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Former Appeal Court judge says cuts to Legal Aid may result in “serious miscarriages of justice” (31 March 2015)

Date: 31/03/2015
Duncan Lewis, Legal News Solicitors, Former Appeal Court judge says cuts to Legal Aid may result in “serious miscarriages of justice”

A former leading judge has told BBC1’s Panorama programme that he fears the government’s cuts to Legal Aid may lead to “dire consequences”, involving serious miscarriages of justice for people who have to represent themselves in court because they cannot afford a solicitor or barrister.

Former Court of Appeal judge Sir Alan Moses – now chair of the Independent Press Standards Organisation (IPSO) – told BBC reporter Raphael Rowe:

“There should be equality under the law – that means not just the way the law treats people equally; but in their ability to be able to vindicate their rights and argue their cases, irrespective of their means.

“I'm quite certain that if you don't allow those who can't afford it legal assistance, more and more serious miscarriages of justice will occur.

“It seems to me inevitable that that will happen if you don't have skilled independent advocates arguing cases.”

The government cuts to civil Legal Aid mainly affected family law cases, medical negligence cases and private housing cases.

Speaking to Panorama, Duncan Lewis’ Practice Director, Jason Bruce, denied, however, that Legal Aid was a “gravy train” for lawyers, as had been suggested in the media.

He told Panorama that an average spend on Legal Aid at Duncan Lewis Solicitors amounted to around £800 per client – and the vast majority of Legal Aid lawyers would be on a salary of around £22,000 to £40,000.

He also responded to suggestions that some lawyers were bankrolling “fairly dubious court cases with Legal Aid” – and were “effectively underwriting the risk of doing so with taxpayers’ money”.

“I think it’s really, really important that everyone fully understands that there is no gravy train – there is no bankrolling [using] the public purse’s money when it should be spent elsewhere,” he told the BBC.

As a result of The Legal Aid, Sentencing and Punishment of Offenders Act being introduced in April 2013, criminal Legal Aid fees were also cut by 8.75% last year.

Members of the Criminal Bar Association staged a number of half-day strikes in protest, over fears that cuts to Legal Aid for criminal cases might mean defendants would not always receive the expert opinion needed in their case – and more junior barristers would be used in complex cases to keep costs down, with some barristers potentially earning less than £20 a day as the cuts pushed down fees.

Cuts to Legal Aid in England and Wales were intended to reduce the annual Legal Aid bill of £2 billion by £500 million – of which £350m has already been cut from civil Legal Aid.

In civil cases, cuts to public funding have led to more people representing themselves in court. Known as “litigants in person”, they often have to prepare their own case and present it in court without any legal knowledge or training.

The government is promoting more mediation and dispute resolution for civil cases, with the parties meeting to negotiate a settlement out-of-court if possible. In some cases, this has meant that women who have experienced domestic violence in a relationship have had to meet their abuser across a mediation table.

Panorama reports that the discretionary scheme launched to offer Legal Aid in exceptional cases – Exceptional Case Funding – has already received 1,500 applications, with just 69 being granted funding.

The Ministry of Justice says, however, that the Exceptional Case Funding Scheme is “functioning as intended”.

Senior Conservative and former Justice Secretary, Kenneth Clarke QC – described as the “architect” of the Legal Aid reforms – has defended the cuts, saying:
“The idea that Legal Aid – this extraordinary, generous system that the British had acquired thanks to lobbying over the years – should be sacrosanct and left untouched and couldn't be reduced was not one I agreed with.
“When the financial system eases – and when you don't need more money for hospitals or schools – then perhaps you should start putting some back into Legal Aid.
“But you've got to ask what justice really requires – and really means,” he added.

Labour Shadow Justice Secretary Sadiq Khan said that his party was “horrified” by the impact of cuts to Legal Aid.

“We are going to widen access to justice,“ said Mr Khan.

“One of our priorities will be to ensure that those women in particular who have lost out as a consequence of the government’s changes to Legal Aid and domestic violence, are able to get legal advice and representation.”

Panorama: DIY Justice is available on the BBC iPlayer.

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