Legal Aid at 70: The greatest legal aid case
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Marc Bloomfield
Steve Hynes reports from the LAG Legal Aid at 70 conference on the battle to pick the greatest publicly funded case since legal aid began.
One of the biggest challenges for conference organisers is retaining the audience to the end of the day, especially on a Friday, when, for practitioners, an early dart from an event is particularly tempting after a long week on the legal aid front line. When putting together its April conference to celebrate 70 years of legal aid (see May 2019 Legal Action 8), someone at LAG suggested staging a debate on the greatest legal aid case of the past 70 years. It proved an inspired idea, as the session was well attended by delegates who enjoyed a lively debate between six speakers.
Introducing the session, Angela Patrick, a barrister at Doughty Street Chambers and a board member of LAG, said it was a pleasure to be with a ‘community of people who believe that justice only works if it is not only for those with deep pockets’. She went on to say the session would appeal to an audience of lawyers who like nothing more than a ‘good bunfight’. Each of the advocates was given three minutes to make their pitch for why they believed their case was the best.
Angela Patrick suggested that they had a ‘hard task’ ahead of them as, earlier in the day, Lady Hale had suggested the Cheshire West case should win the accolade.
Patrick suggested that they had a ‘hard task’ ahead of them as, earlier in the day, the president of the Supreme Court, Lady Hale, who was the keynote speaker at the conference, had suggested the Cheshire West case should win the accolade.1P v Cheshire West and Chester Council and another; P and Q v Surrey CC [2014] UKSC 19. Lady Hale, then deputy president of the Supreme Court, gave the leading judgment in this case, which concerned the living arrangements for mentally incapacitated adults and the deprivation of liberty safeguards.
Inquests: deaths while under the state’s care
Another barrister from Doughty Street, Henrietta Hill QC, had the honour of kicking off proceedings, arguing for the case of Middleton.2R v HM Coroner for the Western District of Somerset and another ex p Middleton (FC) [2004] UKHL 10. Colin Middleton took his own life while in prison and his family were granted legal aid for the inquest. Hill argued that the case, which was decided by the House of Lords, has ‘transformed inquests in this country’ as his family’s lawyers successfully argued that juries in inquests should be allowed to look at a ‘wider set of circumstances’ surrounding a death rather than merely ruling on how a person ‘had come by his death’.
Hill believes that, as a result of the Middleton case, families and the public ‘get to know a lot more’ about a death in custody as it ‘strengthened the scrutiny of the state’s actions’. She concluded by saying the case meant that ‘families are now at the heart of the [inquest] process’.
Gypsies and Travellers: eviction from their own land
Marc Willers QC from Garden Court Chambers is well known for his work in Gypsy and Traveller law (he is a co-author of LAG’s book on the subject and the regular updates in Legal Action), so it came as no surprise that he picked a leading case from this area. Porter No 13South Bucks DC v Porter [2003] UKHL 26. concerned a Gypsy family who owned the land on which they were living but had not obtained planning permission to do so.
Willers explained that the case was the first time that the House of Lords had the opportunity to review the use of injunctions by local authorities to evict Gypsies and Travellers from land that they owned but did not have planning permission to occupy. He said the case involved some great lawyers and judges, and had some great quotes including Lord Bingham (at para 31) quoting the intellectual, writer and first president of the Czech Republic, Václav Havel, that the way Gypsies are treated is ‘a litmus test not of democracy but of civil society’.
Willers told the audience: ‘Porter demonstrates what great work can be done when legal aid is granted to social justice lawyers like you and I.’ For him, the case meant that Gypsy and Traveller families were more likely to be able to secure somewhere to live, giving them ‘access to education and health services’.
Detention pending deportation: ‘risk’ to national security
Barristers often take the plaudits in winning ground-breaking cases, but Sir Nicholas Blake QC from Matrix Chambers was fulsome in his praise of the solicitor David Burgess,4Burgess was a leading immigration lawyer dedicated to his clients who died in tragic circumstances in 2010 – see Elizabeth Day, ‘The extraordinary life and death of David Burgess’, Guardian, 9 January 2011. who did the preparation work in the case of Chahal.5Chahal v UK App No 22414/93, 15 November 1996. Mr Chahal had been resident in the UK for 16 years when he faced deportation to India as he had been deemed a risk to national security by the government. He was held in detention for six years, a record for a civil case at the time, Blake explained, as his case made its way through the courts.
According to Blake, ‘Burgess understood that it was a case which would require immense resources to defeat the combined power of the state’. Using a Green Form extension (Green Form was the forerunner of what is now called legal help), Burgess, he said, travelled around Punjab to collate ‘four volumes of evidence demonstrating that there was no real risk to national security’. In contrast, according to Blake, the government produced a flimsy file of press cuttings to justify its decision. ‘It was David’s work in collating the evidence which won the case’, he said. ‘That case has protected thousands.’
Unpublished government policy
Up next was another case challenging the extent of the power of the state. Ollie Persey, a trainee barrister at the Public Law Project and co-chair of Young Legal Aid Lawyers (see page 17), put the arguments for the case of Lumba,6Lumba (Congo) v Secretary of State for the Home Department; Mighty (Jamaica) v Secretary of State for the Home Department [2011] UKSC 12. which he described as ‘not only a seminal case on a huge number of issues’ but also one that illustrated the importance of legal aid and legal aid lawyers in standing up for ‘unpopular people in our society, safeguarding the rule of law and putting an important check on executive power’.
Mr Lumba, who was originally from the Democratic Republic of Congo, was detained pending deportation after completing a custodial sentence. The Supreme Court found in the case that an unpublished change in policy regarding the detention of foreign national prisoners (FNP) was unlawful because, among other things, ‘[w]hat must ... be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made’ (para 38).7The policy had come to light earlier: ‘On 22 May 2008, the existence of an unpublished policy or practice was belatedly disclosed by the Secretary of State to Mitting J after he had given judgment in the case of R (Ashori) v Secretary of State for the Home Department [2008] EWHC 1460 (Admin). More detail as to the circumstances in which the policy came to be disclosed is given by Davis J at paras 21 to 26 of his judgment [[2008] EWHC 3166 (Admin)]’ (para 18).
Persey explained that the government policy had previously been to allow for a presumption of release for a FNP on completion of their sentence, but this had changed to a presumption of detention pending deportation. He believed that the change of policy had been adopted by the government in response to stories in the press regarding the release of over 1,000 FNPs after their sentences were completed. The Supreme Court found that the actions of the government in following a policy that contradicted the published one were ‘deplorable’ and a ‘serious abuse of power’ (para 176 per Lord Hope).
Police misconduct: failure to investigate violence against women
The final two cases put before the conference differed from the four that had gone before as they were neither high-profile nor reported. Nogah Ofer, a solicitor at the Centre for Women’s Justice, made ‘a pitch for a case which had an impact outside the courtroom’. She described the issues around the case of Linah Keza, who was stabbed to death by a jealous ex-partner.
Two women a week are killed by current or former partners, said Ofer. She believes that civil legal aid can be used ‘to try and challenge failings in policing of violence against women’. In a case brought by Linah’s family, three police officers were eventually found guilty of gross misconduct for their failure to follow proper procedures in the investigation into her murder. The Centre for Women’s Justice uses the case to persuade front-line advocates for women’s rights that it is worth pursuing complaints of misconduct against the police for failing to investigate violence against women. Linah’s case, Ofer believes, is an ‘example of how the legal sector and voluntary sector working together can have a wider impact without ever getting to the Supreme Court’.
Children seeking asylum: local authority’s duty of care
Diane Astin, a solicitor at Deighton Pierce Glynn, introduced the final case up for consideration. She also went for one that had not reached the upper echelons of the courts system. Astin, who is author of LAG's Housing Law Handbook, told the conference she had chosen an ‘ordinary case which did not set a precedent to illustrate the real value of legal aid’.
Her client was a16-year-old homeless asylum-seeker. He was helped by a stranger who found him on the streets, but, Astin explained, the Home Office did not believe in ‘such random acts of kindness’ and disputed his claim for asylum. She assisted him to enforce his rights under the Children Act 1989, eventually persuading his local council that it had a duty of care towards him (he also won his asylum appeal, which was dealt with by another lawyer).
The case involved Astin drafting 13 complaints to an independent adjudicator. The council admitted its error in one (not replying to a letter from Astin) and the adjudicator eventually upheld the other 12. The client obtained £6,000 in compensation and, helped by the support he received, at the age of 18 got a place at university. This case, Astin argued, shows that ‘legal aid changes people’s lives and changes policy’. As a result of the case, the local authority involved treats child asylum-seekers in the same way as it would other children.
The winner
At the end of the debate, Patrick presided over a vote (by show of hands) for each case. It was a tight contest between Middleton, Chahal and what Patrick dubbed ‘the random acts of kindness case’. In a run-off between these three, it was the young asylum-seeker’s case, as nominated by Astin, that won the day, showing that, like most people, even legal aid lawyers prefer a heart-warming story to a ‘bunfight’ over precedent-setting judgments.
On 30 July 1949, the Legal Aid and Advice Act received royal assent. The Act introduced the civil legal aid scheme the following year and updated the provisions for criminal legal aid in the Poor Persons Defence Act 1930. Legal Action is publishing a series of articles to mark the anniversary. LAG would like to thank Garden Court Chambers for providing a grant to support the publication of these articles.
 
1     P v Cheshire West and Chester Council and another; P and Q v Surrey CC [2014] UKSC 19. Lady Hale, then deputy president of the Supreme Court, gave the leading judgment in this case, which concerned the living arrangements for mentally incapacitated adults and the deprivation of liberty safeguards. »
2     R v HM Coroner for the Western District of Somerset and another ex p Middleton (FC) [2004] UKHL 10»
3     South Bucks DC v Porter [2003] UKHL 26»
4     Burgess was a leading immigration lawyer dedicated to his clients who died in tragic circumstances in 2010 – see Elizabeth Day, ‘The extraordinary life and death of David Burgess’, Guardian, 9 January 2011. »
5     Chahal v UK App No 22414/93, 15 November 1996»
6     Lumba (Congo) v Secretary of State for the Home Department; Mighty (Jamaica) v Secretary of State for the Home Department [2011] UKSC 12»
7     The policy had come to light earlier: ‘On 22 May 2008, the existence of an unpublished policy or practice was belatedly disclosed by the Secretary of State to Mitting J after he had given judgment in the case of R (Ashori) v Secretary of State for the Home Department [2008] EWHC 1460 (Admin). More detail as to the circumstances in which the policy came to be disclosed is given by Davis J at paras 21 to 26 of his judgment [[2008] EWHC 3166 (Admin)]’ (para 18). »

About the author(s)

Description: Steve Hynes
Steve Hynes is a freelance consultant and writer. He was previously director of LAG. He is a well-known commentator in the written and broadcast media...