Authored by Andrea Coomber Director, Justice and Rosemary Ioannou Senior Counsel, Vannin Capital
As a dispute resolution funding company, Vannin Capital works with leading lawyers and experts across the globe funding complex, high value disputes. The cases we fund are often at the forefront of legal developments. While Vannin is a commercial organisation, often an important by- product of our work is access to justice for claimants who have strong valuable claims but do not have the resources to pursue them. However, by the very nature of the claims we fund – normally large commercial disputes – there are a very significant number of claims for which our funding is not suitable.
In a thriving democratic society, now more than ever, the importance of access to justice and preservation of the rule of law is something that needs to be cherished and preserved. JUSTICE strives to achieve just that, for the benefit of those it represents directly and inevitably, indirectly through its work, the whole legal community. This should be something that is applauded, and encouraged by all of us.
Andrea Coomber, director at JUSTICE, talks about its important work and how it has evolved as it approaches its diamond anniversary.
MAKING IT TO 60
In June, JUSTICE celebrated its 60th anniversary. Set up in 1957 by a group of eminent British jurists – as headed by former Nuremberg prosecutor Hartley Shawcross – JUSTICE was founded to 'uphold and strengthen the principles of the rule of law... to assist in the administration of justice and in the preservation of the fundamental liberties of the individual'. I became the Director of JUSTICE four years ago and it is this mission that frames our work still.
Very few charities make it to 60, or even fewer have anywhere near the impact of JUSTICE. While the organisation has a very modest public profile, we are well known among policy makers and senior judges, with our work having shaped the legal landscape of this country. So much of what we all take for granted in the legal system – the Ombudsman, the Crown Prosecution Service, the Ministry of Justice itself – were borne of JUSTICE's recommendations over the years. JUSTICE campaigned for many years for the incorporation into UK law of the European Convention on Human Rights, was a driver of the Human Rights Act 1998 and was charged with training our judges on human rights upon its adoption. JUSTICE is a lead intervener in the UK Supreme Court and in the European Court of Human Rights, where our third-party interventions provide independent, expert material to assist the court in deciding cases.
For many people, JUSTICE will always be associated with the BBC television series Rough Justice. For our first 25 years, much of our work focussed on securing the release of prisoners who had suffered miscarriages of justice. Partnering with Rough Justice, JUSTICE's work led to the release from prison of eighteen people who'd been wrongly convicted. At the same time, we were at the forefront of urging the creation of the Criminal Cases Review Commission, which itself took over the mantel of challenging wrongful convictions twenty years ago.
Much of this impact is borne of the way we work. JUSTICE has a membership of around 1,300 – mostly individual lawyers but also corporates and nonlawyers concerned about a fairer justice system. Our membership is drawn from across the professions, from retired senior judges and public law barristers, to tax partners and law students. Our members, and the Council that advises our work, is cross-party, allowing us to influence political agendas behind the scenes. While our members may vote or represent different political parties, they are brought together by and share a strong commitment to the principles of the rule of law and the fair administration of justice. We work with justice leads from all parties, to ensure that these principles trump party politics when it comes to how ordinary people interact with the police and the courts. While we have a very small staff – only four lawyers at present – we draw on our membership to identify areas of the system which are antiquated, unfair or inefficient and to reimagine how things might work differently.
And there are many things that could and should work differently, with our recent work giving a taste of the possibilities.
It is well known that the last five years have seen significant State retrenchment; funding for the justice system has been slashed, for example with legal aid cut significantly and the introduction of 'enhanced' court and tribunal fees. In the civil courts, this has meant that many people who previously would have qualified for legal aid, for legal advice or representation, are faced with either representing themselves or being excluded from the system. At the same time, for the vast majority of the population – ineligible for legal aid even before the cuts, and unable to afford a lawyer, or expose themselves to the costs risks – is already effectively excluded from the civil courts. While JUSTICE has briefed against cutbacks to legal aid over the last twenty years, we also recognise that an adversarial justice system – built on the assumption that all parties would be represented – is in trouble when very many people before it are not represented. The new reality is that for many people who present at a Country Court for their civil matter, the first lawyer they speak to is the judge. This is obviously not how the system was meant to operate, and it results in an unedifying and confusing experience for the unrepresented party and a time consuming and sometimes frustrating process for the judge, who has to guide someone through the system. And then there are the majority of people who research shows us will just stay at home, and not take their good claims or make their good defences in court, because they have to fend for themselves.
In 2013, shortly after I began as director of JUSTICE, we set up a working party to consider whether the adversarial process in the civil courts and tribunals was still fit for purpose, and whether system change might be desirable. A group of eminent members, chaired by a former Lord Justice of Appeal, Sir Stanley Burnton, looked at the reality of unmet legal need in the civil courts, considered how the processes currently work and what was happening in other jurisdictions and in other parts of our own system that might usefully shape a new approach.
The resulting report of April 2015, proposed radical change. We recommended that rather than directly involving judges in the first instance, parties should be directed to a person – we called them a 'Registrar' – who works under the judge, who could engage in a dialogue with the parties to assess their needs, their evidence, their expected outcomes etc., and who would be empowered to mediate, engage in 'early neutral evaluation' ('you're just not going to win this case') or to refer the case onto a judge where cases were factually or legally complicated. Most cases are not. All the research shows that parties to civil disputes most often just want to know 'whether there is anything in it' – and a judge is an expensive person to be dispensing this advice. Our report also recommended that much, much more should be done online, dragging the outdated court system into the 21 century and moving us away from a system based entirely on people turning up to old buildings with bags full of bundles of papers.
While at the start of the work I was told that it was pie-in-the-sky stuff, there was no way the civil courts would be open to changing their procedures, by the time we reported 18 months later, the environment had become more enabling. With a reforming senior judiciary and a Ministry of Justice open to exploring how the system might be reformed, our report was embraced. Lord Justice Brigg's review of the civil courts adopted our 'Registrar' model as did Her Majesty's Courts and Tribunal Service (HMCTS) Reform Programme, which has renamed them 'Case Officers'. The call for more to be done online, made around the same time by Richard Susskind's Online Dispute Resolution Report for the Civil Justice Council, has also been picked up. With an investment of almost £1 billion from Treasury in modernising our courts, the JUSTICE work is now underlining a new approach to dispute resolution in the civil courts. We are now following up with a new working party looking at how to ensure that all people, including the 'digitally deprived' can access justice in an online era.
Critical to our success has been that we consult and advise policy makers across all parties as our recommendations developed, allows us to take the partypolitical sting out of justice system reform. Most of what we are working on deserves bi-partisan support and JUSTICE's membership and network enhances our influence in this respect.
The civil justice work is but one example. Our recent work on court reconfiguration and on reforming complex and lengthy criminal proceedings have similarly borne fruit. We await to see whether our Increasing Judicial Diversity report1 of April this year will have an impact on increasing the number of women – currently only one – on the UK Supreme Court during the upcoming round of appointments.
ACCESSIBLE AND FAIR SYSTEM FOR ORDINARY PEOPLE
There is a lot more for us to do. We currently have working parties of our members looking at: reforming immigration and asylum processes (given that the bulk of the Court of Appeal's workload is on immigration and asylum, creating significant delays in listings of cases); on the treatment of defendants with mental health problems in the criminal justice system, given the very high numbers of cases and concern about how appropriate our processes are to deal with them, and we will soon begin work on handling of sexual offences cases. With more resources we could do even more.
And that's the downside of directing a charity like JUSTICE, and frankly the reason that so few charities make it to 60 years. Securing funding is a constant struggle. We receive some support from trusts and foundations, but most of our funding comes from members and supporters who – individually and corporately – sign up to support to JUSTICE. Three years ago we launched a successful appeal, which has allowed us to more than double our legal staff and to increase our impact. We are also lucky enough to own our own building, which provides valuable rental income and saves us from the vagaries of the London property market, but we still need to raise around £700,000 a year to keep the charity ticking over.
As we move beyond 60 years, the need for a robust, insightful and independent voice from the legal professions has never been so important. There is so much of the system that is antiquated and other parts that need a fundamental rethink to become truly accessible and fair. The justice system is a bedrock of the rule of law. The high quality of our judiciary and our courts is the reason that so many businesses are based in the UK and choose to have disputes settled here. For many it is a first class service. But this is the same system that needs to be accessible and fair for ordinary people. With ever diminishing funding for social services and cut backs to government services, more and more vulnerable people are finding themselves needing to challenge the decisions of government authorities, and will inevitably end up before a court or tribunal. With chaotic lives, many of the same people will find themselves before the Family Court and in our criminal courts. For these people, the justice system is the ultimate safety net. And that safety net needs JUSTICE.
1 Increasing judicial diversity, A Report by JUSTICE, Chair of the Working Party Nathalie Lieven QC, April 2017
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