I am struggling to think of a piece of legislation that has had as many successful challenges to the legality of Regulations issued under it as the much-beloved LASPO (Legal Aid, Sentencing and Prosecution of Offencers Act 2012)
The particular Regulations here are Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012
LASPO sets out that being a victim of domestic violence can be a reason for the provision of free legal representation. The sense of this is that where someone has been the victim of domestic violence, it would be abusive and damaging for the State to make them face the perpetrator in Court without a lawyer to represent them. [Note that this provision still only applies within financial limits – below a specified income and capital the State should pay for that, above that and the individual would have to pay for it themselves, regardless of whether the legal representation is actually genuinely affordable on that income]
There is, of course, an entirely separate debate about whether someone who is accused of perpetrating domestic violence should be entitled to free legal representation to defend the allegations (at least until the Court has determined the truth of the allegations), but that’s beyond the scope of this case. [For my part, I think that LASPO should have provided for that, but it doesn’t]
Regulation 33 sets out that in order to show that you are a victim of domestic violence, you need some documentary evidence of that to get legal aid, and that the evidence must be within the last 24 months.
This 24 month rule was challenged. [Note that although the application was brought by a group lobbying for women’s rights, men of course can also be the victims of domestic violence and abuse, and this case applies to men as well]
Rights of Women, R (on the application of) v The Lord Chancellor and Secretary of State for Justice  EWCA Civ 91
Whilst the judgment is fairly long and involves some rather nuanced discussions about Padfield unfairness versus Wednesbury unreasonableness, the case can be condensed into these short passages
- Ms Lieven submitted that the evidence shows (as practitioners in the Family Division know from their own experience) that there are many situations in which victims of domestic violence find themselves at the receiving end of legal proceedings not merely more than 24 months after incidents of domestic violence have occurred but more than 24 months after it is practical to obtain the kind of verification required by regulation 33. Examples of such cases are:-
i) the perpetrator may have been in prison; once he (it is almost always he) is released, he may initiate proceedings for child contact or divorce and financial settlement; regulation 33(2)(a) can only be relied on if the conviction preceding the prison sentence is a relevant conviction for a domestic violence offence and if it is unspent; if the sentence is a fine or a community order, the conviction will be spent after only 12 months from the date of conviction or from the last day the order is to have effect;ii) there may have been a non-molestation order (or other form of injunction) which has kept the parties apart for 2 years but has expired before legal proceedings are begun;
iii) a similar period of separation may have occurred for other reasons such as the receipt of a police caution or other police involvement; criminal proceedings may have been instituted which do not result in a conviction; such non-convictions occur for many reasons other than that the alleged perpetrator is innocent;
iv) there is no time limit for the initiation of proceedings for child contact; a refusal of child contact does not prevent a re-initiation of proceedings which can therefore be served again on the victim of domestic abuse after the expiry of the two year period. Additionally, the court can direct, pursuant to section 91(14) of the Children Act 1989, that no such proceedings shall be begun without permission of the court for a period until the expiry of the two year period in which domestic abuse could be verified in accordance with the Regulations; if the Court also directs that any application for permission is not to be served on the respondent, a victim of domestic abuse may receive no notice of prospective proceedings within the relevant period in which she may otherwise take steps to obtain verification;
v) The main priority of any victim of domestic violence will be to make immediate arrangements for her personal safety and that of her children; this may take a considerable time particularly if the abuse was prolonged or the marriage was originally a forced one; any proceedings sought to be brought by the victim for divorce or financial relief may well be more than 24 months after any practical ability to obtain verification has passed;
vi) although the definition of domestic violence extends beyond physical abuse to psychological or emotional abuse, the verifications required by regulation 33 are much more easily satisfied where there has been physical abuse than where there has been psychological or emotional abuse. This means that even though signs of psychological or emotional abuse may persist longer than sign of physical abuse, there is considerable difficulty for the victim in obtaining the necessary verification after any lapse of time; and
vii) victims of financial abuse will not be able to obtain any of the verifications required by regulation 33 at all. (The only answer Mr Sheldon could give to this last point was the inadequate one that victims of financial abuse could always be expected to show evidence of psychological abuse).
- This is a formidable catalogue of areas of domestic violence not reached by a statute whose purpose is to reach just such cases. But does it go so far as to show that the 24 month requirement has no rational connection with the statutory purpose?
- In my judgment it does. There is, as Ms Lieven submits, no obvious correlation between the passage of such a comparatively short period of time as 24 months and the harm to the victim of domestic violence disappearing or even significantly diminishing. No doubt the 24 month requirement serves the purposes of the statute as the Divisional Court considered them to be but as I have said those purposes are not the only purposes of the statute. Once it is accepted that part of the statutory purpose is to ensure that legal aid is available to (at any rate the great majority of) sufferers from domestic violence, one has to ask why it is that so many of them are excluded by virtue of the 24 month rule. Mr Parsons’ assertion that “the time limit provides a test of the on-going relevance of the abuse” does not justify the many excluded instances or the lack of any opportunity for victims of domestic violence to explain why it would be unjust to apply the time limit to their particular case. It operates in a completely arbitrary manner
I would therefore allow this appeal and, subject to any further argument about the detail of the form of order, in principle declare that regulation 33 is invalid insofar as it
a) requires verifications of domestic violence to be given within a 24 month period before any application for legal aid; and
b) does not cater for victims of domestic violence who have suffered from financial abuse.
A cynical person might say about LASPO that Parliament when considering this Act were rightly very troubled by the original legislation and the lack of protection for certain vulnerable groups, which was why some safeguards were inserted into the final version of the Act, and that the Legal Aid Agency and Ministry of Justice have systematically attempted to erode those safeguards by Regulations (which have been successfully challenged) and guidance on implementation (which has also been successfully challenged).
In effect, Parliament agreed to trade in the car that they owned for a greatly inferior but still safe model to save cash, and agreed to let the Minister have a copy of the car keys, in case he or she needed to tune up the car or valet the inside at any time (the power to make Regulations).
Then the Minister snuck off in the night, used the keys and removed the brakes, seatbelts, speedometer, and airbags that would make the inferior car still safe to drive.
The Courts have ordered these safety measures to be reinstalled. But so far, each individual bit of ministerial pilfering has had to be dealt with one at a time. I hope that MPs are keeping up to date with the bad-faith approach to LASPO and will approach any future legislation with a much more cynical eye on giving Ministers the car keys in the future.