Four landmark legal aid cases that might not be taken today

25 October 2014

Since 2012, the government has made sweeping reforms to the provision of legal aid in an effort to cut the legal aid bill by £350m a year. Lawyers’ fees for criminal law are being cut by 17.5% and up to 30% in some cases, while whole categories of civil law have been placed out of scope for funding. Lawyers and experts have predicted it will lead to widespread miscarriages of justice. Here are four notorious cases that depended on legal aid that lawyers believe would be very difficult to take to court today as a result of the government’s changes to legal aid provision.

1. The Stephen Lawrence case

On 22 April 1993, 18-year-old Stephen Lawrence was stabbed to death as he waited at a bus stop in south-east London. An 18-year fight for justice eventually led to the conviction of Gary Dobson and David Norris at the Old Bailey. The case lead to a public investigation that found the Metropolitan Police Service to be “institutionally racist” and a landmark change to the double jeopardy laws which allowed a retrial on the basis of new scientific evidence. Following the convictions, the home secretary, Theresa May, commissioned a “devastating” independent investigation into undercover policing.

In April of this year, the Ministry of Justice started to implement its £215m cut to criminal legal aid, reducing the fees paid to barristers and solicitors by up to 30% in some cases. Imran Khan represented Doreen Lawrence on a pro bono basis, but has said that if the case landed on his desk today, he could not afford to do so because the cuts mean he would not make enough money from other work. In an interview with the Guardian earlier this year, Khan said: “There are not enough hours to be able to make enough money on legal aid to survive. I am working twice as hard as I used to with half or a third of the money. Society won’t get the benefit of those cases where there is an injustice. No lawyer will take it on. I can’t imagine there is going to be another Lawrence case for a long time – if ever.”

2. The Hillsborough victims

The human crush that occurred during an FA cup semi final in April 1989 is now notorious as the worst stadium disaster in British history. Of those people in the stadium that day, 96 died and 766 were injured. Three people later took their own lives and another one spent eight years in psychiatric care.

Aside from the legal inquiry into the disaster, many victims used state legal aid to bring cases for compensation. Those who suffered physical injuries recovered damages, as did some of the immediate relatives and dependents of those who died. Others brought cases for psychiatric harm from witnessing the death of friends or relatives or seeing their bodies in the aftermath. Although these latter cases were unsuccessful, they lead to a landmark ruling in the legal area of liability for psychiatric harm. The government has ended its provision of legal aid for personal injury cases so both the successful and unsuccessful cases brought by the Hillsborough victims would now fall out of scope for funding from the state.

Without legal aid, if these cases occurred today victims could try to find a solicitor prepared to take on the case with a conditional fee agreement, where the client and/or the solicitor share the risk of losing the cases. However, the bigger and more significant the case, the higher the risk to both parties; this is particularly relevant to large complex cases such as those surrounding a disaster.

3. The Gurkhas

Since 1815, almost 50,000 Gurkhas – soldiers from Nepal – have died fighting in the British army. Of these, 13 were awarded the Victoria Cross. Yet until 2004, they were afforded no rights to settle in the UK. When the law did change, it applied only to veterans who had served in the army after 1997, when their base was moved from Hong Kong to the UK. It denied many veterans – such as those who had been wounded in the Falklands war – the right to settle in the UK, to send their children to British schools and to access NHS healthcare, in spite of the injuries many had acquired.

The ruling prompted Joanna Lumley, whose father was saved by a Gurkha in Burma, to launch a campaign and to declare she would return her British passport if it did not succeed. The solicitors Howe and Co used legal aid to challenge the policy at the high court. It was ruled to be illegal and in 2009 the government had it revoked. Gurkha veterans were given the right to settle in the UK and Joanna Lumley kept her British nationality. Since April 2013, legal aid is not available for immigration cases, not involving detention or asylum. Lumley is back on the case and has since launched a petition on against the cuts.

4. Daniel Roque Hall

On 24 June 2012, Daniel Roque Hall was sentenced to three years in prison after he was arrested at Heathrow airport with cocaine hidden in his wheelchair. Although he confessed at the time, his GP said that he thought Daniel would be unable to hide the cocaine himself and his illness had affected his judgment. Daniel has Friedreich’s ataxia, a rare degenerative disease that requires 24-hour care. He needs five daily blood glucose tests, insulin injections, toileting, two carers and a mobile host to move him out of his chair, turn him in bed, dress him and manipulate his muscles. A former prison governor at the time told the Guardian it would be “virtually impossible” to manage his condition in prison. Ataxia UK said it amounted to “a death sentence”.

They were very almost right. Two weeks later he was in Hammersmith hospital, almost unconscious with hypoglycaemia. He was returned to the same prison but within weeks was in intensive care with heart failure.

While appealing his sentence, Daniel’s solicitor Andrew Sperling used legal aid to mount a judicial review; a legal process in which a court examines whether a decision by a public body is lawful. They succeeded and Daniel was able to remain in hospital until his sentence was eventually quashed.

In April 2013, legal aid was made unavailable for prisoners to challenge their treatment in prison, including those with disabilities. Moreover, judicial reviews have to be granted “permission” to proceed to a full hearing and since April 2014, legal aid lawyers who do not receive this permission will not be paid for the work they do beforehand; they will have to run the risk of non-payment.

Andrew Sperling said: “The appeal court refused permission for Daniel’s judicial review. I cannot see that someone asked to do the same job now would be able to take the risk of being paid nothing. That judicial review probably saved Daniel’s life.”

Of the cases above, the three civil cases (excluding the Stephen Lawrence case) could apply for legal aid today through the government’s exceptional funding scheme. It was launched in April 2013, with the stated objective that it would function as a safety net for cases which fall out of scope for funding. By the end of June 2014, the scheme had received 1,789 applications, of which 78 were granted funding. Of these, 35 were inquests, which lawyers suggest would have received funding any way. Martin Howe, partner at Howe and Co, has called it “merely lip service; smoke and mirrors”, while justice charity the Legal Action Group has called for the scheme’s overhaul.


Four landmark legal aid cases that might not be taken today