Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for August 2014

Improving efficiency in the criminal justice system

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Sir Brian Leveson achieved national fame for chairing his inquiry into the press. Since that work finished, he has been appointed President of the Queen’s Bench Division of the High Court. He is currently leading another inquiry – not one that is hitting the headlines of the press inquiry, but one that could be of considerable importance to the development of the English Legal System. This is the inquiry into efficiency in the criminal justice system. It started work in March 2014 and is expected to produce a first report around the end of 2014.

Its terms of reference are:

  •  ‘While taking into account:

a) existing rules and procedures for criminal cases;

b) current initiatives to improve the efficiency and speed of the criminal justice system (in particular recent changes relating to the early guilty plea scheme);

c) the need for robust case management;

d) recommendations made in previous reviews of the criminal justice system, including those not implemented at the time; and

e) Government reforms to the criminal justice system;

  • 1. To review current practice and procedures for pre-trial hearings and recommend ways in which such procedures could be:

a) further reduced or streamlined;

b) improved with the use of technology both to minimise the number of such hearings or, alternatively, conducted (whether by telephone, or internet based video solutions) without requiring the attendance of advocates.

  • 2. To review the Criminal Procedure Rules to ensure that:

a) maximum efficiency is required from every participant within the system;

and

b) any changes proposed are fully supported by the Rules.

  • 3. To report to the Lord Chief Justice within 9 months.

The Inquiry has established three sub-groups to investigate specific themes within these general terms.
Each group is tasked with identifying the problems occurring within its own ‘theme’. Each group is also, perhaps most importantly, tasked with finding a workable solution to each of those problems.

The three sub-groups are:

1) Case Management (Chaired by Professor David Ormerod);

2) Listing & IT (Chaired by Lord Justice Fulford)

3) The Trial (Chaired by Mr Justice Openshaw)

It seems that in the first instance, the inquiry is wanting to go for some relatively easy targets. Thus the website for the inquiry states:
‘In the first phase, the review will examine the extent to which better use could be made of technology – for example holding short hearings by telephone or web or video-based applications. It is expected to identify ways to reduce the number of pre-trial hearings that require defendants in custody and advocates attending court.’

But the work of the sub-group on the trial could lead to quite major changes in the ways in which criminal justice is delivered in England and Wales.

At present the progress of the Inquiry is not clear; the website is not as informative as to the progress made so far. But this blog will keep an eye out for the promised report and comment on its findings in due course.

For more detail see http://www.judiciary.gov.uk/the-president-of-the-queens-bench-divisions-review-of-efficiency-in-criminal-proceedings/

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Written by lwtmp

August 25, 2014 at 9:18 am

Posted in Chapter 4, Chapter 5

Prisoners’ voting rights: latest developments

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The question of whether the UK Government’s policy, that all prisoners should be denied the right to vote while they are in jail, has received further consideration, both in the UK Parliament and in the Grand Chamber of the European Court of Human Rights.

In the 2004 case of Hirst v United Kingdom (No. 2), the European Court of Human Rights found that the UK’s complete prohibition on convicted prisoners voting was incompatible with the European Convention on Human Rights. (A number of other cases had also reach this conclusion.)

The UK Government’s position has been that the blanket ban is justified on public policy grounds. However, given the clear ruling of the European Court, in 2012 the Government – after considerable delay and with very great reluctance – did publish a draft Voting Eligibility (Prisoners) Bill. This Bill was subject to pre-legislative scrutiny by a Joint Committee of the House of Commons and the House of Lords.

In December 2013, it published a thoughtful report on the issue.

By way of background, the Committee stated:

‘Underlying our inquiry is a far-reaching debate about the United Kingdom’s future relationship with the European Court of Human Rights, the Convention system as a whole and our attachment to the rule of law.

‘In reaching our conclusions we have taken fully into account the grave implications of a refusal to comply with the Court’s judgment for the UK’s relationship with the Court and for the future of the entire Convention system. A refusal to implement the Court’s judgment, which is binding under international law, would not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow.

‘We have also considered the implications of failure to comply with the European Court’s ruling for the rule of law, which the UK has for so long upheld. The rule of law has been and should remain a fundamental tenet of UK policy. It is not possible to reconcile the principle of the rule of law with remaining within the Convention while declining to implement the judgment of the Court.’

Taking these general principles into account, the Committee then considered the options relating to prisoners’ voting rights.

‘In the Committee’s view, the following considerations should be taken into account:

  • In a democracy the vote is a right, not a privilege: it should not be removed without good reason.
  • The vote is a presumptive, not an absolute right: all democratic states restrict the right to vote in order to achieve clearly defined, legitimate objectives.
  • The vote is also a power: citizens are entrusted, in voting, with an element of power over their fellow-citizens.
  • There is a legitimate expectation that those convicted of the most heinous crimes should, as part of their punishment, be stripped of the power embodied in the right to vote.
  • There is an element of arbitrariness in selecting the custody threshold as the unique indicator of the type of offence that is so serious as to justify loss of the vote.
  • There are no convincing penal-policy arguments in favour of disenfranchisement; but a case has been made that enfranchisement might assist prisoner rehabilitation by providing an incentive to re-engage with society.
  • The enfranchisement of a few thousand prisoners is far outweighed by the importance of the rule of law and the desirability of remaining part of the Convention system.’

In the light of these considerations, the Committee recommended that
‘the Government introduce a Bill at the start of the 2014-15 session, which should provide that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections; and moreover that prisoners should be entitled to apply, up to 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released.’

In February 2014, the Lord Chancellor wrote to the Committee a letter thanking them for their views and assuring them that they were under active consideration in Government. This letter was published in June 2014. No Bill was announced in the Queens Speech delivered in June 2014.

Since then, a further case has been determined by a Chamber of the European Court of Human Rights. In Firth and others v United Kingdom, decided in August 2014, it was held that – failing a legislative response to its earlier rulings – the United Kingdom remained in breach of the European Convention on Human Rights.

However the Chamber refused to award any damages to the applicants, on the grounds that this ruling was enough. The decision also included a dissenting judgement from JUDGE NICOLAOU, who did not think that there had been a breach of the European Convention. In another dissenting judgement, JUDGE WOJTYCZEK indicated his view that the line of decisions developed by the European Court might not be correct and in his view the whole issue should have been revisited by the Court.

There is no doubt that there remains in the UK – and perhaps in other states in the Council of Europe – a view that prisoners should not have the vote. However, there is also no doubt that, pending any revision of the Court’s approach – the present position of the UK Government is at odds with the European Convention as interpreted by the European Court on Human Rights. It may be anticipated that any further response from the UK Government will be further delayed, especially in the light of the reservations expressed by two of the judges involved in the latest case.

For further information, see report of the Joint Committee at http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/10303.htm;
the report of the Grand Chamber of the European Court is at http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-146101%22]}

Written by lwtmp

August 21, 2014 at 3:51 pm

Law Commission – 12th Programme of Law Reform

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The Law Commission published its 12th Programme of law reform in July 2014.

Nine projects have been accepted into the programme.

Two of these are specific to the Welsh Government:

  1. The form and accessibility of the law applicable in Wales: an Advice to Government, considering ways in which the existing legislation can be simplified and made more accessible, and how future legislation could reduce problems.
  2. Planning and development control in Wales:  a law reform project to recommend a simplified and modernised planning system for Wales.

In terms of potential impact on the English Legal system, the most significant it a project on

  • Sentencing procedure; a law reform project to recommend a single sentencing statute.

The rest of the projects relate to important areas of substantive law.

  1. Mental capacity and detention, a  project to consider how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes. This follows sharp criticism of the present state of the law by Justices of the Supreme Court
  2. Land registration,  a project that will comprise a wide-ranging review of the Land Registration Act 2002 (itself a Law Coimmission Act), with a view to amendment where elements of the Act could be improved in light of experience with its operation.
  3. Wills, a law reform project to review the law of wills, focusing on mental capacity and will making, formalities that dictate how a will should be written and signed, and how mistakes in wills can be corrected.
  4. Bills of sale, is a law reform review of the law relating to “bills of sale” loans, including logbook loans.

There are also two scoping exercises designed to see whether detailed proposals for law reform should be developed. These are:

  • Firearms: a scoping exercise to consider the enactment of a single statute containing modified and simplified versions of all firearms offence.
  • Protecting consumer prepayments on retailer insolvency: a scoping review to assess the scale of the problem and consider was to increase protection for consumers.

In addition, the Law Commission will continue to work on projects brought forward from the 11th programme that are still to be completed.

Details can be found at http://lawcommission.justice.gov.uk/areas/12th-programme.htm

Written by lwtmp

August 1, 2014 at 3:30 pm

Posted in Chapter 4, Chapter 5

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