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Barriers to justice and their effect on society

Longer ago than I want to admit, as part of my undergraduate Law degree at Nottingham University, I spent some time considering the law’s relationship with our society.

Themis statue with balance scales - Lady Justice
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Merry is a partner in the human rights department.  She has a particular interest in using the law to protect children, vulnerable adults and patients.  She tweets as @merryvarney
In the wake of the Gosport scandal and with the grim LEDER review not long before, my mind goes back to  some of the discussions we had about the role compensation claims (one aspect of the law) play in improving delivery of services and public protection.
 
Of course there are other legal mechanisms aimed at protecting us and ensuring high standards  - professional regulators; criminal sanctions; health and safety enforcement; Inquests etc. The law - in all these different ways - should work to both prevent failings and ensure accountability and learning if failings or ‘wrongs’ do happen. This should benefit and protect us all - but what if one or more of these legal mechanisms are not available? Does it impact on public protection and standard of services? 
 
The Police decide whether and how to investigate criminal wrongs; the Crown Prosecution Service decides whether a prosecution is pursued; and from the General Medical Council to the Solicitors Regulation Authority, professional regulators  decide who should face disciplinary action. As for Coroners, there is a complete postcode lottery and so no guarantee unnatural deaths (those not due to natural causes) will be properly investigated via an Inquest and systemic failings identified.
 
Challenging decisions of these bodies, including a decision not to use their legal powers, such as a refusal by the police to investigate an allegation of manslaughter or a Coroner refusing to open an Inquest, is possible. Victims can bring judicial review proceedings in the Administrative Court but these are difficult and expensive for those not eligible for legal aid.
 
In the vast majority of circumstances the only legal routes a victim or their family can chose to pursue if they consider there has been a failing or a wrong committed is a complaint and a compensation claim.
 
I do question whether a complaint is a legal mechanism but I’m trying to be generous and in my experience many victims and families feel very let down by the complaint process.
 
So that leaves a compensation claim where money - the value of the claim - is key. Not only does the law dictate when and how much compensation is payable, the legal frameworks around funding for Legal costs puts the value of a claim as a central factor. For example to obtain legal aid for a claim for compensation for a human rights violation, criteria include whether the likely value of the claim outweighs the likely costs.
 
If a Court would not award more than a modest sum despite there having been proven failings causing a loss of life but the legal costs are likely to be significant, legal aid is unlikely to be granted to pursue the claim to trial.
 
Where legal aid is not available, the costs and financial risks involved in a claim for compensation may well, if at best the claim is of modest value, outweigh what can be achieved. Not many can afford the costs or the risks and lawyers are likely to conclude that even if successful, their client’s legal costs may not be fully paid .
 
Often, and in my area of practice, human rights in health and social care, the law does not place a significant value in terms of compensation on the loss of life, no matter how bad the failings causing it, if the person who died does not have financial dependents. This can mean that pursuing a claim for compensation is simply not a viable option.
 
This can mean that a bereaved family simply has no access to legal mechanisms designed to independently and publicly investigate and adjudicate alleged failings causing or contributing to a death.
 
I am aware from direct experience how often deaths of those considered to have no significant financial worth by the law do not get properly investigated and in my view, this could be one of the reasons scandals such as Gosport & the ongoing deaths by indifference to people with a learning disability shamelessly keep on happening.
 
As compensation is not usually my clients’ primary aim, an improved Inquest system with legal aid more widely available to bereaved families would go a long way to making up for the deficit caused by the barriers to justice arising elsewhere.
 
#thelawisbroken

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