I wish I knew how

This post is by Neemah Ahamed (Doctoral Researcher at Sussex Law School). Following on from her previous post ‘What do they call me?’, here the meaning of justice for women of colour who’ve experienced gendered violence is explored in conversation with analysis of Nina Simone’s performances of two songs.

Nina Simone in 1964 (Hulton Archive/Getty Images)

Nina Simone’s rendition of the song, ‘Don’t Let Me Be Misunderstood’, is a yearning for justice and respect against deliberate misunderstanding, including of herself. It is a haunting melody and its lyrics, which invoke a sense of vulnerability resonate because they speak to that part of us which wants to be understood. It may remind some of us dealing with the shadows of trauma of gendered abuse that more than anything else we want justice and what it means in the context of our lived experiences to be heard. For women of colour who’ve experienced gendered violence, they are often afraid of speaking out about what justice means to them. Cultural and family values may influence them into believing that they may be partially to blame for acts of abuse committed against them. Religious leaders sometimes prevent women from speaking out by coercing them into believing that it is morally wrong to do so based on scriptures and religious teachings. In this way women are imprisoned in a ‘cage of male domination’. The lyrics remind us to acknowledge their experiences and remember, they are ‘human’, and it is important to ask what justice means to them.  

The problem with the meaning of justice is that it has been defined on behalf of, not by, the individuals that seek it. Only a few studies have been carried out about what justice means to victim-survivors of colour. According to McGlynn and Westmarland, women want acknowledgement that they have been harmed and victimised. McGlynn and Westmarland propose a multifaceted way of thinking of justice, that is, through a kaleidoscope. This is because it is enables justice to be seen as a ‘continually shifting pattern, constantly refracted through new circumstances and understandings’. They argue justice is pluralistic, a lived, on-going, evolving process rather than an end result. Through this lens, justice can be seen as consequences, recognition, dignity, prevention and connectiveness. It embodies Simone’s lyrics of being respected as a ‘human’ and to be understood for who you are and what you have lived through. Gangoli et al is the first study that focuses specifically on women of colour’s notion of justice and, for them, there are three types of justice. Firstly, justice can be obtained through the legal system through which perpetrators must suffer meaningful consequences for their actions. Aside from the fact that this includes punishment and imprisonment, there is little evidence of what more victim-survivors conceptualise should be done. Secondly, victim-survivors see justice as something that takes place when their communities recognise their suffering by acknowledging the harm inflicted by their perpetrators. They feel isolated because they are ashamed to share their experiences with their family and unable to express what justice means to them. They want empathy; they want their truth to be heard. They want their communities and families to play a role in reforming gender roles and inequalities because, to them, these contribute to gender based violence. Thirdly, justice is conceptualised in terms of human rights and freedoms.

Simone’s powerful melancholic rendition of ‘I Wish I Knew How It Would Feel To Be Free’ speaks to identity and individualism and the yearning to ‘break’ free from ‘chains’ that hold us. Listened to in this context, it has resonances of the longing for personal freedom for victim-survivors who have been subjected to coercive control by their families. In Joel Gold’s film Nina, Simone attempts to answer a question posed by an interviewer about what freedom means to her. Part of her response was ‘no fear’. Aside from language barriers and insecure immigration status, Gangoli et al further argue victim-survivors are unable to access justice or explain what justice means to them because they are threatened with domestic abuse and violence. Fear holds them back. In the words of Audre Lorde, we must recognise that ‘where the words of women are crying to be heard, we must each of us recognise our responsibility to seek those words out, to read them and examine them in their pertinence to our lives.’

Your Teachers are Researchers: Changing Research Culture

This post reflects upon the event ‘Your Teachers are Researchers’, held as part of Sussex Law School’s Research Seminar Series on 26 November 2020.  It is written by Verona Ní Drisceoil (co-organiser and chair) and Bal Sokhi-Bulley (co-organiser and panellist) with input from the panel of staff (Neemah Ahamed, Matt Evans, Sabrina Gilani and Lucy Welsh) and from the student voices (Henry Bonsor, Jasmine Bundhoo, Ayo Idowu-Bello and Tyrone Logue) who participated in and facilitated the event.

Introduction

There was bhangra and then there was jazz. There were staff and there were students. And then there was a space of collaboration and ‘collaborators’. On 26 November in an otherwise usual Week 9 of term, students and faculty of Sussex Law School (SLS) came together in a shared, non-hierarchical space to reflect, relate and disrupt. The result was a powerful, moving and liberatory one. In that shared space, collectively, and in friendship, we had succeeded in doing research relationally – building relationships with, rather than just being in the same room as, our students. We created a ‘liberatory space’ (Jivraj, 2020) wherein we were able to be otherwise.

‘Your Teachers are Researchers’ grew out of a desire for connectedness in these times of pandemic; to breach the staff/student binary and grow a research culture that shared a space with the students with whom we do ‘research-led teaching’. In this respect, the event drew inspiration from Fung’s vision of a ‘connected curriculum’ (Fung 2017), from Freire on dialogue (1970) and bell hooks (1994) calling for the teaching and learning experience to be different; one that can be shared and transgressed, together. This vision strongly echoes Jivraj’s (2020) call to engage in ‘self-liberatory’ processes, that can only be achieved through a focus on relationality – between staff and their students – allowing us all to ‘belong’ to, and in, the academy.

A False Binary

In that space, we discovered that the staff/student binary is a false one; we had instead become ‘collaborators’. The event was deliberately organised to remove the normative hierarchy of faculty/student. Students, as opposed to their teachers, led and facilitated the session. Faculty were decentred. Final year students Henry and Jasmine began with powerful reflections on what research-led teaching means to them. Eloquently, they shared how the Law and Critique module convened by Bal and Sabrina had offered a space to be ‘intellectually creative and sensitive’ (Jasmine) and distilled our shared roles as activists, writers and thinkers, as, ultimately, to ‘make the word a better place’ (Henry). They spoke too of how the module had helped them to grow in confidence – to find voice and expression – and equipped them with the ‘tools’ to go out and ‘flourish’.  Ayo and Tyrone (Year 1) followed by introducing the panel of faculty speakers: Bal, Sabrina, Neemah, Matt and Lucy. Their introductions were thoughtful and generous; their questions, powerful and insightful. They set the bar high!

Faculty then spoke to their experience of teaching their research and to something they were currently or had recently been working on. Over the course of the evening, we were able to share that doing research is slow, requires resilience and is personal to us. Bal spoke to how she felt compelled to write about the intersections between pandemic, race and class over the summer when the Leicester Lockdown happened. Her reference to the labelling of BAME communities as ‘dirt’ was picked up by Sabrina, who questioned what it means to be ‘human’ in the context of criminal law and punishment, focusing on how we express and recognise humanity through material engagement. We then heard about the intersectional experience of women of colour from Neemah, who played us Nina Simone’s ‘Four Women’. We were reminded of the wider, problematic space that we inhabit as individuals within higher education by Matt, who interrogated the space of the neoliberal university. And we heard about what it means, in the context of a wider neoliberal Britain, to make claims to access justice from Lucy, and how as staff and students of law we can and ought to question exactly what ‘justice’ means.

The presentations were punctuated with a flurry of questions – ranging from Alex (LLM Human Rights) asking Bal about whether Trump should do ‘friendship’ with China to remedy the blame culture he began; to Ayo asking Neemah about colourism and the different experience of lighter and darker skinned black women; to Tyrone asking Lucy about the nexus between the economy and access to justice. There were also questions about the potential impact our research has. For instance, Vanessa (LLM) asked Lucy about the process, as an academic and researcher, of impacting change in the criminal justice system.

Reflecting on the event immediately afterwards brought up feelings of pride, warmth and a sense of freedom (from the usual hierarchies and the ‘right way’ to treat our students). Verona commented on how the event made her heart feel full – in that space, she said, ‘something special happened’. Bal said she was ‘blown away by the student participation. Henry, Jasmine, Ayo and Tyrone were exceptional – eloquent, engaged and I felt both proud of them and reaffirmed in our roles as educators/researchers’. ‘It was fantastic to take part in such a well-attended event and to have the chance to actually have a conversation with students, guided by them, about research, teaching, learning, their overlaps and the environments in which they take place,’ said Matt. Lucy expressed that, ‘it was invigorating/uplifting to create a place for discussion together and see how superficially disparate interests can be brought together in a shared space of friendship and creativity’. 

Building on the theme of friendship and connectedness, Henry commented,

for me, the most meaningful aspect of the event was created by the relationality between both teachers and students. Previously, I felt like research was something that teachers performed in their own time and only shared with their peers. 

Similarly, Ayo spoke of how this event was so much more than an event about researchers talking about their research. She said that

this event gave me a sense of community and togetherness which is something that I had not felt since moving to Sussex due to the exceptional circumstances of a pandemic… This event created a space where there was no hierarchy, there were no tutors and students because for those few hours, we were all students who were there to listen, learn and critique one another.

For Tyrone, ‘the event made space for direct engagement with tutors’ allowing, he said, ‘for a valuable discourse which is often all too elusive in the conventional classroom’. Finally, Jo Bridgeman, Law, Politics and Sociology ‘research guru’, tweeted ‘this was fabulous… the staff and student contributions were outstanding.’

Building Community Through Research: Changing Culture

Pointing to the potential for collaborative opportunities, Sabrina has since found research synergies with several students in attendance (including Daniel and Amanda from Year 1) and commented on how the event is likely to shape future projects between teachers with (not just ‘and’) students. ‘Your Teachers are Researchers’ transgressed the teaching-research divide in a unique and holistic way; it created a space of shared mutual respect where everyone’s voice was heard (hence, ‘student voices’), and everyone’s presence acknowledged. Without dialogue, there is no communication, and without communication there can be no true education (Freire, 1970). In a similar vein, hooks reminds us that ‘it is not sufficient to create an exciting learning process. To generate excitement, is to ensure interest in one another and in hearing one another’s voices’ (hooks, 1994: 8).

Over the past three decades or so, forces both at a national and global level have tended to silence disparate voices and pull research and teaching apart (Barnett in Fung 2017). Siloed performance indicators such as TEF (Teaching Excellence Framework), REF (Research Excellence Framework) and KEF (Knowledge Exchange Framework) remind us that so much of our lives are about measurement and thus control; this event was freeing in allowing us to relate in a creative non-regulatory way. Against the background of measurement, Fung calls for a different approach: a truly symbiotic relationship between teaching and research. This, she suggests, begins with explicitly inviting students, at all levels, to connect with researchers and the research environment (Fung, 2017). Involving students in shared spaces of dialogue and critical engagement is an integral part of the learning journey. The benefit of this shared dialogue, of course, is not unilateral. The symbiosis provides a dual benefit in the form of opportunity for authentic co-creation. In this space, students become partners, co-researchers and co-producers as opposed to passive consumers (see further Carmichael et al, 2020). There is, perhaps then, a move towards joint ownership and joint decision-making where students inspire research.

SLS, like many law schools, is following the trend of trying to ‘decolonise’ its curriculum. We echo Jivraj in recognising that this process of decolonisation will only happen through ‘doing’ relationality together in recognition of belonging. It was not our intention to ‘decolonise’ here – but this is the point. As Adebisi (2020) reminds us, ‘[d]ecolonisation is also a reflective practice in which we as academics much constantly adapt our own pedagogies and question our own practices’. That is what we were doing – reflecting on our practices and attempting a counter-pedagogy that resists the hierarchies of knowledge transfer and we did so also through an active recognition of the need to include voices from BAME students and staff (on the problematic construction of ‘BAME’, see further Adebisi 2019). Counter-pedagogy, performed in such organic and holistic spaces, provides possibility for a true reimagining of the core purpose of universities and that is a hopeful thing.

Conclusion

The presentations began with some bhangra, which Bal described as not simply gratuitous! But, rather, a manifestation of both ‘sonic intimacy’ (James, 2020) and resistance (given the roots of UK bhangra and its growth alongside race riots). These vibes remain with us – we created an intimate space and a space that resisted the normative boundaries of the staff/student relation. We hope to continue to challenge this binary and to grow the research culture at SLS with our students as we continue to do our research, teaching and encounters with each other otherwise

References and Further Reading

Adebisi, Foluke. 2019. The only accurate part of ‘BAME’ is the ‘and’… African Skies, 8 July. https://folukeafrica.com/the-only-acceptable-part-of-bame-is-the-and/

Adebisi, Foluke. 2020. The Law Teacher Special Issue on Decolonising the Law School. African Skies, 2 December. https://folukeafrica.com/the-law-teacher-special-issue-on-decolonising-the-law-school/

Barnett, Ronald. (2017) ‘Foreword: Energising an Institution’ in Fung, Dilly. A Connected Curriculum for Higher Education. London, UCL Press.

Carmichael P, Tracy F. 2020. ‘Networks of Knowledge, Students as Producers, and Politicised Inquiry’, in Dohn, NB, Jandrić, P, Ryberg, T, de Laat, M (eds.). Mobility, Data and Learner Agency in Networked Learning. Cham, Springer.

Freire, Paolo. 2000. Pedagogy of the Oppressed. New York, Continuum (revised edition).

Fung, Dilly. 2017. A Connected Curriculum for Higher Education. London, UCL Press.

hooks, bell. 1994. Teaching to Transgress: Education and the Freedom of Practice. New York, Routledge.

James, Malcolm. 2020. Sonic Intimacy. London, Bloomsbury.

Jivraj, Suhraiya. 2020. Decolonizing the Academy – Between a Rock and a Hard Place. Interventions, 22(4): 552-573. 

Staff Panel/Papers

Neemah Ahamed, ‘What Do They Call Me? On the Poetry and Lyrics of Audre Lorde and Nina Simone’ 

Matt Evans, ‘The neoliberal university and resistance in the current crisis’

Sabrina Gilani, ‘Material Rights and Embodied Cruelty: Encountering the Constitutionality of Capital Punishment’

Bal Sokhi-Bulley, ‘From Exotic to “Dirty”: How the Pandemic has Re-colonised Leicester’

Lucy Welsh, ‘Accessing justice in criminal courts. Is it all about legal aid?’

Authors

Verona Ní Drisceoil is a Senior Lecturer in Law (Education and Scholarship) at SLS. Verona is currently working on two projects. One, with Imogen Moore (Bristol), exploring ‘confidence, community and voice’ in law school transitions and another exploring inclusion, exclusion and hierarchies in law schools. This second project asks, ‘who is not in the room and why not?’.

Bal Sokhi-Bulley is a Senior Lecturer in Law and Critical Theory at SLS. She writes and teaches on critical approaches to rights, and is currently working on using the concept of ‘friendship’ to re-imagine rights in the hostile environment; this work features in her courses on Law and Critique, Human Rights: Critical Perspectives, and Migration Rights and Governance.

Business as Usual? The Impact of COVID-19 on Access to Family Justice in England and Wales

[This post, by John Jupp, follows up on his previous post ‘COVID-19 and Case Management in the Family Courts: A New Road to Consistency?’ and is republished with permission from Family Law Week]

John Jupp, Solicitor, and Lecturer in Law at the University of Sussex, examines the impact of the pandemic on the family justice system and the nature and extent of the challenges faced by family law professionals and court users.

 Photo of Dr John Jupp

John Jupp, Lecturer in Law, University of Sussex, and Solicitor

Introduction

On 19 March 2020, the same day that the Prime Minister announced the introduction of social distancing measures in an effort to contain the spread of COVID-19, the President of the Family Division, Sir Andrew McFarlane, issued instructions that all family hearings should take place remotely, unless fairness and justice required that a court-based hearing should be conducted. According to the President, the transition to remote access processes would enable the family justice system to ‘keep business going safely’ and ensure continued access to family justice.

Complimenting these instructions, a report released by Mr. Justice MacDonald on 23 March confidently reassured the judiciary that remote access systems should render it possible ‘to continue substantially the full operation of the family justice system’. Since then, remote access processes have facilitated continued access to family justice. In the two weeks between 23 March and 6 April audio hearings had increased by more than 500 per cent and video hearings by 340 per cent. Moreover, by 28 April 94 per cent of 932 respondents to a consultation undertaken by Nuffield Family Justice Observatory (‘the Nuffield report‘), which included solicitors, barristers, judges and magistrates, had taken part in a remote hearing. This is testimony to the exceptional effort that has been made by the judiciary and family practitioners to facilitate continued access to justice in the family courts. However, the impact of the pandemic on the family justice system and the nature and extent of the challenges that family law professionals and court users have been facing in order to keep business going remain unclear. This article examines these issues, relying on data from recent consultation reports and interviews with experienced barristers and solicitors conducted between 22 April and 5 June 2020. It finds that the transition to remote processes caused as a result of COVID-19 has had a hugely damaging impact, resulting in court closures, delays to proceedings, disruption to business and inconsistent application of new guidance on remote processes.  These outcomes are discussed below.

Delays to proceedings

COVID-19 has exacerbated the pre-existing pressure on the family justice system and is responsible for causing substantial delays to proceedings. This can partly be explained by the demands of operating remote hearings. The senior judiciary recognised that the necessity for postponing hearings as result of the transition to remote access processes would be ‘inevitable.’ By 9 April only about 40 per cent of all hearings had taken place. It is also the result of a reduced availability of judges. Magistrates stopped sitting in Family Proceedings Courts following the lockdown, increasing the flow of cases referred to district and circuit judges, consequentially reducing their availability to conduct hearings. In order to manage their lists judges were forced in the early weeks of the COVID-19 crisis to reduce the time allocated for hearings listed before the lockdown, vacate scheduled hearings and list only the most urgent cases. Most contested fact-findings or final welfare hearings were adjourned.

Whether or not there are delays to proceedings depends largely on the type of case that is being considered. Public law Children Act cases are trumping private law proceedings as they generally involve more urgent concerns of significant harm to children. Private law Children Act hearings are more likely to be adjourned unless all the necessary evidence had been filed prior to the lockdown or they are considered to be absolutely necessary, taking into consideration the welfare of the child. Those cases which require further expert evidence or await CAFCASS reports following periods of contact are more likely to experience further delays.

One of the additional consequences of reducing social contact is that it has resulted in the closure of contact centres. This has had a huge effect on the progression of cases timetabled for review following periods of supervised contact. Agreements that were previously made for contact to proceed in this way by necessity cannot be honoured and so cases that entailed a review after a certain number of supervised contact sessions are inevitably being delayed. Moreover, the requirements for social isolation have rendered it much more difficult for social workers and experts to meet with and observe those whom they are directed to assess for the purpose of preparing reports and psychological or psychiatric assessments. As a result, judges face particularly difficult challenges administering justice in public law Children Act cases, determining whether it is appropriate for hearings to be conducted remotely, balanced against the delay principle (Children Act 1989, s 1(2)), the welfare of the child and the risk of significant harm.

They are also required to take into consideration the necessity of completing cases within 26 weeks (s. 32(1)). The over-stretched courts are managing unprecedented levels of public law applications, which have doubled in number since 2007. The average time for a disposal of care and supervision applications from October to December 2019 was 34 weeks, an increase of 2 weeks from the same quarter in 2018. However, the COVID-19 crisis has compounded the challenges that the courts were already facing in observing statutory timetables. According to an interviewed lawyer,

a lot of hearings are being adjourned if they are not regarded as urgent. There has been a significant delay in any decisions being made in public law cases.  We are supposed to have a schedule of 26 weeks to conclude a case but this has gone out of the window so access to justice in terms of delays is huge. Decisions relating to children’s futures are being delayed.

Amid these concerns, the current delays to proceedings are likely to have far reaching implications for the administration of family justice, capable of extending beyond the current crisis. Increases in the number of adjourned hearings are resulting in an accumulation of cases yet to be resolved, clogging judges’ lists and delaying access to justice not just for those families engaged in adjourned cases, but also for those who wish to refer their disputes to the court for resolution in the future. Any decision to adjourn a hearing now will therefore have resonance for access to family justice for some time to come after the current social distancing measures are relaxed and normal court hearings can resume.

A further unwelcome consequence of increased delays to family proceedings is that they have contributed to a significant loss of business in the legal services sector. Far from keeping business going, some family practitioners have struggled to keep any business going at all. Research conducted independently by the Law Society and the Bar Council warns that 71 per cent of High Street firms risk closure and more than 50 per cent of self-employed barristers may not be able to survive financially in the next six months. Furthermore, in reaction to the immediate crisis, a number of law firms, including the UK’s top 60 and smaller High Street family practices, have been forced to furlough staff. These developments can have short and long term damaging consequences for family access to justice. In the short term, the furloughing of family solicitors has increased the workloads of those colleagues who remain at their firms. In some instances they are inheriting long-running family cases involving clients they have not met and timetables with which they are unfamiliar, leading to missed deadlines and an increased risk of negligent practice. In the longer term, any substantial reduction in the number of specialist family solicitors and barristers will inevitably have a negative impact on the ability of the public to access professional legal advice, assistance and representation on family-related issues in the future.

Remote hearings: technological complications and challenges to representation

The adoption of audio-visual technology for conducting hearings is not new to courtrooms in the United Kingdom. In the Family courts the adoption of technology has for some time offered a pragmatic solution to overcome difficulties presented in particular cases in adducing live evidence. In Re S (Relocation: Parental Responsibility) [2013] EWHC 1295 (Fam), for example, leave was granted for a witness based in Colombia to give evidence via Skype. Similarly, in Re ML (Use of Skype Technology) [2013] EWHC 2091 (Fam) the court was satisfied that the Nepalese parents of an 11-year old child had freely consented to her adoption to a British couple following the witnessing via Skype of their signing consent forms by the guardian and the child’s solicitor.

At the time that social distancing measures were introduced the family justice system had been undergoing reform as part of the Ministry of Justice’s £1billion modernisation programme, initiated in September 2016, which aims to employ digital technology to improve efficiency and expand access to justice (Ministry of Justice, 2016). As part of this programme, the Cloud Video Platform (CVP) had been integrated into some courts by HMCTS. However, as this was still unavailable in most courts by March 2020, HMCTS encouraged the judiciary to choose from a ‘smorgasbord’ of IT and communication technologies to conduct remote hearings, including Skype for Business, Zoom, BT MeetMe, Microsoft TEAMS, Lifesize and FaceTime (MacDonald, 2020).

Although this was an understandable solution to the challenge posed by the necessity of quickly implementing remote access processes, the ‘smorgasbord’ approach to technology selection is capable of undermining the administration of justice in the family courts. Firstly, selecting from a wide range of technology reduces the ability for capturing data from a centralised court system. Secondly, it increases the potential for technological problems interrupting proceedings. Lawyers, judges and court users are required to be proficient users of a range of IT platforms and to be competent trouble-shooters when problems arise, failing which hearings have to be aborted. Litigants and their representatives are occasionally unable to access the required technology, there is no clear guidance as to whether the court, the parents, the lawyers or the local authority is responsible for arranging access and there are regional variations in connectivity and the availability of necessary equipment. An interviewed barrister complained of ‘struggling with dialling in and with confidentiality issues’ in relation to a local court’s chosen IT platform, highlighting security concerns over litigants recording hearings and allowing other people who are not party to the proceedings to listen, including children who are the subject of proceedings. Thirdly, it promotes inconsistent access to justice in the courts. Currently, according to one interviewee, all private law hearings are being conducted by telephone, as are public law proceedings before district judges, although video-conferencing is adopted for public law proceedings before circuit judges. The employment of a diverse range of IT-platforms, and of video conferencing for some hearings and telephone conferences for others, while understandable in view of the mixed technological capabilities of the courts and court users, results in contrasting experiences for litigants in terms of the manner in which their hearings are being conducted. Some litigants, therefore, are attending court at hybrid hearings, while other parties attend proceedings remotely; some attend by using IT platforms that enable access by video-conference; and some never see the judge, opposing parties or their representative at all if proceedings are conducted by telephone. As an interviewed expert notes: ‘there are cases where barristers may be appointed to do hearings but they never actually meet the client and so the client does not meet either the solicitor or the barrister – or see them if they do not have video facilities on their phones/computers.’

More generally, the impersonal nature of remote access processes is undermining the public’s trust in the justice system as well as their access to justice. The ability of parties and their representatives to state their case in court is a central component of access to justice. However, some litigants complain of feeling disadvantaged and disconnected from proceedings when hearings are held remotely. An interviewee finds ‘parental participation in proceedings’ to be the main challenge of remote hearings. Litigants are not having the access to the court that they think is necessary to make the points that they want to. According to another expert, ‘clients hate it. They are confused by it, they can’t have their say and they can’t express themselves so they feel that they are not getting justice.’ Lawyers are facing new challenges to effectively putting their client’s case to the court and negotiating with other parties to proceedings. According to one, ‘normally I can meet a client at court, discuss the case with them, see how they are feeling about the case, engage with solicitors conducting the case, gauge how the client is reacting to the evidence in the case and what the other side are saying, the directions and orders they are seeking. It is much more difficult now.’ Furthermore, negotiating with opposing parties during remote hearings is less constructive than would normally be the case. In a similar manner to normal court hearings, remote hearings will be briefly adjourned to allow parties to negotiate on issues that have arisen in a case. However, according to another interviewee, ‘it does require people on the phone being willing to negotiate. Matters are now being negotiated in a much more tapered way. You are lucky if you manage to have a quick chat with the other side. It is not like being at court. Negotiation just disappears and it means that a lot of issues are not raised so judges are being asked to make more decisions.’

Additional concerns have been expressed recently over the impact of the transition to remote hearings on the well-being of professionals. The Nuffield report identified new points of stress that remote working had placed upon lawyers and the judiciary in the family courts, including additional workloads and increased levels of anxiety and tiredness. Remote hearings can be an arduous experience for all involved. One interviewee has found them to be ‘generally more tiring than face-to-face hearings. Video hearings are probably the most tiring because you are staring at the screen for hours. I had a contested ICO hearing recently that lasted 6 hours with no break. Afterwards I was very tired. Another noted that ‘telephone hearings can be very tiring. I had an all-day telephone hearing recently. It is exhausting because you are concentrating very hard to make sure that you have heard everything.’ The fatiguing quality of remote hearings potentially increases the risk of mistakes being made at court, undermining trust in new remote means of administering justice.  Their exacting nature has already contributed to erroneous judicial decision-making. In the recent case of Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, reported on 30 April, the Court of Appeal court set aside an interim care order made by Recorder McCarthy QC at a telephone hearing on 3 April concerning a 9-year old boy who, as a result, had been removed from the care of his grandmother and placed in foster care. Finding the Recorder’s decision to have been ‘unquestionably wrong’, Jackson LJ and Davies LJ observed that it had undoubtedly been influenced by the nature of the Recorder’s workload, which had involved working continuously and mainly by means of telephone hearings for 10 1/2 hours by the time the hearing on 3 April was concluded (para [20]).

There are also serious concerns that remote access processes are having a profoundly negative impact on the manner in which vulnerable litigants are able to participate in hearings and access justice. In 2019 the Family Law Bar Association provided evidence to a Select Committee that parents with literacy, language, cognitive and psychological problems find participation in a digital hearing ‘extremely difficult if not impossible’. The Committee concluded that the steps HMCTS had taken at that stage to address the needs of vulnerable users of digital justice services had been insufficient. These needs have now been accentuated by the transition to remote processes forced upon the family courts by COVID-19. According to an interviewee:

‘I am often representing parents who are very vulnerable. They may have drug or alcohol addiction issues and they are not having an opportunity to meet their lawyers. Often they don’t have the technology required, they have not met the lawyer representing them and they may not have video technology so they can’t see who they are talking to and the lawyers representing them who they are giving intimate details to.’

The limited access to technology and poor digital skills of many vulnerable court users present worrying obstacles to the ability of the family courts to ensure fairness and equality of arms. While intermediaries can help to alleviate these problems, unfortunately some had yet to receive training on how to provide remote intermediary support when the lockdown was initiated. As a consequence there are not enough professional intermediaries available to assist with proceedings. This, in turn, is contributing to delays to proceedings.

The ability of vulnerable litigants to access family justice should not be undermined by an increase in the use of technology that has been necessitated by COVID-19. Bearing in mind the Justice Committee’s finding of insufficient action taken by HMCTS to address the needs of vulnerable court users prior to the pandemic, there is an urgent requirement for it to commission research to examine their needs, the additional support they require and how it should be facilitated to ensure that they can fully participate in proceedings and access justice in the new remote age.

Conclusion

It is approximately three months since social distancing measures were implemented in the family courts. There is little doubt that new technologies have facilitated access to family justice during these difficult months. Crucially, they have enabled the courts to continue to manage cases and conduct hearings. In the longer-term it is likely that the responses to the challenges that have been faced to date will yield positive benefits for the family justice system, expediting the integration of CVP, fast-tracking the development of practice guidance and protocols for remote access processes, and supporting their increased adoption, leading to greater efficiency in the administration of justice. In the shorter-term, the rapid changes that have had to be implemented as a result of COVID-19, and the transition to remote processes, have had profound consequences for the administration of and access to family justice. The changes have resulted in delays to proceedings and disruption to business and they have challenged the ability of litigants to participate in proceedings and advocates to take instructions from clients, negotiate on their behalf and represent them. In spite of the best efforts of all of those who contribute to the running of the family justice system it has not been possible to substantially continue its full operation. Nor has it been possible to meet the aim of the President of the Family Division and keep business going without reducing access to and the quality of family justice. It has certainly not been business as usual. What is necessary now, however, is independent research to carefully examine the impact of COVID-19 on access to family justice and to evaluate continuing technological, training and support needs for family practitioners, the judiciary and court users.

23/6/20

 

COVID-19 and Case Management in the Family Courts: A New Road to Consistency?

[Originally published by Family Law Week under the title ‘Case Management and COVID-19: A New Road to Consistency?’. Republished with permission.]

 

John Jupp, Solicitor, and Lecturer in Law at the University of Sussex, considers whether family judges are making consistent case management decisions during the pandemic.

Photo of Dr John Jupp

 

John Jupp, Lecturer in Law, University of Sussex, and Solicitor

On 9 June the President of the Family Division published a ‘road map’ for the operation of the Family Courts in which he confirmed that he did not intend to issue prescriptive guidance on case management while social distancing measures remain in force (the ‘Road Ahead’). It remains the President’s view that decisions about whether or not hearings should take place remotely and, if so, how they should be conducted should not be contingent upon any formal national protocol but instead should be left for judges to determine on a case by case basis. In this regard, judges have been able to refer to a number of publications, including a Protocol for Remote Hearings dated 23 March, Mr Justice MacDonald’s report on ‘The Remote Access Family Court’ issued on the same day, a letter from the Lord Chief Justice dated 9 April (‘LCJ’s letter’), and now, the President’s Road Ahead document. Designated Family Judges have also issued regular directives to local judiciary and family lawyers on remote processes.

The President’s concluding remarks in the ‘Road Ahead’ paper referred to the lyrics of the song ‘He Ain’t Heavy’, which offer that ‘we’ll get there’. However, in getting to where we are at the moment, it is clear that not all of the judiciary have been singing from the same hymn sheet. Interviewed practitioners have noted a ‘post-code lottery’ of inconsistent decision-making in different courts as to whether or not cases should be listed for hearing. Moreover, respondents to a recent consultation undertaken by the Nuffield Family Justice Observatory involving judges, solicitors and barristers raised concerns over ‘the high rate of adjournment in cases that could have gone ahead and avoided unnecessary delay’. This suggests that there has been some uncertainty in the courts over interpreting and applying guidance received from the senior judiciary to determine whether it is suitable for a case to proceed to a remote hearing. Indeed, respondents to the Nuffield consultation complained of the ‘unrealistic,’ ‘confusing’ and ‘overwhelming’ nature of the information received from the senior judiciary following the lockdown. It is now apparent from the three appeal cases of Re P (A Child: Remote Hearing) [2020] EWFC 32, Re A (Children)(Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re Q [2020] EWHC 1109 (Fam), which came before the High Court and the Court of Appeal between 16 April and 6 May 2020, that the lack of clarity in the information provided by the senior judiciary, and the fast-changing advice that was circulated in them, contributed to early judicial uncertainty over case management and the conduct of remote hearings.

The case of Re P, which came before McFarlane P sitting at the High Court on 16 April concerned an appeal by the mother of a 7-year old daughter to vacate a final hearing listed for 20 April. The local authority sought a care order following allegations that the daughter had suffered significant harm as a result of fabricated or induced illness (FII). At a pre-trial review hearing on 3 April the judge determined that the matter should proceed to a final hearing, scheduled to be conducted remotely over 15 days with 16 witnesses, as well as the child’s parents, giving evidence. It was planned that the mother would engage in the process alone at her home and access the hearing by Skype, with regular breaks for telephone and Zoom conferences with her representatives (para [10]). Allowing the mother’s appeal and vacating the final hearing, Sir Andrew McFarlane referred to more recent guidance issued in the LCJ’s letter on 9 April which indicated that ‘where the parents and/or other lay witnesses are to be called, the case is unlikely to be suitable for remote hearing.’ Given that the parents would be giving evidence it was clearly not suitable for listing for a final contested hearing. He also noted that the earlier decision to allow the hearing to proceed remotely had been influenced by guidance in the document circulated by Mr Justice MacDonald, its positive message that the family justice system should be able to operate substantially relying on remote processes, and its reference to previously successful remote hearings in the week commencing 16 March. This had been, according to the President, ‘a misunderstanding’ (para [8]). Notably, this earlier decision to proceed to a final hearing had been uncontested, so not only the judge but all parties to the proceedings, including the parents, guardian and local authority, had clearly also been misled by the guidance from Mr Justice MacDonald’s report.

The decision of the High Court in Re P contributed to further judicial confusion over whether or not hearings should be listed to take place remotely.  Its reference to the unsuitability of remote hearings in situations where parents are to give evidence, as inferred from the LCJ’s letter, was erroneously understood to apply not just to final hearings but also to interim Children Act hearings. Moreover, it was quickly interpreted by practitioners as appearing to establish a veto to the holding of a remote hearing where a parent objects, or expert evidence is to be called, increasing the potential for hearings being unnecessarily vacated and proceedings delayed (Re Q, para [24]). A barrister interviewed on 29 April 2020 noted that ‘in terms of the impact of COVID-19 it is causing significant delays and cases are being put back as a result. They can’t be decided and final hearings can’t take place – perhaps due to technical difficulties or now the decision in Re P.’.  Furthermore, in the private law case of Re Q, reported on 6 May 2020, counsel for the father of a six-year old daughter noted the  ‘chilling effect’ (para [24]) that Re P had had in influencing the order of the deputy district judge in an earlier review to vacate a remote final hearing in which the parents, an expert psychologist and a guardian would be required to give evidence, a decision which the High Court overturned on appeal.

The case of Re A, reported on 30 April, is also indicative of judicial uncertainty over the guidance on remote hearings. This matter concerned contested proceedings in which the local authority sought orders placing two children aged 3 and 20 months for adoption. At a directions appointment on 3 April HHJ Dodds listed the matter for a 7-day final hearing to be conducted in hybrid form, whereby the parents of the two children would attend court separately to give evidence with the expectation that their counsel would join proceedings remotely. While concerns were raised about the father not being able to access a remote hearing due to dyslexia and unsuitable technology at home, HHJ Dodds reasoned that the final hearing could still proceed in a fair and just manner in hybrid form with the parents attending court (para [19]). At that stage, it is likely that the judge was influenced by the guidance from Mr. Justice MacDonald. At a review hearing on 17 April the local authority objected to this arrangement arguing, based on guidance from the LCJ on 9 April, that it would not be suitable for a remote hearing as the parents would be giving evidence (para [26]). HHJ Dodds nevertheless distinguished between a fully remote hearing and hybrid hearing and determined that it was possible to have a fair trial along the lines he proposed, ordering the matter to proceed to final hearing listed for 27 April, a decision which the Court of Appeal overturned on appeal.

Both Re P and Re A indicate that the early guidance issued by Mr Justice MacDonald in March 2020 was less than comprehensive. In both cases its positive message about the ability of the family justice system to continue to operate remotely influenced erroneous decisions in the lower courts to proceed to remote access final hearings in contested care proceedings in which parents would be giving evidence. A similar accusation of inadequate advice can be levelled at the letter from the LCJ. HHJ Dodd’s decision to proceed with a contested final hearing at the review hearing on 17 April in Re A suggests that the information in the letter dated 9 April from the senior judiciary failed to provide sufficiently clear guidance about whether or not any distinction should be made between fully remote and hybrid hearings. Moreover, its indication that it was unlikely that matters would be suitable for remote hearing in cases where the parents and/or other lay witnesses are to be called to give evidence failed to stipulate whether this applied to final hearings only, causing it to be quickly interpreted as also applying to interim hearings. These omissions ultimately necessitated resolution by the Court of Appeal in Re A on 30 April. In fact, in all three cases the appeals were successful and therefore earlier decision-making based on information and guidance received from the senior judiciary was erroneous or had been superseded by new instructions. Even making allowances for the speed of the crisis and the unprecedented nature and scale of the transition to remote hearings, more comprehensive and all-inclusive guidance at the early stages of the lockdown may have prevented the confusion and inconsistencies that necessitated referrals to appeal in these cases and the emergence of a ‘post-code lottery’ as to whether or not courts hearings would direct that hearings should proceed remotely.

Nevertheless, these cases have provided valuable lessons for remote working in the family courts.  An interviewed barrister noted their constructive outcomes, observing that ‘Re A has steadied the ship.’ According to the President of the Family Division the clarification that has been established through these cases, coupled with the guidance issued on 19 March and 9 April, is now sufficient to enable the judiciary and lawyers to make informed case management decisions. Contested final hearings in public law proceedings are still normally being adjourned in light of this collective guidance. However, the new ‘road map’ guidance issued on 9 June amends that of 9 April to allow for consideration to be given for conducting a hybrid or full hearing in cases where the parents and/or witnesses will be called to give evidence, noting that the court can proceed to hold a remote hearing where it is necessary to do so giving consideration to the child’s welfare. While this is a necessary adjustment in order to support the progression of as a high a volume of cases as possible, it remains to be seen whether sufficient clarity has now been provided to ensure that judges are ‘in tune’ and making consistent case management decisions. At a time of rapid fluidity and change caused by uncertainties surrounding COVID-19 continuing research is necessary to gauge the manner in which the courts are interpreting and applying the guidance from senior judiciary.

24/6/20

‘Seeing What is Invisible in Plain Sight’: How Effective Is the New Law on Coercive Control?

Cassandra Wiener

 

[Originally published by the Howard Journal of Crime and Justice’s Policy Insights blog. Republished with permission]

 

In early 2013, Rob Titchener, a tall, dark and handsome dairy farmer, arrived in Ambridge and started an affair with Helen Archer. And so began the controversial story line of the usually staid and very popular BBC Radio Four drama, ‘The Archers’, that ‘gripped the UK’ for three and a half years. The portrayal of Rob’s torturous coercive and controlling persecution of Helen culminated in a thrilling Sunday night ‘special episode’ in September 2016, as the programme was extended to an hour for the first time in its 65 year history. The dramatic conclusion prompted a fund-raising campaign that raised over £200,000 for domestic abuse charities, and even lead to a supportive statement from the Prime Minister’s Office. Public awareness of ‘coercive control’ as a new way of framing domestic abuse added momentum to a successful campaign for legal reform run by a coalition of women’s groups. In the afternoon of January 20th 2015, then Attorney General Robert Buckland introduced a new clause on coercive control into the Serious Crime Bill, which was the government’s major crime bill of 2014 – 2015. The Attorney General’s introduction to the committee on that afternoon was appropriately rousing: ‘abuse is hidden behind the closed doors of far too many families. We must bring domestic abuse out into the open if we are to end it. The first step is to call it what it is: a crime of the worst kind’.

Activists and front line specialists in the domestic abuse sector have long bemoaned what they see as a ‘gap’ between rhetorical intent and operational reality. Despite the Attorney General’s best intentions, the new clause ended up quietly tucked away as section 76 in Part V of the Serious Crime Act 2015 under the heading ‘Protection of Children and Others’. The poor drafting of section 76 is typical of the gap – relegating domestic abuse victims to the status of ‘Others’ is a significant step down from ‘calling it what it is’. However, while section 76 is imperfect, it is also both radical and progressive. When it came into force on 29 December 2015, England and Wales became the first jurisdiction in history to make ‘controlling or coercive behaviour’ a brand new criminal offence punishable by a maximum of five years in prison.

Domestic abuse is, unfortunately, qualitatively different as a crime in that perpetrators have 24/7 access to their victims. This makes it uniquely dangerous – recent BBC figures show that domestic homicide is at an all-time high: an unthinkable 173 people lost their lives last year at the hands of their partners or ex-partners. That there is a relationship between control and homicide is no longer in question. Criminal justice, in this context, is an essential tool for the front-line organisations who work to keep vulnerable women and children (it is almost always women who are the victims of coercive control) safe.

Four years on, there is a key question. Has section 76 helped the criminal justice system be more effective? Are the real-life Helen Titcheners – who live in what pioneering academic Professor Evan Stark has termed ‘a state of entrapment’ – any closer to freedom and/or safety? The future of Teresa May’s long awaited Domestic Violence and Abuse Bill is, at the time of writing, uncertain; if it does become law, it will introduce some important procedural changes, such as making it easier for victims to give evidence in court. None of these changes in themselves are likely have much of an impact on the most recent ONS figures, which show that there were only 235 successful coercive control prosecutions last year, in the context of an estimated 1.3 million women who experienced domestic abuse. However, a new paper in the Howard Journal of Crime and Justice suggests that the picture on the ground is more complicated. It also argues that urgent training is needed if section 76 is to reach its undoubtedly progressive potential.

Analysis of data from interviews and focus groups with survivors, their closest advisors, and police shows that section 76 has the potential to change the way the criminal justice system deals with domestic abuse radically and for the better. This will only be possible, however, if police, CPS and the judiciary are trained to understand the dynamics of coercive control. Last year, the World Health Organisation declared that domestic abuse is an international emergency. An approach to the prosecution of domestic abuse that is informed by the theory of coercive control could help keep women safe. Change is needed. Rhetorical intent in the context of domestic abuse is a good start. Compulsory training in coercive control for all key criminal justice agents would help make this intent an operational success story.

Cassandra Wiener is a doctoral researcher in the School of Law at the University of Sussex, and a Visiting Lecturer in Sociology at City, University of London. Her research focuses on coercive control and the criminal law and she advises governments and activists around the world on the doctrinal implications of domestic abuse law reform. Her monograph, Coercive Control and the Criminal Law, is being published by Routledge next year.

This blog is based on the following article: Seeing What is Invisible in Plain Sight: Policing Coercive Control, Cassandra Wiener. First published: 25 October 2017.

https://onlinelibrary.wiley.com/doi/full/10.1111/hojo.12227

Access to information should not be an after-thought in plans for ‘transforming our justice system’

Judith Townend
Judith Townend

Cross posted with permission from The Transparency Project

On 15th September 2016 the Ministry of Justice opened its consultation into “Transforming Our Justice System”. The 36 page document, accompanied by a statement by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals, sets out a “vision” for a radical overhaul and major financial investment in courts and tribunals in England and Wales. The plans for reform include more use of case officers for routine tasks, more decisions made “on the papers” (where a judge can consider representations without a physical hearing), more virtual hearings, and more cases resolved out of court.

The consultation document concentrated on some specific areas of reform including its “assisted digital” strategy (to help users access services), and online conviction and statutory fixed fine plans. The latter would allow for certain routine, low-level summary, non-imprisonable offences with no identifiable victim to be resolved entirely online, whereby a defendant would enter their plea to an online system. If that’s a guilty plea they would be able to view the penalty, accept the conviction and penalty, and pay their fine.

Responses were sought on online convictions and the “assisted digital” strategy by 10th November (extended after an administrative error). It is likely that many of the responses will focus on the access to justice issues and the risks of an online plea system; research by the charity Transform Justice, for example, indicates that “many unrepresented defendants do not understand whether they are guilty or innocent in legal terms – whether they have a valid defence – and certainly don’t understand the full implications of each option”.

However, there’s another major issue which is overlooked in the consultation, that of access to courts and tribunals by members of the public who are not necessarily directly involved with proceedings — this includes members of the media, NGOs and universities, but also ordinary people who wish to observe proceedings and access the information to which they are legitimately entitled.

Although the consultation document contains a pledge that the judiciary and government will “continue to ensure open justice”, access to proceedings and materials is not explored in any detail in relation to the specific reforms outlines on online convictions and “assisted digital”. It states the “principle of open justice will be upheld and the public will still be able to see and hear real-time hearings, whilst we continue to protect the privacy of the vulnerable” (p.5). This sentence points to a very important tension in complex digital environments, and one that needs overt recognition and detailed consideration when designing new access systems for online court procedures in both civil and criminal contexts.

There is mention of “transparency” in the joint statement (p.10) but only in relation to general data about proceedings (i.e. statistics) rather than with regard to access to proceedings. The Impact Assessment on Online Convictions mentions that “Listings and results would be published” (p.5, para 23) with no indication of whether this means to the open web (indefinitely?), or in a physical courtroom. If they intend to publish the full listings for all these summary only non-imprisonable offences to the open web, it is very important that the judiciary and MoJ consider the legal and societal implication of this — it is not something that has previously been done so systematically by the court.

Given that many major criminal convictions are unreported by the media owing to a lack of resource or interest, we could end up in a strange situation where there is greater access via online search for far less serious offences and this must be considered in the context of issues such as equal opportunities and potential barriers to work, as well as open justice and transparency. The MoJ, HMCTS and Judiciary should investigate a range of technological options for sharing data from courts and tribunals and should open these proposals to scrutiny through stakeholder research and official consultation.

In the annual University of Sussex Draper Lecture 2016 in London this week (8 November), Lord Justice Fulford (a summary of which may be found here) said that one option being considered was to provide viewing centres in public buildings, but these were early days and they were still looking for imaginative solutions. It would seem perverse, given the overall agenda of the reforms, for the courts not to consider digital access options that do not require physical travel to court.  

On behalf of the Transparency Project I have written a submission to the consultation, raising our overall concern about the lack of attention given to open justice and access to information in these initial documents. Our submission urges the Ministry of Justice and Judiciary to provide more detail on their specific plans for physical and digital access to virtual proceedings and to open these plans to further consultation. Too often, public access to courts information is an afterthought, which leads to mistakes such as the inadvertent release of sensitive and confidential data, or insufficient information and access being made available.

Judith Townend is a lecturer in media and information law at the University of Sussex and a member of the Transparency Project Core Group.

Sussex Clinical Legal Education Launch

Amir Paz-Fuchs
Amir Paz-Fuchs

Below is the text of my talk at the Sussex Clinical Legal Education Launch Event, which took place 5th October, 2016, at the Old Courthouse, in Brighton.

 

I would like to say a few words to introduce, from our perspective, what we’re doing, and why we’re doing it. Sussex Clinical Legal Education is both a practical endeavour and a new way to think about teaching law. It is practical, because it is about exposing students to the difficulties that litigants face when seeking to access justice

In The Rule of Law, Lord Bingham wrote that the “denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”. The increase in court and tribunal fees, on the one hand, and cuts to legal aid, on the other, are, to borrow the phrase from none other than the President of the Law Society, “a huge setback for justice in the UK” that will deter people from appealing adverse decisions.

But it is also an important development in the way we teach law. The Association of American Law Schools wrote, almost 25 years ago, that

Clinical education is first and foremost a method of teaching. Among the principal aspects of that method are these features: students are confronted with problem situations of the sort that lawyers confront in practice; the students deal with the problem in role; the students are required to interact with others in attempts to identify and solve the problem; and, perhaps most critically, the student performance is subjected to intensive critical review.’

Indeed, the way we see it, this is a start of a revolution in the way we think about teaching law, about our commitments to the community, and about our engagement with the legal profession in Brighton and the region.

So what are doing now? From the beginning of this academic year, we’ve started a new Clinical Legal Education module. Students on the module take part in lectures on access to justice and the role of clinical legal education as a group, but each student is also involved in one of five projects, or clinics. If you look through the brochure, or on our website, you will find some details, but very briefly, they are:

First, Citizens Advice – an exciting collaboration with Central and South Sussex Citizens Advice, led by Bonnie.  Students received training with Citizens Advice, and have already been meeting with clients as part of the gateway service. We’ll be looking towards collaborating with other Citizens Advice Branches in the near future.

Second, CLOCK – in this project, led by Lara and Marica, students sit in the Court to assist litigants in person with forms, arranging court papers, suspending evictions and small claims, and finding legal advice.

Third, Employment Law Clinic – Ioannis and myself oversee students who offer free legal advice in areas of employment law. In doing so, students are supervised by external solicitors from one of four law firms that have already expressed their willingness to assist us: DMH Stallard, Fortis Law, Healys and Martin Searle.

Fourth, Family Law Clinic – here students meet with clients and offer free legal advice, supervised by a solicitor who is also a member of staff – John Jupp, in areas including family disputes, divorce, separation, children issues, co-habitation and financial matters.

Fifth, and finally, the Housing and Welfare Law project involves collaboration with two housing charities – the Brighton Housing Trust and JustLife. Alex and Lucy supervise the students, who engage with people in temporary accommodation, who have difficulties accessing benefits, and/or who are not sure what rights they have.

So as you can see, Sussex Clinical Legal Education already involves a wide range of models: students in courts, students in charities, students in the communities, students on campus. Students giving legal advice and students facilitating access to professional, legal advice.

It involves an inside-out, and an outside-in, process. Inside out – in the way we teach, what we do in classrooms, but also managing the enthusiasm from quite a few members of staff who have stepped up with ideas to develop programmes and clinics in their field of interest. These already include environmental law, creative industries, and criminal justice, for example. But it is also outside-in, by which I mean responding to approaches and needs from the community, and in particular – from our new-found friends and partners. Here we find that there is a dire, and unsurprising, need for assistance in areas of asylum and migration, which we will try and respond to.

So this is a good opportunity as any to thank project leads for the incredible amount of work they have put in for the past two years of planning; to John Jupp, John Child and Carly Brownbridge for their crucial role in steering the project; to Andrew Sanders and Sue Millns, and formerly – to Stephen Schute and Heather Keating, for their support and financial commitment on wbehalf of the school; and finally, but crucially, to our partners, in the community and in the profession: without your support we could never have gotten off the ground, and as a result of  your enthusiasm we know that this only the beginning.

So clinical legal education is very much about the profession, and about the community. But it is also very much about students. Law students. Our law students. There have been quite a few studies, here and abroad that show that many students come to law school for altruistic, rather than self-interested, reasons. They want to make the world a better place, address injustices and pursue social justice. They leave law school, however, in a very different mindset, concerned mainly about, well, making money. To what extent have they just ‘grown up’, and to what extent has the law school played a role in this change of heart? Whatever the answer you give, it is clearly the case that clinical legal education helps keep the passion alive, showing students that, equipped with the power of the law, one can truly do good, and improve lives. And this is true, of course, not only in their student lives. For lawyers are gatekeepers to the realm of law – they, we, you, construct the law and also have a role in deciding how high are the walls between lay members of the community and a true understanding of their rights. This is, after all, a great deal of what access to justice is about.

Can you please join me in thanking them, and our speakers – Robert Bourns, Joe Miller and Prof Adam Tickell, for helping make this a very memorable evening.

 

Amir Paz-Fuchs is Director of Sussex Clinical Legal Education.

Who Should Pay for Access to Justice?

Amir Paz-Fuchs
Amir Paz-Fuchs

The summer of 2016 was an interesting one for those concerned with the state of access to justice in the UK. The House of Commons Justice Committee published a report that criticised the imposition of court and tribunal fees by the Government; and the Supreme Court struck down the residence test introduced by the then Lord Chancellor, Chris Grayling. Together, the message from two prominent branches of government, is a mixed one. On the one hand, it shows that the changes that the Government has put in place in recent years have been extremely detrimental for those are most in need of accessing the justice system. On the other hand, it shows that the battle is not lost. That the term – access to justice – still resonates strongly and holds sufficient sway to challenge government policies, and even to brand them as illegal. In this post, we focus on the Justice Committee report (hereafter: the report) and only note a few curious aspects concerning the Supreme Court ruling.

It is difficult to describe the Justice Committee Report as anything more charitable than a scathing critique of government policies in this area, an assessment given further force by the fact that the Committee is chaired by a member of the Conservative party – Robert Neill MP. The report seems to be bewildered not only

Robert Neil MP
Robert Neil MP

by the decisions themselves and the impact on hundreds of thousands of court users, but also on the amateurish structure for fee remissions and the evidence based process (or, rather, lack thereof) following which the decisions were made. But notwithstanding the importance of the process, the changes themselves are striking in their audacity, and their implications. We note here the fees introduced in Employment Tribunals [ETs, EATs], Family Courts and Immigration Tribunals, each having special characteristics.

The rise of fees had the most immediate effect in Employment Tribunals. The MoJ Impact Assessment document from 2011 reveals that these were implemented with two main aims in mind. First, a “fundamental policy aim … to transfer a proportion of the cost of running the ET and the EAT from taxpayers to the users”. In fact, by the time the fees were implemented, in 2013, the government intended to achieve full cost recovery by “charging fees reflecting, or in some cases exceeding, costs incurred…” [para 10]. Second, to encourage the resolution of disputes outside of a tribunal. While the document does not explicitly mention the aim of discouraging weak or vexatious claims, it does mention the objective of encouraging claimants to make a more informed decision about the value of their claim. Moreover, a Department of BIS report, Resolving Workplace Disputes, from the same year, said in relation to employment tribunal fees that “a price mechanism could help to incentivise earlier settlements, and to disincentivise unreasonable behaviour, like pursuing weak or vexatious claims” [p. 50]. So what is the result of all these benign motivations? The Coalition government introduced employment tribunal fees in 2013, in two categories: ‘Type A’ and ‘Type B’. Type A claims, which are considered less complicated (e.g. unpaid wages) command £160 issue fees and £230 hearing fees (£390 in total); Type B claims, considered more complex (e.g. discrimination) require £250 in issue fees and £950 in hearing fees (£1200 in total).

The effects were dramatic: an overall drop of 70% in employment tribunal claims submitted following the introduction of fees, spread across all claim ‘types’: working time (78% drop); unfair dismissal (72%); breach of contract (75%); unauthorised deduction of wages (56%); sex discrimination (68%). Moreover, if the government did indeed expect that the introduction of fees will encourage the resolution of disputes through ACAS, the law of intended consequences worked in brilliant fashion here. The Justice Commission concluded, based on a considerable amount of evidence that “far from encouraging early conciliation and resolution of disputes, employment tribunal fees were having precisely the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty raising the fee” [64]. Indeed, an employment solicitor gave evidence that “When I advise an employer, why would they engage in early conciliation? You wait for the employee to pay a fee” [64]. As for vexatious claims, the government had no evidence of the proportion of such claims before, or after, the imposition of fees. Moreover, since the proportion of claims rejected was very similar before and after, there is little to suggest any impact on that front. It should be noted that despite this evidence, a legal challenge to the imposition of employment tribunal fees, brought by Unison, failed before the Court of Appeals, and is now before the Supreme Court.

In family courts, fees for divorce proceedings were enhanced from £270 to £410 in 2015, and to £550 in 2016. As the President of the Family Division, Sir James Munby, noted before the Commission, there can be no behaviour changing rationale for these fees. In fact, he stated, (at [87]) that

There are only two things that the justice system does where you have no choice but to use the system. One is divorce; the other is probate. …. Therefore, we have a captive market… I have to say that there is something rather unattractive—particularly if one is selling justice, which one should not be doing—in battening on to the fact that there is a captive market and that, because there is no elasticity of demand, one can simply go on putting up the fees until it becomes another poll tax on wheels.

Finally, the imposition of fees for Immigration Tribunals, and specifically – the extent of the increase, seems uniquely cruel. Fees were increased to a cost recovery level: for a decision on paper from £80 to £490; for an oral hearing from £140 to £800; and new fees, of £455 for permission to appeal to the Upper Tribunal, and £510 for the hearing, were introduced. There is little surprise that the combination of new fees amounting to hundreds of pounds, a six-fold increase in existing fees, all imposed on extremely vulnerable claimants, including asylum seekers, facing the power of the state – raised concern with the Commission.

The flip side of a fee imposition regime is a fee remission structure. But here, too, the Commission finds that the government plan is flawed. Without delving into the details, the way the government calculated a claimant’s disposable income for the purpose of assessing eligibility borders on the fictitious (see [76]). In addition, as the Council of Employment Judges noted, the low level of income necessary for remission eligibility will exclude many low paid workers in the care, security, hospitality or cleaning industries who previously claimed – successfully – unauthorised deductions in sums that were small, but significant to them [72].

Finally, it is worth mentioning the ‘evidence base’ aspect, or lack thereof, that supposedly facilitated the imposition of fees. The report dedicates a full section to the way the Government conducted itself in this regard. It cites senior members of the judiciary who were “scathing about the quality of the research used by the Ministry to inform its policy formulation” [49]. Indeed, their response refers to the research undertaken as “clearly inadequate” (para [26] to the response). In addition, the Master of the Rolls, Lord Dyson, has characterised the research as

Lord Dyson
Lord Dyson

“lamentable”; the Chairman of the Bar Council described it as “insignificant”; and the President of the Law society argued that it is “poor” [49]. Apart from the sad state of affairs, the fact that a central policy is implemented with so little appreciation of its effects on people’s rights, and people’s lives, suggests that it could have only been carried out due to a dogmatic view, that renders effects and consequences as insignificant. This stubborn approach, of the “my mind’s made up, don’t confuse me with the facts” variety, is not, one would hope, characteristic of policy making in the UK in general. But the strong hold of the neoliberal agenda trumps not only concrete, discrete, policies, but also policy making procedures and the rules of the game.

This latter point leads us to the aforementioned decision by the Supreme Court, in The Public Law Project (PLP). The PLP challenged the draft order put before Parliament by the Lord Chancellor, on 31 March 2014, which introduced a residence test as a precondition for eligibility for legal aid. It claimed that the order is ultra vires section 9(2) of the Legal Aid, Punishment and Sentencing of Offenders Act 2012 (“LASPO”) and is unjustifiably discriminatory in its effects. Both claims were accepted by the High Court, and both were rejected by the Court of Appeals. Writing for the Court, its President, Lord Neuberger, reversed again. He noted that while section 9(2)(b) empower the Lord Chancellor to “vary or omit services”, they do not empower him to “reduce the class of individuals who are entitled to receive those services by reference to a personal characteristic or circumstance unrelated to the services” [30], which is what the draft order seeks to do. Since he accepted the ultra vires argument, he saw no need to address the discrimination issue.

Although the ruling is ‘administrative’, and thus somewhat ‘procedural’, in its focus, there are two important points that may be made. First, although it is understandable, it is also somewhat unfortunate that the Court decided not to delve into the substantive argument. As I noted elsewhere, in an analogous context (a successful ultra vires argument that led to a DWP workfare programme being struck down): procedural challenges may often be more successful, but they are short lived. Indeed, in that case, that Government simply revisited the empowering legislation, created the necessary ministerial powers, and the Minister put in place new regulations to (retroactively!) legitimise the programmes. Substantive challenges, of course, are usually less successful, but if they are – cannot be addressed through simple, administrative measures.

The second matter that arises from the decision concerns the justification given by the MoJ for this policy. Here, as with the cost recovery policy scrutinised by the Justice Committee Report, we find the footprint of neoliberal and chauvinist thinking. As the Court notes, the residence requirement was first outlined in a MoJ paper, Transforming Legal Aid: Next Steps, published in 2013. In the Equality Statement, attached to that paper as Annex F, the MoJ described the “primary objective” of the residence requirement as being “to bear down on the cost of legal aid, ensuring that every aspect of expenditure is justified and that we are getting the best deal for the taxpayer”, and further stated that “the reforms seek to promote public confidence in the system by ensuring limited public resources are targeted at those cases which justify it and those people who need it” [6.3, quoted in the judgement at [14]). The first quote transforms public services to market services, by suggesting a hypothetical ‘contract’ between citizens and taxpayers, effectively viewing the former as ‘consumer-citizens’. The latter quote seems to be misleading: the residence test denies legal aid to some of the most needy claimants, such as migrants fleeing horrific situations, or women fleeing domestic violence. So, sadly, the only possible interpretation of the latter statement is that the residence test is intended to fence out not those who are not ‘in need’, but those whose needs ‘we’, the taxpayers, do not wish to address.

Amir Paz-Fuchs is a Senior Lecturer, Sussex Law School