Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

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

Public defender service – expansion

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The Public Defender Service (PDS) was established in 2001 to offer an alternative to solicitors in private criminal legal aid practice. The service now operates out of 4 centres: Cheltenham Darlington, Pontypridd and Swansea. These offices operate as solicitors but the staff are employed by the Legal Aid Agency, rather than paid fees by the Agency.

In 2014, the scope of the PDS was expanded by the creation of PDS Advocates, described as “a team of 25 barristers and higher courts advocates including seven Queens Counsel with experience at every level of the criminal justice system [providing]… independent, high quality, professional advice and representation to accused persons throughout England and Wales.

“Amongst [the] team, [are] advocates who specialise in murder, fraud, historic and serious sexual offences, terrorism and Very High Cost Criminal Cases.

[The team] can be instructed to carry out work by any solicitors looking for representation for their clients in the Higher Courts of England and Wales [and] are able to operate nationally.”

This development occurred at a time when barristers were in significant conflict with the Ministry of Justice over rates of pay for criminal legal aid work and appears to have been a response to barristers refusing to take on some serious criminal trials.

For further details of the PDS go to http://publicdefenderservice.org.uk/

Written by lwtmp

September 26, 2014 at 11:44 am

Podcasts – volunteers: innovation in service delivery

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One feature of this blog are the podcasts I have made with a variety of leading legal actors. I will continue to add to these from time to time.

But, given the rapidly changing environment within which legal services are being provided, I thought it would be interesting to hear from more recently qualified lawyers about what type of work they are doing, how they are doing it, how it is being paid for.

I would be especially interested in talking with people offering legal services in innovative ways, who may be able to share ideas about the development of legal services in ways that will interest current law students and those coming new into the legal world.

If you would like to volunteer please contact me through the ‘leave a comment’ button just below the heading to this blog item. Your comment will not be published unless you want this to happen.

Written by lwtmp

September 26, 2014 at 10:02 am

Posted in Podcasts

Improving efficiency in the criminal justice system

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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;

and

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.

For more detail see http://www.judiciary.gov.uk/the-president-of-the-queens-bench-divisions-review-of-efficiency-in-criminal-proceedings/

Written by lwtmp

August 25, 2014 at 9:18 am

Posted in Chapter 4, Chapter 5

Prisoners’ voting rights: latest developments

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The question of whether the UK Government’s policy, that all prisoners should be denied the right to vote while they are in jail, has received further consideration, both in the UK Parliament and in the Grand Chamber of the European Court of Human Rights.

In the 2004 case of Hirst v United Kingdom (No. 2), the European Court of Human Rights found that the UK’s complete prohibition on convicted prisoners voting was incompatible with the European Convention on Human Rights. (A number of other cases had also reach this conclusion.)

The UK Government’s position has been that the blanket ban is justified on public policy grounds. However, given the clear ruling of the European Court, in 2012 the Government – after considerable delay and with very great reluctance – did publish a draft Voting Eligibility (Prisoners) Bill. This Bill was subject to pre-legislative scrutiny by a Joint Committee of the House of Commons and the House of Lords.

In December 2013, it published a thoughtful report on the issue.

By way of background, the Committee stated:

‘Underlying our inquiry is a far-reaching debate about the United Kingdom’s future relationship with the European Court of Human Rights, the Convention system as a whole and our attachment to the rule of law.

‘In reaching our conclusions we have taken fully into account the grave implications of a refusal to comply with the Court’s judgment for the UK’s relationship with the Court and for the future of the entire Convention system. A refusal to implement the Court’s judgment, which is binding under international law, would not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow.

‘We have also considered the implications of failure to comply with the European Court’s ruling for the rule of law, which the UK has for so long upheld. The rule of law has been and should remain a fundamental tenet of UK policy. It is not possible to reconcile the principle of the rule of law with remaining within the Convention while declining to implement the judgment of the Court.’

Taking these general principles into account, the Committee then considered the options relating to prisoners’ voting rights.

‘In the Committee’s view, the following considerations should be taken into account:

  • In a democracy the vote is a right, not a privilege: it should not be removed without good reason.
  • The vote is a presumptive, not an absolute right: all democratic states restrict the right to vote in order to achieve clearly defined, legitimate objectives.
  • The vote is also a power: citizens are entrusted, in voting, with an element of power over their fellow-citizens.
  • There is a legitimate expectation that those convicted of the most heinous crimes should, as part of their punishment, be stripped of the power embodied in the right to vote.
  • There is an element of arbitrariness in selecting the custody threshold as the unique indicator of the type of offence that is so serious as to justify loss of the vote.
  • There are no convincing penal-policy arguments in favour of disenfranchisement; but a case has been made that enfranchisement might assist prisoner rehabilitation by providing an incentive to re-engage with society.
  • The enfranchisement of a few thousand prisoners is far outweighed by the importance of the rule of law and the desirability of remaining part of the Convention system.’

In the light of these considerations, the Committee recommended that
‘the Government introduce a Bill at the start of the 2014-15 session, which should provide that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections; and moreover that prisoners should be entitled to apply, up to 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released.’

In February 2014, the Lord Chancellor wrote to the Committee a letter thanking them for their views and assuring them that they were under active consideration in Government. This letter was published in June 2014. No Bill was announced in the Queens Speech delivered in June 2014.

Since then, a further case has been determined by a Chamber of the European Court of Human Rights. In Firth and others v United Kingdom, decided in August 2014, it was held that – failing a legislative response to its earlier rulings – the United Kingdom remained in breach of the European Convention on Human Rights.

However the Chamber refused to award any damages to the applicants, on the grounds that this ruling was enough. The decision also included a dissenting judgement from JUDGE NICOLAOU, who did not think that there had been a breach of the European Convention. In another dissenting judgement, JUDGE WOJTYCZEK indicated his view that the line of decisions developed by the European Court might not be correct and in his view the whole issue should have been revisited by the Court.

There is no doubt that there remains in the UK – and perhaps in other states in the Council of Europe – a view that prisoners should not have the vote. However, there is also no doubt that, pending any revision of the Court’s approach – the present position of the UK Government is at odds with the European Convention as interpreted by the European Court on Human Rights. It may be anticipated that any further response from the UK Government will be further delayed, especially in the light of the reservations expressed by two of the judges involved in the latest case.

For further information, see report of the Joint Committee at http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/10303.htm;
the report of the Grand Chamber of the European Court is at http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-146101%22]}

Written by lwtmp

August 21, 2014 at 3:51 pm

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