In 2014, a review of criminal advocacy services by Sir Bill Jeffrey was published. In his report he pointed out some harsh truths for the legal professions:
- Recorded and reported crime are down.
- Fewer cases reach the criminal courts.
- More defendants plead guilty, and earlier than in the past.
- Court procedures are simpler.
- There is substantially less work for advocates to do.
- Its character is different, with more straightforward cases and fewer contested trials.
- In the publicly funded sector (86% of the total), it pays less well.
- There has been a marked shift in the distribution of advocacy work in the Crown Court between the two sides of the profession. There are many more solicitor advocates than there were in the years following the liberalisation of rights of audience. Between 2005-06 and 2012-13, the percentage of publicly funded cases in which the defence was conducted by a solicitor advocate rose from 4% to 24% of contested trials and from 6% to 40% of guilty pleas. Both figures are on a rising trend.
- In 2012-2013, Crown Prosecution Service (CPS) in-house lawyers led the prosecution in approximately 45% of Crown Court trials.
He noted that there would be serious implications for the criminal justice system, if current trends towards the use of solicitor advocates and away from the criminal Bar continue. Sir Bill was clear that it would be neither feasible nor desirable to wind the clock back on rights of audience. He found that solicitor advocates are a valuable and established part of the scene. But if the Bar’s share of the work continues to decline, as the current generation moves to retirement, the supply of top-end advocates to undertake the most complex trials would be in doubt.
This stark assessment is the background to a new consultation, launched in October 2015 by the government, setting on a number of measures it argues are necessary to enhance the quality of advocacy in criminal cases.
The paper sets out two principal reasons why it feels it must undertake this consultation:
- The Government has a responsibility to ensure the delivery of an efficient, fair and effective justice system in which the public has confidence and therefore has a legitimate interest in making sure that good quality criminal advocacy services are available to those that need them.
- The government, via the Legal Aid Agency (LAA), is also the largest single procurer of criminal defence advocacy services, and has a responsibility to ensure that, where such advocacy services are being paid for with public money, they are of a good quality.
The specific proposals on which the Government is seeking views can be summarised as follows:
- the proposed introduction of a panel scheme – publicly funded criminal defence advocacy in the Crown Court and above would be undertaken by advocates who are members of this panel;
- the proposed introduction of a statutory ban on referral fees in criminal cases;
- how disguised referral fees can be identified and prevented; and
- the proposed introduction of stronger measures to ensure client choice and prevent conflicts of interest.
The period of consultation expires at the end of November 2015. If these, or measures similar to what is proposed go ahead, they will have a profound impact on the ways in which criminal practitioners work and the way in which the Legal Aid Agency operates.
For Sir Bill Jeffrey’s report go to https://www.gov.uk/government/news/advocates-must-adapt-to-a-changing-landscape.
For the consultation go to https://consult.justice.gov.uk/digital-communications/enhancing-the-quality-of-criminal-advocacy
After some delay, the Legal Ombudsman acquired jurisdiction to deal with complaints against Claims Management Companies in January 2015.
On 5 November 2015, Simon Tunnicliffe, the Legal Ombudsman’s Head of Claims Management Complaints, reported in an interview that they have had 9,000 enquiries about claims management companies since they widened their remit to consider complaints about these companies, in addition to their previous remit. Many of the complaints concern the amount of money retained by CMCs, and not passed on to the original claimant, e.g. for personal injury.
Further information about the work of the Legal Ombudsman in relation to CMCs is available at http://www.legalombudsman.org.uk/helping-cmcs/#publications
The concept of unbundling legal services is still relatively new, but has already been the subject of an important research paper from the Legal Services Board, published in September 2015.
Unbundling is where a package of legal services is separated into parts and the work shared between the consumer and lawyer. An example of unbundling is a consumer preparing the evidence and the court bundle themselves and then directly instructing the barrister who represents the consumer at the court hearing.
The Press release on the research states:
This research paints a picture of law firms beginning to respond to consumer demand and changes in their commercial environment by developing affordable alternatives to full-service representation. It suggests that:
– reduced cost and the opportunity to exercise greater control over the case were the primary reasons why those consumers interviewed chose to unbundle
– unbundling tended to be identified as an option during the initial interview between a consumer and their legal advisor rather than being actively marketed to potential clients. As a result, while some consumers are making savings on their legal bills, this development is not benefiting large numbers of people who are currently put off approaching lawyers in the first place due to cost concerns
– no regulatory barriers to unbundling were identified, but some concerns were raised around assessing consumer capability, giving advice based on limited information and ensuring there is clarity on agreements about the scope of work, and
– members of the judiciary felt that if full representation could not be obtained then, as a starting point, some legal advice and assistance ought to be beneficial. They also echoed some potential difficulties with unbundling identified by providers and felt it important that advice and assistance is given by regulated advisers.
There is a clear indication that the Legal Services Board would like to see unbundling develop further.
The Co-operative Legal Services is an example of a legal service provider who do make clear in their advertising that they are offering unbundled legal services, leaving the clients to choose which parts of the service they wish to pay for. (Of course clients can also go for a full legal service.)
For further details on the research go to http://www.legalservicesboard.org.uk/news_publications/LSB_news/PDF/2015/20150916_LSB_Publishes_Report_Into_The_Unbundling_Of_Legal_Services.html
For Co-operative Legal Services go to https://www.co-oplegalservices.co.uk/
On 1 August 2015, I noted the decision to create a new financial list and set out a diagram explaining how this would operate in the High Court.
In October 2015, further guidance on the financial list was published, and a formal event to launch the new list was held on 21 October 2015.
It will be overseen by the Chancellor of the Chancery Division and the Judge in charge of the Commercial Court of the Queens Bench Division. Cases will be heard in the Rolls Building in London.
This is an important strategic move by the judiciary, in collaboration with those groups of the legal profession who deal with these major financial cases, to try to ensure that London remains the litigation forum of choice for these kinds of cases.
One of the interesting points that was made at the time of the launch was the extent to which judicial decisions emanating from these arrangements will (or will not) align with rulings from Financial Regulators.
To read the guide, go to https://www.gov.uk/government/publications/financial-list-guide
To read some remarks of the Lord Chief Justice on the launch of the list go to https://www.judiciary.gov.uk/announcements/financial-list-press-release/
Constitutional conventions are an important features of the UK constitutional settlement. As the conventions are not exactly rules in the normal sense, it can on occasion be hard to know what they are and when they apply. In 2011, the then Coalition Government published a statement of Constitutional Conventions that had been drafted by the then Secretary to the Cabinet Sir Gus O’Donnell. Although the work had been started at the request of the former Prime Minister, Gordon Brown MP, it was thought to be particularly helpful to guide the Coalition Government, led by David Cameron and Nick Clegg. The book was published in October 2011.
Recent events in the House of Lords – where a draft Statutory Instrument (which was designed, as part of the Government’s Welfare Reform plan, to cut tax credits to those in work) were not approved by a majority of the Lords, despite being approved in the House of Commons – have thrown a new spotlight on these conventional rules. (They have also reopened the wider issue of the composition of the House of Lords and whether or not it should become an elected body.)
The specific issue – relating to the approval of the Statutory Instrument already approved in the House of Commons – is to be subject to a review led by Lord Strathclyde.
This incident emphasises the point that while the process of government usually ticks over in a fairly ordered way, the lack of detail written rules can on occasion lead to considerable controversy.
The Cabinet Manual setting out the main laws, rules and conventions affecting the conduct and operation of government is available at https://www.gov.uk/government/publications/cabinet-manual
It is some time since I wrote in this blog about restorative justice. (See Nov 2012 and April 2013).
The leading charity in the field, the Resorative Justice Council, has just (October 2015) published an information pack about restorative justice.The pack has been developed with the help of the Magistrates’ Association, the Ministry of Justice and Her Majesty’s Courts and Tribunals Service.
It is designed to help magistrates, crown court judges and court staff to understand restorative justice, the benefits it can bring to all parties involved in a crime and the role that the judiciary can play in the process.
As well as providing information on restorative justice and its use in sentencing, the pack features a checklist for restorative justice, an article about why the judiciary can have confidence in the approach, and the voices of victims and offenders who have taken part in a restorative justice process.
The pack can be downloaded free from https://www.restorativejustice.org.uk/resources/restorative-justice-and-judiciary-information-pack
Originally posted on UK Administrative Justice Institute:
This post summarises the findings of a study into the effects of judicial review (JR) in England and Wales which was funded by the Nuffield Foundation and undertaken by the Public Law Project and the University of Essex, with Maurice Sunkin as the Principal Investigator.
By Varda Bondy, Lucinda Platt and Maurice Sunkin
The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences concerns the use and effects of judicial review (JR) in England and Wales, primarily from a claimant perspective. Judicial review provides a route for obtaining legal redress against public bodies, including in human rights cases, when no other suitable remedy is available. It also provides a means by which public bodies may be held accountable for the legality of their actions. In these ways JR gives practical effect to the rule of law.
- builds on previous work to throw…
View original 778 more words