Following enactment of the Legal Aid Sentencing and Punishment of Offenders Act 2012,(LASPO) the scope of civil legal aid was significantly reduced. Civil legal services could only be funded under the new legal aid scheme which fell within statutorily prescribed classes of case. (See LASPO section 9 and schedule 1).
However, section 10 of the Act did provide that, in exceptional circumstances, civil legal services could be provided where
(a) … it is necessary to make the services available to the individual … because failure to do so would be a breach of –
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) … it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
The Director of Case Work has the statutory responsibility for making such decisions. In reality, the decisions are taken by case workers working within the Legal Aid Agency.
In coming to their decisions, case workers are required to take into account Guidance issued by the Lord Chancellor. (LASPO section 4.)
The Lord Chancellor was clearly anxious that, unless he was careful, the existence of exceptional funding might create a means for getting round the limitations he sought to impose on the Legal Aid scheme, which would have the effect of undermining the Government’s desire to reduce public expenditure on legal aid. Thus, in his guidance on exceptional case funding, which was published in 2013, it was stressed that, in reaching their decisions, case workers should understand that this funding ‘is to be used for rare cases’ only; ‘limited resources’ should be focussed ‘on the highest priority cases’. In relation to cases that might involve breach of Article 6 of the ECHR (right to a fair trial) the guidance stated: The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold” (original emphasis).
Shortly before Christmas 2014, the Court of Appeal handed down its decision in the case of Gudanaviciene . The case actually involved 6 cases which had been brought together because they raised in essence the same question – was the Lord Chancellor’s Guidance lawful? It was argued, in effect, that the terms in which the guidance had been drafted imposed too high a threshold on applicants for exceptional funding, and that therefore the guidance went beyond the words of the Act, and were in consequence unlawful.
The Court of Appeal agreed with this argument. In the course of a long judgement, they held, in part, that
The fact that section 10 is headed “exceptional cases” and that it provides for an “exceptional case determination” says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test. The criteria for deciding whether an ECF determination should or may be made are set out in section 10(3) by reference to the requirements of the Convention and the Charter. In our view, there is nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made.
They therefore concluded that the Lord Chancellor’s Guidance was unlawful.
The question for Government was: how to respond to this judgement? There were two options: take a further appeal to the Supreme Court; or reissue the guidance and hope that the revised guidance would comply with the Court of Appeal’s interpretation of LASPO.
In the event, the Government decided on the latter course. On 9th June 2015, the Lord Chancellor published revised guidance on how exceptional case funding decisions are to be made in future. While those who drafted the revised guidance are still concerned that the provision of exceptional case funding should be kept under controi, the ‘tone’ of the document seems to have softened. Indeed the emphasis, for case workers taking decisions on these matters is whether – as the Act says, the provision of such funding is necessary.
The recent election of the new Conservative Government has clearly scotched any lingering hopes in the legal profession that there would be any major softening of policy on civil legal aid. But the revised guidance on exceptional case funding for civil legal services does represent a change in emphasis which practitioners must note and apply.
To read the judgement of the Court of Appeal in the Gudanaviciene case go to https://www.judiciary.gov.uk/wp-content/uploads/2014/12/gudanavicience-ors-v-dir-of-legal-aid.pdf
To read the revised guidance on emergency case funding (non-inquest) go to https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance. This page also gives a link to the guidance relating to inquest cases.
Publication of the second Annual Report of the Legal Aid Agency might be thought to be an opportunity to find out in a bit more detail about what is happening to Legal Aid, following implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012. Those expecting such information will be very disappointed. The bulk of the Annual Report details how various business targets have or have not been met during the year under review. The report is thus about administrative and operational outcomes, rather than giving a view of how citizens are (or are not) being assisted by legal aid.
The Annual Report appeared on the same day as a much shorter summary by the Director of Legal Aid of issues that had come up during the same reporting year. This is also very general in tone – though it does mention a couple of cases that went to the Court of Appeal – and is more about the process of dealing with cases than anything else.
All the details on the current operation of the legal aid scheme is now put into quarterly statistical reports. The next is due at the end of June 2015. I will report on these in due course. But I very much regret that the reporting strategy of the former Legal Services Commission – which used to run legal aid – which included the key statistical headlines and provided a commentary on how the scheme was working for the public has not been continued.
To see the 2nd Annual Report go to https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2014-to-2015
The Director of Legal Aid Case Work’s Report is at https://www.gov.uk/government/publications/director-of-legal-aid-casework-annual-report-2014-to-2015
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
There have recently been two reports making proposals for reform of the civil justice system.
In the first, published in February 2015, a committee of the Civil Justice Council, chaired by Professor Richard Susskind made proposals for the development of online dispute resolution (ODR)
In summary the report calls for radical change in the way that the court system of England and Wales handles low value civil claims. We strongly advocate the introduction of online dispute resolution (ODR). The committee argued, in outline:
- For low value claims, we are concerned that our current court system is too costly, too slow, and
too complex, especially for litigants in person.
- To overcome these problems, our main recommendation is that HM Courts & Tribunals Service
should establish a new, Internet-based court service, known as HM Online Court (HMOC).
- On HMOC, members of the Judiciary would decide cases on an online basis, interacting
electronically with parties. Earlier resolution of disputes on HMOC would also be achieved –
through the work of individuals we call ‘facilitators’.
- We predict two major benefits would flow from HMOC – an increase in access to justice (a
more affordable and user-friendly service) and substantial savings in the cost of the court system.
- ODR is not science fiction. We present a series of case studies from around the world that clearly
demonstrate its potential.
- We argue that to improve access to justice, it is vital not just to have better methods of resolving
disputes but also to have effective ways of avoiding and containing disputes. ODR can help here.
- The technology underpinning ODR is evolving rapidly. We make a series of predictions about
the likely capabilities of later generations of ODR system.
- Our Group would be pleased to work closely with HMCTS in a new phase of work, that should
focus on piloting the proposals in this report.
Their report is available at https://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/
More recently JUSTICE has published an important report – Civil Justice in an Age of Austerity. A Committee, chaired by retired Court of Appeal Judge Sir Stanley Burnton, argues that the age of austerity should also be seen as ‘an age of opportunity’ to change the way the civil justice system operates.
It supports the proposals for ODR made by the Civil Justice Group (above) but goes further proposing that the courts take more responsibility for ‘triaging’ cases – with court officials playing a more proactive role in helping parties to disputes to resolve their problems themselves, leaving judges to deal with the most complex cases. It also argues for better information about legal rights and obligations.
The JUSTICE report is available at http://justice.org.uk/delivering-justice-in-an-age-of-austerity-report-launch/
Given the General Election, it will be some time before policy initiatives – if any – emerge from Government. But they show that there are influential figures in the legal system anxious to promote greater efficiency and a clearer user focus on the work of the courts.
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.