Martin Partington: Spotlight on the Justice System

Those coming new to the study of law are facing a rapidly changing legal profession. The ability to create Alternative Business Structures (ABS) is one of the factors driving this change. At present there is little in the way of organised research to enable students to find out what the impact of their creation is on the ways in which legal services are delivered. But the Legal Futures website (see links at the side of this page) is a good place to start finding out what is happening.

I last wrote about developments with ABS in March 2013. I was commenting on the report of the Solicitors Regulatory Authority on its first year of operation. I noted that the number of ABS licensed by the SRA was then over 100.

Since then, numbers have continued to rise. Now (August 2013) the current total is 183. And there are some big beasts waiting in the wings who have started the process of applying for a licence under the scheme. Most notable is the application by the Direct Line Insurance company – the largest motor insurer in the UK – to apply for an ABS licence. This has been done in partnership with a legal practice Paribas Law – which itself was one of the early firms to achieve an ABS licence.

At least part of the reason for Direct Line seeking to do this is that, with the abolition of referral fees (from which it derived a lot of income) it now wants to provide the legal services that arise out of accident claims itself.

But developments in the ABS are not limited to high profile applications such as Co-op Legal Services or BT or now DLG Legal Services (which is the commercial name being used by Direct Line in its application).

At the other end of the market a number of existing providers of legal services at the social welfare end of the market have been contemplating how ABS might help them sustain their services, facing as they are huge cuts in publicly funded legal aid. Leading the field here is the legal advice charity in Leicester, which in April 2013 became the first not-for-profit organisation to set up an alternative business structure (ABS). The Community Advice and Law Service (CALS) won approval to launch Castle Park Solicitors Community Interest Company, whose profits will go to support the continuing work of the charity.

Research carried out by Warwick University earlier this year suggested that around 20% of existing advice centres are likely to explore this option. It is far to early to conclude from this example that the ABS will fill the funding gap left by reductions in legal aid. But it does show that those lawyers who are dedicated to providing legal services to the poor are being innovative in the light of public expenditure cuts.

To date I have only commented on ABS approved by the SRA. But it should be remembered that the Council of Licensed Conveyances also has authority to license ABS applications for companies supplying conveyancing services. To date, 38 licences have been granted.

For information about ABS available in Legal Futures, see http://www.legalfutures.co.uk/tag/alternative-business-structures

For information about SRA licences see http://www.sra.org.uk/solicitors/firm-based-authorisation/abs-register/register.page

For information about CLC licences see http://www.clc-uk.org/absregister.html

The Government is currently engaged in a delicately choreographed exercise relating to the use by the police of their power to stop and search people.

Following the widespread riots that swept London and other major cities in the summer of 2011, there arose claims that one of the reasons why there was considerable distrust in many communities – especially ethnic minority communities – with the police arose from the use of stop and search powers. As a consequence,  in December 2011 the Home Secretary commissioned Her Majesty’s Inspectorate of Constabulary (HMIC) to carry out an inspection into the use of stop and search legislation  in all 43 Home Office funded forces in England and Wales.

At the beginning of July 2013, the Home Secretary announced that she wanted to hold a consultation on the use of these power. There was no suggestion that the powers would be abolished. But the consultation was designed to get views from the public about how they should be used.

Just a few days later, HMIC published its report. it is very critical of police practice in this area. The headline conclusions, drawn from the Press Release, are:

Over a million stop and search encounters have been recorded every year since 2006; but in 2011/12 only 9% led to arrests. The police use of stop and search powers has been cited as a key concern for police legitimacy and public trust in most of the major public inquiries into policing since the 1970s. While there is much public debate about the disproportionate use of the powers on black and minority ethnic people, there has to date been surprisingly little attention paid – by either the police service or the public – to how effective the use of stop and search powers is in preventing and detecting crime.

The inspection, which included a public survey of over 19,000 people found that:

• the majority of forces (30) had not developed an understanding of how to use the powers of stop and search so that they are effective in preventing and detecting crime, with too many forces not collecting sufficient information to assess whether or not the use of the powers had been effective;
• 27% of the 8,783 stop and search records examined by HMIC did not include sufficient grounds to justify the lawful use of the power. The reasons for this include: poor understanding amongst officers about what constitutes the ‘reasonable grounds’ needed to justify a search, poor supervision, and an absence of direction and oversight by senior officers;
• there is high public support for the use of these powers, but this support diminishes when there is a perception that the police are ‘overusing’ them; and
• half of forces did nothing to understand the impact that stop and search had on communities, and less than half complied with the requirements of the Police and Criminal Evidence Act 1984 code of practice to make arrangements for stop and search records to be scrutinised by the public.

When all findings are considered, HMIC concludes that the priority chief officers give to improving the use of stop and search powers has slipped since the publication of the Stephen Lawrence Inquiry Report in 1999.

Notwithstanding these general findings, the report gives examples which show that use of stop and search powers has the potential to play an important role in the way the police prevent crime and catch criminals, whilst at the same time preventing unnecessary arrests. The proactive use of stop and search powers can lead to serious crimes being prevented and detected:

• East. Arrest of a predatory paedophile after police officers on routine patrol found a car with blacked-out windows parked in suspicious circumstances on an industrial estate. The driver tried to distract them from looking in the vehicle, which aroused further suspicion and the officers decided to search it, finding a 12-year-old girl who had been groomed for sex through social media. The offender was convicted and received a 17-year prison sentence.
• North East. Whilst officers were dealing with a collision on a motorway, they smelled cannabis in one of the vehicles and conducted a search of the car and the occupants, finding a large quantity of cannabis in bags and suitcases. Further enquiries led to a further seizure of approximately £400,000 worth of cannabis, and more arrests were made. The people involved were part of an organised group suspected of committing crime nationally.
• North. Routine patrol officers checked a car that was shown on police computer systems as associated with drug misuse. The officers’ suspicion was raised on speaking to the occupants and they conducted a search, which led to finding a large suitcase containing many unsealed bottles of liquid labelled as shampoo, which were subsequently found to contain over 30 kilos of high purity amphetamine, with an estimated street value in excess of £3 million.

The Government’s consultation on stop and search continues until 24 September 2013. Announcements on the outcomes of the consultation will appear later in the year.

All the information about the HMIC report is available at http://www.hmic.gov.uk/publication/stop-and-search-powers-20130709/
. You can follow the links to the press release, the full report and findings from individual police forces.

Details of the Home Office consultation is at https://www.gov.uk/government/consultations/stop-and-search

In Chapter 3 of the book, I raise the question of whether voting in elections should be made compulsory (p. 28). I note that this is already the law in Australia.

The up-coming Australian general election has caused a number of commentators to revisit this issue. The BBC News website carried a very interesting piece on just this question. See http://www.bbc.co.uk/news/world-asia-23810381.

The article makes a number of points worth noting:

• compulsory voting has been the law for the best part of a century;
• turnout in elections is very high – around 94%
• but penalties for non voting are not severe – a small fine;
• and many people avoid voting by not registering to vote;
• thus the ‘real’ turnout is not as high as the headline figure suggests;
• that compulsory voting is the law in 22 other countries but the law is enforced in only 10 of them.

The article quotes arguments for and against the position in Australia.

There is no suggestion that compulsory voting will be introduced in the UK. But I think it is an issue that should at least be raised for public debate. What do you think?

The original code of practice for victims, though innovative at the time (2006), is now regarded as a bit out of date. The Government is currently working on a revised version. This will set out more clearly what different groups of victims should be entitled to expect. The new Code will contain sections on

• Entitlements for victim
• Duties for criminal justice agencies
• Entitlements to children and young people under 18
• Duties for criminal justice agencies for children and young people under 18, and
• Businesses

The new Code will also for the first time include restorative justice in the issues to be considered in relation to the victims of crime.

It will also propose changes to the ways in which complaints can be made when things are alleged to have gone wrong.

For more detail on the work so far, see https://www.gov.uk/government/consultations/improving-the-code-of-practice-for-victims-of-crime

The Government has made two key appointment in the process of creating the new National Probation Service.

Mike Maiden, former Chief Executive of Staffordshire and West Midlands Probation Trust, will undertake the role of Director of Probation, leading the National Probation Service in England.

Sarah Payne, current Chief Executive of Wales Probation Trust, will take up the post as Director National Offender Management Service (NOMS), Wales. Her role will also include overarching responsibility for public and private prisons and contractual oversight of private sector prison delivery in Wales.

They will lead a team of the country’s top offender managers, working with around 30,000 offenders each year who pose a high-risk of serious harm to the public.

The new directors will work alongside private and voluntary sector organisations who will be delivering rehabilitation services to low and medium risk offenders within 21 Contract Package Areas across England and Wales.4

They take up full responsibilities in April 2014.

For more detail go to https://www.gov.uk/government/news/national-probation-service-appointments-announced

• In May 2013, the Ministry of Justice published “Transforming Rehabilitation: A Strategy for Reform”. The strategy sets out the Government’s plans for transforming the way in which offenders are managed in the community in order to bring down reoffending rates.

The key aspects of the reforms are:

• Creation of a new public sector National Probation Service (see separate blog item).

• Providing that every offender released from custody will receive statutory supervision and rehabilitation in the community. The Offender Rehabilitation Bill, introduced into the House of Lords in May 2013, will – when enacted – extend this statutory supervision and rehabilitation to all 50,000 of the most prolific group of offenders – those sentenced to less than 12 months in custody.

• Putting in place a nationwide ‘through the prison gate’ resettlement service, meaning most offenders are given continuous support by one provider from custody into the community. This will be supported by ensuring that most offenders are held in a prison designated to their area for at least three months before release.

• Opening the market up to a diverse range of new rehabilitation providers, designed to get the best out of the public, voluntary and private sectors, at the local as well as national level.

• Introducing new payment incentives for market providers to focus on reforming offenders, giving providers flexibility to do what works and freedom from bureaucracy, but only paying them in full for real reductions in reoffending.

For further information on the Government’s plans see http://www.justice.gov.uk/transforming-rehabilitation

For further information on the Offenders Rehabilitation Bill 2013 go to http://services.parliament.uk/bills/2013-14/offenderrehabilitation.html

On 20 August 2013, the Government announced that it plans to increase to 75 the upper age limit for jurors. Each year, about 178,000 people in England and Wales undertake jury service. According to the Justice Minister Damien Green – who made the announcement, the reform is designed to enable people – who in general are living longer – to continue to bring their life experience to the jury room. Certainly the proposal is welcomed by organisations representing the elderly.
But part of the motivation for the change is that there are, it seems, areas of the country where it has proved difficult to find the numbers of people required for jury service. The change will therefore increase the size of the pool from whom jurors can be drawn.
The change requires legislation, which will be introduced next year.
See https://www.gov.uk/government/news/upper-age-limit-for-jury-service-to-be-raised

In July 2013, the Ministry of Justice issues an interesting press notice, comprising a letter from the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals. Although written in emollient tone, it raises some interesting questions about how the judicial estate – the buildings in which courts and tribunals sit – is to be managed in future.
The letter does not imply that any changes are imminent. But there is clearly a process going on within the MoJ which could result in big change.
The letter makes clear that “The provision of justice is and will remain a core function of the State. The Lord Chancellor is, and will continue to be, responsible by statute for the provision of an efficient and effective system to support the administration of justice. We are all committed to ensuring that vital constitutional safeguards (including access to justice, the rule of law, the independence of the judiciary, and the preservation of the position of the Lord Chief Justice) are maintained.

“There will be no erosion of the constitutional position of courts and tribunals or the constitutional principles which underpin the independent administration of justice.”

Nonetheless, the letter also states: “Our courts are not always where they need to be and not always used to the full. Our buildings do not always offer modern, high quality facilities. Some are not properly accessible to all users. They should be better equipped to enable the business of the courts and tribunals to be conducted more efficiently. A variety of difficult decisions will be required as to the appropriate level at which fees are set and about how best to deliver access to justice and value for money for the taxpayer.”

The inference I draw from this is that the programme of court closures currently being implemented will not be the end of the story.

The authors of the letter are clear that they want more investment in IT – achieved for criminal courts but not universal. Thus, while rejecting the idea of the court service becoming a profit-making body,: “We have been reflecting on whether it would be possible to ensure adequate investment and where consistent with the administration of justice, options to generate and retain additional income and capital for investment.”

The inference I draw from this is that there is a strong likelihood that one of the options for change will be increased fees to be paid by litigants for using the courts and tribunals service – with consequent implications for access to justice.

They also ask “whether an alternative structure, such as a more independent public interest corporation, would better ensure a sustainable future”.

A wider implication that arises is that if access to courts does become increasingly expensive, there is likely to be greater recourse to dispute resolution procedures that fall outside the court system.

To read the letter, go to: https://www.gov.uk/government/news/letter-to-judges

Since 2010, there has been a special procedure for dealing with claims for personal injuries arising out of Road Traffic accidents, where the amount of damages sought is under £10,000.

From 31 July 2013, the financial limit for the use of the procedure has been lifted to £25,000. At the same time, the procedure has been extended to claims arising from personal injuries at work (Employer’s Liability cases) and from personal injuries suffered by members of the public as the result of a company or its employees failing to take reasonable care (Public Liability cases).

A new electronic portal, the Claims Portal, has been developed to ensure that all such claims are processed speedily, incurring only fixed costs, and in a way that is compliant with the relevant pre-action protocols. The Claims Portal is run by a not-for-profit company, with 8 directors representing both potential claimants (e.g. the Trades Union Congress) and potential compensators (Insurance companies).

Of course, if liability for an accident is not admitted, or agreement cannot be reached about the amount to damages to be paid, the claim will not be finally resolved through this process. It is however anticipated that for straightforward cases, the portal will speed the process and reduce the costs.

The changes have been brought about by amendment to the Civil Procedure Rules.

For a government press release on the changes go to https://www.gov.uk/government/news/action-on-compensation-claims-for-slips-and-trips.

For the Civil Procedure Rules go to http://www.justice.gov.uk/courts/procedure-rules/civil (scroll down to Release 65).

For more information about the Claims Portal go to http://www.claimsportal.org.uk/en/about/about-claims-portal-ltd/

For a useful summary of the changes – written by an insurance company, go to http://www.allianz.co.uk/home/search-results.html?searchQuery=claims+portal and click on MOJ Reforms

This blog up-dates my book at Box 8.3 para 4

The report from the Legal Education and Training Review, Setting Standards: The future of legal services education and training regulation in England and Wales, was published in late June 2013. I have been mulling over how I should treat it in this blog for some time. It is long – over 370 pages. It contains 26 recommendations. To be honest it is not an easy read.

For those readers of this blog who those coming new to the study of law – who as you know are my ‘target audience’ – you can rest assured that there are no immediate changes to Legal Education that will be made.

The reason for this is that the Review did not have any remit to direct what changes should be made to the system of legal services education and training (LSET) that exists in England and Wales. It merely sets out its views on factors that should be taken into account by the professional regulatory bodies that established the review in the first place: the Solicitors Regulatory Authority, the Bar Standards Board and ILEX Professional Standards. These bodies will have to decide what they are going to do with the report and this will take some time. Any changes to legal education and training arising from this report will not occur for a number of years.

That said, there are recommendations in the review which will be introduced and which will affect both law students and qualified professionals in the years ahead. I set out here a summary of what I regard as the main recommendations

1. Competence

The review recommends that there should be a more detailed definition of what it means to say that a person has the competence to be a lawyer. To achieve this, there needs to be a robust and systematised range of outcomes and standards, coordinated between the professions, which would demonstrate that initial competence is achieved.

• Learning outcomes should be prescribed for the knowledge, skills and attributes expected of a competent member of each of the regulated professions.
  
• Such guidance should require education and training providers to have appropriate methods in place for setting standards in assessment to ensure that students or trainees have achieved the outcomes prescribed.
• Learning outcomes for prescribed qualification routes into the regulated professions should be based on occupational analysis of the range of knowledge, skills and attributes required. They should begin with a set of ‘day one’ learning outcomes that must be achieved before trainees can receive authorisation to practise.
  

Introduction of the idea of ‘day one’ learning outcomes is probably the most innovative aspect of the report. It would enable those who had demonstrated that they had acquired the skills determined to be needed on ‘day one’ of a person starting to practice should be able to achieve the authority to practise from that date. This could mean, for example, the end of 2 year training contracts for solicitors. New solicitors could be authorised to practice once they demonstrated their core competence.

2. Content

As regards the content of courses,

• LSET schemes should include appropriate learning outcomes in respect of professional ethics, legal research, and the demonstration of a range of written and oral communication skills.
• The learning outcomes at initial stages of LSET should include reference (as appropriate to the individual practitioner’s role) to an understanding of the relationship between morality and law, the values underpinning the legal system, and the role of lawyers in relation to those values.
• Advocacy training across the sector should pay greater attention to preparing trainees and practitioners in their role and duties as advocates when appearing against self-represented litigants.
• Learning outcomes should be developed for post-qualification continuing learning in the specific areas of professional conduct and governance, management skills and equality and diversity (not necessarily as a cyclical obligation).
• There should be a distinct assessment of legal research, writing and critical thinking skills  in the Qualifying Law Degree and in the Graduate Diploma in Law.

There are also more detailed recommendations about the need for better training in will writing and advocacy (for solicitors) and the use of mediation (for barristers)

3 Supervised practice

The Review regards periods of supervised practice as important. Thus

• LSET structures which allow different levels or stages (in particular formal education and periods of supervised practice) to take place concurrently should be encouraged where they do not already exist.

I strongly agree with this idea; the understanding of law is enhanced by seeing its application in practice. But the review does not recommend that this be a mandatory feature of LSET.

• Supervisors of periods of supervised practice should receive suitable support and education/training in the role. This should include initial training and periodic refresher or recertification requirements.

4 Continuing professional development

The review is most unhappy about current arrangements for undertaking CPD. It says, bluntly, that “The majority of CPD schemes in the legal services sector are out-of-line with recognised best practice in professions generally and by comparison with ‘leading edge’ schemes for lawyers in other jurisdictions… The potential importance of CPD to ensuring continuing competence highlights the need to create schemes that are effective at supporting useful learning and reflection, and provide appropriate quality assurance.” It recommends a series of changes to make CPD more effective. I am sure that these recommendations will be taken forward.

5 Apprentices, paralegals and work experience

The Review makes a number of interesting comments on the importance of developing apprenticeship schemes (similar to those already offered by CILEX) to permit a non-graduate route of entry to the legal profession. At least part of the motivation for these recommendations is that such routes to entry may be more affordable than the current norm of a three year degree followed by a further year of professional study

It also notes that law firms are increasingly using para legal staff to provide legal services; it does not at this stage think there is any need to regulate paralegals, It makes a further interesting suggestion. ” In the context of the significant and substantial changes to both the private and public funding of legal services, there may be a role for independent paralegals in delivering well-priced quality services outside the currently regulated market. Further work should be undertaken to explore the potential of licensed paralegal schemes.” This could well create a context for the development of new forms of legal practice.

To ensure that those seeking work experience get a fair chance of getting an internship or other work experience, the Review recommends:

• In the light of the Milburn Reports on social mobility, conduct standards and guidance governing the offering and conduct of internships and work placements should be put in place.

6 Next steps

Given that this review is the start of a process, it also recommends:

• A body, the ‘Legal Education Council’, should be established to provide a forum for the coordination of the continuing review of LSET and to advise the approved regulators on LSET regulation and effective practice.

• In the light of the regulatory objectives and the limited engagement by consumers and consumer organisations in the research phase of the LETR, it is recommended that the regulators ensure that appropriate consumer input and representation are integrated into the consultation and implementation activities planned for the next phase of the LETR.

My question is whether these recommendations will in fact match a world in which increasing numbers of Alternative Business Structures are being created, and in which the cost of legal education is so high. What do you think?

To read the report go to http://letr.org.uk/the-report/index.html