Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Disclosure of unused evidence in a criminal trial

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Part 2 of the Criminal Procedure and Investigations Act 1996 makes provision for the publication of a Code of Practice which sets out how police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation. A previous version of the code was published in 2005.

In May 2014 the Magistrates’ Court Disclosure Review recommended a streamlined procedure in summary cases that are expected to end in a guilty plea, so that a schedule of unused material need not be served in such cases. To this end it recommended amendments to the code, some of which are incorporated in the revised code.

The revised code was laid in Parliament on 28 January 2015. The Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015 will bring it into force the day after the Order has been approved by affirmative resolution of both Houses of Parliament.

The Code, in its present unappoved form is available at https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-code-of-practice

Written by lwtmp

March 3, 2015 at 4:39 pm

Victims in the criminal justice system: getting the balance right

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Successive governments have attempted to improve the position of the victims of crime in the criminal justice system. But there is clear evidence that there is still room for further improvement.

In January 2015, the Victims’ Commissioner, Baroness Newlove, published a report which showed the gap between what was supposed to happen to victims, and what actually happened. The principal recommendation of her report was the adoption of a set of principles, drawn up by her, to which all actors in the criminal justice system should adhere.

The Commissioner stated that all victims should have:

  • Clear information from agencies and service providers on how they will support them in raising a concern or making a complaint about the service they have received
  • Information on how informal concerns can be submitted and dealt with, in additional to processes for the submitting of formal complaints
  • Details on how agencies and service providers will keep victims informed of the progress of their complaint at all stages
  • The option to state their preferred method of communication with an agency or service provider when raising a concern or making a complaint
  • Clear information to understand what to do if not happy with the response that has been received, including details about the role of the Parliamentary and Health Service Ombudsman and the right to complain to them
  • Information on how they might be able to be involved in developing, reviewing and improving an agency’s or service provider’s complaints process.

In addition, she stated that agencies and service providers should ensure they offer to all victims:

  • A clear statement about the support they will provide to victims who wish to raise a concern or make a complaint about the service that has been provided
  • Processes to deal with concerns swiftly and informally where appropriate, in addition to processes to deal with more formal complaints
  • A commitment that they will deliver mandatory training and development plans for all staff who deal with victims’ complaints
  • A commitment to ensure that all staff who interact with victims, have in place a performance objective reflecting how they will be held accountable for treating victims with empathy, dignity and respect
  • Properly defined processes and recording practices which enable victims complaints to be handled proactively and appropriately
  • A published statement on whether they will apply the Parliamentary and Health Service Ombudsman’s Principles of Good Complaint Handling in their complaints processes

In addition, agencies should publish information illustrating how complaints from victims have led to improvements in services.

The Government announced in February 2015 that it accepted these proposals and would work to bring them into practical effect.

The Commissioner’s report is at http://victimscommissioner.org.uk/baroness-newlove-victims-still-let-down-by-justice-agencies/

The Government’s response is at https://www.gov.uk/government/news/response-to-the-victims-commissioners-review-of-complaints-and-resolution-for-victims-of-crime

In January 2015, the Government has announced that an online service TrackMyCrime, which has been developed by Avon and Somerset police, will start to be rolled out nationally. This is designed to keep victims updated on the progress of their case, allow them to submit details about stolen or damaged property, and find information on support and advice. Crucially, officers and victims can securely exchange messages with one another at any time and police can regularly update victims on the progress of the case. This offers more flexibility for victims and will be more efficient for police officers working shifts.
See https://www.gov.uk/government/news/online-tracking-service-launched-for-victims-of-crime

And in yet a further development, the Government has announced further support for victims and witnesses in court, through a doubling of the number of Registered Intermediaries – people able to support victims and witnesses as they give evidence in court.
See https://www.gov.uk/government/news/courtroom-communications-experts-to-double

Written by lwtmp

March 3, 2015 at 4:30 pm

Online Dispute Resolution – proposals from the Civil Justice Council

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The Civil Justice Council has just published an important report on the potential for the use of new processes to deal with disputes in small value claims, under £25,000.

In summarey, the report states:

‘Our principal recommendation is that HM Courts & Tribunals Service (HMCTS) should establish a new, Internet-based court service, known as HM Online Court (HMOC). We recommend that HMOC should be a three-tier service.

  •  Tier One of HMOC should provide Online Evaluation. This facility will help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them.
  •  Tier Two of HMOC should provide Online Facilitation. To bring a dispute to a speedy, fair conclusion without the involvement of judges, this service will provide online facilitators. Communicating via the Internet, these individuals will review papers and statements and help parties through mediation and negotiation. They will be supported where necessary, by telephone conferencing facilities. Additionally, there will be some automated negotiation, which are systems that help parties resolve their differences without the intervention of human experts.
  • Tier Three of HMOC should provide Online Judges – full-time and part-time members of the Judiciary who will decide suitable cases or parts of cases on an online basis, largely on the basis of papers submitted to them electronically as part of a structured process of online pleading. This process will again be supported, where necessary, by telephone conferencing facilities.
    2.5

The establishment of HMOC will require two major innovations in the justice system of England and Wales. The first is that some judges should be trained and authorized to decide some cases (or aspects of some cases) on an online basis. The second innovation is that the state should formally fund and make available some online facilitation and online evaluation services.

To ensure the implementation of our principal recommendation, we propose three supporting recommendations:
• that HMCTS introduces an ODR stream into its current programme for the reform of civil, family, and tribunal work, and allocates a modest fraction of its £75 million annual reform budget (over five years) for the establishment of HMOC;
• that all political parties offer in-principle support for HMOC, as a viable way of increasing access to justice and reducing the cost of the resolution of civil disputes; and
• that the Civil Justice Council invites the ODR Advisory Group to commence a new phase of work, collaborating with HMCTS and the Judiciary in formally piloting ODR, designing HMOC, and raising awareness of this new approach to the handling of civil disputes.

Although our terms of reference are restricted to civil claims under the value of £25,000, we believe that that the jurisdiction of HMOC should also be extended to suitable family disputes and to appropriate cases that come before today’s tribunals.’

It seems to me that developments on these lines are inevitable, for two particular reasons:

First, there are already in existence in the UK a number of dispute resolution procedures that are efficient and very cost effective using modern IT. Examples mentioned in the report include the Financial Services Ombudsman scheme, the Traffic Penalty Tribunal scheme, and Resolver.co.uk. However the majority of live examples are currently operating abroad. It is a pity that other similar procedures already operating in UK are not mentioned – for example the tenancy dispost dispute resolution schemes, all of which operate online and are free to appellants. (I am Chair of the Board of one of the companies offering this service.)

Second, the EU is in the final stages of ensuring that new forms of consumer ADR and ODR will be in place in member countries in the near future.

However, I also think more work needs to be done on considering the sources of the resources needed for running the service. Will this all come from the state? from users? from insurance companies needing to get disputes resolved? from industry bodies?

It also needs to be asked who the adjudicators should be. The report talks about members of the judiciary. But large numbers of disputes do not involve complex questions of law – they depend on the finding of facts based on evidence provided. It is not self evident to me that the only people capable of reaching sensible conclusions are judges. Indeed the existing schemes demonstrate that this is not the case.

Further development will be noted here as they occur.

Meantime, the CJC report is available at http://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/

Written by lwtmp

February 25, 2015 at 1:22 pm

Supporting Heroes – the new law

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On 30 July 2014, I summarised the Government’s proposals for ‘supporting heroes’ contained in the Social Action, Responsibility and Heroism Bill 2015. The proposals have now completed the Parliamentary process, and the Social Action, Responsibility and Heroism Act 2015 is now on the statute book.
To recap, the Act provides that when dealing with negligence claims or claims for breach of statutory duty the courts should consider:

  • whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members (section 2) ;
  • whether the person , in carrying out the activity giving rise to the claim , demonstrated a generally responsible approach towards protecting the safety or other interests of others (section 3) ;
  • whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to his or her own safety or other interests (section 4).

The Act will come into force on a date to be announced later.

 

Written by lwtmp

February 25, 2015 at 12:37 pm

Review of Efficiency in Criminal Proceedings

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The results of the inquiry by Lord Justice Leveson into the efficiency of criminal proceedings was published in January 2015.

His task was to come up with recommendations that could be implemented without legislative change.

In summary, he recommends:

  • the greater use  of  video and other conferencing technology across the system (including courts and prisons) particularly featuring remote hearings in the Crown Court, which would lead to a better service for all those involved and reduce both delay and cost (para. 40-50);
  • facilitating the use in court of evidence gathered by police on video cameras mounted on their bodies or helmets (para. 58) and a streamlined approach to other evidence which has been captured electronically,  such as interviews of child witnesses (achieving best evidence) and interviews with defendants (para. 250);
  • more flexible opening hours in magistrates’ courts to accommodate those who cannot attend hearings during normal office hours (para. 54);
  • tighter case management by judges, including, in appropriate cases, the provision of timetables for evidence and  speeches (para. 274, 281);
  • that contracts awarded to those responsible for delivering prisoners to court should require greater efficiency so that prisoners appear on time and do not delay proceedings (para. 214).
  • that there should be funding available to pay for the inevitable cost of changing from the current systems to the more efficient ones (para. 320).

There is also an interesting chapter (chapter 10) on other changes that might be contemplated, but on which, because they would require legislation, he does not make recommendations. These include the controversial question of whether the ways in which defendants can opt for jury trial should be changed.

The full report can be found at http://www.judiciary.gov.uk/publications/review-of-efficiency-in-criminal-proceedings-final-report/

Written by lwtmp

February 3, 2015 at 1:09 pm

Family Justice Research

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Big changes are in progress in the family justice system. Researchers, both within government and outside, are engaged in a number of research projects designed to examine how the family justice system is working. Indeed, a number of recommendations in the Family Justice Review related to the need to better share relevant research and good practice throughout the family justice system. The government accepted these recommendations and agreed to work with the Family Justice Board to help provide social research evidence to family justice professionals and wider stakeholders.

The Family Justice Research and Analysis team in Ministry of Justice Analytical Services are supporting this through their Family Justice Research Bulletin. The 5th volume of the Bulletin was published in January 2015. The 4th is also available on-line but numbers 1-3 are not. It is planned that further bulletins will be published roughly every six months.

Given the controversies that surround the operation of the family justice system, the undertaking and publication of high quality empirical research is obviously necessary to ensure that the system is working as intented.

One of the principal findings in the present edition is that public knowledge of what is happening to the family justice system is very sketchy; and that government hopes for more use of mediation are still thwarted by a lack of willingness of parties to participate in mediation. There also seems to be a lack of understanding that while legal aid for family matters has been cut back, it is still available for mediation.

Those interested in the research discussed in the bulletin can find full details at https://www.gov.uk/government/publications/family-justice-research-bulletin-5-january-2015

Bulletin 4 is at https://www.gov.uk/government/publications/family-justice-research-bulletin-4-mar-2014

Written by lwtmp

February 3, 2015 at 12:44 pm

Civil legal aid – review of the ‘mandatory gateway’

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Legal practitioners have long argued that the only way to deliver proper legal advice and assistance is by face to face interviews with clients. With the development of new technologies, this view has come under increasing attack. It has been argued that remote contact via phone or email can often be just as effective and will often be more economical. An important research report on the issue by Alan Paterson and Roger Smith was published in 2014: see http://www.nuffieldfoundation.org/face-face-legal-services-and-their-alternatives-global-lessons

One of the fundamental changes made to the legal aid scheme as the result of the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 is that, from April 1, 2013, in a number of matters that are still within the scope of the legal aid scheme, potential users of the legal aid scheme can only access the civil legal aid scheme through a ‘gateway’. Clients cannot get assistance by going direct to, for example, a solicitor.

(There are three exceptions, for those who are:

  • in detention (including prison, a detention centre, or secure hospital);
  • children (defined as being under 18); or,
  • where the matter for which they need assistance is one where the user has previously been assessed as requiring face-to-face provision, has accessed face-to-face within the last twelve months, and is seeking further help to resolve linked problems from the same face-to-face provider.)

The Gateway is delivered by the Civil Legal Advice (‘CLA’) advice helpline for England and Wales, paid for by legal aid. It provides, for people who qualify for civil legal aid, specialist legal advice, primarily by telephone, online, and by post, in relation to

  • debt,
  • discrimination,
  • Special Educational Needs,
  • housing, and
  • family issues.

It is available Monday to Friday 9am to 8pm and Saturday 9am to 12.30pm. Outside these times users can leave a message and CLA will call back within one working day.

Clients who qualify for legal aid in the first 3 Gateway categories listed above must usually receive any advice remotely. Clients who qualify in the other 2 categories of law have a choice about whether to receive any advice remotely or via a face-to-face provider.

The gateway provides  a two-tier system. At tier one, the operator will determine whether the matter is within the scope of legal aid and will also determine the financial eligibility of the client to legal aid. If both these tests are satisfied, the client is  referred to a specialist second tier advice provider. In cases that fall outside the scope, operators are training to inform people about possible alternative advice providers, e.g. in the charitable advice or third sectors.

Where a case is found to be within the scope of CLA, the client is referred to a second tier provider – a specialist who will normally provide advice remotely without a face-to-face meeting with the client.

The one exception to this is that where a client needs legal representation, arrangements will be made for a face-to-face meeting.

Because the compulsory element of the scheme was new, the Government undertook to review how the scheme was working within the first two years of its operation. In December 2014, it published the outcome of this review (and four separate research reports that were commissioned by the Government).

The broad conclusion was that, while there were matters that needed tweaking, the basic operation of the gateway was working satisfactorily,

My prediction is that, as policy evolves, there will be more use of these modes of accessing legal advice and assistance.

The Government’s view is available at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-review. Annex A gives more detail about the issues within scope. Annex B gives details about the agencies currently providing the gateway service.

The related research reports are at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-research-findings

Written by lwtmp

January 17, 2015 at 1:56 pm

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