Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Improving efficiency in the criminal justice system

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Sir Brian Leveson achieved national fame for chairing his inquiry into the press. Since that work finished, he has been appointed President of the Queen’s Bench Division of the High Court. He is currently leading another inquiry – not one that is hitting the headlines of the press inquiry, but one that could be of considerable importance to the development of the English Legal System. This is the inquiry into efficiency in the criminal justice system. It started work in March 2014 and is expected to produce a first report around the end of 2014.

Its terms of reference are:

  •  ‘While taking into account:

a) existing rules and procedures for criminal cases;

b) current initiatives to improve the efficiency and speed of the criminal justice system (in particular recent changes relating to the early guilty plea scheme);

c) the need for robust case management;

d) recommendations made in previous reviews of the criminal justice system, including those not implemented at the time; and

e) Government reforms to the criminal justice system;

  • 1. To review current practice and procedures for pre-trial hearings and recommend ways in which such procedures could be:

a) further reduced or streamlined;

b) improved with the use of technology both to minimise the number of such hearings or, alternatively, conducted (whether by telephone, or internet based video solutions) without requiring the attendance of advocates.

  • 2. To review the Criminal Procedure Rules to ensure that:

a) maximum efficiency is required from every participant within the system;

and

b) any changes proposed are fully supported by the Rules.

  • 3. To report to the Lord Chief Justice within 9 months.

The Inquiry has established three sub-groups to investigate specific themes within these general terms.
Each group is tasked with identifying the problems occurring within its own ‘theme’. Each group is also, perhaps most importantly, tasked with finding a workable solution to each of those problems.

The three sub-groups are:

1) Case Management (Chaired by Professor David Ormerod);

2) Listing & IT (Chaired by Lord Justice Fulford)

3) The Trial (Chaired by Mr Justice Openshaw)

It seems that in the first instance, the inquiry is wanting to go for some relatively easy targets. Thus the website for the inquiry states:
‘In the first phase, the review will examine the extent to which better use could be made of technology – for example holding short hearings by telephone or web or video-based applications. It is expected to identify ways to reduce the number of pre-trial hearings that require defendants in custody and advocates attending court.’

But the work of the sub-group on the trial could lead to quite major changes in the ways in which criminal justice is delivered in England and Wales.

At present the progress of the Inquiry is not clear; the website is not as informative as to the progress made so far. But this blog will keep an eye out for the promised report and comment on its findings in due course.

For more detail see http://www.judiciary.gov.uk/the-president-of-the-queens-bench-divisions-review-of-efficiency-in-criminal-proceedings/

Written by lwtmp

August 25, 2014 at 9:18 am

Posted in Chapter 4, Chapter 5

Prisoners’ voting rights: latest developments

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The question of whether the UK Government’s policy, that all prisoners should be denied the right to vote while they are in jail, has received further consideration, both in the UK Parliament and in the Grand Chamber of the European Court of Human Rights.

In the 2004 case of Hirst v United Kingdom (No. 2), the European Court of Human Rights found that the UK’s complete prohibition on convicted prisoners voting was incompatible with the European Convention on Human Rights. (A number of other cases had also reach this conclusion.)

The UK Government’s position has been that the blanket ban is justified on public policy grounds. However, given the clear ruling of the European Court, in 2012 the Government – after considerable delay and with very great reluctance – did publish a draft Voting Eligibility (Prisoners) Bill. This Bill was subject to pre-legislative scrutiny by a Joint Committee of the House of Commons and the House of Lords.

In December 2013, it published a thoughtful report on the issue.

By way of background, the Committee stated:

‘Underlying our inquiry is a far-reaching debate about the United Kingdom’s future relationship with the European Court of Human Rights, the Convention system as a whole and our attachment to the rule of law.

‘In reaching our conclusions we have taken fully into account the grave implications of a refusal to comply with the Court’s judgment for the UK’s relationship with the Court and for the future of the entire Convention system. A refusal to implement the Court’s judgment, which is binding under international law, would not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow.

‘We have also considered the implications of failure to comply with the European Court’s ruling for the rule of law, which the UK has for so long upheld. The rule of law has been and should remain a fundamental tenet of UK policy. It is not possible to reconcile the principle of the rule of law with remaining within the Convention while declining to implement the judgment of the Court.’

Taking these general principles into accounnt, the Committee then considered the options relating to prosoners’ voting rights.

‘In the Committee’s view, the following considerations should be taken into account:

  • In a democracy the vote is a right, not a privilege: it should not be removed without good reason.
  • The vote is a presumptive, not an absolute right: all democratic states restrict the right to vote in order to achieve clearly defined, legitimate objectives.
  • The vote is also a power: citizens are entrusted, in voting, with an element of power over their fellow-citizens.
  • There is a legitimate expectation that those convicted of the most heinous crimes should, as part of their punishment, be stripped of the power embodied in the right to vote.
  • There is an element of arbitrariness in selecting the custody threshold as the unique indicator of the type of offence that is so serious as to justify loss of the vote.
  • There are no convincing penal-policy arguments in favour of disenfranchisement; but a case has been made that enfranchisement might assist prisoner rehabilitation by providing an incentive to re-engage with society.
  • The enfranchisement of a few thousand prisoners is far outweighed by the importance of the rule of law and the desirability of remaining part of the Convention system.’

In the light of these considerations, the Committee recommended that
‘the Government introduce a Bill at the start of the 2014-15 session, which should provide that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections; and moreover that prisoners should be entitled to apply, up to 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released.’

In February 2014, the Lord Chancellor wrote to the Committee a letter thanking them for their views and assuring them that they were under active consideration in Government. This letter was published in June 2014. No Bill was announced in the Queens Speech delivered in June 2014.

Since then, a further case has been determined by a Chamber of the European Court of Human Rights. In Firth and others v United Kingdom, decided in August 2014, it was held that – failing a legislative response to its earlier rulings – the United Kingdom remained in breach of the European Convention on Human Rights.

However the Chamber refused to award any damages to the applicants, on the grounds that this ruling was enough. The decision also included a dissenting judgement from JUDGE NICOLAOU, who did not think that there had been a breach of the European Convention. In another dissenting judgement, JUDGE WOJTYCZEK indicated his view that the line of decisions developed by the European Court might not be correct and in his view the whole issues should have been revisited by the Court.

There is no doubt that there remains in the UK – and perhaps in other states in the Council of Europe – a view that prisoners should not have the vote. However, there is also no doubt that, pending any revision of the Court’s approach – the present position of the UK Government is at odds with the European Convention as interpreted by the European Court on Human Rights. It may be anticipated that any further response from the UK Government will be further delayed, especially in the light of the resewrvations expressed by two of the judges involved in the latest case.

For further information, see report of the Joint Committee at http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/10303.htm;
the report of the Grand Chamber of the European Court is at http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-146101%22]}

Written by lwtmp

August 21, 2014 at 3:51 pm

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

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