Concerns have rightly been raised this week about the quality and coverage of Legal Aid provision in England and Wales by a cross party group of MPs known as the Westminster Commission on Legal Aid. They have published a 95 page report identifying major concerns as to the sustainability of this country’s Legal Aid sector.
The Report opens with a rallying call to the authors’ fellow MPs and other stakeholders to help preserve the health and integrity of what the UK can rightly call “One of the best Justice systems in the world” and sounds the following important warning –
“The Legal Aid sector is an essential part of our High Streets. Many Legal Aid firms and organisations are small businesses employing local people and servicing the local communities. The sector as a whole is in desperate need of revitalisation and investment if it is to meet public demand in the years to come. Successive Governments over the past two decades have taken measures to reduce the cost of the Legal Aid system and the proportion of the population that it is able to help is becoming increasingly small.”
Certainly these concerns are borne out by my own experience. Over the decades I have witnessed the Government cutting the Legal Aid budget and drastically reducing its scope/coverage, so that less and less people are able to use it as a means to access true justice.
In the words of the Westminster Commission – “There were significant issues around individuals accessing the Justice system…. In some areas, this led to a worrying inequality of arms for those unable to access legal advice or representation in the most emotive and challenging of cases.”
The Legal Aid Agency is, in my opinion, in dire need of reinvestment and reinvigoration – so that it truly begins to function again as a gatekeeper facilitating access to justice for the less wealthy/fortunate in our society, rather than acting as a ‘bouncer’ whose apparent job is to keep people out of the club, not let them in.
Let me give a demonstrative example of how I believe the current Legal Aid regime is failing the public, and is not fit for purpose, by reference to the case of my client David White.
Mr White, a gentleman of entirely good character and aged in his 60’s, was making his way home through his local area when he was made the victim of disturbingly heavy handed and unconstitutional actions by two West Mercia Police Officers who stopped him on his journey home and bundled him into the back of a car against his will – and all without any suggestion that he had committed the slightest criminal offence.
The incident began at approximately 10.30pm with a report from an off-duty PCSO (Mr Barlow) who reported that he had seen Mr White on the pavement of a road bridge and he was concerned because Mr White was standing still and was refusing to engage with Mr Barlow when questioned. To be clear, there was no suggestion from Mr Barlow that my client was putting himself in any physical jeopardy – Mr White was simply on the pavement, on the correct side of the railings. Nevertheless, notwithstanding the fact that Mr White then continued his journey over the bridge and along the pavement of the road in normal fashion (he was walking home) Mr Barlow chose to ‘phone in’ the incident to his Police Headquarters on the basis that “I just had a bad feeling about it….. it just didn’t sit right with me.”
Whilst I am sure that Mr Barlow’s concern was genuine, and his call made in good faith, it is a huge leap to go from having a ‘bad feeling’ about another person – who is not in fact saying or doing anything which puts themselves, or any other person, in jeopardy – to deciding that they have a mental disorder “requiring care and control.”
However, within minutes of PCSO Barlow’s phone call, a pair of Police Officers (PC Masters and PC Smith) had stopped my client as he continued his journey home, and physically forced him into the back of their vehicle, demanding that he identify himself and answer questions about what he was doing. The officers (at least after the event) asserted that they believed that Mr White was suffering from a mental disorder and that they were therefore entitled to detain him using the powers granted by Section 136 of the Mental Health Act 1983.
If the unspoken implication was that the mental disorder Mr White was ‘suspected’ by the officers from suffering, was suicidal or self-harm inclinations then that was in my opinion a shocking judgment to make, indicative of lack of reasonable care and consideration of the true facts, as there was simply no evidence whatsoever before the officers that Mr White was contemplating, let alone attempting self-harm or suicide.
Mr White’s first ‘misdemeanour’ it seemed was to refuse to talk to an apparently civilian motorist (Barlow) who approached him out of nowhere in the middle of the night, and his second ‘crime’ to refuse to answer demands for his personal details/ purpose of journey from PC Masters.
I repeat again, that there was no suggestion whatsoever that any criminal offence had been committed. Mr White refusing to answer the officer’s questions is not of course an offence, and certainly not a justification for a person to be taken into a Police car from the public street and then driven away against their will under the justification of ‘mental health’ concerns.
Analysis of the Incident
PC Masters asked Mr White what he was “up to” in a very intimidating matter, even though it should have been clear that Mr White was not ‘up to’ anything, but merely walking along a public path. The officer then claimed that Mr White was drunk, despite the fact that he was completely sober, and when Mr White protested that PC Masters should not treat him this way, because Mr White had committed no crime, the officer replied facetiously “Well none we’re aware of yet…” PC Masters asked for Mr White’s name and address, but had been so rude and aggressive in his approach from the start, that Mr White felt he had to stand up for his rights and politely – and correctly – asserted that he was not obliged to give that information, as he had done nothing wrong.
Then, without warning, PC Masters grabbed Mr White’s arm, put him into the restraint position, and forced him into the back of the Police car. He told Mr White that he and his colleague would keep Mr White in their custody until he cooperated – even if it took all night. He then threatened to take Mr White to the Police Station, which finally scared him into giving PC Masters what he wanted.
It was in these circumstances, in a state of fear and duress, that Mr White reluctantly provided his name and address and the officers then – against Mr White’s will – drove him to the vicinity of his home address, where he was finally released from the Police vehicle and allowed to go on his way.
As Mr White entered the flats where he lives, he noticed a neighbour was outside and was ashamed to think that she may have seen him alighting the Police vehicle.
It is also notable that despite the fact that the officers were later to assert that they were acting under Mental Health powers out of a concern for Mr White’s welfare – once having extracted his name and address, and thereby asserted their ‘authority’ over him, they did not even accompany him to the door of his home, but simply released him into the street and drove away. This is hardly indicative of a genuine concern for Mr White’s mental health, which would surely have resulted in the officers taking Mr White to a hospital. Indeed, the entire purpose of the powers granted under Section 136 of the Mental Health Act is to allow officers to take a person into protective custody and convey them into a “place of safety” – i.e. a Police Station or Mental Health Hospital where they can be assessed by appropriately qualified Medical Practitioners – and being dropped back outside a person’s home is not in that context, a place of safety in accordance with the Act.
Furthermore neither PC Masters nor his colleague attempted to consult a Medical Practitioner/Mental Health Professional prior to or during the exercise of their alleged powers under the Mental Health Act.
It is my view that the conduct of PC Masters demonstrated that the officer was acting in bad faith towards Mr White – motivated not by genuine concern about Mr White’s health, but rather by animus arising from Mr White’s perceived disrespect for the officer’s authority (his refusal to answer the officer’s questions) and that what PC Masters in fact did was to misuse the powers conveyed by the Mental Health Act so as to pressure Mr White into answering his questions – which effectively having been kidnapped by the officers, he was duly browbeaten and cowed into doing.
Mr White was understandably outraged by what had been done to him and made a formal complaint. His complaint was (as is usually the case) rejected by West Mercia’s Professional Standards Department and it was on reading the Complaint Report that Mr White first learned that PC Masters and his colleague were claiming that Mr White had appeared to be mentally ill and that they were using Section 136 of the Mental Health Act to excuse their actions. Mr White was confident that absolutely nothing about his appearance or behaviour that night could have reasonably caused anyone to suspect that he was mentally ill, and he was shocked at the lies which the officers had apparently told to the Complaint Investigator. In particular, PC Masters had denied grabbing and forcing Mr White into the car – claiming that he had got in voluntarily, but that the officer might have put his hand on Mr White’s arm simply to ‘guide’ him as he did so.
In my opinion, Mr White was quite right to feel extremely aggrieved at the response he had received to his legitimate complaint. On reading the Complaint Report it was obvious that there were numerous issues tending to suggest that the officers’ accounts were not accurate, and that their exercise of their powers was not in fact lawful – but all of these contradictions were air-brushed over with the typical pro- Police bias which is commonplace amongst PSD Investigators.
Here are just a few of the issues which should have given an open-minded Complaint Investigator pause for thought before he chose to exonerate the officers and reject the complaint –
· The Police incident log at 22. 48 tersely records ‘male is not cooperative, not giving his details’. It is then recorded at 23.00 that Mr White had been taken to his home address. There is no suggestion there in the incident log that PC Masters or his colleague had encountered a person whom they reasonably believed to be suffering from a mental health disorder.
· PC Master’s Pocket Notebook for the night in question contained no reference to this incident (which one would have assumed a MHA intervention upon a ‘mentally disordered’ person, detained and driven from one place to another against his will, would have required). This speaks to a real possibility the officer’s actions were not in compliance with the Act, either being done in bad faith and/or without reasonable care. Why else would he not reference the use of his powers?
· In response to the subsequent Complaint, the two officers gave accounts highly contradictory as to whether Mr White was actually detained under MHA powers or not. PC Smith indicated he was not; whereas PC Masters stated that he did so detain Mr White, but did not say that any explanation of these powers was given to Mr White.
· The account of PCs Smith and Masters that Mr White ‘voluntarily’ got into their vehicle without threat or physical force was inherently unlikely in the context of the officers’ own accounts– they repeatedly labour the point of his non-cooperation, obstructiveness, and refusal to answer questions – why on Earth would he then voluntarily have got inside the police car, when he obviously wanted to be allowed to go about his business?
· Furthermore, PC White attempted to justify his purported use of the Mental Health Act powers by saying that a member of the public was concerned that Mr White might ‘throw himself off the bridge’ – well, Mr Barlow’s concern was actually couched in terms of a ‘gut feeling’ and we know from the incident log that there were no specific details which suggested a self- harm act was actually about to occur. Yet further, it was not disputed that Mr White was no longer in the vicinity of the bridge; the two Officers had stopped him around a mile away, with Mr White’s direction of travel being away from the bridge. Therefore PC Master’s only real reliance was on the fact that Mr White “would not facilitate communication with us” which again, I submit, could simply not in the context be a basis for bona fide use of mental health detention powers.
A Quest for Justice
Having been badly let down by the lack of impartiality of our Police Complaints system, Mr White, who was of limited financial means, first approached a local Solicitor in the hope that his case could be taken on a no win, no fee basis – but the Solicitor declined to do so.
Mr White was then prepared to bring an action in the County Court against West Mercia Police as a litigant in person, seeking damages for assault and false imprisonment – only to learn whilst he attempted to draft the letter of claim that Section 139 of the Mental Health Act requires all potential Claimants who have been subject to a purported detention under the Act to obtain permission from the High Court before they can commence their claim, and in doing so to demonstrate that the actions taken towards them by (in this case) the Police were done in bad faith and/or without reasonable care.
Mr White was dismayed at the prospect of having to navigate the tortuous process of bringing and succeeding with such an application in the High Court itself, and knew that he could not do so without specialist legal advice – but also that he lacked the means to pay for the same.
Following a personal recommendation, Mr White then approached me.
Having assessed Mr White’s case as meritorious, and noting that he was of limited financial means, I made an application on his behalf to the Legal Aid Agency (LAA) seeking public funding for the case.
Regretfully, the LAA rejected Mr White’s request for Legal Aid on the following basis –
“It is unreasonable for Legal Aid to be granted as the prospects of obtaining a successful outcome in the proceedings, assuming the case were determined at Trial or other final hearing are poor. Having read the Complaint Investigation Report, I cannot see that the prospects would be better than poor. In any event, this case would not meet the proportionality test. There is no reason to consider that either aggravated or exemplary damages would be awarded even if your case were successful. The value of the claim would be no more than £1,000.”
The institutional negativity displayed by the LAA in that assessment of Mr White’s case demonstrates in a nutshell why our current Legal Aid system is not fit for purpose and in urgent need of investment and reform.
· To assess Mr White’s prospects as being ‘poor’ (i.e. less than 50%) demonstrates an unacceptable inability to cogently assess the evidence and understand the law – not least the fact that where the detention of a person is admitted (which it was here) the burden of proof rests firmly on the Police to justify at all times the lawfulness of their actions and the Complaint Report itself (as highlighted above) was littered with contradictions and apparent inaccuracies by the officers which would tend to suggest that they would fail to meet that burden.
· Likewise, either naively or cynically, the Legal Aid Assessor has accepted the outcome of the complaint investigation as if it were ‘Gospel’ likely to be determinative of the proposed civil proceedings. Anyone at all familiar with the Police Complaints process would know that the regular rejection of meritorious complaints is par for the course, and that the limited and biased complaint investigation process is in no way comparable to the full, fair and rigorous process of a County Court claim. The findings of complaint investigations are not binding on subsequent civil proceedings; which indeed, as my own personal experience will amply testify, frequently come to the reverse conclusion following the initial exoneration of officers by their own PSD colleagues.
· Finally, there was a demonstrable failure by the LAA to properly consider and apply the proportionality test i.e. the weighing up of the costs of bringing a legal action against the potential rewards which are available. Firstly, it was inaccurate to assert that no more than £1,000 damages could be recovered. The outcome of this case will speak for itself (see below) but even at the initial assessment stage it was clear that although Mr White’s detention was fortunately no longer than around 20 minutes, the physical assault that he suffered, combined with his understandable alarm and distress and the arrogance and unconstitutional behaviour of the officers (particularly PC Masters) should have made it obvious to any competent assessor that the range of damages were certainly significantly in excess of £1,000 and that aggravated and exemplary damages were potentially recoverable.
· Even more importantly, there were also issues of personal and civic justice over and above the ‘pounds and pence’ amount of the actual compensation award which should have been taken into account by the Legal Aid Agency as a crucial factor when assessing the ‘costs v benefits’ criteria for funding this case. The case was never just about the recovery of damages, as if Mr White was merely seeking recompense for a broken dishwasher – rather it engaged important issues of civil liberty and the accountability of Police actions.
In summary, this was a proposed claim involving a man who had committed no crime – who indeed was not at any point under suspicion of any crime – nevertheless being bundled into the back of a Police car on the flimsiest of pretexts. Mr White had been assaulted, intimidated and deprived of his liberty and this was a case that deserved the full investigation that substantive civil proceedings would allow.
Surely it is in the public interest to hold the Police to account in such circumstances? I feel it would certainly be of concern if police officers were regularly invoking ‘mental health concerns’ simply because a person who they approached on a public street was refusing the officer’s request for personal information. A British citizen has the right to refuse to talk to a police officer who approaches him in all but the rarest of circumstances, and none of those circumstances applied here. I repeat that there was simply no evidence of mental disorder, or mental disorder requiring immediate care and control.
Sadly, the LAA did not agree and maintained their rejection of Mr White’s request for funding.
I am convinced that many hundreds, if not indeed thousands of persons with meritorious claims such as Mr White’s, are being left high and dry and without access to justice by the current Legal Aid system for a whole variety of reasons – but certainly including a negative culture within the LAA and a basic failure to understand fundamental points of law and the assessment of evidence.
The current civil Legal Aid system is anaemic and in real need of a transfusion not only of funding but also of new leadership and the adoption of an ethos more dedicated to facilitating rather than frustrating access to justice for those with limited financial means.
Mr White wrote to me in the following eloquent terms following the final rejection of his appeal for funding by the LAA –
“I believe very strongly that the Police should be held to account when they mistreat a member of the public, and that if people like me just shrug their shoulders and think ‘it’s too much work to do anything about this’, that makes it more likely that others will be mistreated in the future. I feel it is my civic duty to try to bring this case to court, so I hope you will continue to help me…….”
I am pleased to confirm that I did indeed agree to continue to assist Mr White, agreeing to act by way of a Conditional Fee or No win, No fee Agreement as the only means of funding which remained available. Mr White was not in a position to be able to pay me, and so I agreed to take on the case which the LAA had deemed as ‘poor’ with the risk that I would not be paid a penny if it did not succeed.
Furthermore, Mr White was also having to shoulder the burden of having to pay the Police legal costs if his claim failed, because without Legal Aid a losing Claimant is directly exposed to those costs, which could, at worst, result in bankruptcy/seizure of assets.
Nevertheless, both I and Mr White were prepared to take these risks in the interests of the justice of his cause and to do what the LAA seemed uninterested in doing – which was to hold the Police properly to account after their abusive mistreatment of Mr White and shambolic/cynical rejection of his legitimate complaint.
I am pleased to confirm that the subsequent application which I made on behalf of Mr White to the High Court was granted, and thereafter, shortly after the commencement of full civil proceedings against the Chief Constable of West Mercia Police, Mr White’s claim was settled for damages in the sum of £1,200 plus an agreement by the Chief Constable to pay the costs of both the High Court application and subsequent civil proceedings.
Mr White’s sense of satisfaction in the vindication of his claim was worth far, far more than the mere monetary damages in this case but it is not right that he had to shoulder such a burden of risk in order to achieve justice.
We need to see a significant improvement in both the funding and culture of the Legal Aid Agency so that many more people like Mr White are not left wandering in the desert, without a lawyer to guide them or any hope of accessing justice.
After all, there is no point in having one of the best justice systems in the world if people cannot use it to hold to account abuses of power, and to expose evidence of corrupt character, amongst agents of the state.
Names have been changed.