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Thursday, 13 November 2014

The Courts v The State The next round!

I said last week that it was unthinkable that the state should be able to bring an action against its citizens and then deprive them of representation. That argument should be even stronger in cases where the state wrongly interferes with their liberty. But this has not stopped the current government from trying.

In 2013 legal aid was virtually wiped out in this country. In that small number of cases where it is still available it is very tightly restricted. Getting blood out of a stone comes to mind.

This was the problem faced by Sunita Sisangia who was wrongly detained by the police for over 13 hours. She was denied legal aid to bring an action against the police for false imprisonment. A Claimant can only get public funding for this type of case if they can show that the police have been guilty of a deliberate or dishonest abuse of power. The Legal Aid Agency ruled that this meant that there had to have been an element of malice. Simply to deprive somebody, wrongly, of their liberty was not enough.

This shocking decision has been overturned by the High Court which has ruled that she is entitled to legal aid. The Court held that protection from imprisonment is an important right. It was enough to show that the arrest was deliberate. No further 'abuse' was needed. 

This is further evidence of the increasing tension between the Judiciary and a Government which walks rough shod over the rule of law. What sort of state are we in? Is it a state where the police can wrongly arrest and detain somebody who then has no right to bring a claim for damages? That is the world of Kafka. It is not the world of a modern democracy.  This seems far removed from simply the saving of money. It seems to be an ideological attack on our civil liberties.

What is alarming is that the Minister of Justice wants to restrict the rights of citizens to Judicial Review.

Last week we saw the anger of the President of the Family Division where a person with learning difficulties was refused legal aid. I can see more and more of these occurring where judges – often accused of being out of touch – are left to protect our liberties.

I do not hold out much hope that the legal aid cuts will be reversed by whoever wins the next election. But we must at the very least protect the remnant from further attacks.

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