Analysis of the Impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012

1. INTRODUCTION

It is now seven years since the Legal Aid,  Sentencing  and  Punishment  of  Offenders  Act  2012 (LASPO) became law, and six since it came into force on April 1, 2013[1].

LASPO was an ambitious legislation, which carried out a major review of the legal aid system and introduced highly controversial reforms to the justice system. The rules on the provision of legal aid in civil matters are mainly contained in LASPO, as well as in secondary legislation and the guidelines established under this law[2].

The aim of this report is to evaluate the reforms introduced by LASPO and their impact on the family law system. It will also analyze its most problematic aspects with the intention of drawing as a conclusion possible recommendations for improvement.

2. REFORMS INTRODUCED BY LASPO

Since LASPO it  is granted only in cases falling within the scope of the scheme and where the applicant meets the criteria relating to economic resources and the basis of the claim.[3]

The main reforms introduced by Part 1 of the Act affecting the family law system are:

•         The abolition of legal assistance for private law cases (such as contact or divorce), unless applicants fall into one of the so-called exceptional categories or make applications for protective orders in relation to domestic violence.

•         Legal aid remains available for public law cases (such as adoption) but limited to a fixed fee.[4]

2.1 EXCEPTIONAL CATEGORIES

In order to be entitled to legal aid in family cases, applicants must demonstrate that they fall within one of the exceptional categories:

1. the applicant is a victim of domestic violence;
2. the case involves an injunction of forced marriage;
3. the case involves allegations of child abuse;
4. a child who is a party to a procedure; or
5. exceptional circumstances[5]

In the event that the applicant deals with matters falling within legal areas that are not included in the current scope, the applicant will be channelled into informal processes that may sometimes be problematic. In addition, another alternative for those who are denied legal aid is to pay for their own advice or to represent themselves in court[6].

2.2 DOMESTIC VIOLENCE

One exception is domestic violence. LASPO provides a definition of domestic violence which, unlike previous legislation, includes “any incident or pattern of incidents involving any physical threats, emotional abuse, control behavior or coercive behavior”[7].  This broad conception might lead to the idea that more people can be included in that definition and therefore have access to legal aid. However, high restrictions on how to prove a domestic violence situation significantly limits the access[8].

The Civil Legal Aid (Procedure) Regulations, reg. 33 establishes the closed list of proofs of evidence that is required to demonstrate the risk of domestic violence. In addition, the government states that these evidences should be obtained within the 24 months preceding the court case, which reveals a lack of appreciation of what this means for the victims[9].

A  reference case is R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice[10].   The complaining organization R  challenged the legality of the regulations on the evidence that can be presented to demonstrate a domestic violence situation. The allegation set out several cases in the applicants were undoubtedly at risk of domestic violence, but for which it had been impossible to submit a 24-last-months prove. This demonstrated that the strict regulations  "have no rational connection to the legal purpose" to ensure access to legal assistance for victims and, therefore, the time limit established  was illegal. Therefore, new regulations have completely eliminated and extended the deadline for criminal convictions and increased it for other cases  to 60 months.[11]

In 2014, the Ministry of Justice  confirmed the existence of difficulties in accessing certain evidence and that many victims cannot prove what happened. As a result, they are  therefore  obliged to represent themselves and bring actions against their abusers.[12]

On the other hand, it should be noted that if the State granted legal aid to anyone who claims to be a domestic violence victim, without taking into account the evidence established, the legal system would be open to abuse.

Another drawback is that  LASPO  created  a mandatory gateway through the 'Community Legal Advice' helpline for certain areas.[13] This means that an operator conducts initial case assessment and financial eligibility for free legal assistance. If the telephone operator considers that the matter deserves further consideration, the client may be referred to a specialized legal advisor[14].

The Law Society supported the availability of telephone counseling as an option for clients but has expressed concern about its mandatory nature in  some areas as this is a barrier to face-to-face advice for many clients for which  telephone counseling is not appropriate[15]. For instance, in cases of domestic violence, the possibility of applying this service is striking because of the difficulty and lack of sensitivity that it may pose for  the  victim of  abuse to demonstrate evidence of what happened  to a telephone operator.

2.3 CHILDREN AT RISK

A second category of exemption are cases of child abuse. These involve problems that have an impact on a child´s life. For example, with whom they will live, what the responsibilities of  their parents will be, what contact they will have with the parents and family members or what their standard of life will be[16].

The evidence necessary to prove that children are at risk of harm is set out in Regulation 34 and is similar to the grounds for domestic violence testing[17].

Despite the government's initial intentions to keep legal assistance free when children are involved, the truth is that LASPO has had a negative impact on children because it has complicated the procedure by which they and their representatives access legal counseling and representation[18]. 

2.4 EXCEPTIONAL CIRCUMSTANCES

Even if the case is not divided into one of the two categories above, article 10(3) of LASPO provides for exceptional case funding (ECF) for categories of law which are no longer in the field of legal aid and where failure to provide legal services would infringe the rights of a person's Convention (within the meaning of the Human Rights Act)[19] or other enforceable EU rights relating to the provision of legal services.

ECF applications are difficult and time-consuming[20]. Most  applicants lack the specialized legal knowledge to demonstrate that it is possible to apply the highly technical criteria of violation or risk of violation of the Convention or EU rights. In addition, the Legal Aid Agency  is extremely strict when exceptional funds are available[21]. Therefore, the application volume of the ECF system is lower than expected and the number of successful applications is surprisingly low.

3. OBJECTIONS TO LASPO

Reducing the scope of legal aid through LASPO opened a number of gaps in the provision of advice and led to controversial responses as to the effects of its provision. The main objections to LASPO are presented below.

3.1 DIFFICULT ACCESS

As a result of LASPO, "legal aid deserts" have emerged[22].  These are areas of the country where there is not enough support available because cuts in legal aid have been exacerbated by the abandonment of family law work by many law firms[23].

In addition, in the cases of domestic violence and child abuse described in section 2, conditions of implementation have been put in place to make access even more difficult.  As a result,  even those who are entitled to legal assistance may find it difficult to access[24].

3.2 HUMAN RIGHTS

Under Article 6 of the European Convention on Human Rights[25] everybody is entitled to a fair trial. Based on this article, it is possible to consider that cuts introduced  by LASPO  have caused situations of real injustice.

A good example was Re T(Children) [26], in which a child's grandparents were reported for being involved in their grandson's abuse. The  modest-income couple were not eligible for free legal assistance, so to defend themselves they were forced to get into debt. In this circumstance, the Supreme Court correctly raised Article 6 by noting the need to guarantee their right to a fair trial. From this case, future litigation paid greater attention to the possibility of infringing people's human rights.

On the other hand, the European Court of Human Rights (ECHR) has made it clear that the right to a fair trial does not mean that someone is automatically entitled to legal aid.   However, access to legal aid may be necessary to ensure a fair trial. 

Airey v Ireland[27] explains what aspects to consider when deciding whether a refusal of legal aid infringes Article 6:

•         The complexity of the case, including procedural and legal issues

•         The need to present evidence and examinated witnesses and use expert evidence

•         The capacity and circumstances of the person.

In addition, ECHR stressed that fairness  is  key to deciding whether this article is breached.  If  the court is convinced that a person can adequately represent his own interests or that pro bono representation is adequate, there is no violation of Article 6.

With regard to the provisions of section 2 with respect to cases of children at risk, it is important to note that Article 6 also recognizes the right to a fair trial for them. Children cannot represent themselves in court, as they do not have the skills and knowledge to do so, so the denial of legal aid can lead to children being violated[28]. The ECHR is particularly concerned about the potential negative impact LASPO can have on  them and is aware that access to legal aid is vital in terms of their protection.

Here are some more cases of law that demonstrate the importance of  Article 6:

•         In Kinderis v Kineriene[29], Holman J refused to proceed with a child abduction case in which the mother was representing herself without knowledge of the law or English. The judge allowed the adjournment so that she could bring an action against the refusal to grant her legal aid, suggesting that continuing the case could be an injustice under Article 6.

•         In Re L (Application Hearing: Legal Representation)[30] it was accepted that a parent with a history of mental disorder was a "vulnerable litigator" and that requiring him to be represented in court would violate his right to a fair trial in accordance with Article 6.

•         RP and others v UK[31] is another case in which Article 6 is violated, denying legal representation to a mother with learning difficulties who lacked the ability to litigate.

Finally, Sir James Munby, President of the Family Division of the High Court ofEngland and Wales until July 2018, made it clear in Re D (Non-Availability of Legal Aid) [32] that the violation of human rights is not only a matter of technical law, but of basic humanity and equity[33].

In addition, the reduction of the legal aid service also interferes with the prohibition of torture in Article 3 and respect for private and family life in Article 8 of the ECHR[34].

3.3 LITIGANTS IN PERSON

Another of the objectives stated by the government in introducing LASPO was to discourage unnecessary and contradictory litigation to increase acceptance of mediation. However, the opposite effect has occurred and  the number of in-person litigants (LIPs) has increased[35]. As a result, public expenditures have also  been increased.[36]

While in the past, LIPs  were represented by choice, they are now more likely to do so because they cannot pay legal fees and  are not eligible  for legal aid. Therefore, LASPO's reforms have created  a substantial burden of cases for courts and delays as LIPs are unfamiliar with the processes and lack a holistic approach to justice.[37]

Black LJ in Re R (Care Proceedings: Welfare Analysis of Changed Circumstances)[38] ensures  that more and more litigants appear in front of the courts  and  adds that they  often do not provide the packages that the court requires  which therefore puts the onus on the courts themselves to gather the necessary documents for the case.

On the other hand, LIPs can also harm themselves by notsetting their arguments  as clearly as possible before the courts. In Re W (A Child)[39], a mother whose son had been abused by her paternal grandfather and who represented herself in court, insistently objected   to the child's father having contact with him. The Court of Appeal ordered the child to move on to live with the father justifying his decision that the mother was "obsessed" with previous child abuse. This is certainly a problematic case,  but one wonders whether the fact that the mother had to represent herself  made her more vulnerable to emotions  than she would have been had she been advised and represented by a lawyer. Therefore, it is possible to say that without legal representation, a source of guidance and advice is  lost.[40]

Finally, those who face the LIP may also be harmed. This is particularly problematic in domestic violence cases, as it is possible that the perpetrator himself is the one who directly interrogates  his  victim.

While in criminal courts primary legislation was enacted to prevent this from happening (S36/34 of the Juvenile Justice and Criminal Evidence Act 1999)[41], there is still no such protection in civilcourts. In fact, Hayden J in Re A (A Fact Finding: Unrepresented Party)   [42] states that the fact that a judge cannot prevent a victim from being questioned by an alleged perpetrator is deeply unfair and even abusive.

4. CONCLUSION

The LASPO Act 2012 has significantly limited the availability of legal assistance in the family law system and the implementation of its reforms has had a negative effect in some areas.

Hereunder, there are noted some possible recommendations to improve its future implementation:

•         Re-evaluate application processes and eligibility criteria to ensure that legal aid is accessible to the most vulnerable groups in society, such as people of modest income, victims of domestic violence or children.

•         Provide a greater service of family law attorneys to guarantee access to assistance when necessary.

•         Consider reintroducing early legal advice to combat the rise of litigants in person.

•         Conduct a complete consultation on the traumatic possibility that the alleged perpetrator of domestic violence may interrogate his victims. It is essential to address this problem to ensure the protection of victims.

•         Closely monitor the mediation use and encourage it.

Therefore, a thorough LASPO review is needed  to change what is not currently working  and prevent its negative effects  from getting worse in the future.

5. BIBLIOGRAPHY

• Garner, Bryan A., and Henry Campbell Black. Black's Law Dictionary. 9th ed. St. Paul, MN: West, 2009.
• Dr. James Organ and Dr. Jennifer Sigafoos (September 2018) pp. 26-27. The impact of LASPO on routes to justice. Equality and Human Rights Commission. Research Report 118. University of Liverpool.
• European Court of Human Rights (1950), European Convention on Human Rights
• Herring, J. (2019) Family Law. Ninth ed. Harlow: Pearson.
• Legal Aid Agency (LAA) (2014), The Legal Aid Agency Annual Report and Accounts 2013 to 2014
• Legal Aid, Sentencing and Punishment of Offenders Act 2012
• Mant J and Wallbank J (2018), The mysterious case of disappearing family law and the shrinking vulnerable subject: the shifting sands of family law´s jurisdiction, Social and Legal Studies 26:629
• Marshall E, Harper, S. and Stacey H. (March 2018) Family Law and Access to Legal Aid. PLP Research Briefing Paper. Public Law Project.
• Ministry of Justice and Legal Aid Agency (Last Updated September 2019) User Guide to Legal Aid Statistics, England and Wales. Ministry of Justice statistics.
• Airey v Ireland (1979) 2 EHRR 305
• Kinderis v Kineriene  (2013) EWHC 4139 (Fam.)
• R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice (2016) EWCA Civ 91
• Re A (A Fact Finding: Unrepresented Party) (2017) EWHC 1195 (Fam)
• Re D (Non-Availability of Legal Aid) (No 2) (2015) EWFC 2
• Re L (Application Hearing: Legal Representation) (2013) EWCA Civ 267
• Re R (Care Proceeding: Welfare Analysis of Changed Circumstances) (2014) EWCA Civ 597
• Re T (Children) (2012) UKSC 36
• Re W (2014) EWHC 564
• RP and others v United Kingdom (2013) 1 FLR 744
• The Civil Legal Aid (Procedure) (Amendment) Regulations 2016 (SI 2016/516)
• The Civil Legal Aid (Procedure) Regulations 2012, reg.34
• The Law Society of England and Wales (June 2017) Access Denied? LASPO four years on: a Law Society Review
• Wong, S. and Cain, R. (2018) The impact of cuts in legal aid funding of private family law cases. Journal of Social Welfare and Family Law, Vol.41
• Women´s Aid (2014 and 2015) The Women´s Aid Annual Survey[i]

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[1] Legislation Legal Aid, Sentencing and Punishment of Offenders Act 2012.

[2] The Law Society of England and Wales (2017) pp.2

[3] The Law Society of England and Wales (2017) pp.6. 

[4] Ministry of Justice and Legal Aid Agency (Last Updated September 2019) pp.14 

[5] Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sched 1; Herring J. (2019) pp.38

[6] Mant J and Wallbank J (2018)

[7] Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sched 1. para 12(9)

[8] Dr. James Organ and Dr. Jennifer Sigafoos (2018) pp. 26-27.

[9] Herring J (2019) pp.39-40 Family Law. Ninth ed.

[10](2016) EWCA Civ 91

[11] As amended by the Civil Legal Aid (Procedure) (Amendment) Regulations 2016 (SI 2016/516)

[12] The Law Society of England and Wales (June 2017) pp.16. 

[13] The Law Society of England and Wales (June 2017) pp.17. 

[14] Ministry of Justice and Legal Aid Agency (Last Updated September 2019) pp.14 User Guide to Legal Aid Statistics, England and Wales. Ministry of Justice statistics

[15] The Law Society of England and Wales (June 2017) pp.17. 

[16] The Law Society of England and Wales (June 2017) pp.6-9

[17] Civil Legal Aid (Procedure) Regulations 2012, reg.34

[18] The Law Society of England and Wales (June 2017) pp.6-9

[19] Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sched 1. s.10(3)

[20] Herring J (2019) pp.41-42

[21]Legal Aid Agency (2014)

[22] Marshall E, Harper, S. and Stacey H. (March 2018) pp.3

[23] Wong, S. and Cain, R. (2018)

[24] The Law Society of England and Wales (June 2017) pp.12-13

[25] European Convention on Human Rights, article 6.

[26] (2012) UKSC 36.

[27] (1979) 2 EHRR 305

[28] The Law Society of England and Wales (June 2017) pp.6-9

[29] (2013) EWHC 4139 (Fam.)

[30] (2013) EWCA Civ 267

[31] (2013) 1 FLR 744

[32] (No. 2) (2015) EWFC 2

[33] Herring J (2019) pp.46-47

[34] See European Convention on Human Rights, article 3 and 8

[35] Dr. James Organ and Dr. Jennifer Sigafoos (Septemeber2018) pp. 22-23

[36] The Law Society of England and Wales (June 2017) pp.26

[37] Marshall E, Harper, S. and Stacey H. (2018) p.3

[38] (2014) EWCA Civ 597

[39] (2014) EWHC 564

[40] Herring J (2019) pp.49

[41] The Law Society of England and Wales (June 2017) pp.26

[42] (2017) EWHC 1195 (Fam)

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[i]  2437 words not including references and bibliography