Ms Caroline Counihan:

I very much thank the committee for this opportunity to address it on the general scheme of the criminal justice (legal aid) Bill 2023. Most of what I will say is confined to head 47. The first and most important thing from our point of view is that this is a great opportunity to extend the right to legal advice to victims of specified domestic violence-related offences. These victims often cannot afford to pay a private solicitor and cannot always access legal advice from a pro bono source. Throughout the lengthy criminal justice process victims need to be able to get answers to their legal concerns as they arise. This need may be particularly acute for victims of domestic violence-related offences, where issues such as witness intimidation and retaliation may well arise and need to be addressed swiftly.

However, we suggest this is a drafting challenge. It might be coped with very easily by adopting and adapting the formula used in section 40 of the Domestic Violence Act 2018 to define a “relevant offence”, in order to capture all the principal domestic violence-related offences. We have set out how this might be worded in appendix 2 of our opening statement. In addition, we suggest there are a couple of recently created offences, sexual in nature and capable of causing intense alarm, distress and harm, which might very well come under head 47. These are behaviours that are common in the context of a more widespread pattern of domestic violence and abuse. They are: offences contrary to sections 2 and 3 of the Harassment, Harmful Communications and Related Offences Act 2020, which relate to distributing, publishing and recording intimate images without consent and threatening to do so; and offences contrary to section 45 of the Criminal Law (Sexual Offences) Act 2017, particularly section 45(3), which relates to extensive conduct of a sexual nature and can be used to cover a wide range of unwanted sexual behaviours, such as upskirting or downblousing.

We have a couple of final observations. At this point, it might be very useful to clarify the drafting in a couple of places of the proposed new section 26(3)(a) of the Civil Legal Aid Act 1995. That section should spell out clearly and unambiguously that the right to legal advice for a victim is not subject to a means test, without the need to consult other parts of section 26 of the 1995 Act. We very much approve of the idea that legal advice should be available regardless of whether a formal complaint is ever made, and that it should be available at any stage of the criminal justice process, but both these concepts are run together in a single sentence in the draft Bill. With great respect, we suggest it might be clearer to separate these two aspects, for instance, by stating, first, that legal advice is available to victims of the listed offences at any time after the offence and then, in a separate clause, qualifying that statement by stating that this right obtains even if there is no criminal investigation or prosecution in being at the time the advice is sought.

I see I am out of time so I will now keep quiet. I thank members for their attention.