Legal Aid is incredibly important. In line with the European Convention on Human Rights (ECHR), our criminal justice system enables citizens to feel both protection and redress from acts of violence. Article 6 of the ECHR specifically addresses the right to a fair hearing. A fair hearing constitutes equality between both parties in terms of representation and access. Without fairness, the judicial system runs counter to its very philosophy of achieving justice. Legal Aid provides those without easy access to the law with a voice to be heard.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) defines domestic violence as ‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’. Articles 2, 3 and 8 of the ECHR recognise positive obligations to protect individuals from abuse. According to case law, all Council of Europe member states must take reasonable, adequate and effective measures to protect individuals that are known to be suffering abuse or violence. These obligations are increased where vulnerability exists.
A sense of protection and recognition is vital in the cases of those facing domestic abuse. LASPO removed legal aid from family law and initially restricted access to domestic violence victims on the grounds of eligibility. A limited scope of acceptable evidence to determine whether one is the victim of domestic violence was deemed extremely restrictive and difficult to acquire. In this respect, the tide appears to be turning as the Government introduced the Civil Legal Aid (Procedure) (Amendment) Regulations 2016 which assisted the widening of the eligibility requirements. However, what is more worrying is the failure of LASPO to fully facilitate the whole sum of human rights. Choosing to be selective when it comes to human rights will never be an appropriate approach. An example is that a victim could be denied legal aid in the case of seeking a financial order. This goes beyond a mere failure of providing the individual with a fair trial and triggers their rights under ECHR Articles 2, 3 and 8 too.
Clearly, shared children, the family home and finances are key areas where abuse can continue. Controlling partners will often use these areas as tools to ensure that their power over the victim is maintained. Thus, LASPO is clearly ignorant in its choosing to neatly separate human rights in this way. Legal aid is a requirement. Protection in these instances should always be available for those most in need, especially where there is the potential to be directly faced with the abuser in court. Where legal aid has been denied, acting as litigants in person with insufficient legal knowledge is unlikely to result in a fair trial. This scenario also allows for the continuation of abuse. It is the duty of the UK to ensure that legal aid is always budgeted for.
Legal Aid is crucial, we must support its availability and decry its decline as those who suffer most are the ones already most vulnerable in our society. Hence, the future appears far brighter for domestic violence victims as the Government has increased its budget in this area in contrast to the overwhelming theme of reducing expenditure. The announcement of £20 million in funding came on International Women’s Day. It will be interesting to hear feedback on the consultation of the proposed Domestic Violence and Abuse Bill. Hopefully, once passed, it will provide victims with the radical changes so desperately needed. There was initial anxiety surrounding its narrow scope offering little in the way of adequate transformation. The Government must listen to the consulted women’s groups and their recommendations. The input of these groups will bring about the necessary legal change for domestic violence victims and allow their human right to a fair trial to be better met.
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