Getting legal aid for contempt of court cases
Today there have been a number of news reports (Law Gazette and Metro) about the case of Marie Baker, who was given a 24 week prison sentence by District Judge Mackenzie for begging in breach of a civil injunction obtained by Festival Housing Limited.
Festival Housing Limited had applied to have Ms Baker committed for 2 allegations of begging on 25 November 2016 and 2 January 2017. It was reported that she was not aggressive and did not persist once her request was refused. Some may say the sentence is particularly harsh given the breaches, but there had been a history of her begging and refusing to comply with court orders.
However, Mackenzie was troubled by the fact that Ms Baker was not legally represented in the proceedings and therefore had been representing herself. He described Ms Baker as a ‘fragile and vulnerable’ who had difficulty reading, writing and understanding. He acknowledged that she had had an opportunity to seek assistance from a solicitor, but through no fault of her own had been unable to secure representation. The reason given for Ms Baker not being able to secure representation was due to uncertainty over funding.
LASPO effect on contempt of court cases
This was a civil case and legal aid for most civil cases was cut by the commencement of LAPSO in 2013. It was reported last year that these cuts had led to advice ‘deserts’ in a number of areas. However, legal aid would have been available to Ms Baker. Although these were civil proceedings, representing her in an application for her to be committed would have been covered by criminal legal aid. However, normally only firms authorised to undertake criminal work can apply for this type of funding. Non-criminal legal aid firms can also apply for funding but must at the same time apply for an Individual Case Contract.
It is not surprising that Ms Baker struggled to find a solicitor willing and able to assist her given that there are fewer legal aid solicitors around. Further a criminal solicitor, whilst familiar with criminal legal aid, may not be comfortable with taking instructions on a matter within civil courts (which are subject to different procedures and rules) and open themselves up to potential for allegations of negligence.
Equally, a civil solicitor, is unlikely to be familiar with criminal legal aid procedures and therefore may not want to accept instructions for work when there is a risk they will not be paid. Any solicitor who currently undertakes legally aided work, can no doubt provide their own examples of instances where the Legal Aid Agency has sought to refuse claims for costs for the smallest of reasons.
Mackenzie did not criticise Ms Baker for her attempts to secure representation and noted that this was not the first time the court had experienced this problem. He also commented that it was “wholly unsatisfactory that the system conspires against a vulnerable individual like this.”
Flaws in the system and society
I do not think this is simply a reflection of the flaws and complexities of the legal aid system, though it certainly did not help. It also highlights that society’s as a whole has its flaws. In this case a woman described as ‘fragile and vulnerable’ who struggles with literacy and understanding was begging on the streets. In those circumstances we have to ask ourselves whether Ms Baker had a fair hearing in accordance Article 6 of the Human Rights Act.
Mackenzie was careful in his comments explaining that, because Ms Baker had had an opportunity to find a solicitor, that she had had a fair hearing. I am not convinced that that is enough when a person’s liberty is at stake, and particularly when that person is vulnerable.
There could be many contributing factors that led to this woman being imprisoned. It could highlight a lack of social care, a lack of mental health support, or a shortage of housing as well as a lack of legal representation. A more straightforward, less bureaucratic legal aid system, may well lead to more solicitors being willing to take on such matters.
Protecting the most vulnerable
Will imprisoning her for 6 months address any of the underlying problems that led her there? Probably not. However, with the current focus on cuts and austerity it would be interesting to know what the overall costs of getting to that point were compared to the costs of providing social care, or housing, or mental health support at an earlier point.
We now know that a general election will take place in 7 weeks and it will be interesting to see what issues dominate the news in that time. I suspect housing and the NHS will be some of the key concerns, but given that Brexit has now been triggered the need ensure the safety of society’s most vulnerable people should not be overlooked.