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.

 

Pro bono work 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 ‘Humara Kanoon’, under the supervision of Supreme Court Lawyer Avani Bansal at Avani Bansal Chambers (ABC). 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

In a society moulded by the practice of giving (‘sewa’, ‘nishkam karm’, ‘shramdaan’) and deep value systems interwoven in various forms, belief and faith, volunteerism is a part of living culture in India. Government programs since India’s Independence in 1947 have focused on creating national volunteering forums for Indian citizens. These programs centre on “Personality Development through Community Service.”

Pro Bono comes from the Latin expression “pro bono publico” meaning “for the public good”. Free legal aid and services in India is predominantly the directive of the National Legal Services Authority followed by State, District and Taluk Legal Aid Services authorities. This hierarchical set up therefore allows a wide presence of services throughout the country. However, the legal requirements grow diametrically with the given population growth, requiring significant contribution from the legal community. Pro Bono legal service as a concept has not gained much momentum in the country and remains more of an ad hoc, individualized practice lacking an institutional structure

The Constitution of India by virtue of Article 39 A directs the State to provide free legal aid to the poor and weaker sections of the society, to promote justice on the basis of equal opportunity. Followed by Article 14 and 22 (2) of the Indian Constitution, which guarantees equality before law. Also, the United Nations Sustainable Development – Goal 16 accentuates the commitment of States ‘to ensure equal access to justice for all’.  Keeping in line with these obligations and with a view to embolden pro bono legal services the Department of Justice has recently attempted to create a database of lawyers willing to provide their services to  litigants identified under Section 12 of The Legal Services Authority Act of 1987.

Indian non-profit leaders and development practitioners have often acknowledged gaps in operative organizational structures and service delivery processes as significant challenges. Many lawyers deliver poor and underprivileged clients with valuable legal guidance and support without seeking any professional fee. Unfortunately, this commendable practice has not received any deserving recognition. In many countries pro bono legal support has evolved as the principal means of providing free representation to indigent and underprivileged clients. But, in the Indian context some chief problems associated with the same could possibly, be –

  1. Time

Therefore, there is a need for:

  1. Flexi-pro bono opportunities to match calendars of Lawyers.
  2. Pro bono models which can be customized to meet the needs of the people.
  3. The biggest challenge for lawyers will be finding the right law firm and matching it with a charitable entity that requires their particular type of legal assistance.
  4. Rules governing the ethics of practice of advocates in India do not include a mandatory requirement for advocates to spend part of their time on pro bono legal services. Instead, pro bono services are recommended, or an ideal to aspire to.
  5. Making pro bono a part of people’s lives and daily culture.

Thus, the onus on coordinating these piecemeal efforts and formulating a comprehensive national policy on pro bono services, as well as expanding the range of pro bono services rests solely with the legal community and the Bar Council of India.

Therefore, recently the Union Law minister launched three schemes viz. Pro Bono Legal Service, Tele Law service and Nyaya Mitra Scheme.

  1. Pro Bono Legal Services – The objective is to encourage lawyers and legal professionals to provide pro bono legal services, to recognize pro bono legal work being provided by lawyers and legal professionals, and to create a database capturing vital information of lawyers for appropriate positions in the relevant field. An online application on the Department of Justice website to enrol advocates who are interested in providing legal aid has been launched. Any practicing Advocate, enrolled with a Bar Council, irrespective of their age is eligible to register.
  2. Department of Justice has partnered with NALSA National Legal Services Authority and CSC e-Governance Service India Limited for mainstreaming legal aid to the marginalised communities through Common Services Center (CSC). Tele-Law means the use of communications and information technology for the delivery of legal information and advice. This e-interaction between lawyers and people would be through the video-conferencing infrastructure available at the CSCs. The concept of Tele-Law is to facilitate delivery of legal advice through a panel of lawyers stationed at the state Legal Services Authorities (SALSA) and CSC.  The project initiates to connect citizens with lawyers through video conferencing facilities by the Para-Legal Volunteers stationed at identified 1800 panchayat.  The project would connect lawyers with clients through video conferencing facilities at CSCs, operated by para legal volunteers.
  3. The Nyaya Mitra scheme is aimed at reducing delays in cases across selected districts, with special focus on those pending for more than 10 years. A retired judicial officer, or an executive officer with judicial experience, will be put in charge of assisting those suffering due to judicial delays.

Apart from the above endeavours, in several high-profile cases, courts in India have called on senior lawyers to play the role of amicus curie, and have also called on lawyers to come forward to provide legal representation to the poorest. The most modern national law schools also have legal aid clinics, where law students offer assistance by providing preliminary legal advice. Therefore, law schools in India do have legal aid clinics but the major challenge is that there is a lack of an institutionalized approach towards clinical legal education.  Advocate Avani Bansal in her article, “Clinical Legal Education as a means to advance access to justice in India”, exceptionally points out the fact that 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.

Can you imagine what India will look like if each lawyer/ academician/ law students were employing the best organizational development practices to effectively attain their vision and mission? Also, alternatively, India’s social challenges would be met with an army of lawyers relentlessly rooting out social issues. Pro bono is an influential answer and offers a colossal opportunity to fulfil this dream. If fully recognized, it can boost the functioning effectiveness and build capacity of lawyers so they can play their development roles to their full potential. Most importantly, the case for pro bono is reinforced by the dynamic social and legislative context in India.

References

  • Section 12 in The Legal Services Authorities Act, 1987

 

  1. Criteria for giving legal services.—Every person who has to file or defend a case shall be entitled to legal services under this Act if that person, is— (a)a member of a Scheduled Caste or Scheduled Tribe; (b)a victim of trafficking in human beings or beggar as referred to in Article 23 of the Constitution;(c) a women or a child; 1[(d) a person with disability as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996);] 1[(d) a person with disability as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996);]” (e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or (f) an industrial workman; or (g) in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956) or in a juvenile home within the meaning of clause (j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or 2[(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.] 2[(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Government, if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government, if the case is before the Supreme Court.]”

The Tumbling Lassie Seminar

This guest blog is by Open University law student and Open University Law Society Officer for Scotland, Lidia Dancu.

If you would be interesting in contributing a guest blog, please contact us at open-justice@open.ac.uk

Modern slavery and human trafficking are burning issues both at home and abroad and it appears surprising that, in 2017, slavery can still pose a challenge. Criminalising the enslaving and trafficking of people does not appear to be a sufficient deterrent.

 

The case of Reid v Scot of Harden (1687) (Mor. 9505), concerning a 17th century nameless girl brought in front of the Court of Sessions in Edinburgh inspired a group of advocates (Scottish barristers) to set up a body designed to raise awareness about the plight of victims caught up in modern day slavery and trafficking. The “tumbling lassie”, as she was known, had been “bought” from her mother and used as a performing acrobat by a travelling salesman, until, physically worn out, she fled her manager, one Mr. Reid and took refuge with Scot of Harden and his wife. Mr. Reid sued the Scots and demanded the return of his “property”, causing the courts, notwithstanding his production of such compelling evidence as a contract, to proclaim: “But we have no slaves in Scotland, and mothers cannot sell their bairns.”

 

On Saturday 28 January, the Faculty of Advocates in Edinburgh held their Tumbling Lassie Seminar: Trafficking in the UK: demands and dilemmas for justice, marking the 330th anniversary of the decision of the Court of Sessions in Reid.  It is astounding to consider that, 330 years later, slaves still exist in the UK.  Even in Scotland, most parts of which are often considered too remote for such illicit operations, people can still be bought, sold and trafficked under false pretenses, sexually or commercially exploited without the means of obtaining help.

 

The seminar was opened by Gordon Jackson QC, Dean of the Faculty of Advocates, and featured leading speakers on human trafficking, including Alison Di Rollo, QC, the Solicitor General for Scotland, the award winning human rights barrister Parosha Chandran, and Pam Bowen, CBE, a senior policy advisor at the Crown Prosecution Service, as well as presentations from Andy Bevan of International Justice Mission (IJM) and Bronagh Andrews, of TARA, the two charities supported by Tumbling Lassie.

 

The speakers referred to the estimated 4 billion people worldwide who live outside the protection of the law, and the over 45 million held in slavery, and emphasised the importance of advocacy in rescuing victims and bringing criminals to justice. If in certain regions of the world corruption, lack of training and lack of system reform coupled with overstretched and underfunded social services are the main system failure, the UK faces its own challenges.

 

The introduction of the non-prosecution of victims of human trafficking principle in UK legislation, as a defence in throughout the UKunder Art.8 of the 2011 Directive of the European Parliament, has been a much needed and welcome step in the right direction: that of affording some humanity to those who had been stripped of it.

 

The law, in response to the ever shifting slave trade, is evolving still. On 31 May 2016, the Lord Advocate made and published instructions for prosecutors in Scotland when considering the prosecution of victims of human trafficking and exploitation, covering any person over 18 accused of an offencecarried in the course of their having been trafficked or exploited, or as a consequence of the trafficking, and provided that any reliable, credible information from any source exists. The overall aim of the policy has been that of “making the invisible, visible”, by ensuring that all prosecutors in all crime areas are aware of its existence and by removing any onus on the victim to advance the proposition that s/he is a victim of human trafficking.

 

The speakers went on to consider the poor take-up of the National Referral Mechanism (NRM). This is the framework for identifying and recording victims and ensuring that they receive appropriate support, and to discuss the potential reasons for this.  Consequential cases which changed the legal backdrop for human trafficking victims were considered and legislation, both domestic, European and international was duly examined.

 

The discussion was taken up by a panel, which concluded that when inconsistencies in the legal justice system fail to deliver objectivity and equity and when, as a last resort, legal actors must employ extensive court room strategies in order to minimise the resultant gap, much work still remains to be done. Training on trafficking, reporting and inter-agency collaboration, but above all, perhaps the good old Scottish approach suggested by the Solicitor General of Scotland, of dealing with matters with ‘a good deal of common sense and humanity’, would all lead to what has now become a call to ‘march with a firmer step’.

 

For that, however, we must first accept that, uncomfortable as it may be, in this country trafficking does exist. The way a society deals with its victims and its most vulnerable is the true measure of its worth.

 

The Tumbling Lassie Committee: Alan McLean QC (Chair), Patricia Comiskey (Treasurer), Maryam Labaki, Iain Mitchell QC, Eric Robertson, Isla Davie and Janys Scott QC.

http://www.tumblinglassie.com

  • website copyright The Tumbling Lassie Committee 2015

Studying the Bachelors of Law degree with the Open University and what that meant to me as an individual

The Open University has long been an important route for students who are in prison to access higher education. The Open Justice team is currently working to develop opportunities for OU students in prison to take part in pro bono activities. In the following guest post an OU law student reflects on his experience of studying whilst in prison.
Many years before my incarceration, I struggled with education as a whole. I had no idea of how to apply myself, I did not understand a lot of the information, and I did not like to ask for help because I was embarrassed. My mother never had a great education herself as a result of having dyslexia and my father’s first language was not English; they realised I needed extra help that they could not give me, so they found someone to tutor me at home. My grades improved; however, they were never good enough. I attended college and re-sat my GCSE’s over and over again; only to gain low end grades.
I had wanted to study law when I was young, however, with the grades obtained I could not go to University.
Some years later I found myself in prison and I decided I had to do something with my life, so I started to study languages. I all of a sudden realised that my ability to learn had improved significantly. I passed a GCSE in Italian and gained a grade A. at this point I knew about the colleges, but had no idea that I could study with a University from inside a prison; until a lady (the coordinator) from the distance learning team asked me if I wished to study a degree.
I embarked initially on a language degree; however, it was not possible to complete it due to courses having been discontinued.
Consequently the coordinator came to me with a prospectus and said you can pick any subject you want to study.
I had seen prospectuses over the previous two semesters and there had never been law courses on offer before; in prison it is a bit of taboo subject!
Straight away I was drawn to it and I asked the question, am I allowed to study this as a full degree? The response was of course.
W100 was the first year; rules, rights and justice. Previously I had not been interested in subjects but this this was different it gripped me and I could not put the books down. The tutor for that semester was outstanding; he gave me great feedback, which enabled me to gain the skills necessary complete the module and improve my grades on each assignment.
The subject was difficult and my grades were not great; however, I was not going to give up; I had grown to love the subject already.
Many hurdles were thrown in front of me over the years by the prison system and its strict regimes. Luckily I have spent quite a lot of my time in the Private sector (G4S) and they have been very supportive and tried to accommodate me as much as possible over the years.
Year on year I studied the various components that make up the degree and I found my grades kept rising up each year. It was fascinating to learn how vast the law truly is and how far it stretches into everyday life. Each tutor every year is responsible for the improvements that I made, as it was there feedback that helped me to learn.
Before I embarked on this journey it was almost as if I was blindly walking around and always banging into things or tripping up. With what I have learnt I now conduct myself completely differently and I believe that I will be able to make a real contribution to society upon my release.
Of course whenever you study any subject there will be parts you like more than others. For me I excelled in Criminal Law and Land Law. I found both subjects; although very different, riveting.
I graduated last month and received the Bachelor of Laws (Honours) degree; upper second-class. The Open University (OU) attended along with the Faculty of Law and the afternoon was quite special to say the least. Unlike most of the days of my incarceration that I will wish to forget, this will be one I will cherish and not let go of.
Thanks to the OU I have been able to change as a person and I have been given an opportunity that will help me to start a fresh life; a totally different life, a life with real purpose.
So in answer to the question studying the Law degree with the OU has meant the world to me and I hope that sometime in the near future I will be able to further my education and embark on the Masters of Law.

Human rights and access to justice

Our second guest blog is by Open University law student and Open University Law Society Officer for Scotland, Lidia Dancu.

If you would be interesting in contributing a guest blog, please contact us at open-justice@open.ac.uk

Human Rights Day is celebrated each year on 10 December. It marks the day on which, in 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) and it is observed in diverse ways around the world.

This year, JUSTICE, the all-party law reform and human rights organisation working to strengthen the justice system in the United Kingdom, celebrated with a lecture on fundamental rights and the prosecution of crime, held at the Faculty of Advocates in Edinburgh, Scotland. The Lord Advocate, James Wolffe QC, gave a lecture focusing on placing the prosecution of crime in the context of a commitment to fundamental rights.

The Human Rights lecture was introduced and chaired by the Honourable Lady Scott, Judge of the Supreme Court and founder member of JUSTICE Scotland. The evening began in a jovial manner, with Lady Scott commenting on the impressive numbers making up the audience in the rather impressive quarters of the Advocates Library as being somewhat larger than the Lord Advocate’s audience of eleven at the Supreme Court the previous day, and with a reminder of Scotland’s legislators’ understanding and commitment to Human Rights issues in respect of both the rights of victims, as well as those of the accused.

The Lord Advocate embarked on his discourse by citing the vision at the heart of JUSTICE, that of a ‘fair, accessible and efficient legal processes, in which the individual’s rights are protected, and which reflects the country’s international reputation for upholding and promoting the rule of law. He went on to speak of the significance of an independent and objective justiciary delivering fair, efficient and accessible services through appropriate mechanisms and the importance in such a pursuit of implementing strong safeguards against miscarriages of justice. He referred to the influential cases of Holland (1) and Sinclair (2) in relation to defendant’s right to a fair trial, as set out in Article 6 of the European Convention on Human Rights (ECHR) and went on to consider the seminal case of Cadder (3), which ended detention without access to a lawyer in Scotland, bringing the jurisdiction in line with the rest of the UK. A somewhat ironic state of affairs, given that rights to representation by counsel existed in Scotland some 200 years before they did in England and the rest of the UK.

Indeed, the very office of Her Majesty’s Advocate as public prosecutor, the Lord Advocate reminded the audience, was formalised by an Act of Parliament in 1587 and his responsibility remains that of prosecuting crime in the public interest, not as an agent of the victim, and as such, the imperative is to act as an independent and fair actor in the legal process. Prosecutors, he suggested, are agents of change in an overall legal machinery which must be robust, forensic, objective and independent and which respects the dignity of both the victims of crime and that of the accused.

In keeping with the current focus on rights, the Lord Advocate went on to outline the importance of respecting and promoting rights and States’ responsibilities to carry out the positive obligations imposed by treaties and conventions, most pertinently those established by the ECHR. If the ECHR leaves it to the States to implement these rights, the obligation does not terminate there, but extends to a duty of putting in place appropriate law enforcement provisions under Articles 2 and 3 and where serious breaches have taken place, under Article 8. To illustrate the point, given that the evening also marked the end of 60 days of activism against gender-based violence, the cases of M.C. v Bulgaria (4), V.K. v Bulgaria (5) and Opuz v. Turkey (6) were ample illustration of the findings of the Strasbourg Court that the state has positive obligations to protect victims from any form of violence against women, by redefining the meaning of ‘private matters’, whether these centred on issues of non-consent or domestic violence.

Speaking on domestic violence prosecution in Scotland, the Lord Advocate mentioned the relatively high rate of 80% of domestic abuse cases resulting in a conviction following trial. Attainment of high conviction rates, he stressed, is through victims coming forward and giving proper evidence, but it was the public prosecution’s duty to engage with victims, support and enable them. In a legal order suffering from systemic problems (complex diaries and convoluted diets), managing vulnerable victims is a particular complex challenge.

The preamble to the UDHR acknowledges the imperative to recognise the inherent dignity and the equal and inalienable rights of all members of the human family, as the foundation of freedom, justice and peace in the world. In a society where guilt has to be proven in order to gain punishment, the accused, too has fundamental rights and prosecutions must be carried out by the state with rigour, fairness and independence (7). A vigorous and independent legal process is essential to the rule of law and it is at this significant moment of reform of the legal justice system in Scotland that debate on reconciliation of rights between victim and the accused must not be abandoned.

The evening was brought to a close with a few short but passionate remarks provided by David Ogg QC, Advocate and Chair of JUSTICE Scotland, who reminded the gathering of the importance of access to justice, where those in most need of rights often have the least capacity to obtain them. The uptake of Cadder rights, he informed us, remains at an outrageous 25% low and more research is desperately needed in order to ascertain the various reasons why suspects waive their right to legal advice. Lord Eassie (8) has been appointed by JUSTICE to chair its first working party in Scotland which will examine the legal advice given to suspects in police custody. This is matter that Justice has been at the heart of already, intervening in the Cadder case, giving evidence to Parliament, which affected the changes in the Criminal Justice (Scotland) Act 2016. The significant chasm between rights in law and rights taken up in practice and a lack of understanding of its causal reasons has led to the need to review current practice and establish the necessary procedural changes to move proper access to justice beyond theory and ensure it is also effective in practice.

Having conventions on human rights is not enough, David Ogg reminded the audience, the current need is to remember our empathy towards our fellow human beings. This allows us to understand the meaning of pain and discrimination and only by doing so will we be able to re-mould the legal order into one which is autonomous and universally respects the human family.

1. Holland v HM Advocate [2005] UKPC D1, 2005 1 SC (PC) 3
2. Sinclair v HM Advocate [2005] UKPC D2, 2005 1 SC (PC) 28
3. Cadder v HM Advocate [2010] UKSC 43
4. M.C. v Bulgaria (Case 39272/98) [2003] ECHR 646
5. V.K. v Bulgaria. Committee on the Elimination of Discrimination against Women (CEDAW/C/49/D/20/2008) 2011
6. Opuz v. Turkey (Case 33401/02) [2009] ECHR 870
7. Art. 6 ECHR.
8. Ronald David Mackay, Lord Eassie is judge of the UK’s Supreme Courts, sitting in the Inner House of the Court of Sessions.

Pro bono saved me

The Open Justice Team are delighted to introduce the first in a series of guest blogs. This post is by current Open University law student, Mohan Ramcharan.

If you would be interesting in contributing a guest blog, please contact us at open-justice@open.ac.uk

Pro Bono Saved Me

Pro bono publico (English: for the public good) is a well-known phrase, especially associated with law. A lawyer who does pro bono work is doing it free of charge, and is likely helping some poor soul who finds himself in unfortunate circumstances where he can’t afford to pay a lawyer. Sometimes, as in my case, that poor soul doesn’t even know he needs a lawyer.

My circumstances were, I suppose, unusual. I was a tenant renting privately, with a good job, good credit and nary a worry in the world. That good life fell through when I was diagnosed with blood clots in both lungs… a late diagnosis that came only after I had an incessant cough that never got better, and only when I began to cough up blood and went to A & E was a correct diagnosis made after 24 hours of endless tests.

Thus began daily visits to hospital for warfarin injections, constant INF monitoring and absence from work for almost 18 months. Needless to say, I was let go and being ill at the time, could not take on a legal battle against my then employers. That wasn’t the really bad part though. As I was unable to work, I began receiving Housing Benefit (HB) to offset my rent, which was more than the HB payments. So every month, I was getting deeper in debt to my landlord by about £60, which was making him annoyed. A discretionary housing payment was thus made to him and the debt squared.

The real problem started when the there was a gas leak in my area, and a whole section of underground pipes had to be changed. Each house was then spot checked, and the inspector found there was a gas leak from my stove (cooker) and an illegal connection to the flume in the attic. The gas to my home was then condemned and shut off; the recommendation was for a new heating system, a combi-boiler, to be installed. This was in May of 2011.

The landlord kept saying he had no money to install a new system, and I was not able to move as the Council advised I ‘would be making myself homeless’ and then will not be able to get further help, either in alternative accommodation, or in HB. So here I was in a ‘proper pickle’ as it were. I struggled with my illness, still receiving warfarin treatment, all through the year and through the winter of 2011. I lived in a house with absolutely no heat, no ability to cook and no alternative to go anywhere, no matter how many complaints I made to the Council or to the different authorities I could think of… the result was the same – no help as they could not force the landlord to install a new heating system if he claimed he had no money, even if the house was ‘not fit for habitation’.

In February 2012 I had an angioplasty as I developed a heart condition that required immediate treatment. Even with this new problem, the Council refused to assist. The Housing Officer who visited me said I needed no help, as my medical conditions were not such that I could not survive on the streets. Yes, the criteria to qualify for housing is that if you are ‘street homeless’ it would be injurious to your health. If not, you are literally expected to survive on the streets!

By this time, I had sunk into a severe depression and was receiving treatment in the form of anti-depressants and anti-psychotics, as – no surprise here – I had actually begun having thoughts of offing myself to put an end to my misery.

In an odd moment of clarity, I received an email from a young lady at Carillion Housing who told me that she was sent my matter as a pro bono case. I had no idea who referred me to her, but I had been calling around to various law firms and to legal clinics for advice. The long and short of it was that this young lady took up my matter and in a manner reminiscent of Perry Mason, or Rumpole of the Bailey, she wrote a brilliant letter making the point that if I were ‘street homeless’ I would not have access to a fridge to store my medication as required (s189(1)(c) of the Housing Act 1996 as interpreted in R v Camden LBC ex p Pereira (1998) 31 HLR 317, CA). Surely such a small thing, but I could not survive on the streets as I would be ’more vulnerable’ without my medication and I wouldn’t have a fridge on the streets. Who knew?

That little point was the dam that began turning the tide for me. The Council acknowledged that she was correct, and I was given an opportunity to view a flat where I relocated after approving it. Before moving into it, I suffered a heart attack which I survived only because I was in the hospital (I refused to leave when they were discharging me as I was still having pain). I am still here in the flat, where I moved in July 2012 at which time I still had no heat at my old address! One year fully without heat and not being able to cook.

My biggest regret is that I never got to thank that young lady as when I sent an email, I was informed she was no longer working there. Maybe she was just a new graduate doing some free work or getting experience, I do not know. I know that her intervention saved me in more ways than I care to admit, and if she can read this and remember, please know that my thanks is without limits.

Pro bono might be tiresome to lawyers, especially well-established ones – but for people like me it makes all the difference in the world. I am currently pursuing a law degree myself and doing quite well in my exams. I do advocacy part time and remember my own situation when I try to help others. Others may need that helping hand that I received out of the blue.