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Peanuts for Justice

Maya Evans reflects on courts, money and human rights

The Judge Lord Justice Laws looked over his glasses, he was a no messing kind of guy with a habit of cutting to the chase immediately. “So this £50- £100 k figure, where did it come from? Is it the governments?”

The defence Lawyer for the Secretary of State Mr Grodzinski flicked through his papers to find the source. Indeed it was the government’s calculated annual expense for judicial reviews- cost was the main justification which the Ministry of Justice had used to cut legal aid for judicial review cases.

Justice Laws looked truly astounded, he had obviously followed the same path of logic we had: “But it’s peanuts!” he bluntly stated.

I had to put my head down as I struggled to keep a straight face and Grodzinski struggled for words, we couldn’t have put it better ourselves.

My QC Tim Otty had already traversed our arguments seamlessly. I felt almost embarrassed for the government’s defence lawyer, he must have felt like the skipper of a sinking ship. Lord Justice Laws also noted the importance of Evans V Secretary of State for Defence and that, as a result of the case procedures had to be tightened up and there were to be no further transfers to Kabul- it was a welcomed acknowledgement of the success of Evans 1.

Our main argument was that the Ministry of Defence had tried to intervene with the funding of Evans 1- a judicial review into British complicity in the torture of Afghan detainees; a case we went on to win and therefore ensuring that the UK are not violating international obligations to prohibit torture (I’m still waiting for my thank you letter from the Government).

Having failed to stop funding for Evans 1 they went about changing the legal funding code to warrant it impossible for campaigners to bring judicial review cases against the government on legal aid. Key to our argument was that the MoJ’s consultation was flawed, particularly in terms of its failure to disclose the lengthy representations and involvement of the MoD- it’s shifty as hell.

The timeline of events was damning:

24th September 2008: MOD wrote to Legal Services Commission asking that they reconsider the grant of legal aid in Evans 1 because:

(i) Ms Evans lacks standing to pursue the claim

(ii) The claim is general and speculative

(iii) There is no evidence to support the contention that transferred detainees faced a substantial risk of torture

23rd October 2008: The LSC take the view that “the chances of success are borderline and the case has significant human rights issues and is therefore fundable as it is”.

29th November 2008: Minister of the State for Armed Forces Bob Ainsworth MP wrote to Lord Bach, the Ministry of Justice Aid Minister objecting to funding of Evans 1 and referring to a series of cases against the MOD which “could be extremely serious for our defence, security and foreign policy interests and we are defending them vigorously.”

January 2009: Private Office of Justice Secretary reports that “matter raised” by defence secretary, John Hutton MP. Justice Secretary asks MOJ officials for advice on “tightening up the rules”.
MOJ officials approach LSC about Evans 1

16th June 2009: Lord Bach met with Mr David Keegan, head of LSC Special Cases unit.

22nd June 2009: Lord Bach met with MoD Armed Forces Minister, Bill Rammell MP

25th June 2009: MOD admit that serious allegations of torture have been made in March- June 2009 by transferred detainees in Afghanistan and concede that permission should be granted

5 July 2009: Lord Bach wrote to Bill Rammell MP summarizing proposed change to LSC rules

16th July 2009: the Consultation paper was published

9th September 2009: Lord Bach met with Bill Rammell MP and discussed MOD/LSC proposals

14th September 2009: Bill Rammell MP writes to Lord Bach welcoming proposals for reform

8th October 2009: Consultation closes

January – February 2010: More back and forth between Lord Bach and Rammell

19-29th April 2010: Hearing of Evans 1 before Divisional Court

10 May 2010: John Halford at Bindmans makes a Freedom of Information Act request for information from MOD:

(i) taken into account in devising proposals consulted upon, and

(ii) responding to consultation

8 June 2010: MOJ responds to FOIA request, it does hold information but raises s.35 exemption and say they will respond in July.

25 June 2010: Judgement in Evans 1 – transfers to Kabul prison are stopped and detainees transferred to other prisons are carefully monitored- victory!

It seems pretty clear from the evidence that the MOD not only tried to stop funding for Evans 1 but were key (via Bob Ainsley) to instigating a review of the funding rules, and were then central to the MOJ’s approach on reform. It’s also plain that the justification of the [“peanuts”] cost was unfounded, £50- £100k is fairly reasonable to ensure the UK is not involved in international crimes of torture- taxes well spent (for once), and besides surely in the long term it’s actually a money saving strategy. It seemed a mocking for the defence to run such an argument in the same month that the UK has spent “at least £25m” on weapons and bombs for Libya. It was vital to our argument that without legal aid British complicity in the torture of Afghan detainees would still be taking place, there wasn’t an Afghan to bring the case, in fact the Afghan prisoners who complained of mistreatment were held incommunicado and the MOD refused to advise them of the role of the British courts to protect them.

As the defence started to serve their evidence I became distracted with a trail of thought, the Lord Chancellor had apparently commented: “limited funds shall not be allocated to Judicial Review where the applicant can not contain real benefits to himself or family”.

I started to think of the morality of “mind your own business”- in the Eastend of London where I grew up that was definitely the accepted attitude on the street, however it seems seriously wrong for the state to ensue such a policy- it’s like seeing someone on the street being assaulted and doing nothing to stop that- isn’t that in itself a crime? What kind of two faced government policy is this? It’s OK to go uninvited into various Middle East countries but it’s not OK for a concerned British citizen to ask for abusive UK policies to be investigated- what a load of hypocritical bull!

The case drew to a close in record time- all evidence was delivered before lunch, it would have made a great thriller movie. Lord Justice Laws rested his cheek in his hand and seemed to slump in his chair: “there’s some troubling information which we will need to think carefully about, judgment will be handed down in a few weeks.”