Friday 30 May 2014

Justice Armageddon ~ the dire state of access to justice after 4 years of the coalition government

In recent weeks a considerable number of blogs have expressed huge concern at the damage being done to access to justice by the various "justice" policies of the coalition government.  Whilst it is hardly surprising that the government has sought ways to reduce expenditure, the cuts to legal aid have been brutal with whole areas of law removed entirely from the scope of legal aid.  This gives rise to the serious thought that the cuts are based on a deliberate ideology to remove or limit access to justice for the general population and to bring about restrictions to the availability of judicial review which is one of the key ways to test the legality of decision-making by those with executive power such as Ministers. 

Recently, this blog looked at the impasse
between government and the independent criminal bar over the 30% fee reduction for counsel in Very High Cost Cases (VHCC) - Some reflections on the Operation Cotton appeal.  David Allen Green has now taken up the Operation Cotton theme with a well-considered post in the Financial times ( - Three threads of Cotton - and the tangle that remains over legal aid

Legal Voice draws attention to the fact that lawyers are seeking judicial review of the Ministry of Justice's Transforming legal aid cuts.   The Criminal Law Solicitor's Association and the London Criminal Courts Solicitor's Association are arguing that the process was unlawful due to failure to disclose a report by KMPG, thereby depriving these bodies of an opportunity to challenge errors or incorrect assumptions.

The Marilyn Stowe blog refers to the views of judges that legal aid cuts have resulted in increased costs elsewhere.  The Judicial Executive Board questioned the economy of the cuts in a written submission to the Commons Justice Select Committee, which is investigating the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Changes included significant cuts to legal aid provision.

Do right and fear no one looks at the decline and fall of the criminal justice system. The blog states that - 'Readers of this and other better blogs know all too well that the CJS has been crumbling around our ears for years now. Successive cuts to the infrastructure, fees, interpreters, Prison Service, general outsourcing have all contributed through successive governments to a system that is held together by the joint professions dwindling goodwill, sticking plaster, a hope and a prayer.
We all have horror stories of the inefficiencies racking up cost and expense, both in stark monetary terms and also in terms of time and consequential “indirect costs” .....'

An article in The Huffington Post takes us back to the Operation Cotton appeal - Justice Armageddon as Court of Appeal destroys accuseds' right to a proper defence and a fair trial.   This article, by Philip S Smith of Tuckers Solicitors, argues that -

'It is impossible to overstate the serious implications of a Court of Appeal decision this week which spell disaster for the administration of British justice.

Three of our pre-eminent members of the judiciary backed process over principle and potentially dug the government out of a hole of it's own making but, in order to do so, their decision has taken an axe to one of this country's most cherished legal institutions: an individual's right to be properly defended in a court of criminal law by an Advocate of one's own choosing.'

The Oxford Human Rights Hub has held a symposium at which there was a discussion on Public Interest Lawyering in times of austerity   This looked at some of barriers to be faced by individuals seeking to uphold their legal rights in times of austerity.  For instance, the individual whose rights are in jeopardy and lack the means necessary to satisfy an adverse costs order, should their claim be unsuccessful. Although discretionary funding for ‘exceptional cases’ is in theory available, in practice the provision is nowhere near sufficient, and those who miss out tend to be the ones most in need of additional support.

In a democracy, access to justice is an essential commodity.  Removal of legal aid or its restriction; severe cuts to counsel fees in the most complex of cases (VHCC includes fraud, terrorism etc); restrictions on judicial review and other problems all accumulate to present a very sad indictment of the present state of justice in the country.  The time is coming, if not already here, for a serious reappraisal of the situation.

As for the Ministry of Justice's reform of the contractual arrangements for court interpreters, the President of the Family Division (Sir James Munby P) has had some trenchant observations - Law Society Gazette 27th May. Sir James was sitting in the recently formed Family Court - see the judgment - In the matter of J and S (Children) [2014] EWFC 4. 

It is not merely in the area of legal aid that the Ministry of Justice policies are attracting criticism.  In The Guardian, Mr Sadiq Khan (Shadow Justice Spokesman) criticises plans to privatise probation services.  Mr Khan regards this as a serious risk with public safety - The Guardian 30th May 2014.  Khan argues that - 'The probation service has a fundamental role in keeping our communities safe. Yes, it can do better but instead of gambling with public safety, we must build on what works.'

Finally, I would urge readers to step back a year and see what was being said about cuts to legal aid - Six reasons the cuts to legal aid will ruin our justice system.  Many of those dire predictions are, sadly, proving to be correct.  Also, last October in the Tom Sargent Lecture, Lord Neuberger (President of the Supreme Court) warned of the risks to justice. 

Addendum 31st May:

For a further blogpost on the parlous state of justice see View from the North - Mr Whippy

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