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Legal Aid: The Price of Justice

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25 October, 2013
Law & Practice, Michael Keightley
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legalaidcuts

Image Source: http://converseprisonnews.com/

– Michael Keightley (LLB Law, Newcastle University) m.keightley@hotmail.co.uk

Substantial cuts made to the welfare system in April 2013 have been met with public outrage. In order to save an approximate £350m per-year, legal aid has been scrapped entirely for cases of divorce, welfare benefit disputes, child contact, clinical negligence and employment.

Further changes are restrictions in housing law, with legal aid only being allowed in extreme circumstances. Not to mention the ethically questionable decision that, in order to receive legal aid in cases of domestic violence, the victim is required to provide medical evidence. Alongside all of these changes, employment tribunals will now cost a minimum of £160 before you even attend the hearing and could result in a total cost of £1,200 for ‘complex’ cases, based around issues such as unfair dismissal or discrimination.

Consider the amount of people using the legal aid system in 2009/2010 (an approximate 2,965,000) and compare that to the Government’s aim to save £350m. From this we can see that the Government would save a mere £118.04 per-head – leaving almost 3million people without proper access to justice for a relatively low reward.

Are we not living in a society of equal treatment? Not to say the legal system has been altered. The intentions of the legal system, as a whole, remain to be fair and indiscriminative. The issue is the accessibility of a fair system. It becomes difficult to profess that a system is fair if all cannot properly access it. Attorney General Dominic Grieve argues that “everyone has a reasoned plan for why expenditure should not be cut from their area”, but this does not concern the legal system as a single area, it concerns the constitutional right of every individual’s access to justice.

These changes adversely affect those on low-incomes by not allowing help with the legal support that can ensure they treated rightfully. Take, for example, if someone on a low income were unfairly dismissed for their race or belief; they would be left with no income and no means to follow the issue up in an employment tribunal. This loss of income could branch out into issues with rent, claiming Jobseekers or obtaining future employment.

This need for assistance will then shift to private charities, such as The Citizen’s Advice Bureau, and people will be forced to face their issues with the limited assistance of these charities, or their own knowledge of the system. An even worse possibility is that they may feel forced into finding funding for legal representation elsewhere, which could be bank loans or high-interest payday loans.

But this extends beyond financial issues. When domestic violence victims are doubted through the need to submit medical evidence of their victimisation, it becomes an ethical issue. Breaking ethical boundaries like this could create a rift of mistrust between the people and the system they rely on to deliver justice.

For the legal system itself, lawyers could lose a significant amount of clients. With the area of criminal law having 1,358,000 acts of assistance funded by legal aid, criminal lawyers are also bound to suffer. Grieve also commented upon this issue, giving his sympathy for the lawyers that were to be affected, stating, “for self-employed people it is death by a thousand cuts and it’s an extremely painful process”. It is this issue of ‘self-employment’ that seems to be receiving such little consideration – it would seem nonsensical to stop people entering a local shop and buying groceries due to a choice based on their financial income, so it should be regarded as equally unfair that the government are forcing a restriction to the business of many self-employed lawyers.

It is difficult to draw a positive from these cuts. With adverse effects to the idea of ‘justice’ and people’s belief in the system under which they are ruled, it would be more relevant to refer to a Marxist approach, where the classes are being treated differently based on their income. Such a huge change that was rallied against by 96,000 people through an e-petition; the conclusion left to draw is that such budget cuts have shackled the concept of justice and limited people’s utilization of their rights.

 

Are We Switched on to the Threat of Blackouts?

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21 October, 2013
Catherine Caine, Environmental Law
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– Catherine Caine (PhD Student, Newcastle University) c.a.caine@newcastle.ac.uk

We’re all aware of the recent news pieces that have hit the headlines over the past weeks following labour leader, Ed Miliband’s, claim to freeze energy prices. The average householder has been hit with arguments that such a price freeze is not possible, as well as fears of impending blackouts to their power supply over the next five years and the prospect of large price rises from the major energy suppliers. With this barrage of news, one could be forgiven for regarding this as a fairly murky time for those who require electricity in their day-to-day lives (to quote a certain political parties’ mantra “we’re all in this together”). With every new story that blesses the front pages, we are led to further question the energy “master plan” that our government has put in place, and whether these plans provide for secure energy in the future. After all, how much of the political posturing on energy prices that we hear is realistic? To what extent is a four year government capable of planning for sustainable energy generation in the future? Is our government bound by law to certain energy deals? And can the government change the goalposts on energy projects that have already been agreed?

With an upcoming election in the UK, party conferences are promising a considerable number of changes to energy policies with the assumed aim of winning around the average voter who is discontented by the cost of his energy bills. However in reality, the chances of these glamorous promises becoming practice are slim. The reasons behind this claim are not due to political backtracking, or the realisation of our financial situation (both reasons will, and have, played a major part in politicians reneging) but are due to reasons such as inability to break contractual obligations that have been made, and the need to comply with European and International law. For example, take the recent proposal from the Conservative Party to prevent the growth of wind farms and other forms of renewable energy from blighting the countryside. Recent claims from the Conservative Party have accused wind farms of becoming a “gravy train threatening to career out of control” with an average of seven wind farm applications being made in Scotland on a daily basis.  As a result, the Government has hit back against its own policy, claiming that by removing funding and subsidies from green energy, the bill-payer’s bill will automatically be reduced by £110. However, this claim has been swiftly rejected by a senior member of the Liberal Democrat party who argues that cutting such subsidies would not be legally possible, as the contracts for green energy construction have already been agreed.

In addition to the legal barrier of having to cancel existing construction contracts for green energy sources, the Government must also be mindful of the European and international obligations that it has agreed to adhere to. For example, under the Conservative’s claim that it will curb the construction of green projects, the UK runs the risk of not complying with certain European Directives that it has entered into regarding renewable energy and climate change. A recent report from the European Union indicates that the UK has already failed to meet its 2010 targets for increasing the share of renewable energy in the electricity sector, and shows that the failings in the European Union are most prominent in the wind sector. It is suggested that, given the fact that the UK has already fared poorly with regards to meeting its renewable energy target within the EU, Government proposals to cut green energy further may result in the UK risking non-compliance with the Directive. In addition to the commitments that the UK has made under the European Union, there are also a number of international agreements such as the Kyoto Protocol (as recently amended by the Doha Amendment) that must be taken into consideration when making allowances for our future energy supply.

It seems, therefore, that lurking behind all of the political posturing that currently lines the newspapers; there remains a set number of obligations and legally binding contracts that the UK has already committed itself to regardless of what is being said in order to win an election. As we have seen, the comments made by politicians leading up to the election have already had a profound effect on the actions of energy companies. Since Ed Miliband’s claim to freeze energy prices, two of the major energy companies have declared large price increases, resulting in thousands of customers deciding to switch suppliers before price rises affect them. Ed Miliband’s claims have been called irresponsible by some for their impact on current energy prices, whilst others criticise the plans for their ability to stunt investment and growth in the energy sector. Whether or not you agree with Mr Miliband’s answer to high energy prices, his suggestion, along with its consequences, serves as a good example of the pitfalls that face an energy sector that is guided by short-term governments. Energy generation and supply requires long term planning. Combine this with evidence of climate change, and a desire to lower carbon emissions, and we are left with a need for this long term planning to be sustainable. With a government in the UK that often works around a 4 year plan, politicians are left with the choice of being a hero today and stunting investment in the energy sector in future, or the unpopular decision of raising consumer bills in order to invest in green energy today.

In summary, the outlook on our future energy generation is unclear. Whilst we are bombarded with policies from politicians who claim to be acting in our best interest, it is important to scrutinise the validity of such claims in light of the legal contracts and obligations that already exist. We are all aware that politicians may well make promises and claims ahead of an election that they will not keep (the chime of “tuition fees” remains a sore subject for many). However, point scoring and election tactics will not prevent the lights from going out if action isn’t taken to secure our energy future.

 

 

 

Guilty Until Proven Innocent: The Anonymity of Celebrity Defendants in Sexual Abuse Cases

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16 September, 2013
Criminal Law, Jessica Randell, Media Law
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Michael Le Vell (Image source: http://www.itv.com/news/granada/update/2013-09-02/coronation-street-actor-michael-le-vell-arrives-at-manchester-crown-court-to-face-trial-for-a-series-of-child-sex-offences/)

– Jessica Randell (LLB Law, Newcastle University) j.m.randell@ncl.ac.uk

In England and Wales a suspect in criminal law is supposedly innocent until proven guilty. This has been emphasised by the introduction of this right in the European Convention of Human Rights and Fundamental Freedoms (ECHR), article 6(2), as incorporated into domestic law by the Human Rights Act 1998. However, in practice, this process rarely occurs. With details of accusations, the trial and personal details regarding the suspect banded about in the media, both social and otherwise, it is less of a reality and more of an ideal. This is becoming more and more prevalent in the wake of the so-called ‘celebrity witch-hunt,’ particularly regarding allegations of sexual offences against children with famous celebrities in the dock. These include, but are by no means limited to; the children’s entertainer Jimmy Savile, Coronation Street actor Michael Le Vell and presenter Stuart Hall.

Both prior to and during the ‘celebrity’ trials that have been seen so far the media have been publishing intimate details about the alleged offences yet they are refusing to anonymise the name of the accused. Whether this is the right thing to do has divided the public but this is far from a new debate and it is, most definitely, not something that has gone unquestioned in the past. In the Sexual Offences (Amendment) Act 1976, for example, rape suspects were granted anonymity but this was later removed as it was deemed unjustified that those accused of rape should be distinguished from other criminal defendants. The complainant, on the other hand, retained their right not to be named and this too is criticised. It has even been questioned by our current coalition government as to whether this aspect of our judicial system needs changing but they too have decided to leave it untouched. Many questions arise from this. Is it fair? Should it be changed? And what are the alternatives?

A false accusation of a sexual offence can, as with most areas of law, destroy an individual’s privacy, relationships and livelihood; this much is acknowledged. Many will claim that the revealing of the defendant’s real name during a trial should be kept under wraps until a guilty verdict is reached. It is submitted that this should not occur. Our judicial system boasts about its unique approach to open justice; this allows for the monitoring of the inner workings of the system, to account for fair and accurate recordings of trials, to deter potential wrong-doers, to satisfy complainants who may need their ‘day in court’ and to generally uphold democracy. In accordance with this an open court allows for trials to be accessed by the public and the press alike and means that cases can be freely and openly reported on in the interest of the right to freedom of speech (see article 10, ECHR). Some may argue that allowing such reporting is an example of the right to free speech trumping an individual’s right to respect for their privacy (see article 8, ECHR). However, as with all collisions of these two fundamental freedoms; one will always prevail. This occurs despite their equal weighting as it is judged in light of a balancing exercise, where one will always outweigh the other, which is based on several factors; not least including those listed above.

Using the example of actor Michael Le Vell, who was recently cleared of twelve counts of sexual abuse against a child, including five counts of rape, he has suffered several personal setbacks as a result of the trial. He was suspended from his work as an actor on the soap Coronation Street for seven months prior to this verdict and his private life has been monumentally thrust into the public domain. This included releasing evidence regarding his alcoholism, extra-marital affairs and intimate details regarding his sex life. Some argue that this should never have been allowed in that it will discolour the public’s opinion of him. Furthermore, that it means we are no longer adhering to the right to remain innocent until the prosecution can prove the defendant’s guilt beyond reasonable doubt; the standard of proof in England and Wales. There is also the argument that such false accusations will not be removed from all media forms as, for example, it will remain only a simple search away in any internet search-engine. Such would only further bring these accusations to light either at the moment or at any time succeeding these events; meaning the actor is affected both now and in the future.

Despite these criticisms, pertaining specifically to celebrities, allowing for the anonymity of such defendants would incur several difficulties. These would include; determining the difference in treatment between celebrities and non-celebrities, how to distinguish between who is famous and who is not, the impact of social media exposure of personal details of those involved and the prevention of providing a publicised channel through which to encourage other complainants to come forward. The negative consequences for the innocently accused are recognised as being rife in such high profile cases; but why should the maintaining of a celebrity’s career and personal life surpass that of the average defendant?

An alternative, as has been advocated by the public, is to prevent the publication of any defendant’s details in such sexual abuse cases, whether the defendant is famous or not. This is surely unworkable in a system such as ours; what would happen to the free speech of those working in the media? How would we justify anonymising defendants in just one area of law? Would potential complainants feel this means there is perceived to be a larger number of false accusations in this particular area and how would this affect those scared to come forward?

If this was a feasible option it seems that the anonymity of rape defendants would never have been abolished, as it was, in 1988. It would have remained and simply been extended to cover all defendants in sexual abuse cases or, further, all criminal defendants. However, would it stop at just the name of the defendant being anonymised or would this extend to details of this case being kept secret? Surely it would become obvious to some people who the case concerned if all details were released bar a name? Regardless of it being a name or all details of a case only released upon a guilty verdict, with an appellate system such as ours, it would be extremely impracticable. If, for example, a defendant was found to be innocent at trial but later found guilty, upon travelling along the multiplicity of avenues awarded by our sought-after judicial system, what then occurs? If personal details were then to be released, would this include details from the very beginning of the case or limited to that appellate stage? What if the decision was then reversed again? Would this mean releasing details of a defendant only when it reaches the final stage in our system – ultimately this would be at the Supreme Court – or would this be extended to the European Court of Human Rights? If all of these questions were answered and it was deemed appropriate only to release information at the final stage of the case then further issues arise; in so far as how are students, academics and practitioners alike expected to apply and analyse the law without tracking its development as it occurs? A lack of legal certainty would no doubt ensue as there would be no indication as to how the law stood leading up to a final decision and how it could, potentially, be developed in the future.

There are alternative ways in which to adjust the system which do not involve anonymising the name of the defendant or, further, details of the trial until a guilty verdict is reached; but these too appear unlikely. They include setting a time limit on all online articles with an expiration date for them to delete themselves after the conclusion of the trial; hopefully mirroring the memory of the average reader. This would mean that information cannot be accessed in the future regarding innocent defendants. Arguably, if it is not on an individual’s criminal record then it should not be accessible on the internet. Alternatively, we could anonymise the name of the individual in any media form; leaving them only to be mentioned in the trial and in the judgement. It seems this would require some form of an injunction but appears unlikely, particularly in light of being able to post anonymously on social media websites or instead posting under your real name, along with thousands of others, with the comforting thought that it is unlikely all will be prosecuted. Finally, an update or editorial note could be added to anything published electronically or in future hard copies of newspapers, for example. This seems most likely but would not deter from the publishing of information as a trial is on-going.

These potential options would, most likely, still not be deemed appropriate by those keen to protect every aspect of the defendant’s private life. None of them offer ultimate protection for the innocent party nor do they solve the issue of unfairness in so far as the claimant remains anonymous but the defendant does not. It appears that what is desired is an all or nothing approach; all parties are named or none at all. However, it must be remembered that it is not just the falsely accused who has to endure a trial; the complainant too has to undergo fierce cross-examination, speculation and then the aftermath. The complainant may not be publically named but, post-trial, has to deal with either their abuser being acquitted or having to deal with the consequences of falsely accusing an innocent person. Some may argue any such consequences are deserved, some may not. Either way it will be the innocent party, not the complainant, who will have media reports documenting their innocence which, in any search engine or in any hard copy of a newspaper, will be the most recent news on the accusations. Le Vell, for example, has already been invited back to work and has had a barrage of support from friends, family and now the repenting press. In direct conjunction, the complainant will always have to live with the knowledge of the destruction their false accusations have, or could have, caused.

The press claim that there is a public interest in celebrities and their potential criminal activity and that justice must be seen to be done; thus celebrities do not escape media speculation surrounding legal action. It is accepted that the publicity surrounding a celebrity trial is extensive and may far out-strip that of the average defendant but, it is submitted, that a defence of public interest should exist as a means of justification for publically documenting a criminal trial. That public interest should not be in the individual as a celebrity but in that individual as a role model who has supposedly committed criminal acts.  This public interest defence is not, therefore, in existence to discover sordid details about an actor’s sex life, for example, but rather to unearth the truth about accusations that have been made against them. Once acquitted, however, the falsely accused should be able to return to their normal life as best facilitated by those around them; family, friends, employers and supporters.

One will note that more questions are being asked than answered in this blog but that in itself only further evidences that this is not a cut and dry issue as purported by the public. It is all well and good to criticise our legal system but when no workable example can be proposed, that satisfies the complaints being made, it is submitted that it is clear that we are where we are for a reason. Media speculation may well make an individual defendant feel they are not being treated as innocent until proven guilty; but it must be remembered that speculation is exactly what it is. The jury are the keepers of the (prison) keys and only they will decide a verdict based on all the evidence put before them at trial; they are reminded of their duties to be independent by the Judge and are given the opportunity to relinquish those duties at the beginning of the trial. The media may seek to damage a celebrity’s reputation but it is up to the reader to make an educated opinion of the accused based upon the verdict given at trial. Only if a negative opinion of the defendant is formed prior to the verdict will the accused be guilty until proven innocent; and, after all, if they are indeed innocent then the truth will ultimately prevail.

Internet Era: Privacy in Exchange to Safety?

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2 September, 2013
Anamaria-Mitina Mihaita, Media Law
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Internet Privacy

(Image source: http://www.huffingtonpost.com/larry-keating/internet-data-privacy_b_2562196.html)

– Anamaria-Mitina Mihaita (LLB Law, Newcastle University) mihaita_ana@yahoo.com

Nowadays technology has become an important part of people’s lives. Activities such as banking, shopping and even human interactions depend more and more on the internet. Within virtual life, individuals’ rights and freedoms also become a virtual issue. Whilst the breach of virtual rights is not a primary issue for users, discussions about virtual privacy have gained weight after the USA spying scandal.

I am told that I am free but my freedom stops when someone else’s freedom starts. The principle of real life freedom seems clear, but when it comes to the internet the term becomes blurred. The main reason for this is the difficulty of drawing virtual boundaries on a free and open platform. New legislation and a detailed technological scheme are needed to ensure our right to keep private anything inside our virtual boundaries. This solution may, however, not be accepted by internet users as it includes costly infrastructure changes which may turn the internet into a limited payable platform. As a result of this, most users simply accept the government’s explanation that internet surveillance is necessary to protect ‘good citizens’ against terrorists. Good intentions and patriotism are mentioned everywhere to explain the privacy infringement taking place online. Once boosted, the government uses peoples’ deepest fears to justify itself and the extreme decisions it has taken. When in fact, the questions that each and every citizen should be asking are: ‘should we trade our privacy in exchange for safety? and is the system sufficiently designed  to avoid abuse?

In response, the authorities have calmly stated that if you do not want something online, do not put it there. This is both logical and impossible at the same time. Nowadays, almost everything is monitored and done online, from banking transactions, to communication. Thus leaving it difficult for individuals to step out of the culture they grew up in and have grown accustomed to as the ‘real world’. Therefore it is submitted that the government’s response seems to be more of a fictional solution than a palpable one. The question remains what options do we have left? Trusting a system that has spied on us for decades without any previous notice does not seem a good option. Although intentions are good in nature, popular sayings note that the way to hell is full of good intentions. In a system where politics plays the most important role in security, the approach taken within the system could change at any moment. Jennifer Granick interestingly mentioned that the fear triggered by this scandal lays on the possibility of “bored analysts [who] do things like spy on women using surveillance cameras and listen to American GIs overseas having phone sex with their loved ones back home. Or an FBI agent may investigate strange but not unlawful emails on behalf of a family friend, leading to a sex scandal that brings down the Director of the CIA. These surveillance tools and information databases may one day end up in the hands of a J. Edgar Hoover and a President demanding embarrassing information about her political opponents, information that, in an age of mass surveillance, the government most assuredly will have somewhere in its treasure trove.”

To conclude, the solution to this situation is not an easy one. In order to protect internet privacy, users and internet suppliers have to request real boundaries on surveillance. However, the effect of these requests may come at a cost.  The ‘price of virtual privacy’ may indeed result in a charge from internet suppliers or an independent controlling body  to ensure that private information remains private if no suspicion is in place.

We shale keep using fossil fuels!

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3 July, 2013
Catherine Caine, Environmental Law
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unsplash_52af24879b3cb_1– Catherine Caine (LLM Environmental Law and Policy, Newcastle University) c.a.caine@newcastle.ac.uk

Last week brought both the news that the UK’s shale gas reserves are greater than expected and the fact that the UK is not on track to hit its climate change targets through the 2020s. It has been argued that whilst shale gas is cleaner than coal, it is still a fossil fuel and will not help the UK towards meeting its climate targets within the European Union. Under the Climate Change Act 2008, the UK is committed to ensuring that the net UK emissions of carbon dioxide are 80% lower in the year of 2050, than they were in 1990. In addition to this, the UK is also required to increase its renewable energy production to fifteen percent by 2020 under the 2009 European Directive on the promotion of the use of energy from renewable sources. However, despite these targets, the coalition government remains undeterred from its march towards the exploitation of shale gas.

It is believed that there is as much as 1,300 trillion cubic feet of shale gas expected at the Bowland site in Lancashire. Shale gas is extracted using the controversial process of fracking. Fracking is the process whereby rock is fractured using high pressure jets of water in order to gain access to the trapped gas within. The process is big in America where it has brought down energy prices, and ensured that America can use its own resources instead of importing from other states. Conversely, in the UK, the process was banned in 2011 after exploration in the Blackpool area led to earth tremors. This ban has now been lifted, as theories concerning earth tremors have been dispelled. However, the concern of tremors has been replaced with a new fear of water contamination caused by the chemicals and sand that are blasted into the rocks deep below the earth.

Lawrence Carter from Greenpeace claims that “the idea that shale gas is going to get the economy moving again is groundless” and Friends of the Earth campaigner Tony Bosworth believes that “shale gas is not the solution to the UK’s energy challenges. Its potential has been hugely over-hyped and there’s little evidence it will drive down fuel prices.” Whether you love or hate shale gas, the Coalition Government is determined to push through with plans. With at least £100,000 in benefits on offer to each Community that decides to exploit shale gas, along with 1 per cent of the overall revenues – the offer is certainly tempting. Nevertheless the question remains: will financial encouragement be enough to entice Communities to get involved with the scheme?

Shale gas wells require permits from the Environment Agency, and the Department for Energy and Climate Change, as well as permission from health and safety officials before they can be built. Despite the long list of permissions required, it has been argued that the largest obstacle facing shale gas exploitation is support from local authorities. The Chief Executive of the UK Onshore Operators Group, Ken Cronin, believes that planning is the “most difficult part” for firms wanting to explore shale gas.  He argues that shale gas exploitation is not a new venture as we have been drilling wells for oil and gas for a considerable amount of time in the UK. Nonetheless, with the additional publicity that shale gas has received concerning Earth tremors, and water pollution, local authorities will be left with a decision to take the financial gain and face the consequences, or to play it safe and risk being left behind.

Only the test of time will tell how many local authorities give consent to shale gas exploitation in their area, however with constant threats that the monies raised will not necessary benefit local communities – it is far from certain whether shale gas will be able to provide an adequate solution to our energy problems.