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Law under lockdown: COVID-19 measures, access to justice and vulnerable people

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Measures aimed at tackling the coronavirus crisis have had disproportionate impact on some of the most vulnerable in society, solicitors’ leaders warned ahead of the renewal of emergency measures introduced under the Coronavirus Act in March.

In a new report, the Law Society of England and Wales analyses the impact of measures on the ability of vulnerable people* to access justice and legal advice during the pandemic and makes granular recommendations for the government’s six month review of the emergency measures.

“Laws and policies introduced in response to COVID-19 limited state responsibilities to an extent not seen in the UK since World War II,” Law Society president Simon Davis said.

“Those living in prisons, immigration detention or care settings, disabled people, children and victims of domestic abuse are particularly dependent on the state and have been disproportionately impacted by measures to contain the virus.

“Government must maintain access to legal advice and courts during emergencies, so citizens are able to challenge exceptional measures. But many have been unable to access legal advice, despite efforts to set up technology to replace prohibited visits in person.

“Many of the measures introduced by the act were forward-looking, anticipating strains on resources, but Law Society analysis raises questions about their ongoing necessity and highlights concerns about adverse effects on the most vulnerable and on the rule of law.

“Some of the measures reduced obligations on the state to provide public services, in social care and for children, and removed safeguards protecting people’s rights to these, at the same time as avenues for redress were suspended.”

Justice denied

The underfunded justice system has staggered under the strain of the pandemic, with court backlogs up 23% in family courts (to 52,391) and by 26% in criminal courts (to 564,249) from pre-COVID to end of August 2020.** Hearings are being listed for at least 2022 in some places, raising serious questions about whether justice can be served, particularly where those on remand are children.***

The impact of the COVID-19 pandemic on the ability of adults and children detained in custody to access justice has been severe. People have been unable to see family and legal advisors for prolonged periods of time and solicitors report eight-week waits to talk to their clients, with hearing dates sometimes offered before they have been able to take instructions.

A criminal law solicitor responding to a Law Society’s survey said: “… my 14-year-old defendant’s trial [has been] moved from June 2020 to February 2021. He is currently detained in a secure detention centre and he will have been held on remand for over 14 months of his life by the time his trial has concluded […] This is likely to cause him all manner of issues for his social and personal development. If he is found not guilty then he will have served what would be a 2.5-year prison sentence without actually having committed a crime and that is totally unacceptable.”

Remote hearings

The Coronavirus Act 2020 permitted the expanded use of video and audio hearings – particularly challenging for children and people with mental health issues, learning disabilities, language barriers, or other factors affecting their ability to understand proceedings, as well as for litigants in person.

Only 16% of solicitors who responded to our survey told us that the vulnerable clients they represent were able to participate effectively in remote hearings, indicating an unacceptable barrier to justice for this group for a range of legal issues.

Research from the University of Surrey, conducted prior to the pandemic, found defendants are more likely to be jailed in video hearings and suspects whose cases were dealt with remotely were less likely to have legal representation. This could mean that there are defendants being unfairly convicted or given harsher sentences as a result of having to undertake their trial remotely.

Access to legal advice in institutionalised settings

People living in institutionalised settings, such as prisons, immigration detention centres, mental health units or care settings have been subjected to worse and more restrictive conditions, including increased use of restraint and solitary confinement in some settings. And this at a time when they have had very limited contact with their family or their solicitor for prolonged periods, removing an essential element of external scrutiny of conditions in institutions.

Immigration

Many were left in limbo when visa processing, asylum applications and appeals were suspended. Immigration removal centres were closed to most visitors, and detentions and removals have continued, despite international travel bans. The government should review policies on detaining and removing people during pandemics, considering people’s ability to access legal advice.

More than one million people in the UK are subject to the ‘no recourse to public funds’ (NRPF) policy, including at least 100,000 children. This policy prevents migrants with leave to remain from accessing state financial assistance, such as welfare benefits. They are not able to receive income support should they be made redundant (or lose income if self-employed) and are at risk of financial destitution. The government should make the process for applying for support accessible or consider legal aid for these groups.

Housing

The economic effects of the pandemic are almost certain to cause an increase in possession proceedings, bringing problems with a lack of legal advice to the fore. Legal advice for people facing eviction is essential. For many the free legal advice provided at courts by not-for-profit organisations on the day of a possession hearing is the only advice they will get, but most providers operate at a loss and are not sustainable. Courts in Shropshire and Cornwall currently have no provision. The Law Society has also repeatedly highlighted legal aid deserts for housing advice, which compound the crisis for anyone facing eviction.

Key recommendations:

1. Adapt or remove measures not used, or used in a limited way, or which had inadvertent adverse effects.

2. Protect access to justice and legal advice for those most at risk:

Invest in courts and technology to improve access to legal advice for those in institutional settings and address the backlog of cases in family, criminal and court of protection, with particular attention to supported access for groups less able to communicate using remote access technology.
provide non-means tested legal aid for those most at risk, such as victims of domestic abuse or those deprived of their liberty in health and care or immigration settings
ensure courts continue functioning so cases are heard in a reasonable timeframe.

3. Improve information, data collection and evaluation: There are significant gaps in data and monitoring of the impacts of COVID-19 measures on the people solicitors work with. Resources should be allocated to the analysis of the data collected.

Simon Davis added: “Emergency measures must be necessary, proportionate and any limitations on access to justice must be for as short a time as possible, balancing the need to contain the virus with ensuring that those who need legal advice or the protection of the court can obtain it.

“We need more and better data, and further monitoring and evaluation of the measures that have been implemented. As we enter a second wave of this pandemic it is essential that lessons are learned so responses to this ongoing crisis are improved.

“It is vital access to justice and legal advice are maintained during times of exceptional legal measures to ensure protection for those most at risk.”

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