Archive for July 2020
Domestic Abuse Bill 2020 goes to the Lords: Integrated Domestic Abuse Courts pilot announced
Reforms in the ways in which cases involving domestic abuse are to be handled is another area of the current Government’s policy programme that is still being taken forward despite all the media attention on dealing with the Covid-19 pandemic. (There is of course a link in that reports of incidents of domestic abuse have risen substantially as a side effect of people being placed in lockdown as the first response to attempting to limit the impact of the pandemic.)
The Domestic Abuse Bill 2020 (noted in this blog (21 May 2020) has completed its journey through the House of Commons on 6 July 2020. It has now been sent to the House of Lords where is received its formal first reading in the Lords the following day.
In my earlier blog I set out the primary objectives of the new bill, so will not repeat them here. There are, however, still concerns about the scope of the bill. In particular, it is argued that people with unsettled immigration status (who are not permitted to have access to services provided through public funding) will remain at particular risk, despite the overall improvements to the system which will be introduced when the Bill becomes law. There are also concerns that levels of funding needed to ensure that services can be provided to the victisms of domestic violence and abuse will not be as generous as they should be.
Another development, which builds on the prospective changes in the Bill, was announced on 25 June 2020 when the Government published Assessing Risk of Harm to Children and Parents in Private Law Children Cases. This was the report of an independent study, led by three leading family law academics, supported by 10 panel members drawn from the Ministry of Justice, the judiciary, social work, womens’ aid and Respect. Commissioned by the Ministry of Justice, the report examined the experience of participants in private law children’s cases. (These are cases in which the parents of children take proceedings in order to determine arrangements relating to the custody of children.)
It consists of two significant documents:
- the analysis of responses to a widespread consulation on the issue;
- a detailed review of the existing published research on the issue.
The key issues that emerged from the consultation responses were:
- a feeling that abuse is systematically minimised,
- children’s voices not being heard,
- allegations being ignored, dismissed or disbelieved,
- inadequate assessment of risk,
- traumatic court processes,
- perceived unsafe child arrangements, and
- abusers exercising continued control through repeat litigation and the threat of repeat litigation.
These issues were underpinned by the following key themes in the evidence that was reviewed:
Resource constraints; resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
The pro-contact culture; respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
Working in silos; submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
An adversarial system; with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self-representation, with little or no involvement of the child.
A substantial list of recommendations was made to address these issues. The first of these related to the basic design principles for private law children’s proceedings. The panel stated that these principles should be:
- A culture of safety and protection from harm
- An approach which is investigative and problem solving
- Resources which are sufficient and used more productively
- With a more coordinated approach between the different parts of the system
Responding to the recommendations, the Government has announced an Implementation Plan. From a legal system perspective, the key decision is to start a pilot project of the ‘Integrated Domestic Abuse Court’.
Two different models will be tested and evaluated:
1. A ‘one family one judge’ approach in which certain concurrent family and criminal proceedings involving domestic abuse are heard by the same cross-ticketed judge, with the aim of reducing the need for victims to re-tell their stories and promoting a more joined up approach to the handling of such cases between the jurisdictions.
2. An ‘investigative’ approach to the family courts. This will explore ways to move away from the current ‘adversarial’ system to adopt … a more investigative approach [which] will focus on ways to improve gathering and assessing appropriate evidence. Specific emphasis will be placed on ensuring the voice of the child is heard effectively. [The Government] will seek to tackle problems more effectively through the better provision and signposting of support services, while a review stage during the pilot will aim to increase long term sustainability and reduce returns to court.
The Government intends to adopt a phased approach to both pilots. The first phase will involve a period of designing and small-scale trialling of potential solutions to aspects of the detailed pilot. This would be followed by the second phase, the full pilot of both approaches, the design of which will take account of the trial findings from the first phase.
The Covid-19 pandemic presents particular challenges to the immediate launch of this pilot. Both the family and criminal courts have had to alter drastically the way in which cases are processed at this time, and the results of any pilot undertaken in such circumstances are likely to be less representative and informative than they would usually be. In addition, courts and practitioners are under considerable pressure to ensure that as many cases as possible are heard at this time.
The Government therefore needs to keep the start date of the pilot under review dependent on the duration and impact of Covid-19, but will commence it as soon as it is practical and safe to do so. The Government will work with a range of stakeholders to develop the pilot plans further, and then publish additional information and a start date for Phase 1 as soon as the current situation permits.
For the version of the Domestic Abuse Bill which has gone to the House of Lords, see https://services.parliament.uk/Bills/2019-21/domesticabuse.html
For the reports of the study Assessing Risk of Harm to Children and Parents in Private Law Children Cases, see https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases#history
The Implementation Plan is also available at https://www.gov.uk/government/consultations/assessing-risk-of-harm-to-children-and-parents-in-private-law-children-cases#history
Counter-Terrorism and Sentencing Bill 2020
So far as the legal system is concerned (and in many other contexts as well) the headlines have all been about dealing with Covid-19. But this does not mean we should not keep an eye on other developments which will have an impact on aspects of the legal system.
One example is the Counter-Terrorism and Sentencing Bill 2019-21, introduced in the House of Commons in May 2020, and which yesterday (21 July 2020) completed the Report Stage and Third Reading. It now proceeds to the House of Lords.
This Bill is a second response to two terror attacks which occurred in London – at Fishmongers Hall on 29 November 2019 and in Streatham on 2 February 2020. Each attack was committed by a known terrorism offender who had been released automatically at the halfway point of their sentence without any input from the Parole Board. There was no provision to allow for an assessment of risk prior to release.
The first response was the enactment of emergency legislation, the Terrorist Offenders (Restriction of Early Release) (TORER) Act 2020. This was designed to ensure that terrorist offenders serving or sentenced to a determinate sentence could not be released before the end of their custodial term without the agreement of the Parole Board.
The Counter-Terrorism and Sentencing Bill 2019-21 develops the law on the handling of those found guilty of terrorist offences further. It has two broad objectives:
- Longer periods in custody
Reflecting the seriousness of the offences they have committed, the Government hopes that the changes will offer better protection for the public and more time in which to support the disengagement and rehabilitation of offenders through the range of tailored interventions available while they are in prison.
Among the measures in the Bill are:
- Serious and dangerous terrorist offenders will spend longer in custody, by introducing the Serious Terrorism Sentence for the most serious and dangerous terrorist offenders. This sentence carries a minimum of 14 years to be spent in custody, with an extended licence period of up to 25 years.
- This legislation removes the possibility of an early release from custody for serious and dangerous terrorist offenders, aged under and over 18, who receive an Extended Determinate Sentence.
- This legislation increases the maximum sentence that the court can impose for three terrorism offences (membership of a proscribed organisation, supporting a proscribed organisation, and attending a place used for terrorist training), from 10 to 14 years.
- The courts will be given power to find any offence with a maximum penalty of more than two years to have a terrorist connection. (This may result in a higher sentence than would otherwise be the case.)
2. Changes to the management and monitoring of terrorist offenders.
The measures in the Bill include:
- extending the scope of the sentence for offenders of particular concern (SOPC) by expanding the list of terrorist and terror-related offences which attract the sentence, and creating an equivalent sentence for offenders aged under 18 in England and Wales, Scotland and Northern Ireland. This will ensure terrorist offenders have a minimum period of supervision on licence of 12 months following release.
- extending the maximum licence periods for serious and dangerous terrorist offenders for offenders aged under and over 18.
- extending the application of mandatory polygraph testing when on licence to terrorist offenders aged over 18.
The Bill’s measures will also
- strengthen Terrorism Prevention and Investigation Measures (used by Counter-terrorism Police and the Security Services),
- support the use of Serious Crime Prevention Orders in terrorism cases, and
- expand the list of offences that trigger the Registered Terrorist Offender notification requirements. These changes strengthen our ability to manage the risk posed by those of terrorism concern.
Details of the Bill and background fact sheets are available at https://www.gov.uk/government/publications/counter-terrorism-and-sentencing-bill.
The Bill and the Explanatory Notes are at https://services.parliament.uk/Bills/2019-21/counterterrorismandsentencing.html
Enacting the Sentencing Code
In 2018, the Law Commission published the final report on one of its largest law consolidation exercises – the creation of a Sentencing Code. The Sentencing Code does not make new law, but consolidates into a single place all the law relating to sentencing.
The law on sentencing was spread throughout a large number of enactments. It had become particularly complex because changes in the law often resulted in earlier pieces of legislation being repealed except for specific provisions relating to sentencing. Thus the law applicable to any particular offence could be very hard to discover. Indeed, it was so hard to discover that, in 2012, an analysis of 262 randomly selected cases in the Court of Appeal (Criminal Division) found that 36 percent had received unlawful sentences. The Law Commission attributed these results to the level of complexity in the existing legislation.
In order to achieve this outcome, two pieces of legislation are required:
- The Sentencing (Pre-consolidation Amendments) Act 2020
- The Sentencing Bill
Sentencing (Pre-consolidation Amendments) Act 2020
This is a very technical piece of legislation which amends current law so that it is brought into a state to be consolidated when the Sentencing Code itself comes into effect (which will be on 1 October 2020). Once the Code is effective, the pre-consolidation Act becomes redundant.
The Sentencing Bill 2020
The Sentencing Bill which contains the Sentencing Code is a consolidation bill. It does not therefore need to go through the normal Parliamentary Process. Instead it is considered by a specially constituted Joint Committee on Consolidation Bills. At the time of preparing this note, the Bill has been introduced into the House of Lords where it has received its second reading. However, the Joint Committee has not yet been established.
Sentencing code: structure
The code is set out in Parts 2 to 13 of the bill. The code’s structure follows the chronology of a sentencing hearing, as follows:
(a) Before sentencing:
• Part 2 is about powers exercisable by a court before passing sentence.
(b) Sentencing:
• Part 3 is about court procedure when sentencing.
• Part 4 is about the discretion a court has when sentencing.
(c) Sentences:
• Part 5 is about absolute and conditional discharges.
• Part 6 is about orders relating to conduct.
• Part 7 is about fines and other orders relating to property.
• Part 8 is about disqualification.
• Part 9 is about community sentences.
• Part 10 is about custodial sentences.
• Part 11 is about behaviour orders.
(d) General:
• Part 12 contains miscellaneous and general provisions about sentencing.
• Part 13 deals with interpretation.
As a consolidation bill does not alter the law, there are no explanatory notes. However the House of Lords Library has provided an excellent short introduction to the Bill, available at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0084/
What about new offences or new sentences? Keeping the Code up to date
As is well known, Governments frequently change the criminal law, adding new offences of amending existing ones. Henceforth the sentencing implications of such changes are to be dealt with by way of amendments to the Sentencing Code. The intention is that the Code will automatically be updated as new sentencing provisions are enacted. One of the first examples of changes to the Code can be found in the Counter Terrorism and Sentencing Bill 2020, currently before Parliament. See https://services.parliament.uk/Bills/2019-21/counterterrorismandsentencing/documents.html
Up to date electronic versions of the Code will be available online.
The role of the Sentencing Council
Sentencing powers give sentencers considerable discretion. The role of the Sentencing Council, giving guidance on how that discretion should be exercised, is unaffected by the Sentencing Act and the creation of the Sentencing Code.
Transformation of the Justice System: reports on the progress of the HMCTS reform programme
It is a some time since I wrote about the great Transformation of the Justice system programme that was launched in 2016. It is quite a challenge to follow the progress of the reform programme. I thought it would be useful to bring together the principal documents which relate to the project which will fundamentally reshape the justice system for years to come.
- The Transformation of the Justice system project was formally launched in a joint statement issued by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in September 2016.
See https://www.gov.uk/government/publications/transforming-our-justice-system-joint-statement
Initially planned for completion in 2021, the end date is currently set back to December 2023, though many parts of the programme have been completed. The principal features the programme can be seen in the following diagram.
- The programme was the subject of an initial review by the National Audit Office, published in May 2018. This is available at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/(See this blog 7 June 2018)
- This was followed by a report from the Public Accounts Committee published in July 2018 which is available at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm.
The PAC report resulted in six separate responses from the Government, details of which are at https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals. (see this blog 10 March 2019)
- One issue, raised in both the above reports, related to the adequacy of HMCTS engagement with stakeholders. HMCTS responded by commissioning an independent audit of stakeholder engagement which was published in October 2019. See https://www.gov.uk/government/publications/hmcts-stakeholder-perception-audit-report-2019. A further progress report on stakeholder engagement was published in January 2020. (It can be found by googling HMCTS Engaging with our external stakeholders 2020 which leads to a Report published in Jan 2020.)
- A second report from the National Audit Office was published in September 2019. This is available at https://www.nao.org.uk/report/transforming-courts-and-tribunals-a-progress-update/
This has not to date led to a further report from the Public Accounts Committee.
- At the end of October 2019, the Justice Select Committee published its own report on the Courts and Tribunals Reform Programme. This can be found at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/
HMCTS issued a response to this report in the form of a Press Release, which is available at https://www.gov.uk/government/news/hmcts-response-to-justice-select-committee-report-on-court-and-tribunal-reforms
- HMCTS provides updates about progress with the reform project. Initially these appeared in six-monthly updating reports which were published in 2018 and 2019. The last of this series appeared in Summer 2019. See https://www.gov.uk/guidance/hmcts-reform-programme-reform-update. Current updates are contained within the monthly blog Inside HMCTS, which is available at https://insidehmcts.blog.gov.uk/
- In each year of the project, HMCTS has run a meeting, which presents an account of progress with the programme to stakeholders. The most recent of these events was held in November 2019. The presentation slides used at this meeting are available online and present very useful picture of progress up to that date. They can be accessed from https://www.gov.uk/government/news/hmcts-hosts-3rd-annual-public-user-event. Other engagement events, both past and planned are listed at https://www.gov.uk/guidance/hmcts-reform-events-programme.
I hope that this blog entry, listing key documents and reports relating to the transformation project will be useful for those wanting to get an overview of the project and its progress. I will endeavour to keep readers up with more specific developments as they occur. For the moment, many of these have become intertwined with arrangements that have been made to adjust the work of the courts and tribunals to the effects of the Covid 19 pandemic.
Covid 19 and the English Legal System (12): impact on legal practitioners
One impact of Covid 19 has been the exponential rise in the numbers of legal professionals who are currently working full-time from home. An obvious question is what will be the long-term impact of this development? When the pandemic is under control, will lawyers go back to their offices, as before? Or will there be a ‘new normal’ in which legal professionals will increasingly work from home, making only infrequent visits to their offices?
Roger Smith, who has for a number of years been writing on the impact of new technologies on the provision of legal services, has just published a really interesting blog of what he regards as some of the key developments. He looks not only at what has happened in the UK but draws on reports of developments in other jurisdictions.
For the short term, his conclusion is that, in general, legal service providers have adapted pretty quickly to the new environment – large corporate firms possibly more quickly than less well-funded practices.
One question for the future that he raises is what changes in management styles and management information systems will be required if high percentages of staff continue to operate from home.
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Royal Commission on the Criminal Justice system – details awaited
In the Queen’s Speech, delivered in December 2019, it was announced that the Government would establish a Royal Commission to review and improve the efficiency and effectiveness of the criminal justice process. Little has been heard of this proposal since then. However, in recent meetings with the House of Commons Justice Committee, the Lord Chancellor made it clear that he has been given the resources needed to enable the establishment of the Commission.
At present – and no doubt reflecting other more pressing priorities driven by Covid 19 – no further information is available. It is, however, likely to be a broad-ranging inquiry, not only limited to the operation of the courts, but taking other aspects of the criminal justice system into account as well.
A separate consultation on the Criminal Legal Aid scheme closed in June 2020. The results of that inquiry are likely to be published towards the end of 2020. A number of interim changes to the criminal legal aid scheme were announced in February 2020.
For the Queen’s Speech, December 2019, see https://www.gov.uk/government/speeches/queens-speech-december-2019
The announcement of the consultation on Criminal Legal aid is at https://www.gov.uk/guidance/criminal-legal-aid-review
Reaction of the Law Society is at https://www.lawsociety.org.uk/en/topics/criminal-justice/criminal-legal-aid
Proposed Constitution, Democracy and Rights Commission
One proposal that caught the eye in the Conservative Party’s manifesto for the December 2019 general election was that, following the UK’s withdrawal from the EU, it would be necessary to look at “broader aspects” of the UK’s constitution. The idea was that a constitution, democracy, and rights commission should be established to examine the following issues:
- the relationship between the government, parliament, and the courts;
- the functioning of the royal prerogative;
- the role of the House of Lords; and
- access to justice for ordinary people.
Other areas would include examining judicial review and amending the Human Rights Act 1998 to balance the rights of individuals, national security, and effective government.
The Government has said that it wants to ensure a range of expertise is represented on the commission. It also wants the commission to evidence from third parties and civic society to inform any recommendations. However, there are currently limited details available on the remit, form, and composition of the commission.
Several commentators and academics have welcomed the general principle of reviewing the UK’s constitutional arrangements. However, some have expressed concern about the context of the commission, particularly coming after the Supreme Court found against the Government on constitutional issues.
Those interested in starting to think about the issues which the Commission, once established, might consider will find the Research Briefing paper, written by Charley Coleman from the House of Lords Library and published in late March 2020, to be an excellent introduction.
The briefing can be found at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0089/
Covid 19 and the English Legal System (11): Civil Justice – results of the Civil Justice Council rapid survey
As I have already noted here, Covid 19 has had a major impact on the ways in the courts are delivering their services. In particular, much attention has been directed towards the use of virtual or remote hearings – online paper hearings, hearings by phone and hearings by video.
The Civil Justice Council commissioned a rapid preliminary survey of how these new processes were working. The results of that survey were published in early June 2020. It was based on responses to a survey drawn from the experience of those involved in cases in a two-week period in early May 2020. The study was carried out by Dr Natalie Byrom of the Legal Education Foundation.
Obviously, such a survey can be no more than an initial glance at what is happening on the ground. Many of these preliminary findings are what might be expected:
- many judges and practitioners were finding that they were getting on better with using new technologies than they might have anticipated;
- they were coping despite a lack of advance training in the use of technologies;
- the technologies themselves were often not as reliable as participants would like;
- some types of hearing were more suited to remote hearings than others.
These are the sorts of issue that should be mitigated as all those involved in delivering new services become better trained and more used to dealing with cases using the new technologies.
From a rather detailed report, four important points for the way ahead may be noted:.
- At present HMCTS does not have an effective way of capturing information details about what types of case are brought to court. For example, data is published on the numbers of possession proceedings brought by mortgage companies or landlords against residential occupiers (mostly for failure to meet payment obligations). But it is impossible to get any detailed information about the use of courts for other potential housing law issues. The report makes a strong plea that much greater effort should be made by HMCTS to identify the ‘data points’ which would provide a much more detailed picture of how the civil court system is functioning. Effective planning of future services cannot be provided without more detailed management information.
- There was a strong impression that video hearings were better suited for remote hearings that telephone hearings.
- There were inevitable concerns that litigants in person might be in difficulty using the new technologies unless adequate support was available.
- The survey was unable to capture what lay users of the system, in particular litigants in person, thought of these new developments. It was essential to fill this knowledge gap if the objective of HMCTS’ reforms – to provide services that users want and need – was to be met.
The survey report and related press release can be accessed at https://www.judiciary.uk/announcements/civil-justice-council-report-on-the-impact-of-covid-19-on-civil-court-users-published/
Further information about the Legal Education Foundation is at https://www.thelegaleducationfoundation.org/
Public legal education: news from Law for Life
While the importance of public legal education is widely accepted in principle, it is left to the work of a pretty small charity, Law for life: foundation for public legal education, to continue to fly the flag for this important project.
The aims of the charity are to increase access to justice by providing everyone with an awareness of their legal rights together with the confidence and skills to assert them.
Most people struggle to cope with legal issues, and often don’t know where to go for help. Being able to cope with family and housing issues, sorting out employment and benefit matters or difficulties with goods and services is crucial. These issues are the cornerstones of everyday life that can become drivers of poverty and inequality if left unresolved.
To address these challenges Law for Life
- publishes the online Advice Now information service that draws together the best up-to-date information about the law and rights available on the internet;
- creates effective materials (leaflets, videos) that provide practical help on how to manage and resolve life’s legal problems;
- delivers community-based education and training projects focussing on housing, welfare, consumer, and employment issues with an emphasis on skills;
- offers consultancy to other organisations.
Updates on the work of Law for Life are provided in regular newsletters, the most recent of which was published on 30 June 2020.
For further details about Law for Life, see https://lawforlife.org.uk/
Advice Now is at https://www.advicenow.org.uk/
The Law for Life Newsletter is at https://mailchi.mp/42bebf74018a/8wt2tlhi1o-3120242?e=f65948d0ee
This has links to the full archive of Law for Life Newsletters.
Probate online: recent developments – a practitioner’s view
The arrival of Covid 19, and the necessity of trying to keep the legal system functioning with locked-down courts, virtual hearings and the like has meant that other aspects of the justice system Transformation programme have perhaps been forgotten.
The latest edition (July 2020) of the HMCTS blog, Inside HMCTS, reminds us that other things are also happening, designed to modernise and approve the efficiency of the services provided within the legal system.
One development which has been quietly worked on for a number of years is the creation of means to carry out probate – the process of dealing with a deceased person’s estate – online.
Historically it has been an extremely difficult process, surrounded by a lot of procedural and legalistic complexity.
The HMCTS reform programme included a plan to modernise the process, to make it more straightforward both for practitioners and individual members of the public. An online service has been available since the end of 2019. Around 60,000 members of the public have used the service. And increasing numbers of solicitors are also using the service.
Stephen Cobb, a solicitor with a firm of lawyers who were involved in developing and testing the new process, has written a very interesting account of how the new system works. He stresses that it is still work in progress and that the current system will not necessarily deal with every complex estate. But, for general use, he is impressed with how it works. And he likes the freedom it gives him to submit the bulk of the paperwork on line.
For details, see https://insidehmcts.blog.gov.uk/2020/06/05/reforming-probate-for-the-twenty-first-century/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 