Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Victim’s right to review a decision not to prosecute.

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It used to be the case that when the Crown Prosecution Service (CPS) decided not to proceed with a prosecution, that was the end of the matter. The courts were clearly unhappy that the CPS should never reconsider a decision not to prosecute. On 29 June 2011, the Court of Appeal in R v Christopher Killick [2011] EWCA Crim 1608, considered in some detail the right of a victim of crime to seek a review of a CPS decision not to prosecute. It concluded that:

• a victim has a right to seek a review in such circumstances;

• a victim should not have to seek recourse to judicial review;

• the right to a review should be made the subject of a clearer procedure and guidance with time limits.

Following this judgement, the CPS created a new scheme – the Victim’s Right to Review Scheme – to give effect to the principles laid down in Killick and also to meet Article 10 of the European Union Directive establishing minimum standards on the rights, support, and protection of victims of crime. It was launched in June 2013.

Data recently published by the CPS shows that between 5 June 2013 and 31 March 2014, the CPS made 113,952 decisions which could be subject to appeal under the VRR scheme. The CPS reviewed 1,186 cases; of these 162 decisions were overturned.

The CPS also undertoook some work to see how the scheme was working in the light of experience. The outcome of this work is that a slightly revised, final, scheme of review was prepared and published in July 2014.

For the data, see http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/vrr_data/index.html

The revised scheme is at http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/index.html

Written by lwtmp

October 12, 2014 at 5:08 pm

Improving policing standards: the College of Policing

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Last year, I noted in this blog the creation (in December 2012) of the College of Policing – replacing the National Police Improvement Agency.

Following the enactment of the Anti-Social Behaviour, Crime and Policing Act 2014, the College is now recognised in legislation. (See Part 11, sections 123-130.) The College is given specific statutory power to issue Codes of Practice.

The core areas of responsibility of the College are:
• setting standards of professional practice
• accrediting training providers and setting  learning and development outcomes

• identifying, developing and promoting good practice based on evidence
• supporting police forces and other organisations to work together to protect the public and prevent crime
• identifying, developing and promoting ethics, values and standards of integrity.

The College has set itself ambitious aims. For example it is seeking to extend its networks beyond the traditional boundaries
of policing – to include the public, further and higher education, the private sector, charitable organisations and the wider public sector – and make the most of all opportunities to work with others to support policing.

It wants to create open and transparent development opportunities for police officers and staff at all levels. These will include:
• being part of a network with local academic institutions to gather evidence and test new approaches
• participating in a community of practice
• providing peer support to share experiences
• working in the College or with one of our partner organisations to gain new skills and knowledge, while sharing learning and experience.

Further detail of its plans can be found in its statement of strategic intent at http://www.college.police.uk/en/20801.htm.

The reason for the creation of the College lies in a number of difficult issues that have affected police forces in recent years which has led to falls in public trust in the ability of the police to work effectively and fairly in carrying out its work.

Responding to these worries, one of the first actions of the new College was to develop and publish a new Code of Ethics for the police service (similar in aim to codes of ethical practice which apply to most professional groups). The Code was published in July 2014.

It is based on 9 core policing principles (themselves based on the Nolan Principles for Standards in Public Life). They are

  • Accountability: You are answerable for your decisions, actions and omissions.
  • Fairness: You treat people fairly.
  • Honesty: You are truthful and trustworthy.
  • Integrity: You always do the right thing.
  • Leadership: You lead by good example.
  • Objectivity: You make choices on evidence and your best professional judgement.
  • Openness: You are open and transparent in your actions and decisions.
  • Respect: You treat everyone with respect.
  • Selflessness: You act in the public interest.

Perhaps surprisingly this is the first time that a set of ethical standards for policing has been published.

Naturally it will be asked what difference publication of the Code will have on day to day policing. This question certainly cannot be answered at this stage. However, as the College itself notes, its effect will become clearer if the public starts to acknowledge that standards of police integrity have started to improve.

The Code is available at http://www.college.police.uk/en/20972.htm

More detail about the work of the college is available on its website at http://www.college.police.uk/en/home.htm

Written by lwtmp

October 11, 2014 at 10:59 am

Posted in Chapter 5

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Stop and search – code of guidance

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In August 2013, I wrote about the very critical report by HM Inspectorate of Constabulary on the use of Stop and Search power by the police, and the annoucement by the Home Secretary of a consultation on the use of these powers.

In April 2014, the Home Secretary announced that there would be a new ‘Best use of stop and search scheme’ which had been drawn up by the Home Office and the College of Policing. In August 2014, it was announced that all 43 police forces had agreed to abide by the scheme and the scheme was published.

The headline features of the new scheme are:

• Data Recording – forces will record the broader range of stop and search outcomes e.g. arrests, cautions, penalty notices for disorder and all other disposal types. Forces will also show the link, or lack of one, between the object of the search and its outcome.
• Lay observation policies – providing the opportunity for members of the local community to accompany police officers on patrol using stop and search.
• Stop and search complaints ‘community trigger’ – a local complaint policy requiring the police to explain to local community scrutiny groups how the powers are being used where there is a large volume of complaints.
• Reducing section 60 ‘no-suspicion’ stop and searches by: raising the level of authorisation to senior officer (above the rank of chief superintendent);  ensuring that section 60 stop and search is only used where it is deemed necessary; and
and making this clear to the public;
• in anticipation of serious violence, the authorising officer must reasonably believe that an incident involving serious violence will take place rather than may;
• limiting the duration of initial authorizations to no more than 15 hours (down from 24); and
• communicating to local communities when there is a section 60 authorisation in advance (where practicable) and afterwards, so that the public is kept informed of the purpose and success of the operation.

It is obviously hoped that greater transparency in the use of these controversial powers will make their use more acceptable in the communities particularly affected by their use. Given the past history, there must be some doubt as to the potential effectiveness of the new scheme. But it does represent an attempt to prevent the use of stop and search powers having the deleterious impact on individuals and communities that it has had in the past.

The scheme is accessible at https://www.gov.uk/government/publications/best-use-of-stop-and-search-scheme

Written by lwtmp

October 10, 2014 at 11:57 am

Reliability of statistics on crime

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At the beginning of 2014, I noted here there was growing public concern about the reliability of statistics on crime, in particular the statistics on recorded crime which comes from individual police forces. In January, the UK Statistics Authority published a report which concluded that: ‘the Authority has removed the National Statistics designation from statistics based on recorded crime data [i.e. data from individual police forces and the National Fraud Office to the Home Office] until such time that Office for National Statistics, with the Home Office, Her Majesty’s Inspectorate of Constabulary or other appropriate bodies, is able to demonstrate that the quality of the underlying data, and the robustness of the ongoing audit and quality assurance procedures, are sufficient to support its production of statistics based on recorded crime data to a level of quality that meets users’ needs.’

At the same time, the Statistics Authority confirmed that crime statistics which are based on sources other than recorded crime data are not included in this down-grading.

The issue was the subject of a special inquiry by the Public Administration Select Committee of the Housing of Commons (see this blog Jan 2014). In April 2014 it issued a very critical report. It said, in summary:

  • There is strong evidence that the police under-record crime, particularly sexual crimes such as rape in many police areas. This is due to “lax compliance with the agreed national standard of victim-focussed crime recording.”
  • As a result of PASC’s inquiry, the UK Statistics Authority has already stripped Police Recorded Crime data of the quality kite mark, “National Statistics”.
  • The Home Office, the Office of National Statistics and the UK Statistics Authority have all been “far too passive”.
  • Numerical targets drive perverse incentives to mis-record crime.
  • Associated “attitudes and behaviour… have become ingrained, including within senior police leadership” raising “broader concerns about policing values”.
  • This presents officers with “a conflict between achievement of targets and core policing values.”
  • PASC “deprecate the use of targets in the strongest possible terms” and accuses the police of adopting a “flawed leadership model, contrary to the policing Code of Ethics.”

The Select Committee recommended:

  • The Home Office should do more to discourage use of targets.
  • The Home Office must take responsibility and accept accountability for the quality of Police Recorded Crime Statistics.
  • Senior police leaders must emphasise data integrity and accuracy, not targets.
  • They should place new emphasis on values and ethics, especially in the Metropolitan Police.
  • The Home Office should “clarify the route open to police whistleblowers” and Her Majesty’s Inspectorate of the Constabulary (HMIC) should investigate the treatment of key PASC witness police whistleblower PC James Patrick.
  • PASC recommends that “the Committee on Standards in Public Life conducts a wide-ranging inquiry into the police’s compliance with the new Code of Ethics; in particular the role of leadership in promoting and sustaining these values”.

In July 2014, the Government published a response to the Select Committee’s report, which noted that HMIC was undertaking a review of crime recording practices in each of the 43 police forces, and had already published an interim report (which noted they had serious concerns, particularly about the recording of serious sexual offences). It also noted that the new Code of Ethics, which was in the process of becoming a code of practice for policing, dealt – among many other things – with the recording of data. The Home Office noted that better recorded crime statistics might lead to an increase in the numbers of reported crime, but it was keen to assert that this did not mean that crime was on the rise. Other evidence showed that crime was decreasing – in particular the Crime Survey for England and Wales.

A further response from the UK Statistics Authority was published in September 2014.

There is clearly a great deal of technical work needing to be done to restore confidence in the recorded crime statistics.

For further information, see

Report of the Select Committee at http://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-select-committee/news/crime-stats-substantive/

The Government’s response at https://www.gov.uk/government/publications/caught-red-handed-why-we-cant-count-on-police-recorded-crime-statistics

The initial report from the UK Statistics Authority at http://www.statisticsauthority.gov.uk/assessment/assessment/assessment-reports/index.html (entry for 15 January 2014).

The response of the UK Statistics Authority to the Select Committee is at http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpubadm/645/64505.htm

See also the website of the Crime Statistics Advisory Committee at http://www.statisticsauthority.gov.uk/national-statistician/ns-reports–reviews-and-guidance/national-statistician-s-advisory-committees/crime-statistics-advisory-committee.html

 

Written by lwtmp

October 8, 2014 at 11:39 am

Law-making process in the European Union

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Those coming new to the study of law often struggle to understand precisely how the institutions of the European Union operate. There is a great deal of information readily available on the websites of EU institutions.

I have recently seen an excellent diagram on how the law of the EU is made, setting out the different stages that proposals from the European Commission must go before they become law.

To view, go to http://www.europarl.europa.eu/aboutparliament/en/0081f4b3c7/Law-making-procedures-in-detail.html and look at the slide show. (Click on the arrows in the middle of the picture.)

Written by lwtmp

October 6, 2014 at 9:29 am

Where next for Human Rights?

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Much publicity has been given to the publication of proposals from the Conservative Party to, in some way, opt out of the European Convention, or more particularly judgements of the European Court of Human Rights.

I was unable to track the paper down through the Conservative Party website, but it can be accessed from the BBC News website at http://www.bbc.co.uk/news/uk-politics-29466113.

The proposals are controversial and have already generated heated debate. A key issue, which has not had the air-time it deserves, is what message any such move by the UK Government would have on the other 46 states who are also members of the Council of Europe and who are signed up to the European Convention on Human Rights. Despite the Government’s impatience with certain aspects of the way in which the European Convention impacts on the UK (such as the decision on prisoner’s voting rights, or the power of the judiciary to impose whole life prison sentences without possibility of review) there is a general public assumption that – on the whole – human rights are respected in the UK. But this cannot be said for many of the countries who have joined the Council of Europe.

If the UK Government is able to announce that it no longer wishes to accept rulings of the European Court of Human Rights, then it is not hard to imagine that many other countries – where human rights are less well protected – might want to make the same argument. This could lead to an unravelling of the standards set by the European Convention on Human Rights that could lead to significantly adverse consequences for the future development of human rights in Europe.

More broadly, if these proposals went ahead, they could undermine the ability of future UK Government’s to make the case for improvements in human rights standards, in other countries where they currently do not exist or are extremely weak.

I do not argue here that the application of the European Convention through the work of the European Court on Human Rights is perfect. Far from it: the decision taking process is sclerotic; the backlog of cases is a scandal. The UK Government has taken a lead in discussions on developing measures to ensure that the European Court works more efficiently.

And if, as the Conservative Party argues, the Court is suffering from ‘mission creep’ then to remain engaged with the Court and to argue that there has been mission creep seems to me a more positive way forward. (In the latest prisoners’ voting rights case, at least 2 judges expressed significant concerns about the way decisions of the Court had been going, which opens up the possibility that the Court might alter its approach. )

This should be an important issue for public debate. The problem is that so many people do not really understand what the Convention rights are nor how they are applied. The issues are treated inadequately in the news media. Thus there is often assumed to be a lack of common sense about the Convention and its application which is not justified.

Certainly it is an issue that will continue to attract attention over the next couple of years.

Written by lwtmp

October 4, 2014 at 5:13 pm

Courts rule draft legal aid regulation a nullity

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It is accepted that the courts have power to declare a statutory instrument invalid where it has been made outside the powers (ultra vires) provided in the Act of Parliament. In practice this happens rarely – not least because officials usually ensure that they do not act beyond their powers.

However, in July 2014, in The Queen on the Application of the Public Law Project -v- The Secretary of State for Justice and The Office of the Children’s Commissioner [2014] EWHC 2365 (Admin), the Administrative Court did find that a regulation had been made ultra vires.

The issue arose from the desire of the present Government to cut public expenditure on legal aid. Arguing that what money was available should go to those most in need, the Government proposed that there should be a ‘residence’ test for civil legal aid. This would mean that, with some exceptions, 12 months continuous residence in the UK would be required before someone could be eligible for public legal aid funding. The rule was set out in a Draft Regulation, that was due to come into force in August 2014.

The problem arose because the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in Part 1 of Schedule 1, list types of  case that remained potentially covered by the civil legal aid scheme.  Funding remains in place because the listed cases are regarded as having the greatest need for legal aid. In short, the Act limited entitlement according to criteria based on need and not on any other basis.

It was argued that, by seeking to prevent those coming new to the UK from getting legal aid, their needs might be just as urgent as those affecting people already here, but they would be denied legal aid because they did not meet the residence test. It was argued that the attempt to introduce this test by regulation was outside the scope of the Act. It was also argued that the effect of the regulation would, if upheld, be to discriminate unlawfully against those recently come from abroad. The Division Court agreed with these arguments and declared the Draft Regulation of no effect.

The Government announced that it would appeal the decision, but in the meantime, they would not go ahead with implementation of the draft Regulation.

The text of the decision is at http://www.judiciary.gov.uk/judgments/the-queen-on-the-application-of-the-public-law-project-v-the-secretary-of-state-for-justice-and-the-office-of-the-childrens-commissioner/

The Government response is at https://www.justice.gov.uk/legal-aid/newslatest-updates/civil-news/update-on-civil-legal-aid-residence-test

Written by lwtmp

September 30, 2014 at 5:06 pm

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