing those with financial difficulties have no access to legal advice and self-represented litigants have no representation to test their proper interpretation[16].

Highly restricted guidance in Exceptional Case Funding

The effectiveness of Exceptional Case Funding has always been a controversial topic amongst politicians. For cases which are ‘out of scope’ in Part 1, Schedule 1, there is a last resort to get access to legal aid. LASPO 2012 s10 (3) requires ECF must be made, otherwise, it would breach the person’s ‘Convention rights’ or their ‘enforceable EU rights. The provision of ECF is serving as a safety net to mitigate the impact of large cut of budget in legal aid. The government has done reasonable precaution for the possibility of ‘inequality of arms’ which they estimated before-LASPO the grant of ECF was 6500, sadly, the idea has not been carrying out as expected, in 2016-17, the total grant for ECF is merely 808. The success rate of ECF is disappointing, Mr Justice Mostyn in the Family Division has criticized the scheme is not much ‘safety net’ but rather a ‘fig leaf’ to cover the embarrassment that the failure in LASPO 2012[17]. Fortunately, the case of Gudanaviciene, the court held that the guidance set the bar too high and it did not state the law correctly by not considering ‘the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’. In June 2015, the guidance was re-issued according to the pitfall in the judgement of Gudanaviciene has pointed out. The guidance is more detailed than the previous one by providing questions where caseworkers would have to consider before deciding the grant is successful or not. Although the latest edition of guidance has widened the entry to access legal aid, there is still major problem have not resolved. Legal Aid Agency will not pay lawyers anything unless the application is successful. This has caused a dilemma for legal practitioners to spend their time voluntarily making application without knowing if their work getting paid. It serves an economic disincentive for lawyers risking their time to provide assistance to the needy. One of the reasons for low ECF grant-rate is ECF application is often refused because they provided insufficient information for its purpose. The reason for this outcome is that a litigant in person facing difficulties to complete forms correctly without proper assistance. As a consequence, litigants have no choice but bring cases to court with obvious unfairness.

In conclusion, LASPO 2012 has caused multiples impacts on areas of civil legal aid, including family law and immigration law. The statistics indicated how severe the situation is that thousands of people being denied having a fair trial.  Victims of abuse no longer have access to legal aid unless they can provide sufficient evidence for domestic violence. Separated migrant children with disadvantaged conditions and no means to pay are excluded from the scope of legal aid. Ineligible migrants with inferior social status, language barriers, poorly educated would have to bear their own legal fees burden or self-represented when they have no means to pay. It is patently obvious LASPO has built high barriers for most vulnerable in society access to justice and effective remedy.

Primary Sources

Table of Cases

UK Cases

MG & JG v JF [2015] EWHC 564 (Fam)

R (Gudanaviciene) v Director of Legal Aid Coursework [2014] EWCA Civ 1622

Steel and Morris v UK, 68416/01 [2005] ECHR 103

EU Cases

Maaouia v. France, Appl. no. 39652/98

Secondary Sources

Books

AV Dicey, The Constitution of Liberty  232

Tom Cornford, Access to Justice: Beyond the Policies and Politics of Austerity 28, 2

Journal articles

Amnesty International, Cuts That Hurt: The Impact of Legal Aid Cuts in England on Access to Justice 21

Jess Mant; Julie Wallbank, The post LASPO landscape: challenges for family law, Journal of social welfare and family law, VOL. 39, NO.2 149-151

Meyler.F; Woodhouse.S, Changing the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families

Shirley Shipman, Steel & Morris v United Kingdom: legal aid in the European Court of Human Rights 1

Law Reports

Bach Commission, The Right to Justice 4

Other Reports

Evidencing domestic violence: nearly 3 years on http://rightsofwomen.org.uk/wp-content/uploads/2014/09/Evidencing-domestic-violence-V.pdf

Implementing Reforms to Civil Legal Aid, HC 784 2014-15, 15. https://www.nao.org.uk/wp-content/uploads/2014/11/Implementing-reforms-to-civil-legal-aid1.pdf

Legal Aid statistics https://www.gov.uk/government/statistics/legal-aid-statistics-april-2013-to-march-2014

Legal aid statistics: January to March 2017

Ministry of Justice, Guide to Family Court Statisticshttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/622664/guide-to-family-court-statistics-june-2017.pdf

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[1] Tom Cornford, Access to Justice: Beyond the Policies and Politics of Austerity 28, 2

[2] AV Dicey, The Constitution of Liberty 232

[3] Bach Commission: The Right to Justice 4

[4] Legal Aid statistics April 2013-March 2014. Table 5.1,  https://www.gov.uk/government/statistics/legal-aid-statistics-april-2013-to-march-2014

[5] Amnesty International, “Cuts That Hurt: The Impact of Legal Aid Cuts in England on Access to Justice”, 2016, EUR 45/4936/2016, 21

[6] Implementing Reforms to Civil Legal Aid, HC 784 2014-15, 15 https://www.nao.org.uk/wp-content/uploads/2014/11/Implementing-reforms-to-civil-legal-aid1.pdf

[7] Evidencing domestic violence: nearly 3 years on http://rightsofwomen.org.uk/wp-content/uploads/2014/09/Evidencing-domestic-violence-V.pdf

[8] Jess Mant; Julie Wallbank, The post LASPO landscape: challenges for family law, Journal of social welfare and family law, VOL. 39, NO.2 149-151

[9] Guide to Family Court Statistics, Ministry of Justice https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/622664/guide-to-family-court-statistics-june-2017.pdf

[10] Legal Aid Agency, (2017) Legal aid statistics: January to March 2017

[11] Maaouia v. France, Appl. no. 39652/98

[12] Steel and Morris v UK, 68416/01 [2005] ECHR 103

[13] Shirley Shipman, Steel & Morris v United Kingdom: legal aid in the European Court of Human Rights 1

[14] R (Gudanaviciene) v Director of Legal Aid Coursework [2014] EWCA Civ 1622

[15] n10

[16] Meyler.F; Woodhouse.S, Changing the immigration rules and withdrawing the ‘currency’ of legal aid: the impact of LASPO 2012 on migrants and their families

[17] MG & JG v JF [2015] EWHC 564 (Fam)