Following the decision of the Court of Appeal in Howard League for Penal Reform & Anor, R (On the Application of) v The Lord Chancellor  EWCA Civ 244, new regulations have come into force returning some prison law cases to the scope of legal aid.
The Criminal Legal Aid (Amendment) Regulations 2017, in force on 21 February 2018, bring the following types of case back in:
- Advice and representation for pre-tariff reviews for life and indeterminate sentence prisoners before the Parole Board;
- Reviews of classification as a category A prisoner;
- Placement in close supervision and separation centres within prisons.
These cases are funded as criminal legal aid, using advice and assistance and advocacy assistance. The usual means tests apply and payment is the same as for the prison law cases currently in scope. Amended criminal contracts have been issued and there are revised CRM3 and CRM18a forms on the LAA website. The LAA has said it will continue to accept old forms until 31 May 2018.
Congratulations to the Howard League and the Prisoners Advice Service, which have brought this change about following three years of litigation. It is a rare example of the scope of legal aid widening post-LASPO.
Filed under Crime, LASPO, Policy
The LAA has announced that it is terminating the tender for CLA telephone contracts in the education and discrimination categories because “insufficient compliant tenders” were received, meaning there would not be enough successful bidders to run the service.
As there are currently only a very small number of contract holders, this suggests that there were no or very few bidders prepared or able to deliver the new contracts due to start later this year.
Education and discrimination are gateway exclusive categories – all cases must go through the telephone service and there are no separate face to face providers – all face to face services are carried out by the telephone contract providers, if they deem it necessary.
It is not clear what the future of education and discrimination services will be. The LAA says it will discuss next steps with affected organisations.
But if there are currently no providers willing to bid, or no providers able to demonstrate they can provide services of sufficient quality at an acceptable price, it is hard to see how that will change between now and October, when the new contracts were due to start.
The MoJ decided in 2012 to move education and discrimination services to the gateway with a small number of contracts. At the time many warned that there were significant risks with this approach. Numbers using the service have been lower than expected throughout. And there was concern that such a reduction in the provider base meant that there was no slack if contract holders pulled out or were unable to continue. It appears that fear has also been realised. Hopefully there is enough time for the MoJ and LAA to rethink before education and discrimination legal aid disappears altogether.
Filed under Civil, LASPO, Policy
Funding for private family law cases is generally only available where the applicant for legal aid can show that they are a victim of domestic abuse, or where they can show that the aim of the proceedings is to protect a child at risk of abuse from a third party (such applications are in scope because of Paras 12 and 13 of Part 1 Schedule 1 of LASPO; see also Chapter 6 of the Handbook). Until the successful challenge to the original regulations by Rights of Women, there was a requirement that the evidence in support of the application had to be no more than 2 years old. Following the litigation, that was extended to 5 years.
From Monday 8 January 2018, the five year limit is removed. The existing evidence requirements are also removed, and replaced with a new Schedule 1 of the Procedure Regulations. When the Civil Legal Aid (Procedure) (Amendment) (No 2) Regulations 2017 come into force, acceptable evidence (for civil legal services to be provided to an adult (A) in relation to a matter arising out of a family relationship between A and another individual (B)) will include:
Domestic abuse – para 12 Part 1 Schedule 1 LASPO cases
- Evidence that B has been arrested for a relevant domestic violence offence.
- A relevant police caution for a domestic violence offence.
- Evidence of relevant criminal proceedings for a domestic violence offence which have not concluded.
- A relevant conviction for a domestic violence offence.
- Evidence of a court order binding over B in connection with a domestic violence offence.
- A domestic violence protection notice issued under section 24 of the Crime and Security Act 2010 against B.
- A relevant protective injunction.
- An undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996 (or given in Scotland or Northern Ireland in place of a protective injunction) by B provided that a cross-undertaking relating to domestic violence was not given by A.
- A copy of a finding of fact, made in proceedings in the United Kingdom, that there has been domestic violence by B.
- An expert report produced as evidence in proceedings in the United Kingdom for the benefit of a court or tribunal confirming that a person with whom B is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by B.
- A letter or report from an appropriate health professional confirming that that professional, or another appropriate health professional—
- (a)has examined A in person; and
- (b)in the reasonable professional judgement of the author or the examining appropriate health professional A has, or has had, injuries or a condition consistent with being a victim of domestic violence.
- A letter or report from—
- (a) the appropriate health professional who made the referral described below;
- (b) an appropriate health professional who has access to the medical records of A; or
- (c) the person to whom the referral described below was made;
- confirming that there was a referral by an appropriate health professional of A to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence.
- A letter from any person who is a member of a multi-agency risk assessment conference (or other suitable local safeguarding forum) confirming that A, or a person with whom A is in a family relationship, is or has been at risk of harm from domestic violence by B.
- A letter from an independent domestic violence advisor confirming that they are providing support to A.
- A letter from an independent sexual violence advisor confirming that they are providing support to A relating to sexual violence by B.
- A letter from an officer employed by a local authority or housing association (or their equivalent in Scotland or Northern Ireland) for the purpose of supporting tenants containing—
- (a) a statement to the effect that, in their reasonable professional judgment, a person with whom B is or has been in a family relationship is, or is at risk of being, a victim of domestic violence by B;
- (b) a description of the specific matters relied upon to support that judgment; and
- (c) a description of the support they provided to the victim of domestic violence or the person at risk of domestic violence by B.
- A letter from an organisation providing domestic violence support services.
- The letter must confirm that it—
- (a) is situated in England and Wales;
- (b) has been operating for an uninterrupted period of six months or more; and
- (c) provided A with support in relation to A’s needs as a victim, or person at risk, of domestic violence.
- (3) The letter must contain—
- (a) a statement to the effect that, in the reasonable professional judgement of the author of the letter, A is, or is at risk of being, a victim of domestic violence;
- (b) a description of the specific matters relied upon to support that judgement;
- (c) a description of the support provided to A; and
- (d) a statement of the reasons why A needed that support.
- A letter or report from an organisation providing domestic violence support services in the United Kingdom confirming—
- (a) that a person with whom B is or was in a family relationship was refused admission to a refuge;
- (b) the date on which they were refused admission to the refuge; and
- (c) they sought admission to the refuge because of allegations of domestic violence by B.
- A letter from a public authority confirming that a person with whom B is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment).
- A letter from the Secretary of State for the Home Department confirming that A has been granted leave to remain in the United Kingdom under paragraph 289B of the Immigration Rules.
- Evidence which the Director is satisfied demonstrates that A has been, or is at risk of being, the victim of domestic violence by B in the form of abuse which relates to financial matters.
Protection of children – para 13 Part 1 Schedule 1 LASPO cases
- Evidence that B has been arrested for a child abuse offence.
- A relevant police caution for a child abuse offence.
- Evidence of relevant criminal proceedings for a child abuse offence which have not concluded.
- A relevant conviction for a child abuse offence.
- A relevant protective injunction.
- A copy of a finding of fact made in proceedings in the United Kingdom of abuse of a child by B.
- A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that the child was assessed as being, or at risk of being, a victim of child abuse by B (or a copy of that assessment).
- A letter from a social services department in England and Wales (or its equivalent in Scotland or Northern Ireland) confirming that a child protection plan was put in place to protect the child from abuse or a risk of abuse by B (or a copy of that plan).
- An application for an injunction described in paragraph 5 of this Schedule made with an application for a prohibited steps order against B under section 8 of the Children Act 1989 which has not, at the date of the application for civil legal services, been decided by the court.
Withdrawal of legal aid
The rules on when the Director can withdraw a grant of legal aid have also been revised. The new rule (a revised Reg 42(1)(k) of the Procedure Regulations) says legal aid may be withdrawn where the evidence relied on was:
- a conviction for an offence and that conviction has subsequently been quashed;
- evidence of ongoing criminal proceedings and those proceedings have subsequently been concluded without a conviction;
- evidence described in paragraph 7 of Schedule 1 or paragraph 5 of Schedule 2 where—
- (a) the order was obtained without notice to the respondent; and
- (b) that order has subsequently been set aside by the court;
- evidence described in paragraph 7 of Schedule 1 where the application for a domestic violence protection order has been made under section 27 of the Crime and Security Act 2010() but has been unsuccessful on account of the conditions set out in section 28 of that Act not having been satisfied;
- evidence described in paragraph 1 of Schedule 1 where no charge is brought for the domestic violence offence (within the meaning of Schedule 1) and the Director is satisfied that it is unlikely that such a charge will be brought;
- evidence described in paragraphs 16 to 18 of Schedule 1 and a public authority has confirmed in writing that it is satisfied—
- (a) there has not been domestic violence between A and B; or
- (b) A was not at any time at risk of being the victim of domestic violence
- evidence described in paragraph 1 of Schedule 2 where no charge is brought for the child abuse offence (within the meaning of Schedule 2) and the Director is satisfied that it is unlikely that such a charge will be brought;
- evidence of an application described in paragraph 9 of Schedule 2 and that application has subsequently been withdrawn or refused,
unless there is some other form of evidence which would also justify a grant of legal aid.
The new evidence requirements are not backdated. They will only apply to Controlled work applications signed from Monday 8 January onward. Licensed Work applications signed from Monday 8 January will be made under the new rules, but those signed before that date and received by the LAA before 5pm on 15 January will be treated under the old rules. Grants of emergency representation made before 8 January will be treated under the old rules even if the 5 day notification is received by the LAA after 8 January.
This is a helpful development. Although the requirement to obtain evidence is still in place – with all the practical difficulties that causes – the widening of the range and age of what constitutes acceptable evidence should help make legal aid available more widely than before.
The manner of the change is also a helpful development. We have been saying for some years now – in the Handbook, on this site and elsewhere – that the current system of amending the scheme is not fit for purpose. Post-LASPO, most of the significant rules are no longer in LAA documents, but in primary and secondary legislation. Amendments to the rules are made via amendments to the legislation. Neither the MoJ nor the LAA make consolidated versions of the regulations available, and nor does the legislation.gov.uk website. That means – unless you have the sort of subscription legal research tool that is unaffordable to most legal aid lawyers – the only way to work out the current rules is to cross-reference the original and amending regulations. The civil legal aid merits tests, for example, are not publicly available – unless you read four sets of regulations side by side, manually amending them as you go (or unless you buy the Handbook!). The MoJ and LAA should urgently make available – and keep up to date – a single consolidated version of all the key legal aid regulations. It cannot be right that the fundamental basis of the scheme is obscure to practitioners – and impenetrable to the public using it. It hasn’t yet gone that far, but removing the previous much amended sections of the Procedure Regulations and replacing them with a single up to date Schedule is a welcome step in the right direction. In the meantime, links to all the regulations and other resources can be found on our Resources page.
Lord Bach’s Access to Justice Commission has published its final report, available here. It is a detailed and thoughtful report, which should provoke further debate about the impact on access to justice – and particularly those who can’t get it – following the reforms of recent years. There is a lengthy list of recommendations, which fall into three main categories:
- The creation of a new statutory enforceable “right to justice” and the creation of a Justice Commission
- Reform of the legal aid scheme, including widening and simplifying the means test and contributions, increasing legal aid scope to restore most family, some immigration, and cases involving children, as well as reforms to judicial review, inquest and exceptional case funding, and replacing the LAA with an independent body and simplifying administration
- Wider and better public legal education and a universal advice and information portal.
Sir Henry Brooke, the retired Court of Appeal judge, was one of the commissioners. Since the publication of the report he has posted a series of blogs, well worth reading, looking at some of the background to the Commission’s recommendations.
The major parties have now published their manifestos for the forthcoming general election. This is what they have to say about legal aid.
The Conservative manifesto says:
- Publicly-funded advocates will have specialist training in handling victims before taking on serious sexual offences cases.
- To ensure that the pain and suffering of the Hillsborough families over the last twenty years is not repeated, we will introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests
- We will strengthen legal services regulation and restrict legal aid for unscrupulous law firms that issue vexatious legal claims against the armed forces
The Labour manifesto says:
- Labour will immediately re-establish early advice entitlements in the Family Courts. The shameful consequences of withdrawal have included a requirement for victims of domestic abuse to pay doctors for certification of their injuries. Labour’s plans will remove that requirement. At the same time, we will legislate to prohibit the cross examination of victims of domestic violence by their abuser in certain circumstances.
- We will reintroduce funding for the preparation of judicial review cases. Judicial review is an important way of holding government to account. There are sufficient safeguards to discourage unmeritorious cases.
- We will review the legal aid means tests, including the capital test for those on income-related benefits.
- Labour will consider the reinstatement of other legal aid entitlements after receiving the final recommendations of the Access to Justice Commission led by Lord Bach.
The Lib Dem manifesto says the party will:
- Conduct an urgent and comprehensive review of the effects of the Legal Aid, Sentencing and Punishment of Offenders Act on access to justice, particularly funding for social welfare appeals, and domestic violence and exceptional cases
- Secure further funding for criminal legal aid from sources other than the taxpayer, including insurance for company directors, and changes to restraint orders.
UKIP and the Green Party make no mention of legal aid in their manifestos.