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.

What do university law clinics do?

Work is continuing apace on our Open Justice project and we hope to have plenty more to share in the next few months. In the meantime, members of the Open Justice team have also been attending various events, including a great day on supervising university law clinics, so we thought we’d share some thoughts about how these work.

From talking to various universities with established law clinics, it seems the format can vary greatly. Although all have the core aim of providing legal advice and assistance to members of the public who are struggling to access it via other means, there are lots of different approaches taken.

All law clinics have some form of “triaging” process, whereby initial queries from potential clients are assessed for suitability. This is really important to ensure that students working in the clinic are being given issues they can deal with and that clients are going to receive useful support – as someone said to us, it is not the case that any advice is better than no advice! If the queries aren’t suitable, then law clinics will usually offer some form of referral service, or at least some suggestions as to who else might be able to assist.

Following that, there is then usually a face-to-face interview with the client. It seems that sometimes this is conducted by students working alone, at other times with students being supervised by staff members from the law clinic, or solicitors and barristers from local firms. The students will have to make a careful record of what is discussed. They will then need to undertake research on the issues that have been raised.

Whilst some law clinics seem to provide verbal advice virtually on the spot, with students conducting any research right there and then, most seem to require students to spend some time reflecting and then draft a letter of advice for the client. At that point, some clinics might refer the client on to a local law firm, others might be prepared to take on potential claims and act for the client at a tribunal or court hearing, with a variety of other approaches in between.

So far, at the Open University, we are planning to initially offer an advice-only service based around contract, tort and consumer rights issues – areas which will sound very familiar to any W202 students! Instead of face-to-face interviews, our plan is to offer an online alternative, supervised by members of the Open Justice Team. Students will then have the time to research the issues and draft a letter of reply, with the possibility of a follow-up interview.

Developing a law clinic at the Open University raises lots of challenges – how can we ensure clients can access our services easily, how can we utilise the technology we have most effectively and give students and clients the best possible experience. All university law clinics also face wider questions – should advice be provided to businesses, what is the best way to comply with laws on data protection and confidentiality (amongst others) and how can students best develop the skills needed to support clients.

These questions can be challenging, but we believe that there is huge potential for our Open Justice project to add to the amazing work already being done in this area. Watch this space!

Emma, Hugh and Francine
The Open Justice Team