2014. It is not known to what extent other relevant parties will be in a position to respond to the consultation by the deadline of 1 December 2014.

Transcription

1 Bar Council response to the Anti Social Behaviour Crime & Policing Act 2014: Consequential changes to remuneration for legal aid services consultation paper 1. This is the response of the General Council of the Bar of England and Wales (the Bar Council) to the Anti Social Behaviour Crime & Policing Act 2014: Consequential changes to remuneration for legal aid services consultation paper 1 which was published on 10 November It is not known to what extent other relevant parties will be in a position to respond to the consultation by the deadline of 1 December The Bar Council represents over 15,000 barristers in England and Wales. It promotes the Bar s high quality specialist advocacy and advisory services; fair access to justice for all; the highest standards of ethics, equality and diversity across the profession; and the development of business opportunities for barristers at home and abroad. 3. A strong and independent Bar exists to serve the public and is crucial to the administration of justice. As specialist, independent advocates, barristers enable people to uphold their legal rights and duties, often acting on behalf of the most vulnerable members of society. The Bar makes a vital contribution to the efficient operation of criminal and civil courts. It provides a pool of talented men and women from increasingly diverse backgrounds from which a significant proportion of the judiciary is drawn, on whose independence the Rule of Law and our democratic way of life depend. The Bar Council is the Approved Regulator for the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board. Overview 4. The Bar Council has identified the following concerns: 5. Part 1 of the Act introduces a process by which a number of agencies can apply for a civil injunction to deal with anti social behaviour, whether it is housing related or not. This civil injunction will replace ASBOs and ASBIs. Whilst enabling providers with a civil or criminal contract to provide legal services where a Part 1 injunction is applied for or appealed, 1 communications/changes to remuneration for legal aidservices/consult_view 1

2 all at civil rates of remuneration, the same parity is not to be enjoyed between holders of civil and criminal contracts for breach proceedings. No coherent rationale is offered for this. 6. Where a civil injunction is granted and subsequently a breach is alleged, the proposed arrangements would compel an individual facing breach proceedings of an interim or final injunction to switch from a civil contract provider to a criminal contract provider. This is in spite of the new legislation specifically stating that the breach is not a criminal offence. Finding a different provider with a criminal contract for breach proceedings is, at the very least, inconvenient, unhelpful and uneconomic. 7. Civil and criminal contract holders cannot be assumed to be sufficiently familiar with each other s area of work and will not be good at making effective referrals to each other. Civil and Criminal contract holders are likely to use different counsel which deprives the individual of the potential for continuity of representation and builds into the scheme the unattractive cost of duplication of work. 8. Any change in the remuneration arrangements for quasi criminal/hybrid proceedings needs to be clear, unambiguous and to have in mind their practical application. By way of illustration for what not to achieve, the funding complexities for committals in the High Court was the subject of scrutiny in King s Lynn and West Norfolk Council and Michelle Paula Bunning [2013] EWCH 3390 where the Legal Aid Agency appeared as an Interested Party. In that case Mr Justice Blake said: I consider that the present drafting of that Regulation [regulation 7(2) of the Criminal Legal Aid (General) Regulations] combined with the terms of the prescribed form CRM 14 are likely to give rise to very real difficulty within the profession in knowing how to apply for legal aid for contempt proceedings in the High Court and the judiciary in knowing how to determine such applications until the matter is clarified. I would hope that following this judgment thought can be given to making appropriate changes to both so that applicants consulting the Regulations will not also have to read this judgment to make sense of them, assuming that it has done so. Q1. Do you agree that all applications for and appeals against Part 1 injunctions should be available under both the civil and criminal contracts and be remunerated at the applicable civil (non family) hourly rates? If not, please give reasons. 9. Yes. 10. However, whilst equality of opportunity between the civil and criminal contract holders and parity of remuneration is supported, it is noteworthy that the Impact Assessment reveals that there will not be true parity. It states at para 22 that; Civil legal aid has a different means test to criminal legal aid, and also a merits test that governs whether or not legal aid can be provided. It is anticipated that not all of 2

3 the individuals currently eligible for criminal legal aid for ASBO proceedings will meet the civil legal aid means and merits criteria for full legal aid representation to be made available for Part 1 injunction proceedings. This means that legal aid is likely to be granted in only a proportion of existing ASBO non breach cases under the Part 1 injunction regime. 11. It is unclear at the moment whether this will result in those with a criminal contract securing more of this work as it will be the means by which legal aid can be granted to those over civil financial eligibility threshold. If so, this risks the loss of experience of civil practitioners who currently deal with applications for housing related ASBOs and gang injunctions ( GANGBO s) under Part 4 of the Police and Crime Act 2009 and ASBIs in the County Court. Q2. Do you agree that all breaches of a Part 1 injunction should be available under the criminal contract only and remunerated under the criminal legal aid scheme at applicable magistrates court criminal rates? If not, please give reasons. 12. No. 13. Not all providers who hold a civil contract simultaneously hold a criminal one and vice versa. It is irrational for someone allegedly in breach of an injunction who wishes to be represented to have to find a potentially new provider with a criminal contract. The new provider will be unfamiliar with their case and the original circumstances which led to the injunction being granted. Contrary to the assertion at para 2.14 of the consultation paper, matters at the breach stage are not generally more straightforward than at the initial application and even less so where the provider of legal services at the breach stage has very little or no knowledge of the initial application or the civil procedure by which it was obtained. 14. The proposed arrangements appear not to have considered what happens in the case of interim injunctions which are available pursuant to s. 7 of the Act or where the findings of a proven breach are to be appealed. If an alleged breach of an interim injunction results in a committal application, the proposed remuneration arrangements seem to suggest that an individual being represented by a civil contract holder until the final hearing of the injunction application, has to find a criminal contract holder to deal with the alleged breach proceedings of the interim injunction. Such a situation would be nonsensical. If the findings of a breach are to be appealed, presumably the criminal contract holder will have deal with an appeal with or without knowledge of the impact the breach has on the possession proceedings. Again, the split between civil and contract provider creates a clumsy, disjointed mechanism where these issues are to be litigated. 15. Furthermore, committal proceedings in the county court are quite different to the current breach proceedings in the magistrates court and criminal practitioners in the main do not have the experience or expertise of the county court. If this proposal is implemented there is a real risk that access to justice will be inhibited. The consequences of the breach, if proved, 3

4 can be severe. It is punished as a civil contempt and breach will no longer be a criminal offence but imprisonment or detention are possible outcomes. In short, effective representation by the same provider for the application, appeal and alleged breach (of interim and final injunction) is essential to ensure cost effective access to justice. 16. Leaving aside the concept of the Youth Court s civil jurisdiction, there is a significant risk that a vulnerable client group of those over 10 years and under 18 years who would benefit from continuity of representation will be deprived of it by having to find a different provider with the relevant contract. Given the emphasis within the Act on liaison between agencies for those in this group and long term solution finding, it is dispiriting that it is not thought preferable that legal representation can be part of this. 17. Further, an established breach of an injunction will be a mandatory ground upon which to seek possession. Although it is not possible to know in what volume social landlords will rely on breach proceedings for the purpose of the possession proceedings, the proposals contemplate individuals having recourse to two different providers; civil for the housing matter and criminal for the alleged breach. If the breach is proved and the social landlord wishes to use this as a mandatory ground for possession, there is a 7 day window for the tenant to leave the services of the criminal contract holder and secure presumably a civil contract provider to deal with the possession proceedings. The impact is to create duplication of work which leads to a less stream lined, more complex and less accessible scheme, contrary Mr Justice Blake s entreaty. Q3. In relation to travel and waiting time incurred as a result of attendance at the County Court for the breach of a Part 1 injunction, do you agree that remuneration should be automatically payable to criminal legal aid providers at the criminal rates applicable in the magistrates court? If not, please give reasons. 18. If the proposal at Q2 is implemented then yes, travel and waiting time should be automatically payable without the threshold having to be reached. However, if both civil and criminal contract holders are able to conduct breach proceedings, there ought to be parity of remuneration for travel and waiting at the current civil rate ( rather than 24.00). 19. Enabling those with a civil contract to conduct breach proceedings also provides some limited financial certainty as the current magistrates rate are potentially being changed next year pursuant to the Legal Aid Transformation criminal litigation reforms set out in Transforming Legal Aid Next Steps: Government Response (available at: legal aid next steps/results/transforming legal aid next stepsrespons.pdf) Bar Council 26 November 2014 For further information please contact 4

5 Zoe Kowalski The General Council of the Bar of England and Wales High Holborn, London WC1V 7HZ Direct line: