The Legal Aid, Sentencing and Punishment of Offenders Bill. Commentary by Chris Hodge.

The long awaited and much debated Legal Aid and Sentencing Bill was announced on 2nd July 2011, with a very last minute adjustment, the name.  The name at the 11th hour was amended to include ‘Punishment of Offenders’.   Already the Bill has been accused of  “economic cleansing” by JUSTICE, and with many more showing their concerns that it leaves those who need it the most uncovered. This article does not aim to cover the whole Bill, if it did, we could be here until next week discussing it. Instead it offers an overview of some of the aspects of the Bill.

Despite the delays and the last minute tweaks the Bill still seems far from being complete with a mandatory sentence for repeat serious violent and sex offenders missing and the provision stating the delay of the release of such offenders until they are two thirds of the way through their sentence is also missing. Further missing are the proposals to criminalise squatting and provide a new safeguard for householders and others who apprehend burglars. This would lend to the suggestion that these measures were only agreed in the dying moments before the publication of the Bill. I wonder just how much thought and detail has gone in to these provisions, are they ready for the scrutiny about to come at them?

With huge cuts in legal aid clearly evident, Anthony Hurndall, founder of the Centre for Justice told The Guardian today that “This is a further erosion of one of the three central pillars of the welfare state – free access to justice. It is reported that more than 500,000 people will no longer qualify for legal aid under the proposed changes and it will be abandoned all together in areas that have long been assumed as safe from attack.” Mr Hurndall also went on to suggest it would negatively impact the Big Society notion being pushed by the Prime Minister. Ken Clarke in his ministerial statement this morning tried to allay such fears as he announced that “Fundamental rights to access to justice will be protected through retention of certain areas of law within scope and a new exceptional funding scheme for excluded cases.”  How this works is still to be seen. The Current scheme may not have been flawless, but to many it gave the access to Justice they deserve.

In the criminal law scene, advice at a police station seems to be subject to an attempt to cut funding here.  Section 12 states that Initial advice and initial assistance are to be available to an individual who is arrested and held in custody at a police station, IF he passes the section 20 financial resources test but in particular the Director MUST have regard to the interests of justice test. This has in a narrow reading, removed the free advice everyone is entitled to at a police station. However one could give it a wider reading, with the interests of justice test clearly taking priority, surely it is always in the interests of justice to be given legal advice at the police station, even if only by CDS Direct. It concerns me that such a key part of the system could be cut like this if on a narrow reading, it would be a nightmare to work consistently over the country as well as creating havoc in the courts as provisions such as s34(2A) Criminal Justice and Public Order Act 1994 rely on the suspect having advice. I appreciate Ken Clarke has said that legal aid will be retained where life or liberty is at stake as well as special needs cases, but will this be the case in the narrow reading of s12 as it is?

In the same part of his speech he did disclose that legal aid is being withdrawn from most private family law cases and squatters. You can look this in a number of ways, and I know many have, why should a squatter get help to keep your Land? But who are we to hinder the squatter’s legal right? Moreover for a long time it has been said that Mediation should be the way to sort out family dispute, but removing legal aid can only add heat to a volatile situation, when children are involved is this fair? Is this fair regardless of the presence of children?

Other proposals include:

  • Drug free wings. It would be naive of me to suggest Jails are drug free and shall remain that way, but surely the whole prison should be drug free and we should be working to eradicate drugs. By the introduction of drug free wings we are admitting defeat in cleaning out our prisons.
  • Eradicating indeterminate sentences in favour of pushing the life sentence more.

What it seems to me, in this austerity drive that has engulfedEuropeis that we are desperate to make cuts to save pennies and pounds. In the process already damaging cuts have been made, including to crucial services such as the Citizens Advice Bureau. Now the biggest blow of them all in the face of cuts to Legal aid, the key cog in the access to justice, this on top of making Conditional Fee Agreements harder to get. The outcome is still to be seen, after all the Bill has not even been passed yet. It just concerns me, lawyers, journalists, bloggers and academics alike that the latest events will force justice out of the hands of those in needs, leading to greater injustices, and consequently higher legal bills. This Bill is late, incomplete and smacks of class inequalities.  For now many people will offer an opinion but we are at an early stage, I am sure as the process goes further and we get closer to the complete and final version, myself and many more will be able to give a more full and proper opinion and analysis, until then it is a waiting game with the life of millions in the balance.

The Bill can be viewed in full here

Chris Hodge, Trainee Solicitor

2nd July 2011

Postscript

Thank you to Chris for this excellent and informative piece. Chris has his own blog which can be found at: http//legalhodge.wordpress.com where this piece was originally posted and reproduced with kind permission for our blog.

Peter Ward, Open University

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One thought on “The Legal Aid, Sentencing and Punishment of Offenders Bill. Commentary by Chris Hodge.

  1. My understanding of squatters’ rights is that land is too valuable a commodity not to be used. If a freeholder isn’t prepared to use their land then it’s their lookout if someone else does. And if the land is registered and the freeholder keeps their address for service up to date they will be advised if anyone tries to claim possession. Admittedly it’s more difficult with unregistered land to trace owners. But the basic premise remains that if anyone has property and isn’t aware of what’s happening with it they don’t deserve to own it.

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