I had imagined that the President would be the first Judge to use the powers he speculated in Q v Q that the Court might have, to make Her Majesty’s Court Service pay the legal costs of a party who would have their article 6 rights breached by being unrepresented. But I was wrong. It was H H Judge Bellamy, sitting as a Deputy High Court Judge (always making my head hurt about whether it is precedent authority or not)
Re K and H (children : Unrepresented father : Cross-Examination of a Child) 2015 (The 2015/1 in bailii’s link suggests it might be the first 2015 reported judgment as well)
Bald facts – private law dispute, allegation about father sexually abusing the child, allegation disputed. Judge ruled that child was a capable witness and should be cross-examined. Dad did not want to cross-examine the child himself and all agreed that this would be bad – the forensic exercise much more serious than a Judge just ‘putting’ things to the child and in effect presenting father’s case.
Lord Chancellor asked to intervene, and represented very ably by Ms Whipple QC (funny how there’s always public money to get the best for the Lord Chancellor, but not for others…)
I’m going to surprise you now. I think the Lord Chancellor should appeal this decision, and I think they should win the appeal.
Because this isn’t a case of a father who would have got funding pre LASPO now not getting it, and not a case of the Legal Aid Agency being mealy-mouthed about section 10 discretion to grant funding. This man was over the financial limits for legal aid. And not a little bit – he was double the disposable income limit.
Now, that doesn’t mean that he can necessarily afford to pay privately for legal representation, nor that paying privately wouldn’t be expensive and wouldn’t hurt.
But we’ve not had in this country for private law disputes a situation where EVERYONE gets free legal advice regardless of means (we have that for parents in care proceedings, that’s different). There has always been a financial limit – a point at which the State says “you earn too much to get free legal advice” (or more accurately “you earn too much for other taxpayers to be footing your bill for free legal advice”. You might argue until the cows come home about whether that’s right or fair, but it has ALWAYS been the system. This is not a Grayling change, this man would not previously have got free legal advice under any government you care to mention.
Whether it is fair or not, the State has said, there’s a cut-off point – we soften it by saying when you are near it you can still get legal representation but you have to make a contribution to it, but if you’re double the cut off point, you don’t get free legal representation. Nobody in that position ever has, and there weren’t article 6 breaches in any of those cases.
If HMCS are going to fund this man, then they are potentially going to fund many more like him – and more to the point, all those people in the past who had to pay privately for their lawyers are going to rightly feel aggrieved.
The ECHR has never said that States can’t set financial limits on free legal aid and representation, nor where those limits are.
I’m no fan of LASPO, and have been pretty vocal about it, but this isn’t a LASPO failure or a LASPO injustice. This is a flat-out “when someone really needs legal advice and the State limits suggest that they ought to put their hand in their own pocket, should the taxpayer pay instead?”
Just because this bill is coming from HMCS doesn’t mean that the money isn’t ultimately coming from a taxpayer (and frankly, I’d be really, really wary of taking the case on for him because I don’t think whoever does it will ever see a penny – after all, if the Court stiffs you on your bill, what are you going to do about it? Sue? I think the French expression is, “to whom do you complain when it is the Judge who is screwing your wife?”)
I think it is a good judgment, and it is thorough and detailed, but for me, that key point is not given sufficient weight, and for that reason, I’d be expecting it to be appealed and successfully appealed to boot.