Do It Yourself?

social justice

 

Need a lawyer?

For an increasing number of people embroiled in legal action in the UK the answer may still be yes, but it’s the question that needs updating.

Since drastic Legal Aid cutbacks were implemented in April 2013, more and more people have to ask themselves whether or not they can afford a lawyer. For those who can’t the options and the consequences can be ugly. The impact in England and Wales has been telling. Year on year, the number of people representing themselves in Welsh courtrooms almost doubled between 2012/13 and 2013/14.

Crispin Masterman, a former family judge in South East Wales has recently drawn attention to the damage this can do to the family unit. Mr Masterman and many others in the profession are convinced that removing lawyers from the legal process directly causes delays, and where proceedings concern family law he fears that children often suffer most,

“The damage that’s done is both emotional and probably, in some cases, psychological as well, and the difficulty is that parents don’t see this, they’re so tied up in their own issues that they forget that the child’s welfare is the paramount issue.”

Anticipating this increase in “per se” representation, the Bar Council of England and Wales published a detailed guide for anyone considering this route when the funding cuts were first announced. Well-intentioned as this was, can untrained, unqualified private citizens really be expected to represent themselves adequately in a highly-charged courtroom setting?

The National Justice Committee certainly doesn’t think so. Comprising the Criminal Law Solicitors’ Association, the London Criminal Courts Solicitors’ Association, the Legal Aid Practitioners Group, the Justice Alliance and the Criminal Bar Association, this group has repeatedly voiced its opposition to the cutbacks. Its members believe a fundamental principle – and the concept of social justice in this country – has been compromised.  

The legal profession hasn’t always been portrayed flatteringly in the media or in popular culture. For every Atticus Finch in To Kill a Mockingbird there are many more John Miltons, portrayed by Al Pacino in The Devils’ Advocate as not only a venal attorney but the devil incarnate. Many people question the motives and even the necessity of lawyers. Professionals on both sides of the Atlantic would no doubt prefer to identify with the slogan of the 1996 American Bar Association’s national convention:

“Freedom, Justice, Liberty — without lawyers they’re just words.”

Language service providers can easily identify with the lawyers they support. Where Google offers a cheap substitute for professional translation, self-representation is the budget alternative to skilled professional advocacy. In both examples, important details will be lost along the way. We sympathise with those who have no alternative to self-representation and we applaud the lawyers who continue to stand up for their rights, but the message is clear. Professionals get the job done. Just as language issues need to be resolved by a professional translator, the courtroom is an arena for the lawyer.

 

Chinatown

Chinatown

 

“Forget it, Jake. It’s Chinatown.”

In Chinatown, the celebrated 1974 film noir, a private detective played by Jack Nicholson attempts to do the right thing for his client but his actions inadvertently do far more harm than good. The movie’s closing line sees a colleague asking him to walk away and put the events behind him. A cynical movie character struggling with that scenario is one thing, but how much more difficult must it be for a principled officer of the court? One of the problems facing our legal professionals recently surfaced in a real life “Chinatown” scene, and as with the movie it offered no immediate prospect of a happy ending.

Earlier this month a Crown court judge asked a defence barrister to search the Chinese restaurants of Cardiff for an interpreter after the agency contracted to provide one failed to do so, not once but twice. Liu Sun, the defendant, had been arrested for offences related to importing prohibited goods. She denied the charges, but was denied a fair hearing on two consecutive days when no Mandarin speaking interpreter was provided. His Honour Judge Burr, no doubt exasperated, made the request but it was refused. Understandably and fortunately. While it could open up a string of employment opportunities for catering staff, this isn’t a precedent we want to set.

Until February 2012, courts in England and Wales were at liberty to hire freelance legal interpreters from a national register. The decision to award a near monopoly to a single language service provider was intended as a cost cutting exercise, promising savings close to £20 million a year. A large part of the saving was to come from legal interpreters being forced to accept reduced rates from the only employer in the market. What else could they do?

The reality has been very different, of course. Skilled professional interpreters simply refused to be held to ransom and boycotted the process. A review started by the Public Accounts Committee in December 2012 uncovered tales of an interpreter register peppered with fictional names and even family pets. At regular intervals since then we’ve heard positive noises indicating that the ship has been steadied, but this Cardiff episode suggests that responsible legal professionals and their clients may be back to square one.

So what does the future hold?

Should pizza waiters be drafted in for Italian interpreting assignments?

Should sushi servers be called upon to mediate Japanese renewable energy trade deals?

Or should we draw a line in the sand and leave crucial linguistic tasks to suitably skilled linguists?

Skilled courtroom interpreters aren’t just speakers of a language. They are specialists, comfortable with the chosen mode of interpreting, with the terminology of their field and with the pressures of any given case. They are professionals, as much as the officers of the court they serve.

And like the solicitors, barristers and judges they work alongside, they have no appetite for scenarios where a client has been done more harm than good. They don’t want Chinatown. By working together, the legal profession and their support partners can deliver something very much better.

 

David Jones

The Good Fight

the good fight

 

A person steps off an aeroplane, a train or a ship. They set foot onto British soil, entering this country legally and in good faith. At what point do they become entitled to the same basic legal rights as a UK resident? At what point may they make a claim for Legal Aid?

Chris Grayling, the Lord Chancellor and Secretary of State for Justice, believes they should have to wait at least one year. He successfully drove a measure to that effect through the House of Commons, invoking the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Mr Grayling, the first leader of our judicial system in 400 years to have no legal background whatsoever, argued that this was a necessary move which would ensure public confidence in Legal Aid spending. Perhaps among some sections of the public it would. But should our laws, and the fundamental rights of those who visit these shores, be truncated to please those sections of the public?

Yesterday a specially convened Divisional Court, headed by Lord Justice Moses, ruled emphatically that they should not.

In ruling that Mr Grayling exceeded his statutory powers in devising the proposals and describing them as ‘unauthorised, discriminatory and impossible to justify’, the Court drew a clear line. Sweeping, potentially discriminatory changes are not to be ushered in through a legislative back door on cost-cutting grounds.

Mr Grayling might reflect that public confidence in Ministry of Justice spending, particularly relating to citizens born outside the UK, has taken a severe beating over the past two and a half years as a direct result of the Ministry’s own decisions. The appointment of a single agency to manage all courtroom interpreting services, devised as a cost-cutting exercise, brought chaos, spiralling costs and countless delays to trials throughout the UK almost from the moment the contract began in January 2012. With this in mind, any perception among the general public that non-natives are costing them money and taking advantage of their system hardly seems fair, and surely should not be pandered to.

The Divisional Court would presumably agree. It made clear its distaste for proposals that would deny support to vulnerable groups highlighted in specific, detailed examples.

Do we really want to deny basic support to the families of children with special educational needs, or to those individuals who lack mental capacity and need the help of others in any legal situation, or to those resident abroad who have been subject to serious abuses at the hands of UK forces?

 

Is that our law?

Is that our country?

 

If we see this as a point worth fighting for, then when Parliament won’t fight for it we should be thankful that the judiciary and the legal profession will. In this case we should be particularly thankful to the Public Law Project, who brought the test case, to John Halford and Stephen Grosz of Bindmans LLP and barristers Michael Fordham QC, Ben Jaffey, Naina Patel and Alison Pickup.

And of course to the Divisional Court. This was Lord Justice Alan Moses’s final ruling before stepping down from the bench. Many of us would argue that it’s a fitting and impactful farewell, and a fine legacy. Never afraid to argue against political action that he viewed as unworkable or unjust, he has used humour as a powerful weapon. Last year he wrote a spoof application to become the next Lord Chief Justice including a 2,000 word essay which eviscerated the government’s legal aid proposals. He jokingly suggested that to save money judges should compete to produce the most judgments in the shortest time, and solve funding problems by accepting sponsorship from companies such as L’Oréal, Silk Cut and Virgin.

We can only hope that what a wise and principled man suggested in jest will never be embraced in seriousness by those more foolish.

 

David Jones