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‘Inaccurate and misleading’: Judge rejects Legal Aid Agency’s attack on eviction advice service

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A High Court judge has delivered a devastating crtitique of the UK Legal Aid Agency over its moves to change the way people facing eviction or repossession of their homes receive legal help. A crucial part of his argument for the change was based on a claim that was “both inaccurate and misleading” – or, as will be seen (and thankfully this blogpost can be less circumspect in its language), what is commonly known as “untrue”. The LAA had claimed two lawyers organisations backed the changes. In fact they had not been asked for their view.

The arguments of the Ministry of Justice and the Legal Aid Agency used to justify the change were “based on assumption or conjecture or, at most, ‘anecdotal’ evidence from a handful of un-named providers [of the legal services]”, said Mrs Justice Andrews, hearing a judicial review application brought by the Law Centres Network (pdf) in the High Court.

The matter at issue was the Housing Possession Court Duty (HPCD) schemes that seek to ensure on-the-day legal advice and representation for people in court facing repossession and eviction. They are largely funded by legal aid to the tune of £3.6m a year – 0.2% of the legal aid total – and in many cases not-for-profit organisations, including local law centres, have the contracts to do the work.

Around 2014 the Legal Aid Agency suggested the schemes should be subject to price competition for the first time and re-tendered in a more consolidated form – ie a reduced number of schemes covering wider areas rather than focused on local courts. (At around this time there were were 117 HPCD schemes covering 167 courts; this was to be reduced to less than 50).

The argument was that some providers had withdrawn from offering schemes for economic reasons and  the change would promote “sustainability” (that weasel word meaning anything and nothing). But Andrews found no evidence for either contention. Read the rest of this entry

Legal aid and divorce: Theresa May’s cackhanded crusade against Sharia courts

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Britain’s Prime Minister Theresa May seems to want some sort of crackdown on the role of Sharia Councils – complaining in particular that their decisions in divorce matters are unfair to women. Yet the Government has virtually cut off all legal aid for divorce proceedings – with the result that many Muslim women will have little choice but to have their cases heard by Sharia Councils. And the review of Sharia in England and Wales by Mona Siddiqui (published 1 February 2018) barely touches on the issue.

Sharia Councils (sometimes known as Sharia courts) are exactly the sort of bodies that the Government might think should be involved in divorce work. The Jewish Beth Din also arbitrates divorce cases, guided by halach, Jewish rabbinical law, and a recent legal case has affirmed that such arbitration will receive a measure of deference in the English and Welsh courts.

In abolishing legal aid for divorce and custody cases except in narrow circumstances, the Ministry of Justice said: “In cases like divorce, courts should more often be a last resort, not the first. Evidence shows that mediation is often more successful, cheaper and less acrimonious for all involved.”

Yet, only now does the Government seem to have realised that family law cases come before Sharia Councils – for advice, mediation or something closer to binding arbitration – and the values of Sharia Councils aren’t necessarily those espoused by Tory ministers and do not meet modern standards regarding female equality.

Yet women who might be dissatisfied with the results of of Sharia Council mediation or arbitration have been cut off from recourse to the courts by the new legal aid rules. As Home Secretary May said in her speech against extremism announcing a review of Sharia Councils: Read the rest of this entry

R (Sisangia): woman wins legal aid to pursue Metropolitan Police false imprisonment claim

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A woman has won a significant case giving her legal aid to pursue an allegation of false imprisonment against the London Metropolitan Police – despite a claim by lawyers that legal aid was barred by the Coalition Government’s draconian LASPO legislation [Note: see however Court of Appeal reversal at end of this piece].

The case of R (Sunita Sisangia) v Director of Legal Aid Casework means legal aid will not be restricted to tort claims in which police are accused of dishonesty in detaining people unlawfully. Legal aid will be available for a wider set of claims: when police detain someone deliberately (whether or not dishonestly) knowing harm might come to the detainee as a result of the detention.

Sisangia had been arrested just after at 4am one morning in January 2011 after a neighbour reported alleged harassment two weeks earlier. She was held for more than 11 hours. “Ms Sisangia says that she was not provided with permission to take her medication until she saw a doctor at 0810 hours, and was not provided with food or water until 0953 hours. Ms Sisangia alleges she was not provided with any further food apart from water and a cup of tea, was released from custody at 1545 hours.” Police decided there was no criminal case against her.

Sisangia’s claim for being wrongly detained is in part based on the police being aware of the history of her dispute with the neighbour during which she had been allegedly threatened and as a result of which she had been given a panic alarm by the police. She considers it was unnecessary to have arrested her in a “dawn raid”.

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Nigel Evans legal fees: thank the Tories we don’t have to pay

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Friends of Nigel Evans, the British House of Commons deputy speaker cleared of nine sexual offences, have complained that he has been financially wiped out by £130,000 of defence costs in the court case. And wags of a legal disposition have pointed out that he has only his own Tory-led Government to blame.

Conservative MP for Northampton South Brian Binley,  a friend and flatmate of Evans, and Tory Bob Stewart have both pointed out Evans must pay his defence costs even though he was acquitted of all charges – and the Crown Prosecution Service criticised for pursuing them. And Evans himself now says the state should pay. But none of them has made the link with Section 16A of the Prosecution of Offences Act, added by amendment to the act by the notorious Legal Aid Act (LASPO) in 2012.

This stops defence costs being awarded for those not legally aided except under limited circumstances. Costs can be awarded: Read the rest of this entry

Saatchi and Nigella: Exactly what offence has been admitted?

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The pictures show Charles Saatchi’s hand around his wife Nigella Lawson’s neck. He has accepted a caution for common assault, but what exactly has Saatchi actually admitted to?

The text books are clear: assault, in law, is not an offence that involves any physical attack on a person or even physical contact. It is a common law offence, sometimes called “psychic assault”, consisting of “an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person”. Collins v Willcock (1984)

More recent case law would seem to agree: “A defendant committed common assault when he did something of a physical kind which caused someone else to apprehend that they were about to be struck.” R v Nelson (Gary) 2013.

This was a case where a punch was thrown but the jury were uncertain that it had landed. The issue was whether a finding of common assault (where no contact can be inferred) could be substituted for the offence of assault by beating. The important point was that the victim apprehended an immediate beating, though fortunately it didn’t occur.

Yet police, prosecutors and presumably victims seem to treat “common assault” as being able to include battery – in other words as if the word assault has the commonly understood dictionary meaning of some sort of physical violence.

The CPS charging standards makes the distinction thus:

An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.

A battery is committed when a person intentionally and recklessly applies unlawful force to another.”

But it also says this: “An offence of Common Assault is committed when a person either assaults another person or commits a battery.” It notes that the only distinction between common assault and causing actual bodily harm (under section 47 of the Offences against the Person Act 1861) is the degree of injury.

Statute, while not defining common assault, distinguishes it from battery (unlawful application of “force” including mere touching) in S. 39 of the Criminal Justice Act 1988:

Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.”

But even in the statute there is confusion as to whether S.39’s distinction applied to S.40(3)(a), where the words “common assault” were used apparently to include battery. In R v Lynsey [1995] 3 All ER 654 it was decided by the Court of Appeal that, indeed, the statute was inconsistent and in effect it was intended (in legal terms) to be inconsistent.

Henry LJ says: “Where the narrow meaning of the phrase ‘common assault’ makes no sense in its context in s.40 and cannot possibly reflect any rational policy, it is entirely permissible as a matter of construction [by the judge], in our view, to prefer the wider meaning of the same phrase, which makes good sense and reflects a rational policy. Draftsmen after all sometimes make mistakes.”

Hence common law assault could be charged as if S.40 applied even though S.39 would seem to restrict the term to to the narrow legal definition of “psychic” assault.

Henry LJ notes: “In the courts, assault has generally become synonymous with battery, that is to say when the word ‘assault’ was used it normally meant the intentional use of unlawful force to another’s person without his consent” – ie the classic legal definition of battery, not assault. The accused was charged with common assault yet he had spat at a police officer – on the face of it a classic battery with unlawful physical (albeit indirect) contact but no particular injury.”

Common assault has therefore become a sort of hybrid offence. “In practice, a common assault applies to an assault, a battery (or both) where relatively slight injury has been caused to the victim, or, depending on the circumstances of the case, where no physical harm at all has been sustained,” according to an article in the Justice of the Peace journal. (Leonard Jason-Lloyd (2004) 168 JPN 748)

‘Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free’ – Henry LJ

So how do we establish what Saatchi has admitted and what he has not? We have seen he had his hand to Nigella’s throat. He said it was “playful” and one might think that couples in intimate relationships might do and consent to such things. But even so his wife might have “apprehended” something less playful, the application of unlawful force without consent. Saatchi would have been guilty of orthodox textbook “psychic” assault.

But if the hand to the throat was the actual act of battery (unlawful, unwanted but not producing injury) then he has conceded to “common assault” in its wider meaning as encompassing the physical act, not just the “psychic” effect. In this case the apprehension came a split second before the clutching at her throat. It was the hybrid “common assault” consisting of assault plus battery rolled into one.

Does any of this confusion matter? If we believe the law should be clear, then yes. One need not worry too much about Charles Saatchi. He had the option of defending himself in court with the finest legal brains money can buy. They could have made much of the assault/battery distinction, about issues of consent or apprehension. But he just wanted to get the press off his back.

But what about all the other people in police custody suites who are being persuaded to accept a caution for “common assault”. Such an acceptance is not a conviction as such, but it boosts police clear-up rates very nicely without too much trouble. Throw into the mix the new “Eddie Stobart law” legal aid system in which franchised legal teams will also have an incentive to see cases off their books as quickly as possible and there is a likelihood of rather a lot of this sort of thing: persuading people to agree they’ve committed an offence the existence and definition of which remains vague and which the courts, the lawyers and the statutes cannot agree on.

Henry LJ said in Lynsey: “Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free.” It hasn’t happened yet but clearly should have happened by now.

Twitter: alrich0660

Background notes Read the rest of this entry

Criminalisation of squatting will cause problems, not solve them

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The criminalisation of squatting came into force on 1 September 2012. This article was written as the bill was going through Parliament and contrasts the previous legal position with the new law. The Criminal Law Act provisions described below and the civil remedies remain in force in addition to the new law and so householders and intended occupiers may continue to make use of them.

It looks as if the UK Government will soon have its law criminalising squatting on the statute books, overturning a centuries-old legal principle and turning an estimated 20,000 people into criminals overnight.

The measure is hidden deep within the dark cloak of the Legal Aid, Sentencing and Punishment of Offenders Bill. Clause 145 on squatting [now enacted as Section 144] is the result of a late amendment to a bill that, as it’s name implies, has nothing to do with squatting. The amendment was added just before the bill headed to the House of Lords with only an hour and a half of Commons debate and only days after the Ministry of Justice published its paper on Options for Dealing with Squatting

Now you won’t read here any sentimental romanticism about the joy or justice of squatting. The trespassing of people’s homes, implying as it does an interference in their property, privacy and peace of mind, deserves no legal protection. That is why in another context those things are deemed breaches of human rights.

Instead, the argument is that Clause 145 is unnecessary, disproportionate and likely to harm, not to help, residents trying to get back into their homes.

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