Archive for the ‘Chapter 5’ Category
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;
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.
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:
- 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.
- 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.
- 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
- 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.
- 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.
- 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
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.