Archive for November 2018
What happened to the Lammy Review? Tackling racial disparity in the criminal justice system
The Lammy Review on the treatment and outcomes of BAME individuals in the criminal justice system was published in autumn 2017 (noted in this blog in September 2017). At the same time, the Government had launched its Race Disparity Audit – the first results from which were also published in 2017.
A year on, in October 2018, the Ministry of Justice has published a policy paper on tackling racial disparity in the criminal justice system. It summarises both what has been done and how new developments may be taken forward.
The Press Release states, in part:
There is an undeniable over-representation of ethnic minorities within CJS which [the Government is] determined to challenge and change. For the Criminal Justice System to be viewed as effective and fair it needs the trust, confidence and engagement of citizens from all communities.
[This] update highlights progress across different parts of CJS, from the early stages of the system to court, prison and probation. It also explores cross-cutting work on areas such as data. The update sets out next steps and [the Government’s] continued commitment to progress in this area.
Nevertheless, the Ministry of Justice has partnered with police forces, Police and Crime Commissioners and the Mayor’s Office for Policing and Crime in London to develop pilots of this model in 4 areas: London (North West Borough Command Unit), Surrey, Cumbria and West Yorkshire. We are working with these areas as well as national partners on the pilot design and sharing best practice around implementation and data collection. Although ethnicity is not a selection criterion for being offered a ‘deferred prosecution’, areas will monitor this with the aim of understanding any impact on disproportionality. We expect pilots to go live in police areas during 2019. All of the pilot areas propose to include youth.
The Government has also decided to publish regular updates to the facts and figures relating to ethnicity. These are prepared by, the Ethnicity Facts and Figures service, part of a unit established in the Cabinet Office. The data relate to many aspects of life in the UK, including crime and the criminal justice system.
For the policy statement from the Ministry of Justice, see https://www.gov.uk/government/publications/tackling-racial-disparity-in-the-criminal-justice-system-2018
Data from the Ethnicity Facts and Figures Service are at https://www.ethnicity-facts-figures.service.gov.uk/ from which there are links to ‘Crime Justice and the Law’.
Transforming Criminal Justice: progress reports
I have already noted the report on progress with family, civil and administrative justice. This entry summarises a recent note on progress with the transformation of the criminal justice system. There are 11 projects listed which relate to criminal justice.This note sets out the main ones.
Projects supporting summary justice
- The Single Justice Service (SJS) contains all services delivered by the magistrates’ court which can be considered by a single magistrate. It builds upon the implementation of the Single Justice Procedure (SJP), introducedto process some 850,000 summary non-imprisonable cases per year; this involves working with prosecutors, including TV Licensing, TfL, the DVLA, the police and other non-police prosecutors such as local authorities. The purpose of the SJS is to deal more proportionately with the least serious offences, to which the majority of defendants either do not respond or plead guilty, and which almost exclusively result in a financial penalty. Subject to legislation, this may include the ability to accept a statutory fixed fine online for the most minor offences (in which case the implications of doing so will be carefully and clearly explained). The option for a hearing will remain.
- The SJS is underpinned by a digital system known as Automated Track Case Management (ATCM) and is supported by the Single Justice Service Centre (SJSC). So far, the service is live for cases prosecuted by TfL (Transport for London). Those who plead not guilty have the case transferred for a hearing in the magistrates’ court.
- Since 12 April 2018, defendants have been able to plead online if they choose to do so (rather than on paper). The SJSC team based in Stoke takes calls from defendants and help those who would like to plead online to do so. The ability to plead online builds on the experience of the ‘Make a Plea’ service, which has been live since August 2014, for defendants involved in summary non-imprisonable motoring offences, such as speeding and having no insurance, and has been rolled out to all 43 police forces. During 2017, over 83,000 pleas were registered through this service and it now receives around 1,600 pleas online each week.
Projects supporting hearings in the magistrates’ and Crown courts
- Online plea and allocation: This aim of the project is it make it possible for represented defendants (through their legal representative) to indicate a plea online, before coming to court; and for decisions on allocation to be taken outside the courtroom where that is appropriate. The aim is to support earlier engagement with the court and swifter allocation of cases, and to free up courtroom space and time currently used to hear pleas. Subject to legislation, the project will also enable indictable only cases to go straight to the Crown Court without the need for an unnecessary hearing in the magistrates’ court.
- Case progression project: This project aims to ensure all activities required to achieve an effective trial or sentencing hearing in the magistrates’ and Crown courts are carried out by the participants to the case in advance, and that trial and sentencing hearings can go ahead as planned. It builds on the recommendations of the Leveson report on criminal justice efficiency and will enable some case progression activity to take place outside the courtroom through online, audio and video channels.
- Court hearings project: This project is specifically focused on trials and sentencing hearings in both the magistrates’ and Crown courts. This project will ensure that criminal trials and sentencing hearings are enabled by the right technology and physical environment in the courtroom to ensure the smooth running of the hearings on the day, building on the increasing use of technology that we see already in the criminal courts.
- Video remand hearings: This service aims to transform the way in which hearings for defendants held in custody could be administered in the future, and ultimately enable suitable proceedings to be held fully by video (in other words, with the option of not just the defendant, but others appearing by video, subject to judicial agreement and discretion). The aim is to reduce the amount of time defendants are held in custody without a judicial decision, particularly the number of defendants held overnight, and to reduce unnecessary journeys. It is also an opportunity to improve processes around those appearing on video from the police station now, including improving access to early legal advice.
- Youth project: This project will look specifically at the needs of children and young defendants to ensure that we do not apply adult processes to children, but instead look at each stage of the process and shape a version of it that is appropriate for young people, with the right safeguards and enhancements.
- All these service projects are underpinned by the digital infrastructure known as the Common Platform, a shared system between the police, HMCTS and CPS and accessible by participants across the criminal justice system. This will allow earlier access to the Initial Details of the Prosecution Case (IDPC) for legal professionals; better handling of multimedia; a single, shared view of cases; and direct transmission of case results to those who ought to know.
Adapted from HMCTS Reform Update Autumn 2018 at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744912/HMCTS_Reform_Update_2_Oct_2018.pdf
Disclosure of Evidence: the Attorney-General’s review
In November 2018, the Attorney General published the results of his review into the practice and procedures of police and prosecutors relating to the disclosure of evidence held by prosecutors to the defence, where such evidence might undermine or weaken the prosecution’s case.
The importance of ensuring that such disclosure takes place is accepted by all those responsible for criminal justice policy to be at the heard of a fair judicial process.
The Attorney-General’s review found, in common with earlier official reports, that the duty to record, retain and review material collected during the course of the investigation was not routinely complied with by police and prosecutors.
The Review makes clear that disclosure obligations begin at the start of an investigation. Investigators have a duty to conduct a thorough investigation, manage all material appropriately and follow all reasonable lines of inquiry, whether they point towards or away from any suspect. The Review found that this was not happening routinely in all cases. At the least this caused costly delays for the justice system and at worst it meant that cases were being pursued which the evidence did not support. The impact of these failings caused untold damage to those making allegations and those accused of them.
The Review concluded that “to enable lasting change, there must be a ‘zero tolerance’ culture for disclosure failings across the police and the Crown Prosecution Service (CPS)”.
Of course, this is easier said than done. Hard pressed police and prosecutors may well be tempted to take short cuts. In order to counter these temptations, the Government has taken a number of steps.
1. It has welcomed the steps already taken by the police and CPS to address the issues through the National Disclosure Improvement Plan and will work with each to ensure they lead to long-term, effective and sustained change. HM Government intend, through the Attorney General and Home Secretary, to hold police and prosecution leaders personally responsible for this.
2. As the Review found that non-disclosure is a system-wide problem which needs a systematic response, the Criminal Justice Board, which the Attorney General sits on, will take responsibility for strategic oversight of the collective response from all parts of the system – from police, to prosecutors to the judiciary.
3. The Review found that police and other investigators could be better supported by technological advancements when reviewing and capturing digital evidence. To address this, the Government plans to convene a ‘Tech Summit’ in spring 2019 to help all 43 police forces in England and Wales handle the increasing volumes and complexity of this type of evidence. This will build on the work of the police and help to engineer a way forward with the help of private tech companies. Through the Police Transformation Fund, the Government is already investing in national work to support policing in its wider digital transformation.
4. While the underpinning legislation thought to be still fit for purpose, the Government has concluded that the guidelines which support it need to be updated to meet the challenges of the rise of modern technology. This will happen through secondary legislation.
5. Finally, the work already started by the CPS to improve its data collection to capture the extent of the disclosure problems is essential. The Government will oversee the CPS’s delivery of a new data collection regime which is fit for purpose.
Whether or not all these initiatives will have the desired effect remains to be seen. But there is no doubt that at present practice and procedure on the ground has the potential to undermine the integrity of the criminal trial process.
The full text of the review is at https://www.gov.uk/government/publications/review-of-the-efficiency-and-effectiveness-of-disclosure-in-the-criminal-justice-system.
The Justice Select Committee’s report on this issue, published in July 2018, is 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 