Proposed legal aid cuts prompt fear many will be unrepresented

The words 'legal aid cuts' send a shiver down the spine of lawyers and the public alike. If the Legal Aid, Sentencing and Punishment of Offenders Bill, due to be debated in the Commons next week, is brought into force, around 550,000 cases per year will no longer be eligible for legal aid. Some 265,000 of those cases will be in the family law arena (Source: Law Gazette), meaning 54,000 people a year in the family courts would be unrepresented.

It has recently emerged that even those whom  it was anticipated would remain in receipt of protection will be affected by the new bill if it comes to fruition. When cuts were first proposed, the Ministry of Justice offered its reassurances that 'legal aid will be preserved for those who suffer violence and psychological abuse in domestic disputes'. Now it seems even those who fall within that bracket are unprotected.

Funding will remain in place for  most victims of domestic abuse, but indications are that those who commit the abuse will not be eligible to receive funding. On the face of it, some may see this as only fair  and may ask why, after all, should those who commit the act receive the benefit of state assistance? In fact, the current legal aid system only allows the perpetrators of domestic abuse to be funded in their defence in very specific circumstances. However, with even this funding  likely to be removed under the new Bill  there are fears this may result in perpetrators of domestic abuse opting to defend themselves, and cross-examining their victims in the court room.

Legal Aid is currently offered to any victim of domestic abuse who falls within the limits of financially eligibility set by the Legal Services Commission. This means victims can obtain legal assistance to ensure they are protected in future from those who have committed the offences against them, regardless of their financial means. Arguably it is often the poorer in society who are most in need of assistance. For those facing allegations that they have committed domestic abuse, legal assistance under the current legal aid scheme is less easily available, but does exist to some extent, specifically where the allegations are especially serious and are substantially denied. Then legal aid can be sought by the perpetrator, and rightly so. It is all too easy to assume that those who committed the crime should not receive assistance - but  one could argue that that flies in the face of 'innocent until proven guilty'. More importantly, those victims who claim to have suffered such serious abuse are more likely to require the protection that is offered where their perpetrator has the benefit of legal advice.

Anyone who has witnessed a cross examination will know that this is not a pleasant experience. Even the innocent can feel guilty. For those who have suffered domestic abuse, to have to relive the incident in front of a judge and lawyers is even more traumatic. This is one  reason the court system has evolved to offer protection to those victims by way of screens and video links, a system that is designed to encourage more people to come forward. But the very idea of being cross examined by the person who committed the crime  is unthinkable.

The reality is that legal aid cuts will affect many areas of family law, and not just domestic abuse. Arguably, leaving one avenue of legal aid open, when so many others are removed entirely, does raise the question of whether some may abuse the system and that increasing allegations of domestic abuse might be made, in order to ensure legal aid for other 'non eligible' courses of legal action. In one such a example, a mother  seeking legal aid in order to obtain Residence of her child might be tempted to make allegations that she has suffered domestic abuse at the hands of the father, in order to ensure receipt of legal aid.  This would then enable her to pursue her application in relation to the child with the benefit of funding. One assumes such allegations would have to be carried through, to the detriment of the father in relation to the application for the child, and leading to unnecessary injunction proceedings. Perhaps more significantly, this would also be to the detriment of the legal aid system, in terms of wasted costs.

The Government claims that the proposed  cuts will save in the region of £350 million a year from the current budget. Lawyers argue that the costs saved here will be far outweighed by the costs to the tax payer resulting from prolonged court cases brought by unrepresented parties. Contrary to popular belief, lawyers nowadays are trained to focus on mediation, negotiation and the avoidance of court proceedings. Without the benefit of legal advice, it is likely that many applications will be made, which could have been amicably resolved.  

Access to justice is one of the fundamental principles behind the English legal system. The proposed cuts to legal aid look set to jeopardise this, and the effect on the most vulnerable in society is evidence of the widespread damage that could be incurred.

Ashfords LLP  advises on all family disputes, including where there are issues of domestic abuse. For more details, contact Jane Trenaman on 01884 203121 or j.trenaman@ashfords.co.uk

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