Plugging the gaps in legal aid

It has been well documented that changes brought about by the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) have had a stark impact on the legal profession and the public’s ability to access justice.

Before LASPO was even implemented, legal aid was under pressure, with the number of legal aid firms falling from 5,000 to 3,000 in ten years. There have also been widespread fears that more than 1,500 high street solicitors would be forced to close branches within a year of LASPO’s implementation.

Even the Bar has not been immune to the pinch, with members at Renaissance Chambers blaming the impact of legal aid cuts as the reason for voting in January to dissolve the set. This followed the dissolution of Michael Mansfield’s Tooks Chambers in September 2013.

In January, Birmingham Law Centre announced it was toclose as it was not receiving any funding from its local authority, and faced losing half its legal aid work as a result of LASPO. And in February, Wythenshawe Law Centre declared that it would close after 29 years of providing legal advice and representation for hundreds of people in Manchester.

With claimants left without lawyers to represent them,the courts have reported an increase in litigants in person. The impact on the courts and on vulnerable people forced into a position where they have to act on their own behalf is, in the opinion of many practitioners, detrimental to the administration of justice.

Volunteering resource

Mark Solon, a solicitor who has worked on legal aid cases and is now director of legal training company Bond Solon, said: “Legal aid is the new pro bono. The rates are lower than calling out the plumber. There is always a place for knowledge and skills freely given to those that cannot afford to pay and many lawyers have an excellent record of helping. There is room for more to do so.”

Last week, the Law Society launched its Access to Justice campaign as it believes that, with the stringent cuts to legal aid, access to justice is under threat. New president Andrew Caplen commented: “Pro bono legal advice should never be seen as a substitute for a properly funded legal aid system. It is right to publicise the tremendous work that so many solicitors do free of charge.”

Yet many solicitors can no longer afford to give as much of their time to pro bono initiatives as they used to. The gap in legal representation is currently being plugged by the determination and innovation of university law clinics across the country, but there is a question as to how long they can maintain that position.

Herabans Kaur, the education and community engagement officer at the University of Leeds’ Innocence Project told SJ: “The impact of the legal aid cuts has definitely led to an increase in organisations coming to us and asking for additional help through our volunteering resource.

“In the short term, the increase is sustainable. We will take on more students and develop more resources; maybe even work collaboratively with other universities to share resources. We will always rise to the challenges. The whole ethos of volunteering is to fill a gap that needs filling.”

Umbrella closure

Innocence Network UK (INUK) is an umbrella organisation that facilitates pro bono investigations into claims of innocence by alleged victims of wrongful convictions. The group was established at the University of Bristol by Dr Michael Naughton under the belief that the creation of the Criminal Cases Review Commission (CCRC) was not the final remedy to the problem of miscarriages of justice.

At the beginning of 2014, INUK had 26 member innocence projects in UK universities and one in a corporate law firm. However, this summer INUK took the decision to cease renewing or taking on new members. Instead, from September, INUK will become a stand-alone project for research, casework and public engagement in the area of wrongful convictions.

Among the reasons for INUK’s change of direction is that general funding constraints meant it simply did not have the capacity to continue to operate as a support service for member innocence projects in universities across the country. With this support removed, law schools and clinics in the UK are going
it alone.

Name game

Another issue challenging innocence projects in the UK is the use of the very words that define them. The name ‘innocence project’ is trademarked by the Innocence Project in New York. While INUK was operating as a membership organisation, universities were permitted to use the name. Though no UK project, that was not a member of INUK, has yet been challenged about its use of the name, some universities, such as Sheffield and Sheffield Hallam, have considered dropping ‘innocence project’
to avoid a potentially costly dispute.

Commenting on the trade mark issue, Sharon Kirby, an associate at Kilburn & Strode said: “The Innocence Project Inc have an international trade mark registration for ‘Innocence Project’. This was effectively extended to the UK in 2007 and allows them protection for legal research services, criminal law services and lobbying. On the face of it, they have a valid registration which could be used to challenge third parties using their mark in the UK in relation to those services.

She continued: “Given the nature of these organisations and their aims, one would hope a settlement might be achievable without recourse to invalidation proceedings. This demonstrates the importance of obtaining a trade mark registration, even for those in the not-for-profit and academic sectors.”

Chris McLeod, director of trade marks at Squire Patton Boggs told SJ: “There is talk of licensed use, but there is a possibility that the UK rights could be attacked for non-use, descriptiveness, or deceptiveness if the use is by third parties outside the US entity’s control. However, it is understandable that the UK entities would not wish to spend money or time on a defence to a claim of infringement.”

McLeod continued: “Where the subject matter is innocence, it is hard to see that the US entity could stop use of this word, but perhaps the combined term does connote the US entity in the UK. If not, it would be unlikely to be seen as a good use of its funds to continue to go on the offensive, so free licences might be an answer that combines pragmatism, good PR and allows the US entity to retain control of the mark.”

On taking over the University of Leeds’ Innocence Project last year, Kaur soon realised that there were going to be problems: “We are already looking to change our name, but it is still open to suggestions and we will put it to a vote among the student body.”

Rising challenges

If legal aid provisions continue to be cut, pro bono lawyers may find it even more difficult to stretch their time and engage with university projects. Factor in a decline in the number of students reading law at undergraduate level and there is a suggestion that innocence projects, like at the University of Leeds, may not be able to stand the pace.

However, Kaur believes such projects are invaluable. “Most of our students are not involved in pro bono for CV enhancement; they are involved because they want to be a part of something that will make a difference to whichever community, sector or organisation we are working with,” she said.

“The innocence project is extremely beneficial to our students and our clients. Our students get experience of managing projects. They learn to work to deadlines and in teams. And they learn to come to terms with the realities of the criminal justice system. They get experience of what real life criminal justice work is all about.”

Ultimately this is of benefit to the criminal justice profession too: “We will have people entering the profession who know what they are doing and know the realities of it and yet still want to go into that area,” said Kaur. SJ 

John van der Luit-Drummond is a legal reporter for Solicitors Journal

 

john.vanderluit@solicitorsjournal.co.uk