A legal challenge over domestic violence evidence criteria has foundered at the High Court.
A judicial review, R (oao Rights of Women) v Lord Chancellor [2015] EWHC 35 (Admin), was brought by the Public Law Project on behalf of Rights of Women (ROW) against April 2013 regulations setting out the evidence that domestic violence victims must show in order to prove eligibility for legal aid. Victims can be asked, for example, to produce a letter from a health professional detailing injuries consistent with domestic violence, an assessment of risk by a social worker, a letter of admission to a refuge or evidence of a court order.
ROW argued that the criteria is too strict as evidence can be extremely difficult for many people to get and in many cases is subject to a 24-month time limit. Perpetrators of the violence can, however, remain a threat to victims for the rest of their lives.
However, Mrs Justice Lang in the High Court held that the justice secretary acted within his powers in making regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 (SI 2012/3098) under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Delivering judgment, she said: “Although the court may conclude that delegated legislation is ultra vires, despite approval by Parliament, it must decline to intervene where, in effect, a claimant asks it to enter the political arena and substitute its views for those of Parliament. In my view, that is what the claimant invites the court to do in this case.
“As Lord Bingham explained in R (Countryside Alliance & Ors) v Attorney General & Ors [2008] 1 AC 719 (a human rights challenge to the hunting ban) at [45], ‘[t]he democratic process is liable to be subverted, if on a question of moral and political judgment, opponents of the Act achieve through the courts that which they could not achieve in Parliament’…Whilst acknowledging the distinctions between the role of the court in a challenge under the Human Rights Act 1998 and an ultra vires challenge, nonetheless similar considerations apply in this case.”
Emma Scott, director of ROW, says: “On behalf of the women who continue to be denied access to justice by the legal aid regulations we are devastated by the outcome of our legal challenge.
“This decision means that women who remain at risk of violence will continue to be denied access to vital legal advice and representation in family cases. Our most recent research shows that about 40% of women affected by violence do not have the required evidence in order to apply for family law legal aid.”
Law Society President Andrew Caplen says: “The over-strict tests required to bring evidence to satisfy the broader statutory meaning of domestic violence are not what Parliament intended.
“Without legal aid women are being forced to face their perpetrators in court without legal representation.”
