Archive for October 2018
Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board
In November 2015, I noted in this blog the critical report by Sir Bill Jeffrey on standards of criminal advocacy. I also noted the consultation paper on the subject issued by the Government.
In June 2018, the SRA and the BSB published two reports on the subject.
The first report explores the views of the judiciary on the current quality, provision and regulation of advocacy within the criminal courts. The Judicial Perceptions Report, involved in-depth interviews with 50 High Court and circuit judges.
Key findings were:
- While judges viewed the current quality of advocacy as competent, some felt that standards were declining in some areas, especially in relation to core courtroom skills such as case preparation and dealing with some witnesses.
- Advocates’ skills in dealing with young and vulnerable witnesses are largely improving.
- The most commonly cited barrier to high quality advocacy was advocates taking on cases beyond their level of experience.
- Judges were uncertain over when, and how, they should report poor advocacy to regulators.
The second report arose from a Thematic Review of Criminal Advocacy, undertaken by the SRA. It was informed by data gathering and interviews with 40 solicitors’ firms actively involved in providing advocacy by solicitors within the courts.
Key findings of the SRA’s thematic review included:
- Firms use in-house solicitors to support the vast majority of criminal work in magistrates’ courts and youth courts (90 percent), and 29 percent of work in the Crown Court.
- The solicitors’ advocacy market is dominated by smaller firms and increasingly ageing individuals, while the number of new entrants to the market is falling.
- Levels of complaints regarding advocacy work are relatively low (22 recorded complaints in two years across all 40 sample firms).
- Approaches to training are inconsistent, with its delivery often infrequent, limited or not planned.
To me, the most concerning finding is that those doing this work are aging and are not currently being replaced by younger colleagues. It may be assumed that the cuts to criminal legal aid have had an impact on this.
Building upon the findings of both reports the SRA will be undertaking further work to understand the work of solicitor advocates. The Bar Standards Board also intends to publish its strategy for assuring the quality of advocacy shortly.
The reports can be accessed at https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/regulators-publish-reports-into-criminal-advocacy-standards/
or https://www.sra.org.uk/sra/how-we-work/reports/criminal-advocacy.page
Transforming administrative justice – current projects: progress reports
Information about the progress of the Transformation: Courts and Tribunals 2022 programme has been emerging from HMTCS. (See this blog October 2 October 2018).
In this note I look in a little more detail at projects in the administrative justice area.
In their recent progress update, HMCTS listed 5 projects that were either started or in prospect relating to administrative justice. These were:
- Upper Tribunal: Building the IT infrastucture to enable new digital ways of working across Upper Tribunal.
- Social Security and Child Support (SSCS): Establishing a new, digital process to improve the experience of appellants, allowing them to submit, track and manage their appeal online. Pilot projects are already been trialled in a number of venues.
- Immigration and Asylum Chamber (IAC): Developing the administration of the Immigration and Asylum Chamber’s service so that it can adapt according to different needs of users. It will enable case resolution both online and by video.
- Employment Tribunals (ET): This project will use a combination of the tribunals authorisation and the civil money claims models to develop an ET service that can change the way it works according to what the user needs. This will include the ability to resolve cases online and by video.
- Specialist Tribunals: The project will establish new ways of working across the tribunals, developed on a tribunal-by-tribunal basis. This includes the Pilot project enable appeals to be made to the Tax Tribunal on-line, which are being tested and evaluated.
Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review
In June 2018, I noted here the critical report from the National Audit Office – published in May 2018 – on the Transformation: Courts and Tribunals Programme 2022.
The NAO report was reviewed by the Public Accounts Committee , which took evidence from the Ministry of Justice and HM Courts and Tribunals Service. In July 2018, it published a pretty brutal report which listed a number of concerns about the programme and set out a number of recommendations on the way forward.
The PAC found, in summary:
- It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
- It found that HMCTS had failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes.
- Despite revising the timescale, it thought that HMCTS’s imperative to deliver at such a fast pace risked not allowing time for meaningful consultation or evaluation and could lead to unintended consequences.
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The Committee thought HMCTS had not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable.
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It found that, one third of the way through the programme, the Ministry of Justice still did not understand the financial implications of its planned changes on the wider justice system.
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The Committee remained concerned that the Ministry of Justice was taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.
In relation to findings 1, 2 and 4 above, the Committee wanted HMCTS to start producing update reported on a regular 6 month basis, starting in January 2019.
In relation to finding 3, it wanted, by November 2018, HMCTS to publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.
In relation to findings 5 and 6 it recommended regular updates from the Ministry of Justice, again starting in January 2019.
The Government has just announced that it has agreed to all the PACs recommendations.
As I said in my original comment on the report from the National Audit Office, my personal view is that it is essential that the justice system is modernised. Doing nothing is not an option. While stern criticism may well help to ensure that the Director of the reform programme keeps her eye on the ball, I also think that it is important to support those working on the reform programme. Such harsh criticism could be extremely undermining of staff confidence and could paradoxically increase the chances of some of the negative outcomes listed by the Committee coming to fruition.
I will keep readers of the blog posted as and when new material is published.
The NAO report is at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/
The PAC report is at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm
The Government’s response is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746797/CCS001_CCS1018676736-001_Treasury_Minutes_Gov_Resp_43-58_Cm9702_Web_Accessible.pdf
Transforming family justice: current projects – progress reports
There are currently six projects associated with the Family Justice system.
1.Online divorce
This project aims to deliver a transformed national end-to-end digital service for individuals and their legal representatives to make an application to legally end their marriage or civil partnership and resolve associated financial issues.
The first stage – supporting applications for uncontested divorce, and allowing digital upload of marriage certificates – was rolled out nationally from 30 April 2018. By mid-September 2018, over 13,500 on-line applications had been received. Fewer than 1% of applications have contained errors that meant they needed to be resubmitted, compared to over 40% of the old paper forms.
The Government is now testing an online system, to be used by legal representatives, for Financial Remedy consent orders.
2 Online probate for personal applicants
This project aims to provide a digital, user-designed application form and a new case management system to actively manage probate applications. The project will create a simpler, digital process for users, as well as reducing the cost and time spent processing applications. To date the service has received 3,862 applications with just over 3,194 grants of probate having been issued.
3 Family public law
This project will make the family public law process more efficient, ensuring the court, parties and their representatives have access to the right information, at the right time, to help decide the best outcomes for children involved in public law cases.
In particular, it will allow evidence to be submitted and shared electronically and cases can be managed much more securely and effectively.
It will also allow orders to be written and produced in real time in court (in many cases), meaning that everyone leaves with immediate clarity on what has been agreed.
The first parts of the new system to be developed are now being tested.
4.Adoption
Following the first stage of the work on family public law, there is a project to digitise the adoption process for both public and private law cases, again developing systems to manage these cases more securely and effectively. Once all the parts are complete, they will fit together so that cases can move seamlessly from one to another.
The plan is for this work to start imminently and to run alongside the public law service development.
5. Court of Protection
This project will be to enable people using the Court of Protection to initiate and manage their cases online. This work will begin in Spring 2019.
6. Private Family Law
Later, the project will move to develop and implement systems and processes to enable private family law litigants to initiate and manage their cases online – again, fitting together seamlessly. This work is expected to begin in Summer 2019.
Transforming civil justice: current projects – progress reports
In the civil jurisdiction, existing processes can be protracted, inefficient and costly. The Government’s aim is to create a system that enables people to manage and resolve a dispute fairly and speedily.
- This will involve more mediation and fewer hearings.
- It will involve simpler processes and online routes into and through the courts – providing good quality digital systems to support the civil system, which at present is very paper-heavy, and allowing the kind of digital working in civil courts that legal professionals and others have become used to in the criminal court.
Initial focus is on those proceedings that most often engage the civil courts, in particular the county court – money claims and possession claims. In addition there is an important infrastructural programme to enable the High Court to function more efficiently. In a little more detail:
Transformation: Court and Tribunals 2022 – progress reports
I have observed before that it is quite hard for someone outside HM Court and Tribunal Service to keep up to date with progress with the Transforming our Justice System, now Transformation Courts and Tribunals 2022, reform programme.
For some time there has been an occasional blog, setting out information about a number of initiatives.
In recent months, a monthly Bulletin (also called an electronic Newsletter) has been launched, the latest of which, published on 1 Oct 2018 contains links to a detailed report Reform Update, Autun 2018, setting out the story so far.
The transformation programme is a very substantial one – it consists of some 50 projects. Not all of them have yet started and very few have as yet been completed. Many ideas are, quite rightly, being tested and evaluated before being nationally rolled out.
The easiest way to get an overview of the projects and their progress is to look at the summary table of the report (pp 22-26).
I will be adding further detail on these projects, dividing the information into broad subject headings.
The monthly bulletin can be accessed by clicking on the link under the heading Newsletter at https://www.gov.uk/government/news/hmcts-reform-programme.
The Reform Update report can be seen at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf
The Inside HMCTS blog can be accessed at https://insidehmcts.blog.gov.uk/
Reducing family conflict: reform of the legal requirements for divorce
At present, divorce law requires people seeking divorce must show that there has been irretrievable breakdown in the marriage. To do this they must give evidence of one or more of 5 facts; 3 are based on ‘fault’ (adultery, unreasonable behaviour or desertion) and 2 are based on a period of separation (2 years’ separation where the other spouse consents to the divorce, or 5 years’ separation where the other spouse does not consent).
In practice, only about 2% of respondents contest the petitioner’s decision to seek a divorce. Of these 2% of respondents, only a handful go on to contest (“defend”) the divorce at a court hearing. This means that, under the current law, a spouse who wishes to divorce can already be certain of doing so in practice, regardless of the other spouse’s wishes, provided that the petition establishes irretrievable breakdown.
There are domestic abuse cases where the current grounds for divorce can be used in a coercive way.
Proposals detailed in the consultation include:
- retaining the sole ground for divorce: the irretrievable breakdown of a marriage
- removing the need to show evidence of the other spouse’s conduct, or a period of living apart
- introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce
- removing the opportunity for the other spouse to contest the divorce application
The consultation also seeks views on the minimum timeframe for the process between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute) (currently 6 weeks, one day). This will allow couples time to reflect on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable.
The Consultation runs until mid-December 2018.
The Paper can be accessed at https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/.
A detailed Press Release is at https://www.gov.uk/government/news/justice-secretary-confirms-plans-to-reduce-conflict-in-divorce
Although there has been considerable public response to these proposals, it can be anticipated that at the end of the consultation dissenting opinions will be heard. The paper has also been criticised for not addressing other issues arising from relationship breakdown, in particular affecting couples who have not married or engaged in a civil partnership.
Disclosure of Evidence: Justice Committee report
It is a fundamental principle of the criminal justice system in England and Wales that the prosecution must disclose unused evidence to the defence. Following considerable press publicity given to criminal trials in which this principle has not been observed – leading to lengthy delays in a case being brough to trial, in some cases leading to a defendant being sent to prison for a crime he did not commit – the Justice Committee in the House of Commons took a look at the issue.
In July 2018 they published their report. In it they make no recommendations to change the law. Indeed, the confirm that the principle of disclosure is an important one to ensure a fair trial. What they do say is that those working in the criminal justice system must take their responsibilities in relation to disclosure more seriously.
The Committee notes that in early December 2017 the Government announced that the then Attorney General would conduct a review of disclosure. While the Attorney General has since changed, the Committee expects that this review will conclude.
The Committee also notes that the Crown Prosecution Service, National Police Chiefs’ Council and College of Policing published a “National Disclosure Improvement Plan” in January 2018. (Noted in this blog 1 Feb 2018)
The Justice Committee’s recent report in effect builds on these initiatives. It states, in summary that there needs to be:
- a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add-on;
- the right skills and technology to review large volumes of material that are now routinely collected by the police; and
- clear guidelines on handling sensitive material.
Finally, the Government must consider whether funding across the system is sufficient to ensure a good disclosure regime. The Committee notes that delayed and collapsed trails that result from disclosure errors only serve to put further strain on already tight resources.
The Committee plans to return to this issue both when the Government publishes its response to the report, and when the Attorney General’s review is completed.
The report can be seen at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85902.htm
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 