I know. A blog post in which the twin joys of legal aid and GDPR are combined in one glorious cluster of hideousness. I’m sorry. Two parallel universes collide and rip a hole in the fabric of reality, or at any rate in the carefully drawn timetable set by the judge.
What am I blithering on about?
So, the LAA have refreshed their guidance on all the essential stuff they won’t pay for. On the revamped list is a post-GDPR special : because GDPR saw the abolition of fees for Subject Access Requests the LAA will no longer be paying for fees charged by police forces arising from orders for police disclosure.
I know. I know that an order for police disclosure is NOT. A. SUBJECT. ACCESS. REQUEST. It’s an order of the court. It’s not a request. And its not made by the subject of the data. It covers more than the data relating to the single subject in question – it will typically cover at least two subjects (two adult parties to litigation, say two parents) – but will often cover third parties who may not be the subject of or party to litigation. They may be ex partners, neighbours, informants, children, extended family members who are the victims or perpetrators (alleged or actual) of abuse or criminal behaviour.
Here it is in all its wrongheaded glory :
(page 58 of the Civil Finance Electronic Handbook (issue 2.7 effective 26 Mar 19), attributed at page 69 as all the fault of the GDPR)
An order for police disclosure may cover material which will take the police many hours to collate, burn, transcribe or otherwise organise and for which they are quite justified in charging an administrative fee (although a number of people have told me in the last month or so that these charges have become wildly varied in recent years, with some forces apparently using this as a bit of a money making exercise and charging top whack for carrying out such work).
So, you might say this is just a mini-cash generator for the police and we should just switch to SARs and make do. But they won’t ‘do’ (at least in most cases they won’t). Anyone who has ever made a SAR or seen the product of one will know that the material produced will be incomplete and rendered practically useless by the level of redaction. If Mrs Smith (the alleged victim let’s say) made a SAR for all records relating to her she would receive everything about her but with all the information relating to Mr Smith, the alleged perpetrator of domestic abuse against her, blacked out or removed. She would receive potentially all sorts of information that wasn’t needed, for example about that time ten years ago when she was robbed at the supermarket. To get the information about the Mr Smith side of the equation he’d have to make a SAR – and his would be missing everything about Mrs Smith. Marrying the two sets of documents up would be impossible, time consuming and frankly pointless. Although a SAR now has to be complied with in 30 days, which is comparable to the sort of time usually given to the police to comply with a disclosure order (usually 28 days), the end product would be either useless or would generate unpaid work and cause built in delay before anything meaningful could be made of the information produced (even assuming there are any unpaid lawyers on board to do it). If we were to operate on that basis one organisation would be paying its staff to pointlessly redact stuff so that others could spend time piecing the jigsaw back together again. Like trying to glue the stuff in the bottom of the shredding machine back together. And even if you pieced it together again you’d find that the witness statement of the third party that is crucial to working out whether the data subject (your litigant) is telling the truth is not included. And you are not entitled to it. Excellent.
What’s more, if the hard pressed overworked and underfunded police have a bag full of court orders for police disclosure which attract a fee, and a bag full of SARs which don’t – which do you think they are going to prioritise?
And another thing (I know, I’m getting out of breath now), what if the subject doesn’t WANT to play ball because s/he knows that the information might in fact not be all that helpful to them? Can the court effectively compel a data subject to make a request? And then to disclose whatever comes back? And even if it can what should it do if the litigant sticks the preverbial two fingers up?
This does actually really matter. Because if the LAA won’t pay the fee, the solicitors won’t do the work of gathering the police disclosure because they can’t pay the fee. It means that cases will stall. Hearings will be wasted. Decisions for children will be delayed. Costs will be run up (including ironically, costs which will be paid by the LAA as everyone has to troop back to court to formulate plan B and generally bemoan the brokenness of everything … Steam will come out of many ears. Maybe in some cases the court will decide it must forge ahead with information that really is quite important. That’s a worry too.
And it’s worse, because the guidance is backdated and not everyone has yet spotted that this is a thing. So courts and solicitors are probably still happily drafting police disclosure orders and may later find that they have no way of claiming back the sometimes quite hefty fees charged by the police. That is a big problem for some firms who run on very very slender margins and cannot absorb this stuff.
There is already a significant strain on family courts caused by the numbers of litigants in person who are involved in private children matters. In a significant proportion there is no single solicitor to pass the buck to, and in those cases either the court will have to take a punt on a litigant being capable and trustworthy enough to liaise with the police disclosure unit, sort the fee with their ex, obtain the disclosure and faithfully distribute it all to the court and other side – or it will have to coordinate the gathering of disclosure itself. And deal with the ensuing chaos when one party, too broke to afford a lawyer, also can’t pay their half of the eyewatering disclosure order (also a problem for a represented party where disclosure is partly paid for by the LAA if the unrepresented party can’t make up their half).
The legal framework, for anyone who cares to delve into it (can’t say I ever have before now), is that by means of FPR 28.2, CPR 46 has effect when considering costs in the Family Court. That rule makes clear that third parties (here, the relevant police force) should usually be indemnified as to their costs when ordered to make disclosure. Most police forces I know simply don’t comply with orders until a fee is paid – they usually write to the court if they are unable to comply because no fee has been paid, asking for more time and hopefully nudging someone into paying, the court having already indicated in its order that the fee (whatever it is) should be split (usually equally). At some point the court may well have to determine this issue under the framework of CPR 46 in order to break the deadlock if the police won’t disclose and the solicitors feel unable to pay out fees that they know won’t be reimbursed.
But it really would be better for all if that could be avoided. So. Please. Could somebody tell the LAA that when the police are ordered by the court to make disclosure that is not work that is exempt from a fee on the basis that it’s a SAR? Because it isn’t a flipping SAR. And because this guidance is going to cause even bigger problems than we’ve already got. Perhaps everybody could tell the LAA about this by issuing a C2 to bring their cases back to court to sort it out, and the ensuing disbursements and advocacy fees might focus minds. I don’t know what to suggest, there are so many small pointless battles to choose from. It’s all a bit despair-making really…
Perhaps the LAA could revise their guidance and then encourage dialogue between police forces and family courts to try and provoke some transparent benchmarking of reasonable administrative fees so that at least when family judges are making orders they can give a realistic idea to the litigants how much they are likely to have to fork out (on top of court fees, hair strand test fees and all the rest), and can tailor disclosure orders to what is really a necessary expense and what is more dispensable? And so that the overall costs to the Legal Aid pot can be kept to a sensible minimum that does not interfere with the doing of justice?
UPDATE 21 MAY 2019 :
I can’t see anything there yet but recommend that those with an interest keep an eye on the LAPG website.
Feature pic : head in hands by Alex Proimos on Flickr creative commons – thanks.