Legal aid cuts prevent the police from being held accountable for their actions

James Mehigan, The Open University

Who holds the police to account for their actions? Is it just institutions, such as the Independent Police Complaints Commission, the elected police and crime commissioners, and the forces’ disciplinary procedures? Something that’s often forgotten is the essential role played by lawyers as they try to obtain justice for the individuals who have been wronged by the police.

From those falsely imprisoned or families whose loved ones have died in custody to those who have been spied upon or had evidence fabricated for use against them, there are many that seek redress. Many don’t even seek compensation, just an admission of wrongdoing from the police and an apology. But getting to that point through the courts is an expensive business. Notwithstanding its obvious importance to the individuals involved and society at large, getting justice in cases where the police are at fault is something that successive governments have made harder.

As part of his response to home secretary Theresa May’s statement to the House of Commons on the Hillsborough Inquests, Labour shadow Andy Burnham stated:

At many inquests today there is often a mismatch between the legal representation of public bodies and those of the bereaved. Why should the authorities be able to spend public money like water to protect themselves when families have no such help? So will the government consider further reforms to the coronial system, including giving the bereaved at least equal legal funding as public bodies?

Burnham is exactly right. To walk into court with one junior lawyer, paid either at legal aid rates, or on a no-win-no-fee basis, or simply acting pro bono, only to find the agents of the state represented by top barristers is a galling experience. The recent Hillsborough Inquests are unusual in this respect as they were properly state funded, but the families of the 96 fans that died had this precise experience during the original inquests in 1990.

The experience of others at far shorter, less complex inquests is often similarly difficult. Trying to meet the exacting means-test and seriousness requirements of the Legal Aid Agency (LAA) leads to delay and distress. But the government has an obligation to allow families whose loved ones may have died at the hands of the state to be involved in the investigation into what went wrong.

This struggle to acquire funding so as to be able to hold the police to account is not restricted to coroner’s inquests. Elsewhere in civil proceedings or judicial reviews of police decisions, the struggle for funding is the same. The Legal Aid Sentencing and Punishment of Offenders Act 2012 (Laspo) reduced the scope of what type of case can attract legal aid. If the claim does qualify, the potential claimant must meet strict criteria to be funded. LAA guidance on funding in police actions requires that there be at least a 50% chance of success.

Ministry of Justice statistics show the effect of cuts to legal aid.
Ministry of Justice

By contrast, senior lawyers representing the government report that they have experience of being instructed “to defend government decisions despite advising that the prospects of doing so are considerably below 50%”. There is a clear double standard here, with no rules to prevent the state from squandering public money to defend its own decisions or actions.

Mounting a legal challenge by way of civil action or judicial review is expensive. Defending them is also expensive – almost certainly more expensive than running a human rights compliant constabulary in the first place. If a victim of police misconduct loses their case, they become liable for the constabulary’s legal costs. If you only stand to win a small amount – actions against the police win on average? below £20,000, often much less – many will take the attitude that it’s not worth risking their home to prove in court that they were wronged. Previously, it was possible to obtain so-called “after the event insurance” to support your claim, but this is now all but impossible.

This leaves many potential claimants without a viable mechanism to fund a claim against the police. The Police Action Lawyers Group, an affiliation of lawyers who represent individuals acting against the police, stated in their recent submission to the Fabian Society’s Bach Commission on Access to Justice:

As a result of reforms which made after the event insurance premiums irrecoverable from defendants, for most of those clients [who are ineligible for legal aid due to Laspo] there is currently no viable funding model.

The police will therefore go untroubled by claims in the civil courts.

In the past, criminal barristers have gone so far as to stage walk-outs against legal aid cuts, but this is not a campaigning strategy available to those acting against the police. If they were to walk out the police can happily continue its misconduct safe in the knowledge that nobody would issue claims against them nor represent families who wish to ask difficult questions at inquests.

And ultimately that would suit the police just fine. Cuts in legal aid are not really about tackling the public spending deficit, they are a key mechanism in reducing the possibility to hold the police and state to account.

James Mehigan, Lecturer in Criminology, The Open University

This article was originally published on The Conversation. Read the original article.

Better Regulation: better for whom?

Steve Tombs, Professor of Criminology

On 1st May, my new Briefing, ‘Better Regulation’: better for whom?, was published by the Centre for Crime and Justice Studies.

Better regulation

This Briefing, drawing on a recent monograph, placed the spotlight on the lack of effective regulation of pollution, food safety and workplace health and safety standards in the UK. An estimated 29,000 deaths each year in the UK are attributable to the effects of airborne pollution. Some one million cases of foodborne illness in the UK each year result in 20,000 hospital admissions and 500 deaths. Around 50,000 people die each year as a result of injuries or health problems originating in the workplace. These staggering figures are probably underestimates. The litany of lives shortened and health impaired to which these figures bear witness are also largely avoidable.

Yet as I documented in Better Regulation, the rate of inspection and enforcement actions for environmental health, food safety and hygiene, and health and safety have all been falling. This is not just a problem of infrequent inspections and lax enforcement. In the name of cutting red tape, governments of all political persuasions have, for over a decade, undermined independent and effective business regulation. Budget cuts under the austerity programme have compounded the problem. So too have moves to outsource and privatise regulatory and enforcement activity. Private companies are increasingly involved in ‘regulating’ themselves.

Taken together, these changes may mark the beginning of the end of the state’s commitment to, and ability to deliver, social protection. The story the Briefing tells is one of ‘avoidable business-generated, state facilitated violence: social murder. And, quite remarkably, it proceeds, daily – met only by academic, political and popular silence’.

The Briefing and its findings have received significant media exposure over the last week, including BBC 5 live Investigates with Adrian Goldberg, BBC News, The Observer, and UNISON. The right-wing, free market think-tank Adam Smith Institute published a rather cheeky critique of it, to which I responded.

Social Protection

Most rewarding of all, however, was coverage by Environmental Health News, the journal of environmental health practitioners, whose struggle to maintain a public service in the face of economic and political attack. I reproduce that interview here, in full…

Q and A with Steve Tombs and Tom Wall

Successive governments have portrayed regulation as a burden. But Professor Steve Tombs, head of social policy and criminology at the Open University, argues the drive to cut red tape has severely reduced the effectiveness of the agencies designed to protect the public. EHN caught up with him after his research was launched last week.

Why did you decide to carry out this research? 

For many years I have been interested in trends in enforcement of health and safety regulation, and it was clear that the shift towards better regulation had, and has, been having an effect on the level of enforcement in that context. So I was keen to understand what had happened in related areas – food and pollution control made sense in that respect. And I wanted to do so at local authority level, where the vast majority of enforcement in these spheres is done, but is something which has rarely been the subject of academic scrutiny.

Did your findings surprise you? 

Absolutely. As a social scientist I am used to gathering data which is messy and needs interpretation. But the quantitative data gleaned from public sources and Freedom of Information requests on enforcement, as well as the qualitative data from interviews with EHOs, is quite remarkable since it all points in the same direction – formal enforcement and enforcement practice is under severe pressure, nationally but especially at local authority level.

Why do you think the vital work of environmental health officers is often invisible to the public? 

Well, as many EHOs said to me, it’s the service that we – by which I mean consumers, communities, workers – only notice when things go wrong, such as an example of an outbreak of food poisoning or a local pollution incident.

What is the better regulation agenda about?  

Better regulation began ostensibly as an initiative to target inspection resources upon the businesses that were either in the highest risk areas, or less compliant, or both, so that regulators could achieve more efficient regulatory outcomes with less inspection – and, of course, less resource. It was a response to claims by business of over regulation and over inspection, and at a local level it was clearly premised on arguments about inconsistency in enforcement practices by different local authorities. To speak in political terms, however, it is clearly a big-business driven agenda designed to protect business from regulatory enforcement. And I heard that from many of the EHOs I interviewed also.

Why have successive governments seemed to embrace this agenda? 

For at least 20 years, the association of regulation and its enforcement with the idea of ‘red tape’, as a ‘burden’ on business, has gained strength. This has been an international trend, I think. In the UK I would say it has been particularly powerful because regulation and red tape have always by many been associated with the interference of the EU. But there are two attractions for any government in this agenda. First, it makes governments appear more business friendly, attracting and retaining business in the country and indeed in local areas. But, second, it offers an opportunity to withdraw resources from regulatory services, as according to this logic these are clearly not needed to the extent that had previously been thought – and governments, especially now in the context of austerity, are always looking for ways to reduce expenditures, especially where they can claim that this makes services more efficient!

What has happened to regulation under David Cameron? 

Cameron is ideologically opposed to these forms of regulation – speech after speech makes that abundantly clear, and I have to say that health and safety regulation and enforcement are a specific target for vitriol here. But more than that, the political initiative towards ‘better regulation’ has, since 2010, been overlain with the economics of austerity. And the latter has seen the DCLG hit harder than any other government Department, and on current spending plans this will continue to be the case until 2020 at least.

Would the Corbyn led Labour party would take a different approach? 

Well I would hope so. But let’s remember that the better regulation initiative started under a Labour government. Of course, that government was elected after 18 years in opposition and was dying to prove its business friendly credentials. A Corbyn led Labour Party looks and feels quite different, and I would hope it will take a more balanced approach to regulation. Certainly I have shared platforms with John McDonnell in the past where I have been documenting tends in health and safety enforcement and he has been clear that these trends need to be reversed; I would also hope, and expect, that this new party leadership would agree and act on this. I would hope a Corbyn led Labour party would take the same view of the work of regulators in general.  In particular, I am optimistic that they will see the work of EHOs for what it is – providing a crucial public service which benefits all of us, that is consumers, workers, local communities and in fact, I would argue, businesses themselves. I really think it is crucial to resuscitate the idea of public service, and oppose the idea that regulation is just red tape designed to somehow make all of our lives more difficult. I would hope a Corbyn led party would share that view.

What can EHOs who are concerned about this agenda do? 

That’s a very difficult question to answer, the EHOs I have met get on day-to-day doing their best with less and less and, as one put it to me, their ‘light is hidden under a bushel’. I think it is for others to try and challenge the agenda – EHN regularly documents the deterioration of the service, and I think the CIEH needs to be less defensive and be more vocal in representing the value of the work of its members. UNISON has done work in this area, but I think this should be a more central issue for them – it’s key to the public health agenda. And I think that some intervention by academics – who have some time, and resources – might also be useful.

The Adam Smith Institute claims the research is flawed because it doesn’t show a historical link between falling numbers of EHOs and rising preventable deaths. How would you respond? 

It’s rather odd to be criticised for not doing something in a briefing which I never set out to do therein – demonstrably linking a decline in enforcement capacity to an increase in risk – I’ll restrict myself to a few brief comments.

Increased deaths, injuries and illnesses are difficult to gauge because we know that most of the data in any of these areas is simply not robust enough to track trends over relatively short time scales.

How many of us who suffer some form of food poisoning which we link to something we’ve eaten or bought from a fast food outlet or supermarket business actually report that to the local authority? A very small percentage I think it’s fair to say.

Moreover, which of us knows that we are being subject to airborne pollutants that will shorten our lives as we go about our daily business – or, even if we did, could link a specific pollutant to its specific profit-generating source?

We also know that the majority of workplace injuries and work-related ill-health never get reported. So the state of data in this area makes it very difficult to undertake ‘the X causes Y’ type logic that would satisfy the intellectuals at the Adam Smith Institute.

Of course, what we can do is point to specific cases of death, injury or illness associated with an obvious form of non-compliance with law that would have been picked up by an inspection had there been one.

Radio Five Live, which today broadcast on issues covered by the Briefing, interviewed Debbie, a woman in Kirby whose 10-year-old daughter was hospitalised with salmonella poisoning. She was one of over 50 people in the area who contracted the illness after eating food from a takeaway. Contrary to Food Standards Agency statutory guidance, the business had not been formally inspected in 2 years.

Finally, the equation of lesser enforcement with greater risk seems likely even on a common-sense level. Consider this: the average workplace regulated by a local authority health and safety inspector is now statistically likely to receive a visit from an inspector once every 20 years. I would imagine all of us, however civic minded and potentially law abiding, would be less likely to buy a train or tube ticket if we knew we would only be checked that we had it once every 20 years.

 

The Q&A with Tom Wall was originally published in Environmental Health News, the online journal of the Chartered Institute of Environmental Health on 4 May 2016, at http://www.ehn-online.com/news/article.aspx?id=15514. Steve Tombs would like to thank colleagues at the Centre for Crime and Justice Studies, HERC, engage@liverpool and UNISON for their support in this project.