The Criminal Justice System Lottery: A Solution

By Fraser Barnstaple

 

Jeremy Bentham commented in the 19th century that when the cost of litigation is too great, entry to the system becomes a lottery to which only those with a golden ticket (money) can gain access. Unfortunately, the current state of the Criminal Justice System (CJS) means this rings true today, which highlights the need for change. This post will consider the CJS in the narrow sense, concerning three main branches- judiciary, legal profession and court systems, rather than in the broader sense which also pertains to the police and prison systems.

This post will propose a part-privatisation of the CJS, whereby the court system is privatised, with the judiciary and criminal legal profession remaining state-funded.

 

Is the State adequately financing the CJS?

Legal Aid has seen several cuts, most notably in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which introduced a stricter means test to qualify for free representation and an ‘innocence tax’ for successful defendants. Other cuts have also resulted in a decline in advocate fees and CPS funding, which has severely strained the criminal bar profession and impacted the recruitment and retention of criminal lawyers. Furthermore, the court systems have lacked adequate funding, resulting in many court closures and a backlog of cases estimated to last for several years.

The CJS is, evidently, inadequately funded but the situation is even more serious. The right to access to justice is enshrined within the European Convention of Human Rights (ECHR), Article 6. However, the strict legal aid means test inevitably denies justice for some who cannot afford representation. Additionally, a long waiting time caused by the case backlog delays ones’ right to justice. These run contrary to the principles contained in the ECHR. Therefore, the need for change is palpable.

 

The Solution

The criminal legal profession must remain state-controlled because there is no feasible way of creating or maintaining a privately funded one. Third-party funding, for example, would be very difficult to obtain for defendants. Litigation funding through private insurance schemes is possible but raises various ethical issues, such as the potential exclusion of individuals who lack the funds or awareness to purchase legal insurance. This could deny justice for the less advantaged and thus be contrary to Article 6, ECHR.

Similarly, the judiciary must also remain state-funded. Historically, judges were paid per hearing which conflicted with adjudication principles because judges were encouraged to have a personal interest in the speed of the case. A privatised judiciary risks bringing this back. Furthermore, a core principle of the UK judiciary is independence from external pressures, both political and private. A private judiciary would have to balance its usual functions alongside profit considerations. One potential concern is that this would amount to selling justice, as prohibited by Magna Carta, Clause 40. Although selling justice as described in the Magna Carta relates to the principle of justice, not the systems, privatising the judiciary would amount to selling justice because justice as a leading concern for judges may not be preserved when competing with profit.

For the above reasons, full privatisation of the CJS is not feasible. Instead, society can instead afford partial privatisation.

Therefore, a potential solution to the current crisis is the privatisation of the third branch of the CJS- the courts and tribunal services. The proposal is to privatise the entire court system. This would be necessary because of the inability of the criminal courts to make a profit on their own. The profits made from the civil courts, including the lucrative commercial courts, could be used to subsidise the criminal court. Therefore, the system will be funded through court fees, primarily from litigation in areas of civil law. Concerns that the court should be free of any external interests are understandable. However, the current state of the CJS is dire, and concessions have to be made to ensure justice is provided. The benefits of the market could be used to increase the courts’ efficiency and reduce the backlog. Furthermore, the money saved from funding the courts could be reallocated to the CPS, judiciary and legal aid. One concern is that the reliance on court fees to fund the court system would mean they increase to a level that denied access to justice for those who cannot afford higher court fees. This piece proposes that the money saved from privatising the court system could be partially reallocated to increase legal aid and provide a mechanism for those in financial need to access justice. Therefore, this would not be selling justice in the way Magna Carta Clause 40 meant, because the principle of justice can still be achieved. Selling the courts does not mean selling justice. It is facilitating justice.

Additionally, the Anti-social Behaviour, Crime and Policing Act 2014, s180 provided a provision for the courts to charge enhanced fees above the cost of the service. Therefore, the courts operating on a profit-making basis is not an entirely new concept and has not been seen to ‘sell justice’.

Potential privatisation of the HMCTS (one far wider than proposed here) was leaked to the press in 2013, which provides some useful discourse. The initiative was estimated to save the Ministry of Justice £1billion a year which, as discussed, could be reallocated to other components of the CJS. However, Lord Judge stressed the need for a private court system to “operate in the public interest”. One way to ensure private investors do this is to create a regulatory body, whose task would be to ensure this objective is respected. Furthermore, it was recommended that the government should have duties and powers to intervene should the new system fail, which should be adopted here.

Another consideration is how an independent judiciary would fit into this. When two sporting teams play one another, they do so at a privately owned venue, but with the game under management from an independent referee provided for by a governing body. This referee is free from the profit motivations of the venue. The judiciary could mirror this. They could also be given a role in the organisation of the new system to foster integration. These suggestions facilitate the coexistence of the judiciary and privately-owned court system.

 

Summary

The state of the CJS is damaging access to justice through its inefficiency and barriers to entry. The proposed privatisation of the courts is necessary to preserve and rejuvenate the CJS. It would be a facilitative act, which could benefit wider society by improving access to justice and changing the system from the lottery Bentham criticised to an open platform.

To the Triumphs of Feminism: Open Hearts, Open Minds

By Richelle Khor

 

Women in Modern Society

In Margaret Atwood’s The Handmaid’s Tale, the submission and subjugation of the female characters depict the potential encroachment upon feminism engendered by society’s indifference towards women’s rights. A finding by the UN Women (Facts and figures: Women’s leadership and political participation) proves that while there is progression in the awareness of gender equality, residual patriarchal notions manifest themselves in the underrepresentation of women in political leadership and their vulnerability to physical or sexual violence. While there is a world-wide aspiration to eradicate the prejudiced portrayal of women, the encumbrances faced by them amidst the pandemic underscores the need for them to gain better access to justice. The feminist governance model introduced by Patti Whaley demonstrates the transformative power harboured by men and women to achieve this. The article highlights approaches in which the self-awareness and zero tolerance principles espoused by Patti Whaley can be adopted to ameliorate the representation of women in society and their access to judicial forum.

The Vulnerability of Women

The pandemic impacted men and women differently and brought issues concerning women’s mental health and autonomy to public attention. One of the issues was the disruption to the supply of drugs used for reproductive health when countries went into lockdown. It was reported that women faced significant delays in receiving family planning services, resulting in potentially millions of unintended pregnancies and maternal deaths (Palladium- More than Contraception: Strengthening the Reproductive Health Supply Chain in the Wake of COVID-19). The provision of family planning and other sexual and reproductive health commodities form the kernel of women’s health and empowerment, and the need was addressed by the World Health Organisation (WHO) in updating the guidelines that deem family planning as essential. Impeded access to sexual and reproductive health resources disempowers women as they become unable to make informed decisions over their bodies. Hormonal imbalance can also give rise to emotional instability: oestrogen and progesterone, which is found in family planning drugs, have been found to affect neurotransmitters, and the neuroendocrine and circadian systems that have been implicated in mood disorder, and a drop in oestrogen and progesterone resulting from being unable to access these drugs can make women irritable and anxious. With the mental state of women weakened by the abrupt crisis, these reasons call for the implementation of a more resilient protection system during the pandemic.
Lockdown restrictions left females ensnared within unbalanced power dynamics and the domain of abusing partners. The 65% rise in domestic abuse cases reported by the Crime Survey for England and Wales reflects the ramifications of pandemic countermeasures. As mobility was encumbered, some households were subjected to increased pressure, which consequently exacerbated the existing tensions within. Community structures and care facilities that protect females had their efficiencies hampered by the pandemic and were not able to respond instantly to their needs, further disrupting their access to immediate assistance. Even more concerning was the fact that according to the London’s Metropolitan Police, the calls were mainly from third parties, rather than the survivors themselves. Had it not been the intervention of third parties, such cases would not be reported. It illustrated the inability of the victims in seeking help for themselves and the perturbing possibility of the existence of many more who are suffering in silence. Concerns regarding women’s quandary in obtaining legal advice incited zealous discussions, which led to the evaluation of feminism against the backdrop of contemporary circumstances. Women are routinely silenced and ostracised for vocalising their thoughts; the social shackle creates their tendency to internalise the repression. The role of access to justice becomes prominent in issues of female disempowerment as the rule of law buttresses women against discrimination and supports them to reclaim their independence in making strategic life choices.

Self-awareness

One of the feminist principles embraced by Whaley is self-awareness- the conscious attempt of accepting vulnerabilities and cherishing personal strengths. Women should recognise that apart from the disparities in physical strength, they harbour the same capacity to contribute to the society through other means. The widespread accessibility of education has engaged more women in intellectually rigorous sectors, which brought about a flourishing phenomenon whereby there are more exemplary female figures breaking glass ceilings. Among the most remarkable is Sandra Day O’Conner, who was the first women to serve on the Supreme Court of the United States and a feminist advocate. As such, self-empowerment is an essential first step. Legislation such as The Equality Act 2010 was enacted to facilitate females to exercise their autonomy in defending their rights. Section 78 mandates the information relating to the employees’ wages to be published and transparent. Such statutory provision provides redress to the issue of workplace sex discrimination and consequently unfetters women from the “sticky grounds” (tendency for women to restrain themselves from opting for better opportunities and modify their ambitions due the unequal treatment in the workplace). Rather than mentally enslaving themselves to the visible limitations, women should strive to emancipate themselves from the social chains that restrain them from exploring their prowess. The picture of damsels in distress is an artefact of the past; improved access to justice is a prerequisite for women to enjoy stronger legal autonomy.

On the other hand, the principle applies equally to men. Men should acknowledge women as their counterparts on equal grounds to dismantle the bias that women belong to an inferior class. Particularly in male-dominated sectors like the legal profession, initiatives such as The Women in Law pledge was launched by The Law Society UK to champion positive changes for equality in the industry. Apart from solely advocating that women are equally competent to make informed and analytical decisions, another avenue worth pondering would be the source of institutional privilege in the hands of men. As all modern societies find their roots in agrarian civilisations, men’s higher endurance and physical strength was directly and fallaciously translated into power. The injustice implicit in the belief should be exposed – it is tyranny to exploit advantages constructed upon gender alone. Women’s rights are a human rights issue that requires men to question their power dynamics and consider their roles in widening women’s access to justice. This is resonated by the UN HeForShe movement that encourages men to involve themselves more actively and maintain long-standing support in order to spread the awareness.

Zero Tolerance

The second zero tolerance principle to be discussed projects the collective responsibility of various social groups onto the blueprint. Reni Eddo-Lodge, in Why I’m No Longer Talking to White People about Race, remarkably illuminates the all-encompassing nature of the movement- “Feminism, at its best, is a movement that works to liberate all people who have been economically, socially, and culturally marginalised by an ideological system that has been designed for them to fail.” Perceiving it as women’s vehement expression that is fomented by men-rancour is a misinterpretation that usurps the essence of feminism. It is an evolution that celebrates the social paradigm where mutual respect is peacefully and seamlessly incorporated into the power dynamics between genders. Participation of law firms in Pro Bono work has increased alongside their heightened willingness to devote their expertise to empower people in need to assert their legal rights. Free legal advice to victims enmeshed in discrimination and domestic abuse cases attempts to erode the cost barrier to justice. Pro Bono legal work reaches out to marginalised groups who are not well-informed of their rights due to the lack of legal education. Access to justice is broadened significantly when more women possess the awareness to vocalise the disturbance they had experienced rather than internalising it and indirectly contributing to the vicious cycle. Availability of legal remedies injects the realisation that the conduct in question is held to be reprehensible and should not be tolerated. There is also a thriving trend among young people and student communities to engage in Pro Bono work through internal opportunities such as Lawyers without Borders (LWOB) and Junior Lawyers against Poverty (JLAP) that are propelled by the mission to nurture liberalism among younger generations to dauntlessly call out abusive and discriminatory actions. More young people should be invited to speak at international conferences about their visions of the future because they stand at the frontline of revolutions.

Conclusion

We have a dream. The dream can only be realised in an egalitarian society, whereby the conduct of everyone is guaranteed to be free from harassment and coercion. The pandemic has undoubtedly generated unfavourable ramifications that aggravate the social stigma and plague the agencies’ ability to ensure the protection of women. Industries where women are overrepresented such as hospitality, retail, and manufacturing suffered the most severe economic blow. The pile-on effects of work pressure and childcare responsibilities force women to consider leaving the workforce, according to a study conducted by Lean In. Even if they wish to return, they are likely to receive an offer 7% less than other candidates (The US Bureau of Labour Statistics), reflecting the inherent problem of the lack of support given to working mothers. Humanity must exercise its capability to demonstrate active resilience in the face of unforeseen perturbations. Women networks are powerhouses that fight for wider representation to embolden the community to inspire and create their impact. More significantly, women ought to possess the full awareness to love and appreciate oneself, acknowledging that their mental and physical well-being are within their control. Where violence threatens, justice prevails. All individuals should rejoice in equal access to justice; the rule of law remains central to our legal system that progressively awakens to the influence of women.

A Treasure Hunt with Freedom Law Clinic

By Ee Vi Lim, First Year LLB Student, Freedom Law Clinic Case Worker

 

As a child, I was amused by the idea of finding something by surprise in a pile of soil or sand. I guess this explorer mindset have not left me as it was rekindled when I ventured on the journey with Freedom Law Clinic (FLC). This time, it is not to find a bottle or a seashell but to find a piece, or fact, that may or may not hold the power of overturning a convict’s life. As I shared in my previous blog post, access to justice comes at a hefty price. Hence, the search that FLC is putting us on is one that gives an actual human being the opportunity to be righted, if needs be.

That said, with folders and folders of evidence, I find myself in a sandbox that is larger than anything that I have seen before. The student caseworkers and I were tasked to source evidence against a particular conviction for a serious criminal case. Honestly, the hardest part is to find a way to start because initially, I was like a wanderer, floating by the stack of papers in search of a direction. As a Law student, I have the habit of going into a legal judgement to search for answers. Having been trained to look for the binding ratio decidendi, this training which requires me to question and to doubt the judgement proves to be something unique.

In an archetypal detective movie, one would imagine an office with sheets of paper evidence lying around the table, waiting to be picked up by the eagle-eyed detective for scrutiny. My case was similar, but slightly modernised. I found myself sitting in front of a multi-tabbed window cramped on a multi-window screen as I try to mentally piece everything together. I can remember the one time when I had my eye on two pieces of evidence that didn’t seem to click in my head. Initially, I thought it was just because I myself couldn’t comprehend it. It was not until the supervision session with my lawyer mentor that I came to appreciate that if something seems to be inconsistent, it could be the case that it actually is.

If I could only say one thing that draws Freedom Law Clinic apart, it would have to be how committed it is to developing young caseworkers like us. From the comprehensive e-learning resources to the weekly touch points with an actual criminal lawyer, I am thankful to have grown to be more confident in my own legal analysis. For a novice caseworker like me, it is not easy to discern whether I am being merely confused or I have managed to spot significant incoherence in the facts. Over the weeks of feedback, the line between the two seems to become clearer. Thinking back to the early days of my Law degree, digesting case facts could be quite overwhelming but because of FLC, I can now see facts in chronological sequences, and map out the web of relationships between parties. The impact of this programme on me, and for the other participants alike, is something that we can carry with us wherever we go – whether it is a mock trial competition in university or fighting for justice in important cases down the road. I was told that in Freedom Law Clinic, they pioneer legal education that changes the world; now that I have experienced it for myself, I know that it is true.

When I started out on this journey, in search for a treasure, I did not expect that I would walk out of it finding that the most valuable learnings are ingrained in myself.

Technology and Access to Justice

In the legal sphere, technological reform of the judiciary has prompted discourse surrounding the effectiveness of technology in tackling social disparities. While it is indisputable that technology has had and will continue to have a profound influence on the legal system in the United Kingdom, it remains contentious whether, regarding access to justice, such an influence is advantageous.

Justice Reform

In the United Kingdom, a GBP 1 Billion justice reform programme was launched by Her Majesty’s Courts and Tribunals Service (HMCTS) in 2016 (The HMCTS Reform Programme (2018), gov.uk). The initiative is targeted at changing approaches to the administration of justice. One of the main elements hindering access to justice is the inability for individuals and the state to afford legal proceedings. In an effort to cut costs, 50% of courts have been closed since 2016 and it is expected than many more will follow in the years to come (Constituency Data: Magistrates’ Court Closures (2019), House of Common Library). Through the implementation of such measures, the HMCTS has achieved a result antithetical to their objective. Geographically, access to justice is significantly frustrated as opportunities to achieve justice become more remote. Nonetheless, the HMCTS maintains its commitment to promoting access to justice. Though it may seem counterintuitive to decrease the number of available courts whilst pursuing accessible justice, such measures introduce an opportunity for technology to become a more primary tool in the legal sector.

The Role of Technology

In the United Kingdom, mechanisms are already in place to reduce inefficiencies in the judicial system. Cases of limited complexity can be dealt with online with the support of a mediator thereby reducing state expenditure on legal services which may be alternately purposed to support vulnerable groups without access to justice. Technology enables greater efficiency and consistency in legal practice. Various software such as research, verification, and archiving technologies are bound to reduce the hours spent on a case. Tasks considered mundane to the average lawyer have the potential to be quickly and efficiently concluded by such software ultimately reducing the cost of legal services and subsequently increasing access to justice. Legal software does not only increase access to justice in the obvious sense in which it makes it more affordable, it also makes the law more accessible in terms of comprehension. There are countless apps that have recently been introduced into the market which contain a library of explanatory videos, simple definitions, and opportunities to live-chat with a legal professional. Technology simplifies the law for the layperson and facilitates a ‘self-help’ approach to legal practice. The significant influence legal technology has on an individual’s ability to access justice on their own has the possibility of reducing the need for expensive legal services and proceedings.

Social Media

Social media undoubtedly enjoys a major influence over society. The more legal institutions develop an online presence, the greater their reach. Various non-profit organisations use social media profiles to educate the public of their rights. Many such profiles even provide the opportunity to be matched with a practitioner based on particular needs. As many may not even think to consult a legal software to become informed, social media allows different institutions to educate the public in a non-confrontational manner. In contemporary society, having a social media profile on one or more platforms is quite likely and it appears that using social media to improve access to justice has the capacity to reach much of the population.

The Digital Divide

Nevertheless, the digital divide cannot be ignored. Statistics show that the elderly and economically disadvantaged individuals are those most affected by the digital divide. Older generations are often sceptical of technological advancements and may choose to opt out of the newest developments. Alternatively, those who are economically disadvantaged may find themselves unable to afford or access relevant technology. If the HMCTS justice reform programme is focused on modernising the courts system, one must consider how this may influence those without adequate access to or understanding of technology. As a means of remedying this issue, the United Kingdom has committed to assessing the impact of the reform programme and implementing appropriate solutions. As such, the HMCTS has introduced an external advisory panel which objectively considers outcome, access, and costs in relation to the programme (Ibid.). Continuous monitoring allows the programme to adapt quickly and limits opportunities to hinder access to justice. Through constant analysis of the impact of reform, it appears that technological advancements in the judiciary have the potential to become of great benefit. The advisory panel aims to focus their evaluation on vulnerable groups and those with limited technological capabilities.

Conclusion

It appears obvious that the technological revolution occurring in the legal sphere has had a profound influence on all those involved. Technology has positively influenced the judiciary in that it has enabled service extension, cost restriction, resource preservation, and enhanced legal services efficiency. Contrarily, the technological reform of justice has indeed exercised a negative influence over access to justice for vulnerable groups. Technology facilitates the progression of the legal system into an innovative and forceful system. The generation of financial savings and increased efficiency should not disrupt the function of the courts. While it remains contentious whether technology in the legal sector has wholly positive or negative influences on access to justice, it is evident that consistent evaluation of progress can lead to a technologically advanced legal system that supports all vulnerable groups regarding access to justice. While developing technologies, the equality of the legal system should remain the foremost concern. Current systems are not yet fully capable of furthering access to justice, but constant evolution and assessment should eventually promote this ambition.

Reflection on the Magistrates’ Scope of Sentencing Powers

By Charmaine Chang

 

In 2003, the commencement of Section 154 of the Criminal Justice Act 2003 extended magistrates’ sentencing powers to 12 months’ custody to clear court backlogs. At present, crimes warranting a jail term of more than 6 months must be sent to Crown Court for sentencing. However, the extensive discretionary power for legally untrained magistrates has been criticized as the “height of irresponsibility” . By bringing this crisis in the criminal justice system to my attention, JUSTICE’s Magistrates Project prompted me to look beyond the black-letter law and personally assess the processes and outcomes in respect of lay magistrates’ decision-making powers.

i) The backlog in criminal courts
The increasing backlog of cases has been exacerbated by COVID and has impacted the victims and defendants negatively. Some defendants are held in custody on remand while waiting for months and years to have their cases heard. Victims found it harder to recover from their traumatic experiences, as they revisit those experiences on the postponed trial date. The caseload in the Crown Court increased substantially since mid-2019, in particular, London’s Crown Court backlog increased by 72% (compared with 18% in the Southwest). The use of remote hearings may be invaluable, but the backlog of cases continued to be a barrier to efficient justice.

ii) The strengths of magistrates’ courts
The perceived strengths of magistrates include awareness of “local needs”, “broad experience of life” with diverse perspectives, fact-finding, bail, and sentencing. However, often, three magistrates were needed to spend time in simple cases such as road traffic cases. Further, it is not unusual that the defendant does not turn up or does not contest the matter as we have observed. It appears that just one magistrate is enough deal with these straightforward matters to fully utilise manpower. Extending the sentencing power of magistrates allowed them to deal with more cases, not leaving resources idle. In fact, the Ministry of Justice estimates that extending the sentencing power of this could free up almost 2,000 extra days of crown court time a year. Thus, to fully utilise the core strengths of magistrates and reduce the backlog, increasing custodial sentencing powers appear to be an attractive option.

iii) Risk of injustice
However, the fact that magistrates are not legally qualified casts doubts on the wisdom of increasing their sentencing powers. Nicholas Moss JP warned against the risk of magistrates’ sentences being more punitive than those currently imposed by the Crown Court, and it was said to be “a legitimate public policy concern”. It is concerning that the outcomes of more serious crimes, such as attempted murder, serious injury, were left in the hands of lay magistrates. Based on our observation, we also recognised that in practice, there is too little time for magistrates to make decisions with a heavy caseload. These factors led to insufficient reasoning from magistrates.

Beyond imposing additional pressure on the prison population as envisioned by successive governments, short sentences are shown to have a disproportionate impact on the impecunious and marginalised. Not only do sentences less than 12 months provide no real support to individuals to overcome issues concerning mental health or homelessness, but it also worsens their vulnerability. Alternatively, the Ministry of Justice’s community-based solutions might be even more effective in preventing crimes. The All-Party Parliamentary Group (APPG) on women in the penal system further argued that arrests of women are often unnecessary and disproportionate for being drunk or being a nuisance. While I do not fully endorse such a proposition of reducing arrests on a particularly vulnerable group, it is clear that supplementary measures are needed to safeguard substantive equality.

iv) Lack of Transparency
The commencement of s 154 is also criticised for its lack of transparency. Previously. Transform Justice has asked for information on the Ministry of Justice’s modelling on increased sentencing power of Magistrates, for access to the Ministry of Justice’s modelling on increased sentencing powers for magistrates. Yet, the Secretary of State responded that a model predicting the policy impact on all stakeholders across the criminal justice system was “not currently available”. Given the lack of impact assessments, its impact on the prison population is obscure.

Conclusion
While the new measure appears to empower magistrates to deliver swifter justice, the paramount concern lies in maintaining public confidence of just sentencing, subject to modern expectations of more efficient modelling. I believe further training and development of magistrates’ courtroom performance needs to be improved by the introduction of a specific qualification. Additional guidance, impact assessment and details of magistrates’ training should also be made available to the public to allay concerns. Overall, the court observing experience has been rewarding in terms of practical knowledge and the insight gained into the criminal justice system. However, one limitation of the project might lie in the variety of cases, in which the application of the Bail Act 1976 may not apply to each bail hearing. Nonetheless, such observations raise serious issues to be analysed and examined further and are an incredible opportunity to see the law in action.

Access to Justice and Family Law in a Post-LASPO Era

By Charmaine Chang

 

Since the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), the demand for free legal advice has been growing steadily. However, due to the limited capacity of legal aid family lawyers, access to justice has been greatly impeded. Not only do multiple clients fail to engage with an affordable solicitor, but vulnerable family members have also been adversely affected by unresolved legal problems. As a student assistant in UCL Integrated Legal Advice Clinic (iLAC), the 4-month experience has shed light on the scarcity of free legal advice.

Effect of LASPO
A month ago, I received a call from an anxious elderly man, who was concerned about his daughter being abused by her husband. She had called several law school clinics and solicitors, but only to find that there was limited capacity for a free consultation. Looking for information online did not help him to bring a claim for his daughter on his own. The pandemic further worsened the situation when his daughter was stuck at home with her abusive husband. Unfortunately, as the clinic does not specialise in family law, the client was only able to receive one-off advice on family legal problems. This led to me wondering if one-off advice would amount to an effective solution to solve their urgent legal problems. While we did signpost him to other clinics with expertise in this area, the delay again, may deter them from seeking legal aid.

This problem is exacerbated by the fact that low-income earners often may not have the social network that extends to people with relevant expertise to help them. Research published by the Ministry of Justice found that most litigants in person in the family courts are unrepresented as they were ineligible for legal aid and could not afford representation . Given the complexity of family law, it is unlikely that victims could adequately represent themselves when navigating domestic abuse proceedings, divorce, or child proceedings. This is particularly true for victims with protected characteristics, be it long-term illness or disability.

The adverse effects of legal aid cuts in the family law context mainly affect women and children, which undermines substantive equality. The distress that stems from legal problems also seems to be worsened by the legal proceedings themselves. Placing the victim in the court, and potentially facing the unrepresented abuser only serve to perpetuate the experience of abuse. Worse still, direct cross-examination may even deter victims from pursuing legal protection, ultimately barring them from access to justice.

Alternatives to legal aid
While the legal aid cuts seem to increase the importance of pro bono lawyering for the most vulnerable, the lack of capacity in pro bono clinics ranging from LawWorks, the Bar Pro Bono Unit, Citizens’ Advice Bureaux to Law Centres and the lack of funding in the clinics means that they do not present the most suitable solution.

The backlog of hearings and the legal aid cuts may have prompted a move towards Alternative Dispute Resolution (ADR) but is arguably not the most helpful alternative for the vulnerable. In justifying the legal aid cuts, the government recognised that the legal aid reform will force individuals, businesses and public bodies to “take up mediation and other forms of alternative dispute resolution to help solve their problems”, which is in line with Family Justice Review. While the benefits of alternative dispute resolution – cost-effective, efficient, less adversarial etc are rightly recognised, some cases are not suitable for mediation. For instance, dealing with and cross-examining expert evidence to serious sexual, physical harm of a child, and cases where serious mental health issues are involved. However, the exclusion of these important cases is not sufficiently remedied.

Conclusion
Given that it is the state’s responsibility to provide legal aid, and to retain quality advocacy in the publicly funded legal system, it is clear that reform is needed to secure fairness in the justice system. As a law student with aspirations to practice family law, my pro bono experience gave cause to reflect upon the role of legal practitioners, students and the state to narrow the gap between the law’s stated ideals and the reality of its implementation. For the benefits it brings to the public and lawyers from the most junior ranks to the senior, encouraging a pro bono ethic is of paramount importance to relieve the damage being done to families to meet the need created by LASPO.

The Failure of the GCM and the ICRMW to Protect Migrant Workers From Injustice

By Fraser Barnstaple

 

Introduction

One international access to justice issue relates to the protection of migrant workers. Two key documents which contain important provisions for migrant workers are the Migrant Workers Convention (ICRMW) and Global Compact for Migration (GCM).

Migrant workers are, by nature, vulnerable within society. They lack the support, rights and familiarity which citizens enjoy, and the international community has not done enough to address these issues. The ICRMW and GCM are supposed to protect the interests of migrant workers. This post will explain why despite the value brought by the documents, they fail to provide effective protection for migrant workers. Consequentially, and the key point in relation to access to justice, is that migrant workers do not have effective means of shielding themselves from the injustices they face. Another purpose of this blog post is to draw attention to the lack of protection for migrant workers which increases the potential for injustice, as they remain exposed to exploitation in various ways, such as by discrimination and inequality that results in them obtaining a reduced level of rights and power within society.

 

What is the ICRMW and GCM?

The ICRMW ‘represents the most comprehensive treaty specifically devoted to the rights of migrant workers’. It was adopted in 1990 (but was not in force until 2003 due to limited ratification – discussed below) and its compliance is overseen by the Committee on Migrant Workers (CMW). The GCM is a more recent development and describes itself as a ‘non-legally binding cooperative framework’ with the purpose of making ‘an important contribution to enhancing cooperation on migration’ (Para 15). It mostly reaffirms and restates important objectives for migrants such as the prohibition on slavery and forced labour (Art 11), the right to liberty and security of person (Art 16) and equality with nationals’ employment payment and other working conditions (Art 25).

Why are these important? Migrant workers are often exploited for cheap, unstable labour under poor or sometimes extremely dire, working conditions. More generally, migrants are vulnerable to abuses and exploitation and need protection via an effective system of international human rights. These rights, and all rights of migrant workers, are important because 169m out of 272m international migrants in 2021 were migrant workers. Therefore, the ICRMW and GCM are arguably more relevant now than they have ever been.

 

Why are the ICRMW and GCM inadequate?

ICRMW

The ICRMW is significantly flawed. Currently, just 55 nations have ratified it. This is a real shame because the rights contained in the ICRMW have the potential to provide access to justice for migrant workers. Low ratification could be for various reasons, the primary being, as Alan Desmond (a prominent academic in Immigration and Refugee Law) notes, a lack of political will. Another reason, linked to the previous, is that Part III ICRMW provides rights for all migrants- both legal and illegal, which many states are reluctant to recognise. Furthermore, most ratifying nations are from the ‘global south’. The world’s most developed countries, including all EU-member states, have not ratified. These nations have the best capability to implement ICRMW and provide expertise on the implementation and governance of the treaty. Furthermore, these developed countries are primarily countries of destination. These factors greatly weaken the protection provided by the ICRMW, leaving its benefits relatively obsolete in many states. This, in turn, has affected migrant workers’ access to justice because the benefits of the treaty, such as the rights mentioned earlier on in the post including the labour rights and other rights of freedom, cannot be enjoyed in countries such as the UK and the USA, where a vast number of migrant workers reside. It also calls into question the commitment amongst Western states to international human rights and values.

Additionally, the CMW is ineffective. Vincent Chetail, a leading academic describes it as ‘the poor cousin of the UN treaty bodies’. It oversees state compliance with the ICRMW through various functions, the most important being concluding observations on states’ reports. However, these are merely recommendations and are not binding. Additionally, Articles 76 and 77 ICRMW provides important inter-state and individual complaint mechanisms. However, neither has come into force because the committee’s competence to do these tasks has not been recognised by enough states. The CMW is therefore deprived of the ability to make some important interventions, making it a weak and severely constrained committee. This consequentially weakens the effectiveness of the ICRMW because its implementation mechanism is flawed, meaning the rights designed to protect migrant workers remain on paper and do not facilitate justice or prevent injustice in reality.

It is undeniable that the ICRMW has been inadequate. However, there is optimism that the ICRMW can be effective in the future. It can be used as a lobbying tool and benchmark to critically assess current migration policies and encourage higher minimum standards by ‘contextualising a broad range of existing [HRs] to the specific situation of migrant workers’. This concentration on migrant workers’ rights can therefore be very valuable. Therefore, the value of the ICRMW may be more in sentiment than in substance. Additionally, south-south migration now exceeds south-north migration. Therefore, the ICRMW may gain greater significance given the ‘global south’ ratifying countries are experiencing increased migration.

These are some positive signs, suggesting the ICRMW is not completely redundant. However, it is not close to providing the protection required for workers as it stands. Simply, without the ratifications, it will continue to have limited significance.

 

GCM

Fortunately, the GCM has various benefits over the ICRMW. Unlike the ICRMW, it does not suffer from a lack of ratification or awareness. It gained 152 votes in favour before being adopted by the UN and is far more visible. Although it may be non-binding, the weapon of naming and shaming can be useful, particularly given the strong public awareness of the GCM. This provides added motivation for states to comply with the GCM to avoid embarrassment/criticism amongst the international community.

Moreover, the GCM fulfils its role of reaffirming and restating human rights objectives through its guiding objectives such as ensuring migrants have proof of identity and adequate documentation, and facilitating ethical recruitment and decent working conditions. This is valuable because the strong visibility of the GCM means objectives it restates can benefit lesser-known treaties (e.g., ICRMW). The GCM comprehensively covers 7 major issues, including the right to family life and non-discrimination. The nature of the GCM as a new document means it had the benefit of being flexible to recent issues and benefitted from hindsight over other documents’ flaws. Therefore, it does fill in some of the gaps left by the ICRMW and compensates for a few of its shortcomings.

The main drawback of the GCM is a consequence of being a soft law document. Being soft law was arguably necessary to gain ratifications and avoid the difficulties experienced by the ICRMW, but it consequently has a weak review and implementation mechanism. This, coupled with the fact the GCM primarily simply restates and reaffirms rights, makes it hard to see how it progresses migrant rights at all. Consequentially, for all the rights it reaffirms, the GCM does not, on a closer examination, improve access to justice for migrant workers.

Furthermore, the GCM omits a cardinal international law principle – the right to leave. This could be seen as ‘instituting a hierarchy, with the rules included in the GCM enjoying global support and those excluded no longer finding favour in the post-2015 regime’. One reason for this may be because the roots of the GCM lie in the Sustainable Development Agenda. One key part of the agenda’s mission was to reduce the ‘brain-drain’ problem for poorer states. Therefore, it is likely that the right to leave was omitted in order to avoid impeding this goal. It is difficult to see another justification for leaving the principle out, and if this was the case, the GCM regrettably sacrificed international law consistency for the benefit of reducing the ‘brain-drain’.

Additionally, GCM Part 6 can be criticised for providing rights for only those with formal employment contracts, thus excluding those in irregular work. This is inconsistent with international human rights standards (e.g., Part III ICRMW (above)) and risks undermining protection for migrants. This is particularly important because not only are migrant workers more likely to be given informal contracts due to their lower rights status, but it also exacerbates this issue because it makes it easier for employees to hire migrant workers on an informal or irregular basis, making them less likely to gain the benefits of labour rights as well.

It should be noted that the ‘legal and policy developments and academic commentary [regarding the GCM] are… all still in their infancy’. Perhaps it is too early to condemn the GCM. However, it is clear that deep-rooted weaknesses exist, potentially hampering the document’s ability to ever truly provide a strong and complete mechanism of rights for migrant workers. The test of time will reveal how effective this document can be for protecting the rights of migrant workers.

 

Conclusions

Migrant workers remain woefully unprotected, despite the ICRMW and recent introduction of the GCM. The lack of meaningful ratifications of the ICRMW in addition to the weakness of the CMW is particularly damaging. However, there is still hope, particularly for the GCM. Its reaffirmation of key principles and high visibility could see the GCM fill in the gaps of the ICRMW. However, its position as a soft law document reduces its ability to be a powerful advocate for migrant workers. Unfortunately, the failings of these documents leave migrant workers exposed to the inevitable exploitation from employees, governments, authorities and other institutions. The international community, therefore, has much work to do before it can be said migrant workers possess adequate protection.

A Step At A Time – with Freedom Legal Clinic

By Ee Vi Lim

First Year Law Student, JUSTICE Court Observer

 

Walking down the aisle in a grocery stall, you may see rows and rows of delicacies – but underneath it, there are also rows and rows of price tags. As humans, we appeal to the sense of justice and some of us may often make passionate declarations about societal welfare and our ideas of fairness. Given that, it is easier to think of justice in this abstraction than having to face the practical realities when it comes to its implementation. Though priceless in virtue, justice will inevitably come with a price tag.

As Article 6 of the European Convention of Human Rights promises, everyone will have the right to a fair trial. Still, access to courts is far from free. For a perspective, a day of hearing in the crown court (which is where criminal offences are usually sent to) already costs £1,200. This is not including legal fees which can go up to £200 per hour for senior lawyers, time off work, and so on. These figures are just for 1 day, or 1 hour, let alone having to compound these for rounds and rounds of appeal.

In the face of a structural issue of this magnitude, I knew that passion alone would not be enough. Hence, I was scouting for a platform and for guidance to effectively make an impact. This is where I met Freedom Law Clinic.

I still remember how 3 months back, I was a new case worker going through my induction training to be familiarised with the landscape of criminal law and the appeal process. This insight helped me to navigate through the system because, not long after, we had to put theory into practice by working hands-on with an actual criminal case involving a serious offence. In groups, we hunted through thousands (yes, literally thousands) of pages of facts and evidence to find materials that would help to support our case.

Initially, the task seems to be overwhelming but I soon realised that we will get nowhere with mere consumption of information. Thankfully, in our supervisions with a lawyer mentor, I have learnt to strategize and develop more efficient approaches to filtering out the materials. When all events are interconnected with each other, it is hard to understand the part without understanding the whole and vice versa. As I dive deeper into the case, the picture seems to be clearer and clearer. I am grateful that this learning experience not only enhanced my fact-distilling skills but also made me appreciate the work behind the condensed judgements that are produced.

Although it sounded obvious, it really struck me when I was working on this real case that the law is dealing with actual human lives. I remember that before coming to law school, a senior told me that to be a good lawyer, it is important to have a sense of responsibility because you are not just dealing with words or essays on papers, but someone’s limbs, or lives, or their life-worth of savings.

Sometimes, however, there is the lingering doubt as to how much can I actually contribute? In the face of a case that has been litigated for more than a decade, a case analysis or the identification of a few strands of facts can seem proportionally small. Thankfully, our lawyer mentor reminded us that no one can solve a complex puzzle like this alone. We are building on top of the work of batches and batches of case workers, as if inching towards the light after the tunnel – it humbled and reassured me indeed.

It is because of this that we journey, case by case, and step by step to offer access to justice to the people in need. If we think about it, each case that we work on would not just affect the life of the person, but also their family, and by extension, the public’s faith in the legal system.

Seeing Justice with JUSTICE

By Ee Vi Lim

First Year Law Student, JUSTICE Court Observer

 

It is a Friday – like everyone else, I pack up my stuff after lectures, but unlike everyone else, I make my journey to a Magistrates’ Court, ready to start my work as a JUSTICE court observer. On the bus ride there, I always think to myself – “so, what will I see today?”

For Year 1 students like me who have just started to dive into the ink of law on paper, I am grateful that my learnings have not been confined to a viewpoint that is remote from the reality. Because of JUSTICE, I am here now – in a court room – listening to the fate of people who are accused of harassment, violence, misbehaviors and so on being pronounced right before me.

Before coming to Law school, I have read about how the magistrates, who are lay people trained to hear cases in the lower courts, form the backbone of the English Legal System. The practical importance of magistrates is evident as they hear about 95% of all criminal cases, and their constitutional significance dates back to the Magna Carta 1215 which sets the foundational stone that no man shall be convicted except “by the lawful judgement of his equals”. Hence, it is no doubt that the lay representations on the Magistrate’s benches are vital to the doing of justice.

However, reading about something is one thing but experiencing it is another. Having travelled half the globe from my home to live in the English legal system that I have been reading on, I wanted to get an insider view on things for myself. Hence, when the human rights group, JUSTICE was recruiting for court observers, I immediately jumped on the opportunity knowing that this programme would bring me closer to the people behind the names, and the process before the decisions. As a court observer, I am tasked to gather data about the hearings, and so after I reach the courts, I will sit myself down in the public benches, pull out my sheets of observation log and start noting down the information – describing the people who are making the decision, listening to the reasoning that they rely on, observing whether or not the parties are being well represented and so on.

My area of research is centered on bail decisions as to whether or not the accused who is yet to be found guilty can be released into society as they wait for trial or whether they have to be locked up in custody. This makes the difference between being locked up in custody or being trusted to go back into society before being summoned to trials. As the famous saying goes, a man (or a woman) will be innocent until proven guilty; but at the same time, can we afford to bank against societal safety? This is the balance that the magistrates have to navigate through.

Although courts are theoretically adversarial in nature, one thing that really struck me is how collaborative the process can sometimes be. In some cases, the probation officers are consulted, the parties are represented, and the law is cited. Then, the courtroom seems to me like an effective platform where stakeholders can converse and work towards an equilibrium. One of the most memorable moments to me was when a judge kindly addressed the defendant with “sir” and explained him that it is in his best interest to follow the bail conditions, lest he will be put back into jail. The defendant then nodded understandingly. To many, this scene may not be anything special, but the respect proved to me, at least, that we can truly live through the principle that no one will be innocent until proven guilty.

It is these moments of seeing the abstract concept of justice being put into practice that makes the routine of travelling to court, waiting for cases to be summoned, and sitting in the public bench that tiny bit more special.

UCL JLAP Book Drive

By Emilia Kechagia

On 30 November 2021, UCL JLAP completed their first book drive of the academic year in association with the International Book Facility. The books are due to be shipped to Sierra Leone. The ILBF provides good quality second hand legal textbooks, donated by the UK legal community, to not-for-profit organisations in need of legal research resources across the globe. In the past eight years, the ILBF has sent over 20,000 law books, including student textbooks, legal encyclopaedias and law reports, to organisations in over 35, across Africa, Asia, South America, Europe and the Caribbean. Additionally, the ILBF has partnered with other organisations for specialised donations, including for example the establishment of a new library for prisoners in Uganda.

 

We collected more than 40 books, ranging from textbooks on Criminal Law and Contract Law to guides into becoming a barrister. We would like to thank everyone who participated in our efforts in the past months; students, academics, practitioners and alumni. Your excitement and generosity throughout is much appreciated.

 

‘It was a really heart-warming and rewarding experience. Seeing students coming into lecture theatres with bags full of books to donate made us all appreciate the value of such initiatives, which ultimately brought us closer as law students and peers’.
Emilia, President

 

Skip to toolbar