Martin Partington: Spotlight on the Justice System

Following its approval under the new Alternative Business Structure (see archive March 2012) Co-operative Legal Services has just announced a major expansion of its activities, including the employment of 3000 new staff (most of them legally qualified) over the next five years. These will include significant training opportunities for young lawyers.

Building on their current operation in Bristol, the plan is to open 5 additional hubs in different parts of the country, as well as a specialist family law unit to be based in London.

The focus of the company is on issues that impact on ordinary people: buying and selling houses; employment issues; probate and will writing; and personal injury.

Much of the advice and work will be undertaken on-line, using new website formats, though face-to-face services will be offered where appropriate.

The one surprising omission on their present list of activities is housing law – landlords and tenants often need legal advice and assistance in creating and ending tenancies.

For more detail go to http://www.co-operative.coop/legalservices/

Prosecutors in criminal cases often have to make difficult judgements about whether or not to prosecute. This is particularly so in cases involving complex economic crime – fraud, bribery and so on. The Coalition Government has just announced a consultation on ‘deferred prosecution agreements’ – basically a formal arrangement whereby, for agreeing to assist with an investigation, any prosecution will be deferred.

The Consultation Paper states:
‘Under a DPA, the prosecutor would lay, but would not immediately proceed with, criminal charges pending successful compliance with agreed terms and conditions stated in the DPA. The terms and conditions might include:

• payment of a financial penalty;
• restitution for victims;
• disgorgement of the profits of wrongdoing; and
• measures to prevent future offending (a monitoring or reporting requirement).

These would be discussed and agreed between the parties and then placed before a judge for consideration and approval. Time limits would be attached to the terms and conditions so that compliance can be managed and it will be clear when the agreement should cease.

Our intention is that this new tool will enhance prosecutors’ ability to detect and pursue economic crime committed by commercial organisations and to ensure economic offending which takes place across more than one jurisdiction is dealt with more effectively, as well as achieving better outcomes for victims.’

As with cautions and other recent innovations in the criminal justice system, this represents another development outside the historic ‘due process’ model of the criminal justice system.

The consultation runs for three months until 9 August 2012; developments with the idea will be kept under review.

For further detail go to:

https://consult.justice.gov.uk/digital-communications/deferred-prosecution-agreements

In addition to new rules on judicial appointments (see other blog entry) the Crime and Courts Bill 2012 will, when enacted, deliver other changes to the court system. These include:

• Allowing broadcasting from courtrooms
• Increasing the efficiency of fines by providing incentives for compliance, so offenders bear the cost for delaying payment, not taxpayers
• Creating a Single County Court system and a Single Family Court for England and Wales to allow greater flexibility for the handling of cases
• Allowing data to be shared between the courts, tribunals service and other agencies so fee exemption applications can be checked electronically.

While these may seem somewhat minor issues given the challenges currently facing the government, these changes should make some improvements in how courts function, and thus from this perspective are to be broadly welcomed.

One of the first new Bills to be introduced into Parliament, following the Queens Speech, is the Crime and Courts Bill. In relation to judicial appointments it includes measures to:

• Have an independent lay person as chair of the selection panels for both the Lord Chief Justice and President of the UK Supreme Court, rather than a judge
• Increase Judicial Appointments Commission (JAC) involvement in the selection and appointment of the judges who are authorised to sit as Deputy High Court Judges
• Provide the Lord Chancellor with an increased and more effective role in appointing the most senior judges – through the use of pre-selection consultation in appointments to the Court of Appeal and Heads of Division and sitting on the selection commission for the appointment of the Lord Chief Justice and President of the UK Supreme Court
• Reduce the role of the Lord Chancellor in the appointment of less senior judges, by transferring his powers for judicial appointments below the High Court and Court of Appeal to the Lord Chief Justice
• Introduce flexible deployment so judges can move between working in the courts and tribunals systems, to help judicial career development. (This was seen as a key step in the report published by the Advisory Panel on Judicial Diversity.)

Obviously these changes will not come into effect until the Bill has become law. Developments will be jept under review here.

The Queen’s speech which sets out the Government’s legislative proposals for the forthcoming year, was delivered on May 9 2012. While the headline media commentary was largely on the economy, there are matters in the proposals which – if enacted – will have an impact on the English Legal System. These are listed here, so that readers can take note of them and follow how they come into legislative form:

1 House of Lords reform – this is potentially the ‘big one’ in terms of constitutional change and political controversy. It is far from certain that sufficient political consensus will be created – in particular within the Coalition – to make its enactment an inevitability.

2 The Enterprise and Regulatory Reform Bill will contain proposals which will impact on the work of Employment Tribunals, and seek to ensure that more employment disputes are resolved by conciliation.

3 The Groceries Adjudicator Bill will create a new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – thus another area of disputes will – in effect be removed from the courts. (There are over 60 industry adjudication schemes already in existence in the UK – many of them not well understood but doing work of resolving disputes that otherwise might have gone to courts).

4 The draft Local Audit Bill will, if enacted, abolish the Audit Commission, which audits the activities of local government.

5 The Children and Families Bill will amend the law on adoption. It will also bring into law changes to the Family Justice system recommended by the Norgrove report.

6 The Electoral Registration and Administration Bill will make it easier for people to register to vote.

7 The Crime and Courts Bill will give statutory authority for the creation of the National Crime Agency. It will also amend some of the current provisions relating to the making of judicial appointments. It also provides for the televising of some court proceedings.

At page 40 of the book, it is stated that the Queen’s speech – which starts each session of a Parliament – is usually delivered in November. This used to be the case.Readers of the book who also take note of what is happening in Parliament may therefore be puzzled as to why in 2012 the speech was delivered in May.

The reason is that, following enactment of the Fixed-Term Parliaments Act 2011 – which will result in future General Elections normally being held in May (see p 30 of the book), it has been decided that the Queen’s speech should also be delivered in May – i.e. roughly on the anniversary of the Election that started the Parliament.

The question of the relationship between the English Legal System and in particular the UK Supreme Court and the European Court of Human Rights has been generating a lot of political heat in recent months – much of it deriving from the decision in the case Abu Qatada – who the British Government was to deport to Jordan for trial, but who – it is feared – may have evidence obtained by torture used against him. The political fallout from this very controversial case has been significant, with many people demanding that the UK no longer acknowledge the jurisdiction of the European Court.

By chance, in April 2012 – during the UK Presidency of the Council of Europe – a conference was held in Brighton designed to consider proposals for the reform of the court. In the event, the ‘nuclear option’ of the UK withdrawing from the Convention was averted and instead a number of reforms were agreed, designed to rebalance the relationships between Strasbourg and national supreme courts.

In outline, the Brighton Declaration does the following things:

• Makes proposals for amending the Convention to include the principles of subsidiarity and the margin of appreciation – this should give more power to domestic courts t0 decide matters without intervention from Strasbourg;
• Proposes amending the Convention to tighten the admissibility criteria- so that trivial cases can be thrown out and the focus of the Court can be serious abuses
• Reducing the time limit for claims from six months to four
• Improving the selection process for judges
• Setting out a roadmap for further reform.

The full text of the Brighton Declaration is at http://www.coe.int/en/20120419-brighton-declaration/

It will be realise that while what has been achieved may be useful first steps, the final implementation of the reform proposals will take some time to complete.