Archive for the ‘Chapter 5’ Category
It is, to me, one of the curiosities of public life that U-turns are usually portrayed in the mass media as a sign of official/political incompetence. To me the idea that someone might change their mind because they had had second thoughts is a sign of maturity and intelligence.
Whether you regard the Secretary of State for Justice as incompetent or intelligent and mature, there is no doubt that his recent written statement to the House of Commons on the change of direction on Criminal Legal Aid reform is important.
The issues are:
1 Reductions in fees paid to legal aid applicants. They had been reduced in March 2014 by 8.5%. A similar sized reduction was planned for July 2015, but this was put on hold while the MoJ did not work to ensure that such a cut would be unlikely to reduce the quality of criminal advocacy. In his January 2016, Michael Gove has announced that there will be a further postponement of the proposed cut. “I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year.” Whether or not that fee cut will be brought back into effect in April 2017 will depend on how the market for the provision of criminal legal aid services has developed in the meantime.
2 Consolidation of provision of criminal legal aid. There has long been a view in Government that there are too many soicitors’ firms offering criminal legal aid services. Various proposals have been made to reduce their number. The most draconian proposal was that existing criminal legal aid contract should be replaced by new contracts that would be awarded, following a tendering process, in which contracts would be awarded to those firms who submitted the lowest bids for legal aid work.
Unsurprisingly this was fiercely resisted by solicitors on the basis that, if implemented, this would be a ‘race to the bottom’ – standards would fall because services would only be offered by those charging the least.
Mr Gove’s predecessor, Chris Grayling, came up with an alternative plan, known as ‘dual contracting’. Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.
- An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
- And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.
The dual contracting model was designed to meet concerns expressed by the legal profession about price competition.
A tender process under this proposed scheme did go ahead, but ended very badly with a lot of adverse publicity about both process and outcome.
The primary arguments against these alternative proposals were
- Many solicitors firms feared that the award of a limited number of “dual” contracts – with a restriction therefore on who could participate in the duty legal aid rota would lead to a less diverse and competitive market.
- Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and potentially quality.
- And, possibly the most compelling argument, many also pointed out that a process of natural consolidation was taking place in the criminal legal aid market, as crime reduced and natural competition took place.
In the face of considerable potential litigation (99 cases in the pipeline, plus a judicial review challenging the whole process), the Government has announced that this exercise will also be set aside. There will be a further review of the process towards consolidation early in 2017.
3 Quality of criminal advocacy. In the midst of all this, the report from Sir William Jeffrey on how to enhance the quality of criminal advocay has not been forgotten. Mr Gove stated:
I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.
I don’t think that criminal legal aid practitioners are completely off the hook as regards potential changes to how they work. But for the immediate future, things are clearer.
For Mr Gove’s written statement, go to https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting.
For further information on the Jeffrey Review, see this blog at http://martinpartington.com/2015/11/05/enhancing-the-quality-of-criminal-advocacy/
Stephen Lawrence was a Black British man from Eltham, south east London, who was murdered in a racially motivated attack while waiting for a bus on the evening of 22 April 1993. This shocking incident was the subject of an inquiry, led by Sir William Macpherson, which, when it reported in 1999, found among other things that there was ‘institutional racism’ in parts of the criminal justice system.
This in turn led the Judicial Studies Board to establish a programme of ethnic awareness training as part of its programme.
Notwithstanding the concerns raised by the Lawrence case, the present position is that:
- BAME individuals currently make up over a quarter of prisoners – compared to 14% of the wider population of England and Wales.
- BAME people make up a disproportionate amount of Crown Court defendants (24%).
- Those who are found guilty are more likely to receive custodial sentences than white offenders (61% compared to 56%).
In light of these findings the Government has asked (January 2016) David Lammy MP to lead a review of the Criminal Justice System in England and Wales to investigate evidence of possible bias against black defendants and other ethnic minorities. With significant overrepresentation of black, Asian and minority ethnic (BAME) individuals in the criminal justice system, the review will consider their treatment and outcomes to identify and help tackle potential bias or prejudice.
He has been asked to report by early 2017.
Early in 2016, there was an announcement that more criminal cases would be dealt with in the magistrates’ courts, rather than being sent to the Crown Court.
The source for this announcement was not a new piece of legislation, redrawing the boundaries between cases heard in these two courts. Rather, it was the announcement that, from 1 March 2016, the Sentencing Council was issuing ‘definitive guidance’ on how cases triable either way – i.e. summarily (in the Magistrates’ Court) or on indictment (in the Crown Court) were to be allocated.
One of the key recommendations of the Leveson Review of Efficiency in Criminal Proceedings was
“Magistrates’ Courts must be encouraged to be far more robust in their application of the allocation guideline which mandates [emphasis added] that either way offences should be tried summarily unless it is likely that the court’ssentencing powers will be insufficient. The word “likely” does not mean “possible” and permits the court to take account of potential mitigation and guilty plea, so can encompass cases where the discount for a guilty plea is the feature that brings the case into the Magistrates’ jurisdiction. It is important to underline that,provided the option to commit for sentence is publicly identified, the decision to retain jurisdiction does notfetter discretion to commit for sentence even after requesting a pre-sentence report”.
1. In general, either way offences should be tried summarily unless:• the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or• for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence.Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.2. In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.3. Cases may be tried summarily even where the defendant is subject to a Crown Court Suspended Sentence Order or Community Order.4. All parties should be asked by the court to make representations as to whether the case is suitable for summary trial. The court should refer to definitive guidelines (if any) to assess the likely sentence for the offence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which the defence wish to refer.Where the court decides that the case is suitable to be dealt with in the magistrates’ court, it must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted by the court or pleads guilty, the defendant may be committed to the Crown Court for sentence.
The guideline aims to bring about a change in culture and will inevitably provide some challenges, but the Council is confident from the responses to the consultation that the guideline will be welcomed by sentencers and will play a role in ensuring that justice is delivered fairly, swiftly and efficiently in more cases.
Deferred prosecution agreements enable corporations to avoid prosecution for alleged criminal offences by agreeing to cooperate with investigators. They are permitted, in the UK, as a result of provisions in the Crime and Courts Act, 2013.
The first such agreement was announced on 30 November 2015. The press release from the Serious Fraud Office states:
The Serious Fraud Office’s first application for a Deferred Prosecution Agreement was today approved by Lord Justice Leveson at Southwark Crown Court, sitting at the Royal Courts of Justice.
The counterparty to the DPA, Standard Bank Plc (now known as ICBC Standard Bank Plc) (“Standard Bank”), was the subject of an indictment alleging failure to prevent bribery contrary to section 7 of the Bribery Act 2010. This indictment, pursuant to DPA proceedings, was immediately suspended. This was also the first use of section 7 of the Bribery Act 2010 by any prosecutor.
As a result of the DPA, Standard Bank will pay financial orders of US$25.2 million and will be required to pay the Government of Tanzania a further US$7 million in compensation. The bank has also agreed to pay the SFO’s reasonable costs of £330,000 in relation to the investigation and subsequent resolution of the DPA.
In addition to the financial penalty that has been imposed, Standard Bank has agreed to continue to cooperate fully with the SFO and to be subject to an independent review of its existing anti-bribery and corruption controls, policies and procedures regarding compliance with the Bribery Act 2010 and other applicable anti-corruption laws. It is required to implement recommendations of the independent reviewer (Price Waterhouse Coopers LLP).
Prediction is a hazardous business. On 30 Novermber 2015, I wrote – in relation to the Criminal Court charge –
While it is unlikely that there will be abolition so soon after introduction, my hunch is that the Government will be returning to the issue in the not too distant future.
Well I was both right and wrong: the Government has returned to the issue, but much more rapidly that most people anticipated.
Michael Gove, the Justice Secretary announced yesterday (3 Dec 2015) that the charge would be scrapped from 24 December 2015. The announcement was made to the Magistrates’ Association, a number of whose members had resigned from the magistracy over the imposition of the charge.
No doubt such a rapid change of mind will be portrayed as a U turn (though of course the initial decision to introduce the charge was taken by Gove’s predecessor Chris Grayling). But if a policy is shown to be absurd and not working, then surely it is more rational to change it rather than to doggedly adhere to it?
Anyway, at least on this occasion a rapid decision has been taken to kill off a policy was had drawn substantial criticism, not just from the magistrates but more widely from the legal world.
At the same time the Lord Chancellor has annouced to Parliament, perfectly sensibly in my view, that there should be a wider review of the different ways in which financial orders can be made against those convicted of crime – for example by fines, the victim surcharge, compensation orders, and making contribution to prosecution costs.
The Lord Chancellor would like to see a simpler and more rational structure of these different matters, which have developed over recent years in very piece meal fashion.
The Lord Chancellor’s statement is at: https://www.gov.uk/government/speeches/courts
In October 2015, a new Code of Practice for Victims was published, replacing one originally published in 2013. It sets out in some detail what victims of crime should expect from the criminal justice system. There are separate sections for adult and young victims. It also sets out the responsibilities the Code places on the key actors in the criminal justice system.
It is relevant to all stage in the criminal justice process: investigation and pre-trial; the trial itself; and post-trial.
The code summarises the entitlements as follows:
You are entitled to:
• A written acknowledgement that you have reported a crime, including the basic details of the offence;
• 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;
• Seek a review of the police or CPS’s decision not to prosecute in accordance with the National Police Chiefs Council (NPCC) and CPS Victims’ Right to Review schemes;
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 advocate and ask him or her questions about the court process where circumstances permit;
• 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.
To see the whole Code, go to https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crimeThis also gives links to a leaflet about the code and a text of a note that is given to victims.
The long awaited announcement that there would be significant investment in prisons and also in the IT infrastructure for the Courts and Tribunals service, paid for by selling existing old prisons and little used court buildings, was made by the Chancellor of the Excehquer in the Autumn Statement and Spending Review, announced on 25 November 2015.
More specifically, the Ministry of Justice website notes:
£1.3 billion will be invested to reform and modernise the prison estate to make it even more efficient, safer and focused on supporting prisoner rehabilitation. The government will build 9 new, modern prisons – 5 of which will open this Parliament – with better education facilities and other rehabilitative services, while selling ageing, inefficient prisons on prime real estate to free up land for new homes.
By investing in the prison estate, the government will reduce running costs in prisons by £80 million a year when the reforms are complete. New investment will also fund video conference centres, allowing up to 90,000 cases to be heard from prison instead of court, and will deliver more safety improvements in prisons, including body scanners and mobile phone blocking technology.
The Government states its hope that these reforms will reduce reoffending through more effective rehabilitation, and will reduce the cost of transporting prisoners between courts and prisons, stamp out the organisation of crime from within prisons, and stem the availability of drugs and other illicit substances.
The Government also states that these developments will build on the probation reforms undertaken in the last Parliament, which will reduce the costs of the system and reinvest them into extending probation support to 45,000 short-sentence offenders for the first time, to tackle reoffending.
On courts and tribunals
Over £700 million will be invested to fully digitise the courts and create a more modern estate. This will generate savings to the taxpayer of approximately £200 million a year from 2019-20. The government will also look at changes to court fees as it continues to put the courts on a more sustainable financial footing.
The text of the statement and other documents may be accessed at https://www.gov.uk/government/topical-events/autumn-statement-and-spending-review-2015
The impact on the Ministry of Justice is at https://www.gov.uk/government/news/ministry-of-justices-settlement-at-the-spending-review-2015