Archive for November 2016
Efficiency in the Criminal Justice System: the view of the National Audit Office
In March 2016, the National Audit Office published a very interesting and pretty hard hitting report on efficiency in the Criminal Justice system – or rather inefficiency. Set against the programme for the Transformation of our Justice System that was announced by the Government in the summer 2016, the contents of the NAO need to be remembered. In essence it argues that the current reform programme will not be adequate to drive out inefficiency, and ensure better value for money.
I set out here an edited version of the Summary Chapter of the report which gives the headline issues that need to be dealt with.
Key findings of the National Audit Office:
1 Performance
- Delays are getting worse against a backdrop of continuing financial pressure.
- There have been some improvements in the management of cases since 2010-11. But two-thirds of cases still do not progress as planned, creating unnecessary costs.
- Trials that collapse or are delayed create costs for all the participants, including the CPS, witnesses and HMCTS. (In 2014-15, the Legal Aid Agency (LAA) funded defence counsel to the tune of £93.3 million for cases that were not heard in court).
- Delays and collapsed trials also damage the public’s confidence in the system.
Giving evidence in court as a witness or victim can be a difficult and stressful process. The uncertainty caused by delays and collapsed trials exacerbates this.
2. Addressing the causes of inefficiency
The Ministry and CPS are leading an ambitious reform programme but this will not address all the causes of inefficiency.
- The court reform programme’s scope is far-reaching. It includes rationalising and modernising the estate to enable more efficient digital working and the roll-out of a single digital case management system accessible by all parties. Better IT infrastructure and a modernised estate would provide the tools for a more efficient, less paper-based system, but are not sufficient to address all the causes of inefficiency in the system.
- Inefficiencies are created where individuals and organisations do not get things right first time, and problems are compounded because mistakes often occur early in the life of a case and are not corrected.
- There can be multiple points of failure as cases progress through the system but these are often not identified until it is too late. (A 2015 inspection found that 18.2% of police charging decisions were incorrect. Incorrect charging decisions should be picked up by the CPS before court, but 38.4% of cases were not reviewed before reaching court. The system’s reliance on paper also builds in inefficiency).
- The system as a whole is inefficient because its individual parts have strong incentives to work in ways that create cost elsewhere.
- As there is no common view of what success looks like, organisations may not act in the best interests of the whole system. (For example, courts staff seek, under judicial direction, to ensure they are in use as much as possible by scheduling more trials than can be heard so that there are back-ups when one trial cannot proceed. This is both a cause and a result of the inefficiencies in the system, and leads to costs for other parts of the system, for example witnesses who spend a day waiting to give evidence for a trial that is not then heard, and who may then be more likely to disengage from the process).
- There is significant regional variation in the performance of the system, suggesting that there is scope for efficiency gains. (A victim of crime in North Wales has a 7 in 10 chance that the trial will go ahead at Crown Court on the day it is scheduled, whereas in Greater Manchester the figure is only 2 in 10. The large variation in performance across the country means that victims and witnesses will experience very different levels of service.)
- If the performance in those Local Criminal Justice Board areas with the highest rate of cracked trials was equivalent to the best-performing quartile, 15% more cases would proceed as planned, saving a minimum of £4 million in CPS costs, as well as those costs incurred by other organisations.
- There are some mechanisms to identify and share good practice, but awareness and use of these varies. Our case study visits identified a range of innovative approaches that made a positive impact on the system. These included implementing an appointment system for the approval of search warrants, which saved a significant amount of police time, and creating a dedicated videoconferencing court. But there is varied awareness and use of mechanisms to identify and disseminate learning from these initiatives.
3 Conclusion on value for money
- Reducing inefficiency in the justice system is essential if the increasing demand and reducing funding are not to lead to slower, less accessible justice. Although the bodies involved have improved the management of cases, around two-thirds of criminal trials still do not proceed as planned on the day they are originally scheduled. Delays and aborted hearings create extra work, waste scarce resources and undermine confidence in the system.
- Notwithstanding the challenges of improving the efficiency of a system designed to maintain independence of the constituent parts, there are many areas where improvements must be made. Large parts of the system are paper-based and parties are not always doing what they are supposed to do in a timely manner.
- The system is not currently delivering value for money.
- The ambitious reforms led by the Ministry, HMCTS, CPS and judiciary are designed to tackle many of these issues by reducing reliance on paper records and enabling more flexible digital working. They have the potential to improve value for money but will not address all of the causes of inefficiency.
- More also needs to be done to explore and address the wide regional variations in performance, and to create incentives that encourage all parties to operate in the best interests of the system as a whole.
Recommendations
a The Criminal Justice Board should agree what ‘good’ looks like for the system as a whole, and the levels of performance that each part of the system can commit to deliver to achieve this. It should report publicly on whether these levels of performance are being met. While it is important that the different parts of the system are not able to unduly influence individual cases, this cannot preclude agreement over the level of service that each element of the system should provide. Whenever possible, these measures should focus on quality and align with the system’s overarching aims.
b The Criminal Justice Board should regularly review performance at a level sufficient to identify good practice. Unlike many other areas of government, there is granular performance data available for many aspects of the system. Identifying and exploring regional variations in performance will highlight innovative practice, as well as giving organisations across the system incentives to improve.
c The Criminal Justice Board should establish mechanisms to increase transparency and encourage feedback through the system. This is particularly important where one element of the system has a direct but discretionary impact on another. (For example, when magistrates’ courts refer ‘either way’ cases to Crown Court they should be able to find out how many of these cases were ultimately sentenced within magistrates’ court powers. This would allow them to judge whether they are sending the right cases.)
Note. The Criminal Justice Board, is a cross-governmental group chaired by the Justice Secretary. It includes ministers and officials from the Ministry of Justice (the Ministry), its executive agency HM Courts & Tribunals Service (HMCTS), the Home Office, the Attorney General’s Office and the Crown Prosecution Service (CPS). It also includes representatives of police forces, police and crime commissioners and senior members of the judiciary.
Source: https://www.nao.org.uk/wp-content/uploads/2016/03/Efficiency-in-the-criminal-justice-system.pdf
Reassessing the use of the dock in criminal trials
In July 2015, JUSTICE, the Human Rights Group published an interesting paper on the use of the dock in the criminal trial process. It has not perhaps had the attention it deserves, but its recommendations should be considered in the context of the Transformation of our Justice System currently being taken forward.
I reproduce here the Press Release published at the time which admirably summarises the arguments.
The use of the dock for adult defendants in our criminal courts is unquestioned. Secure docks – with high walls made of glass panels – are most common, although some defendants will be held in open, wooden docks. While some courts will allow the defendant out of the dock in narrow circumstances, this is a far from uniform practice. Despite their use being an accepted norm, particularly among the legal profession, the dock has not always been so embedded within the courtroom.
The established use of docks was not cemented until as late as the 1970s, while the secure dock now in use did not arrive until 2000. Even today, there is no statutory requirement or judicial authority requiring their use in our courts. Rather, it is simply recommended Ministry of Justice policy that they be available in all criminal courts. The rationale for these increased security measures in recent decades has not been documented in the public record.
JUSTICE is concerned that the use of the dock impacts upon the defendant’s right to a fair trial, in particular: effective participation in one’s defence; preserving the presumption of innocence; and maintaining dignity in the administration of justice. These rights have long been protected by our domestic legal system, the European Convention on Human Rights and international human rights law.
Notably, a number of other jurisdictions, including those that share our common law heritage, have abandoned the use of the dock. These jurisdictions offer useful examples of discreet and humane alternatives, which are used on a case-by-case basis. Available statistical evidence for the Netherlands and the United States demonstrates security incidents rarely occur, and the same can be expected of England and Wales.
Moreover, the adverse impact of the dock on the defendant’s right to a fair trial has been explicitly recognised by appellate courts in both the USA and Australia; in fact, the rejection of the dock in the USA is safeguarded by reference to constitutional guarantees the findings of a recent experimental study in Australia aimed at assessing the prejudicial impact of the dock on juries further support JUSTICE’s concerns.
In light of our legal obligations to secure the right to a fair trial in practice – and taking into account the experience of comparative jurisdictions – JUSTICE calls for reconsideration of the use of the dock in our criminal courts. At a time when HM Courts and Tribunal Service is reviewing the use of its estate, attention should be given to how our courtrooms are designed, by reference to actual need, rather than tradition.
Recommendations
- There should be a presumption that all defendants sit in the well of the court, behind or close to their advocate;
- Open docks should no longer be used and defendants should sit with their legal team;
- Where security concerns exist, a procedural hearing should be held to satisfy the court that additional security is required;
- In cases where there is no security risk, defendants should also sit with their legal team;
- We invite the Lord Chief Justice to consider issuing a practice direction with regard to the above recommendations;
- We invite HM Courts and Tribunal Service, the Ministry of Justice and other appropriate agencies to explore alternative security measures to the dock, mindful of the need for such measures to be concealed from the judge/jury and comfortable for the defendant; and
- We invite the Ministry of Justice and other relevant agencies to review prisoner escort custody contracts to ensure appropriate security can be supplied to the courtroom.
The report is at https://justice.org.uk/in-the-dock/
Fees in immigration and asylum appeals
In September 2016 I noted there the decision of the Government to introduce massive increases in the fees charged for bringing appeals to the First Tier Immigration and Asylum Chamber. They were introduced in October 2016.
On 26 November 2016, in a remarkable change of heart, the Government announced that the October increases would be scrapped and that the fee levels would revert to those in place before their introduction.
It should not be thought that the issue has entirely gone away. The Minister’s statement repeats the point that, in the Government’s view, the cost of providing court and tribunal should be broadly neutral, and that those who use them should pay more. Officials will therefore be working on new proposals, which will be set out in due course.
I think that two key questions remain unanswered:
1 Is the idea of making courts and tribunals self-financing the best basis for providing this service, particularly where what is being appealed against are decisions taken by civil servants working within the government? Is there not a public interest element – which should be funded in other ways, not by the individual – in ensuring that decisions taken by officials are right?
2 If fees are set at such a level that cases are simply not brought to the tribunal, does this not make the whole exercise self-defeating, in that no money comes into the system? In addition, if the flow of cases dries up, it is hard to argue that the impact of the fees has not interfered with access to justice.
I do hope that the nest consultation paper deals in a rather more nuanced way with these issues of principle, rather than just focusing on the narrow question of cash.
For the Minister’s statement, go to https://www.gov.uk/government/speeches/courts-and-tribunals-update
Prison Reform
One reason to regret the departure of Michael Gove MP as Secretary of State for Justice and Lord Chancellor – following the outcome of the Brexit referendum – was that he did not have the chance to follow through his ideas to improve the rehabilitation functions of prisons. His successor, Liz Truss MP, has taken up the mantle of prison reform. Following the announcement in the Queen’s Speech that there would be a Prisons Bill, the Government in November 2016 published a White Paper setting out in some more detail its proposals.
They include, and have been summarised in the Press Release:
Safe and secure prisons:
- Creating a new network of ‘no-fly’ zones to block drones flying dangerous illicit items into the prison estate, the fitting out of prisons with cutting edge technology to block illegal mobile phones; and testing offenders for drugs on entry and exit from prison;
Raising standards:
- Rating prisons on their ability to run safe and decent regimes which reform offenders, cut crime, and keep streets safe – showing which prisons are making real progress in getting prisoners off drugs and into education and employment
- Enshrining in law what the public and Parliament can expect prisons to deliver– making sure prisons operate under a rigorous system of accountability, scrutiny and support, and holding the Secretary of State to account for their performance;
Empowering governors:
- Giving every single governor greater authority to run their prison the way they think best – moving power from the centre and into the hands of hard-working, trusted staff to deliver lasting improvements and equip offenders with the tools to lead a better life on release.
Stronger accountability and scrutiny:
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Overhauling accountability and giving greater bite to the inspection regime so action is taken swiftly – and seriously – where prisons are failing in their duties – including a new emergency trigger for the Justice Secretary to take direct action, with sanctions including the issuing of formal improvement plans to ultimately replacing the leadership of the prison
These measures, which will require legislation, will be supplemented by a major programme of prison building, closing old prisons and replacing them with modern buildings.
In the view of many, the chances of success in reducing reoffending rates (which currently run at about 50%) will only be achieved if the prison population is reduced, so that the education, that Michael Gove was so keen to promote, can actually be provided. Indeed, the Lord Chief Justice, in evidence to the Justice Select Committee in November 2016, argued (as other senior judges have done before him) that more could be done by making community sentences more onerous, and keeping prisons for the most serious offenders.
The Prison Reform White Paper , Prison Safety and Reform, may be read at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565014/cm-9350-prison-safety-and-reform-_web_.pdf
Lammy Review: racial bias in the criminal justice system
In this blog, I noted (Feb 2016) the appointment of the MP for Tottenham, David Lammy, to lead a review of racial bias in the criminal justice system. He has now published his ’emerging findings’ in a letter he has sent to the Prime Minister. His final report is expected in 2017. The Press Release states:
The review commissioned an analysis paper looking at disproportionality in the criminal justice system. One finding was that for every 100 white women handed custodial sentences at Crown Courts for drug offences, 227 black women were sentenced to custody. For black men, this figure is 141 for every 100 white men.
Among all those found guilty at Crown Court in 2014, 112 black men were sentenced to custody for every 100 white men .
The disproportionality analysis also found that, among those found guilty, a greater proportion of black women were sentenced to custody at Crown Court than white women.
Other notable findings highlighted today from the disproportionality analysis and the wider Lammy review include:
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Of those convicted at Magistrates’ Court for sexual offences, 208 black men and 193 Asian men received custodial sentences for every 100 white men.
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BAME defendants are more likely than their white counterparts to be tried at Crown Court – with young black men around 56% more likely than their white counterparts;
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BAME men were more than 16% more likely than white men to be remanded in custody;
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BAME men were 52% percent more likely than white men to plead ‘not guilty’ at crown court;
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In prisons, BAME males are almost five times more likely to be housed in high security for public order offences than white men, and
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Mixed ethnic men and women were more likely than white men and women to have adjudications for breaching prison discipline brought against them – but less likely to have those adjudications proven when reviewed.
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51% of the UK-born BAME population agree that ‘the criminal justice system discriminates against particular groups’, compared to 35% of the UK-born white population;
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41% of youth prisoners are from minorities backgrounds, compared with 25% ten years ago, despite prisoner numbers falling by some 66% in that time;
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The number of Muslim prisoners has almost doubled in the last decade.
The next stage for the review will be to examine the reasons for these figures and to explore whether they reveal bias in the system against those from BAME groups.
It has also been announced that Lammy will – as part of this exercise – take a closer look at diversity in the judiciary and the numbers of judges from BAME groups.
The details of the emerging findings are at https://www.gov.uk/government/news/lammy-review-emerging-findings-published
Compensation culture: cutting down ‘whiplash’ claims
Those who argue that a compensation culture has developed in our society – with too many people willing to seek compensation for things that have happened to them – often point to the numbers of claims made for soft tissue injuries occurring in road traffic accidents (RTAs), commonly referred to as ‘whiplash claims’
In 2015, the Government announced that it wanted to reduce the incentives on people bringing whiplash claims. It has now published a consultation paper setting out its ideas in more detail.
The package includes measures to tackle the high numbers of minor RTA related soft tissue injury claims by either:
Measures (a), (b) and (d) will require primary legislation and the government intends to legislate as soon as parliamentary time allows.Measure (c) requires changes to the Civil Procedure Rules (CPR). There will also need to be amendments to relevant Pre-Action Protocols including the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.
It is argued that these changes could reduce the cost of insurance claims by around £1bn annually.
The Consultation will provoke strong views, and are likely to be fiercely resisted, particularly by those who represent claimants. If implemented, the reforms could also have significant impact on Claims Management Companies.
The outcome of the consultation is not yet clear, nor, importantly is it clear when time for the required legislation could be found. But it is an issue that is unlikely to go away, even if implementation is still some time off.
The Consultation can be found at https://consult.justice.gov.uk/digital-communications/reforming-soft-tissue-injury-claims/
Review of fixed recoverable costs
One of the central recommendations of Lord Justice Jackson’s 2010 Review of civil litigation procedures and costs was greater use of fixed recoverable fees. The principle of fixed costs had been advanced by the Civil Justice Council for a number of years; indeed they helped to negotiate an agreement that this was the way forward for certain low vale Road Accident claims. Jackson wanted to go further and apply the principle of fixed costs to a wider range of types of case and to cases of higher value. He has continued to advocate the need for many more cases to come within the fixed costs regime – in his view, cases up to £250,000.
Now the senior judiciary (The Lord Chief Justice and the Master of the Rolls) have commissioned Lord Justice Jackson to undertake a further exercise to test the practicability and wisdom of his ideas. His review has been given the following terms of reference:
- To develop proposals for extending the present civil fixed recoverable costs regime in England and Wales so as to make the costs of going to court more certain, transparent and proportionate for litigants.
- To consider the types and areas of litigation in which such costs should be extended, and the value of claims to which such a regime should apply.
- To report to the Lord Chief Justice and the Master of the Rolls by the 31st July 2017
It seems highly likely that this exercise will lead to an extension of the existing fixed costs regime.
For details of the announcement see https://www.judiciary.gov.uk/announcements/senior-judiciary-announces-review-of-fixed-recoverable-costs/
Keeping the reform of Family Justice under review – the work of the President of the Family Division
A notable development in the programme of change currently happening in the Family Justice system is the very personal attention being given to the programme by Sir James Munby, the President of the Family Court. He publishes a regular series of newsletters, which he now calls ‘The View’, setting out progress both on matters of the reform of family law, and the processes of the courts.
He clearly supports the aims and objectives of the Norgrove recommendations for change and is anxious that practice and procedures are made more efficient. He is clearly concerned about the resources available to the Family Justice system, but does not think that more resources is the answer to all the problems of the system. He wants new approaches to be developed as well.
One particular development of which he has become a strong supporter is the notion of ‘problem-solving courts’. The theory is that many families that get caught up in the care system do so because there are aspects of life style – especially alcohol and substance abuse – which result in children coming to the attention of social service departments. The argument is that if you offer a programme of support for the parent(s) who are not coping well, to change their lives, this could result in few children being brought within the case system – with all the cost that this entails.
Some years ago, Judge Nicholas Crichton established a new type of court – the Family Drug and Addiction Court (FDAC) – which sought to put these ideas into practice.
In 2015, a FDAC National Unit was created, which seeks to promote the development of these courts in different parts of the country. In its first year it had helped more than 15 such courts to come into existence.
Sir James Munby is extremely impressed with their work and a powerful advocate for their further development.
To read Sir James Munby’s newsletters/Views go to https://www.judiciary.gov.uk/publications/view-from-presidents-chambers/
To read more about the FDAC Unit go to http://fdac.org.uk/
Whatever happened to the idea for a Public Services Ombudsman?
Following a report by Robert Gordon in 2014, the Government announced in its legislative programme for 2015 that it would be published a draft bill, proposing the creation of a single Public Services Ombudsman, which would bring together the current Parliamentary ombudsman, Local Government Ombudsmen and the Health Services Ombudsman. Such a move had been made in Scotland and Wales.
No such bill has been published, nor was the proposal mentioned in the legislative programme for 2016. The Government has stated that the proposal will be brought forward in due course, but there is no indication of any timetable for this.
In the interim, a very interesting House of Commons Briefing Paper on the subject has been published which summarises many of the issues involved.
Rationalisation of the current plethora of Ombudsmen has been something that has been argued for sometime but one gets the impression that for the moment it has been kicked into the long grass and is not high on the Government’s priority list.
The Briefing note is at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7587
Setting limits to the exercise of prerogative powers: R (Miller) v Secretary of State for Exiting the European Union
One of the most important legal challenges to the exercise of prerogative power has recently been made in the case of R (Miller) v Secretary of State for Exiting the European Union. This is the case that challenged the Government’s view that it could trigger Article 50 of the Treaty of the European Union without the necessity for a vote in Parliament. This is a case of very considerable constitutional importance. I provide here links to a summary of the case, and to the whole judgement.
The decision of the Administrative Court is being appealed go the Supreme Court. The outcome of that hearing is expected early in 2017.
A summary of the decision can be found by clicking on the following link:
The full judgement is at
While it was accepted that the Government can use its prerogative power to enter international treaties, in the case of the European Union, the relationship between the UK and the EU was underpinned by the European Communities Act 1972, which had been enacted by the UK Parliament. The judges accepted that, if the UK were to exit the EU, this would inevitably result in rights and obligations brought into the UK’s domestic law by the Act of 1972 being altered.
The judges held that the Sovereignty of Parliament was the most important principle in the UK’s constitutional arrangements. While the Parliament could make or unmake any law, it was not permissible to use prerogative powers to change law enacted by Parliament. Thus, in the current situation, it was not permissible to use prerogative power to trigger the start of the process of leaving the EU.
Sections of the UK Press saw this decision as undermining the will of the people (as expressed in the result of the referendum on leaving the EU). However, a more sensible view is that in this decision the Court was deciding that the fundamental principle of the Sovereignty of Parliament should be upheld and that it was the proper function of the Court – which is independent of Government – to rule that in these circumstances the Sovereignty of Parliament was not to be undermined by the use of prerogative power.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 