Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Launch of the Administrative Justice Council Newsletter

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Useful summary of just published newsletter from the Administrative Justice Council.

UKAJI

Launch of the Administrative Justice Council Newsletter

Starting November 2020, the Administrative Justice Council (‘AJC’) has launched a new tri-annual newsletter which will highlight the current work of the AJC and its members.

The first edition of the newsletter includes a review of the AJC’s recent Windrush Scandal webinar on 29 September, its responses to recent consultations regarding the future of legal aid and the Independent Review of Administrative Law, together with details regarding its survey on providing welfare benefit advice during the Covid-19 pandemic.

The first edition of the newsletter is available here. Those who wish to receive the updates should contact ajc@justice.co.uk.

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Written by lwtmp

November 20, 2020 at 2:57 pm

Collection of responses to the Independent Review of Administrative Law (IRAL)

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Given the importance of judicial review, it seems strange that the Independent Review of JR, chaired by Lord Faulks, decided it would not publish submissions it received to the Consultation it launched. This blog from the UK Institute for Administrative Justice very usefully provides a list of those submissions of which it is aware, with links to them.

UKAJI

Given the decision of the Independent Review of Administrative Law (IRAL) not to make publicly available responses received as part of its call for evidence, UKAJI has decided to bring together in one place IRAL responses which have been made public. Should you wish to include an IRAL responses on this page, please contact Lee Marsons on lm17598@essex.ac.uk.

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Written by lwtmp

November 4, 2020 at 10:46 am

Sentencing Act 2020 given Royal Assent

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On 22 October 2020, the Sentencing Act 2020 received the Royal Assent. A commencement date has not yet been set, but once it is, the Sentencing Code – which the Act contains – will come into force.

I have considered the content of the Code at https://martinpartington.com/2020/07/21/enacting-the-sentencing-code/

This is a significant achievement, undertaken by the Law Commission, which hopefully will bring greater clarity to the rules which the courts must apply when they sentence those convicted of crimes.

A press notice is at https://www.gov.uk/government/news/sentencing-code-granted-royal-assent

Written by lwtmp

November 4, 2020 at 10:32 am

The ethics of pro bono

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Very interesting reflections on ethics and pro bono law work by the leading commentator on the regulation of the legal professions

StephenMayson

A second nation-wide lockdown is now less than 48 hours away.Many of our fellow citizens will as a consequence face unexpected and unwelcome legal issues, and I suspect many of their needs will be met through pro bono provision.

I was therefore honoured and delighted to offer some opening thoughts this morning to a very important and timely seminar hosted by LawWorks and the University of Bristol as part of Pro Bono Week.I was invited to share my reflections on the two-year Independent Review of Legal Services Regulation that I concluded in June and the associated landscape of legal professional ethics. Here are those reflections (also available as a PDF).

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Written by lwtmp

November 3, 2020 at 1:37 pm

Posted in Uncategorized

Solicitors’ Qualifying Examination – starting 2021

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After many years of gestation, at the end of October 2020 the Legal Services Board gave its approval to proposals for the new Solicitors’ Qualifying Examination, due to come into force in September. It will only apply to students starting their legal studies after that date. Those currently reading law or in legal training will have 11 years to complete their route to qualification – using the existing channels.

In outline, the Solicitors Qualifying Examination (SQE) is a single, national licensing examination that all aspiring solicitors will take before qualifying. From 1 September 2021 to qualify you will need to:

  • have a degree in any subject (or equivalent qualification or work experience – for exampe through an apprenticeship);
  • pass both stages of the SQE assessment – SQE1 which focuses on legal knowledge and SQE2 on practical legal skills;
  • have two years’ qualifying work experience (which can be undertaken in up to 4 different locations and at different times); and
  • pass the SRA’s character and suitability requirements.

The SRA’s two stated objectives for the new framework are:
• greater assurance of consistent, high standards at the point of admission
• the development of new and diverse pathways to qualification, which are responsive to the changing legal services market and promote a diverse profession by removing artificial and unjustifiable barriers.

All new entrants – even those with law degrees – will have to pass both the SQE1 and SQE2. Current arrangements – whereby students who read law at university gain exemption from Part 1 of the Law Society Finals – are abolished.

The SRA will not regulate, accredit or endorse training providers or organisations. Nor will it have any role in approving, endorsing or overseeing the training courses or materials, or their quality. It merely provides a list of providers which is intended to help potential SQE candidates to find training. By encouraging competition between providers, the SRA hopes that the costs of such courses will be reduced.

SQE1 involves a test on the application of Functioning Legal Knowledge by answering two 180 question multiple choice assessments papers.

SQE2 involves assessment of practical legal skills listed as: client interviewing with linked attendance note/legal analysis; attendance note/legal analysis; advocacy; case and matter analysis; legal research and written advice; legal drafting and legal writing.

In granting its approval, the Legal Services Board recognises that this will be a new scheme that will not be entirely risk free. Thus the LSB has drawn attention to a range of issues that the SRA will need to manage carefully to realise the full benefits of the changes. The SRA has undertaken to:

  1. Monitor and evaluate the impact of the SQE and conduct an initial review within two years of implementation.
  2. Commission independent research in 2021 to investigate the underlying reasons that candidates from some protected minority groups did not perform as well as other groups in the SQE pilots. The results of the first cohort of the SQE will inform this research.
  3. Publish comprehensive guidance on qualifying work experience for candidates and firms.
  4. Continue to demonstrate openness and transparency as it implements the SQE. This includes publishing guidance for students on the different choices of SQE training available and data on performance in SQE assessments, as well as pass rates for candidates by the SQE training provider that they attended.

The hoped-for benefits for the new scheme are that:

  • costs will be less than existing routes to qualification;
  • a more diverse range of people will enter the profession;
  • those coming new to the profession will be better prepared for work as a solicitor.

What is unknown is whether law firms will recruit from those with different educational backgrounds or practical experience and therefore whether these new requirements will increase diversity in the solicitors’ profession.

Details of the scheme are at https://www.sra.org.uk/students/sqe/

The LSB decision is at https://www.legalservicesboard.org.uk/news/legal-services-board-approves-significant-changes-to-how-solicitors-qualify

Covid-19 and the English Legal System (15) – Criminal Justice in existential crisis?

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On Friday 30 October 2020 a research consultancy, Crest, published a report Impact and legacy of Covid-19 on the CJS: Modelling overview. Using existing data to model future developments, the report set out what it regarded as the possible impact of Covid-19 on the Criminal Justice System.

The rather sober title of the report was not matched by the press release Crest drafted to draw attention to its study. This was headed “A perfect storm: why the criminal justice system is facing an existential crisis”. This apocalytic vision certainly caught the eye of some journalists – which is of course the reason why I am now writing about it now.

And the report is a really important one, which underscores the urgent need for the Government to get on with the appointment and work of the promised Royal Commission on the Criminal Justice system. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)

The report starts by reminding readers that, even before Covid-19, the CJS was facing a number of long-standing problems: decreasing charge rates, worsening court timeliness and an estimated backlog in the courts of c.104K
cases, prisons and probation operating at full capacity. Covid-19 has added to those pressures. The report also predicts a future of increased pressure, the consequence of the likely rise in long term unemployment due to the economic impact of Covid, leading to more crime, and the 20,000 increase in police officer numbers, leading to more detection and the need to process more people through the system.

The research team’s modelling suggests, that without any action, the Crown Court backlog is projected to increase from c.45.5K in 2019 in to c.195.5K (x4) in 2024. and the magistrates’ court backlog is projected to increase from c.58.6K in 2019 to 580.3K (x10) in 2024.

Current responses by Government – e.g. making more courts covid-safe and opening Nightingale Courts in a number of town – just do not cut the mustard, in Crest’s view. Much more dramatic action is needed.

The principal criticism contained in the report is that there is currently no ‘whole-system’ view of the challenges facing the CJS. Different parts of the system work in isolation from other parts.

For example: the 20K police uplift will lead to a rise in pressure on the court backlogs; if the courts increase their outflow in sentenced cases, there will be a rise in pressure on prisons and probation.

Furthermore, assuming equilibrium is achieved in courts, suspended sentence orders are projected to increase by 24%, post-release supervision caseload will increase by 30% and community sentence orders are projected to increase by 14% by 2024. This will put extreme pressure on a probation service which was already underperforming.

There is, in the report’s view, inadequate recognition within Government of the interdependencies of each part of the criminal justice system.

The Crest report states that

“to bring the backlog back to pre-Covid levels will require a change in more than just capacity.
Options include:
● increasing the speed with which cases are dealt with: e.g. increasing the efficiency of listing, decreasing victim attrition, decreasing cracked trials etc.
● decreasing the amount of cases entering the court system by increasing effective out of court disposals
● decreasing the amount of police recorded crime originally entering the CJS through effective crime prevention programmes.”

I think some would argue that this list of options is not an original one. All these ideas have been discussed within the CJS, and achieving the outcomes suggested in the report is not easy. But what this report has very effectively done is highlight precisely the challenges that the now increasingly delayed Royal Commission must address. It should be a matter of urgency for the Government to get the Commission up and running.

The Crest Report is available at https://www.crestadvisory.com/post/covid-19-and-the-criminal-justice-system

Covid 19 and the English Legal System (14) – Family Justice

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As with all parts of the English Legal system, the family justice system has had to cope with the effects of Covid-19. A new report from the Nuffield Justice Family Justice Observatory takes a fresh look at how the system has been coping – in particular with the use of remote (where both parties are not in court) and hybrid (where one party is in court) hearings. It is based on a survey of 1300 people involved in family law cases, undertaken in September 2020. It is a follow-up to their first snapshot survey undertaken in April 2020. (see https://martinpartington.com/2020/07/07/covid-19-and-the-english-legal-system-10-family-justice/)

This second survey and accompanying report shows that “most professionals (86%) felt that things were working more smoothly and some reported benefits to working remotely, for both parties and themselves.” However, “[t]hey shared concerns about the difficulties of being sufficiently empathetic, supportive and attuned to lay parties when conducting hearings remotely’. Nonetheless “more than three quarters (78%) felt that fairness and justice had been achieved in the cases they were involved with most or all of the time”.

When it came to how parents and relatives themselves felt. “a majority… (88%) reported having concerns about the way their case was dealt with, and two thirds (66%) felt that their case had not been dealt with well. Two in five (40%) said they had not understood what had happened during the hearing”.

As might be anticipated, there were complaints about problems with connectivity. And there was a feeling that for remote hearings telephone links were not as satisfactory as video links.

The President of the Family Division, Sir Andrew Macfarlane has welcomed the report and undertaken to ensure that the issues raised are addressed.

One specific point made by the Nuffield authors is that they do not expect any early change to practices currently in use to deal with the implications of Covid 19. Because of the urgency of many of the issues which which the family court has to deal, it is essential that all those involved continue to work to improve what is currently happening. Of course, the longer this goes on, the more evidence can be obtained about what works well in the new system as well as what does not work well. I am sure that, after Covid-19, the system as a whole will not return to its pre-pandemic state.

The Nuffield Family Justice Observatory Report and Consultation are at https://www.nuffieldfjo.org.uk/resource/remote-hearings-september-2020.

Sir Andrew Macfalane’s comments are at: https://www.judiciary.uk/announcements/remote-hearings-in-the-family-justice-system-follow-up-consultation-report/

Written by lwtmp

November 1, 2020 at 11:31 am

Root and branch review of the system of parole and the work of the Parole Board

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The work of the Parole Board has changed significantly over the last 10 years. New rules and new procedures have been introduced. It now holds more than 30 times the number of hearings it held in 2010. In its 2019 General Election Manifesto, the Government stated that it would undertake a fundamental review of the current system. The details of what is planned have now (October 2020) been published. The announcement states:

The Root and Branch review will focus on the following 4 areas:

1.An evaluation of the parole reforms to date:

  • considering the overall performance of the parole process and identifying whether any further measures would help to improve the timeliness and efficiency of the process
  • the response to Covid-19 (in particular with use of online hearings) and its implications on the way parole reviews may be conducted in the future
  • examining the effectiveness of the reconsideration mechanism (introduced to enable prisoners and others ask for a reconsideration of a decision without the expense of taking judicial review proceedings) and whether there is a case for further reform of that process
  • identifying any additional legislative or Rule changes that would further improve the parole process including whether the current release test continues to be appropriate

2.The constitution and status of the Parole Board:

  • examining whether the Parole Board should remain a non-departmental public body or should be made more visibly independent from the Ministry of Justice
  • whether possible alternatives, such as creating a new type of public protection tribunal, could deliver the parole function in a more efficient and cost-effective way
  • considering the need for any additional measures to strengthen the Parole Board’s powers to reinforce its status as a court-like body

3.Improving public understanding and confidence:

  • exploring whether further steps could be taken by the Board and other parts of the system to help explain and publicise what parole decision making is, how it works and what the assessment entails
  • ways to better communicate that parole decisions are not about ongoing punishment for the offences committed and that release is not a reward for good behaviour in prison
  • improving messaging that the parole system protects the public by authorising the continued detention of dangerous offenders and that only a minority of prisoners considered for parole are released

4.Openness and transparency:

  • developing a way for victims to observe oral hearings in a safe and secure way without compromising the Board’s ability to perform its function and obtain the best possible evidence from the prisoner and professional witnesses
  • considering the case for public hearings and whether this would be possible and appropriate in certain limited cases
  • looking at ways to build on the work already done to improve openness and transparency.

The Government observes that:

“the underlying aim of this review is to determine whether the Parole Board in its current form and constitution remains the most effective model for what the future of the parole system may look like; to command public confidence in the decisions it makes; and to deliver its functions in the most effective and transparent way possible, whilst ensuring that there is an effective independent judicial mechanism for keeping under review the continued lawfulness of custody.”

At the same time as these terms of reference were published, the Government also published what is called a “Tailored-Review of the Parole Board“. This was undertaken in accordance with the Cabinet Office requirement that all public bodies are reviewed at least once per parliament.

This review of the Parole Board focused predominantly on operational changes that could be made within the current legislative framework, making recommendations which further improve collaboration within the parole system and highlighting existing legal powers that the Parole Board can use to compel the production of evidence and the attendance of witnesses, with the intention of ensuring that all cases progress in a timely manner.

On the same daty as these two documents were published, the Government also published its first consultation paper which explores options for increasing the transparency of the parole system. The consultation seeks views on the possibility of allowing victims to observe parole hearings and on whether the media and wider public should also be given greater access to hearings where it is appropriate to do so. The Consultation runs until 1 December 2020. The Government hopes to respond to it by the end of 2020

Changes recommended in the tailored review will no doubt be brought into effet pretty quickly. The consequences of the root and branch review will take longer. But a period of considerable change at the Board can be anticipated.

The Terms of Reference are at https://www.gov.uk/government/publications/parole-system-reform/terms-of-reference

The Tailored Review is at https://www.gov.uk/government/publications/parole-system-reform and follow the link

The Consultation Paper is at https://www.gov.uk/government/consultations/root-and-branch-review-of-the-parole-system

Written by lwtmp

October 31, 2020 at 11:02 am

Posted in Chapter 5

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A guide to reading the Official Statistics on judicial review in the Administrative Court

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Interesting report of interest to all those interested in administrative justice

UKAJI

A guide to reading the Official Statistics on judicial review in the Administrative Court

PAjustice

By Lewis Graham, Lee Marsons, Maurice Sunkin and Joe Tomlinson

UKAJI is delighted to publish this guide written by Lewis Graham (University of Cambridge), Lee Marsons (University of Essex), Maurice Sunkin (University of Essex), and Joe Tomlinson (University of York) on how to read the official statistics from the Ministry of Justice on judicial review in the Administrative Court.

Specifically, this guide aims to help people understand what the official statistics tell us and do not tell us about the use of judicial review in the Administrative Court. The note draws on the civil justice statistics published annually by the Ministry of Justice. This note seeks to explain the available statistics in an impartial way with a view to making them easier to read and understand.

In light of the current Independent Review of Administrative Law…

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Written by lwtmp

October 16, 2020 at 8:29 am

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Jury trials – a case for change?

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One response to the difficulties of running jury trials in the current Covid-19 world, where social distancing is crucial yet difficult to achieve in a crowded courtroom, has been that – at least temporarily – alternatives to juries should be tried.

The Lord Chancellor has set his face against this idea. Indeed, most people who even float the idea that jury trials should be abolished tend to be treated with scorn.

Nevertheless, it is worth noting that there is the occasional voice to be heard, suggesting that jury trial is not all that it is cracked up to be.

In this context, readers of this blog might be interested in a book, published in 2019, by the late Louis Blom-Cooper QC who suggested that criminal trials might be run differently.

In Unreasoned Verdict, Blom-Cooper argues that:

The system of jury trial has survived, intact, for 750 years. This book explains the nature and scope today of jury trial, with its minor exceptions. It chronicles the origins and development of jury trial in the Anglo-Saxon world, seeking to explain and explore the principles that lie at the heart of the mode of criminal trial. It observes the distinction between the professional judge and the amateur juror or lay participant, and the value of such a mixed tribunal. Part of the book is devoted to the leading European jurisdictions, underlining their abandonment of trial by jury and its replacement with the mixed tribunal in pursuance of a political will to inject a lay element into the trial process. Democracy is not an essential element in the criminal trial.

The book also takes a look at the appellate system in crime, from the Criminal Appeals Act 1907 to the present day, and urges the reform of the appellate court, finding the trial decision unsatisfactory as well as unsafe.

Other important issues are touched upon – judicial ethics and court-craft; perverse jury verdicts (the nullification of jury verdicts); the speciality of fraud offences, and the selection of models for various crimes, as well as suggested reforms of the waiver of a jury trial or the ability of the defendant to choose the mode of trial. The section ends with a discussion of the restricted exceptions to jury trial, where the experience of 30 years of judge-alone trials in Northern Ireland – the Diplock Courts – is discussed.

Finally, the book proffers its proposal for a major change in direction – involvement of the defendant in the choice of mode of trial, and the intervention (where necessary) of the expert, not merely as a witness but as an assessor to the judiciary or as a supplemental decision-maker.

I think it highly unlikely that there will be any change in the foreseeable future. But that does not mean that arguments against the ways in which juries are currently used should not at least be considered and debated to see whether there might be alternative arrangements that might work better and more fairly.Source: adapted from publisher’s notice at https://www.bloomsburyprofessional.com/uk/unreasoned-verdict-9781509915224/

Written by lwtmp

October 10, 2020 at 2:12 pm