Thursday, 25 August 2011

Do the Scots beat the English and Welsh at providing legal aid?

Scottish Legal Aid Board Link to LSC home pageLogo of Community Legal ServiceLogo of Criminal Defence Service

The Scots seem content with retaining the old picnic table brand for legal aid, while the English and Welsh have dropped this and replaced it with three logos!

Over the last few months the government has grown fond of making comparisons with other countries to try and justify its planned legal aid cuts. Comparisons are difficult to make as the British adversarial system is very different to the inquisitorial systems that predominate in the rest of Europe. However, somewhat nearer to home a legal aid system can provide some pointers to where the system in England and Wales might be going wrong. In Scotland, while its legal aid system shares the same origins, it seems to have worked out how to provide a system that costs less, but is more extensive, than the one south of the border.

A big difference between the two systems is that personal injury cases are still covered in Scotland. In England and Wales the Access to Justice Act 1999 ended this and introduced changes to the law on recovery of costs in damages cases. The Scottish legal system does not allow costs for insurance and success fees to be charged to the losing side. There are other differences in the scope of legal aid, for example, representation in employment tribunal cases is covered by legal aid in Scotland.

Colin Lancaster, director of policy and development at the Scottish Legal Aid Board (SLAB) said: 'SLAB and the Scottish government see the use of legal aid in personal injury and other damages-based cases as a worthwhile social investment.' He pointed out that over 80 per cent of the fees paid out in such cases are recovered. This is the same as what used to happen in England and Wales.

By not going for radical change and adopting a more gradual approach to legal aid reform and by having stable management at the top of the SLAB, the Scots seem to have been more successful in delivering their legal aid system than England and Wales. Perhaps the government needs to learn from this rather than rushing to slash entitlement to legal aid as it plans to?

An article on the Scottish legal aid system will appear in the September issue of Legal Action journal.

Tuesday, 16 August 2011

Rioters, punishment and justice

Law-breakers need to be punished and it is the job of the courts to do so. Those caught rioting and looting are being brought to justice, although the criminal justice system is creaking under the strain. LAG is concerned that politicians do not seem content to leave punishment to the courts. In reaction to the public’s justified revulsion over the events of last week, the government is suggesting that benefits should be cut and public sector tenants evicted, if they have a family member accused of a riot-related offence. LAG believes this would be both unjust and morally wrong.

The law should punish those who have committed an offence equally, whether they are an inner city tenant or a resident in a suburb. No-one is suggesting that those rioters living in their parents' homes or buying their homes should be evicted along with their families. Threatening to evict public sector tenants with family members accused of offences related to the riots is disproportionate and possibly illegal. The families of murderers and rapists are entitled to housing and benefits - in believing that it is right to deny these to families of rioters the government is guilty of an ill-considered and knee-jerk response.

Trying to evict the family of a rioter who committed his/her offence outside the locality in which they live might well not be possible and there are other legal impediments to evicting tenants with family members accused of riot-related offences. We would also emphasise the word 'accused' here, as it seems that some want to rush to punish before a legal conviction.

LAG believes that the attempt to evict families of rioters is underpinned by the notion that public sector tenants are in some way second class (or even third class) citizens because they rent their homes from the state and are, arguably, subsidised by the public purse. Yes, parents and other family members have a role in trying to ensure they all abide by the law, but it is wrong for them to be held legally liable for the actions of a family member, particularly if s/he is over the age of criminal responsibility. Evicting a family leads to greater problems, costs to the state and makes it less likely that the family will stay together.

Similarly, the idea of reducing the benefits of the families of rioters is bound up with prejudices surrounding people who live on benefits. Lawlessness is not something that is exclusive to benefit claimants and their families. The point has already been made in the public debate surrounding the riots that MPs and bankers have contributed to a culture of greed and selfishness. Moral principles appear easy to apply to a rioter caught pinching bottled water from Aldi, but are less certain when applied to over-claiming on expenses forms or selling financial instruments which are known to be at their core a collection of dodgy mortgages.

Figures released by the Ministry of Justice yesterday show that 65 per cent of people charged with offences relating to the riots have been remanded in custody. This is over six times the usual rate. LAG believes that it is right that the courts should be able to apply discretion in decisions around custody. In exceptional circumstances such as these, where public order is at stake, to err on the side of harsher punishments is probably right. But with the passage of time we believe some sentences currently being handed down will seem too harsh and counter-productive.

Poverty and deprivation is not an excuse for lawlessness, but it can contribute to the causes. What the government and the public must not do is leap on the idea that harsher punishments for rioters from poor and marginalised communities can be justified. Ultimately, it is individuals that make the choice to commit a crime and they should be punished by the courts, but as we have seen in recent days, it is often families which have to deal with the consequences of these crimes. They should not be punished too.