Archive for July 2018
The future of Family Drug and Alcohol Courts
For a number of years, Family Drug and Alcohol Courts (FDAC) have existed in a small number of court locations in England. Inspired by a model developed in the USA, Judge Nicholas Crichton thought that such courts could offer a ‘problem-solving’ approach for families caught up in the justice system, because of the negative interactions between the use of drugs or alcohol and the treatment of children. If parents could be helped to kick their habits, it was argued, this might enable families to be kept together, rather than divided with children being taken into care.
Although judges and ministers like the concept, the roll out of the concept has been left very much to local initiatives. In 2015, a FDAC National Unit was created to support existing schemes (there are currently 10 teams, working in 15 courts, service families in 23 local authorities) and to encourage the development of new schemes.
In June 2018, the National Unit announced that it would have to close, as central government funding was being withdrawn from the Unit. Since then, a firm of solicitors has stumped up £12,500 for 3 years, and is leading a fundraising campaign to obtain the £250,000 needed to keep the Unit open.
The schemes themselves are also funded on a cash limited ad hoc basis. For example, in October 2017, £6m was awarded to the Tavistock and Portman NHS Foundation Trust to enable the work of FDAC teams to be extended to more boroughs in London. The grant was made from the Government’s Life Chances Fund.
There is evidence that, where they exist, schemes deliver savings to the taxpayer (by reducing the costs of keeping children in care, for example.) But it seems that there is still someway to go before use of the approach will be rolled out on a national basis, and funded on a secure recurrent basis.
Further information on the FDAC National Unit is at http://fdac.org.uk/.
News about the private funding initiative is at https://www.thetimes.co.uk/article/law-firm-steps-in-to-help-save-family-drug-and-alcohol-court-mtk6jrtxd.
News about the grant from the Life Chances fund is at https://tavistockandportman.nhs.uk/about-us/news/stories/problem-solving-family-drug-and-alcohol-courts-fdacs-support-more-families-6m-life-chances-grant/
Improving Immigration and Asylum procedures
Immigration and asylum is always controversial. People have strong view, both for and against current immigration policy and practice. But these policies are underpinned by a legislative framework (albeit a very complex one) and if we believe, as I do, that upholding the rule is an important societal value, then it is important that those impacted by our law on immigration and asylum should be able to rely on decisions that are made in accordance with the law, and that there should be rights of appeal where something has gone wrong.
For a number of years, however, the immigration and asylum appeals process has been under close government scrutiny. In the early part of the 21st century, the concern was with the huge numbers of immigration cases being taken on judicial review to the High Court. More recently, most of these cases were taken away from the High Court and transferred to the Immigration and Asylum chambers of the First Tier Tribunal and the Upper Tribunal.
However, numbers remained high. In this context, there were concerns that too many cases brought were unmerited, being used as a delaying tactic to postpone deportation; and that some of those providing advice and assistance in immigration cases were not providing a properly professional service.
As part of its major series of reports on the justice system, written to assist the Transformation of our Justice System programme led by HM Courts and Tribunals Service, JUSTICE, the all-party Human Rights group, has just published a report Immigration and Asylum Appeals – a Fresh Look. (I declare an interest, I was a member of the working party, chaired by Sir Ross Cranston, that wrote the report.)
In it they try to take a dispassionate look at the problems and challenges which face the immigration and asylum appeals procedure. Their approach is to look at each of the steps through which a case may go in order to identify difficulties and recommend practical change.
The report is quite detailed. In outline, it argues:
• Home Office refusal decisions The Working Party’s view is that better Home Office decision-making – with more emphasis on getting it right first time – is the key to delivering a better appellate system;
• The application process for immigration and asylum appeals. Here the working party argues that more detailed attention needs to be paid to the move to online processes. At the same time the working party addresses the issue of unsupervised, unqualified and poor quality representatives purporting to provide advice and assistance to appellants;
• Appeals against adverse decisions of the Home Office on immigration and asylum matters in the First-tier Tribunal (Immigration and Asylum Chamber). This examines the important role of tribunal case workers in moving cases forward. It also wants to see stronger judicial case management to improve tribunal efficiency.
• Hearings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). This section of the report focusses in particular on video-conferencing and video-hearings, recognising the potential advantages of these models. At the same time, the report stresses the fundamental principles that should govern any expansion in their use and where they will not be appropriate.
• Appeals to the Upper Tribunal (Immigration and Asylum Chamber), Judicial Reviewapplications and appeals to the Court of Appeal. This part of the report focusses on the multiple stages that may be gone through when seeking permission to appeal. The working party considered the tension between the important right of review in this jurisdiction and the pressure on the system that flows from too many appellate stages. While not recommending removing rights of appeal, the report outlines ways to streamline this process.
A key theme to emerge from the report is that there needs to be much better communication between the parties.The Working Party considers how this might be facilitated both at the pre-hearing stage and on a continuing informal basis.
Detailed recommendations are made on ways to improve the management of cases and to reduce the number of unnecessary appeals – to the benefit of all participants in the system and the administration of justice more generally.
The above note has been adapted from the report which is available at https://justice.org.uk/new-justice-working-party-report-on-immigration-and-asylum-appeals/
Diversity in the Judiciary: slow progress
The judicial diversity statistics were published on 12 July 2018. They are based in information as at 1 April 2018. The statistics show there has been further, albeit slow, progress in the appointment of women in judicial posts; there has been some progress, though less than for women, in the appointment of those from Black and Ethnic Minorities groups as judges. that:
- 29% of court judges and 46% of tribunal judges were female. 50% of non-legal members of tribunals were female.
- Around half of court judges aged under 50 are female. Females outnumber males among tribunal judges at all age groups under 60.
- 24% of Judges in the Court of Appeal and in the High Court were female.
- 41% of Upper Tribunal Judges were female.
- Since 2014 there has been a 5-percentage point increase in female representation among court judges.
- 8% of judges identified as BAME (7% of court and 11% of tribunal judges); non-legal tribunal members 17%
- BAME representation among court judges aged 40 or over (98% of judges) was only slightly below that of the working age general population in each age band, while BAME representation among tribunal judges was higher than that of the working age general population at all age bands from 40 and over. Non-legal members have considerably higher BAME representation than that of the working age general population at all age groups.
- A third of court judges and two thirds of tribunal judges are from non-barrister backgrounds.
- More than half of magistrates were female (55%)
- 12% of magistrates declared themselves as BAME.
- There were very few magistrates aged under 40 (4%) compared with 55% of magistrates who were aged over 60.
On 27 June 2018 (outside the period used for the report) the appointment of three Lady Justices and four Lord Justices of Appeal were announced. On 9 July 2018 the appointment of five High Court Judges were announced, three of which were male and two of which were female. These will be reflected in the statistics for 2019.
The full report is available at https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2018/
There are two major challenges relating to judicial appointments which have been aired recently.
First, there are concerns at the significant reduction in the numbers of Lay Justices who sit in Magistrates’ Court.
Second, there are concerns about unfilled appointments to the High Court, attributed to recent reductions in the pay and benefits associated with these appointments. This is an issue currently under review by the Senior Salaries Review Body. The outcome of the consultation is currently awaited. It was the subject of a recent speech given by the Lord Chief Justice.
See https://www.gov.uk/government/consultations/major-review-of-the-judicial-salary-structure
The Lord Chief Justice’s speech is at https://www.judiciary.uk/wp-content/uploads/2018/07/20180704-lcj-speech-mansion-house-speech.pdf
Preventing digital exclusion
A great deal of effort is currently being put into finding ways of using IT to deliver legal services, whether in the form of: providing legal advice and assistance to those who need it; conducting various types of legal activity/process on-line; dealing with disputes online.
In general, the modernisation of the practice and procedure of the law through IT is to be welcomed. At the same time, there are concerns that some of the most vulnerable in society may be excluded from this brave new world. They may not have easy access to computers, or the ability to use them. In rightly encouraging digital solutions, at the same time policy makers need to ensure that the most vulnerable are not left behind.
In a recent policy paper, the human Rights group JUSTICE has drawn attention to the importance of ensuring that people are not excluded from the rapidly developing digital legal world.
In their report Preventing digital exclusion from online justice (published in June 2018), they analysed the potential issues that those engaged in the reform of legal procedures need to bear in mind.
The report makes a number of recommendations, directed primarily at HM Courts and Tribunals Service. They include:
- Greater investment in “trusted faces” in “trusted places” i.e. services already providing digital support and internet access.
- Considering the specific challenges of providing support to the digitally excluded, especially hard to reach cohorts – including testing Assisted Digital services in regions where the internet may be difficult to access. (Assisted Digital envisages a flexible mix of telephone, webchat, face-to-face, and paper-based support services. HMCTS is commissioning a programme of work to evaluate what types of support and in what combinations works best.)
- Paying specific attention to highly digitally excluded groups, like homeless people and detainees.
- Designing online justice services with an independent “look and feel” to reflect the constitutional independence of the courts.
- Maximising the benefits of the “multi-channel” approach – helping people move with ease between digital access, phone assistance, face-to-face assistance, and paper.
- Ensuring online justice services cater for the most affordable and ubiquitous mode of digital interaction: mobile technology.
- Conducting end-to-end pilots of online justice services, learning from hearing and enforcement stages what is required at earlier stages.
- Researching how people behave in an online environment and choices between Assisted Digital channels.
- Collecting and making available the widest range of data possible to support research by external experts.
Internationally, there is a great deal of experiment going on with different forms of communicating advice and assistance. There are being kept under review by Professor Roger Smith who, with funding from the Legal Education Foundation, provides – among other things – an annual review of development in the use of IT to increase access to justice. He also writes a blog which looks in mor detail at specific initiatives relating to trying to improve access to justice – not just through the use of new technologies but also new ways of funding them such as crowd funding.
For those interested in how the application of new technologies might change ways in which the delivery of legal services are undertaken, this is an outstanding resource – full of links to detailed initiatives. At the same time, the need for realism in potential impacts is also stressed. It is important not always to believe the hype surrounding new applications.
The JUSTICE report is at https://justice.org.uk/new-justice-report-on-preventing-digital-exclusion/.
The Annual Reviews of digital delivery of legal services can be found at https://www.thelegaleducationfoundation.org/digital/digital-report.
Roger Smith’s blog on developments in Law, technology and Access to Justice is at https://law-tech-a2j.org/publications/
Also relevant is the report, published in July 2018, from the Centre for Justice Innovation, which also looks at public attitudes towards the greater use of IT in the justice system.
Supporting Exonerees
The adverse impact of being wrongfully convicted of a crime that you have not committee is obvious. But once the wrongful conviction comes to light, how should the state deal with those now exonerated. This detailed issues was the subject of a special report by JUSTICE, the Human Rights Organisation, in April 2018. (I am a member of the JUSTICE council but was not involved in this report.)
Way back in 1982, JUSTICE published a report, Compensation for Wrongful Imprisonment. Unfortunately, little has changed since then. Exonerees still do not receive the support they need to return to a normal life and are not properly compensated. A number of recent cases of wrongful conviction highlight the need to continue to address the issue and argue for change.
The new report makes it clear that, although monetary compensation may well be important, it is not just a question of money. Other types of support are needed as well.
The report makes 14 recommendations including:
- Better management of the transition from incarceration to release.
- The need for specialist psychiatric care for exonerees.
- The setting up of a residential service to provide practical and welfare support to exonerees.
- An independent body to determine whether applicants are eligible for compensation.
- Automatic compensation for wrongful imprisonment, subject to certain exceptions.
- An apology and explanation of the failure that leads to a quashed conviction and, where necessary, a public inquiry.
The full report is available at https://justice.org.uk/our-work/areas-of-work/criminal-justice-system/supporting-exonerees-ensuring-accessible-continuing-and-consistent-support/
Mental health and Fair Trial
Since 2015 the Human Rights group JUSTICE has produced a remarkable series of reports on different aspects of the justice system. (I declare an interest; I am a member of the JUSTICE Council.)
Their report Mental Health and Fair Trial was published in November 2017. in it, it outlined the precarious position vulnerable people may be in when confronted by the criminal justice system.
Since the JUSTICE reports are written by specialist sub-groups with specific knowledge of the issues raised, the recommendations they propose are aimed at dealing with practical challenges faced by those working in criminal justice. The available evidence suggests that people in the criminal justice system are far more likely to suffer from mental health problems than the general population.
The report argues that ‘argues that from first contact with the police through to sentence, there remain fundamental problems with the English justice system’s response to mental health. Left unaddressed the fair trial rights of many defendants may be undermined.’
The report makes over 50 recommendations for change grouped into the following broad categories.
1. The investigative stage – Mental health experts, not police officers, should be identifying people with vulnerability as a result of mental ill health or learning disability and those identified should have access to proper support.
2. Decision as to charge or prosecution – A specialist prosecutor should be appointed for each Crown Prosecution Service area who must make the charging decision in cases of vulnerability, assisted by up-to-date guidance and assessments.
3. Pre-trial and trial hearings – Trial processes can be bewildering and incomprehensible for those with mental ill health and learning disabilities. Magistrates’ courts, youth courts and the Crown Court should have a dedicated mental health judge with enhanced case management powers and responsibility for a case progression protocol.
4. Legal capacity tests – A capacity based test of fitness to plead and fitness to stand trial, placed on a statutory footing should be available in all courts and the “insanity” defence should be amended to a defence of ‘not criminally responsible by reason of a recognised medical condition’.
5. Disposal and sentencing – A Sentencing Guideline on mental health and vulnerability should be created and a broader range of disposals made available to sentencers to meet the needs of the case.
Although the report was launched with strong support from the Lord Chief Justice, it is not known whether the Government or other agencies mentioned in the report have actively taken forward these recommendations. But they deserve careful consideration.
The report is available at https://justice.org.uk/mental-health-fair-trial/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 