Do not take Legal Aid away from the poor

I am roused to write this blog after the government were defeated in the Lords last night on various issues relating to the Legal Aid Bill.

The government want to disadvantage the poorest members of society, such as my clients who are the victims of abuse. The proposed cuts will mean a reduction of 53% to the Legal Aid bill for those who need help on such aspects as Welfare or Housing benefit. My clients are dysfunctional, largely because they were abused in childhood. They are often  unemployable, homeless, itinerant, addicted to substances, and need help of a legal nature. Under the proposed changes, they won't get that help.

What angers me are the comments of Kenneth Clarke, Minister of Justice, who, when accused of cutting access to justice for the poor, retorted on the Today programme that all he is doing is taking legal aid away from lawyers. A cheap way of avoiding the question. The rates paid to lawyers are at the same level as they were 20 years ago, so who in their right mind would do legal aid work for profit? Yet the government continues to use the throw away line "fat cat lawyers".

The point is that if the government are taking the work away from lawyers, who obviously are to be discouraged from challenging government when they get things wrong in the same way as Stalin did in Communist Russia, will they replace the rights of the poor with something else? No. They are taking money away from advice centres, law centres and many support agencies. Only the other day the CAB announced that they could have to close half of their centres due to government cutbacks.

Clearly David Cameron's idea of the Big Society, sounds idealistic in that it appears as though people are going to be in charge of their own destiny. I nearly fell for it, once I had managed to understand what it meant - I was not on my own. It is simply a poorly disguised method of saving the cost of the welfare state. If communities get together and look after themselves, then, arguably, you don't need government to plug the gap. One returns to the extended family type and moves away from the nuclear (2 parents 2 children living away from Granny).

So, are the Legal Aid Reforms fair? Clearly not, if you listen to the thousands of agencies who have objected to the government bill, and the House of Lords who are overwhelmingly against it.

Do this government listen? No. I was listening to a commentator on Radio 4 this morning who said that the government are determined to break up the National Health Service, despite overwhelming opposition from almost everyone who has been consulted. Why - either because they are bigotted or undemocratic, or because they don't want to appear as though they are doing U Turns and are weak.

The same commentator asked us to look at the Railways which are fragmented, competitive, and inefficient in parts, because there is no national cohesive organisation to keep it running efficiently. Look at how Network Rail was privatised, failed, then was pseudo-nationalised again.

Now who was it that nationalised the Railways? It wasn't Margaret Thatcher was it? She didn't really listen to what people thought either did she? Particularly if they were "Wets"

Now is the time for the government to do a reversal on the Bills which no one wants. Will they listen? Will they thump.

Is Castration of Sex Offenders the answer?

I notice that Moldova's Parliament has passed a law introducing compulsory chemical castration for sex offenders who violently abuse children under the age of 15. The BBC has reported on the story here. One of the justifications is apparently because "Many Moldavians believe their country has become a destination for international sex tourists".

The subject has been debated for many years. The point is that child sex offenders do not have a disease which is curable with drugs like paranoia or schizophrenia mental disorders, which are treatable. Paedophilia is a sexual preference for children, instead of adults, which cannot be cured.

Whilst sex offender programs attempt to address the problem with the individual, it is of no use if the offender is in denial. It also does not get rid of the sexual urge, and fantasising, which many offenders indulge in on the Internet. More and more often, in the news, we now hear of offenders accused of abusing and grooming children being also charged with Internet porn offences.

There are several questions:-

1. Does the treatment work? Research has revealed that of the 104 people operated on between 1970 and 1980 in Germany, only 3% reoffended, compared with nearly half of those who refused castration or were denied it by the authorities. Some say the treatment is reversible.
2. Is the operation an infringement of human rights? European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) have complained to Germany, Poland, and Czechoslovakia about their laws. Amnesty International Moldova has condemned the decision, saying it undermines the basic right to physical and mental integrity. Executive Director Cristina Pereteatcu said chemical castration was "incompatible with human rights, which are the foundation of any civilised democratic society".
3. Should the operation be compulsory? - in Germany it is voluntary, but in Moldova it will be compulsory. CPT say that it is "questionable" whether consent to surgical castration "will always be truly free and informed".

One has to look again at castration as one solution to the problem of sex offending which ruins the life of the victim, renders them almost unemployable, unable to have relationships with the same or the opposite sex, and deeply distrustful of any authority figure. If it can only spare one poor soul from abuse, it is arguably worth looking at by the government.

Personally, I would be against compulsory treatment, but would probably be open to persuasion. If you look at the list of countries which have introduced it, many of whom are civilised libertarian nations, then it must warrant serious consideration. From my research it has been made law in

Germany
Moldova
Poland
Russia
Czechoslovakia
United States of Iowa, California, Montana, Georgia, Louisiana, Oregon, Texas, Wisconsin, and Florida
South Korea

So what are we waiting for in Britain?

Is escalating abuse in religious institutions worth investigating?

Why should one law be applicable to religious organisations, and another for the rest of us. Under Canon Law 489 every Catholic diocese has a secret archive which is kept locked and has in it secret documents. These documents are to be ‘protected most securely’ and contain, ‘matters of morals’ and ‘criminal cases’. Only the bishop is allowed to possess the key and the archive is only to opened in a case of ‘true necessity’.
In other words allegations of abuse by a priest upon a child from many years ago, are likely to be contained within the secret safe.

Nothing of the like exists at civil law. If a document is needed for a case against the church, then it has to be disclosed with one or two limitations and exceptions - for instance National Security.

We,  at the Association of Child Abuse Lawyers are somewhat tired of the litigious attitude of the Catholic Church in compensation claims. On the one hand we witness the conciliatory attitude of the church, who adopt a genuinely confessional and religious approach to help victims address the demons within them. On the other hand, should the formerly abused victim decide to take the Church to court for compensation, watch out. A fierce adversarial approach is likely to result. Historically the legal team acting for the church have decided to try every technical point they can, in order to defeat claims that weak and vulnerable adults bring.

Most of the cases are not fought on merits but time delay. Only this year attempts have been made, unsuccessfully to argue that the Catholic Church are not liable for what priest does because he is fulfilling a calling of God without much guidance or support from the church (JGE v Diocese of Portsmouth).

We are mounting a campaign with the backing of support groups for a public enquiry in order to examine the way in which abuse is becoming an ever increasing discovery of evil within what in reality should be one of the pillars of our society. If each diocese has one of these safes with secret information in it, why should they remain secret accessible only the bishop? Why not hand over the contents to her majesty's police force so that justice can be done, and the abusive priests duly prosecuted.

The obvious conflict between the Canon law of the Catholic Church, and the civil law of England and Wales is a tension which is arguably irreconcilable. Each law has its own type of court which has different rules. Whilst it is not possible to sue for child abuse in the religious courts of the Roman Catholic Church, one can obtain a nullity of marriage, which means that the spouse can marry again in the Catholic Church. Alternatively the parties can, and often do get a civil divorce through the English Courts. Lawyers have been known to argue points of Canon Law in English Civil Cases. Thankfully such arguments rarely succeed in abuse cases, as Canon Law is not binding in the English Courts.

Will our campaign, which has aroused the interest of the Times newspaper and Esther Rantzen succeed? I certainly hope so. Having tried myself to persuade the English government to agree to a public enquiry to look into abuse in children's homes nationwide back in the late 1990's, and failed because of the enormous cost, and the lack of boundaries to the investigation, I doubt whether the government, in the age of austerity, cut backs, and legal aid wipe out, will agree. We can only remain hopeful.......

Should criminals be forbidden to claim compensation?

In the Houses of Parliament on 30th January, the Justice Secretary Ken Clarke announced plans to prevent most convicted criminals from gaining Criminal Injuries Compensation (CICA), arguing it was "perverse" that those convicted of crimes had been able to claim for injuries and psychological damage.  He said the proposals were an "intelligent, radical reform to sort out a system that isn't working well" - true it is not working well, but these proposals will make it a lot worse. It also ignores the plight of the victims of child abuse who are my primary concern.

Under the present scheme (Para 13) there is a CICA penalty points system, which prevents most criminals who have unspent convictions from applying for compensation arising from a crime of violence. The government have decided that criminals simply do not deserve compensation. For example, a period of imprisonment of 30 months attracts 10 penalty points which equates to a reduction of 100% compensation, whereas a fine of £250 up to 2 years after the conviction will reduce compensation by 15%

The CICA scheme was introduced in 1964 in order to ensure that the victims of crimes of violence could receive compensation from the government, particularly where the perpetrator did not have the funds to pay. This contrasts with compensation paid to the victims of car accidents by the blameworthy car driver's insurance company. It was thought that only those who did not transgress the law deserved to apply.

The case of the victims of child abuse is clearly different, as is recognised by the current scheme. Provision is presently made for the CICA to ignore criminal convictions in appropriate cases. The obvious question is, "What sort of criminal record did the child have at the time they were abused?"

For example, it is not unusual for the victim to be abused at the age of 15 by, say, an older male care worker, and then tell no one what happened to them, out of shame, for 30 years. Moreover, so great is the shame, and so deep is the hurt, that they resort to drink and drugs as a form of emotional anesthetic. How shameful would it be to confess that you have been assaulted in a homosexual encounter with an older male care worker? Acquisitive crimes to feed the drink and drug habit then frequently follow.

Thus the argument is, that any convictions which are caused, in any way, by the abuse in childhood should be ignored, even though the rules strictly disqualify the applicant. Similarly, the victim of abuse who goes onto commit offences related to the abuse of children, where the abuse caused in some way the later offences, can argue that his/her convictions should be ignored. Needless to say, statistics do not show, that victims of abuse go on to be abusers.

I can find no provision in the new proposals for any account to be taken of the plight of the victim of child abuse, which, in my book, is appalling. It seems that these proposals are simply about saving money with little regard for fairness or justice.

Should there be a one size fits all? Should all criminals with convictions be prohibited from claiming criminal injuries compensation? The point is that all cases are different. In none of these cases under the new system, will a claim be permitted. Some are deserving, and others not, dependent on the facts of the case eg.

Not Deserving (arguably) :-

1. A gang member who is shot in a drug/gang related attack resulting from non-payment of drugs.
2. A burglar who is injured by a householder during an attempt to burgle a domestic dwelling.
3. A passenger in a vehicle stolen by a thief who is drunk and has an accident.
4. Unwilling members of a gang that are assaulted by a gang member because they refuse to participate in a crime

Deserving (arguably) :-

1. A career criminal goes straight, starts up a charity to help ex-offenders, but within the period covered by the unspent conviction, is assaulted by a stranger, causing severe injuries and a loss of earnings.
2. A girl is caught smuggling drugs and given a fine or community service. A year afterwards, whilst in full time employment, she is raped, sustaining severe injuries.
3. A victim of child abuse goes onto commit sexual offences clearly caused by the abuse. He/she tries to put in a claim for CICA for the original abuse after helping the police by giving evidence against the paedophile. 
4. A criminal is assaulted and paralysed whilst in police custody. Whilst he can make a civil claim against the police, he is prevented from pursuing a claim for CICA.

Ironically there are two separate systems. A prisoner , who is a victim of child abuse, is not prevented from pursuing a claim against his abuser personally through the civil courts because he has a criminal record. This depends upon his abuser, however, having enough money to make a claim worthwhile. The same prisoner, however, because of his convictions, cannot bring a claim under the CICA scheme, where, for example, his abuser is penniless. This is devisive and unfair.

I have been campaigning on this issue for many years. As long ago as 1997, one of our CICA Appeal cases called GB, RB, and RP, established the principle that even though victims of abuse from children's homes had criminal records, they could still make a claim. Sadly, regulations made since, and certainly the recent proposals cleverly promoted as "intelligent and radical" are likely to do injustice to some of the most vulnerable members of our society. Letters to MP's may be a way of protesting. Let us hope that the proposals do not come into force.

Is the capping of benefit payments another nail in the Tory coffin?

When I heard Iain Duncan-Smith, the Secretary of State for Work and Pensions, announce, yet again, that he was going to cap the amount of money paid to benefit claimants at £26,000, I was roused to blog about it.

The view taken is that all benefit claimants are scroungers on the state, and that the easy solution to their problems is to just reduce their income to such a level that magically they will be forced back into work.

This view is so naive that it is laughable. What about

• The disabled who need more benefit because they have a disability
• The mentally ill who cannot work because they are unwell.
• Mothers of large families, in particular those who are single parents.
• Amputees who need special equipment to enjoy normal lives (such as is possible)
• The old and infirm - perhaps the government should  reduce their benefit to such an extent that they cannot afford heating and then die of cold.
• Victims of abuse in childhood, where the abuser was an employee of the state. They cannot work because they have no trust in any other human being sufficient to have an employer/employee relationship

The quote I heard from Iain Duncan-Smith seemed to suggest that if you reduced income then magically a benefit claimant would spring into action, and suddenly get a job. What if he hasn't worked for 5 years - the long term unemployed? They are generally ignored by the back to work government schemes because they stand the least chance of all of getting a job.

What will happen if Iain Duncan Smith gets his way - well probably whole sections of the community will be unable to afford to buy food and starve to death - would they get a DSS paid funeral? Interesting point. I suppose that will just serve them right for not getting off their fat backsides and getting a job.

At the moment the House of Lords has whole heartedly rejected the idea in a revolt. Despite this Duncan-Smith seems determined to find a political way to push ahead with the proposals. The coalition government thinks the public are behind the proposed welfare reform changes.

An article in the Guardian entitled "there is an appetite for welfare reform" quoted public opinion from research in Britain.

"Other work we've done on "fairness" for the Equality and Human Rights Commission suggests that this view is partly underpinned by the belief that fairness means not just people having the same opportunities but people not getting more out of a system than they have put in.

The same study identified a view that in some ways Britain has become "too fair", with common concerns being that benefit payments don't encourage hard work and that there are unfair advantages for some in the housing and even employment system. "

Sn, despite the fact that the House of Lords are against the idea, and that it seems a crazy notion to push through, like all outrageous policies in the name of "austerity" to "get the country back on its financial feet" it will probably be pushed through because they believe it is right and fair. Like many other examples of Tory policy where they have not listened to public opinion and have become latterly disaster areas eg. Poll Tax, Child Support Agency etc. This policy will probably be called a misthought badly judged policy which in future has to be reversed.

And just a final thought. What are you going to tell the one legged war veteran who cannot work, but will have his benefits reduced to an unacceptable level? "Never mind old chap, thank you for nearly sacrificing your life for Blighty and losing your leg. You will just have to manage on less - or you could easily spring back into work as a window cleaner may be - oh no you can't can you because you only have one leg....hmm....."

Are breast implants a genuine cry for psychological help?

A comparison between the feelings of a victim of abuse, whom I represent, and the angst of women who have had PIP breast implants, which may have gone wrong is, at first sight, inappropriate.

One firstly has to distinguish between breast implants which have been inserted in order to augment the size of existing breasts for cosmetic purposes, and women who, for example, have had mastectomies arising from breast cancer. I suspect that people have immediately assumed that breast implants have mostly been paid for by those who want bigger breasts rather than being given on the National Health to those who need them for medical reasons, and, presumably, have been provided free of charge on the NHS. There are also those who, for psychological reasons need breast implants because, for example, they are suffering from a mental disorder caused by their feelings about the size of their breasts. Mastectomy patients, however must deserve the most sympathy of all.

One has to ask the question of what responsibility the Plastic Surgeon who chose PIP breast implants at a cheap price should bear. Whilst the manufacturers were the villains of the piece in that they used industrial grade silicone the question is were or should the plastic surgeons have been aware that they were using substandard products? If so they would be liable in negligence. Proving knowledge of something many years ago would be difficult. Other plastic surgeons now say with the advantage of hindsight, of course, that they would not use PIP implants because they seemed poor quality.

The actual argument the lawyers involved are using is under the Sale of Goods Act. The plastic surgeon was a supplier of goods of unmerchantable quality which were unfit for purpose. As such therefore they are liable for damage caused in breach of the implied duties of sale. Simply a much more effective argument than negligence, and all that entails.

The lawyers are advising the government not to replace the implants on the NHS in the hope that they will be able to recover from the plastic surgeon, for the simple reason that under the Sale of Goods Act only the buyer has a right of action, and the government were not the buyers. I don't think David Cameron has had any implants to my knowledge - or has he?

So how do the victims of abuse compare with breast implant victims? Well all victims of abuse have low self esteem because abuse causes a lack of trust in other human beings. Some breast implant patients have the operation done because the size of their breasts has caused such low esteem, lack of confidence, and indeed mental illness that having larger breast will help restore that self esteem, and enable the patient to cope with life more easily. If psychiatrists authorise the operation  for psychiatric reasons alone, then low self esteem must lie at the root of the problem. Sadly, there is no quick cosmetic surgery fix for the victim of abuse. His/her damage is arguably incurable. Certainly, if there was a cosmetic surgery solution, you can bet that they would all go for it.

It is somewhat trite, however, to even attempt to draw similarities between the two types of victim, and I do so merely in a tenuous and somewhat insincere fashion. Indeed, even for the breast augmentation patient, larger breast will not cure a deep rooted inferiority complex, no doubt caused by other factors - even abuse in childhood. Some form of counselling is more likely to help.

Moreover a breast cancer patient would expect to be able to have breast implants put in on the NHS free of charge, and to have substandard implants replaced under National Health for the same reason. Indeed the public would gladly agree for such free treatment gladly. So let us not judge too quickly in ignorance.

Peter Garsden opening christmas gift from Russell