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Magna Carta Essay / legal Aid

Is the Magna Carta more honoured in the breach?

Three clauses of the Magna Carta are extant, remaining clauses having been repealed by more recent Acts. One of the remaining is Clause 29 which provides for the administration of justice and includes the declaration, ‘not to deny or defer to any person either justice or right’. However, this is a legal right not an unalienable one, but is described as the ‘embryo’ of the Rule of Law (RoL) by Lord Bingham . Furthermore, he describes the RoL as a basic constitutional principle. The right to fair trial, to justice, is of constitutional proportion and therefore, must be honoured especially in the breach. To paraphrase Shakespeare , ‘Into the breach once more, dear friends, or close the walls up with bodies of English injustice’.

The Magna Carta has been described as an evolution of previous charters that preceded it and the enactment of the HRA 1998 can be seen as a further evolvement . The HRA includes Art.6 of the ECHR , a right to fair trial which can be considered to re-enforce or ‘bring home’ Clause 29 . Moreover, it gave UK citizens a further avenue or vertical effect to ensure that justice was not denied to them. One example is demonstrated in the McLiable case where the ECtHR found the English courts in violation of Art. 6 as the defendants had little representation ; the defendants were only eligible for two hours of legal aid as the case regarded defamation, whereas the plaintiff’s wealth gave them a plethora of legal professionals to have at their disposal. David Pannick QC stated, ‘The Mcliable case… has lowered further the reputation of our law…’ , and it could be suggested that further legal aid cuts, or not to honour Clause 29 would do the same.

The English Justice System does not necessarily need to rely on the ECtHR to ascertain injustices, outlined superbly and not for the first time , by Sir James Munby in the case, D (A Child) regarding whether a child should remain in the care of his parents, stating:

‘That, however, is not the issue currently before me… it is unthinkable that they should have to face the local authority’s application without proper representation.’

This refreshing statement is entrenched in the principles of Clause 29 and the RoL, which includes the accessibility of the law. In Black-Clawson Lord Diplock stated, ‘The acceptance of the RoL as a constitutional principle requires that a citizen knows the legal principles of their actions’. This is no easy task, as demonstrated in R v Chambers where the Court of Appeal overturned the original judgement as legislation had changed regarding import duties. However, Lord Toulson found no fault with the trial judge, prosecution or defence stating, ‘…there is no comprehensive law database… to find out all the legislation on a particular topic’. Therefore, a citizen cannot be reasonably expected to know all the legislation that covers their actions. Furthermore, the European Court stated that rules that bind citizens should be accessible to them, preferably, via a competent legal professional . Even so, the case of Chambers demonstrates the complexities of the law, the need for citizens to have legal counsel and the gravitas of the Magna Carta .

The Guardian identified landmark cases that may not meet the criteria for legal aid today, including The Stephen Lawrence Case and The Hillsborough Victims . These cases exemplify the importance of legal aid, as they have progressed English law and demonstrate that justice will not be denied to any citizen. Such cases have highlighted the benefits of legal aid to society, as per the spirit of Clause 29 . Should a similar case today not receive legal aid and an ECHR Art.6 violation found, the UK may face a monetary penalty and it would damage the credibility of its legal system. Nicholas Lavender QC reinforced this by stating, ‘Further legal aid cuts would create a false economy… cuts will lead to more miscarriages of justice and drive people out of criminal advocacy’ . At a Brighton University Law Careers Day, one visiting barrister intimated that should we wish to repay our student loans, we should avoid the Criminal Bar. This led to a rousing question: Should the Lord Chancellor, also Secretary of State for Justice, be required to have a law degree?

According to the Bar Council, the enactment of LAPSO 2012 has caused a rise in individuals acting pro se or as Litigants in Person which has resulted in longer judicial proceedings and cost . This could lead to an unfair trial. Lord Bingham stated that the right to a fair trial is a cardinal requirement of the RoL . However, in practice this has taken time; only from 1836 onwards has the defendant had the right to address the jury . Further developments, such as the introduction of legal aid in 1949 , allowed defendants without financial means access to legal professionals. Such changes have honoured Clause 29’s purpose not to deny justice to any individual .

The Citizens Advice Bureau (CAB) reports it is harder to get specialist legal advice for their clients’ needs since cuts to legal aid came into effect last year. Their chief executive, Gillian Guy, stated, ‘Cuts to legal aid have left people stranded with nowhere to turn, at a time when specialist advice for issues such as housing and welfare have increased’. The CAB goes on to report it was providing specialist advice on legal issues in approximately 136,000 cases. But changes introduced under LASPO have withdrawn support for approximately 120,000 of these cases .

In conclusion, the Magna Carta must be honoured. LAPSO and further legal aid cuts can serve only to fundamentally regress the English Justice system. The false economy created is therefore counter-productive. Furthermore, such cuts may ultimately damage the reputation of the English legal system which can be seen to set enlightened trends regarding the administration of justice, and which inspire other jurisprudences. The abolition of the death penalty is one example.

Word Count 1000

Bibliography

Texts:
Carroll A, Constitutional Law and Administrative Law (7th edition Pearson Education 2013)
Bingham, T, ‘The Rule of Law’ (Penguin Books: London, 2010)
Elliot C, Quinn F, ‘English Legal System’ (14th edition Pearson Education 2013)
Gray, J, ‘Lawyers Latin A Vade Mecum’ (New ed. Hale Books, 2006)
Shakespeare, W (1619) ‘King Henry V’
Young, R. & Wall, D, ‘Access to Criminal Justice: Legal Aid, Lawyers and the Defence of Liberty’, (Blackstone Press, 1996)

Cases:
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
Black-Clawson Int. Ltd. V Papierwerke Waldhof-Aschaffenberg AG [1975] A.C.591
D (A Child) [2014] EWFC 39
Q v Q [2014] EWFC 7, Re B (A Child) and Re C (A Child)
R v Chambers [2008] EWCA Crim 2467
R v Dobson [2011] EWCA Crim 1256.
Sunday Times v UK [1979] 2 EHRR 245,271

Electronic Resources:
Bowcott, O, The Guardian, ‘Bar Council chairman: further legal aid cuts would be false economy’ 28th January 2014, Online, available: http://www.theguardian.com/law/2014/jan/28/legal-aid-cuts-false-economy-bar-council-chairman-nicholas-lavender [Accessed 20th November 2014]

Guy, G (2014) ‘‘Nowhere to turn’- Citizens Advice speaks out on impact of legal aid cuts’, available: http://www.citizensadvice.org.uk/index/pressoffice/press_index/press_20140708b.htm [accessed 20th November 2014].

Howard, E, The Guardian, ‘Four landmark legal aid cases that might not be taken today’, 25th September 2014, Online, available: http://www.theguardian.com/law/2014/sep/25/sp-four-landmark-legal-aid-cases-that-might-not-be-taken-today [Accessed: 20th November 2014]

Morris D, ‘McLibel: Do-It-Yourself JUSTICE’: David Pannick, QC, The Times [UK] 20th April 1999] Online, available: http://www.mcspotlight.org/media/press/msc_diyjustice.html
[Accessed 20th November 2014]

Statutes:
Human Rights Act c.42.
Legal Aid and Advice Act 1949.
Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 c.10.
Magna Carta 1297 Act Clause 29 c.9.

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Rob Moosai-Maharaj • 09/01/2015


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Comments

  1. Jeanette Ashton 09/01/2015 - 6:10 pm Reply

    Rob – I really enjoyed reading this, thanks for posting – here’s the link to the Radio 4 programme I mentioned http://www.bbc.co.uk/programmes/b00k4fg7

  2. James Xiu 14/01/2015 - 4:11 pm Reply

    Did you win?

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