Martin Partington: Spotlight on the Justice System

Just as legal aid lawyers might have thought that they had suffered their cuts, along comes another Consultation Paper setting out more ideas for reform – designed, of course, to further reduce public expenditure on legal aid.

The Consultation Paper, Transforming Legal Aid: Delivering a more credible and efficient system, published on April 9th 2013, contains a rather complex mix of ideas that the Government is seeking to pursue.

The headline changes that are under consideration include:

• Removing criminal legal aid in prison law cases that do not justify the use of public money – such as complaints about the category of prison or correspondence a prisoner is allowed.  The Government argues that many such cases can be addressed by the prisoner complaint system.
• Introducing a threshold on Crown Court legal aid to stop wealthy defendants with an annual household disposable income of £37,500 or more being automatically granted legal aid, which would avoid having to fight to get the money back after their trial.
• Introducing a residency test so that only those with a strong connection to the UK are able to receive civil legal aid.
• Discouraging so-called ‘weak’ judicial review cases by tightening up the payment mechanism, only paying providers for work done on bringing a claim once a judge has agreed the case is strong enough to proceed.
• Making it harder for claimants to use civil legal aid to bring speculative cases by tightening the test so that all cases must have at least a 50% chance of success to be funded.
• Introducing competition for legally-aided advice and representation (not including Crown Court advocacy).
• Restructuring the Crown Court advocacy fee scheme by paying the same rates to advocates irrespective of whether there is an early or a late guilty plea or a short trial. This proposal provides more incentive to complete cases as early as possible.
• Reducing certain legal aid fees paid in civil cases and to experts.

These new proposals will be hard fought by the legal professions, in particular the proposal to introduce competitive tendering for the supply of criminal defence services – an issue that has been around a long time but which successive Lord Chancellors have – until now – fought shy of pursuing.

Further information, including links to the consultation paper are at https://www.gov.uk/government/news/making-legal-aid-fairer-for-taxpayers–2
See also https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

The Consultation runs until June 4th 2013

In this podcast I talk to Lizzie Nelson, who is Director of the Restorative Justice Council. The Council is a small charitable organisation that exists to promote the use of restorative justice, not just in the court (criminal justice) context, but in other situations of conflict as well (e.g. schools).

There is evidence that restorative justice can help the victims of crime to come to terms with what has happened to them and can also help the perpetrators of crime to realise the consequences of what they have done. There is good evidence that, used well, restorative justice can reduce reoffending.

In this podcast Lizzie Nelson explains both the concept of RJ and talks about the work of the council.

For further information see http://www.restorativejustice.org.uk/

The research by Professor Joanna Shapland, and others, which Lizzie talks about in the interview can be found in Restorative Justice in Practice, Evaluating What Works for Victims and Offenders (Authors Joanna Shapland, Gwen Robinson, Angela Sorsby) – further details at http://www.routledge.com/books/details/9781843928454/

Listen to Lizzie Nelson at http://global.oup.com/uk/orc/law/els/partington12_13/01student/podcasts/Nelson.mp3

So the Legal Services Commission has finally closed to be replaced by the Legal Aid Agency. At present, little information about the new agency is available. Its website currently sets out its priorities and its senior management team.

Readers will be kept in touch with developments as they arise.

To find the current offering from the agency, visit http://www.justice.gov.uk/about/laa

The Ministry of Justice has announced that it is reviewing the use of simple cautions, in the light of evidence suggesting that some serious and serial offenders are being cautioned when they should be brought before the courts.

Unusually, this review is not it seems accompanied by any consultation document, though this may be published later. There is a press announcement available at http://www.justice.gov.uk/news/press-releases/moj/cautions-for-serious-and-repeat-offenders-under-review

The Solicitors Regulatory Authority published a report in January 2013 on progress with ABS during its first year. This shows that the pace of applications for and approvals of ABS licences has quickened. Of the 70 or so approvals granted by January 2013, 40 were approved over the months before that date.

Evidence that the approval rate is not slackening can be seen in the announcement at the beginning of March 2013 of the licence granted to BT Law Ltd. This is stated to bring the total of approvals to over 100.

Information from the SRA is at http://www.sra.org.uk/sra/news/press/abs-one-year-on.page

Information about BT Law Ltd is at http://www.btplc.com/news/articles/showarticle.cfm?articleid={2a29c4bb-5c5b-4ef3-861f-7c00a0c6653b}

The full register of ABS approvals is at http://www.sra.org.uk/absregister/

The third report on the implementation of Law Commission reports was published in January 2013. It makes pretty sorry reading.

It is noted that “the new House of Lords procedure for Law Commission Bills is proving to be effective in implementing uncontroversial changes. The Consumer Insurance (Disclosure and Representations) Act received Royal Assent in March 2012 and the Trusts (Capital and Income) Bill completed its passage through Parliament on 7 January 2013, both of which followed the new procedure.”

But apart from these triumphs, the report also states that while “Considerable progress has been made by the Government in taking forward many of the Law Commission’s recommendations during the reporting period …it has  unfortunately not been possible to complete the implementation of any of the Commission’s reports since the previous report to Parliament.”

The only piece of good news is that the report also states that no Commission reports have been rejected.

The Government’s excuse is that it has to focus on dealing with economic matters, and therefore this reduces the priority for law reform. But this argument does not consider whether there may be economic savings to be made if the law was made more rational. There must surely be a limit to the ability of Governments to praise the quality of Law Commission work, and make so little response to it?

The full report (and it is not long) is at http://www.justice.gov.uk/downloads/publications/corporate-reports/MoJ/law-commission-proposals-report.pdf