Inquests, Legal Aid and time for change - now!

The lack of availability of legal aid for Inquests is in the news again. We have already had the controversy of the refusal of legal aid for the family of Molly Russell whose death was thought to be linked to Social Media. This decision was eventually reversed by the Legal Aid Agency after wide criticism –

https://thestevecornforthblog.blogspot.com/2019/03/molly-russell-instagram-and-legal-aid.html

In August 2019 there was a further outcry when families of the Manchester Bombing victims faced a similar struggle –

 https://thestevecornforthblog.blogspot.com/2019/08/legal-aid-hashem-abedi-and.html

Now the families of victims of the 1974 Guildford Bombings have been refused Legal Aid for representation at fresh inquests. This incident led to one of our most shameful miscarriages of justice when the Guildford Four and the Maguire Seven were wrongly convicted and spent up to 16 years in prison. In the meantime, the families of the victims still wait to find out the truth.

https://www.bbc.co.uk/news/uk-england-49484921

To most people this is a case where the availability of legal aid should be beyond debate. The public bodies involved will have full representation paid for by the state. As things stand, the families will have none – unless they can pay for it, or their lawyers continue to act for nothing. 

This is due to the very restrictive rules on legal aid for inquests. There is no entitlement as such. Funding is available in ‘exceptional circumstances’. There must be a wider public interest, not in the inquest itself but in the family being represented. These are going to be long and complex inquests with significant and expensive legal representation by some of our top QCs. It is clearly in the wider public interests that the families of those who lost their lives have the same representation as the police and the MOD. Why should they be left to fend for themselves?

In this case the Coroner himself has written to Legal Aid Agency but there is no guarantee that this will make a difference. The time has surely come for a change in the rules. The charity, INQUEST has longed campaigned for a right to full, non means tested legal aid for families at inquests involving deaths that are ‘state related.’ They say on their website –

‘Without funded representation, families are denied their voice and meaningful participation in the processes of investigation, learning and accountability. This inequality of arms is an unacceptable curtailing of justice, undermining the preventative potential of inquests, to interrogate the facts and ensure harmful practices are brought to light. Inquests following state related deaths are intended to seek the truth, to expose unsafe practices and abuses of state power. But the reality faced by most families is of multiple expert legal teams defending the interests and reputations of state and corporate bodies - fighting to shut down or narrow lines of enquiry, with a primary focus on damage limitation.’

https://www.inquest.org.uk/legal-aid-for-inquests

There is a call to action on their site which invites readers to sign a petition. That is one small action that we can all take. This should not be controversial. Why should those who suffer most, be the only ones excluded from the process.

 www.stevecornforth.com

Justice on the verge of collapse - (let's pile some more on top)

Anyone who has read this blog knows that I do not pretend to be an expert in criminal law. I did spend a couple of years at the start of my legal life, hanging around Liverpool Magistrates Court. It was a terrifying experience – and that was just the magistrates and some of the older lawyers who seemed to know everything, and everyone compared to me! I also spent some time sitting behind impressive barristers in the glorious setting of St Georges Hall in Liverpool*. But that is the extent of my life of crime.

But as someone who was worked as a lawyer for over 30 years, I do care about justice. I also spend far too much time on twitter…

On Friday I read several tweets about shortages of courts and the impact that this was having on our criminal justice system. Here are just some –

There are several causes. One explanation is that there are simply not enough judges available. There are part time judges; practicing lawyers who can sit as judges when needed. But this would cost the Ministry of Justice (MOJ) money – something that they do not have. This, however just scratches the surface of the collapsing criminal justice system. This was brought to the attention of the world by the Secret Barrister’s now Classic book. If you haven’t read this, stop what are doing and get hold of a copy…now!

https://www.amazon.co.uk/Secret-Barrister-Stories-Law-Broken/dp/1509841105

We seem to be witnessing a systematic dismantling of our criminal justice system which is starved of resources at all levels. Defendants wait months, even years to be brought to trial. Victims wait just as long. Nervous witnesses wait just as long. Hard working, underpaid lawyers are sent home…

Our political leaders are doing something. The Home Secretary, Priti Patel has promised that criminals will feel terror at the thought of offending. We are promised more police officers, greater use of stop and search and as a result many more prosecutions. That is music to the ears of many of her fans. But it is empty rhetoric. The system is already on the verge of chaos. The answer is not to pile more and more on top.

Where is the pledge to invest in the courts system?

Where is the pledge to invest in the CPS?

Where is the pledge to invest in a proper legal aid scheme enabling all these extra defendants to be represented?

Sadly, none of these are vote winners.

The real terror is that a person accused of an offence, and a victim of crime will wait years and in many cases find themselves lost in the system that cannot cope.

*thanks to my friend Phil Longfoot for the beautiful photo of the old No1 court.

www.stevecornforth.com

Legal Aid, Hashem Abedi and understandable anger

There is much anger in the media today about the news that Hashem Abedi, brother of Manchester bomber, Salman Abedi will have the benefit of legal aid to defend criminal proceedings brought against him. The Daily Mirror complains that he will have public funds to cover his legal costs whereas the families of victims have struggled to get legal aid for representation at the inquests.

https://www.mirror.co.uk/news/uk-news/manchester-bombing-victims-denied-legal-18831172

The anger is, on this occasion, entirely understandable although the basis of the argument itself is flawed.

We have two different types of legal aid in play here. Mr. Abedi is entitled to state funded support because he is being prosecuted by the state. The Government’s Guidelines for Criminal Legal Aid say that the more serious the charge or possible consequences, the more likely it is that a Defendant will be granted legal aid. It is inevitable that he will face a trial in the Crown Court. Cases before that court are deemed to satisfy that test of seriousness. There is no real argument against Mr Abedi having legal aid for his defence. It is an entitlement for those facing action by the state. It is not deserved or earned by merit. It is there to ensure that those who might be imprisoned by the state are properly represented.

This is very different from Civil Legal Aid to enable families to be represented at an inquest. There is no automatic entitlement. Funding can only be granted in exceptional circumstances. Those circumstances are as follows –

‘In the context of an inquest, the most likely wider public benefits are the identification of dangerous practices, systematic failings or other findings that identify significant risks to the life, health or safety of other persons.'

I recently discussed this in relation to the case of Molly Russell whose family were, initially, refused legal aid despite the major concerns about the role of Social Media in her death.

https://thestevecornforthblog.blogspot.com/2019/03/molly-russell-instagram-and-legal-aid.html

The Manchester bombing inquests are clearly of major public interest. What greater example of an event that involved significant risks to life, health or safety? Of course, the families should be granted legal aid. This was an atrocity of such magnitude that no expense should be spared to ensure that the families have answers to the questions, and so that we can be re-assured that no stone will be left unturned. We want to know what can be done to ensure that this never happens again. It should be an automatic entitlement to state funding, that does not depend on the finances of the families –

https://www.theguardian.com/uk-news/2019/aug/03/families-of-manchester-terror-victims-must-declare-valuables-to-get-legal-aid

The argument is not – ‘they don’t get legal aid so why should he?'

Both should be equally entitled to legal aid for different but extremely important reasons.

Introducing this year's Justice Secretary!

Almost all the Harry Potter books feature an introduction to the new Professor of Defence Against the Dark Arts. This is usually because the previous incumbent has come to a nasty end in the previous book.

All of which brings me to the latest Secretary of State for Justice, a position which is renewed with similar regularity, possibly for similar reasons. Our latest Lord Chancellor is Robert Buckland QC, who was previously, Solicitor General and then Minister of State. Firstly, it is encouraging that for the second appointment in a row we have a lawyer in the most important legal role in government! Long gone are the days of Liz Truss, who failed to speak out in defence of the judiciary following the infamous ‘Enemies of the People’. Going back even further there was that other guy; the one who gave a ferry contract to a company with no ferries.

In Robert Buckland we have a lawyer who was previously a working barrister and who spent time on the bench as a Recorder from 2009. When did we last have a Lord Chancellor who has served as a judge?  He should understand the real world of law and justice.

Indeed, he has received a major testimonial from none other than @BarristerSecret who tweeted –

‘Gosh. A sensible appointment. I’m a little lost for words.’

He also worked under David Gauke. I think that most of us would agree that he did a reasonably good job within the huge financial restrictions imposed on the MOJ. His work on prison reform was encouraging. Mr Buckland will hopefully bring some continuity to a role where it has been sadly lacking for many years. He has also previously served on the Joint Committee on Human Rights.

On the downside, he has voted against laws to promote equality and human rights –

https://www.theyworkforyou.com/mp/24843/robert_buckland/south_swindon/divisions?policy=6703

He also supported the massive cuts to Legal Aid –

https://www.theyworkforyou.com/mp/24843/robert_buckland/south_swindon/divisions?policy=6707

But then, he is a Conservative Minister, so we world hardly expect him to have risen through the ranks if had had not toed the line. Whilst his party remains in government, these attitudes will go with the territory.

But, on balance, he is as good as we might expect this side of a General Election.

At a time when the world of politics has never been in greater turmoil, he brings to the table an experienced pair of hands who knows far more about the real world of law, than many of his predecessors.

www.stevecornforth.com

The discount rate, fair compensation and a predictable ABI response

I have written before about the discount rate. It is an extremely important part of our system of compensation for injured people, despite its rather understated name. In short it is a principle that tries to ensure that victims are not over or under compensated. The rate is what an award of damages is assumed to earn over a long period of time.

The idea of compensation is to put the victim in the position they would have been in, but for the incident.

For example; Alan, who is 45, has an accident at work. He is so badly injured that he will never work again. He earns £20k a year and would have worked to 65. He has lost 20 years earnings at £20k. But if he wins his case, he does not simply get 20 x £20k - £400k. Because that would not be fair on the insurers who pay the damages. Alan would be receiving money now that he would not otherwise have earned for many years. If he was to put that money on deposit, it would earn interest and he could end up with a lot more that £400k in 20 years’ time. So, the number of years that he actually receives is calculated by reference to what his money might be worth at that time. This can be even more important for victims who require high levels of care for life.

For many years, the assumption was that the money would earn 2.5% per annum. A victim is assumed to place the money in sensible, safe investments. This significantly reduced the amount of any lump sum that the insurers pay out. The £400k would be discounted to less than £350k. So it is important, for all concerned that we get this right. Whilst the rate was 2.5% there was a huge risk that money would run out, at a time when real interest rates were nothing like that amount.

In 2017 the government dropped the rate to -0.75%. This was a huge relief for victims and led to far more realistic awards of damages. It also led to a predictable outcry from the insurance industry who were having to pay out more money. Their powerful lobby led the government to promise a review of the rate. We have all waited with eager anticipation for today’s news of what the new rate is. Any significant increase, in the current economic climate, would have taken us back to the bad old days. I have pessimistically been predicting an increase to 1%, particularly in the light of the present government’s affection for their insurer friends. It was a pleasant surprise therefore to see that the new rate is -0.25%. It could have been better, but we expected far worse! I am never slow to criticise this government, but they have got this one, at the lower end, of just right.

The reaction from the ABI was swift and predictable. Their director General, Huw Evans says –

“This is a bad outcome for insurance customers and taxpayers that will add costs rather than save customers money. A negative rate maintains the fiction that a claimant and their representatives will knowingly choose to invest their damages in a way that would guarantee losing them money. This will remain the lowest Discount Rate in the Western world, leaving England and Wales an international outlier at a time when we need to boost our attraction to international capital.”

Note that he claims to complain on behalf of insurance customers and taxpayers and not his members’ shareholders. Most citizens would agree that a modern system of justice must ensure that people who need care for life do not need to worry that their money might run out. He then, rather bizarrely, seeks to compare the rate with that of other countries. Why would the assumed rate of interest earned on damages in this country have anything to do with other countries? I don’t expect the volume to be turned down any time soon. Equally I doubt if we are going to see another review unless a new PM has a rush of blood to the head. Mind you....

I do hope that this rate now stays at the same level for a very long time so that victims and their representatives can plan for the future with some level of certainty.

www.stevecornforth.com

Everton, Lawyers and knowing your history!!

Outside the Evertton Boardroom at the Liver Building

It is truth, universally acknowledged, that I am an Everton FC fan and proudly bitter.

This was of course the background to my recent ‘walk of shame’ for charity where I raised £1000 for wearing a shirt of a certain other local team. No, I am not posting a photograph. There is no shortage of them around! –

https://thestevecornforthblog.blogspot.com/2019/06/legal-aid-red-shirts-and-why-i-would.html

I recently visited Everton’s new HQ in the iconic Liver Building. I was discussing the development of links between the club and the local legal profession. In fact, those links go back almost to the birth of the Football League.

William Cuff was a Solicitor who was a Director at Everton from 1894 and was closely involved in the club’s development for almost 50 years. One of his claims to fame was introduction of shirt numbers. It was in the 1933 FA Cup Final that numbers were first used although they did not become obligatory until some years later. He was also President of the Football League in the 30s and 40s. His obituary from 1949 was posted recently by the Everton Heritage Society –

http://efcheritagesociety.com/?p=106

His firm Cuff Roberts continued a long association with Everton. In later years Keith Tamlin of what became Cuff Roberts North Kirk served as a Director until 2004.

The links between Everton and local lawyers is not all about history. Former player Gareth Farrelly is now a qualified Solicitor and works for Liverpool firm, Bermans as a commercial litigator. I met Gareth a few years ago when we were both taking part in a sleepover at Goodison Park to raise money for Homelessness charities. As we unrolled our sleeping bags in the Park End, I was able to tell him that we were sleeping at the exact place where I was sitting when he scored his famous goal in 2008 that kept us in the Premier League.

https://www.bermans.co.uk/gareth-farrelly/

On a different level, it is unusual not to bump into a fellow a lawyer on any given match day at Goodison. I have many ‘red’ friends who would disagree, but the Peoples’ club is in many respects also the Lawyers Club!

There is no shortage of Hospitality opportunities at Goodison where the various lounges are undergoing extensive renovation –

https://www.stadia-magazine.com/news/evertons-goodison-park-lounges-undergo-major-renovation.html

https://www.evertonfc.com/hospitality

www.stevecornforth.com

Medical Negligence - let's talk about victims not winners

The first time I secured a settlement in a brain injury case was in the late 1990s.  It was a claim for a child who suffered from cerebral palsy following medical negligence in the first few days of his life. He was left with catastrophic injuries. He has no speech and no independent movement but is otherwise as intelligent as anybody. We secured a settlement of just over £2m. As is often the case, I kept in touch with the family for many years. I was so proud when he got his University degree. He is now an adult who lives independently, with lots of support. This was secured as a result of the compensation that he received. It enabled him to live in suitable accommodation, to have the 24/7 care that he needs and to make use of high-quality communication technology. He was appropriately compensated for the avoidable injury that he suffered. Both he and his family would have traded every penny for a healthy life.

High awards of damages sometimes look like lottery wins. They are often treated as such by the media. Reports of settlements like this regularly use words like ‘win’ and ‘payout’. Earlier this year, The S*n reported that a group of patients had won £46.9m over cancer blunders –

 https://www.thesun.co.uk/news/8394045/patients-win-50million-in-cancer-blunders/

In a very recent report, we were told of a boy who was severely disabled after medical negligence. The headline reads –

‘Boy left severely disabled by medical blunder wins £2.1 million pay-out from NHS’

https://www.thetelegraphandargus.co.uk/news/17683980.boy-left-severely-disabled-by-medical-blunder-wins-21-million-pay-out-from-nhs/

None of these victims have won anything. They and their families are left with a lifetime of struggle through no fault of their own. If they can establish that the injuries were caused by the negligence of medical practitioners, then they are entitled to damages. A small proportion is for the injury itself. The vast majority is to cover their needs for life.

Hasn’t the time come to stop calling them ‘winners’? This creates a hostility towards claimants who are perceived as draining money from the NHS. There is an even greater hostility towards the lawyers who fight for justice on their behalf. Since the removal of legal aid for most cases, the only way that cases can be brought is where those lawyers agree not to be paid if a case fails. The media still insists on calling them 'no win no fee lawyers'  as a form of insult.

Let’s start referring to claimants as victims of negligence. Then we might see a move away from talk of reducing damages and legal costs, towards talk of avoiding such incidents in the first place.

 http://www.stevecornforth.com/news