Letters to the editor

Forgive me for raising a matter affecting the families of murder victims, when we are engrossed in our own future, but it is important.

A suspected murderer had gone on the run, hiding away for many weeks. I had represented him before and had no doubt I would represent him on this murder case. However, I was not able to release the victim’s body to his family until I had my own pathologist report. I needed legal aid.

‘We need the defendant’s signature first,’ they said. ‘But he is on the run and the deceased family urgently need to cremate their son.’

‘Sorry, no signature from the defendant... no legal aid.’

The victim’s family had already suffered the trauma of their son’s death. Now they had to wait until my client was arrested and able to sign the forms.

An administrative system crying out for urgent, compassionate, reform. I wrote to the Home Office and did not hear back. Maybe publishing this letter will make someone listen. I do not hold my breath.

Bert Gibson, semi-retired criminal solicitor, Newcastle upon Tyne

Dennis Sheridan’s article on family law arbitration sets out the key benefits of the new Institute of Family Law Arbitrators (IFLA) scheme, but risks being dangerously misleading in one respect, namely that ‘awards’ made under the scheme are ‘final and binding’. More worryingly, he makes this claim in relating what an appointed IFLA scheme arbitrator said to clients in the early stages of proceedings.

Just because article 13.3 of the IFLA scheme rules describes the ‘award’ as ‘final and binding’ subject to limited grounds of challenge and appeal, does not make it so. Indeed, article 13.4 recognises that it may be necessary for the parties to apply to the courts to get an order in the same or similar terms as the award/part thereof.

It is technically incorrect to say that these ‘awards’ are binding. Trite as it is, jurisdiction to make final financial awards is the court’s alone. Nuptial agreements are not binding and arbitration is not a special case. Section 81(1)(a) of the Arbitration Act 1996 makes clear that the court’s jurisdiction is unaffected here, and section 25 of the Matrimonial Causes Act 1973 applies.

Even if arbitrated awards were treated as akin to section 34(1) of the MCA 1973 maintenance agreements, so as to withstand section 81(1)(a) of the AA 1996, section 81(1)(c) entitles a court to refuse to recognise and/or enforce an ‘award’ on public policy grounds. Any case in which a judge would reach a different result under section 25 than under the ‘award’ should satisfy section 81(1)(c).

Second, even if a judge would be unlikely to override an arbitrated ‘award’, it is misleading to describe that factual reality with the legal terminology of bindingness. We do not pretend that the agreement that forms the basis of a consent order is binding before the order is made, so why would we do so for arbitrated ‘awards’? Talking about ‘awards’ that are unlikely to be overridden – ‘as good as binding’? – is best avoided as ‘binding’ is liable to confuse the public. Why risk litigants misunderstanding their own legal right to apply to court for a binding order?

Further, religiously based arbitrators understand their limits; why risk the public misunderstanding the nature of religious tribunals’ work? The current law is based on the concern that only the court can sufficiently protect the parties’ interests in these disputes, hence only it can make binding decisions. If we no longer think this is the case, we need to have that debate, not pretend we have already had it.

Family law arbitration may have many benefits for the right type of parties in the right type of dispute. But a ‘final and binding’ decision is not one of them.

Lucinda Ferguson, lecturer in family law, University of Oxford

A dip in interpreter provision. And on whose figures? Even Capita is now hard-pressed to attempt to present a positive picture. I have striven again and again in letters to the Ministry of Justice, from the secretary of state downwards, to secure a straight answer to a simple though basic question: whose figures and reports is the MoJ reliant upon?

I am far from being alone in a firmer than ever conviction that it is Capita on whom it is relying. And this to the exclusion of complaints from my branch of the profession, from the bar and from the judiciary at all levels. After all the ministry, in its present arrogant and smug mood, can be having no truck with evidence of failure of its ill-conceived contractual venture.

Why else would it have forbidden the judiciary to disclose its own stark evidence of non-delivery both in terms of absent interpreters and abysmally poor quality among those interpreters actually attending?

This is a wasteful exercise, first of all, and what is more a recipe for miscarriage of justice cases that will come to light in the years to come.

Malcolm Fowler, Dennings, Tipton

About a week ago we received yet another email from the Solictors Regulation Authority, on this occasion regarding a number of important rule changes in connection with personal injury cases.

The letter commenced ‘Dear sirs’. As far as we are aware there are a large number of firms nowadays where women are partners/directors, including our own. We wonder how addressing a firm in this manner squares with the SRA’s espoused policy in relation to equality and diversity?

Hugh Joseph and Jennifer McCarthy, Hugh Joseph McCarthy Solicitors, Stockport

Chris Grayling’s comments about the restriction of legal aid for prisoner complaints are either another example of political posturing from the justice secretary or, more worryingly, show an alarming ignorance of how such cases have been funded for over three years.

Grayling says that the cuts will lead to savings of £4m a year and reduce the number of cases brought against prisons and staff by 11,000. No mention is made of the fact that the vast majority of prisoner complaints are already dealt with by prisoners themselves with no assistance from a lawyer, not least because legal aid was effectively removed from such cases by the last Labour government in 2009. Although the Legal Services Commission can grant funding for ‘treatment’ cases, it has only done so in about 20 cases during the last three years, and even then these cases are subject to standard fees, currently a little over £200 per case. It is therefore difficult to see how these proposals are going to dramatically improve the UK economy or lead to a reduction in litigation, given the tiny numbers of such cases the government actually funds.

The Prisoners’ Advice Service is a legal charity which provides free legal advice to prisoners. Most complaints we receive from prisoners about their treatment are far from frivolous and will sometimes require outside assistance. This is either because the complaint raises issues of wider public importance or involves a breach of individual human dignity. Recent examples include a prisoner forced to use a cell toilet in full view of other inmates and staff, simply because it would cost too much money to alter the Victorian cells where he was held to include privacy screens. Other examples are the now routine handcuffing of almost all prisoners escorted by prison staff to outside hospital visits, regardless of age, frailty, or medical incapacity.

Grayling is apparently appalled at the ‘unnecessary legal cases’ being brought, but this does not reflect the landscape within which legal aid has had to operate for over a decade. This has seen year-on-year cuts and whole areas of law taken out of the scope of public funding. Grayling is being entirely disingenuous in his claims. The Prisoners’ Advice Service would oppose any further cuts, and want the previous restrictions reversed so that prisoners with genuine and meritorious complaints can once again access appropriate legal advice.

Matthew Evans, managing solicitor, Prisoners’ Advice Service, London EC1

This profession has been squeezed to bursting point through government and consumer pressure. The new legal brands promise the world for half the price of ‘conventional’ firms, but how realistic is that? Efficiency through IT and management processes may allow legal services to be provided more cheaply, but the biggest cost is still the cost of staff, and a paralegal, in many areas of practice, is no substitute for a qualified lawyer. Often a client does not know the difference and if they receive poor service they may assume they were dealing with a qualified lawyer.

The truth is that good legal services can only be provided by qualified lawyers. Even process-driven areas of practice need a good deal of qualified lawyer involvement and that comes at a cost. Just as many consumers would not eat processed food if they knew what went into it, the average consumer, if they knew what went into cheaper legal services, may want to opt for the more expensive ‘conventional’ firm services. Those firms which are financially stable and focus on quality and good service will survive and prosper.

Luke Tucker Harrison, Debenhams Ottaway, St Albans

If a new client instructs me on the sale of a property and I have not acted for that person before, then in addition to the normal ID checks and due diligence, I can recommend asking the would-be client if they can tell me in what year they purchased and who acted for them.

The latter detail can be verified by the Land Registry.

Richard Cohen, Kennard Wells Solicitors, Epping, London

As a junior solicitor (and non-practising barrister) it is sad that I, along with many of my colleagues, have said goodbye to publicly funded work.

The law school ideal of helping those in need could not be further from the truth. In a recent care case I spent seven hours at court, which included only 30 minutes in front of the judge and the same consulting with my client. All of this at the expense of the public purse.

The system is highly inefficient and does require streamlining. Unfortunately, the government changes are misguided and will result in further, longer delays as the courts referee disputes between litigants in person.

John Nee, Rochester, Kent

Richard Dawkins would make short work of Jonathan Goldsmith’s musings on religion and science (25 March), ruthlessly dismissing the idea that justice exists beyond us as an ‘eternal lamp’. If science is the ultimate explanation, then justice, exactly like law, is a rapidly changing artificial human construct, determined like everything by an overriding biological survival instinct.

Humans after all are just clever animals, and justice, like law, truth, kindness and so on, is ultimately just a meaningless chemical reaction in the brain.

The idea that ‘human beings cannot change principles of justice’ has no place in a purely scientific view of the world – instead it comes straight from this country’s Judeo-Christian heritage and DNA. If there really is an ‘eternal lamp’ of justice then that strongly implies the existence of a just god. Surely, Jonathan Goldsmith can do better than ‘not to think too much about’ this ultimate issue?

Alastair Bates, Gilbert Stephens, Sidmouth, Devon