Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Use of stop and search powers by the police: recent developments

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On 10 October 2014 I wrote about the new Code of Guidance, prepared by the College of Policing on the use of stop and search powers.

The use of the new Code, called Best Use of Stop and Search, went live on 1 December 2014. It is a voluntary  scheme, but one to which all police forces in England and Wales have signed up. It is designed to ensure the police take a more intelligence-led approach to using these powers, and that they are only used when necessary. Adoption of the code is seen as part of a range of measures designed to contribute to a reduction in the overall use of stop and search, lead to better and more intelligence-led stop and searches and more effective outcomes.

Initially only thirty-five forces were fully implementing the Scheme, City of London, Derbyshire, South Yorkshire, Greater Manchester Police, Lincolnshire, South Wales and Dorset police came full on board in April 2015. Key elements of the scheme are that

  • Forces will publish their stop and search outcomes on http://data.police.uk/data/stop-and-search/, This allows members of the public to see how their force is using these powers
  • Forces can now arrange for members of the public to accompany officers on patrol, so they can see how the police use stop and search
  • Where a force receives a large volume of complaints on the use of stop and search, that force will explain to their local community scrutiny group how it is using the powers
  • Forces should reduce the number of stop and searches where there are no reasonable grounds for suspicion.

See https://www.police.uk/news/best-use-stop-and-search/

In August 2015, it was announced that policed forces would be publishing further data on how they use these powers.This means that members of the public can see the number of stop and searches, the outcomes and the proportion of these outcomes that were linked to the purpose of the search in any given police area. The data also provide a breakdown of the ethnicity and age of people stopped and searched and the time of day stops are carried out on a monthly basis.

Currently 25 forces also publish their stop and search data on the crime maps on this site. This allows residents in these areas to see where stop and searches take place, and view details about the stop and search including the reason and outcome.

See https://www.police.uk/news/stop-and-search-data-published-policeuk/

The data are available at http://data.police.uk/data/stop-and-search/

At present the data is presented in a rather raw spreadsheet format. A more narrative account would make for easier reading of the data.

Written by lwtmp

August 8, 2015 at 11:44 am

2014 in review

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The WordPress.com stats helper monkeys prepared a 2014 annual report for this blog.

Here's an excerpt:

A New York City subway train holds 1,200 people. This blog was viewed about 6,800 times in 2014. If it were a NYC subway train, it would take about 6 trips to carry that many people.

Click here to see the complete report.

Written by lwtmp

August 8, 2015 at 11:18 am

Posted in Uncategorized

Who is doing legal aid? The statistical evidence

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On 15 June 2015, I wrote a short note on the then recently published Annual Report of the Legal Aid Agency. I deplored the fact that, by comparison with its predecessor – the Legal Services Commission (whose Annual Reports not only reported on how the organisation was doing but also on the work undertaken by legal aid providers, the innovations it was seeking to introduce and the concerns it felt about the overall robustness of the scheme for delivering legal aid services), the Legal Aid Agency’s report was very narrowly focussed on corporate concerns.There was no information about the services being delivered to the public.

What information is provided is now contained in quarterly statistical reports, the most recent of which was published at the end of June 2015. These relate to the period January 2015-March 2015 (inclusive)

The headline findings were:

Criminal legal aid
1.The gradual decline of recent years in crime lower workloads has continued in the context of falling overall crime rates, and the latest quarter saw a 7% fall compared to the same period in the previous year.
2. Expenditure on crime lower has declined more than workloads, down 14% compared to the same period of the previous year.. This reflects the introduction in March 2014 of a reduction of 8.75% to the fees paid for most crime lower legal aid work.
3.In crime higher, the trend in new work entering the system has dipped in the last few quarters. The number of representation orders granted in the crown court in the last quarter was down 13% compared to the same period of 2014. Part of this reduction was due to fewer cases being in the criminal justice system.
Civil legal aid
1.The implementation of the LASPO Act in April 2013 resulted in large reductions in legal help workload and expenditure but trends have since levelled out at around one-third of pre-LASPO levels. In the last quarter new matter starts were 6% lower than in the same period of 2014
2.
Workloads in civil representation fell by a smaller proportion than legal help following the implementation of LASPO, and now appear to be stabilising at around two-thirds of pre-LASPO levels. The number of certificates granted in the last quarter was down 7% compared to the same period of the previous year.
3. After sharp falls following LASPO, the number of mediation assessments in the latest quarter was 19% up compared to the same period in 2014 and the number of starts was up by 33% over the same period.
Exceptional Case Funding
1.This quarter, the proportion of applications being granted was 18%, which is 8 percentage points lower than the previous quarter, but 11 percentage points higher than the same quarter of 2014.
The downward trends revealed here are the clear consequence of the cuts that the Government has made to the scope of the legal aid scheme.
Providers of legal aid
What this quarter’s statistical report also shows are annual figures relating to the numbers of providers of legal aid services.
These show that  in the three years from April 2012 to April 2015, there has been a significant fall in the number of provider offices for both crime and civil work. The fall has been greater for civil (down 20%) than for crime (down 11%) over this period. In the last year there was a 13% fall in civil providers and 4% reduction in crime providers.
Such figures would have led the former Legal Services Commission to ask itself whether there were enough providers in the system to provide a nationally based service, and it not what might be done to arrest the decline. Such sentiments are not aired by the Legal Aid Agency.
Indeed, it is possible for the Agency to argue that as there are still good numbers of providers applying for the various tenders for work that the Agency offers, there are still providers willing to do the work and that therefore there is no problem.
It is also possible to argue that, by comparison with most other countries, per capita spending on legal aid services remains relatively generous.
What is missing from this analysis, however, is any consideration of the age profile of legal aid providers. It may plausibly be hypothesised that many legal aid providers have been doing the work for many years, remain committed to it, and will continue to do it as long as they can. But if no or only very little new blood is coming into the legal aid sector of the legal profession, then the medium to long-term future of the sector must be in some doubt. Such doubts will be reinforced by the continued cutting of the legal aid budget – which are clearly irreversible in the foreseeable future.
I agree with Ruth Wayte, who in her podcast with me (January 2015), made the point that providing legal aid services was an interesting and very worthwhile thing to do, However, if the existing model of providing legal aid services through private practice law firms is not sustainable, perhaps these trends hide the need for a rather more profound policy debate about who should provide legal aid services. Should we be thinking about the development of other provider models?
The statistical report is at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438013/legal-aid-statistics-bulletin-jan-to-mar-2015.pdf

Written by lwtmp

August 4, 2015 at 11:23 am

Protecting Intellectual property rights: the Intellectual Property Enterprise Court

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The UK economy depends heavily on innovation – in products, design, brands. All these key economic activities are underpinned by intellectual property rights. It is essential that those who create, research and design new things and ideas are able to protect the intellectual property they have created.

There is a lot of law which is designed to do just that. But the effect of the law is undermined if those who want to assert their intellectual property rights against those who want to deny them their rights cannot do so effectively.

Of course the traditional forum for the assertion of such rights is the Court. But as is well known, going to court is an extremely expensive business. Individuals and small and medium businesses may just not be able to afford to litigate, however meritorious their case and however unmeritorious their opponents might be.

Some years ago, a first attempt to make some forms of IP litigation more affordable was put in place with the introduction in 1990 of the Patents County Court (PCC). It had a ‘special jurisdiction’ to hear proceedings related to patents and registered designs, and the ‘ordinary jurisdiction’of a County Court to hear tortious actions, such as copyright infringement, trade mark infringement, and passing off claims (though initially not all IP matters, such as certain trade mark and designs issues),

But it never worked particularly effectively and did not attract much business.In particular, the PCC was perceived as featuring a number of major ‘procedural shortcomings’ which affected its ability to hear low value claims:

  • The PCC ‘lacked any mechanisms for controlling what parties filed in a case or for keeping cases moving’
  • The PCC lacked the ability to place limits on the value of a case brought before it.
  • From 1999 onwards, the Civil Procedure Rules applied equally to the PCC and the High Court.

The cumulative effect of these three shortcomings was that litigation could be under­taken at the PCC and the High Court with the same procedures and at the same price. This was perceived as blurring the lines between the types of cases heard at the PCC and the High Court which did little to encourage SMEs to enforce their IP rights at the court.

Further as noted above, the PCC was split between ‘special’ and ’ordinary’ jurisdictions. Among other things, this split restricted to some extent the types of remedies that were available in certain cases, such as asset freezing orders and orders for search and seizure.
From 2010, a programme of reform has been put in place, designed to make it easier in particular for SMEs to access the court. The principal changes have been:
  • Procedural change,with  the introduction of active case management (ACM), early identification of the issues by the judge,and a limit on the time to be taken at trial;
  • Cap on recoverable costs: set at £50,000;
  • Cap of £500,000 damages recoverable in cases before the PCC;
  • The introduction of a small claims track to hear copyright, trade marks and passing off, databases, breach of confidence, and unregistered designs matters, but not cases concerning patents, registered designs and plant variety rights.

Finally, in October 2013, the Intellectual Property Enterprise court (IPEC) was created as a specialist court operating within the Chancery Division of the High Court of England and Wales. In accordance with CPR part 63 and Practice Direction (PD) 63 the IPEC can hear cases concerning patents, designs (registered/unregistered, UK/Community), trade marks (UK/Community),passing off, copyright, database right, other rights conferred by the Copyright Designs and Patents Act 1988 and actions for breach of confidence. It took over the work of the Patents County Court, which was abolished.

A recent research report suggests that these changes – particular on the control of costs and the increase in case management – have been effective in encouraging more SMEs to bring cases to the IPEC and have also increased the willingness of parties to proceedings to negotiate settlements to their disputes.

The researchers found:

the cumulative effect of the IPEC reforms 2010-2013 has been highly significant – in addition to an increase in the numbers of filed cases at the IPEC, the creation of the streamlined IPEC MT and SCT for litigating disputes has led to an overall increase in the amount of IP disputes that occur more generally i.e. pre-filing. In other
words, now that IP holders have the ability to utilize the IPEC – a litigation forum that caps costs and damages, and makes use of ACM (and includes the SCT option) – IP holders are more confident about entering into disputes with potential infringers, where previously they would have not felt confident enough to do so.
The information in this blog item is derived from the evaluation report commissioned by the Intellectual Property Office, and written by Christian Helmers,Yassine Lefouili and Luke McDonagh. It was published on the England and Wales Judiciary website, and is downloadable at  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/447710/Evaluation_of_the_Reforms_of_the_Intellectual_Property_Enterprise_Court_2010-2013.pdf
See also Angela Fox (2014): Intellectual Property Enterprise Court: Practice and Procedure, Sweet and Maxwell, London.

The treasure in the heart of man – making prisons work

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The new Lord Chancellor, Michael Gove, is turning out to be a very interesting appointment. Following his speech on his vision for the justice system, (see this blog 23 June 2015), he has now given a truly remarkable lecture on how prisons might be made to work more effectively in helping to rehabilitate offenders and leading them to play a constructive role in society.

Taking his inspiration from Winston Churchill, who once said ‘There is a treasure, if only you can find it, in the heart of every man’ he has noted that education must be at the heart of the prison experience.

To be fair, his predecessor said something very similar; but then went on to ban books being available to prisoners, which seemed, at the least, to be counter-productive.

Michael Gove, pursuing interested he had as Secretary of State for Education, has returned to the same theme.

At present, Gove noted

45% of adult prisoners re-offend within one year of release. For those prisoners serving shorter sentences – those of less than twelve months – the figure rises to 58%. And, saddest of all, more than two-thirds of offenders under the age of 18 re-offend within twelve months of release.

Referring to the characteristics of those in prison, he said:

Prisoners come – disproportionately – from backgrounds where they were deprived of proper parenting, where the home they first grew up in was violent, where they spent time in care, where they experienced disrupted and difficult schooling, where they failed to get the qualifications necessary to succeed in life and where they got drawn into drug-taking.

Three quarters of young offenders had an absent father, one third had an absent mother, two-fifths have been on the child protection register because they were at risk of abuse and neglect.

  • 41% of prisoners observed domestic violence as a child
  • 24% of prisoners were taken into care as children. That compares with just 2% of the general population
  • 42% of those leaving prison had been expelled from school when children compared to 2% of general population
  • 47% have no school qualifications at all – not one single GCSE – this compares to 15% of the working age general population
  • Between 20 and 30% of prisoners have learning difficulties or disabilities and 64% have used Class A drugs

His answer to this is to try to ensure that there is much more ‘purposeful activity’ in prisons so that prisoners are helped to fill in some of the gaps in their education and upbringing.

Gove continued:

In prisons there is a – literally – captive population whose inability to read properly or master basic mathematics makes them prime candidates for re-offending. Ensuring those offenders become literate and numerate makes them employable and thus contributors to society, not a problem for our communities. Getting poorly-educated adults to a basic level of literacy and numeracy is straightforward, if tried and tested teaching models are followed, as the armed forces have demonstrated. So the failure to teach our prisoners a proper lesson is indefensible.

In this context, Gove proposes that prisoners should be required to earn early release from prison by showing they have participated in and learned from appropriate educational opportunities. He want to down play, even abolish, the automatic release of prisoners halfway through their sentences – a practice which he says means that sentences imposed by judges hardly ever mean what they purport to say.

It is not clear how far detailed policy work has been undertaken to bring this vision into effect – it seems likely that it would be a policy that would require significant additional resources, even if in the long run savings could be made through the reduction It may therefore be easier said than done. But as a goal for the prison system to aim for, it makes a lot of sense.

To read the whole speech go to https://www.gov.uk/government/speeches/the-treasure-in-the-heart-of-man-making-prisons-work

Written by lwtmp

August 3, 2015 at 9:55 am

The specialist financial court of England and Wales: diagram – launch of website

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The following diagram can be seen at https://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/high-court/

It gives more information about how the recently announced specialist financial courts are structured within the High Court of England and Wales. Go to the website and click on each of the headings for more information.

The creation of this new court raises, in my mind, a more general question – should specialist courts be available only for the rich litigating over large sums of money. Other areas are arguably worthy of similar treatment  – e.g. housing. Given the investment in new technologies it might also be argued that access to specialist judges would not necessarily need to be in specific court buildings; they could be asked to deal with cases on-line via video links, for example. This may be an issue for Lord Justice Briggs to consider

Written by lwtmp

August 1, 2015 at 1:38 pm

Judicial Diversity statistics 2015

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Getting membership of the judiciary more reflective of the population as a whole is a challenge that the Judicial Appointments Commission has been grappling with for many years. The latest statistics, published at the end of July 2015, suggest that some progress is being made – more with women than with those from the black and ethnic minority communities.

The headline figures from the latest statistical report show:

 

  • Eight out of 38 Court of Appeal judges are women (21 per cent). In April 2014 the number was seven (18 per cent)
  • The number of High Court judges who are women remains at 21 out of 106, (now 108), (19 per cent)
  • The number of female Circuit Judges increased from 131 in April 2014 to 146 in April 2015 (going from 20 per cent to 23 per cent)
  • More than half (53 per cent) of the 60 court judges under 40 years of age are women.
  • In tribunals, 56 per cent of the 89 judges under 40 are women
  • The overall percentage of female judges has increased in both the Courts and Tribunals from April 2014 to April 2015 from 24.5% to 25.2% in the Courts and 43.0% to 43.8% in the Tribunals
  • The percentage of Black and Minority Ethnic (BME) judges across Courts and Tribunals is unchanged at 7 per cent
  • 12 per cent of judges across Courts and Tribunals under 50 years of age are from a BME background
  • 36 per cent of Courts judges were not barristers by professional background (down from 37 per cent). In Tribunals the figure is 67 per cent (down less than one per cent).

For further information see https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2015/

 

 

Written by lwtmp

July 31, 2015 at 3:05 pm

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