Legal aid cuts have worsened the plight of the vulnerable
|
Version 0 of 1. Monday night’s Panorama about changes to the provision of legal aid pulled a couple of punches. Perhaps it was the lack of time, or perhaps it was viewed as “too political” for the BBC. But the fact is that parliament’s justice committee recently looked at the legal aid, sentencing and punishment of offenders (Laspo) legislation which means that some victims of domestic abuse who cannot afford a lawyer have to face their alleged abusers in court without the protection a lawyer would bring. The justice report was published just three weeks ago. It follows the damning reports of the National Audit Office in November 2014 and the public accounts committee in February 2015 and is no less critical. It found that: “The Ministry of Justice has failed in three of its four objectives for Laspo: it has not discouraged unnecessary and adversarial litigation at public expense, because the courts and tribunals are having to meet the costs of a significant rise in litigants in person and a corresponding fall in mediation; it has failed to target legal aid at those who need it most because it has failed to properly implement the exceptional cases funding scheme; and it has failed to prove that it has delivered better overall value for money for the taxpayer because it has no idea at all of the knock-on costs of the legal aid changes to the public purse.” Related: Legal aid cuts exposing domestic abuse victims to court ordeal, says report As to some of the issues raised in the Panorama programme, the justice committee recommended that there should be legislation to prevent cross-examination of complainants by alleged abusers in the family courts while ensuring justice is done to all parties. This protection has been afforded to witnesses in the criminal courts since 1999 and the lack of it has been the subject of adverse judicial comment since 2006, most recently by the president of the family division, Sir James Munby. Legal aid is available to seek protective orders against domestic violence, but it is not available to deal with court applications regarding custody or financial issues unless an applicant can provide one of the prescribed forms of evidence. These are difficult and expensive to procure, and the charity Rights of Women provided evidence to the committee suggesting that 39% of women who were victims of domestic violence were not able to obtain the evidence to qualify for legal aid. Also, the most common forms of domestic abuse are emotional and psychological, which are almost impossible to provide evidence for. Further injustice is caused by the rigid requirement that any evidence provided must relate to events that occurred no more than 24 months prior to the application. Thus a woman who flees a violent partner with the children will not get legal aid if he tracks her down and makes an application to see the children two years later. She will be required to represent herself and face cross-examination by him if she seeks to prove violence by him which renders him a risk to the children. This scenario is not uncommon at the moment. The committee recommended the introduction of a wider discretion to grant legal aid to victims of domestic violence who do not fit within the current criteria. It recommended that there ought to be discretion to allow evidence of historic domestic violence in cases where the person who has suffered the violence would be materially disadvantaged by having to face the perpetrator in court. It also considered that the Ministry of Justice should take steps to ensure that victims of domestic violence not be expected to pay for production of the required documentary evidence. On 2 March, the Ministry of Justice began gathering information on cases where direct cross-examination of a vulnerable witness by a litigant in person is, or threatens to be, an issue. We are told a research study will explore the ways of managing these cases and protecting the witnesses. These consequences of Laspo were not only predictable but predicted. Perhaps the Panorama programme will awaken politicians across the political spectrum and help them understand that vulnerable people need better protection in court. Our forefathers who designed and developed legal aid understood that. The justice committee gets it. It’s easy to say that if you need a lawyer, you should pay for it. But it wasn’t thought through and the consequences are coming home to roost. |