Supreme Court Emblem

Entering the court was like entering the lobby of a posh hotel – I was greeted by welcoming security staff with a “Good Morning Madam”, and was through security quicker than I get through the arch at my local county court where bags are gone through with a fine toothed comb (in fairness they aren’t equipped with an x-ray machine and there is a lot more of a  9am crush in County!). There was a wealth of public information leaflets, good signposting and helpful Information Point staff. I enquired what courts were sitting and was given a summary sheet telling me about the case in court 2 (Times Newspapers Ltd (Appellant) v Gary Flood (Respondent) – a case about defamation and the qualified privilege defence). I was able to hear an hour or so of the submissions of Richard Rampton QC for the Appellant.

There were a number of members of the public present – some (judging from their dress) were lawyers, but many were tourists. There was no sense of the public being grudgingly allowed to attend or of them being an inconvenience. I was able to slip in part way through the afternoon session, and whilst I was there a number of people slipped silently in, and out, assisted by a friendly security guard on the door. They seemed instinctively to know how to behave, which was just as well because the courtrooms are pretty intimate and so noisy ins and outs, fidgeting or chit chat would be disruptive and distracting.

This was a complex case with submissions that were not easy to pick up and follow mid flow (no doubt in common with most cases in this court), but clearly a lot of thought has gone into making Supreme Court proceedings as accessible as possible from the welcoming first impression and printed materials to the lighting and decor. The public sat and listened, rapt.

The Supreme Court website says of Lady Hale that “A home maker as well as a judge, she thoroughly enjoyed

A court room at the Supreme Court

helping the artists and architects create a new home for The Supreme Court”. I did a mental eye roll when I read that the first time but I now can’t emphasise enough how important a task it was and what a success it has been (I have done a mental slap on my wrist also). Because there is something compelling about these courtrooms, a sort of hypnotic effect that promotes focus and calm. And it’s not by chance. Good design runs throughout the building.

The new court is light, airy, easy to navigate and formal without being stuffy or fussy. It is a wonderful blend of original architectural features and clean lines, glass and white walls. It is respectful of the history of the building, but utterly fit for purpose as a modern court facility. Everything about it contrasts with the old accommodation of its predecessor in the Committee Rooms at the House of Lords with its tortuous security obstacle course, its labyrinthine corridors, its suffocating flock wallpaper and uncomfortable chairs that made fidgeting unavoidable (I speak from experience when I say that with a 19thC chair spring up your bum it is impossible to focus properly even on the dulcet tones of Lord Hoffmann).

The court I was in was small and intimate enough to have a good view of the judges and counsel, but the high ceiling and dressing of the room command respect and I think somehow contributed to the remarkably noiseless behaviour of the watching public. The one ornate feature was the fantastic curtains on each side of the bar. They hang from ceiling to floor in a deep aqua green and are decorated with a gorgeous flower motif which somehow symbolises the synthesis of the traditional and that modern that the court’s architecture symbolises and which runs is at the centre of what it does (A simplified flower emblem hangs above the judges heads). Quite apart from being (I imagine) of some assistance to the rather good acoustics, they are a wonderful feature to gaze at whilst allowing the able submissions of counsel to trickle through the brain cells. I found they rather helped my concentration.

It may seem ridiculous to harp on about the curtains, but wherever you are in the courtroom they are visible in your peripheral vision and they contribute massively to the atmosphere in the courtroom – they are part of a carefully constructed environment which sets the tone, and which signals the kind of court this is. And whilst the rooms will be full for years to come of wise words and beautifully constructed arguments, the curtains speak without words – they have presence.

It is clear that there is a real commitment to make this new court accessible to its core, to encourage the public to engage with it. It is not just through the regular publication of case summaries, court lists and press releases on the website, nor only through the live streaming of proceedings on the internet. It is not even just about the visitor information displays about the history of the court that visitors are encouraged to view on their way to the modern public cafe or the willingness of the judges to give interviews and be involved in TV programmes (the latest today coincidentally) and be demonstrably human (that there should even be judicial biographies on the website is pretty remarkable). It is in the design and decor, in the day to day running of the court, the attitude of its staff.

The significance of metaphor and the visual should not be underestimated: this is a building where the whole rear wall of each court room is transparent glass. The physical building is as articulate as any press release: “See Justice being done”. Compare it to the RCJ, where not even the staff can tell you how to get from the Bear Garden to the Queen’s Building, where the hapless litigant is confronted with a load of stuffed judge costumes in glass boxes as he rounds the corner, where the courts cold and intimidating and the whole experience like Alice Through the Looking Glass or a nightmare scene from Bleak House. The RCJ is a fantastic building, but it symbolises everything that is inaccessible about law. The Supreme Court is it’s antidote and it is just super.

The alliance, which comprises the Association of Lawyers for Children, the Bar Council, CAADA, the Children’s Commissioner, the Family Law Bar Association, Gingerbread, Liberty, the National Federation of Women’s Institutes, Resolution and Women’s Aid, has called upon the Government to:

·         Protect vulnerable women and children

·         Listen to the experienced practitioners who work in family justice and who understand that mediation, whilst beneficial in many cases, will not resolve many others, and

·         Consider with care whether the decision to remove legal aid from private family law cases will save the Government money or, in fact, cost more and lead to poor outcomes.

The Manifesto has been sent to all Members of Parliament as the House of Commons prepares to consider further the changes to legal aid proposed in the LASPO Bill.

The Manifesto for Family Justice can be found here, and it is also covered in the Guardian this morning.

1. The FLBA calls on the Government to include in the Legal Aid Sentencing and Punishment of Offenders Bill (“the Bill”) a specific provision requiring the Lord Chancellor, in the exercise of his powers to ensure practical and effective access to justice.
2. The FLBA proposes that the Bill be amended to require the Lord Chancellor, when making relevant regulations, to have regard (as at present) to the need to secure the provision of services by a sufficient number of competent persons and bodies.
3. The FLBA invites the Government to extend the provision of legal aid in exceptional cases to all cases where there is an actual or threatened injustice (Clause 9), and to consult interested parties on the relevant guidance as to the exercise of the Director’s discretion in this regard.
4. The FLBA invites the Government to amend the Bill to ensure that public funds are made available (subject to eligibility) for legal advice and representation for all parties in all cases where:

• The child has been joined as a party (whether under Rule 16 or otherwise);
• The court is considering making findings of harm/abuse (whether to adult or child).
• The court is considering making a section 37 direction (investigation of child’s circumstances by a Local Authority) or a section 38 order (interim removal into care, even in private law proceedings).

1. The FLBA invites the Government to extend the definition of domestic abuse (Schedule 1) to include “any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”.
2. The FLBA invites the Government to accept as evidence of domestic abuse for the purposes of entitlement to public funds not only that he/she has obtained an injunction inFLA 1996 proceedings, or there is a finding of fact of abuse in previous proceedings, but alternatively that

-                      “the individual has been admitted to a refuge for persons suffering from domestic abuse; OR

-                      the individual has obtained medical or other professional services relating to the consequences of domestic abuse; OR

-                      the individual has made a complaint to the police of an offence of domestic abuse which is being investigated;

-                      a competent mediator is satisfied that mediation is not suitable on consideration of previous instance(s) of domestic abuse or other power imbalance”.

1. The FLBA requires the Ministry of Justice to state openly and urgently what plans it has made for ensuring that those who need acute crisis advice will receive such advice.
2. The FLBA invites the Government to announce what steps it proposes to take to support the Judiciary, and Her Majesty’s Courts & Tribunals Service, in managing the predicted higher number of litigants in person appearing in the family courts in private law cases.

• an article on the bringing to a close of children proceedings through the making of orders under s91(14) Children Act 1989: Section 91(14) Orders – A Never Ending Story? (Family Law Week), and
• an article on the attempt to bring an end to civil legal aid by the government: Ignore the warnings about legal aid changes and risk meltdown in courts (Guardian)

Those responsible for the latter could do to take a leaf out of the former: draconian powers, not to be used summarily…sadly we read today that the Government is planning to fast track the Legal Aid, Sentencing and Punishment of Offenders Bill – second reading on Weds next week. That is really, really shoddy: politics at its worst.

Headlines: The confirmation of the removal of large numbers of private law cases from scope of legal aid, and of the reduction of family fees by 10% (on top of the FAS cuts implemented in May).

The Bill

Part 1 of the Bill itself is dedicated to Legal Aid (Clauses 1-40). The Bill contains provisions to abolish the LSC and transfer the day-to-day administration of legal aid to the Lord Chancellor. In practice, this will be done by civil servants in an executive agency of the Ministry of Justice. However, decisions on legal aid in individual cases will be taken by a statutory office holder: a civil servant designated by the Lord Chancellor as the Director of Legal Aid Casework. The Lord Chancellor will have no power to direct or issue guidance to the Director in relation to individual cases

There are empowering sections for the Lord Chancellor on legal aid issues, there is some provision about funding legal services and eligibility for legal aid (Clause 20). By Clause 36 the Legal Services Commission is abolished.

Clause 9 is an important provision for the payment of legal aid for ‘exceptional cases’ (i.e. where failure to do so would be a breach of the individual’s Convention rights within the meaning of the Human Rights Act 1998). It is clear from the tenor of the response paper that the Government anticipate that this will be a narrow category, albeit with some initial boundary testing via JR.

In Part 2 of the Bill there is provision (Clause 45) for a new section 22ZA of the MCA 1973 for the payment of a sum to enable the other party to obtain legal services in proceedings for divorce, nullity of marriage or judicial separation. Clause 22ZB sets out the matters to which the court should have regard in a legal services order.

Schedule 1 sets out the categories of cases in and out of scope. Schedule 1 is structured in a rather confusing way with a set of “excluded services” and other “exceptions and exclusions” some of which then don’t apply in certain instances. I suggest you tackle it in print rather than on screen.

The Response

The response contains a narrative of the contents of the Bill, and sets out the Legal Aid Reform Programme.

There is a very poor assessment of the impact of litigants in person in the courts.  There is a summary of the findings of a literature review in the main response thus (para.138) “Overall the review found that the evidence available on litigants-in-person tends to suggest a mixed impact in length of proceedings. This was affected by case type and how active the litigants were. It was suggested that cases took longer when the unrepresented litigant was active but could take less time when the litigant was inactive.” See also para 68 – 69:

“68. However the Government does accept, even if there is no conclusive evidence of this, the likelihood of an increase in volume of litigants-in-person, and potentially some worse outcomes for them materialising. But it is not the case that everyone is entitled to taxpayer funded legal representation for any dispute or to a particular outcome in litigation. Our new exceptional funding scheme will mean that no one will be deprived of their fundamental rights of access to justice. Taxpayer funded representation has had to be targeted on priority areas.

69. Litigants-in-personareafeatureofthecurrentjusticesystem.Some people choose not to be legally represented because they consider it unnecessary or that they can do a better job themselves, and others, who may fail to qualify for legal aid on either means or merits grounds, may feel that they are unable or unwilling to pay for representation.”

and 74:

“74 …further examination of the system to support litigants-in-person is required and we intend to review this issue.”

But not before they implement the cuts it seems.

Even though the majority of responses to the Green Paper were “overwhelmingly” against the removal of private law cases from scope, the proposal to exclude large numbers of private law cases from the scope of legal aid has been confirmed. However, some of the exceptions have been expanded.

Domestic violence: The Government maintains that it accepts that, to ensure that victims of domestic violence are protected, the criteria for the domestic violence exception originally proposed in the consultation needed to be widened, whilst maintaining the requirement for objective evidence of domestic violence. It therefore decided to accept some additional circumstances as evidence of domestic violence, so that the criteria should target legal aid to genuine cases without providing an incentive for unfounded allegations of domestic violence. Legal aid will be now available, for example, where there has been a referral to a Multi-Agency Risk Assessment Conference in the past 12 months, as well as where a protective injunction or other order has been put in place in the past 12 months.

The Government accepts that legal aid should be routinely available in cases where a child is at risk of abuse, provided that there is objective evidence of the risk of abuse. The Government has therefore decided to extend the approach to the criteria for the domestic violence exception in private law family cases to provide legal aid for the party seeking to protect the child in cases.

I need to look at this properly but my understanding of the position from the response paper is that in order to obtain a grant of legal aid the applicant for funding must produce objective evidence either be criminal proceedings, MARAC OR civil findings of fact (or in the case of children a CP Plan). If this is right it rather defeats the object of having funding, which will in many cases be in order to run a fact finding exercise. As I say that is something I need to check. Views welcome in comments.

Other points:

• Legal aid for mediation will be expanded (slightly).

• The interim lump sum provision will be brought in for ancillary relief cases (see above); however

… the Government has not been persuaded that legal aid should be available for advice and/or representation to apply for an interim lump sum costs order or for enforcement proceedings (see para.119)

• The exceptional funding regime will be in place to provide legal aid where the failure to do so would be likely to result in a breach of the individual’s rights to legal aid under the Human Rights Act 1998 or European Union law.

• On the subject of fees… it is to be noted that “there was strong opposition to the proposals”; it is further accepted that “there is a risk that the fee reductions could lead to a reduction in the availability of solicitors and barristers prepared to undertake legally aided work” (para.233)… (para.234) however, “… we intend to implement the reduction of 10% to all fees paid under the civil and family legal aid scheme as set out in the consultation”

• The proposals for QCs remains as proposed in the Green Paper: “A QC is a specialised resource. The Government takes the view that they should only be used in novel, complex or exceptional cases which require that level of skill” (para.245).

• Expert fees: “The Government notes concerns about the level of fees paid to expert witnesses. However, given the need to make substantial savings to legal aid, it remains the Government’s view that fees paid to experts should be subject to the same constraints as those paid to lawyers”. (para.259)

More in due course.

MINISTRY OF JUSTICE

Proposals for the reform of punishment, rehabilitation, sentencing and legal aid

The Lord Chancellor and Secretary of State for Justice (Kenneth Clarke QC):

Today I will lay before Parliament the Government’s responses to two important consultations on the future of the justice system – Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders, which was launched on 7th December 2010 and Proposals for the Reform of Legal Aid in England and Wales, which was launched on 15th November 2010. I am also introducing the Legal Aid, Sentencing and Punishment of Offenders Bill to give effect to those measures requiring primary legislation. I will be making an oral statement this afternoon.

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens. Yet the last 13 years of government have left a justice system in urgent need of reform.

In the area of criminal justice, a tidal wave of criminal justice legislation has left the system in crisis: neither punishing offenders properly for the crimes they have committed, nor giving adequate protection to the law-abiding public.

In civil justice, we have a system burdened by spiralling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court – all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

The package of reforms I am bringing forward today aims to reform radically our justice system to focus it on fundamental priorities.

Punishment, rehabilitation and sentencing of offenders

Within a year of leaving jail, half of prisoners (49%) are reconvicted of further crimes, creating new victims and harm to society. Whilst they are behind bars prisoners face hours of enforced idleness, free from the discipline of hard work. Underpinning these problems are widespread drug and alcohol abuse, and poor mental health. The previous government’s responses have left a dysfunctional cycle of persistent crime, inadequate punishment and failed rehabilitation. Over twenty Criminal Justice Bills in thirteen years created an unworkable sentencing framework and a statute book littered with overprescriptive law that undermined the expertise of professionals.

The consultation set out wide-ranging plans to deliver tougher punishment, to introduce a rehabilitation revolution to prevent offenders committing further crime, and to ensure that the sentencing framework is sensible and workable. The Government has listened carefully to the points raised in more than 1200 submissions and is seeking to take forward measures under five themes, including:

Punishment
· Creating a working week in prison of up to 40 hours instead of enforced idleness.
· Introducing tougher, properly enforced community punishments. This includes: allowing courts to impose longer curfews; enabling courts to ban overseas travel; and properly enforced financial penalties, including seizing assets from those who do not pay.
· Introducing a mandatory custodial sentence for knife possession in aggravated circumstances.

Payback
· Creating more ways in which offenders make reparation. We will begin by implementing the Prisoners’ Earnings Act 1996 and legislating to extend our powers to deduct and use money earned by prisoners to support victims; and
· Overhauling unpaid work obligations so that offenders work longer hours, carrying out purposeful, unpaid activity that benefits their local community;

Progression
· Getting more offenders off drugs and alcohol for good, by piloting an initial five drug recovery wings and by cracking down on the use of illicit drugs in prison. The MOJ will also work closely with the Department of Health to tackle inappropriate use of prison to house low risk individuals with mental illness.
· Extending the use of payment by results to cut reoffending, with services delivered by the voluntary, independent and public sectors. Already, at HMP Doncaster the provider, Serco, will pay back 10% of the contract price unless they reduce reoffending by 5% points from current levels. In July six new pilots will begin in areas including Greater Manchester and London.

Transparency
· Opening up justice so that the public has a clearer view of how the system is working for them.
· Creating a more proportionate justice system, focusing resources where they will be most effective, including creating a clear national framework for the use of out?of-court disposals, reforming the use of remand, and reducing the number of Foreign National Offenders. We will also conduct an urgent review of the indeterminate sentence of Imprisonment for Public Protection with a view to replacing the current IPP regime with a much tougher determinate sentencing framework.
· Clarifying the law on self defence.

Alongside these measures, there should be no misunderstanding about things the Government has never proposed and is not doing. Contrary to some reports, the Government has never proposed targets to reduce the number of prison places, abolish short sentences or the mandatory life sentence.

What all the proposals we are taking forward amount to is a clear break by the Government from the mistakes of the past. By implementing this bold but realistic package of reforms, we are seeking to deliver a system which effectively punishes the guilty whilst substantially improving the national scandal of our reoffending rates. They should also reduce costs and improve delivery. This is a new, more intelligent course for the Criminal Justice System and one that we anticipate will make a tangible difference to addressing crime and helping victims in England and Wales.

Reform of legal aid

We are also committed to overhauling our system of civil justice, including through an independent review of family justice, wider access to alternatives to court, measures to streamline civil justice, a criminal justice system efficiency programme and improvements to the ‘no-win, no fee’ conditional fee regime. The overall aim is a fundamental shift in the justice system towards greater effectiveness and efficiency – and a move away from the sorry situation in which the average citizen dreads recourse to the law.

Legal aid reform is a crucial element of this wide-ranging agenda. The current system of support too often encourages people to bring their problems before courts. In addition, legal aid has expanded into areas far beyond its original scope. It is now among the most expensive systems in the world, second only to Northern Ireland, costing over £2 billion a year, or £39 per head of population compared with £8 per head in New Zealand, a country with a broadly similar legal system, and as low as £5 per head in some EU countries. In the current fiscal climate, this is simply unsustainable.

The proposals in the consultation set out to address these problems by: ensuring access to public funding in those cases that most require it; encouraging early resolution of disputes instead of unnecessary conflict; and improving affordability and value for money for the taxpayer.

Our plans attracted more than 5,000 submissions. Following careful consideration, today’s response makes some significant changes in matters of detail, but seeks to take forward the substance of most of the reforms published in November, including:

· Retaining routine availability of legal aid for cases where people’s life or liberty is at stake, where they are at risk of serious physical harm, or immediate loss of their home, or where their children may be taken into care. Following consultation, we are strengthening specific provisions to ensure availability in private family cases for victims of domestic violence, for children at risk of abuse or abduction and for Special Educational Needs cases.
· Pressing ahead with introducing a more targeted civil and family scheme. Prioritising critical areas means making clear choices about availability elsewhere. Legal aid will no longer routinely be available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits.

People will instead use alternative, less adversarial means of resolving their problems (notably, in divorce cases, where the taxpayer will still fund mediation). Fundamental rights to access to justice will be protected through retention of certain areas of law within scope and a new exceptional funding scheme for excluded cases.

In sum, the Government intends to implement the substance of the legal aid reform package, refined in specific places. This constitutes an extensive set of very bold reforms, the overall effect of which should be to achieve significant savings whilst protecting fundamental rights of access to justice.

From a quick whizz through insofar as it is relevant to family law it appears little has changed since the Green paper. No big surprises immediately declare themselves – of note though is the removal of ToLATA from scope – so cohabitees with claims to property are comprehensively stuffed and will have to fall back on the state because they can’t enforce an entitlement their own home – brilliant cost saving that. The definition of “abuse” has been recrafted into something which means – well, who knows what it means. It seems that questions of whether an adult or child is at risk of abuse will be left to civil servants on funding applications since the LSC is being abolished. These are of course the substantive questions in much children litigation which rather begs the question. Other changes include placing the courts power, developed through caselaw, to make orders for one party to contribute to the legal costs of the other on an interim basis – on a statutory footing, rather than as a species of MPS.

As expected all arguments about equality of arms have fallen on deaf ears – only the complainant in respect of allegations of abuse will be entitled to representation and advice. The poor sod on the receiving end of serious serious allegations (whether true or not) will be left to his (most often his) own devices.

More later.

• There is a significant power imbalance as Ministrio is the sole breadwinner and Accessa is financially dependent upon him.
• Mr Justice has been accused of serious acts of violence towards Ms Justice and there is concern that both she and the parties’ children (Litiganta and Citizen) are vulnerable and at risk of harm. The court may in due course need to make findings about this. There are clearly significant disputes of fact and interpretation that make progress very difficult.
• Throughout our session Mr Justice found it very difficult to be positive about Accessa, and was unable to describe her without resorting to denigratory and belittling language. He was unable to acknowledge her contribution towards the relationship, financially or otherwise.
• When attempting to discuss the issues with Ministrio the conversation had a tendency to become circular as Ministrio repeatedly sought to discuss the immediate financial issues, diverting the discussion away from the broader issues and the longer term consequences of any settlement.
• Ms Justice is emotionally fragile and tells me that she is thinking of “giving up”. I am concerned for her welfare.
• The relationship between the parties has (on Accessa’s account) been characterised by repeated attempts to bully and control Accessa.
• Mr Ministrio Justice has adopted a very fixed view of what the outcome of  the process should be, and is unable to fully engage with the open and honest exploration of the issues that the mediation process depends upon. Mediation is unlikely to be successful unless both parties are ready to adapt their views and compromise.
• There are serious and complex legal issues that we are unable to resolve through this process.
• The communication between the parties is poor and trust is non-existent.

I therefore certify that in my professional opinion this case is not suitable for mediation.

Lucy Reed

Member of the Institute of (Made Up) Mediators