Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Law Commission – 12th Programme of Law Reform

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The Law Commission published its 12th Programme of law reform in July 2014.

Nine projects have been accepted into the programme.

Two of these are specific to the Welsh Government:

  1. The form and accessibility of the law applicable in Wales: an Advice to Government, considering ways in which the existing legislation can be simplified and made more accessible, and how future legislation could reduce problems.
  2. Planning and development control in Wales:  a law reform project to recommend a simplified and modernised planning system for Wales.

In terms of potential impact on the English Legal system, the most significant it a project on

  • Sentencing procedure; a law reform project to recommend a single sentencing statute.

The rest of the projects relate to important areas of substantive law.

  1. Mental capacity and detention, a  project to consider how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes. This follows sharp criticism of the present state of the law by Justices of the Supreme Court
  2. Land registration,  a project that will comprise a wide-ranging review of the Land Registration Act 2002 (itself a Law Coimmission Act), with a view to amendment where elements of the Act could be improved in light of experience with its operation.
  3. Wills, a law reform project to review the law of wills, focusing on mental capacity and will making, formalities that dictate how a will should be written and signed, and how mistakes in wills can be corrected.
  4. Bills of sale, is a law reform review of the law relating to “bills of sale” loans, including logbook loans.

There are also two scoping exercises designed to see whether detailed proposals for law reform should be developed. These are:

  • Firearms: a scoping exercise to consider the enactment of a single statute containing modified and simplified versions of all firearms offence.
  • Protecting consumer prepayments on retailer insolvency: a scoping review to assess the scale of the problem and consider was to increase protection for consumers.

In addition, the Law Commission will continue to work on projects brought forward from the 11th programme that are still to be completed.

Details can be found at http://lawcommission.justice.gov.uk/areas/12th-programme.htm

Written by lwtmp

August 1, 2014 at 3:30 pm

Posted in Chapter 4, Chapter 5

Tagged with ,

What has happened to Legal Aid?

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The big changes to the legal aid scheme, designed to cut public expenditure on legal aid, were introduced in April 2013, following enactment of LASPO 2012.
The first Annual Report of the Legal Aid Agency has now been published. This provides more information on the direct impact this has had on the amount of legally aided work that has been undertaken in the first 12 months since the Act came into effect.

In summary:

• Total acts of assistance and spend – The LAA continued to fund advice, assistance and representation for eligible individuals across England and Wales by funding 1.8 million acts of assistance overall (Civil Legal Aid and Criminal Legal Aid). [2012-13: 2.3 million]. Total net expenditure was £1,709.5 million. [2012-13: £1,916.7 million].
• Number of providers – As at 31 March 2014 the LAA held 1,435 civil and 1,519 crime contracts [March 2013:1,899 civil and 1,599 crime contracts].
• Civil Legal Aid – The LAA funded 0.50 million Civil Legal Aid acts of assistance overall [2012-13: 0.93 million, a 46% decrease in the year]. Civil Legal Aid net expenditure was £800.9 million [2012-13: £941.6 million].
• Criminal Legal Aid – The LAA funded 1.32 million Criminal Legal Aid acts of assistance [2012-13: 1.36 million, a 3% decrease in the year]. Criminal Legal Aid spend was £908.6 million [2012-13: £975.1 million].

What these figures show is the dramatic impact the cuts in Legal Aid have had on civil legally aided matters. There have been huge falls, both in the numbers of acts of assistance, and in the numbers of those with civil legal aid contracts with the Legal Aid Agency. By comparison, criminal legal aid has suffered less, though well publicised actions in particular by the Bar indicate that the fees payable for legally aided work in crime have been subject to considerable constraint.

Lawyers will of course deplore these trends. But it has to be said that there is no indication of any political will to restore funding to the legal aid scheme. This appears to be the start of a new reality, a context in which rather different forms of service delivery to the public will have to be devised.

The LAA Annual report is available at https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2013-to-2014

Written by lwtmp

July 31, 2014 at 10:09 am

Supporting heroes?

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In my book, I consider the question whether there is a ‘compensation culture’. Over recent years, it has been frequently argued that we have become too keen to resort to litigation when things go wrong – on the basis that bad events are other people’s’ fault -, rather than accept that sometimes one is the victim of bad luck. I argue that this view should be challenged – on the basis that research evidence shows that huge numbers of people with potential legal claims in fact do nothing about them – either through ignorance, fear of costs, reluctance to go to lawyers etc.

At the same time, however, advertising campaigns encouraging people to claim when they have had accidents are perceived as encouraging the bringing of unmeritorious proceedings, which in turn can add to insurance costs.

The Government has recently come to the view that the present state of the law has led to people thinking that they should not intervene in emergencies, or run public events, or lead school trips in case they get sued for negligence if things go wrong. And insurance companies have been seen to be charging high premiums which have led to events not taking place.

The Government’s response is the publication of the rather imposingly named Social Action, Responsibility and Heroism Bill 2014-15. It is actually a very short Bill, but one which, if enacted, will require judges to make some rather teasing judgements. Indeed, the outcome of the Bill may be to encourage, rather than deter, the bringing of actions.

The Bill provides that when dealing with negligence claims or claims for breach of statutory duty the courts should to consider:

  • whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members (clause 2) ;
  • whether the person , in carrying out the activity giving rise to the claim , demonstrated a generally responsible approach towards protecting the safety or other interests of others (clause 3) ;
  • whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to his or her own safety or other interests (clause 4).

For further information see https://www.gov.uk/government/news/grayling-law-must-protect-everyday-heroes
See also http://public-scrutiny-office.org/bills/2014-2015/social-action-responsibility-and-heroism

Written by lwtmp

July 30, 2014 at 4:10 pm

Dealing with serious crime: the Serious Crime Bill 2014

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The National Crime Agency started work on 8 October 2013. (See blog for that date).

Its launch was accompanied by the publication of a Government paper setting out a strategy for dealing with serious and organised crime.

The paper defined organised crime as including:

  • drug trafficking,
  • human trafficking, and
  • organised financial crimes, counterfeiting, organised
    acquisitive crime and cyber crime.

The paper stated that the strategy also deals with serious crime which demands a national coordinated response, notably other fraud and child sexual exploitation.

The paper out reasons why dealing with organised crime is important.

” Organised crime is a threat to our national security. It costs the United Kingdom at least £24 billion each year, leads to loss of
life and can deprive people of their security and prosperity. Crime groups intimidate and corrupt and have a corrosive impact on
some communities. Cyber crime undermines confidence in our communications technology and online economy. Organised
immigration crime threatens the security of our borders. We regard human trafficking as a pernicious form of modern slavery.
Financial crime can undermine the integrity and stability of our financial markets and institutions.

Overseas, organised crime undermines good governance and the stability of countries of strategic importance to our national security. Organised crime groups overseas can facilitate or engage in terrorism.”

To counter this, the Government states that the aim of its strategy is:

“to substantially reduce the level of serious and organised crime affecting the UK and its interests.”

The strategy uses the framework developed for counter-terrorist work. It has four components:

  • prosecuting and disrupting people engaged in serious and organised crime (Pursue);
  • preventing people from engaging in this activity (Prevent);
  • increasing protection against serious and organised crime (Protect); and
  • reducing the impact of this criminality where it takes place (Prepare).

The Government has undertaken to publish annual reports setting out the extent to which these objectives have been achieved.

Looking at these issues from the perspective of the English Legal System it seems clear that the balance between policing activity being delivered locally to local communities – which has until recently been the predominant model – and being delivered nationally to deal with new forms of criminality is bound to change. This shift is not a question that has been widely discussed in public media.

In June 2014, the Government has started the process of giving the strategy more legal backing through the Serious Crime Bill 2014. It will be some months before this reaches the statute book. But in outline the Bill seeks to

  • Improve the Government’s ability to recover criminal assets by amending the Proceeds of Crime Act 2002.
  • Amend the Computer Misuse Act 1990 to ensure sentences for attacks on computer systems fully reflect the damage they cause.
  • Create a new offence targeting people who knowingly participate in an organised crime group.
  • Extend the scope of Serious Crime Prevention Orders and gang injunctions.
  • Establish new powers to seize, detain and destroy chemical substances suspected of being used as cutting agents for illegal drugs.
  • Clarify the Children and Young Persons Act 1933 to make it explicit that cruelty which is likely to cause psychological harm to a child is an offence.
  • Create a new offence of possessing ‘paedophilic manuals’.
  • Extend the extra-territorial reach of the offences in the Female Genital Mutilation Act 2003 (and the equivalent Scottish legislation) so that they apply to habitual as well as permanent UK residents.
  • Allow people suspected of committing an offence overseas under sections 5 (preparation of terrorist acts) or 6 (training for terrorism) of the Terrorism Act 2006 to be prosecuted in the UK.

For further details on the strategy, see https://www.gov.uk/government/publications/serious-organised-crime-strategy.
For details on the Bill, see https://www.gov.uk/government/news/new-powers-to-tackle-serious-and-organised-crime-announced

Written by lwtmp

July 30, 2014 at 3:02 pm

Family Justice: ensuring the voice of the child is heard

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Family law places great emphasis on the child. Ensuring that the interests of the child are addressed is central. But how can these issues be addressed if, in the course of proceedings – whether in court or mediation – those taking decisions do not hear directly from the children who are going to be affected by those decisions?

In theory the child’s interests are represented by CAFCASS (the Children and Family Court Advisory and Support Service). But it has been recognised that however well staff in CAFCASS work, they may not always fully understand the child’s perspective. In 2006, CAFCASS established the Family Justice Young People’s Board (FJYPB) – a group of around 40 children and young people who have been through the family justice system or who have an interest in children’s rights and the family courts.

The Board has recently been developing proposals to ensure that the practice and procedure of judges and mediators gives children the opportunity to be heard directly.

In a recent speech to the FJYPB, Simon Hughes, Minister in the Ministry of Justice, announced that the Government would seek to implement proposals for all children over the age of 10 to be heard, both in couirt and in mediations. The precise details of how this will happen still need finalising, but this seems to be a step to which the President of the Family Court, CAFCASS and mediators are committed to.

For more details, see https://www.gov.uk/government/speeches/simon-hughes-speech-at-the-voice-of-the-child-conference.
See also http://www.cafcass.gov.uk/about-cafcass/how-we-are-organised/family-justice-young-peoples-board.aspx

Written by lwtmp

July 30, 2014 at 10:44 am

Criminal Injuries Compensation scheme: guidance

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In March 2014, the Government published guidance on the operation of the revised Criminal Injuries Compensation Scheme.

This can be seen at https://www.gov.uk/criminal-injuries-compensation-a-guide

Written by lwtmp

June 2, 2014 at 4:44 pm

Court fees: the changes

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Accompanying the creation of the single Family Court and the single County Court, the Government moved swiftly to introduce new court fees, adopting – for the most part – the principles it set out in its consultation document published in late 2013 (see blog March 2014).

The Government has acted to introduce new fees which, broadly, increase as a case proceeds – with court hearings incurring rather higher fees than hitherto. Those interested in the details can see the new fees set out in https://www.gov.uk/government/consultations/court-fees-proposals-for-reform.

Interestingly, the announcement of these increases was made on the same day that a research report was published which suggested that on the whole litigants thought the fee levels were reasonable and would not have been deterred from bringing a case simply because of the fees charged. See https://www.gov.uk/government/publications/the-role-of-court-fees-in-affecting-users-decisions-to-bring-cases-to-the-civil-and-family-courts.

Time will tell whether the new fees act as a deterrent to access to justice; intuitively it could be anticipated that there would be some effect.

Written by lwtmp

June 2, 2014 at 4:33 pm

Posted in Chapter 10, Chapter 8

Tagged with ,

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