Archive for the ‘Chapter 5’ Category
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.
• 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
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
An issue which has received a lot of public attention in recent months is the way in which some witnesses in criminal trials are required to give their evidence. In a pilot experiment in three courts, including Kingston Crown Court, the most vulnerable victims and witnesses are able to give their evidence and be cross-examined away from the intense atmosphere of a live courtroom, in an attempt to spare them from what could be aggressive questioning in front of jury, judge and their alleged attacker.
People who may find it difficult to give their best possible evidence in a courtroom environment and all child victims will be considered for pre-trial cross-examination. This allows them to give their evidence and be cross-examined by both prosecution and defence barristers ahead of the trial, in front of a judge. The video recording is then shown to the jury as part of the trial. Previously victims could have been subject to lengthy, stressful questioning by multiple barristers in view of jurors and the public gallery.
This initiative follows the recent review of the Victims’ Charter.
If the pilot works, the new procedure will be rolled out across the country. This will be particularly relevant to cases involving the abuse of children and victims of rape and other assaults.
The Criminal Justice and Courts Bill, published early in 2014, is a complex measure which proposes a significant number of changes to the law. The bulk of these relate to the criminal justice system, though the Government’s plans to change judicial review are also included in the Bill. The headline contents of the Bill are:
- New Offences of Juror Misconduct: To reflect the changes to modern society, four new offences of juror misconduct will be introduced – researching details of a case (including any online research), sharing details of the research with other jurors, disclosing details of juror deliberation and engaging in other prohibited conduct.
- New Criminal Offence of being Unlawfully At Large: Criminals who go on the run will face an additional sentence of up to two years. Offenders who have been released from the custodial part of their sentence and are recalled to custody because they have breached their strict licence conditions but do not surrender to custody are unlawfully at large. Once apprehended they may serve the remainder of their sentence but currently there is no additional punishment for these offenders.
- Ending Automatic Early Release for Paedophiles and Terrorists: Criminals convicted of rape or attempted rape of a child or serious terrorism offences will no longer be automatically released at the half-way point of their prison sentence. Under proposals in the Bill they would only be released before the end of their custodial term at the discretion of the independent Parole Board. Alongside this, no criminals who receive the tough Extended Determinate Sentence (EDS) will be released automatically two-thirds of the way into their custodial term. This means that many of them will end up spending significantly more time in prison. In total these changes will affect about 500 offenders per year.
- Clampdown on Cautions for Serious and Repeat Offenders: Criminals will no longer be able to receive a caution for the most serious offences such as rape and robbery and for a range of other serious ‘either way’ offences, for example possession of any offensive weapon, supplying Class A drugs or a range of sexual offences against children. For less serious offences, criminals will also no longer be able to receive a second caution for the same, or similar, offence committed in a two year period. In total these changes are likely to affect around 14,000 offenders a year.
- Life Sentences for More Terrorist Offences: The maximum sentence for three terrorist offences – weapons training for terrorist purposes, other training for terrorism and making or possession of explosives, will be increased to a life sentence. Terrorists convicted of a second very serious offence will face the ‘two strikes’ automatic life sentence.
- Charging Offenders for Court Costs: Convicted criminals will be made to pay towards the cost of running the country’s criminal courts. All convicted adult offenders will have to pay a charge; the money will be reinvested back into the running of the courts.
- Single Magistrates to Handle Low-Level Cases: More than three quarters of a million low-level ‘regulatory cases’, such as TV licence evasion and road tax evasion, may be dealt with by a single magistrate rather than a bench of two or three. Legislation will allow a procedure to enable some summary-only, non-imprisonable offences to be dealt with by a single magistrate, supported by a legal adviser, away from traditional magistrates’ courtrooms.
- Banning Violent Rape Pornography: Possession of explicit pornography that shows images depicting rape will become illegal. It is currently illegal to publish this material and the new legislation will close a loophole to also prevent possession.
- Overhauling Detention of Young Offenders : The rehabilitation of young offenders will be overhauled by introducing secure colleges. Led by a principal, the secure college will put education at the heart of youth rehabilitation. The legislation follows the announcement on 17 January that a pathfinder secure college will be opened in the East Midlands in 2017.
- Increase Juror Age Limit : People aged 75 and under will be able to sit as jurors in England and Wales. The move is part of a drive to make the criminal justice system more inclusive and to reflect modern society by giving more people the opportunity to serve on a jury. The current age limit is 70.
Finally, Judicial Review Reform: The Government argues that economic growth will be supported by measures to speed up the Judicial Review process and reduce the number of meritless claims clogging the system. This argument is fiercely contested. It will be the subject of a separate blog.
From June 2013, there has been a procedure in place allowing victims to ask the CPS to review any decision not to take a case forward, either by not charging a person or by continuing procedures. In most cases, this involved a process of reviewing the initial decision by a more senior officer within the CPS.
An enhanced procedure is available for certain classes of victim:
- Victims of the most serious crime
- Persistently targeted victims
- Vulnerable or intimidated victims
Their rights are now set out in a revised version of the Victims’ Code that was published in December 2013.
A detailed summary of the procedure is at http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/, which also has a link to the full Victims’ Code.
I have already noted that the Director of Public Prosecutions was consulting on the possible use of Deferred prosecution Agreements – designed in particular to assist in the investigation of serious fraud. In February 2014, the DPP published the Code of Practice that relates to DPAs.
DPAs involve companies reaching an agreement with a prosecutor, where the company is charged with a criminal offence but proceedings are automatically suspended. The company agrees to a number of conditions, which may include payment of a financial penalty, payment of compensation and implementation of a corporate compliance programme. DPAs may be used for fraud, bribery and economic crime.
The text of the Code is at http://www.cps.gov.uk/publications/directors_guidance/index.html
This blog has already noted ideas for reforming criminal justice – for example, the creation of new traffic courts, and the review of the criminal trial process to make it more cost effective.
A policy think tank, the Policy Exchange, has recently (Feb 2014) published a paper - Future Courts – setting out ideas for more radical reform of the criminal justice system, in particular magistrates’ courts. The following synopsis is taken from their website. What ideas do you think might work? What would not?
“Magistrates should dispense justice inside police stations at peak times – including evenings and weekends – and be put in charge of the administration of out-of-court disposals, as part of a radical drive to speed up the operation of the criminal justice system.
Future Courts argues that locating magistrates in police stations would deliver much swifter justice, dramatically reducing the time it takes to punish criminals. There is currently a two month delay from the time an offender is charged by the police to the sentence being handed down in a magistrates’ court. The report says that this wasted time weakens the power of punishments and means that the system does little to change the behaviour of offenders.
Reforming summary justice so that magistrates hear cases on-the-spot in police stations would also allow them to oversee or directly administer out-of-court disposals such as simple cautions. There has been considerable public concern about the police’s use of these disposals, which now account for 20% of all criminal cases, including their use in response to very serious offences such as rape. The report calls for a massive expansion in the size of the magistracy to help meet the requirements of these expanded roles. Currently there are 23,000 magistrates and they preside over 90% of all criminal cases in England and Wales, although applications to join the magistracy have dramatically decreased in recent years.
The paper highlights the huge financial pressures faced by Her Majesty’s Court and Tribunals Service, which must cut its budget by 37.8% between 2012 and 2016. It says that the Ministry of Justice will inevitably focus on reducing the size of the court estate to meet this challenge. With 230 magistrates’ courts in England and Wales, compared to just 180 NHS Accident and Emergency Departments, the paper concludes that there is significant scope to re-alter the size of the estate, but that the government must take concrete steps to protect the local justice infrastructure and the functioning of the lay magistracy, which has existed for over 650 years.
The report recommends:
The recruitment of 10,000 new magistrates, taking overall numbers to 33,000: They would sit in police stations and other community buildings, oversee out-of-court disposals, review offenders’ sentences on an on-going basis, and spend a third of their volunteering time undertaking community engagement work.
A more diverse magistracy: courts sitting during evenings and weekends will encourage younger, professional people to apply, but more action is needed. Instead of automatic retirement at 70, a new ‘tenure period’ for magistrates of 10 years should be implemented, creating greater turnover – and polices should be enacted to specifically target younger and more ethnically diverse recruits.
Greater court innovation: The Ministry of Justice, the Judicial College and the Magistrates’ Association should devise a new training package for 500 or so ‘problem solving’ magistrates and judges, specialising in dealing with people with drug and alcohol addiction.
The creation of new ‘Justice Hubs’: Court buildings currently house an average of six courtrooms. As the overall footprint of the court estate is reduced, the report recommends the creation of much larger courthouses, containing around 50 courtrooms. Newly-built or converted ‘Justice Hubs’, located to serve major population areas and co-located with other justice agencies, would accommodate different criminal courts (e.g. magistrates and Crown Courts), civil courts and tribunals under the same roof, as well as housing the full range of justice services and custody facilities.”
To read the whole report go to http://www.policyexchange.org.uk/publications/category/item/future-courts-a-new-vision-for-summary-justice
At the end of February, the Government announced its latest plans for reforming the legal aid scheme. The focus is centrally on criminal legal aid. The main driver remains cutting public expenditure on legal aid.
The latest proposals focus on three key elements:
1 Reducing the fees paid for services provided under the criminal legal aid scheme. Under the latest proposals, the cuts will impact more severely on more established practitioners (on average a 6% reduction) with a reduced impact on junior members of the criminal bar. The Government has undertaken to review the effect of these changes in 12 months time. There will also be a further reduction in solicitors’ fees of 8.25% which takes effect in March 2014. Again the Government has undertaken to review the impact of this change in summer 2016.
2 Recognizing the business impact that these cuts will have on practitioners, the latest paper suggest that the Government is prepared to provide some assistance to firms to restructure themselves and to develop business models more viable in the new tougher economic climate. This will include providing specialist help and guidance on where further financial help could be available to lawyers who need access to finance to help restructure their businesses. It will be very interesting to see whether this initiative simply gets up the noses of practitioners and makes them even more dissatisfied; or whether there will be practitioners who can see that new ways of doing things could be more cost effective and enable them to make money as well as deliver a service to the public.
3 Potentially the most interesting aspect of the latest announcement is that there will be a review of procedure in the criminal justice system to see ho far pre-trial steps can be taken without requiring the attendance of practitioners in court. This could help to drive out some waste.
Debate about how legal aid will continue to be a battle between government and practitioners. My own view is that there is no likelihood of return to the funding levels that existed before the current cuts were introduced. Lawyers committed to delivering legal services to the public will continue to be challenged to offer those services in different and more cost-effective ways.
For the text of the Government response to consultation see:
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps and click on Government Response to Consultation.
The question of the reliability of criminal statistics is currently the subject of a very important investigation by the Public Administration Committee of the House of Commons. In evidence sessions held before Christmas, evidence was received of how statistics provided by police may be distorted by the practices local police forces adopt for the recording of crime.
The Committee is examining the quality and reliability of police recorded crime data. Issues covered may include:
- the role of the Crime Statistics Advisory Committee in promoting statistical best practice among producers of crime data;
- the practical realities of police crime-recording practices and the factors which may lead these to diverge from established national standards;
- the extent to which the recorded crime data serve as a reliable indicator of national and local crime trends; and
- whether adequate procedures are in place to promote a culture of data integrity within the police.
Witnesses have already told how the ways in which data are collected may reflect the need to satisfy particular government targets for policing.
The final outcomes and comment from Government will appear later in 2014.
In October 2013, the Government published its revised Code of Guidance for victims. This sets out a list of entitlements to which victims are supposed to have. These include:
- An enhanced service if you are a victim of serious crime, a persistently targeted victim or a vulnerable or intimidated victim;
- A needs assessment to help work out what support you need;
- Information on what to expect from the criminal justice system;
- Be referred to organisations supporting victims of crime;
- Be informed about the police investigation, such as if a suspect is arrested and charged and any bail conditions imposed;
- Make a Victim Personal Statement (VPS) to explain how the crime affected you;
- Read your VPS aloud or have it read aloud on your behalf, subject to the views of the court, if a defendant is found guilty;
- Be informed if the suspect is to be prosecuted or not or given an out of court disposal;
- Be informed about how you can seek a review of CPS decisions not to prosecute, to discontinue or offer no evidence in all proceedings;
- Be informed of the time, date and location and outcome of any court hearings;
- Be informed if you need to give evidence in court, what to expect and discuss what help and support you might need with the Witness Care Unit;
- Arrange a court familiarisation visit and enter the court through a different entrance from the suspect and sit in a separate waiting area where possible;
- Meet the CPS Prosecutor and ask him or her questions about the court process;
- Be informed of any appeal against the offender’s conviction or sentence;
- To opt into the Victim Contact Scheme (VCS) if the offender is sentenced to 12 months or more for a specified violent or sexual offence;
- If you opt in to the VCS to:• make a VPS for consideration by the Parole Board if the offender is considered for release or transfer and apply to the Parole Board to read it out at the hearing;
- make representations about the conditions attached to the offender’s licence on release and be informed about any licence conditions relating to you;
- Apply for compensation under the Criminal Injuries Compensation Scheme;
- Receive information about Restorative Justice and how you can take part;
- Make a complaint if you do not receive the information and services you are entitled to, and to receive a full response from the relevant service provider.
Just before Christmas 2013, the Government announced that from October 2014 its plans to run victim support services locally through the offices of the locally elected Police and Crime Commissioners. The Government has started a process designed to encourage groups to apply for contracts to run such services.
For more details see:
For the text of the Code: https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crime.
For a police view of the Code: http://www.police.uk/news/victims-code/
For details of the new contracting process: https://www.gov.uk/local-commissioning-of-victims-services