Following a recommendation in the Family Justice Review, the Government announced at the beginning of November 2013 that the Children and Family Court Advisory and Support Service (Cafcass) will transfer to the Ministry of Justice in April 2014.It is currently sponsored by the Department for Education.
Cafcass looks after the interests of children involved in family court cases and helps over 145,000 children and young people who are involved in divorce or separation and care or adoption cases every year. Cafcass is the voice of the children in family courts and helps ensure that children’s welfare is put first during proceedings.
No doubt it is hoped that by bringing the service within MoJ, this will support the wider programme of reform of the family justice system.
Not exactly like the OJ Simpson trial in the US, but a very small next step has been taken in giving the media direct access to proceedings in Court. From 5 October 2013, five courtrooms at the Royal Courts of Justice – which houses the Court of Appeal – have been wired to allow broadcasting to take place.
Cases will not be shown in full. Rather, the broadcasters – BBC, Sky, ITV and Press Association – will be able to film proceedings from only one court room on any given day. They will agree which courtroom and will inform the judiciary the day before.
They will be able to show the footage for the purpose of news reporting only – i.e. not streamed live. All costs associated with filming within the Court of Appeal have been met by the broadcasters involved.
Advocates’ arguments, and the judges’ summing up, decision and (in criminal cases) sentencing remarks may be filmed.
Victims, witnesses and defendants will not be filmed.
In general I welcome this modest development. I do hope that when further decisions about broadcasting proceedings are taken, consideration will be given to alternative procedures, like tribunals or other forms of alternative dispute resolution, which the ordinary citizen is far more likely to encounter in real life.
Further information is at https://www.gov.uk/government/news/landmark-day-for-justice-television-broadcasting-in-courts-goes-live
One poorly understood development in the civil litigation field is that of litigation funding. This refers to the practice of the provision of financial resources to a claimant so that litigation can proceed. Litigation Funding is the arrangement through which a litigant obtains the financing of all or part of its legal costs from a private, commercial Litigation Funder who has no direct interest in the proceedings. In return, and assuming the case is won, the funder will receive an agreed share in the proceeds. If the claim is, however, unsuccessful, the funder will lose its money and nothing will be owed to it by the litigant.
The share in the proceeds is negotiated between the funder and the litigant. This financial reward of the funder can take a variety of forms. It typically consists of either a percentage of the damages recovered, or a multiple of the amount advanced by the funder, or combination of these options. Litigation Funding provides a cost effective financing tool that must be taken into consideration by solicitors when planning the funding of a case. Solicitors will have to bear this in mind when advising on this issue.
The Litigation Funding market in the UK has, in the last decade, experienced increased mainstream attention due to its potential to provide a valuable means for access to justice, particularly for SMEs.
However, Litigation Funding is not a substitute for legal aid. This financing tool is currently limited to commercial cases of a high value. It is not suitable for consumer cases, personal injury cases or generally claims that do not carry a sufficiently high level of damages.
For more information go to http://associationoflitigationfunders.com/
Despite its relative newness, there have been complaints that the current legal services regulatory landscape is too complex and burdensome. These complaints have been raised by stakeholders through a number of routes, including the Cabinet Office’s Red Tape Challenge.To obtain more information about the challenges legal service providers face the Ministry of Justice has decided to conduct a review of the legal services statutory framework.
The review will consider what could be done to simplify the regulatory framework and reduce unnecessary burdens on the legal sector while ensuring there is still appropriate oversight. It will consider the full breadth of the legislative framework, covering at least 10 pieces of primary legislation and over 30 statutory instruments.
The Press Release announcing the review states that the MoJ are also open to comments on the interaction between the legislative framework and the detailed rules and regulations of the approved regulators, licensing authorities and the Legal Services Board and Office for Legal Complaints, although these are not owned by MoJ.
The first stage of the review is a ‘call for evidence’ from stakeholders. The evidence provided to the MoJ will be analysed to identify potential ways in which the framework might be simplified. MoJ are interested in hearing legal service providers’ concerns with, and ideas for reducing, regulatory burdens and simplifying the legal services regulatory framework.
The closing date for the call for evidence was 2 September 2013. There are no indications of what the outcome of this process will be, but developments will be noted in later blogs on this site.
Following the consultation on Reforming Judicial Review, launched in December 2012, and despite widespread opposition, in May 2013 it was announced that the Government would:
• Introduce a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down.
• Ban people from seeking a hearing in person if their initial written application has been ruled as totally without merit.
• Halve the time limit for applying for a judicial review of a planning decision from three months to six weeks.
• Reduce the time limit for applying for a judicial review of a procurement decision from three months to four weeks.
The first of these changes is awaiting implementation. The other changes came into effect in July 2013. In addition the Government is contemplating separate proposals which would see the fee for a Judicial Review application increase from £60 to £235.
In September 2013, the Government published a further consultation paper on the reform of judicial review.
It noted that the bulk of immigration and asylum cases would no longer go to the Administrative Court, but to the Immigration and Asylum Chambers in the Tribunals Service.
The paper argues that unreformed judicial review has three negative impacts:
• It inhibits economic development by causing delay to major projects;
• It is used by campaign groups as a political tool; and
• It adds to the cost of implementing executive decisions.
Not surprisingly each of these arguments is hotly disputed by the opponents of reform.
The new consultation requests views in six areas:
• planning challenges, and whether these should be sent to a new Planning Chamber within the Upper Tribunal, with specialist planning judges;
• the question of standing, i.e. who is entitled to apply for judicial review. It is noted that any changes will have to reflect the Aarhus Convention, which gives organisations who promote environmental issues and certain individuals the right to make challenges on environmental issues;
• how the courts deal with minor procedural defects, and whether this can be improved;
• the use of judicial review to resolve disputes relating to the public sector equality duty;
• whether the current arrangements for costs provide the right financial incentives, including legal aid; and
• the scope for making greater use of “leapfrogging” orders, so that appropriate cases can move quickly to the Supreme Court, cutting out the Court of Appeal.
Announcements on the outcome of these proposals will be published in late 2013-early 2014.
Source: adapted from https://www.gov.uk/government/news/specialist-planning-court-proposed-to-boost-uk-business and https://consult.justice.gov.uk/digital-communications/judicial-review
The views of the Secretary of State on the use of JR by pressure groups can be found at http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html
Broadcasting of some court proceedings has moved a step forward, following approval of plans to allow filming of the legal arguments and the final judgments in criminal and civil cases in the Court of Appeal.
Subject to the approval of the House of Lords, the Government hopes that this will start at the end of October 2013.
The government plans to permit filming to allow the broadcast of sentencing remarks in the Crown Court. However victims, witnesses, offenders and jurors will continue to be protected, and will not be part of broadcasts. The date for the launch of this has not yet been announced.
This will, of course, supplement the broadcasting of cases in the Supreme Court which is already available.
As noted in the book, Chapter 5, there is a variety of ways in which cases may be disposed of without a court hearing – generically known as out-of-court disposals.
Since 2013, the Ministry of Justice has taken responsibility for policy developments in relation to out-of-court disposals. In April 2013, it issued guidance on the use of simple cautions; this was accompanied by a review of simple cautions, the results of which were published in September 2013. The Justice Secretary announced that, going forward, simple cautions would no longer be available for indictable only offences and certain serious either way offences involving possession of a knife, offensive weapon or firearm in a public place, offences involving child sex abuse or child pornography, and supplying Class A drugs. Exceptions will be made in certain cases and where a senior officer, as well as CPS if necessary, approves of their use.
In addition, the Secretary of State announced a more general review of the use of out-of-court disposals.
For links to current guidance on out-of-court disposals, see http://www.justice.gov.uk/out-of-court-disposals