Rights of Women have failed in their challenge to the restriction of legal representation to victims of domestic abuse.
The Civil Legal Aid (Procedure) Regulations 2012 were brought into force on 1 April 2013 as a result of Section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. By Regulation 33, victims of domestic abuse were able to obtain legal representation in family cases, but only if they could produce evidence in one of the prescribed forms: evidence can be presented by way of an unspent conviction, a caution, ongoing police proceedings, an injunction or undertaking granted within last two years or still in force, or a finding of fact made within other proceedings in the last two years. Evidence can also be accepted from a member of a multi-agency risk assessment conference, a health professional, a social services department or a domestic violence support organisation, confirming evidence of abuse within the last two years.
Rights of Women considered the evidence required to be too constrictive and averred that 40% of abused women could not produce the necessary evidence, especially where the abuse was emotional, financial or by way of controlling behaviour, or those who believed they were potentially at risk. They further highlighted the two-year limitation, with many perpetrators presenting a lifelong risk, and the lack of discretion given to the LAA to accept evidence other than that presented by the Courts or statutory agencies.
Overall, therefore, Rights of Women considered that the Regulations as drafted did not abide by the Government’s stated intention to protect victims of domestic abuse.
Permission was sought for Judicial Review, Rights of Women being represented by the Public Law Project. Leave was refused on Human Rights Grounds, but granted to consider whether the Lord Chancellor and Secretary of State for Justice had exceeded the statutory powers conferred upon him by section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012") when he made the Regulations on 12th December 2012.
While accepting that it was arguable that some victims of serious domestic violence who are in need or representation cannot satisfy Regulation 33, especially where children proceedings are necessary more than two years after break up, the Court also accepted “that it was consistent with the statutory purpose of reducing the scope of legal aid, and removing it from private family law proceedings, that the Defendant would seek to ensure that the domestic violence exception was strictly confined to its intended scope and not exploited as a route to obtaining legal aid for family law proceedings which had been taken out of scope for most people.”
Given that the Regulation had already been reviewed by the Government, who appeared satisfied with its operation, Mrs Justice Lang considered that the Court should hesitate to intervene, it not being appropriate for the Claimant to achieve through the courts changes that they had failed to achieve through the democratic purpose. The Court ruled that the Secretary of State for Justice had acted within his power in making the Regulations and therefore rejected the Claimant’s application.
Though indicating that they were disappointed with the result, Rights of Women confirmed that they were applying for permission to appeal and “remain committed to campaigning on this issue in order to hold the government to account on their promise to continue to make legal aid available to victims of domestic violence”.
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