This is both a summary and a review of BBC’s flagship current affairs programme, Panorama, which last week tackled the issue of legal aid cuts and the phenomenal rise in the number of litigants in person (LIPs) now using the courts in civil and family cases.
The programme, entitled DIY Justice, was first aired on Monday 30 March 2015 and is currently still available via BBC i-player.
If you have personal experience of being or assisting a litigant in person and/or watched the programme, please feel free to add a brief comment at the end. (Please note that comments are moderated before publication and should not infringe the rights of others or the law in general.)
As the programme made clear, there have always been self-represented litigants in the English court system, but not nearly so many. The phenomenal rise in their numbers has come about chiefly because of the drastic cuts to the legal aid budget, implemented in relation to civil and family cases by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into force on 1 April 2013.
The programme traced the history of legal aid back to its birth as part of the post-war welfare state, and gave the former Lord Chancellor and Secretary of State for Justice, Ken Clarke MP, quite a lot of airtime to explain the reasons for the Coalition government’s cutbacks.
It trotted out the usual Ministry of Justice spin about the “fat cats” on the legal aid “gravy train”, but it also gave a right of reply to the law firm identified as having made the biggest gain from legal aid, solicitors firm Duncan Lewis, who earned £15.8m in 2011. Their response was that, divided among their 19,000 clients, it represented only around £800 each. Moreover, far from being fat cats, most legal aid lawyers were on annual salaries of between £22,000 and £40,000. This hardly equated to a gravy train.
The programme also gave airtime to judicial critics of the cuts, notably retired Court of Appeal judge Sir Alan Moses, who said there should be “equality under the law … irrespective of [people’s] means” and, more trenchantly:
“I am quite certain that if you don’t allow those who can’t afford it legal assistance, more and more serious miscarriages of justice will occur. It seems to me inevitable that that will happen…”
Case Studies: family justice
The main substance of the programme was the four case studies in which reporter and presenter Raphael Rowe followed ordinary people trying to present their cases in court without the assistance of a lawyer. Three of these concerned child custody disputes.
There was John, an engineer from Huddersfield, who was in a child custody dispute with his ex-wife. He was on benefits but could not get legal aid. He seemed quite organised with his paperwork, had read books about law and also what looked like business manuals or self-help guides. But crucially, he had put on a crisp white shirt WITH CUFFLINKS for his court appearance. He seemed to think this would give him an edge. (Given the amount of dressing up the legal system involves, he may have had a point.)
Then there was Rochelle, who was trying to win custody of her little girl after recovering from a mental breakdown, including being “sectioned” (ie compulsorily admitted to a hospital under section 2 or 3 of the Mental Health Act 1983). She was being helped, somewhat helplessly, by her father, who confessed to being quite confused by all the court papers and forms to be filled in. Rochelle herself expressed rather well the sense of baffled alienation a litigant in person feels in court:
“You’re staring at the judge and he’s telling you this needs to happen, and this needs to happen, and this needs to happen, but like, to me it’s like, what are you talking about?”
In another case “Jane”, an anonymised victim of violent domestic abuse, suspected that her former partner (who had a conviction for abusing her) was now being violent towards their child. But as it was more than two years since her own abuse she was unable to get legal aid under the current criteria, which in any case are very hard to meet. So she was going to have to bring the case herself. That meant she was going to have to question the alleged abuser.
Another judicial critic was quoted here. His Honour Judge Nicholas Crichton said:
“I think it’s shocking that a woman should be put in a situation where she has to cross-examine her abuser.”
When it came to the point, Jane couldn’t face it. She walked out of the courtroom, feeling sick. It seemed to her that there was no one on her side to back her up. “All the odds were against me”, she said, “the whole process was just a waste of time”. The judge ordered that her former partner should be allowed to have supervised access visits.
Meanwhile, Rochelle, having failed to get exceptional case funding, was unable to afford an expert witness to support her claim to be capable of looking after her daughter. The child’s father, on the other side, had a solicitor. Rochelle walked out of court because, in her perception, the court was listening to everything the solicitor on the other side was saying and nothing that she was saying.
Although she later went back in, she admitted that she had been too emotionally involved to be able to sit quietly while the other side was presenting their case, and to stick to the rules of procedure (where basically you take turns to speak). In the end the judge had to stop her and ask the witnesses questions on her behalf.
When, later, she received a copy of the judgment, she struggled to read what she found a “detailed, complex” document, and wasn’t happy to learn that she had lost. The judge had concluded it was in the best interests of the child to continue living with her parental grandparents. Rochelle had spent two years and £800 on her case, but if she had got legal aid it would have cost the taxpayer an estimated £10,000. (It was unclear where this estimate came from or who had arrived at it.)
Of the three family cases followed in the programme, only John (with the cufflinks) turned out to have been successful. He had competed with paid professionals, and had won. But he had done a lot of research. It had taken over and he had “almost not had a life”. (He was not asked how far the cufflinks may have boosted his chances of success, but the fact that he had thought of them at all indicated an attention to detail which was probably symptomatic of his approach generally.)
Case study: personal injury claims
The programme considered another area in which the civil legal aid cuts had bitten hard: claims for damages for personal injury. The litigant in person this time was Jason, who was pursuing a medical negligence claim over the unexpected death of his father soon after undergoing heart surgery. He had given up his job as a lorry driver to fight the case himself.
Having been told he would need a medical expert to support his claim, he wrote to lots of heart specialists but in the absence of a fee none of them would help – save one. Professor Danny Keenan felt Jason’s letter “touched a chord” and agreed to look into the matter. He seemed to appreciate that what Jason wanted was some form of vindication to enable him to reach closure, after the brush-off he’d received from the NHS Trust. His report ratified what Jason thought and gave him the ammunition needed to proceed to trial. But the case never got to court. The defendant NHS Trust made a settlement offer without any admission of liability.
Jason made the following observation:
“If you kill someone in the street or if you accidentally kill someone in a hospital, a death is a death and it needs to be answered. So I don’t see it as a private case, I see it as a necessity that people should be brought to book. They should be made to face the consequences.”
Judge Crichton said: “The courtroom is a very frightening place for an ordinary member of the public.” This was certainly borne out by the experiences of the three litigants in person whom the programme followed into the family justice system. In Jason’s case he never got to court, but the process of getting there had certainly proved daunting.
The programme gave some insight into their experience, but it would have been even better if we’d been able to see the court proceedings for ourselves. For obvious reasons (they involved children), that was impossible. You can only take transparency so far, and this is where the door of the court can legitimately be closed to public view.
The programme remained neutral and objective and did not appear to take sides on the question whether the public purse should be funding all these claims. Yes, it quoted Sir Alan Moses saying that access to justice should be universal, and supported where necessary by public funding, lest miscarriages of justice should (and they would) occur. But it also quoted Ken Clarke MP saying he was only in favour of public funding if it was in the public interest, not if it was just to give litigants a better chance of winning. He also said it was all very well funding legal aid if the money was available, but it couldn’t really take precedence over the health service and education.
Postscript: Are the cuts a false economy?
One point that emerged was whether, in practice, the legal aid cuts had failed to achieve the hoped-for savings. It was said that a judges’ report had found that cases involving litigants in person took around 50% longer than those with representation. This was echoed in something Sir Alan Moses said about the additional difficulty for judges trying cases with self-represented litigants. The government had said the figures did not show this. But, if true, it would mean that money saved on legal aid was simply being frittered away again on judges and court staff being engaged in longer court hearings. That suggests either fiscal incompetence or (as some are suggesting) that the cuts are really part of a wider agenda to roll back the advance of the welfare state.
Although the programme didn’t go into this in detail, it has been the subject of some debate elsewhere. Rather than extend this already overlong post, it will be discussed in a separate post on this blog.