Friday 30 May 2014

Cost cutting doesn’t always translate into savings

The Justice Department’s attempts to save £15m in translators fees by outsourcing translation services to a private firm has been heavily criticised by the Justice Select Committee. The Committee Chair, Sir Alan Bleith, went so far as to describe the Justice Department’s handling of the outsourcing as “nothing short of shambolic.”

The Daily Mail reports that, in some court hearings, the appointed translators do not speak the language required, or speak it very poorly. In some instances, translators have failed to show up entirely.

The Justice Committee report noted that the contracted firm, Applied Language Solutions (now Capita Translation and Interpreting), had been unable to recruit sufficient qualified interpreters, and that this has led to “hearings being adjourned or severely delayed and, in criminal cases, unnecessary remands into custody with potential implications for the interests of justice.”

The changes to the provision of translation services were an attempt to save the Justice Department money. However, as with many of the Justice Department’s cuts, the effect has been the straining resources elsewhere in the system.

Court proceedings are taking longer, costing the taxpayer more in terms of staff costs, barrister fees, solicitors, and expert witness fees. Criminal defendants are being remanded in custody unnecessarily, increasing the costs in terms of imprisonment.

Providing proper translation services is vital for UK justice. The government needs to invest in order to provide this service adequately, or risk the integrity and reputation of the UK justice system; one of the UK’s key assets when it comes to attracting foreign investment.

We appreciate the need for responsible management of the Department’s budget; however, if it fails to provide a competent service, the cuts in costs may ultimately drive up expenditure overall. 

Tuesday 27 May 2014

The London Legal Walk

Last Monday, 19 May, a team from Wainwright& Cummins headed over to the Law Society on Chancery Lane for a charity walk, raising funds for the London Legal Support Trust. The LLST is an important supporter of free legal advice services, such as Legal Advice Bureaux and Advice Centres and charities.

Free legal services serve an ever-growing need for legal advice where legal aid cuts have left vulnerable people without necessary access to representation. Wainwright & Cummins is proud to support access to justice initiatives such as the LLST.

This is the view of Fontaine Stubbs, work experience student from the University of Surrey, on the London Legal Walk:

The 10K Legal Walk
The most beautiful sight was to see the legal profession coming together to support free legal advice for charities in London and the South East. It was a great atmosphere to see everyone happy and energetic to take part in the 10k walk and making use of the beautiful day. 

The 10k legal walk was an exciting yet therapeutic walk around some of London’s most amazing sights including St James’s park; where the trees stood high, the flowers blossomed and the birds sung freely. There was also the breathtaking sight of the long stretch of the lake which glistened brightly as the sun beamed its rays from above and the ducks quacked from all the excitement of the festivities.

This year we had the support of 8,000 walkers and with everyone’s tremendous efforts we have raised over £530,000.


I am happy to say that I experienced my first legal walk with Wainwright & Cummins Solicitors and its supportive team and I will definitely be taking part again next year. 

Tuesday 20 May 2014

Potential Risk to Consumers Grows as Use of Unregulated McKenzie Friends Increases - brief version

In April 2014, the Legal Services Consumer Panel published a report about fee-charging McKenzie Friends. The use of McKenzie Friends is said to have greatly increased, particularly (but not exclusively) in the family courts. This is mainly attributed to the enormous increase in litigants in person as vast swathes of law are cut from the scope of legal aid.

McKenzie Friends are unregulated, typically not legally educated or qualified, rarely insured, and therefore may pose a risk to the vulnerable clients they work with.

There is clearly some evidence of struck-off lawyers working as McKenzie Friends. Solicitors have to be guilty of serious misconduct to be struck off, and as such are hardly suitable for providing advice and legal services to often stressed and intimidated clients.

Yet the McKenzie Friend industry has no regulation or requirements, anyone can call themselves a McKenzie Friend and purport to give legal advice. Would the Government be willing to accept unqualified, unregulated individuals posing as doctors, dentists or structural engineers? The clients of such unqualified professionals will be truly fortunate to leave relatively unscathed, but when things go wrong, the effects can be absolutely devastating. It is the same in law. 


For the full blog post, click here

Potential Risk to Consumers Grows as Use of Unregulated McKenzie Friends Increases - Full Post

In April 2014, the Legal Services Consumer Panel published a report about fee-charging McKenzie Friends. The use of McKenzie Friends is said to have greatly increased, particularly (but not exclusively) in the family courts. This is mainly attributed to the enormous increase in litigants in person as vast swathes of law are cut from the scope of legal aid.

Concerns have been raised regarding the growth of the McKenzie Friend industry. In their favour, that they are inexpensive, provide moral support to nervous litigants in person, and may smooth and speed up legal processes; however concerns have been expressed about their lack of training, supervision, regulation, and insurance. Rumours also persist – and there is some evidence to support this – of struck-off lawyers acting as McKenzie Friends.

Who are McKenzie Friends?

The LSCP report describes many McKenzie Friends as having become McKenzie Friends ‘following a personal negative experience of the court system’ such as a divorce or child custody case: ‘they decided to draw on this experience to help others in similar circumstances’.

Most McKenzie Friends are sole traders, though occasionally other business structures are seen, such as two or three McKenzie Friends working together, or working on a commission basis. The sample interviewed by the LSCP found about half of McKenzie Friends work part-time and half full-time.

Very few of the McKenzie Friends considered by the report had legal qualifications. Some had other professional qualifications such as mediation. A small number have professional indemnity insurance, but most do not. Some have attempted to get insurance but were unable.

Most McKenzie Friends provide help in family law cases only, with some specialising in only divorce or only child custody cases. However, ‘type 4’ McKenzie Friends (see description below) sometimes offer much wider legal services, including help with motoring offences, criminal cases, immigration cases, power of attorney and other private client work, and even judicial review.

Types of McKenzie Friends

The LSCP report divides McKenzie Friends into four ‘types’, as follows:

  1. The family member or friend who gives one-off assistance
  1. Volunteer McKenzie Friends attached to an institution/charity
  1. Fee-charging McKenzie Friends offering the conventional limited service understood by this role
  1. Fee-charging McKenzie Friends offering a wider range of services including general legal advice and speaking on behalf of clients in court


The report focused on types 3 and 4: fee-charging McKenzie Friends.

Advantages of McKenzie Friends

Speeding Up Court Processes

For many of these litigants in person, the choice is not between a McKenzie Friend and a solicitor, but between having a McKenzie Friend or going to court alone. Many commentators conclude that ‘something is better than nothing’, arguing it is better to have unqualified, but nonetheless perhaps experienced and useful McKenzie Friends, than to have unqualified and inexperienced litigants in person clogging up the family courts.

Cases involving litigants in person often take significantly longer than cases where both sides are legally represented. This may be for a variety of reasons, including  the possibility that litigants will continue to fight a meritless case because they do not have a lawyer to advise them that they will not succeed; or failure to supply the correct documentation and information, either at all or within the time required; and so on.

Mr Justice Holman summed up the difficulties for judges succinctly:

‘I have no legal representation… no expert evidence of any kind. I do not even have such basic materials as an orderly bundle of the relevant documents; a chronology; case summaries, and still less, any kind of skeleton argument. Instead, I have had to rummage through the admittedly slim court file… I shall do my best to reach a fair and just outcome, but I am the first to acknowledge that I am doing little more than “rough justice”.’

The LSCP report notes that ‘cases tend to progress more smoothly when McKenzie Friends can assist the court by encouraging litigants to separate emotion from the facts, facilitate cooperation with court processes and other parties, help with case papers and so on.’ While a McKenzie Friend is not and cannot act as a lawyer, if one can in fact help to defray the difficulties posed by litigants in person, they may be beneficial to the smooth running of the courts system.

Cost

According to the LSCP report, the typical hourly price range for McKenzie Friends is £35-£60, or a day rate of £150-£200. For many litigants in person who are ineligible for legal aid and unable to afford a qualified solicitor, a McKenzie Friend may offer a more reasonably-priced alternative. But are McKenzie Friends in fact an alternative to a solicitor? What kind of service do they offer? These questions are explored below. 

Moral Support

While all court processes can be intimidating and stressful for those involved, it can fairly be said that family court proceedings can be the most difficult. They deal with matters which are of utmost importance to the litigants, including divorce, financial support and child custody matters, all whilst in unfamiliar surroundings, using alien terminology and jargon, and operating in accordance with rules only comprehensible to those with significant experience. As such, McKenzie Friends may offer a valuable service simply in terms of providing explanations of process, moral support, and a familiar friendly face for litigants in person.

Risks of McKenzie Friends

Training and Supervision

There are no training requirements for McKenzie Friends. Many may have no training at all. Some McKenzie Friend organisations offer courses of varying lengths, from a two-day introductory course to a five-week, part-time training programme. The courses are not regulated or recognised by any professional body. There is no supervision or qualification requirement for McKenzie Friends.

By contrast, solicitors must train for a minimum of four years, including a two-year, heavily supervised training contract, before being allowed to independently give legal advice.

Insurance

Most McKenzie Friends do not have any insurance. A few have professional indemnity insurance, though the level varies widely from £50,000 to £2,000,000. Some report previously having had insurance but finding it difficult to renew following the changes to legal aid.

Most solicitors’ firms must have at least £3,000,000 in professional indemnity insurance, and many have considerably more.

What’s the point? If your solicitor makes a mistake which damages your claim, you know you can obtain financial redress. With a McKenzie Friend, you cannot be sure there will be enough insurance to cover your losses (if there is any insurance at all).

Regulation

There is no regulation of McKenzie Friends. While there have been calls for self-regulation, including in the report by the LSCP, there is currently no credible functioning regulation or self-regulation of McKenzie Friends; whether fee-charging or not.

This is quite unlike solicitors, who are rigorously regulated by the Solicitors’ Regulation Authority; which has significant powers to punish solicitors who breach the rules – including powers to fine, suspend and even revoke their licences to practice. Additionally, if a client has a complaint about a solicitor, she can obtain redress through the Legal Ombudsman. The Legal Ombudsman is an independent, impartial and (importantly) free service which helps consumers of legal services deal with tricky situations where they feel they have been wronged by the person they trusted to give them advice that would serve their best interests. 

The lack of regulation of McKenzie Friends clearly puts the client at risk. Though unscrupulous lawyers certainly exist, ‘the key difference [with McKenzie Friends] is the absence of the protections that regulation offers. This includes preventative measures such as qualifications and a code of conduct, as well as remedial measures such as insurance and access to redress.’

Quality of Advice

The LSCP report notes that ‘Litigants may rely heavily on what the McKenzie Friend suggests despite this person not being legally qualified and potentially uninsured. While some McKenzie Friend websites make it clear that the individuals are not lawyers, others make claims about their expertise. The maxim that “something is better than nothing” may not hold if litigants are badly advised’.

Litigants in person are typically in unfamiliar, stressful and complicated situations, and as such are highly vulnerable to potentially unscrupulous individuals who portray themselves as ‘experts’ capable of giving advice and assistance. When it becomes clear that these McKenzie Friends have no training, supervision, regulation, or insurance, the potential risks to the client become evident.

A litigant in person may be better off alone in court than with a McKenzie Friend giving poor guidance, such as the category of ‘Agenda-Driven McKenzie Friends’ mentioned in the report. These ‘exploit vulnerable clients as puppets to pursue a personal agenda’ and may ‘encourage clients to pursue meritless cases at a financial and emotional cost to clients, while also wasting court time.’

Struck-Off Lawyers?

The LSCP initially chose to write a report on McKenzie Friends in no small part due to rumours that lawyers who had been struck off the rolls were now offering their services as McKenzie Friends. Given that a lawyer must have been guilty of serious misconduct to be struck off, it can be argued that it is inappropriate for them to give legal advice to potentially vulnerable and emotional clients.

There is nothing to stop a struck-off lawyer from advertising themselves as a McKenzie Friend, and indeed they might be able to capitalise on their previous profession by mentioning their legal training and experience with the legal process.

Conclusion

In an ideal world, all litigants who wanted to be advised and represented by qualified lawyers would have that option. Unfortunately, the world we live in is anything but ideal, and litigants in person who are unable to afford a solicitor and are ineligible for legal aid are flooding the courts. Our courts remain inaccessible to most laypeople, with complex and ever-changing rules, procedures and requirements that take years to learn and understand. It is therefore hardly a surprise that a new industry is developing to fill this gap in the market and provide low-cost legal advisory services to those who require them.

With that said, there is strong evidence to suggest unscrupulous McKenzie Friends exist, from struck-off lawyers and those with an agenda to push, to those who suggest they can fight your case with more vigour than a solicitor could. With no regulation, training, oversight or guaranteed redress against wrongdoing, would it be right that the public should trust their legal affairs to McKenzie Friends?

By Catherine Brydges, Andrew Wainwright & Angela Giannotti

The views expressed do not necessarily reflect those of the firm or its partners. 

Monday 12 May 2014

Prison conditions and Government silence

What are our prisons really like?
The Daily Mail recently published an article by Angela Levin on what life is really like in prison, former chair of the Independent Monitoring Board (IMB) for West London. Ms Levin, who worked at HMP Wormwood Scrubs for nearly ten years, recently resigned from her position after becoming exasperated at the “atmosphere of hopeless apathy” within the prison system. She says that the Government have so far wilfully ignored the scale of problems within our prisons.

Ms Levin reports appalling standards of hygiene, regular incidents of ‘dirty protests’ where prisoners smear excrement over the walls and themselves, violence against both staff and prisoners and widespread drug use. However, according to Ms Levin, her complaints were brushed under the carpet. She even cites one occasion where she was told by senior civil servants that she and her fellow IMB colleagues could not have witnessed the events they claim to have witnessed.

Her reports are worrying, particularly given the little public exposure of prisons. Few people know what really occurs behind prison walls, and the apparent reluctance of the Government to accept the concerns of an experienced independent monitor calls into question the accountability of our justice system.

Fears of unaccountability have been somewhat corroborated by the recent decision of Chris Grayling, the Secretary of State for Justice, to block an independent inquiry into the extent of rape and sexual assault in British prisons. The Independent on Sunday reported that the inquiry aims to “understand the nature and scale of the issues and problems… with a view to making prisons safer”.

Researchers are being prevented from approaching current prisoners or prison governors. Giving evidence to the inquiry could even amount to a breach of bail conditions for those prisoners who have been released on licence, which could result in them being recalled to prison.

One cannot help but ask: why is the Government going to such lengths to block this research? According to the report, the Government’s position is that the potential benefits of The Howard League’s proposed work would be limited. Nevertheless, the Government has permitted a separate report into sexual offences in prisons by a first year PhD student. Undoubtedly, the prospective audience of a PhD student’s report, and that of the widely established and oldest UK Penal Reform charity, are likely to be substantially different.

Cutting out the critics?
The Howard League is concerned that their open criticism of Government policies, such as cuts to legal aid for prisoners, may factor in the decision to block their work.

Ms Levin has been similarly critical of Government cuts. Following budget cuts in October 2013, staff numbers were reduced to the point where some inmates were kept in their cells for up to 20 hours per day. Remarkably, staff shortages have reportedly left officers reliant on obedient inmates to help with prison discipline.

Churchill is often quoted as saying ‘the degree of civilisation of a society can be measured by how it treats its weakest members’. In light of Levin’s account, should we be questioning the degree to which our society is ‘civilised’?

This question is closely linked with the way in which justice is achieved through our current prison system. Punishment is not the only purpose of imprisonment. The system also aims to rehabilitate inmates and educate them about the impact of their actions to prevent similar behaviour in the future. Can uncivilised conditions adequately prepare prisoners for release into ‘civilised’ society?

Given that prisoners are not the most politically favourable topic, the apparent lack of Government response is understandable. However IMB’s exist to facilitate accountability and efficiency in our prison system. Ignoring the concerns of an independent authority is likely to come at great cost to society, including through re-offending and the declining level of our ‘civilisation’. This undoubtedly threatens the safety of officers and prisoners, leaves the government at risk of legal action, and will undoubtedly cost more money in the long-term than the short-term budget cuts might have saved.

-The views of members of Wainwright & Cummins' Prison Law Department do not necessarily reflect those of the firm or the partners 

Tuesday 6 May 2014

Reaction from family law expert, Karina Leapman, to government plans to have students advise divorcing couples

Legal aid cuts have left the family courts in disarray, as most divorcing couples do not qualify for legal aid, and end up representing themselves. In place of lawyers providing expert advice, the Government plans to introduce advice centres, where law students will provide advice to divorcing couples who cannot afford legal representation.

This plan concerns family law expert, Karina Leapman.

At Karina Leapman & Co, “we are careful about the cases in which we involve students. We feel that depending on the age, experience and our view of their level of maturity, some cases are not appropriate for students to deal with.” 

Ms Leapman’s concerns relate to confidentiality of client information, quality of representation, and the devastating impact of getting family law advice wrong.

Confidentiality
Ms Leapman notes that in her office, “sometimes clients do not even feel comfortable with a student sitting in on a meeting and taking a note when they are speaking about emotional and deeply personal matters.”

Quality advice from students?
“I gave free legal advice when I was a student and newly qualified solicitor”, says Ms Leapman.  “I remember becoming out of my depth and having to ask for help as new scenarios were presented, which hardly gives confidence to the recipient of such underdeveloped assistance.”

If clients need a hand to hold or someone to talk to, they can often go to family and friends. However, “when they seek legal advice, they want an experienced person who knows what they are talking about, to whom they can unburden and receive good advice and guidance.”

“Is it fair to expect people going through what is often one of the most traumatic experiences of their lives, which incidentally is likely to impact on their children’s future welfare into adulthood, to rely on help from students?”  

The value of experienced, qualified legal advice 
When asked about her view on students providing advice to couples splitting up, Ms Leapman stated: “[Family lawyers] do not train for years, work alongside more experienced lawyers and continue learning in the job for nothing.”

In her experience, Ms Leapman has found that “some people think that all they need to do is separate or divorce to resolve matters” and they do not consider the other areas of their lives that could be affected. She points out that important issues, such as domestic abuse, interests in property, child abduction, child protection,  dishonesty or jurisdiction issues could be missed by student advisors.

“Would a student spot the signs and be able to advise clearly, kindly and firmly on matters that need to be addressed urgently? I think the risk is too great to all concerned.”

Thursday 1 May 2014

Mythbusting the Minister - Judicial Review and Legal Aid

In a recent Telegraph article, Chris Grayling, the Lord Chancellor, attempted to justify his severe restrictions on legal aid available for Judicial Review (JR). He alleges that legal aid lawyers are exploiting JR in order to make a political point or to cynically enrich themselves. Unfortunately, the article was unhelpful. Here is our attempt to address some of these misgivings.

Myth #1: Judicial review claims are “designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”

This statement appears to show a lack of understanding of how the British constitution works. The public elects Members of Parliament who then deliberate and vote on laws that dictate what government can and cannot do.

On the other hand, Ministerial posts are not elected positions. Mr Grayling himself was chosen for the position by the Prime Minister. As a member of the Cabinet, he is an appointed part of the Government. As a result of constitutional changes made under Labour, Mr Grayling is the first Lord Chancellor without a legal background.  Previous Lord Chancellors have usually been appointed after careers as some of the most senior and well-respected lawyers.  

Separation of powers, checks and balances
The British constitution provides for a separation of powers between the Government, Parliament and the Courts. Each body checks the other to ensure it does not act beyond its powers.

What JR is actually designed to do
Judicial Review is a means through which the Judiciary can review a Government decision to determine whether or not the Government has acted within the laws passed by our democratically elected politicians.

The doctrine of parliamentary sovereignty means that the Courts cannot override the laws passed by parliament, even in cases where there have been human rights violations. If a decision has indeed been properly taken, then there are no grounds for a Judicial Review claim.

Without an effective system of Judicial Review, there can be no way to ensure that the laws passed by Parliament actually bind the Government. JR ensures that this country is governed by the rule of law, no matter who forms the Government of the day.

Myth # 2: Judicial Review is just a tool for “left-wing lawyers”

The law is blind to political ideology. It must be applied equally and consistently. The motivation of a person bringing a Judicial Review claim has no bearing on the application of the law, and consequently, whether government actions are lawful or otherwise.

Mr Grayling’s repeated references to “left-wing lawyers” is troubling. They are potentially designed to infuriate Telegraph readers, reducing the hard work done by legal aid lawyers to secure the best outcomes for their clients to pure political activism, simply because the Government is the Defendant.

But Governments change, and if we must consider ideology, then there are plenty of “right-wing” JR cases. Claims against High Speed 2 have been brought by those impacted in the Tory heartlands of the South East. Many were concerned with the effect that HS2 would have on the value of their property; hardly the cause of “left wing” activists.

Similarly, in R (Jackson) v The Attorney General, a JR claim was brought by individuals opposed to the Labour Government’s ban on hunting with dogs. The Countryside Alliance is hardly a hotbed of Trotskyite agitation.

JR is a means through which people of all backgrounds and beliefs can challenge decisions made by the Government of the day, whatever its political stripe. A far cry from the narrow, “left wing” stereotype suggested in Mr Grayling’s article.

Myth # 3: Legal-aid lawyers are making frivolous applications for Judicial Review in order to milk the system

Legal aid lawyers earn considerably less that their counterparts in commercial and private law. They tend to choose this lower-paid work because they want to assist some of the most vulnerable people in their society, and quite properly hold the view that even criminals and prisoners should be dealt with in accordance with the law. This is a fundamental aspect of the British constitution.

Mr Grayling’s claims that legal aid law firms are bringing frivolous JR cases in a cynical plot to enrich themselves are misinformed. Legal aid is awarded to claimants for JR as a result of a decision from the Legal Aid Agency, itself a Government department. The LAA may reject an application for JR on the basis that the claim is unfounded.

The claim must next pass muster with the Courts, as the claimant will not be granted permission to bring a case if it is baseless or frivolous. The Legal Aid Agency and the Courts therefore already provide effective checks against the potential for lawyers to make unfounded applications for JR.

Unfortunately, Mr Grayling’s article in the Telegraph propounds the view that the Ministry of Justice has cut the legal aid budget with little regard for the consequences to access to justice, the rule of law and the British constitution.

- The views of members of Wainwright & Cummins’ Prison Law Department do not necessarily reflect those of the firm or the partners