Archive for October 2014
Experts in family law cases: new practice direction
In May 2013, the Government launched a consultation on the standards that experts in family cases should have. The standards had been drawn up by the Family Justice Council. The judiciary have recently announced that these standards are now operational.
The standards include making sure that the expert:
- has knowledge appropriate to the court case,
- has been active in the area of work or practice and has sufficient experience of the issues relevant to the case,
- is either regulated or accredited to a registered body where this is appropriate,
- has relevant qualifications and has received appropriate training, and
- complies with safeguarding requirements.
The standards were developed in partnership with the Family Justice Council.
For further details, see http://www.judiciary.gov.uk/publications/new-national-standards-for-family-court-experts/
Considering the case for a written constitution
In July 2014, the Political and Constitutional Reform Committee of the House of Commons launched an inquiry into the question of whether there is a need for a new Magna Carta. The inquiry follows from research undertaken at King’s College London which lays out three different models – including one fully fleshed out, complete constitution – and sets out some of the arguments for and against codifying the constitution in this way. The following summary is from the Committee’s website.
Arguments for
The King’s research points to the fact that the UK has a “sprawling mass” of common law, Acts of Parliament, and European treaty obligations, and a number of important but uncertain and unwritten “conventions” that govern administration, but the full picture is unclear and uncertain to electors in our democracy. They point to concerns about an “elective dictatorship”, and argue that it has “become too easy for governments to implement political and constitutional reforms to suit their own political convenience”. A written constitution would entrench requirements for popular and parliamentary consent. The present unwritten constitution is “an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process.”
Arguments against
Conversely, the case against a written constitution is that it is unnecessary, undesirable and un-British. The UK’s unwritten constitution is evolutionary and flexible in nature, enabling practical problems to be resolved as they arise and individual reforms made. The research points to concerns that a written constitution would create more litigation in the courts and politicise the judiciary, requiring them to pass judgement on the constitutionality of government legislation (which currently happens only in some contexts, such as compatibility with the Human Rights Act), when the final word on legal matters should lie with elected politicians in Parliament, not unelected judges. There is the simple argument that there are so many practical problems in preparing and enacting a written constitution, there is little point in even considering it. There is no real popular support or demand and, especially given the massive amount of time and destabilising effect such a reform would entail, it is a very low priority even for those who support the idea.
The Committee is currently taking evidence on the issue and will publish a report early in 2015.
For further detail go to http://www.parliament.uk/business/committees/committees-a-z/commons-select/political-and-constitutional-reform-committee/news/report-a-new-magna-carta/
Creation of the Planning Court
As part of the changes to Judicial Review being made by Government, planning cases now go to the Planning Court.
From April 2014, the Planning Court deals with all judicial reviews and statutory challenges involving planning matters, including appeals and applications relating to enforcement decisions, planning permission, compulsory purchase orders and highways and other rights of way. It forms part of the Administrative Court but is distinct from it. Cases can start at the following locations:
- The Royal Courts of Justice
- Birmingham Civil Justice Centre
- Cardiff Civil Justice Centre
- Leeds Combined Court
- Manchester Civil Justice Centre
Planning Court cases are subject to tighter time limits than Administrative Court cases:
- applications for permission to apply for judicial review are to be determined within three weeks of the expiry of the time limit for filing of the acknowledgment of service;
- oral renewals of applications for permission to apply for judicial review are to be heard within one month of receipt of request for renewal;
- applications for permission under section 289 of the Town and Country Planning Act 1990 are to be determined within one month of issue;
- substantive statutory applications, including applications under section 288 of the Town and Country Planning Act 1990, are to be heard within six months of issue; and
- judicial reviews are to be heard within ten weeks of the expiry of the period for the submission of detailed grounds by the defendant or any other party.
Specialist judges, with planning expertise, sit in the Planning Court.
It is hoped that these changes will ensure that these changes will reduce the delay that can sometimes effect planning decisions.
For further detail see https://www.justice.gov.uk/courts/rcj-rolls-building/administrative-court/the-planning-court
Setting time limits for bail?
One of the curiosities of the Criminal Justice system is that, while there are strict limits on the time a person may be held for questioning in a police station, there are currently no limits on the time a person is out on police bail. This can result in a person remaining under suspicion for a very considerable length of time. In a recent speech, the Home Secretary has announced that there would be a consultation on the issue and has asked the College of Policing to review current practice in police forces.
See http://www.bbc.co.uk/news/uk-29624498
and https://www.gov.uk/government/speeches/home-secretarys-college-of-policing-speech
Victim’s right to review a decision not to prosecute.
It used to be the case that when the Crown Prosecution Service (CPS) decided not to proceed with a prosecution, that was the end of the matter. The courts were clearly unhappy that the CPS should never reconsider a decision not to prosecute. On 29 June 2011, the Court of Appeal in R v Christopher Killick [2011] EWCA Crim 1608, considered in some detail the right of a victim of crime to seek a review of a CPS decision not to prosecute. It concluded that:
• a victim has a right to seek a review in such circumstances;
• a victim should not have to seek recourse to judicial review;
• the right to a review should be made the subject of a clearer procedure and guidance with time limits.
Following this judgement, the CPS created a new scheme – the Victim’s Right to Review Scheme – to give effect to the principles laid down in Killick and also to meet Article 10 of the European Union Directive establishing minimum standards on the rights, support, and protection of victims of crime. It was launched in June 2013.
Data recently published by the CPS shows that between 5 June 2013 and 31 March 2014, the CPS made 113,952 decisions which could be subject to appeal under the VRR scheme. The CPS reviewed 1,186 cases; of these 162 decisions were overturned.
The CPS also undertoook some work to see how the scheme was working in the light of experience. The outcome of this work is that a slightly revised, final, scheme of review was prepared and published in July 2014.
For the data, see http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/vrr_data/index.html
The revised scheme is at http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/index.html
Improving policing standards: the College of Policing
Last year, I noted in this blog the creation (in December 2012) of the College of Policing – replacing the National Police Improvement Agency.
Following the enactment of the Anti-Social Behaviour, Crime and Policing Act 2014, the College is now recognised in legislation. (See Part 11, sections 123-130.) The College is given specific statutory power to issue Codes of Practice.
The core areas of responsibility of the College are:
• setting standards of professional practice
• accrediting training providers and setting learning and development outcomes
• identifying, developing and promoting good practice based on evidence
• supporting police forces and other organisations to work together to protect the public and prevent crime
• identifying, developing and promoting ethics, values and standards of integrity.
The College has set itself ambitious aims. For example it is seeking to extend its networks beyond the traditional boundaries
of policing – to include the public, further and higher education, the private sector, charitable organisations and the wider public sector – and make the most of all opportunities to work with others to support policing.
It wants to create open and transparent development opportunities for police officers and staff at all levels. These will include:
• being part of a network with local academic institutions to gather evidence and test new approaches
• participating in a community of practice
• providing peer support to share experiences
• working in the College or with one of our partner organisations to gain new skills and knowledge, while sharing learning and experience.
Further detail of its plans can be found in its statement of strategic intent at http://www.college.police.uk/en/20801.htm.
The reason for the creation of the College lies in a number of difficult issues that have affected police forces in recent years which has led to falls in public trust in the ability of the police to work effectively and fairly in carrying out its work.
Responding to these worries, one of the first actions of the new College was to develop and publish a new Code of Ethics for the police service (similar in aim to codes of ethical practice which apply to most professional groups). The Code was published in July 2014.
It is based on 9 core policing principles (themselves based on the Nolan Principles for Standards in Public Life). They are
- Accountability: You are answerable for your decisions, actions and omissions.
- Fairness: You treat people fairly.
- Honesty: You are truthful and trustworthy.
- Integrity: You always do the right thing.
- Leadership: You lead by good example.
- Objectivity: You make choices on evidence and your best professional judgement.
- Openness: You are open and transparent in your actions and decisions.
- Respect: You treat everyone with respect.
- Selflessness: You act in the public interest.
Perhaps surprisingly this is the first time that a set of ethical standards for policing has been published.
Naturally it will be asked what difference publication of the Code will have on day to day policing. This question certainly cannot be answered at this stage. However, as the College itself notes, its effect will become clearer if the public starts to acknowledge that standards of police integrity have started to improve.
The Code is available at http://www.college.police.uk/en/20972.htm
More detail about the work of the college is available on its website at http://www.college.police.uk/en/home.htm
Stop and search – code of guidance
In August 2013, I wrote about the very critical report by HM Inspectorate of Constabulary on the use of Stop and Search power by the police, and the annoucement by the Home Secretary of a consultation on the use of these powers.
In April 2014, the Home Secretary announced that there would be a new ‘Best use of stop and search scheme’ which had been drawn up by the Home Office and the College of Policing. In August 2014, it was announced that all 43 police forces had agreed to abide by the scheme and the scheme was published.
The headline features of the new scheme are:
• Data Recording – forces will record the broader range of stop and search outcomes e.g. arrests, cautions, penalty notices for disorder and all other disposal types. Forces will also show the link, or lack of one, between the object of the search and its outcome.
• Lay observation policies – providing the opportunity for members of the local community to accompany police officers on patrol using stop and search.
• Stop and search complaints ‘community trigger’ – a local complaint policy requiring the police to explain to local community scrutiny groups how the powers are being used where there is a large volume of complaints.
• Reducing section 60 ‘no-suspicion’ stop and searches by: raising the level of authorisation to senior officer (above the rank of chief superintendent); ensuring that section 60 stop and search is only used where it is deemed necessary; and
and making this clear to the public;
• in anticipation of serious violence, the authorising officer must reasonably believe that an incident involving serious violence will take place rather than may;
• limiting the duration of initial authorizations to no more than 15 hours (down from 24); and
• communicating to local communities when there is a section 60 authorisation in advance (where practicable) and afterwards, so that the public is kept informed of the purpose and success of the operation.
It is obviously hoped that greater transparency in the use of these controversial powers will make their use more acceptable in the communities particularly affected by their use. Given the past history, there must be some doubt as to the potential effectiveness of the new scheme. But it does represent an attempt to prevent the use of stop and search powers having the deleterious impact on individuals and communities that it has had in the past.
The scheme is accessible at https://www.gov.uk/government/publications/best-use-of-stop-and-search-scheme
Reliability of statistics on crime
At the beginning of 2014, I noted here there was growing public concern about the reliability of statistics on crime, in particular the statistics on recorded crime which comes from individual police forces. In January, the UK Statistics Authority published a report which concluded that: ‘the Authority has removed the National Statistics designation from statistics based on recorded crime data [i.e. data from individual police forces and the National Fraud Office to the Home Office] until such time that Office for National Statistics, with the Home Office, Her Majesty’s Inspectorate of Constabulary or other appropriate bodies, is able to demonstrate that the quality of the underlying data, and the robustness of the ongoing audit and quality assurance procedures, are sufficient to support its production of statistics based on recorded crime data to a level of quality that meets users’ needs.’
At the same time, the Statistics Authority confirmed that crime statistics which are based on sources other than recorded crime data are not included in this down-grading.
The issue was the subject of a special inquiry by the Public Administration Select Committee of the Housing of Commons (see this blog Jan 2014). In April 2014 it issued a very critical report. It said, in summary:
- There is strong evidence that the police under-record crime, particularly sexual crimes such as rape in many police areas. This is due to “lax compliance with the agreed national standard of victim-focussed crime recording.”
- As a result of PASC’s inquiry, the UK Statistics Authority has already stripped Police Recorded Crime data of the quality kite mark, “National Statistics”.
- The Home Office, the Office of National Statistics and the UK Statistics Authority have all been “far too passive”.
- Numerical targets drive perverse incentives to mis-record crime.
- Associated “attitudes and behaviour… have become ingrained, including within senior police leadership” raising “broader concerns about policing values”.
- This presents officers with “a conflict between achievement of targets and core policing values.”
- PASC “deprecate the use of targets in the strongest possible terms” and accuses the police of adopting a “flawed leadership model, contrary to the policing Code of Ethics.”
The Select Committee recommended:
- The Home Office should do more to discourage use of targets.
- The Home Office must take responsibility and accept accountability for the quality of Police Recorded Crime Statistics.
- Senior police leaders must emphasise data integrity and accuracy, not targets.
- They should place new emphasis on values and ethics, especially in the Metropolitan Police.
- The Home Office should “clarify the route open to police whistleblowers” and Her Majesty’s Inspectorate of the Constabulary (HMIC) should investigate the treatment of key PASC witness police whistleblower PC James Patrick.
- PASC recommends that “the Committee on Standards in Public Life conducts a wide-ranging inquiry into the police’s compliance with the new Code of Ethics; in particular the role of leadership in promoting and sustaining these values”.
In July 2014, the Government published a response to the Select Committee’s report, which noted that HMIC was undertaking a review of crime recording practices in each of the 43 police forces, and had already published an interim report (which noted they had serious concerns, particularly about the recording of serious sexual offences). It also noted that the new Code of Ethics, which was in the process of becoming a code of practice for policing, dealt – among many other things – with the recording of data. The Home Office noted that better recorded crime statistics might lead to an increase in the numbers of reported crime, but it was keen to assert that this did not mean that crime was on the rise. Other evidence showed that crime was decreasing – in particular the Crime Survey for England and Wales.
A further response from the UK Statistics Authority was published in September 2014.
There is clearly a great deal of technical work needing to be done to restore confidence in the recorded crime statistics.
For further information, see
Report of the Select Committee at http://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-select-committee/news/crime-stats-substantive/
The Government’s response at https://www.gov.uk/government/publications/caught-red-handed-why-we-cant-count-on-police-recorded-crime-statistics
The initial report from the UK Statistics Authority at http://www.statisticsauthority.gov.uk/assessment/assessment/assessment-reports/index.html (entry for 15 January 2014).
The response of the UK Statistics Authority to the Select Committee is at http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpubadm/645/64505.htm
See also the website of the Crime Statistics Advisory Committee at http://www.statisticsauthority.gov.uk/national-statistician/ns-reports–reviews-and-guidance/national-statistician-s-advisory-committees/crime-statistics-advisory-committee.html
Law-making process in the European Union
Those coming new to the study of law often struggle to understand precisely how the institutions of the European Union operate. There is a great deal of information readily available on the websites of EU institutions.
I have recently seen an excellent diagram on how the law of the EU is made, setting out the different stages that proposals from the European Commission must go before they become law.
To view, go to http://www.europarl.europa.eu/aboutparliament/en/0081f4b3c7/Law-making-procedures-in-detail.html and look at the slide show. (Click on the arrows in the middle of the picture.)
Where next for Human Rights?
Much publicity has been given to the publication of proposals from the Conservative Party to, in some way, opt out of the European Convention, or more particularly judgements of the European Court of Human Rights.
I was unable to track the paper down through the Conservative Party website, but it can be accessed from the BBC News website at http://www.bbc.co.uk/news/uk-politics-29466113.
The proposals are controversial and have already generated heated debate. A key issue, which has not had the air-time it deserves, is what message any such move by the UK Government would have on the other 46 states who are also members of the Council of Europe and who are signed up to the European Convention on Human Rights. Despite the Government’s impatience with certain aspects of the way in which the European Convention impacts on the UK (such as the decision on prisoner’s voting rights, or the power of the judiciary to impose whole life prison sentences without possibility of review) there is a general public assumption that – on the whole – human rights are respected in the UK. But this cannot be said for many of the countries who have joined the Council of Europe.
If the UK Government is able to announce that it no longer wishes to accept rulings of the European Court of Human Rights, then it is not hard to imagine that many other countries – where human rights are less well protected – might want to make the same argument. This could lead to an unravelling of the standards set by the European Convention on Human Rights that could lead to significantly adverse consequences for the future development of human rights in Europe.
More broadly, if these proposals went ahead, they could undermine the ability of future UK Government’s to make the case for improvements in human rights standards, in other countries where they currently do not exist or are extremely weak.
I do not argue here that the application of the European Convention through the work of the European Court on Human Rights is perfect. Far from it: the decision taking process is sclerotic; the backlog of cases is a scandal. The UK Government has taken a lead in discussions on developing measures to ensure that the European Court works more efficiently.
And if, as the Conservative Party argues, the Court is suffering from ‘mission creep’ then to remain engaged with the Court and to argue that there has been mission creep seems to me a more positive way forward. (In the latest prisoners’ voting rights case, at least 2 judges expressed significant concerns about the way decisions of the Court had been going, which opens up the possibility that the Court might alter its approach. )
This should be an important issue for public debate. The problem is that so many people do not really understand what the Convention rights are nor how they are applied. The issues are treated inadequately in the news media. Thus there is often assumed to be a lack of common sense about the Convention and its application which is not justified.
Certainly it is an issue that will continue to attract attention over the next couple of years.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 