Making a point

No less than 12 judges were assembled in the Court of Appeal (five) and the Supreme Court (seven) to deal with the thorny questions raised in R v Horncastle [2009] UKSC 14. You do not get this array of legal talent without a reason. This case was hand-picked to influence the Grand Chamber of the European Court.

Lord Phillips gave the sole Supreme Court judgment. The substance of the case related to the hearsay rule in criminal cases but its real import lies in Lord Phillips’s coruscating attack on the technical competence of the European Court of Human Rights. He gave a bravura display of the forensic powers of a common law judge at the top of his game: the European Court, he argued, began a line of authority with a decision where it “gave no explanation”; had no requirement to say anything (“it was not a rule that was relevant to the facts of the case”); and heard no argument. Subsequent decisions then treated the original case as if it were gospel and lifted its words wholesale.

One of the intriguing aspects of the case is how the government and judiciary worked together. The government appealed an offending judgment of the court, Al-Khawaja v UK, to the Grand Chamber of the European Court and then got it deferred until after the domestic courts had decided Horncastle. The Grand Chamber hears only one case a month. It has five members including the president and at least three heads of the court’s sections. The UK judges, en masse, are challenging the Grand Chamber to justify the quality of the court’s decision-making.

A law centre gets it right

Sheffield Law Centre got some well-deserved coverage for setting up the landmark disability case, David Allen v Royal Bank of Scotland [EWCA] Civ 1213. This established that a bank had to provide wheelchair access for a disabled customer. Lord Justice Wall summed up the court’s view that: “There were…reasonable steps which could be taken by the Bank to make disabled access possible. The Bank did not take those steps, giving as its reason, not the disproportionate cost of carrying out the work, but simply the fact that it would lose the use of an interview room.”

The case also illustrated one of the core strengths of the law centre movement.

David Allen became a law centre client because it held a contract with the Equality and Human Rights Commission (EHRC), not the Legal Services Commission (LSC). The EHRC was interested in impact work rather than in volume. David Allen’s mother saw the centre’s literature and contacted it as a result. Douglas Johnson, employed by the centre under the EHRC contract, took up the case. The original intention was to run the case as a small claim, which would have avoided any liability for costs in the event of a loss, but this became impossible when the bank decided to play hard ball and got the case transferred to the multi-track. This was potentially a disaster because the clients were not legally aidable. In the event, the EHRC stepped in and provided the necessary indemnity.

The case is a triumph for the partnership of the EHRC and the law centre, with both doing what they should do—strategic, rather than volume, litigation. This was, of course, one of the driving forces behind the establishment of law centres in the 1970s. Reliance on block funding for bulk volume cases on LSC contracts has rather knocked the movement off course.

Time to say goodbye

Ideas in the legal aid field travel fast these days. Thus, our LSC’s work on quality assurance has inspired a number of other jurisdictions. Dame Hazel Genn’s research on the need for legal services has been replicated in a host of countries, including Canada and the Netherlands. And now, from New Zealand, comes the latest trend—already foreshadowed in England and Wales—the abolition of organisations like the Legal Services Board in New Zealand and the LSC here.

The LSC is under severe fire after a damning National Audit Office (NAO) review and qualification of its accounts. The NAO argues that the commission has paid practitioners £25m too much and concluded that the LSC should “do more to understand the market for criminal legal aid to make the most of its ability to control price and quality”. The government’s view appears to be that the commission has made somewhat of a mess of the idea of competitive contracting and it has announced suspension of planned pilots. Sir Ian Magee has been instructed to review “ministerial accountability and policy direction” of the LSC “while continuing to ensure that every application…[is] decided fairly, within the criteria, at arm’s length from government”. The NAO thought that there was duplication of its policy-making with the Ministry of Justice.

 The Kiwis got in first, announcing their review somewhat tactlessly on the opening day of an international conference on legal aid in Wellington. The reviewer, Dame Margaret Bazley, did not mince her words. She found lax administration and, overall, no value in an outside agency to administer legal aid. Savings could be made: decisions in individual cases could be made by a statutory official rather than a statutory body. The New Zealand government has accepted her recommendations. Watch this space. Sir Ian Magee is likely to advise the same thing, quoting Dame Margaret’s precedent.

Roger Smith is director of JUSTICE

• Add new comment
• Printer-friendly version