The cost of inequality of arms in the courts
.
.
.
Marc Bloomfield
Description: APPG Legal Aid logo
Giving evidence to the All-Party Parliamentary Group (APPG) on Legal Aid’s Westminster Commission on Legal Aid on 28 January 2021, immigration barrister Dr S Chelvan described the law as ‘a foreign language’ to clients, who need lawyers to act as their interpreters in order to tell their stories. Those like Dr Chelvan who make justice their life’s work have a concept of it where every member of society is entitled to equal protection of the law and to understand what this means for them. Unfortunately, at a time when legal aid has been pared back so that only the poorest of the poor are eligible for help – and then only in the most desperate cases, when their homes, children, liberty or lives are at stake – our system is very far from delivering justice.
Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012, £800m a year has been stripped out of government spending on justice. Against this, the March 2021 budget mentions just £450m put into the justice system over the past year to safeguard the courts and deal with the backlog. Just one short paragraph (page 85) in a document of over 100 pages refers to justice, and then only crime and the courts; civil justice is not mentioned at all.
Over the past few months, the APPG’s Inquiry into Sustainability has looked at the toll taken on providers of the decades of cuts. But what of the public? We speak of litigants in person but as an inquiry we wanted to hear from them directly and to find out the human cost of navigating the court system alone, without the kind of interpreter about whom Dr Chelvan spoke. On 25 February 2021, we heard from four clients who had struggled to get help with problems involving family, community care and housing law, and an inquest. Four years into my role at the APPG, and after seven years in the social justice sector, I was still shocked by what I heard, and the ever-widening chasm between what justice should be and what it has been reduced to.
Our first client witness, ‘Sally’ (who spoke during a closed session), had found herself going through the family law system for nearly four years in order to try to protect her sons from their abusive father. He applied for contact with them, so Sally had to demonstrate to the court that any time they spent with him could place them at serious risk. Although barely earning the living wage, she was ineligible for legal aid so had to represent herself in a case at which the safety of her children would be at stake. The father, meanwhile, was represented by both a solicitor and a barrister. She spoke of having to write everything down during the court hearing, so she could go home and Google terms such as ‘Scott Schedules’ to try to understand the proceedings and what was expected from her. She had no idea that a case as complex as hers should never have been in the magistrates’ court because there was nobody to advise her.
Sally’s struggle to protect her children demonstrates the very real difficulties within our system at present. Through luck and due to her perseverance, she managed to secure pro bono support for what turned out to be lengthy and protracted proceedings. Her lawyer applied for the case to be heard at a higher court, at which the judge ruled her ex-husband was so dangerous the children should have no contact with him until they were adults. Without the support of a solicitor and barrister, the outcome would have been very different, leaving young children at extreme risk.
Our second witness, Angela Pownall, is the mother of Adrian Jennings, who died in Tameside General Hospital at the age of 32, two weeks after his discharge from an inpatient mental health unit. Adrian’s inquest concluded that his death was drug-related, contributed to by a failure to implement and communicate an effective support plan following discharge from hospital. The coroner advised that she would be preparing a prevention of future deaths report in order that lessons would be learned and a similar failure avoided. An ex-nurse and social worker, Angela explained that she was more familiar with the system than most members of the public. This armed her with the certainty that she was entitled to Adrian’s records, even in the face of the hospital’s initial refusal. She was eventually provided with them after paying £50 and made the point that if she had been on benefits or without access to the money, she would have reached a brick wall.
Angela felt prepared for Adrian’s pre-inquest meeting, but discovered upon her arrival that she would be facing three barristers for the other side instead of the team managers she was expecting and had interacted with. The other parties – Greater Manchester Police, Pennine Care NHS Foundation Trust and the Pennine Acute Hospitals NHS Trust – had lawyers to represent them and protect their interests, while she, as the bereaved parent, stood alone and had to find the words to ask about her son’s death. She had been unaware that she could bring someone with her.
Like Sally, Angela eventually found representation, but the image of these two mothers determined to fight for their children at two very different hearings, and facing what both described as an ‘army of lawyers’ on the other side, has haunted me since. The complete absence of equality of arms in these cases, and in many, many others like them, is unjustifiable and unforgivable. The cost to the public purse of providing legal support would be minimal, while the cost in human misery of failing to do so is incalculable.

About the author(s)

Description: Rohini Teather
Rohini Teather is head of parliamentary affairs at the Legal Aid Practitioners Group. She is a non-practising solicitor.