Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness O'Loan Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness O'Loan]

My Lords, there can be no doubt that the current arrangements represent, as the Minister said, an “unignorable problem of affordability”. However, even in that situation the current arrangements do not enable access to justice by huge sectors of society who must make the decision not to bring legal proceedings, based not on the merits of their case, but simply on the basis that they do not have the resources to fund litigation. So the current situation is far from perfect. The Bill as drafted will in some respects exacerbate a very difficult situation. It will not be compliant with Lord Justice Jackson's insistence that there should be,

“no further cutbacks in legal aid availability or eligibility”.

Elements of the Bill are welcome. I refer to the proposed introduction of a new offence of squatting in a residential building—a problem which became quite widespread as it was realised that it is possible to occupy a building without any possibility of criminal sanction. The costs of such occupation in terms of property damage and the consequential civil legal proceedings to eject a party can be very significant and can cause massive distress. This provision is clearly a common-sense and necessary improvement to the law. The only question is why it has taken so long to get there.

I wish to address the issue of the extent to which the current proposals will restrict access to justice for the most vulnerable and marginalised members of our society in circumstances in which they find themselves the victims of crime—of clinical negligence, professional negligence or fraud. I think of those who are very poor; those who have to cope with the consequences of disability in all its forms; of the 20 per cent or so of our population who effectively cannot read and write; of prisoners, who are disproportionately represented among those with mental health and literacy difficulties; and of immigrants for whom access to justice was completely unknown in their home country and who have come to this country believing in the rule of law and the principles thereunder to enable access to justice. The current civil legal aid provisions are very restricted but they do allow people with very limited assets to bring the proceedings that are necessary to assert their rights. The evolving conditional fee arrangements provide some access to justice for those who are not entitled to legal aid but who can seek redress in the courts through alternative arrangements.

I am no fan of the ambulance chaser. Indeed, I would prohibit the type of advertisement to which I—like many other noble Lords, I am sure—have been subjected, suggesting that I have suffered an accident and the sender of the text will provide me with legal representation to enable me to secure compensation. However, the Access to Justice Action Group has stated that Part 2 of the Bill will affect the capacity of some 600,000 ordinary people to get access to justice. It states that there will be 25 per cent fewer claimants and that the remaining 75 per cent will lose up to 25 per cent of their compensation. This will almost inevitably, in medical cases, result in additional costs to the National Health Service. Have those costs been factored in to the overall savings said to be consequential on the proposed changes?

The reality for a parent who has given birth to a child who has suffered significant injuries as a consequence of medical negligence is very grim. Such parents face, even in the present situation, an almost insuperable problem. They must learn to come to terms with the consequences of the alleged negligence in terms of their baby's ability to function. They must enter a world which they hitherto never knew of clinical process and, in some cases, almost constant emergency situations. They must learn to do that which doctors and nurses normally do, to preserve the life and function that their children have. Often, they will be constantly exhausted and frightened. They may have to care for their other children while coming to terms over years with the ongoing, developing consequences of that medical negligence. In the midst of all this, and of all the consequential visits to doctors, occupational therapists and physiotherapists, as well as to those who provide wheelchairs and other aids and adaptations for those with disability, they must contemplate the need to commence legal proceedings to seek compensation, which will enable them to secure proper care for their children in the future.

Similar situations will arise for those whose adult friends and relatives have suffered catastrophic damage as a consequence of medical negligence. They too will have to come to terms with a whole new way of life if they decide to become the carer for the injured party. By so doing, they will save the state a lot of money, because the state will not have to provide residential care. What too of the situation of those with an industrially-acquired disease and the widows and children of those who die at work as a consequence of an employer’s negligence?

In the midst of all the grief, the confusion, the fear and the exhaustion, they will need to know how long they have to initiate legal proceedings. They will need to know when it is best to do so, because the consequences of medical negligence may take a little time to emerge. They will have to contemplate the costs of expert medical and other technical evidence to support and explain the situation to them. They will need the capacity to keep their claims going through years of litigation—and all this without legal support. Is this possible?

All the while, in many negligence cases the costs of the defendant are borne by the public purse. We fund the defendant, but we will refuse to fund the complainant. The effect of the current proposals will be that yet another two-tier system will emerge. There will be those with sufficient resources to bring actions with legal representation, for whom compensation may ultimately be decreed and consequentially a higher standard of care. Then there will be those whose parents or carers just cannot contemplate how to bring such proceedings and who will ultimately suffer the consequences in terms of reduced living standards.

As the noble Viscount, Lord Simon, said, where the injury has been suffered as a consequence of the failure of state-provided care, it is even more necessary to provide an accessible remedy in law. There will have to be revision to this section of the Bill. The provision for exceptional cases will not meet the needs of these claimants. I also echo the words of the noble Lords, Lord Pannick and Lord Newton, about the court costs resulting from the appearance of an unrepresented litigant. I echo too those who identified the serious problems which will emerge from the withdrawal of legal aid for welfare cases.

There is one other matter in the Bill to which I will refer briefly. It is the matter of how the law deals with those offenders who are dangerous and violent and who will be sentenced, but in respect of whom there is an enhanced need for public protection which must be dealt with in a proportionate manner. This matter was dealt with in Northern Ireland by means of the Criminal Justice (Northern Ireland) Order 2008, which created indeterminate custodial sentences. Under the legislation, a judge contemplating an ICS has first to consider whether an extended custodial sentence,

“would be adequate for the purpose of protecting the public from harm”.

The purpose of that law is to ensure that the ICS is imposed only where there is no other proportionate way to protect the public. Mr Justice Hart stated in the case of R v McGleenon this year:

“Common to each of these four sentencing options (determinate sentence, ECS, ICS, life sentence) is the need to consider whether the accused presents a danger to others by virtue of being a significant risk to members of the public of serious harm in the event that he were to commit offences of the same or a similar nature in the future”.

In that case, Hart imposed an indeterminate custodial sentence with a minimum term of five years’ imprisonment, meaning that the defendant would not automatically be released after the minimum term has elapsed, but rather that he would be released when the parole commissioners are satisfied that it will be appropriate to release him.

It appears to be the view in Northern Ireland that the combination of judicial discretion as to the question of dangerousness—similar to that applied in England and Wales—and the requirement to consider an ECS before imposing an ICS has meant that the number of public protection sentences has grown slowly, far lower than anticipated. Consideration of the operation of that system may assist in providing a public perception and reality of protection while ensuring that there is not a disproportionate use of the ICS.