A year as a litigant in person – and why I’ll never be one again: Part II

 

Dr Stephanie Pywell continues her reflection on the emotional impact of navigating the court system as a litigant in person. 

At the beginning of my previous post, I mentioned my belief that most small claims are settled by mediation, which is a form of alternative dispute resolution. Each party puts their case to a mediator, who usually has legal training, and the mediator relays that case to the other party. It seemed obvious that this was how my case should end, because the company and I both ticked the box indicating that we thought the case was suitable for referral to the Small Claims Mediation Service. The following sentence immediately followed the box: ‘Please give your contact details below – if all parties agree to mediation your details will be passed to the small claims mediation team who will contact you to arrange an appointment’.  This gave me an underlying confidence that, although the case was causing me a huge amount of stress, it would never actually get to court, and my only loss – apart from sleep and hair – would be £30.

In September, I queried why I had received no communication from the Small Claims Mediation Service; the reply was that ‘information can be found on the internet.’ I discovered that litigants must email the Small Claims Mediation Service to request appointments, and that appointments cannot be moved because of timetabling constraints. I listed the dates on which I would not be available, and then felt anxious every time I arranged anything, in case there was a clash of dates. I need not have worried: I never received a mediation appointment.

As there had been no change to the 6 November deadline by which I had to provide all my documents to the court, and pay the £80 fee, my husband and I spent most of the last Sunday in October writing detailed witness statements. My statement included references to 20 other documents, and I spent three evenings printing and collating three folders of all the documentation. On Friday 3 November, my husband went to the local court to deliver two folders of documents and £80 cash. There was no system for acknowledging receipt – he was told to put everything in ‘the postbox on Level 5’, and he returned home with no proof that he had ever visited the court. I hardly slept for the whole weekend, and constantly thought about the injustice that I assumed would ensue if – as seemed very likely – HMCTS mislaid the cash, the folders, or both. I discovered on Thursday 9 November that everything had been safely received, and that the company had missed the deadline for submitting its documents, so I finally felt confident that I would win.

The company’s solicitor consistently treated me with contempt. He acknowledged only one of my nine emails and, on 13 December, he offered me £352.50 ‘in full and final settlement’. I worked out my costs, including the trial fee, and responded that I would settle for £811.07 in my bank account by 5:00 pm on 20 December, but that I was content to go to court if the company wished to do so. I received no reply.

At 9:53 am on 21 December, the solicitor emailed to state that £705 had been paid into my account, that I was not entitled to anything else, that the case was at an end, and that ‘we have notified the court’. I felt bewildered and panic-stricken, since I did not believe that a defendant’s solicitor could end a case after paying a sum less than the claimant had specified. I was still shaking half-an-hour later, when I received an email from HMCTS stating that the hearing, which was scheduled for 10:00 am the following day, had been transferred to a court over 20 miles away. I suspected that the solicitor was trying to trick me out of not attending the hearing, so that the court would decide in the company’s favour.

My repeated calls to the solicitor’s mobile phone and his firm’s landline were not answered, so, at 4:00 pm – just one business hour before the hearing – feeling desperate, and with no idea what to do, I phoned HMCTS. I explained that I feared I could be penalised for non-attendance at the hearing, and I was told that I had the option of going to court or cancelling, but HMCTS could not tell me whether the case had been cancelled by the defendant. In something close to physical panic, and feeling under huge pressure, I cancelled, because I was afraid that a judge would not be sympathetic to my wasting the court’s time for £80 on the last working day before Christmas.

The next morning, I spoke to one of the solicitor’s firm’s partners on the phone. He was startlingly rude, and repeatedly interrupted me with exclamations including ‘Let me ask the questions!’ and ‘It’s Christmas!’. Twenty-four hours later, he sent me an email, falsely alleging that I had ‘ranted’ on the phone, stating that the solicitor had ‘confirmed that the case was settled’, and ending: ‘I would now prefer to enjoy my holiday.’

I was convinced that the solicitor and partner had breached the Solicitors Regulation Authority (SRA) Code of Conduct, so I emailed the SRA on 30 December. The complaints in my first two emails were summarily dismissed, but I persisted in respect of the solicitor; I had insufficient evidence against the partner. An email that I sent on 20 February elicited a response that the SRA would make some enquiries with the firm. On 12 April, the SRA’s letter conceded that the solicitor’s email telling me that the case was over ‘could have been clarified further to avoid uncertainty’. The letter also stated that the SRA had ‘advised [the solicitor] that he may wish to ensure his communications are qualified in full when dealing with litigants in person’. The solicitor had told the SRA that he had ‘miscalculated’ the amount due to me – which I had clearly set out in the only email that had included the bank details that he had used – and that his client would repay the £80 if I could prove that I had paid it. I responded to the SRA, pointing out a number of inconsistencies in the solicitor’s alleged statements. The initial response was, worryingly, a letter to another complainant. I subsequently received my own letter, which brusquely dismissed my outstanding questions.

I abandoned the unequal struggle, and formally requested a refund of the £80. I was unsurprised that the solicitor did not acknowledge my email, but the money was paid into my account on 24 May, 50 weeks after I had started the Money Claim Online. It had been one of the longest periods of low-level stress that I have ever experienced, and I intend never to put myself through such an ordeal again.

The only unusual thing about this case was that, unlike most LiPs, I am highly educated, have a good awareness of the law, family support, financial security and a well-equipped home office. I was fighting for something that I could afford to lose; many LiPs are fighting for things that really matter, such as their livelihoods, their homes or access to their children. I can only imagine the stress that they must feel when they open the envelopes containing – or not containing – repetitive, incomprehensible and error-strewn communications from HMCTS, or receive patronising and hostile emails from lawyers. I hope that, by recounting my humiliating experience, I may help to improve the experience of future LiPs.

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A year as a litigant in person – and why I’ll never be one again

In Part I of this guest post Dr Stephanie Pywell reflects on her experience as a litigant in person. The insights she offers will be particularly useful to OU students working on public-facing Open Justice projects such as the advice clinic, Citizens Advice and the Personal Support Unit. 

Part I

This is the first of two posts reflecting on a year during which I was a user of the civil court system in England and Wales, and the emotional effects of my experience.  I have an LLB and a PhD in law, and I write about the English legal system, so I knew (or thought I knew) that the procedures for small claims – those for less than £10,000 – are simple, and that cases are resolved quickly. I also believed that most small claims are settled by alternative dispute resolution – probably, in this case, mediation – rather than actually going to court. This experience has taught me that there is a huge gulf between academic theory and reality.

I knew that I had a strong case. On 1 February 2017, my husband and I had placed an order marked ‘URGENT: 6–8 weeks’ for a composite front door fixed within a uPVC arch. 15 weeks later, a fitter had arrived with an arch that did not fit our house, and could not be adjusted. The company had therefore not fulfilled its obligations under the contract, and we were entitled to a refund of our £645 deposit. After three phone messages and three signed-for letters, the company’s managing director (MD) had failed to contact us to discuss the refund. On 6 June, in accordance with the warning in our third letter, we started a legal claim to recover the money.

My confidence that I could handle this matter was reinforced by the ease of starting a Money Claim Online – the form was short and simple. Its only disconcerting feature was that there was no space for a second name so, although my husband and I had jointly entered the contract, only one of us could be formally identified as the claimant. I have more legal knowledge than he does, and I do virtually all our household admin, so there was no debate. Less than half-an-hour later, I had become a litigant in person (LiP), because I had not instructed a solicitor or Chartered Legal Executive to pursue the claim on my behalf.

LiPs are rapidly increasing in number – due largely to the £350 million reduction in the civil Legal Aid budget in 2013 – but very little research has been done into their experiences. Lord Dyson, a former Master of the Rolls and Head of Civil Justice, recognised this trend; he wrote in 2012, in his Foreword to A Handbook for Litigants in Person:

Access to justice is a right not a privilege… Over the last ten years there has however been an increase in the number of individuals who have, for various reasons, pursued and defended claims on their own behalf: they have been and are litigants in person (or self-represented litigants). It is anticipated that in the years to come the number of litigants in person will increase and perhaps will do so sharply.

Most of the scant academic literature focusses on LiPs’ effect on the civil justice system, rather than the civil justice system’s effect on LiPs, and this post is an attempt at redressing that imbalance.

On 8 June, the MD telephoned. He told my husband that the door and arch had been scrapped, then offered either a refund of our £645 deposit, or £300 off the total cost. My husband said we also wanted the £60 claim fee, since it was the claim had prompted the MD to contact us. The MD said ‘I’m not paying that’, so my husband said that he would have to discuss the matter with me. As we had lost all confidence in the company and the MD, and there was no door and arch that fitted our house, we wrote to the MD requesting a refund of £705.

I received my first envelope from HM Courts and Tribunals Service (HMCTS) on 22 June.

A striking feature of this, and much of the subsequent, correspondence was the number of errors that it contained. As well as mistakes in spelling, punctuation, Spurious Capital Letters and grammar, there were duplicated letters in the same post, the inclusion of a long-outdated 0844 telephone number for a court, and the omission of some important enclosures. The most significant omission was the response pack that I was instructed to return because the company decided to sue me by counterclaiming for £2,932.50, allegedly because my husband and I had not allowed them to return to our home to fit the (non-existent, non-adjustable) ‘adjusted arch’. My first phone call to HMCTS elicited a promise that the pack would be sent; eight days later, scared that my (unspecified but limited) time to reply was running out, I rang again, and was told that I could simply print my response on plain paper.

Much of the correspondence would not have been accessible or comprehensible to someone without at least a rudimentary knowledge of legal procedure. Documents had titles including: ‘Notice that Acknowledgment of Service has been filed’, ‘Defence and Counterclaim (specified amount)’ and ‘Notice of Allocation to the Small Claims Track (Hearing)’. Although some of the forms were written in plain English, some seemed designed to confuse naïve readers. Someone who knows nothing about the law has to remember that the person who starts the claim is the claimant, and the person against whom the claim is made is the defendant, so they would find these sentences (on the Notice of Transfer of Proceedings) baffling:

As you will be responding as the defendant to the counterclaim, please read and complete the response forms listing yourself as the defendant. This does not apply to the Directions Questionnaire, where you should still list yourself as the claimant.

My defence to the counterclaim was checked by a friend who is a barrister, and his first reaction was that I had been incorrect to refer to myself as ‘the defendant’. If even practising lawyers can be confused by the terminology, there is little hope that LiPs will master it.

I encountered some examples of incompetence in basic clerical matters, too. HMCTS lost my Directions Questionnaire and requested another copy of it, but they did not send me a replacement form or instructions about how to download one. Fortunately, I had a scanned copy. After I had printed and forwarded another copy, I received notice that the hearing was scheduled for Monday 4 December, a date on which the twice-sent Directions Questionnaire clearly stated that I would not be available. The hearing was re-scheduled for Friday 22 December, but HMCTS did not change the deadline of 6 November for the submission of detailed documents, and the payment of an £80 trial fee, to the court.

I felt as though I had three opponents: the company and its non-responsive MD, the company’s unhelpful solicitor (who ignored my four offers to split the claim fee and settle immediately for £675), and HMCTS, which I no longer trusted to do anything properly. I spent much of the time feeling very stressed and anxious, I dreaded the arrival of every day’s post, and I was nervous every time I opened my email inbox. I lost a huge amount of sleep, my stomach lurched every time I heard any court-related words (which is very often, given that I’m a legal academic), and my hair started to fall out. I told only two family members and four very close friends what was going on, because I was afraid that I would cry if I had to recount the story to anyone else.

Everything that I have described so far happened before 11 October 2017; I had no idea how much longer things could – and would – last …

 

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An OU law student’s journey into government

We are pleased to be able to publish a guest post ‘Lawyers in Government’ by James Coupe.

James is a former OU law student and offers some comments on his experience studying law with the OU to give some additional background to his article.

Before studying with the Open University, I was working as a technical author for a software firm, which involved writing a lot of documentation for telecoms products and networking protocol stacks.  I already had a degree and was enjoying my job, but was itching to do something to keep my brain going.  I wasn’t, initially, looking at switching career. 

 

I was a bit unsure on exactly what I wanted to study – politics and international relations were other subjects I was thinking of – but after doing some casual reading around, I settled on law.  I had looked at some other universities too for part-time/evening study but the flexibility of the OU was a key factor in my decision.  In particular, I was working full-time and didn’t want to stop or reduce my hours.  I dipped my toe in the water with the OU module W100, which was similar to the current W101 module.  Initially, I wasn’t sure if distance learning would be for me, but found the motivation of TMA deadlines kept me on the straight and narrow.  I signed up for the next module, and then the next…  It was only towards the end of my third year (of five, for me) that I really started thinking seriously about switching career. 

 

After finishing my degree with the OU, I took a couple of years off before starting the LPC with the University of Law.  I studied part-time over two years at weekends, at the London Bloomsbury campus.  Study weekends were held every 2-3 weeks, with reading and online materials to work through in between, although some of the formal assessments fell on weekdays.  That I could fit this around my job was an important factor for me as I was still working full-time.”

LAWYERS IN GOVERNMENT

 What does the average day in the life of a Government Legal Department (GLD) trainee look like?  Honestly, it changes all the time, and I know the experiences I’ve had are different from those of my fellow trainees.  The teams we work with from Government departments and the wider Civil Service are large and diverse, with lots of different things going on all the time.

So, what sorts of days have I had?  Some are very varied – one day in a litigation seat, I went to the Court of Appeal, for an hour or so in the morning, to listen to a permission hearing for a colleague. I then headed back to the office and briefed her on the outcome, including an unusual ex tempore judgment given there and then. After which I spent a couple of hours redacting some documents needed for another case, proof-read a witness statement for a colleague in a third case, and spent some time doing some research into the likely range of damages (if a claimant was successful) in a fourth.  In a different seat on advisory matters, I spent a couple of days digging through Parliamentary debates, whitepapers and public statements to try to understand the motivations for a particular section of an Act of Parliament from a couple of decades ago which was, I promise, much more interesting than it might sound, with some fascinating nuances.  Most days are somewhere in between the two.  Work-life balance is extremely important to GLD.  Yes, you’ll probably be quite busy, and yes, you’ll have some tight deadlines from time to time, but you won’t be expected to work round the clock.  I can personally attest that senior lawyers will chase you out of the building if they see you working too late.  It’s often possible to arrange a ‘family friendly’ working day e.g. starting and leaving early so that you can pick up your children from nursery at the end of the day, while your partner drops them off in the morning.

 

Your supervisors and colleagues will be keen to ensure that you get a good mix of work.  A little admin work is inevitable!  Preparing trial bundles is a key task in litigation, and for cases you’re working on you’ll very often be best placed to know what documents you have, what information they provide, and how you think they should be arranged.  A well-prepared bundle can make everyone’s job at a tribunal much smoother.  However, each of your supervisors will be keen to involve you in substantial work from day one – drafting statements of case, advising clients on the merits of their litigation, researching information, drafting some of the simpler parts of a statutory instrument, advising your client on potential legal risks around their proposed policies, and a great many other things.

 

Who do you work with?  GLD provides legal services to most of government, so you can find yourself working with a very wide variety of departments – the Home Office; Treasury; Education; Transport; International Trade; Business, Energy, and Industrial Strategy; Housing, Communities, and Local Government; and many others. Your training is structured around four different seats of six months each.  You start with two litigation seats such as commercial disputes, employment litigation, defending judicial reviews etc., and then do two “advisory” seats.  During each of your advisory seats you can expect to be co-located with your client department. You’ll be asked for your preferences for the advisory seats before they’re allocated and GLD will try hard to match people up to the departments they want to go to, subject to the spaces available.  Barristers follow the same route as solicitors (although pupillage technically lasts only one year) but with the second litigation seat spent in a set of chambers.

 

There is lots of excellent training to help you develop.  Some of it is on themes that matter a lot to government generally – such as the processes behind creating statutory instruments, what powers ministers have, or the public sector equality duty – but also on matters particular to the teams you’re working with.  Many LPC courses don’t include much by way of public law, and some of the topics you might have covered on your LPC/ BPTC have additional quirks when working within government.  For example, the way employment law works is slightly different for Crown servants and the armed forces, and the duty of candour is different from ordinary disclosure rules in litigation.

 

Working in GLD can be a bit different to the private sector.  As well as being a lawyer with professional obligations, you’re also a civil servant with the obligations that brings, particularly around objectivity and political impartiality.  Some things you work on might have wider implications for setting precedents, so they may have different implications than if you were advising a private sector client.  A lot of advice is based around assessing the legal risks on implementing particular policy ideas.  However, like your friends in the private sector, the skills of problem solving and commercial awareness are just as valuable – your colleagues developing a policy may have a suggestion that is legally risky or impractical as it stands, but where you can work with them to develop a more robust solution that still meets their goals.  If you’re coming from another career, any experience you have of time management, working with clients, and managing expectations will stand you in good stead.  Being comfortable with online tools like Lexis, Westlaw and Practical Law is helpful too.

 

The application process

 

The application process is all about your ability to pass the online competency based assessments.  The precise details may change from year to year, so do check the information on the website.  When I did it, the application form included a situational judgment test, and later steps included timed online verbal reasoning and critical reasoning/Watson Glaser-style tests.  Do some practice tests if you can, particularly to be comfortable with answering questions in the time – don’t get distracted by one tricky question and find yourself with 30 seconds to answer the last five.  Some other potential employers in the private sector use very similar tests.  If you get through these tests, you’re invited to a half-day assessment centre. The assessment centres usually run on a range of dates in mid-late August.  There was also a webinar to explain the assessment centre to us, and to allow us to ask questions.

 

My assessment centre started with a written task based on a bundle of materials provided on the day. The materials set out a short legal problem, which had a bit of a public law flavour, on which you were asked to give your views (and reasoning for these), to a supervisor or policy colleague.   The actual legislation involved was fictional, so it was new to all of us (and no credit was given for prior legal knowledge).  Time was pretty tight, and I was typing frantically to the end.

 

After a short break, I had a follow-up face-to-face interview where I was asked about my written answer, before moving on to being asked to give examples of how I had previously demonstrated the competencies required for the role. The competencies (which are listed on the www.gov.uk/gls website) are drawn from the Civil Service Competency Framework. It is recommended that you keep the STAR approach in mind when answering the interviewers’ questions (i.e. when giving an example explain the Situation, Task, Action and Result).  It’s worth knowing that the interviewers – two lawyers, and an independent chair – don’t know your academic background when interviewing you, nor is this a factor when decisions are made on who to offer places to.  GLD genuinely wants the best people they can find, regardless of which schools or universities they attended, or their A level grades.  When they analyse the results afterwards, offers usually go to people from a diverse spread of universities, with mature students and career switchers in the mix too.

 

Finally, I would add that it is not only GLD which recruits legal trainees. Each year, other government departments such as HMRC (Her Majesty’s Revenue & Customs) and NCA (the National Crime Agency) also tend to offer trainee places through the same legal trainee recruitment process. In 2018, I understand that the Competition and Markets Authority (CMA) will also be joining in. If you reach the final stage of the recruitment process and are invited to the assessment centre, you will be given an opportunity to express a preference for a particular department.  This preference will be taken account of, where possible, when the trainee places are allocated.

 

The application process for the 2018 Government Legal Trainee Scheme will open on 2 July 2018.

 

Around 50 legal trainee places (training contracts and pupillages) will be available, primarily for those looking to start a training contract/pupillage in September 2020. There are also likely to be a small number of trainee places available for those ready to start sooner.

 

For further details, please visit: www.gov.uk/gls

 

 

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On public legal education, pro-bono and spas

Today’s post is by final year OU law students Lidia Dancu, Hannah Dowling, Ayesha Khurshid and Samina Nasir and reflects on their contribution to Open Justice Streetlaw worskhops in Scotland and Newcastle during March and April 2018.

What is the best test of your understanding of the law, if not the ability to explain its practical application to a roomful of teenagers?  Not just a roomful but an assembly kind of roomful – all of them perhaps more excited at the prospect of being able to skip Maths than a meeting with some wannabe lawyers.

For final year students at the Open University, most of whom carry the burden of other careers, work, families, children and dealing with all the challenges which come with the territory of studying (often later in life, sometimes the second time round), having to ‘go out in the field’ can sometimes be not only an onerous, but also a daunting proposition.  But one, which once reflected upon, brings with it not only increased learning and an array of new-found legal skills, the satisfaction of having met those challenges head-on and having overcome them, but also the potential to step into a renewed position of increased confidence and authority.

And so it was that we somehow shakily committed to participation in the Open Justice’s public legal education exercise in what turned out to be a series of four sessions of presentations running at schools in Scotland and the north of England, over the course of one week.  The hours spent trying to connect with one another over the internet, the phone and various communication applications, as well as planning carried out in tutorials and a number of meetings, will remain countless. It will suffice to say that there were many of those hours and that frustration characterised a large percentage of it.  We joked that at the end of this crazy exercise they imposed on us that the Open Justice team must send us to a spa, having committed themselves (rather foolishly for a department teaching practical law) to giving us ‘any support we needed’ and failing to attach any limitations to their liability.

As “The Week” drew nearer, we decided that meeting in person, for those of use who could manage it, was highly necessary in order to get to know one another and identify our strengths and weaknesses.  That meeting was invaluable and set the tone for a fantastically successful week of presentations, where we somehow succeeded in giving the impression that we were a coherent team with all the confidence and professionalism necessary to authoritatively speak to young people on legal matters.

In those moments before the first presentation we were somehow propelled into functioning as a team, encouraging and supporting each other and quickly stepping in for one another when necessary.  Each session was different and we were able to go from strength to strength by discussing what was going well or less well and, adjusting and improving, which all culminated in an excellent final session at the end of that week.  We managed to deliver a smooth and engaging experience for the students, the staff, and for one another, and in the breathing spaces we found real enjoyment of the task at hand.  We learned a huge amount about the topics we presented on, the focus allowing us to look into areas which we might not have otherwise had the opportunity to explore.  Nervousness turned to confidence in a matter of minutes.  We were lucky to work with people who turned every challenge (like being presented with a hall full of fidgety teens, or a room of 8 unresponsive ones) into an opportunity to take control, to engage and to inspire, or even rule the roost where necessary!

Reflecting on it now we can safely say that a few specific things that we did, made our week of presentations into a success story.  If we were to list them here, it would go something like this:

  1. Plan for everything.  You wouldn’t think it, but even ‘plan D’ often comes in really handy.  Have variations on every interactive sessions for different levels of interest and engagement.  Remember that proper planning and preparation prevents pathetically poor performance.
  2. Communicate with your team members and your tutor who is there to help and support (we were lucky there too, here’s to great tutors who become more like friends – yes, we mean you, GM!).  From as simple as exchanging contact details, to keeping people posted about your progress and areas you need help with or which you are unable to manage.  Communicate with your students, engage them and let them engage you. Be open!
  3. Participate in the group work as much as you can.  Life goes on for us all, pulling us in all sorts of directions, but what you get out of anything, is directly proportional to what you put in.  Take part!
  4. Listen actively to what others have to say to you.  Your quietest teammate may have the most brilliant idea, or your own seemingly genius scheme could fall flat on its face in the classroom.  Listen to the student’s questions as they are learning too; from them stems your own deepest learning.  Be all ears!
  5. Take on board the experiences which others bring to the table.  Put everything together to create a combined, more valuable piece of work.  Own it, but don’t monopolise it.  You are all in this together.

There would be much more advice to give from a place of new-found expertise but it would suffice to say that making any delivery fun, engaging and inspirational will win over pretty much any audience.  Oh, and litter any presentation with the occasional (educational, of course) YouTube video for those rare moments of respite and restorative pin-drop silence!

At the end of it all, we emerged rather different people from the experience than the way we entered it: more confident, proudly sporting the badges of public speaking, team work, the capacity to think on our feet and to respond to the ground shifting in real-time under our feet.  We gained the ability to impart our legal knowledge and to demystify the law – in essence, to be a small part of the movement which attempts to improve social justice outcomes for the public.  We also got to test and adjust our professional identity and to put into play our own legal values and ethics in a real life situation by sharing what we gained from our legal education and life experiences with the community at large.

Some of us discovered a love of mentoring, some confronted and overcame our fears and some found our voices… standing on stages and shouting at the young and restless, does that to you.

But beyond our new way with the law and our satisfaction of a job done well, we found at the end of that week that in the frustrating process of trying to come together from different parts of the country, from different cultural and socio-economic backgrounds, different ages and interests, we had somehow become a real team almost despite ourselves.  Pro-bono did not just bring us together for the benefit of the greater good of the community, but also for our own.  New-found respect replaced hesitancy and wariness and we are now finally and determinedly planning that day out at a spa.

The only thing which remains to be tested, is our advocacy skills: will we be able to successfully argue for obtaining an all-expense paid day from a law department abundant in provision of pro-bono activities, but clearly lacking in its ability to qualify, limit and restrict their offers of support to students, or will they hit back with tomes of small print which will have cleverly hidden legal provisos to such ambitious claims that we all signed without reading?  It remains to be seen.   Open Justice team, the ball is in your court!

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Public legal education at HMP Oakwood

In this series of blog posts, Paul Dale, an Associate Lecturer at The Open University, final year law students Jon Stitcher, Lucy Tomlinson and Sean Harker, and  ‘prisoner mentor’, Malcolm, reflect on their experiences of teaching public legal education in Her Majesty’s Prison Oakwood.

From left to right – Tammia, St Giles Trust; Paul, OU Associate Lecturer; and final year students, Jon, Lucy and Sean

Paul

I’m Paul, the academic lead for the Open Justice project at HMP Oakwood in Wolverhampton; a joint venture with the St Giles Trust. Over the course of March and April, I was delighted to lead three final year law students to present legal education at Oakwood. The scheme is very much in its infancy, so our remit was to have an initial meeting with St Giles ‘prisoner mentors’ to discover any general legal issues that our students could research and present findings on. Three students were chosen out of some thirty applicants. Our first prison visit in March was a real eye opener for students. We met Steve and Tammia, from the St Giles Trust, who gave the students a tour of the prison. We were able to see inside the wings and meet prisoners, one of whom offered to show us his cell. Any hesitations or stereotypical views the students had of prisoners were soon dissipated. We then had a more formal meeting with six ‘prisoner mentors’. These were guys who were on longer term sentences and assisted others within the prison not only for rehabilitation purposes, but with day to day life. They were a very positive bunch of guys and enjoyed engaging with the wider community – two were OU graduates who had studied in prison! They identified nine issues for us to research, with a deeper concentration on joint enterprise, indeterminate sentences, the destruction of Crown Court transcripts and racial bias in sentencing. The meeting went well, and we stayed behind afterwards for coffee and a chat. On our second meeting we presented some initial findings and were also guided by their own research. Our third meeting was the presentation of our research and we gave them a folder of our findings. Overall, we established a good rapport with these guys, on all of our meetings we stayed behind for a more informal chat. The students were able to research new areas of law, but now from a more practical point of view instead a purely academic one. The prisoner mentors were already very knowledgeable on the law and these issues, and though they knew many of the fundamental issues involved, we were able to provide some nuanced views and introduce new lines of research for them to follow. Our remit was not to give legal advice, but to point them in directions for further legal research. It was a privilege to be given the chance to be able to meet people who had been directly affected by the legal issues that have been studied on the LLB. For instance, a number of them were convicted under old ‘joint enterprise’ rules that have been changed in the recent Supreme Court case of R v Jogee (2016). Lord Neuberger held in this case that previous court decisions ‘had taken a wrong turn’ for some thirty years in their application of joint enterprise. So, now meeting offenders who had been subject to this misapplication of law brings knowledge learned from studies to whole new level. Additionally, one of the prisoner mentors, Malcolm (an OU graduate who has authored a blog post here) was a party on the prisoner voting cases that have been back and forth in the Supreme Court and ECtHR. It was informative, for both the students and myself, to get an understanding of practical application of the legal issues that we have researched. If there is one thing that I will take away from the project, on a more personal level, it was the realisation that these guys were something more than their label. It is easy to categorise offenders based on their crimes, and label them because of a serious crime that they have committed. However, I got a sense of the individual behind their crime and subsequent label; they were a delight to meet, all had very positive attitudes to life in general, relished in their own personal development and had hope for their future. I do not think that I have met such a positive group of people and I feel privileged to have been part of the Open Justice project. As an added bonus and a direct result of the project, one of the students has a potential opportunity of working with offenders through the St Giles Trust in the future. Though the project is in its infancy, we can hopefully take it forward in years to come so that more students can gain benefit on both a professional and personal level. I’d like to thank HMP Oakwood for their support in the project, Tammia and Steve from the St Giles Trust for their organisation and enthusiastic approach, Jon, Lucy and Sean for their hard work and professionalism in their legal research and the St Giles Trust ‘prisoner mentors’ for their welcome and hospitality. Everyone worked together to create what turned in to worthwhile project.

Jon

Today I have finished my research project with the St Giles Trust at HMP Oakwood working with Prisoners. It has been an incredibly eye-opening experience. I went into this project with an archaic opinion of what prison life would be like. I was expecting it to be more like the TV show Porridge or the film The Shawshank Redemption. The reality is vastly different. Yes, we were working with the highly trusted prisoners, men who’d used their time in prison to great effect. They’d taken rehabilitation courses, they’d educated themselves, but more than that, they were educating and mentoring other prisoners. My first moments inside the prison I was quite apprehensive, we were taken on to a prison block where the prisoners were wandering around, quite freely and I hadn’t noticed any guards. But it didn’t take long for me to realise that I was perfectly safe and when interacting with the prisoners whom we were there to assist, I often didn’t realise they were prisoners but thought they were St Giles staff members. We chatted with these men, they told us their issues and we went away and we researched these issues. The whole time I was doing this, I very selfishly was thinking how good this would look on my CV. By the last meeting with the prisoners I’d come to realise how awful that was of me. When we finished our work, we left the prison to carry on with our lives, our degrees, our futures. For some of the people we were helping the future is so uncertain. They will remain in prison, some on indeterminate sentences and as much as I wanted to give them good news, unfortunately the outlook is quite bleak. I have taken so many positives out of this experience. On a purely selfish note, I have enhanced my CV and gained valuable experience in understanding how life in a prison works. But, I also feel like I have contributed to helping these men by taking the time to research issues of huge importance to them. But they have changed me, my views on prisoners and prison life are now much higher. I no longer think that we should be locking people up and throwing away the key but that prison should be a fully integrated rehabilitation programme working towards re-integrating these people back into society. I want to thank the Open University for selecting me for this project, for the St Giles Trust for running this pilot scheme and for working so closely with us, but mostly I want to thank the prisoners I was helping. They have made me sit up and think about the world and reconsider my own future in law. But also to reconsider my future as a person as my outlook on certain things has now changed forever. This was such an enriching experience and one that could not possibly be achieved through writing an essay.

Malcolm – HMP Oakwood – St Giles Trust ‘prisoner mentor’ (and OU graduate)

Over the last six weeks the Open University visited Oakwood in the form of a lecturer and three diligent students from their Law facility. A group of us were invited by our IAG (Information Advice and Guidance) Tutor and St Giles partner, to meet the students and pose questions of law or special interests. This was not only a novel way to have legal questions answered but an opportunity to engage with students form the community and an OU lecturer who turned out to be extremely pleasant and very knowledgeable. As a group we decided to task the students with 4 lines of enquiry these being issues that we found of interest either because they affected us personally or because we though they would be of use to the wider Oakwood community; the subjects were; the IPP sentence, Joint Enterprise, Racial profiling (for those that come into contact with the criminal justice system) and lastly, the subject of court transcripts and who has access to them. The OU group visited us on three occasions the first being an introduction and opportunity for us to set their task, the interim visit to give a progress report, indulge in our company and eat our biscuits and the final session to give a verbal report of their findings and to hand over a well presented package of information relating to the lines of enquiry and any other related pieces of information they felt would be useful to us. As an exercise in the breaking down of barriers between the incarcerated and the community it was extremely successful, the students and their lecturer were delightful and spending time with them was a great distraction form the normal routine. The students assured us that their perception of a ‘prisoner’ (the word is pejorative but serves in this instance) was much changed and they enjoyed the encounter. But as an exercise in the dissemination of new and ground breaking legal facts it was not that successful. The reason for my negative remark is in no way a reflection on the work done by the diligent students but merely a reflection on the access we now have to information; the residents here have a telephone in their room and most know someone they can phone who has internet access. Most questions can be answered in this way from the comfort of your room. The staff here at Oakwood are also able to assist in the provision of information and if it is pertinent to you rehabilitation they will download relevant data upon request. However, we are extremely grateful to the students and lecturer for giving their time and resources to provide us with the information we requested. We all took great pleasure in the exercise and hope that further engagement with the OU will be possible. We wish the students luck in their studies and hope they all reach their goals.

Lucy

Throughout March and April, we attended HMP Oakwood to work with prisoner mentors and the St Giles Trust to research any legal issues the mentors suggested. This included joint enterprise, the imprisonment for public protection sentence (IPP’s), racial profiling within the criminal justice system and the destruction of court transcripts amongst other smaller topics. Prior to our first visit, I believed that all prisoners deserved to be in jail and that they should ‘do the time’ for the crimes they’ve committed. However, I tried to keep an open mind upon arrival at the prison and form an educated opinion after meeting the mentors. Which is exactly what they were, not prisoners, mentors. I’ve never met such polite humans! The second they entered the room they introduced themselves and shook your hand and offered you a cuppa and a biscuit… amazing! Instantly you forgot you were in a prison and it felt like you were in their home (which is technically true!) and this made the discussions we had over the next two visits so much easier, even when we were feeding back negative findings. Very quickly we discovered some of the mentors we spoke to were serving life sentences without even committing any crimes, which further proved my point of not judging a book by its cover. The mentors were a credit to HMP Oakwood and the St Giles Trust. Working with the St Giles Trust was brilliant. I had no idea that they existed until working on this project with them, and I’m very glad I got the opportunity to do so. Steve and Tammia were very welcoming and ensured that we didn’t just see the good side of the prison but also the not so good side when taking us on tours of the prison, which I really appreciated. During the tours, many of the prisoners that Tammia helped rehabilitate greeted her with such respect just passing by and this triggered my interest in wanting to work with St Giles Trust (specifically wanting Tammia’s job!). It must be so fulfilling to be able to see your hard work walking about the prison and this made me appreciate the work St Giles Trust do even more. Although we didn’t necessarily better the prison mentors’ legal knowledge, I’m very grateful to have had this experience and it’s something I can take with me to job interviews because I feel I gained so much knowledge and practical experience. It was so fun researching topics like joint enterprise, especially as it is currently in the news, but I was also bettering my legal knowledge on topics I was unaware of. I’ll miss our visits to HMP Oakwood, after every visit I was bursting with excitement about what I’d experienced throughout my ‘days in prison’. Big thanks to the Open University for creating this pilot project, enabling us to gain such valuable experience which will help in so many ways in our future endeavours. Also thank you to the St Giles Trust, specifically Steve and Tammia for letting us be a part of your team and taking time out of your busy days to accompany us and unlock and lock again every door we walked through! HMP Oakwood, thank you, it’s been a pleasure and the best experience I’ve had so far!

Sean

I was delighted when I found out I had been chosen to participate in the HMP Oakwood project as I thought taking part would be hugely beneficial to my studies and help enhance my experience section on my CV. Throughout the three visits I feel as though I have learnt far more about prison and prisoners than I ever could just by reading materials. I found many of my prejudices regarding offenders challenged and I now have a completely different view on the matter (obviously taking into consideration I met just a handful of people). Taking part in the actual research helped me understand some of the deeper social issues associated with offenders. My primary task was producing a report on the systematic destruction of Crown Court audio files and records. I found this extremely interesting as this is a subject I would know nothing about only by following the curriculum of my course – and I certainly wouldn’t have done the research just to satisfy my own curiosity. My other secondary tasks were to create a report and presentation on the negative impacts of long term sentencing and on discrimination in sentencing. Whilst I already knew about these issues as they are highly documented, I enjoyed the research nonetheless and feel that they have deepened my understanding. Throughout the whole experience I have learnt how to coordinate my time to juggle the demands of the work and to take more pride in work that won’t be marked as I got the opportunity to deliver my findings in person. Actually meeting the prisoners face to face has helped me with speaking to groups (if I can deliver a presentation in prison than anywhere else will be easy!). To sum up, this project has helped put a lot of my previous legal study into perspective and has certainly had an impact on my future. I plan on attempting to do more volunteer work with the St Giles Trust. I can, and I highly recommend this opportunity to be extended to other students and for those students to take it.

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Public legal education at HMP Wormwood Scrubs

In this series of reflections, a number of Open University law students discuss their experiences delivering public legal education in HMP Wormwood Scrubs, which they visited along with law lecturers, Keren Lloyd Bright and Kate Richie. There were five visits in all, during which ‘Law and Society’ seminars were held within the prison’s Education Department. The topics for the seminars were chosen by the inside students (prisoners). The seminars were designed and led by the lecturers and the outside students (OU) undertook research, prepared handouts, delivered presentations and led small group work. All concerned found the experience deeply thought provoking – and in ways which they did not originally anticipate.

Frances Gould

I wanted to volunteer at Wormwood Scrubs for a number of reasons. I have worked at a charity supporting victims of violent crime for 8 years and found that my experiences of offenders was from only one very narrow view point. I wanted to change this. I also want to use my law degree for as many socially beneficial projects as possible in future and I felt this would open new opportunities for me.

Staff and volunteers met up beforehand, which was lovely and we began to bond quickly. I really don’t know what I expected as I have never been in a prison before. The first day couldn’t have been a more Dickensian setting. We walked across the main yard surrounded by the grim Victorian cell blocks, through thick falling snow to the sound of some incoherent hollering of the inmates and the clattering of keys. I will never forget it!

Once we entered the education department, it was a completely different atmosphere – a calm, friendly and well-organised space where we were enthusiastically welcomed by the prison staff.  We were placed into classrooms. Inside these rooms, student numbers grew each week. The students gave us ideas of topics to go away and research. I researched several including rehabilitation and criminal record disclosure issues. It was an eye opener and I began to understand how difficult it was for offenders to break out of the cycle of re-offending.

All of the inside students were really respectful and fully engaged in the projects. Many of the inside students were very bright but lacked confidence. I found myself telling some of the students how bright they were and encouraging them. It seemed to be the first time they had been told how capable they were from someone they wouldn’t usually meet.

I can’t recommend this project enough. It was a real education for me and the inside students and an absolute stroke of genius for the Open University. Thank you.

Anna Aitchison

My first impression of Wormwood Scrubs was, surprisingly, that it was rather beautiful. Prisons aren’t supposed to look beautiful, but snow covers many imperfections, and, so in a strange way Wormwood Scrubs did, I think have a certain air of beauty to it when I first saw it. However, the moment we stepped into the prison yard, the prison population shattered that perception with their idea of ‘flirting’.

The prisoners we worked with in the sessions, however proved to be a slightly tamer bunch; in fact, I was surprised at how much they respected their teachers.

As we were running the sessions for an established class, we were working with one teacher and her group of inside students in particular. However, that didn’t mean that we had the same people every time, as was initially assumed. A lot of the time, inside students we expected didn’t come, maybe because they’d been released, because their names weren’t on the register or because no guard was available to take them up, so we were forced to go with the flow, but I think it worked out quite well.

After the first session, we polled them for topics they wanted us to cover, and so ended up with a really mixed bag of topics. We did presentations on topics as diverse as criminal law, animal rights, separation of powers, and knife crimes among other things, all of which they really seemed to enjoy, and most of which stimulated really interesting discussions.

I found the work with the prisoners and hearing their views interesting, but I also really enjoyed working with the other OU students as well. It’s made me sure I want to do W360, as well as giving me lots of valuable experience. I would definitely recommend the experience to other OU students, particularly if you get the chance to do it before starting W360.

Phil Patterson

The opportunity to engage in a university project inside a prison was always going to appeal; those who know me best would not be surprised to hear of both my participation and enthusiasm to be involved. Expectations were nevertheless mixed beforehand; the reaction we would receive from those inside was largely unknown and the recent fatal stabbing at the site illustrative of a rise in violence across the whole prison estate.

Our first session welcome, to the backdrop of several inches of snow and the ominous sound of keys turning in locks, suggested an Education Department at loggerheads with the prison regime. Prisoners who wanted to be involved were not cleared to attend and numbers had to be enhanced by those who expected to be elsewhere. A sneak peek into the challenges which face both those running, as well as those detained in, such an establishment.

The response to the sessions by those attending however, was impressive. Prisoners were encouraged to challenge views and perceptions relating to legal topics ranging from animal rights to knife crime, and privacy through to self-defence. Even those initially hesitant about working alongside undergraduates developed confidence to get involved, in a not too dissimilar way to the OU students who worked with a prisoner for the very first time.

Looking back at the project, the effort made by those from the OU was ultimately not matched by the engagement of the authorities within the prison, despite the welcome received from within the Education Department. The balance between enforcement and development in such a unique atmosphere are undoubtedly complex, and future projects within such environments will benefit from the lessons learnt during this experience.

Am I pleased I took part; a resounding ‘Yes’ without a doubt. However, while it could not be said I benefitted in the ways I initially expected, the experience of wider issues within the criminal justice system were plain to see. Maintaining an open mind is crucial – expect the unexpected and refuse to stereotype anybody who finds themselves in detention without a knowledge of their circumstances. If your approach to justice is to throw away the key, then this project is perhaps not for you. However, if you believe everybody deserves an opportunity to move on from past wrongs and you are open enough to develop in unexpected ways, then I would not hesitate to recommend embracing opportunities of this nature.

Rebecca Buckell

I embarked on the OU LLB (hons) module wanting a promotional opportunity with my employer. I felt I lacked essential skills that other applicants had, when going for various job roles within my company. Then as the OU course progressed, I wanted to be part of the legal opportunities that the OU offered, and the confidence that you can acquire with the OU is second to none. I initially wanted to be acquainted with the OU legal course team as well as integrate with the other students and to be a part of this great pioneering project. I therefore volunteered for the Wormwood Scrubs Learning Together Project.

After submitting my reason for volunteering, against tough competition, I was successful with earning this opportunity. I cannot deny that initially I was scared, as I had never been near a courtroom, let alone a prison. But as soon as I met the prison staff, who interact with the inmates daily, I felt completely at ease. The constant work the staff do, is commendable, they are great people and definitely deserve a big thank you. The inside students and outside students, collaborated as a team on highly topical issues, such as, court procedures and knife crime. The atmosphere was welcoming and the team work was excellent. I walked away from every session learning something new, while engaging with people I never would be able to associate with. The OU lecturers were also good team leaders and team builders.

This is the experience and opportunity that the OU Open Justice team made available and as a pro bono opportunity, it was excellent. I found the whole experience enlightening and humbling all at once. This experience has made me want to embark on further legal training and be part of a wider legal community because of the fact that perhaps one day, I can be of service to persons who may really need support and I may be able to have a positive effect on my community.

 

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A Street Law Venture in Lahore, Pakistan

Our latest guest blog is provided by Angbeen Mirza, a lawyer and research based in Lahore, Pakistan. In it, Angbeen discusses her work conducting Street Law programmes in Lahore and discusses how Street Law programmes can be part of a wider social movement for change, which have particular resonance in an emergent democracy.

Clinical Legal Education is now widely hailed as an important component of a well rounded legal education. Being a service profession, it is important for law students to be exposed to the ‘real’ world outside their classrooms before they graduate. This helps ease the transition from the world of legal theory to the world of practice. Other service professions, such as the medical profession, have relied on clinical education as part of their curriculum for decades, but the legal profession, at least in Pakistan, is only just catching on.

Street law is a form of clinic legal education (CLE). It emerged in various parts of the world as part of social movements for change. It was first used by the civil rights movements in the United States in the 70s, and then in South Africa towards the end of the apartheid. The idea was to engage lawyers and law students to help translate practical law and make it accessible to people ‘on the street’. It came with the realization that in order to obtain your rights as citizens, you first had to know what those rights were.[1] Street law eventually became an integral part of many law school curricula across the world. In Pakistan, however, the prescribed law school curriculum contains no mandatory or recommended requirement for any form of CLE.

In the absence of any formal mandate for CLE in Pakistan, the prerogative to introduce such education experiences lies entirely with the law school. The Hamdard School of Law in Karachi first introduced a street law programme with its law students by sending them to the juvenile detention facility in Karachi. Operating from 2012 till 2015, the programme helped inmates follow their own trial in a more informed fashion. Through interactive sessions, the inmates were made aware of the legal process of a criminal trial, and the rights they are guaranteed under the law. The lawyers supervising the programme found its benefits to be two-fold: it inspired the law students to embrace the social responsibility that is part of the legal profession; it also achieved higher legal literacy for the participating inmates of the juvenile facility insofar as they were able to draft and present basic documents such as complaints regarding the detention facility, and their own bail applications. They were better able to understand and navigate the criminal trial process and instruct their lawyers.[2]

The Shaikh Ahmad Hassan School of Law (SAHSOL) in Lahore commenced its street law programme as a voluntary activity in the academic year of 2017 – 2018 in collaboration with a student society. Building on its earlier relations with local high schools enrolling lower to middle income students, a curriculum was developed targeting adolescent students. The target audience was selected premised upon the realization that a large majority of Pakistan’s population is under the age of 15.[3] The street law programme was launched with the twin goals of exposing law students to a real audience with real questions about how the law works, while empowering high school students with basic knowledge about how a constitutional democracy functions, and the role they play as informed citizens of society.

Street law, is in essence, a form of social lawyering. It seeks to create, through interaction between the student and the ‘street’ audience, a connection between the law student and her surrounding community. It helps create legal awareness in the area of law that is being discussed by the law student. And as mentioned above, it helps strengthen the rule of law by encouraging effective citizen participation in various fields.

Pakistan is a country with many problems. It is a fledgling democracy fraught with issues of accountability, army interference in the running of the state[4], terrorism[5], inter-religious discord and violence[6], and a deeply entrenched gender bias[7]. Set against this backdrop, the deeper purpose of our street law programme was to begin a movement for social change. There are many ways that societies bring about social change, and many of them are in vogue in Pakistan as well, including domestic and international lobbying for human rights friendly laws and their implementation, public interest litigation for enforcement of rights and guarantees provided in the Constitution and other laws, and social movements aimed at creating awareness and informing mindsets. Although the primary purpose of Street Law is to benefit law students, we believe that Street Law, as a movement and especially when targeting the youth of the nation, fits in well with social movements for change.

The year long programme run in Lahore by the law students of SAHSOL began with an introduction to the concept of state and its component parts: the legislature, executive and judiciary. Through participatory and interactive exercises, the high school students were able to exhibit an understanding of how our state is meant to function. This was followed by a module on criminal law, the process followed in a trial and the concept of sentencing. The final module covered fundamental rights, including the right to education, freedom of religion, right to equality and non-discrimination and some others. In future years, we hope to expand our curriculum to include a module on employment laws and family law, since we believe that these are important aspects of every person’s life.

Upon completion of the sessions, feedback from the high school students indicated a high level of satisfaction and interest in the subject matter. Many students were keen to see our law students return in the next academic year. The law students found Street Law to be an effective addition to their legal training. Some feedback received was:

“Street Law was a very interactive experience in which the students and I learnt a lot from each other. The skills I’ve developed as a tutor for Street Law have helped me improve myself not just as a future lawyer/teacher but also as a person…

Being in the role of a teacher and having to conduct a session with 27 children (who were often rowdy and mischievous) was a task in itself and ended up being a great learning experience for me. Towards the end of the academic year, this experience was more than worth every morning spent waking up early to go teach these kids and the change that it represented in our lives was very meaningful.”

(Mahum Shahzad Laun. B.A., LL.B Class of 2019)

“The response I got from the students was very positive. The classes were very fun and interactive as the students actively participated in the activities, role playing exercises and the discussions. The response from my students motivated me to go back to the school every week.

Students were particularly interested in the content of the course. I had to make sure that I was very well prepared for each session as the students asked very insightful questions.”

(Haris Irfan, B.A., LL.B Class of 2019)

The law students are keen to return to the programme in the coming academic year. This is despite the fact that despite the commitment and preparation required, they receive no formal credit for this activity. In addition to improving the completeness of our curriculum, we hope to begin to expand to networks of schools across the country and sow our small share of seeds in the movement for social change.

[1] Richard Grimes, David McQuoid Mason, Ed o Brien and Judy Zimmer ‘Street Law and Social Justice Education’ in the Global Clinical Movement (2011).

[2] Interview with Omar Maniar, Instructor at Hamdard School of Law, November 2017.

[3] According to the UNDP, 29% of Pakistan’s population is between the ages of 15 and 29, while 64% of the total population is under the age of 30: https://www.dawn.com/news/1405197.

[4] https://www.dawn.com/news/1097757; https://www.huffingtonpost.com/raza-habib-raja/why-is-military-so-powerful_b_13269780.html; https://nation.com.pk/31-Jan-2016/5-ways-pakistan-army-tames-civilian-governments.

[5] https://tribune.com.pk/story/1657057/9-pakistan-resolve-issues-related-terrorism-says-hillary-clinton/.

[6] http://newslinemagazine.com/magazine/shrinking-minorities-pakistan/;

[7] https://dailytimes.com.pk/59128/gender-discrimination-in-pakistan/.

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Papering over the ever-increasing cracks in Criminal Legal Aid

Our latest guest blog was contributed by Nick Titchener, Director & Solicitor-Advocate at the criminal defence solicitors firm Lawtons Law.’

If you are interested in submitting a guest blog, please contact the Open Justice Team on open-justice@open.ac.uk

For many areas of legal practice, the concept of pro bono work is something altruistic, when the legal profession is giving something back, the provision of expertise, time and skills for nothing.

However, in the world of criminal defence work, it is really quite different. The importance of pro bono work in making everything work and keeping ticking over and providing the service that many vulnerable people require cannot be overstated. However, in the area of criminal defence work it is done without flourish or a fanfare and rarely is it even noticed or acknowledged.

The majority of criminal defence work is governed under the auspices of Legal Aid. Criminal Legal Aid is limited in its remuneration rates, scope and availability. To understand the significance of pro bono work in criminal legal aid work it is important to firstly understand how firms are remunerated and at what rates.

This is illustrated by what happens when a client is initially a suspect and under investigation by the police, and what criminal legal aid covers. Unlike commercial firms, where clients are often charged between £200 to £1000 per hour, for criminal legal aid work, the hourly rate is between £24 and £56.89 depending on what work is involved. However, for each case at a police station, under the Legal Aid Advice and Assistance scheme, the firm of solicitors is paid a fixed fee. The fee varies significantly depending on the police station, ranging from £126 for a case in Blackpool up to a maximum of £257.33 for a case at Stansted, with the average case fee being £181.50. The fixed fee payable under criminal legal aid covers all work and time incurred in both travelling to and from the police station and for all of the time that the lawyer is to be engaged at the police station. It includes no work outside of travelling to and from and the actual attendance at the police station. Unless the relevant fixed fee is exceeded by more than 3x, no matter how long the lawyer is at the police station or engaged on the case the fee will remain fixed. So, by way of example, if the legal aid lawyer is at Stansted Police Station and the total  travel, attendance and waiting time amounts to 18 hours, the total fee will not be any more than the fee of £257.33, thus meaning the notional hourly rate has fallen to only £14.

All of the work that a criminal defence firm does when a client is under investigation by the police is wrapped up in the “fixed fee” framework, with very little chance that anything else will be remunerated. Letters, phone calls and any work outside of the police station attendance are not remunerated.

If the police contact someone to attend the Police Station for a formal police interview or someone is arrested, they would be well served in ensuring that they have some legal advice and Legal Aid will allow for that free advice and assistance when the person is actually at the police station to be questioned in accordance with the aforementioned fixed fee regime. However, if you have questions about what will happen when you arrive there, perhaps  worried about what you will be questioned about, concerned about the procedure, want to meet with your lawyer before you go to the police station – all of these things are reasonable, as they are understandable questions and concern. However, none of these scenarios are covered by legal aid. As a criminal defence firm, we recognise that these things are important, so we set time aside to ensure that clients are familiar with what will happen and to address their concerns – but we are not remunerated for this, even within the fixed fee regime, in every one of these cases, of which there will be 100’s every year, we act on a pro bono basis.

And the same applies after someone has been released from the police station interview. After you have  walked out the door, inevitably you may have questions the following day, perhaps your property has been seized and you want it back from the police, you want updates and to know what may be happening on your case – however, none of these things are remunerated by legal aid. The letters and calls that you would like your lawyer to make on your behalf, the questions you want answering, none of these are covered and they are all done pro bono. Criminal defence firms recognise that these things are important, even though the Government does not provide funding for them to be done.

But the situation with regards to criminal defence firms undertaking pro bono work is not restricted to just when they are at covering cases under the legal aid police station advice and assistance scheme. Criminal defence firms are routinely required to undertake work that is either not remunerated or poorly so. The recent Judicial Review launched by the Legal Aid Agency in response to the Government’s latest cuts to Criminal Legal Aid exemplifies the ever-increasing gaps in funding and the amount that firms are expected to undertake on a daily basis without recourse to funding or remuneration:

Joe Egan, Society president of the Law Society, said: ‘The government is cutting the payments made to defence lawyers for considering and responding to evidence served by the prosecution. Their justification for this cut is that electronic and social media evidence is not always relevant to the complexity of the case. However, it was exactly this social media evidence that defence lawyers had to examine in order to secure the exoneration of Liam Allen.’ [Allen was charged with 12 counts of rape and sexual assault but his trial collapsed after police failed to disclose vital evidence to the defence.]

Unless a criminal defence firm is prepared to undertake pro bono work from the outset for their clients, guide them through the process that they have been caught up in, clients would ill-advised and badly serviced, their needs and questions would remain unanswered. Criminal defence firms operate on the tacit basis that they are remunerated badly but provide an invaluable service and level of expertise that whilst unrecognised is vital to ensure that vulnerable individuals are protected and advised. Without criminal defence firms papering over the cracks in the funding regime, and operating a silent system of pro bono advice and representation clients would inevitably suffer as a consequence and Justice would be ill-served.

 

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Clinical Legal Education in India

This guest blog is by Nabeela Siddiqui. She is pursuing her Master’s in Law from the Department of Legal Studies at University of Madras, India. She is also working on a project titled ‘Faith Based Organisations and Refugee Crisis’. Lately, she also interned at AALCO (Asian-African Legal Consultative Organization) and the Supreme Court of India. If you would be interesting in contributing a guest blog, please contact us at open-justice@open.ac.uk

Social justice is the first charge on our Constitutional order. It is a legacy we leave to the future generations without tarnishing its purity and power. One way to promote social justice is through clinical legal education (herein after “CLE”).The term “CLE” or “law clinic”, traditionally refers to a non-profit law practice usually serving a public interest or group in the society that are in a underprivileged or exposed situation and (for various reasons) lack access to legal system.

A law clinic, as the name suggest, could be everything from a student initiative done on spare time, totally separated from the school environment, to a natural part of a clinical university program. There are also examples of clinics driven by practicing lawyers that are more or less separated from law schools but with law students participating in the form of an externship. The use of the word ‘clinic’ prompts the analogy of trainee doctors meeting real patients in their medical clinics. In the academic context, these clinics provide hands-on experience to law school students and services to various (typically indigent) clients. Many legal clinics offer pro bono work in one or more particular areas, providing free legal services to clients.

History of CLE in India

The Preamble of the Indian Constitution provides that justice – social, economic and political has to be provided to the citizens. Part IV of the Indian Constitution provides fundamental rights to the citizens. Art. 39A of the Indian Constitution guarantees remedies to address rights violations, but, CLE in India has emerged only in the 1960s with its roots in both the Legal Aid and Legal Education Reform Movements. For the first time, in 1949, the Bombay Legal Education Committee recommended that practical courses should be made compulsory only for students who choose to enter the profession of law and that the teaching methods should include seminars or group discussions, moot court competitions etc. Later, in 1958, the 14th Report of the Law Commission of India recognized the importance of professional training and for a balance of both academic and vocational training. The Commission’s Report concentrated on institutionalizing and improving the overall standards of legal education.

There were demands for improved training in skills and ethics in law school. As a result, in 1977, the Bar Council of India recommended practical training in the curriculum. A report of the University Grants Commission (UGC) also played an important role in the history of CLE by outlining the objectives of reformed teaching as making students more responsive to learning and making them demonstrate their understanding of law.

On the basis of the report, considerable emphasis on clinical legal education was introduced in 1997, by increasing the number of subjects (curriculum based subjects) from 16 to 28. The Bar Council of India issued a circular, using its authority under the Advocates’ Act 1961 directing all universities and law schools to revise their curriculums. Law schools have been required to introduce 4 practical papers since the academic year 1998-99, which was viewed as a big step toward introducing CLE formally into the curriculum. The 2nd UGC report of particular interest to CLE was prepared by a Curriculum Development Committee, which was asked to upgrade the syllabi of the LL.B. course. The primary focus of CLE in the then proposed curriculum is on legal aid, social justice, and professional responsibility.

The first major report on legal aid came in 1973 from the Expert Committee on Legal Aid of the Ministry of Law and Justice, chaired by Justice V. R. Krishna Iyer. The Expert Committee was appointed to make recommendations for the creation and implementation of a comprehensive program of legal aid to the weaker sections of Indian society.

Access to legal remedies is frustrated either due to lack of financial means, lack of good legal representation, lack of legal awareness etc. In order to provide this access, the Indian government passed the Legal Services Authorities Act, 1987 (Legal Services Act). This Act established legal service authorities at three different levels – National (hereinafter NALSA), State and District to help bridge the need for legal representation especially for those who cannot afford it.

In 1981, the Government of India appointed the Committee for Implementing Legal Aid Schemes. The Committee was headed by Justice P.N. Bhagwati, then Chief Justice of the Supreme Court of India. Like the earlier Committees, the Committee for Implementing Legal Aid Schemes insisted that court- or litigation-oriented legal aid programs cannot provide social justice in India.

Bar Council of India Report (BCI) report 1996 on NLSIU (The National Law School of India) – The Bar Council of India issued a circular in 1997 using its authority under the Advocates’ Act 1961 directing all universities and law schools to revise their curriculums. It included 21 compulsory courses and 2 optional courses, leaving Universities free to add more courses.

In order to achieve the objects of the clinical programme, NLSIU offers a wide range of opportunities in clinical programmes, compulsory as well as optional, to the students. At present the compulsory clinical courses are – (a) Client Interviewing, Counselling, and Alternative Dispute Resolution methods; (b) Litigation Clinic; (c) special Clinic integrated with compulsory placements of two months from III year to V year of the 5 year LL.B. course. The optional components of the scheme includes: (a) Moot Court (b) Legal services clinics; (c) community- based Law Reforms Competition. In addition to the above, NLSIU curriculum course on Professional Ethics and Law Office management taught with assistance of legal practitioners.

Report of the Law Commission of India 2002 stated that “the Commission considers that CLE may be made mandatory subject.”

Problems in Initiating Legal Aid/ CLE

Overall, the law schools have not given much prominence to practical training to their students because of several problems.

According to this UNDP study, the key difficulties in developing CLE in India are that:

  1. There is a lack of an institutionalized approach towards clinical legal education. Most law schools have an adhoc approach towards legal aid clinics, the success of which depends largely on the enthusiasm of the faculty and the students.
  2. No credit is given to students who undertake these activities, which is a disincentive to students to conduct them and discourages them to follow through on their commitments;
  3. There is no workload reduction given to faculty who are designated to supervise legal aid service;
  4. Communities are not aware that the law schools provide free legal services; and
  5. Under the Advocates Act, full-time law teachers and students are not allowed to represent clients before courts.
  6. There are difficulties in supervision and assessment: Supervising students in the clinic is a herculean task.
  7.  Some may fear that a legal clinic offering free legal work will upset the law school’s relation with the local legal professionals (Mohammad Ghouse, 1977).

Avani Bansal, a practising Advocate at the Supreme Court of India, in an interesting piece on CLE, has compared the Indian Model with the Harvard Law school model (herein after “HLS”). The main aim of the article is to see if there are lessons that can be learnt in India from the best practices of HLS. She has devised a blueprint for the Indian model, the full text of which could be found at – http://www.livelaw.in/clinical-legal-education-part-iv-building-roadmap-clinical-legal-education-india/?utm_content=buffer710d6&utm_medium=social&utm_source=plus.google.com&utm_campaign=buffer

Conclusion

Though the BCI has made it obligatory to have clinical legal education in the curriculum, law schools are not showing much attention in adopting the necessary skills. The purpose and scope of legal education is to formulate students for the practice of the profession of law. Therefore, the law and legal education which together constitute the backbone of society should change according to the changing needs and interests of a dynamic society. Hence, not only the law schools, but also the authorities, have to take steps to initiate CLE in an effective manner.

References

  •  [39A. Equal justice and free legal aid] – The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.] Inserted by the Constitution (Forty-second Amendment) Act, 1976, section 8 (w.e.f. 3-1-1977).
  • www.lawyersclubindia.com/articles/Clinical-Legal-Education-An-Overview-2332.asp
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National Pro Bono Week

Blog post by Francine Ryan, lecturer in law and member of the Open Justice team.

National Pro Bono Week takes this week from 6th to 11th November 2017, it is an annual event in its sixteenth year, sponsored by the Law Society, the Bar Council and the Chartered Institute of Legal Executives (CILEx). It brings together the legal profession in a celebration of the dedication and commitment to supporting individuals, charities and local communities. National Pro Bono Week showcases the incredible volunteering provided by law students and legal professionals in their communities.

Pro bono means for the ‘public good’ and for lawyers it is the provision of free legal services to those who cannot afford to pay. Lawyers are involved in pro bono in many different ways from volunteering in Law Centres, supervising law students in law clinics, or providing free representation in court.

There are lots of events taking place this week up and down the country that anyone can get involved in, if you want to find more information on events running in National Pro Bono Week click here.

Any law students in the North West of England should attend the Student Pro Bono Conference at the University of Manchester on Saturday 11th November. This is a great opportunity to find out more about pro bono and network with legal practitioners involved in delivering pro bono legal advice.

Law students at The Open University have the opportunity to engage in pro bono work in W360 Justice in Action, which is a new level 3 module that started this October. Students provide legal advice in the online law clinic and engage in public legal education activities that include delivering presentations in schools and in prisons.

The Open Justice Law Clinic is part of The Open University’s commitment to social justice it provides free legal advice and guidance to people and groups who may struggle to access appropriate legal support through other means.  The Clinic is now taking new enquiries, it is an online service run by The Open University Law School. The clinic is led by law students under the supervision of qualified solicitors. It offers legal advice on a variety of problems and disputes, such as contractual disputes, tort and consumer law and small claim issues. As the clinic operates entirely online, it is able to provide a service to clients in any location with an internet connection. Clients benefit from quality legal advice that is free, easily accessible and convenient. If you would like to contact the clinic please click here.

Pro bono activity is an important way in which the legal profession supports access to justice, and this is something you might like to consider taking part in as your progress through your law studies. You can learn about the Open Justice Centre by following us on twitter (@OU_OpenJustice) or visiting our website.

So, this week, reflect on how you can get involved in pro bono by engaging in events through National Pro Bono Week and beyond. During National Pro Bono Week, search for #NationalProBonoWeek and #WeDoProBono on social media to find out more about pro bono activities within the legal sector.

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