Archive for the ‘Chapter 5’ Category
On 23 June 2015, the Lord Chancellor delivered a major speech on his vision for the development of the Justice system. Mr Gove is not shy of taking on existing established practices – witness his battles with the teachers when he was Secretary of State for Education under the Coalition Government.
In his speech, entitled What does a one nation justice policy look like? he argues that the justice system is in need of fundamental reform if is it to deliver access to justice to ordinary people.
A potentially very important difference between what he was trying to do in the world of education and what he now seeks to do to the justice system is that for the latter, much of the initiative for reform is coming from the judiciary itself. They see the need for better use of court facilities, fundamental investment in IT which would enable much legal work to be done without attendance at courts, support for new ideas – in particular in civil justice – endorsing proposals recently set out by Justice in its report Civil Justice in an Age of Austerity. (see this blog, entry for 5 May 2015)
First reactions to the Lord Chancellor’s speech can be heard in a special edition of the BBC programme Law in Action which was broadcast on the same day. The discussion – by Sir Stanley Burnton, Dame Hazel Genn and Keir Starmer – provides a useful basis for understanding what may start to unfold in the justice system over the next five years
What is absolutely certain is that anyone starting the study of law should be aware of what is in the pipeline – things are likely to change pretty quickly.
To read the speech go to https://www.gov.uk/government/speeches/what-does-a-one-nation-justice-policy-look-like
To hear the Law in Action Broadcast go to http://www.bbc.co.uk/programmes/b05zktnf#auto
The Centre for Justice Innovation, whose work is mentioned in the programme has a website at http://www.justiceinnovation.org/
Reflecting on how measures set out in the Queen’s Speech 2015 may impact on the English Legal System
The Queen’s Speech sets out each year the bare bones of the proposed legislative programme for the forthcoming 12 months.
I’ve been looking through the detailed briefing to see whether there are issues which will affect the English Legal System (ELS) that may not be apparent from the speech itself.
Here are my personal comments:
The headline aim of the new Bill is to reduce red tape and improve the ways in which regulators work. But there are also two specific ELS related issues that may be noted:
- Establishing a Small Business Conciliation Service that will handle business-to-business disputes without the need for court action, tackling in particular, late payment issues;
- Introducing business rates appeals reform, including modifying the Valuation Tribunal powers to consider ratepayer appeals.
Among proposed measures to be set out here, there are proposals to change the way in which immigration appeals work. In particular, the Government plans to:
Extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 thelast government cut the number of appeal rights but other than foreign criminals, migrants retain an in-countryright of appeal against the refusal of a human rights claim. We will now extend the “deport first, appeal later” principle to all cases, except where it will cause serious harm.
To create a presumption that suspects will be released without bail unless it is necessary.The Bill would initially limit pre-charge bail to 28 days, with an extension of up to three months, authorised by a senior police officer.In exceptional circumstances, the police will have to apply to the courts for an extension beyond three months, to be approved by a magistrate.This will introduce judicial oversight of the pre-charge bail process for the first time, increasing accountability and scrutiny in a way that is manageable for the courts.
The Criminal Justice and Courts Act 2015 was passed in February 2015. It is a complex piece of legislation which deals with four broad topics:
- Part 1 Criminal Justice,
- Part 2 Youth Offenders,
- Part 3 Courts and tribunals, and
- Part 4 Judicial Review.
What follows is by no means a full analysis of the Act. It is a selective review of those matters that seem most relevant to the development of the English Legal System
Part 1 makes a number of detailed amendments to the law relating to those found guilty of very serious offences, such as terrorism offences. In some cases the maximum sentence is increased from 30 years to life imprisonment. In addition, the Parole Board is given new responsibilities to assess the risk of certain serious offenders, such as those convicted of serious terrorism or serious sexual and violent offences before they are released into the community. No longer will such offenders be entitled to automatic release halfway through a sentence.
Once released from prison on licence, there are increased powers to monitor such persons through the use of electronic tracking devices.
If an offender who has been released on licence is recalled, the decision about what should happen to him will in future be taken by a ‘recall adjudicator’ rather than being automatically being referred to the Parole Board for consideration. Since the Parole Board can itself be appointed a ‘recall adjudicator’ it will still be involved in some decisions, but in other cases the decision can be made by a single adjudicator rather than a panel drawn from the Board.
Sections 17-19 set out the restrictions on the use of cautions by the police which have long been promised by the Government. In essence, the more serious the alleged offence, the more restrictions on the use of cautions.
There are a number of offences created relating to wilful neglect by care workers.
In cases involving the murder of police or prison officers, where the sentence is life, the Act provides that the starting point for consideration of the minimum period of detention should be the whole life, rather than, as at present 30 years.
Part 2 deals with Youth Offenders. Currently, young offenders may be detained in young offender institutions, remand centres and secure training centres. The Act provides that in addition there can be established secure colleges – designed to place greater emphasis on the education of young offenders. The Act also provides for the contracting out of the provision of services relating to young offenders.
Among other detailed amendments, Section 41 amends the Crime and Disorder Act 1998 so that any youth caution or youth conditional caution given to a young person aged 17 must be given in the presence of an appropriate adult. That is already a requirement where a youth caution or youth conditional caution is given to a child or young person aged under 17.
Part 3 on Courts and tribunals among other things introduces a new single justice procedure whereby proceedings against adults charged with summary-only non-imprisonable offences can be considered by a single magistrate, on the papers. This will be without the attendance of either prosecutor or defendant. The defendant will be able to engage with the court in writing instead of attending a hearing; as neither prosecutors nor defence will be attending, the case will not need to be heard in a traditional courtroom.
The purpose of this new procedure is to deal more proportionately with straightforward, uncontested cases, involving offences such as failure to register a new vehicle keeper, driving without insurance, exceeding a 30mph speed limit, and TV licence evasion. In many of these cases the defendant is not present in court, either because they have chosen not to engage with the process or because the defendant has sent a written guilty plea. In such cases, the hearing takes place in an empty courtroom with only magistrates, prosecutors and court staff present. This procedure offers an alternative form of proceedings to help ensure that these cases are brought before the court at the earliest opportunity and dealt with more efficiently.
The Act introduces a new principle that those convicted of crimes should be required to make a contribution towards the costs of the criminal court. The details will appear in regulations in due course.
Part 3 also extends the potential use of ‘leap-frogging’ – enabling cases that are clearly going to go to the Supreme Court to get there directly, without the need for a hearing in the Court of Appeal.
Part 3 also raises the age limit for jurors to 75. It also creates new offences that may be committed by jurors – e.g. using social media during a trial.
Part 4 – on changes to Judicial review – will be the subject of a separate blog entry.
The Act and accompanying explanatory notes can be found at http://www.legislation.gov.uk/ukpga/2015/2/contents
In the latest podcast, I talk to the Chairman of the Parole Board for England and Wales. (There is a separate Parole Board for Scotland). The Parole Board is an independent body that carries out risk assessments on prisoners to determine whether they can be safely released into the community.
In the interview, we discuss when and why the Board was created, how its functions have developed over the years, and its current work.
You can find out more about the work of the Parole Board by going to https://www.gov.uk/government/organisations/parole-board
You can listen to Sir David Calvert Smith by going to http://global.oup.com/uk/orc/law/els/partington14_15/student/podcasts/Calvert-Smith.mp3
In February 2015, the Government announced that – from March 2015 – it would be possible for those charged with minor motoring offences to plead online.People charged with summary motoring offences, like speeding, failing to identify the driver or using a vehicle without insurance, are now able to use the website to respond to charges against them.
The new digital system means defendants will be able to make their plea from any suitable device 24 hours a day through the secure website.
The service is offered as an alternative to a postal plea or attending court and was developed with court users to meet their needs. It was trialled in the Greater Manchester are before being rolled out nationally.
The ‘make a plea’ site is at https://www.makeaplea.justice.gov.uk/
Just before the 2014-15 Parliamentary session came to an end, the Government announced that it had accepted in principle all the recommendations made by Lord Justice Leveson on improving efficiency in the Criminal Justice system. (See entry in this blog in January 2015).
Particular emphasis was placed on changes that might be brought about with no or very little public expenditure.
The announcement was made in a letter from the Lord Chancellor to Lord Justice Leveson.
From 1 August 2015, Lord Justice Bean will be Chair of the Law Commission – a three year appointment. Professor David Ormerod has been reappointed for a further five year term.