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How the Government’s legal aid cuts will affect victims of trafficking and domestic violence

Our system for dealing with these crimes is a shambles. In light of this, it is baffling that the Government is pursuing an approach to legal aid that even the Attorney General has refused to endorse.

The Ministry of Justice in London. Photograph: Getty Images

We’re cracking down on immigrants. As I write this the UK Home Office’s Twitter feed is working itself into a frenzy over the arrest of some “suspected #immigrationoffenders”, posting invasive pictures of various people being nicked. And a few days ago Border Agency cops were accused of racially profiling people at tube stations.

The show of force will fizzle out. It always does, because the reality doesn’t match the perception. But while we have all this worthy endeavour, I trust we’ve not forgotten these words: “There are unacceptable levels of ignorance among police, social services and the UK Border Agency, which mean we fail victims of trafficking.”

Nor these: “An appalling outcome of such failure on the frontline is the fact that numerous victims of modern slavery are being prosecuted for offences they have committed as a result of being trafficked. This may include immigration offences or, in cases where people – often minors  – are trafficked into the UK to work in one of the thousands of British cannabis farms,  drugs offences...More must be done to ensure that vulnerable victims of modern slavery are not criminalised...Responsibility in government lies with the Minister for Immigration. This is wrong. Modern slavery is first and foremost a crime and not an immigration issue.”

These are the words of Iain Duncan Smith’s think tank, the Centre for Social Justice, which earlier this year produced a definitive report on this issue. As it makes clear (read from page 77 onwards), there is a massive conflict of interest in allowing the same authority to assess both whether someone needs help as a trafficking victim and how that person’s immigration status is going to pan out. It doesn’t help, of course, that victims of trafficking like women in brothels or children in cannabis farms, are often given false documents by their captors.

Our system for dealing with crimes like these is a shambles. Our Government has admitted there are failings itself, folding the wretched UK Border Authority back in house. It’s been the case for some time, but we’ve always offered some form of legal redress to those we’ve let down. In large part, we’ve been able to do this because we offer legal aid. But now the Government’s proposals suggest that legal aid for judicial reviews – which challenge the lawfulness of decisions made by public bodies – should be curtailed.

For charities working with victims of trafficking, the ongoing failings in the government’s approach are deeply worrying. Dr Russell Hargrave of Asylum Aid explains:

“Most victims of trafficking are terrified of the consequences if they ask for help. It’s difficult to exaggerate the hold that traffickers can have over them, so victims need to know there is support there when they need it. “But the current system falls way, way short. And instead of trying to improve the way people are treated, the government is restricting access to legal aid for anyone who needs to challenge the system’s myriad failings. I can’t see trafficking decisions improving, only more victims being abandoned to their fate”.

Trafficking is barely the start of it. Prossy Kakooza knows all too well how valuable legal aid can be. She fled Uganda after being horrifically assaulted due to her sexual orientation. She was violently raped by police officers and scalded with hot meat skewers. Her family bribed the guards to get her out of prison, but all of them apart from her mother wished to sacrifice her to “take the curse away”. Her mother managed to smuggle her to the United Kingdom.

The local GP in England was so horrified by the extent of her injuries that the police were called, and she received treatment for Post Traumatic Stress Disorder. At first, the Home Office refused her asylum application: they acknowledged she was brutally raped and burnt because of the medical evidence, but have dismissed the appalling attacks as "the random actions of individuals", and stated she could be returned to a different town in Uganda. This ignored the fact that gay people throughout the country face the threat of life imprisonment, and that in Uganda a reference has to be provided by your previous village when you move: there would be no escape from persecution.

“The solicitor suggested to me by the Home Office was terrible,” she tells me. “She never picked up her phone. It was only once I got in touch with the Greater Manchester Immigration Aid Unit that I got a decent service.” Prossy’s appeal was eventually upheld. The stress of the process combined with the trauma she’d suffered lead to a breakdown and suicide attempts, but she pulled through, now lives in Manchester, and is one of the volunteers who runs the Lesbian Immigration Support Group.

Prossy’s appeal process was supported by thousands of people who heard her story. But under these new proposals it would never have happened. The Government will no longer pay anything until a Judicial Review has been approved by the High Court. In practice, no lawyer could afford to prepare and bring a complex trafficking case without knowing if they’ll ever be paid.

Another issue with the proposals is that anyone who has not been legally living in the UK for more than a year will no longer have recourse to legal aid in civil cases. Grace’s tale was provided to me by the charity Save Justice.  She was brought to the UK as a dependent on her husband’s visa. Her husband subjected her and her children to horrific physical and psychological abuse. She managed to get away from him, but he tracked her and the children down. She managed to make an application for a non-molestation order in the Family Courts. Under the proposals, Grace would have not been able to receive legal aid to apply for the order within her first year of being granted refugee status by the Home Office.

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Last week, protesters gathered outside the Old Bailey for a noisy protest against what the Government is doing. Here are a few points the speakers made:

  • Sadiq Khan said without legal aid the Birmingham Six would be in prison, while the killers of Stephen Lawrence would be free.
     
  • Shauneen Lambe, a leading child welfare lawyer, said without legal aid hundreds of vulnerable teenagers will be at risk of harm or falling into prostitution. She invited the assembled to look at the inscription on the Old Bailey’s great facade: “Defend the children of the poor and punish the wrongdoer.” “I’ve no doubt,” she said, “the Government are the wrongdoer.”
     
  • Anne Hall, the mother of Daniel Roque Hall (whose case I covered here), said her son would probably be dead without legal aid.

So you have to ask why the Government is carrying out a policy that even the Attorney General has refused to endorse. Last November, Chris Grayling ordered an “immediate examination” of the legal aid system following the trial of Abu Hamza. Since then Save Justice has been attempting to use the Freedom of Information Act to find out the terms of reference for it.

To date the MoJ has refused to answer the question three times using section 35 of the Freedom of Information Act - basically saying that the grounds for the formulation of the policy need protecting. A review by the Information Commissioner’s Office has now been requested. But this has been going on since November last year, so how much "safe space" does Grayling need? Shouldn't this investigation be happening by now? Did he opportunistically use Abu Hamza as a stick to bash legal aid without thinking about the implications of criticising, er, the right to a fair trial, which is a pretty basic tenet of our law? Surely not.

This is barely an issue of left or right wing politics. Contrary to the boneheaded wailing of some self-professed right wingers this is simply an issue of basic humanity in a modern, civilised, nominally Christian country that doesn’t wish to be a pariah state.

UPDATE 06/08/2013 08:00

A Ministry of Justice spokesman said:

This Government is determined to tackle the trafficking and exploitation of vulnerable men and women. It is vital that victims of trafficking receive specialised support and counselling, which is why the Government now provides £3 million a year to help victims of this merciless exploitation. Funding these experts means that hundreds of trafficking victims have been given invaluable support and a real chance to recover, while our work to raise awareness of trafficking means we are getting better at identifying victims and going after those who profit from this human misery. The proposed legal aid reforms would not impact on trafficking victims in the way suggested. We are determined to bring down the cost of legal aid, but not at the expense of the most vulnerable. Contrary to suggestions here legal aid would continue to be available for the initial stages of a judicial review case, and where victims of trafficking were seeking to claim asylum they would be exempt from the proposed residence test. Those who did not meet this residence test would also be entitled to apply for exceptional funding. England and Wales has one of the most expensive legal aid systems in the world and our reforms intend to ensure we get best value for every penny of around £2 billion a year of taxpayers' money we spend on it. We have been very clear we are listening to views from the consultation and are now carefully considering all of the responses before taking final decisions.