Legal Aid cuts

Guest post by Alison Harvey, General Secretary, Immigration Law Practitioners Association (ILPA)

Responses to the Ministry of Justice consultation on proposed cuts to legal aid have not yet been published. Nor has the Government announced the outcome of the consultation.  The House of Commons Justice Select Committee has held an enquiry into legal aid, taking evidence from Government and others.  It has published its report and all the evidence submitted to it, which provides an insight into the available evidence.   Individual organisations have published the evidence they have submitted to the Government and umbrella organisations such as the ‘Justice for All’ campaign have published overviews of this evidence.

The proposed cuts are to the ‘scope’ of legal aid, the matters to be funded at all; to the thresholds for financial eligibility for legal aid and to the remuneration paid to those providing the advice and representation.  There are also proposals to change the way that the legal aid system is run, for example that those wishing to obtain legal aid all pass through a telephone gateway.  Changes to ‘scope’ will require primary legislation and a draft bill could be presented to parliament as early as May 2011.  Initially it was stated that cuts to remuneration would come into force in Autumn 2011 and changes to scope no earlier than 2012 but this timetable is not set in stone.

Immigration Cases

The Government proposes to remove all legal aid for immigration (as opposed to asylum cases) cases, at the stage of making an application to the Home Office and from any appeals against refusal, including onward appeals where a person won before the immigration judge and the Home Office appealed this decision.  These include cases where arguments are based on the right to family and private life under Article 8 of the European Convention on Human Rights, and cases where the person faces removal/ deportation from the UK.

The exceptions would be that people in immigration detention would still get legal aid to challenge their detention (although not to help with their immigration cases) and national security cases before Special Immigration Appeals Commission would still get legal aid. It is proposed to cut legal aid from asylum support cases (applications from people seeking asylum for housing and subsistence).  Cuts to other areas of legal aid, such as welfare benefits and housing, will affect poor migrants and refugees, as they will affect all who are poor.

The Government has proposed retaining legal aid for judicial review.  However, the Judges Council, in its written evidence to the Justice Committee and the Rt Hon Sir Anthony May, Lead judge in the Administrative Court, has suggested that there is the potential to cut legal aid for judicial review, highlighting immigration as an area where there are savings to be made.  This recalls arguments made (largely unsuccessfully) by the judiciary during the passage of the Bill that became the Borders, Citizenship and Immigration Act 2009 in the context of proposals to transfer judicial review applications to the Immigration and Asylum Chamber of the Upper Tribunal.

Opposing the cuts: what can I do?

  • Join an umbrella organisation such as Justice for All to work with others and make use of their resources, including model letters, in your campaigning;
  • Act locally: local papers, local counsellors, local organisations. Work with others in your area or field of specialism; make sure they include concerns about immigration advice in their arguments against cuts in general, or cuts to legal iad;
  • Invite MPs, councillors and other decision-makers to firms and organisations giving advice to see surgeries in action so that they can understand the effect of the cuts;
  • Get people who have benefited from legal aid in immigration and asylum to speak to MPs etc. and also to write about how it assisted them.  Similarly, encourage local support groups who do not give advice but will be picking up the pieces in working with those who will have no access to advice to speak out.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

2 responses to “Legal Aid cuts

  • karen clark-stapleton

    legal aid is fundamental to justice

    The fundamental tenets of judicial process the problems with legal aid and the reality of restrictive access to justice.
    In his classic work on the law of public order, Keeping the Peace, published in 1967, Professor D.G.T. Williams commented on the power of police officers to arrest for a breach of the peace committed in their presence, or reasonably anticipated, as follows: “There are many doubtful points about this power: what, for instance, is a ‘breach of the peace’, or what is meant by ‘in their presence’, or what grounds are sufficient to justify an arrest in anticipation of a breach”(Williams 1967, p 116).
    Unlike virtually all other police powers, those relating to breaches of the peace are not governed by statute (contrary to the recommendations of the Royal Commission on Criminal Procedure 1981) (Report, paras 3.10, 5.4). The Police and Criminal Evidence Act 1984 left these common law powers largely untouched, as did the Public Order Act 1986. They have also survived the extension of statutory powers contained in various pieces of more recent legislation, such as the Criminal Justice and Public Order Act 1994.
    The Law Society and the Labour Party both agreed the following principles in 1997 so why have they both done a u-turn and thus ensured that in the near future justice will be denied to many within society, and that public order offences such as breach of the peace and assault police (as per the police act) will soon be the high crime areas for the disadvantaged and lower middle classes. Our approach to the provision of legal services is dictated by our belief that access to legal services should be a universal right, that in a socially just and democratic society all its citizens whatever their means, status or walk in life and however complex their individual problems, should have equal access to justice. We say further that this is required by our international obligations, and not least Article 6 of the European Convention on Human Rights (which the Government is presently incorporating into our domestic law) and which implies an “equality of arms” between contestants. We fully subscribe to the opinion expressed in the 1995 Green Paper “Legal Aid – Targeting Need” issued by the last Lord Chancellor Lord Mackay “No civilised society can claim to provide access to justice if the cost is beyond the reach of individuals, corporations or even the State. Nobody will feel that they have access to justice if the law is so complicated and obscure that they cannot know what their rights are nor understand the process of defending them. People will not have access to justice if there is nobody with the right knowledge within reach to advise them”.
    Limitation of access to a qualified solicitor or an accredited legal clerk will have serious side effects. Miscarriages of justice will rise even higher and the police will be given the remit to trawl for arrests using the powers preserved in PACE (Police and Criminal Evidence Act 1984) for breach of the peace which is usually tied together with assault police, this is simply because the burden of proof is negligible and in many ways it is easier to be proven guilty of these offences than robbery. If we put this into context that police officers now only patrol in pairs which once again places the burden of proof against a defendant then this will soon become the highest successful arrest detection area for policing.
    Any self respecting person should be asking “Do we need these powers as part of the modern law of policing?”The current position as regards police powers in relation to a breach of the peace may be stated in the following general terms: A police constable may take any reasonable action to stop a breach of the peace which is occurring, or to prevent one which the constable reasonably anticipates will occur in the near future. “Any reasonable action” may, as we shall see, include arresting a person, entering premises and stopping people moving from one place to another.
    It should be noted that I am not concerned with the related power to “bind over to keep the peace” This power is exercised by a magistrates’ court. I am concerned with, police powers in relation to breaches of the peace and the case for abolition or preferably put into statutory form, the bind-over power.The ECHR has recently held that some uses of the bind-over power involve a breach of Convention rights (Hashman and Harrup v UK (2000) 30 E.H.R.R. 241). It may be, then, that this power should be abolished. Preservation of the Queen’s Peace is a duty imposed on all citizens. Police officers have, however, a particular responsibility in this area. What is meant by “the Queen’s Peace”? It is almost certainly the case, as has been pointed out by Feldman, that the word “peace” here is used as the opposite of “war”, rather than as in the phrase “peace and quiet”(Feldman 1993, p787). The obligation to keep the peace is not an obligation to refrain from annoying the neighbours but to refrain from fighting or other violent conduct, or behaviour which is likely to provoke such conduct. This is reflected in the currently generally accepted definition of a “breach of the peace”, which is contained in the Court of Appeal decision in Howell [1982] QB 416. A rather broader definition put forward by Lord Denning in R v Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board [1982] Q.B. 458 (at 471) to the effect that the mere physical obstruction of a person lawfully going about his business could in itself amount to a breach of the peace, without the need for any violence to have been caused or to be likely, has not received support in any later cases. The definition used in Howell is as follows ([1982] QB 416, 427):
    “We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.”
    This indicates that these elements are sufficient, but does not preclude other ways of a breach of the peace occurring. It is clear, however, that what is required is actual or potential violence, and that mere disturbance is not enough. A breach of the peace can, nevertheless, apparently be said to have occurred when the violence is only potential. Behaviour which amounts to a “disturbance” (but presumably not necessarily an unlawful one) can become a “breach of the peace” if its effect is that a violent response is likely. The prospect of violence may be good grounds for allowing police intervention, but it is more questionable whether behaviour which merely raises such an apprehension should be regarded as in itself constituting a breach of the peace (see Williams 1982, p 200). In Lewis v Chief Constable for Manchester (1981) The Independent, 23 October, for example, Farqhuarson LJ commented that: “The act which puts someone in fear of violence taking place entitles a police officer…to detain the actor but it is not a breach of the peace, for the violence has not yet occurred.” Subsequent acceptance of the Howell definition means that this view is now unlikely to be more widely adopted. Behaviour which is likely to provoke a violent reaction falls within the concept of a breach of the peace, even if it is not itself violent. So with this in mind it is clear that even though no actual offence may have occurred the police retain the power to arrest, which flies in the face of truth and justice, this gives the police extreme powers of state to abuse any given situation merely by saying “I thought it was getting out of hand”, when in actual fact no violence was being offered or intended, for the police this is akin to a get out of jail card free. If as is being said in government that they intend to restrict access to legal funding for minor offences then this is a worrying concept because it does allow the police to trawl the streets for these very simple offences which would result in many people pleading guilty to avoid days off work and the prospect of facing large legal bills this cannot be allowed to be made law, this would also allow for the police to take considerable amounts of DNA samples from those attending custody suites, which in turn plays into the hands of this government that want to retain most of the DNA of its population by 2010. So we should all be asking Why is it necessary for this over used and abused common law offence still being used so widely today by police officers ? well in short the answer is very simple its so easy to prove for them and its so very hard for a defendant to disprove.The actions which can be taken to deal with an actual or anticipated breach of the peace have been shown to be wide-ranging and potentially limitless. There are many alternatives ,some police officers ask ….would not this leave an extensive gap which the police would find it hard to fill? Not necessarily. The most obvious statutory powers of arrest which mirror those under the common law are those contained in sections 4, 4A and 5 of the Public Order Act 1986. These sections deal with behaviour which may cause or provoke violence, or cause harassment, alarm or distress. There are clear overlaps with the breach of the peace power . By virtue of section 4(3) a constable may arrest without warrant anyone the constable reasonably suspects is committing an offence under the section. To commit an offence, the person concerned must be using, or have used, threatening, abusive or insulting words or behaviour towards another person. The behaviour must either be intended or be likely to cause the other person to believe that immediate unlawful violence will follow or to provoke such violence. The similarity between these consequences and the Howell definition of breach of the peace is obvious. The main difference lies in the fact that the behaviour of the person arrested under this section must have been “threatening, abusive or insulting” (these words to be given their natural meaning: Brutus v Cozens [1972] 2 All E.R. 1297, HL) There is no such requirement in relation to breach of the peace. However, in many, if not the majority, of cases where a breach of the peace is caused, the behaviour is likely to have been of this kind. Because it sounds good in the magistrates court were all of these offences will be heard.This to is an area that gives the police total control, as its they whom decide what offences a defendant will be charged. A further distinction arises from the places where an offence under section 4 can be committed. Although it can be committed in a public or a private place, the offence cannot be committed in a “dwelling” (as defined in section 8) where the other person is also inside a dwelling. Behaviour at private meeting in a hall would be covered (as in Thomas v Sawkins) but not a purely domestic dispute (as in Lamb). To that extent the offence, and therefore the arrest power, is narrower in scope than “breach of the peace”.Quite often the police use breach of the peace to enter quite illegally a home to arrest a person, they state the breach of the peace has been committed because its easier and negates their illegality, which as we are all well aware would result in a claim from the householder at a later stage.That is until the government remove the funding for legal aid to permit the disadvantaged in society to make that claim. The arrest power under section 4A, which applies where the behaviour is intended to cause harassment, alarm and distress, and does actually do so to a particular person, can be exercised without the need for a warning (s 4A(4)) A further statutory arrest power which is also relevant in this context is that under section 25 of PACE 1984. Whereas section 24 of PACE gives powers of arrest in relation to certain categories of offence (“arrestable offences”), generally those of a more serious nature, section 25 allows a police officer to arrest a person who is suspected of having committed or attempted, or being in the process of committing or attempting, any non-arrestable offence, provided that one of a number of “general arrest conditions” is satisfied In the majority of situations in which a police officer might wish to use the breach of the peace power, there is an equivalent statutory power available. This is particularly true of arrest, where there is a range of different powers available under PACE 1984 and the Public Order Act 1986. As regards entry to the premises, although there is a power to enter any premises to arrest for an arrestable offence, the offences which deal with behaviour most closely analogous to that falling to be dealt with as a breach of the peace – that is, the offences under sections 4, 4A and 5 of the Public Order Act 1986 – are not “arrestable”. There is a specific, limited, power of entry to arrest for a section 4 offence (PACE 1984, s 17(10)(c)(iii)), but even this is not available in relation to a “dwelling”. Moreover, even if behaviour falling into this category could be brought within section 17(1)(e) of PACE (“saving life and limb” or preventing serious damage to property), there is no power equivalent to the preventive power recognised in Thomas v Sawkins and McLeod v Commissioner of Police for the Metropolis. The statutory powers rely on an offence being, or having been, committed, or on the need for instantaneous action (ie under s 17(1)(e)). There is no power to enter premises in order to ensure that an offence does not take place, however, if the behaviour is serious enough to amount to an assault under section 47 of the OAPA 1961 there will be a power of arrest, even in a dwelling. There is also one reported example of an arrest for the offence of affray, under section 2 of the Public Order Act 1986, taking place as a consequence of a domestic dispute. In R v Davison [1992] Crim. L.R. 31 the events took place in the accused’s flat. There had been a domestic incident, as a result of which the police had been called. One of the police officers was threatened by the accused, who was holding a kitchen knife. He waved the knife from side to side, saying “I’ll have you”. He was then arrested and charged with affray, and it was held that he did have a case to answer. Although this situation is perhaps an unusual one for a charge of affray, which is more commonly used in relation to fighting in public, it indicates that there are possibilities of using other sections of the Public Order Act 1986 to cover ground that might otherwise be dealt with as a breach of the peace. Since disorderly conduct is not confined, this confers a considerable discretion on the individual police officer, provided that it the behaviour is likely to cause someone present harassment alarm or distress. It cannot be said, however, that the discretion is as broad as that which exists under the common law, as exemplified by Humphries v Connor. The police would, therefore, have less extensive powers if the breach of the peace power was simply abolished.Quite simply if plans are affected and access to justice is restricted then miscarriages of justice will indeed rise, public order offences will undoubtedly increase alarmingly and the police will once again demand more powers to abuse and misuse against an ever increasingly controlled and benign society.

    Karen Clark Stapleton

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