Archive for January 2017
The role of the magistracy
In October 2016, the Justice Select Committee published a report on the role of the magistracy in the criminal justice system. The Ministry of Justice responded to this report in December 2016.
There was a lot of common ground between what the Select Committee recommended and what the government is planning in relation to the magistracy.
A couple of specific issues caught my attention.
First, the Committee had noted that there appear to be some difficulties in ensuring that there are sufficient magistrates able and willing to undertake work in the Family Court. This has led the Ministry of Justice to make some administrative changes allowing a more flexible approach to be adopted for enabling magistrates to undertake family court work. The Ministry of Justice has indicated that it may consider special recruitment of some new magistrates who would only sit in the Family Court. However, even if it was concluded that this would be a good policy to adopt, it would require a change in the law. Any such change will therefore be some time off.
Second, the Committee report and the response from the Government raise some interesting issues about the future of the Magistrate’s Clerk. The Justices’ Clerk is the senior lawyer and adviser to the magistracy. Currently the appointment of the Justices’ Clerk is made under the Justice of the Peace Act, 1997. This requires the post holder to be a solicitor or barrister of five years’ standing or be a solicitor or barrister with five years’ experience of working in Magistrates’ Courts.
The Government has raised the possibility either that Justices’ Clerk would no longer be a statutory appointment, but rather appointed under new non-statutory arrangements. An alternative idea is that the functions of the Justices’ clerk might be undertaken by other officials working in the court system. The Government response to the Select Committee report states that this question is currently the subject of a ‘private’ consultation: “A consultation on the creation of a new senior leadership structure for lawyers working within HM Courts & Tribunals Service: Proposals to make changes to the role of the justices’ clerk”. This was published in December 2016 but is not apparently publicly available.
It seems unlikely that a major change to the role of the Justices’ Clerk would take place without some publication, so – again – I suspect that any change will be some time away. It should be remembered that part of the purpose of making the appointment of Justices’ clerks a statutory process was to help guarantee their independence in advising magistrates. It will be essential that this issue is taken on board in any proposals for reform.
For the Justice Committee’s report, go to http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/165/16504.htm
For the Government response, go to https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577348/government-response-justice-committee-report-role-of-the-magistracy.pdf
Paying for criminal defence advocacy
Relations between Government and the Criminal Bar have not, in recent years been characterised by a great deal of warmth and mutual understanding. Indeed, criminal barristers went on strike recently against what they regarded as unfair policy on legal aid remuneration.
I am sure it would be overstating things to say that peace has now broken out between the Government and the Criminal Bar. But a new Consultation Paper on the remuneration of criminal defence advocates (including solicitor advocates) has been published which seems to be the fruit of close working relationship between the two sides.
Certainly the chairman of the Bar Council has welcomed the paper’s publication and has urged advocates to support the recommendations set out in the paper.
One of the key aims of the new proposals is to try to ensure that payments reflect actual work done by advocates on behalf of their clients.
The proposals also seek to reflect the changing nature of criminal trial practice as the criminal courts’ efficiency programme continues to develop.
The proposals also aim to give a sense of career progress to those who undertake criminal defence advocacy. Pay should be higher as experience is gained and more serious cases are undertaken.
The recommendations are not based on any increase in the amount of money available for paying advocates; but they are designed to be a rational response to the changing face of criminal advocacy and to take a fresh look at a payments system that was last looked at 20 years ago.
The details of the consultation – which runs till early March 2017, are at https://www.gov.uk/government/news/proposals-to-reform-criminal-defence-advocates-pay-published
Implementation of Law Commission reports
As a former law Commissioner, I retain an interest in the progress being made with the implementation of Law Commission reports. Under the Law Commission Act 2009, the Government is required to publish an Annual Report setting out progress with the implementarion programme. All went swimmingly up to March 2015 – annual reports were duly published, as required.
But nothing in 2016. The Government has now (January 2017) published the sixth report on implementation, setting out progress between January 2015 and January 2016 – but ‘updated to the point of publication’ – i.e. including details of what happened during 2016.
So what happens now? It seems unlikely that there will be a further formal report until early 2018. Reports every other year might actually make good sense. But that is not what the legislation requires. So long as the legal requirement for an annual report is on the statute book Government should take note of it.
Turning to the content of the report itself, if has to be said that, while no reports from the Law Commission have been definitively rejected by the Government, the list of reports still under consideration by the Government is considerably longer than the list of reports implemented either wholly or in part.
The main success stories were in the areas of consumer rights, contempt of court by jurors, and the rights of third parties against insurers.
Looking to the future, the administrative burden that will inevitably be associated with the Brexit negotiation is likely to result in even slower implementation of reforms which – by definition – will have lower political prioroty.
For details of the Implementarion report, see https://www.gov.uk/government/publications/report-on-the-implementation-of-law-commission-proposals-january-2015-to-january-2016
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 