Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for October 2018

Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board

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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

 

 

 

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Written by lwtmp

October 15, 2018 at 4:02 pm

Legal choices – website on legal service providers

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One of the recommendations made by the Competition and Market Authority 2016 report on competition in legal services was that there should be a revamp of and better promotion for the Legal Choices website. It was intended that this should be the starting point for customers needing help, information, and guidance on how to navigate the market and purchase services.

The website is run by the frontline regulators themselves (Solicitors Regulation Authority, Bar Standards Board, etc.), and aims to provide factual information about who is regulated, how they are regulated, and how to find information out about those who are regulated, their costs, and what can be expected from them by way of service. It does not sell services or products.

I have not noted its existence before – but this is an omission I now seek to rectify. It contains a great deal of useful information. It should, as the CMA proposed, be much better promoted to the wider public.

To visit the website go to https://www.legalchoices.org.uk/.

 

 

 

 

 

Written by lwtmp

October 14, 2018 at 3:14 pm

‘Looking to the future’ – proposals for regulatory changes from the Solicitors’ Regulation Authority

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In June 2018, the Solicitors Regulation Authority published its Looking to the Future reforms which include a range of changes to how it regulates solicitors. In outline, they are

Shorter, simpler rules and standards

  • A shorter, more accessible Handbook – focussing on the behaviours and principles that support high professional standards.
  • A separate Code of conduct for solicitors and one for firms.

Greater flexibility for solicitors and firms

  • Opportunities for solicitors to provide ‘reserved legal activities’ on a freelance basis, in certain circumstances. They will need to have at least three years’ experience, appropriate indemnity insurance, and will not be able to hold client money.
  • Opportunities for solicitors to do non-reserved legal work in a business not regulated by us or another legal services regulator. They will be bound by our solicitors’ Code.
  • In both instances, solicitors will need to be clear with prospective clients about the protections they bring.
  • Our new, simpler rules will also give firms greater flexibility to make decisions about how they work, helping to make doing business easier.

Simpler Accounts Rules more focused on keeping client money safe

  • Less prescriptive Accounts Rules which focus less on technicalities, and more on issues directly linked to keeping client money safe.
  • Providing a definition of ‘client money’ which maximises the need to protect the public while not placing unnecessary burdens on firms.

Improving clarity on when we take action

  • Our new enforcement strategy will provide greater clarity for the public and profession about when and how we would – or would not – take action against a solicitor or law firm.
  • It will also help us focus on the most serious matters.

Better information on price

  • All regulated firms will need to publish price information for the public and small businesses for seven types of legal services.
  • This includes conveyancing, employment tribunals and probate.

Better information about protections

  • SRA-regulated firms will be expected to display an SRA digital badge on their websites, which will provide a direct link to information on the protections their regulated status gives customers.
  • A modern digital register that will help people more easily find core information about who we regulate.

The proposals are currently with the Legal Services Board. The SRA hopes that the proposals on the publication of price information will come into effect in the autumn of 2018; the rest during 2019. They are at least in part a response to the Competition and Markets Authority Report on competition in legal services published at the end of 2016.

One of the most interesting proposals is that solicitors should be able to work in contexts other than solicitors’ offices, which may create opportunities for the development of new types of legal service work.

For further information see https://www.sra.org.uk/sra/policy/future/looking-future-reforms-summary.page from which this entry has been adapted.

 

 

 

 

 

Written by lwtmp

October 14, 2018 at 2:47 pm

Transforming administrative justice – current projects: progress reports

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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:

  1. Upper Tribunal: Building the IT infrastucture to enable new digital ways of working across Upper Tribunal.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
This information has been derived and adapted from Reform Update Autumn 2018, published by HMCTS, and available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf

Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review

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In June 2018, I noted here the critical report from the National Audit Office 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. 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:

  1. It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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

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Transforming family justice: current projects – progress reports

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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.

This information has been derived and adapted from Reform Update Autumn 2018, published by HMCTS, and available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf

Written by lwtmp

October 3, 2018 at 3:06 pm

Transforming civil justice: current projects – progress reports

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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:

1. Online Civil Money Claims:
This project started by developing a digital service that allows users to resolve civil money claims in a simple, accessible and proportionate way.
In August 2017, HMCTS launched a controlled test where users were invited to use
the new online service and by March 2018, 1,500 claimants issued claims within it. Over 80% of those users, including claimants and defendants, told us the service was very good and easy to use.
Further evidence suggests that the online system has improved access to justice, with engagement from defendants being higher than in the traditional civil money claims service.
HMTCS used feedback to keep improving the service, and opened it up to all users
on 26 March 2018. As well as allowing issue and defence of claim, the system allows without-prejudice offers to be made and accepted (and constructs agreements based on these offers and acceptances).
90% of users of the service since March have been satisfied or extremely satisfied with the new service.
The service is accessed at https://www.gov.uk/make-money-claim
A version of the system designed to support legal professionals who are managing multiple claims on behalf of their clients, is currently being tested with 10 firms. This should be  rolled out later in 2018.
Next steps will be to build further stages of the system, allowing more online negotiation
and settlement; upload of evidence; giving judges the facility to decide cases ‘on the digital papers’ but also to ask questions and seek clarification from parties; as well as providing the digital underpinnings for cases going to and through hearings.
2. Possession
The assured shorthold tenancy possession claim process will be made digital. As a first step, administrative processes will be improved, automated and streamlined to make them more efficient and reliable. The project will start formally in October 2018.
3. The Royal Courts of Justice
This project aims to deliver a digital case management system for the civil jurisdictions of the High Court and Court of Appeal, Upper Tribunal, the Employment Appeal Tribunal, Regional Business and Property Courts and District Registries.
As with the county court jurisdiction this will enable claims to be issued and responded to and cases managed by the court digitally. The project will also improve the hearing stage of the service by enabling evidence and e-bundles to be uploaded and shared
digitally and presented digitally at hearings. The project began in June 2018 and aims to deliver the new case management system to 2 of the jurisdictions this year.
A fourth project, on enforcement of judgements, has been put on hold.
This information has been derived and adapted from Reform Update Autumn 2018, published by HMCTS, and available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf