Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for July 2020

Victims of crime: increase of the victim surcharge and consultation on new Code for victims

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In March 2020, the Government announced that it was increasing the Victim Surcharge by 5%. This was done by a Statutory Instrument which came into force on 14 April 2020.

The Victim Surcharge is not a fine, but a separate charge which courts must impose on all offenders to ensure they bear some responsibility towards the cost of supporting victims. Revenue from the Surcharge contributes to the Victim and Witness Budget which is used to grant fund Police and Crime Commissioners, who commission local support services for victims. It also funds nationally commissioned support such as:

  • Rape Support centres across England and Wales,
  • the Court Based Witness Service, and
  • the National Homicide Service.

The Government estimates that the 5% increase will raise between  £1 million and £2 million a year to help fund victim support services. It will see offenders pay between £1 to £9 extra, depending on their sentence. The Government is considering whether the surcharge should be increased even further.

Also in March 2020, the Government announced a consultation on proposals to change the Victims’ Code. If brought into effect, these would change the structure of the existing Code so it becomes a clearly defined set of rights, that are easy for victims to understand and which set out the minimum level of service victims can expect from criminal justice agencies.

The proposals focus on a number of key areas:

  • raising awareness and accessibility;
  • providing clearer information on victims’ rights to access practical and emotional support;
  • strengthening communication and taking account of the victim’s preferences; and
  • increasing the voice of the victim by providing more flexibility in the Victim Personal Statement process.

The Consultation ran until the end of May 2020; the outcome is still awaited.

For the announcement on the increase in the victim surcharge, see https://www.gov.uk/government/news/criminals-made-to-pay-more-to-fund-victim-support

More information on the Consultation on the Victims Code is at https://consult.justice.gov.uk/victim-policy/consultation-on-improving-the-victims-code/

 

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Written by lwtmp

July 8, 2020 at 4:49 pm

Amending the doctrine of precedent? Proposals to permit departure from EU case law

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In 1966, the Supreme Court (then the House of Lords) issued a Practice Direction which asserted its authority to depart, in exceptional circumstances, from an earlier decision and thereby change what was regarded as settled law.

Occasions on which this power has been used have been rare. Between the publication of the Practice Direction in 1966 and the abolition of the House of Lords in 2009, the power was used around 25 times. And its use has been similarly restrained by the Supreme Court.

One specific context in which there can be pressure to override a precedent arises where a judgement from the European Court of Justice (or indeed the European Court of Human Rights) is incompatible with UK law.

A question which arises from the departure of the UK from the European Union is how, after the end of the transition period on 31 December 2020, UK courts should deal with cases from the European Court of Justice which will remain effective in the UK (technically known as ‘retained case law’).

The Government has announced a consultation on whether the principle that only the Supreme Court (and the High Court of Judiciary in Scotland) should have this power, or whether other courts should be given the same authority.

The Government’s preliminary view, on which the opinions of consultees are sought, is that the powers should be extended to either:

  • The Court of Appeal of England and Wales, the Inner Court of Session in Scotland, the Court of Appeal Northern Ireland and equivalent level courts throughout the UK; or
  • those courts plus the High Court of England and Wales, the Outer House of the Court of Session in Scotland, The Sheriff Appeal Court in Scotland, the High Court of Justiciary, and the High Court in Northern Ireland.

This raises an interesting possibility. Many years ago, the late Lord Denning argued that the Court of Appeal should have power to depart from its earlier decisions. He felt that because all the important cases went to the Court of Appeal it would be more efficient is they had the authority to make clearly needed changes to precedent, without the expense and delay of a further hearing in the Supreme Court. This view found no general support at the time.

However, if either of the Government’s options in the present consultation is taken forward, might this not lead to a revival of the views Lord Denning, which in turn could generate a somewhat wider argument about the powers of courts other than the Supreme Court to change binding precedent?

The consultation is at https://www.gov.uk/government/news/consultation-launched-on-post-eu-reforms-for-british-courts

 

 

 

 

 

Written by lwtmp

July 8, 2020 at 11:27 am

The Parliamentary Constituencies Bill 2020

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In recent months public attention on events in Parliament has been almost exclusively on the impact of the Covid 19 pandemic. Nonetheless, other important policy initiatives have been taking place, even though they may not have grabbed the headlines. One of these is the introduction of the Parliamentary Constituencies Bill 2020 in May 2020.

The United Kingdom is divided into 650 Parliamentary constituencies. Each constituency elects a Member of Parliament. Constituency areas are not, however, static. While the boundaries themselves may remain the same, the population within them may alter substantially, for example by the provision of new housing or the migration of people from a rural to an urban area.

If some constituencies have far larger numbers of people than other constituencies, it will be realised that to win an election based on a first past the post system, which applies to General Elections in the UK, a winner needs fewer votes in a constituency with a smaller number of voters than one in a constituency with a higher number of voters. To many, this seems unfair.

To reflect the changes that occur in constituencies, statutory agencies, called Boundary Commissions, are required to keep constituency boundaries under review. Historically this has taken place once every 5 years.

The basis on which boundary reviews were to take place was changed in 2011 when the then Coalition Government enacted the Parliamentary Voting and Constituencies Act 2011. This Act had two objectives:

  • to enable the holding of a referendum on whether a system of proportional voting should be introduced for Parliamentary elections (the referendum was held and the advocates of change lost the referendum);
  • to amend the system of constituency boundary review.

This second objective contained 2 noteworthy features. First, it reduced the number of parliamentary constituencies from 650 to 600. Second, it introduced the concept of the ‘electoral quota’ and provided that in carrying out its work, the boundary Commissioners should ensure that the number of constituents in any constituency was within 5% of the ‘electoral quota’. The electoral quota was to be established by dividing the total number of voters in the UK by the number of Parliamentary seats.

Although the Boundary Commissioners made recommendations for boundary changes, as they were required to do, in accordance with the Act of 2011, their recommendations were – for a variety of reasons never implemented.

When enacted, the new Bill will recommence the process of boundary review, but on a slightly changed basis.

  • First, the decision to reduce the number of constituencies from 650 to 600 has been dropped.
  • Second, the concept of the electoral quota, and ensuring that constituency sizes are within 5% of that quota figure is retained.
  • Third, the frequency of boundary reviews is reduced from once every 5 years to once every 8 years.
  • Other detailed changes relate to the consultation procedures to be adopted for undertaking reviews, and the process of presenting the outcomes of those reviews to Parliament.

The intention is that the next round of reviews should start early in 2021 so that they will be in place in time for the next General Election, which is likely to be in 2024.

For the policy background seehttps://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-03-24/HCWS183/

The Bill is at https://services.parliament.uk/Bills/2019-21/parliamentaryconstituencies/documents.html

 

 

 

 

 

 

Written by lwtmp

July 7, 2020 at 4:09 pm

Covid 19 and the English Legal System (10): Family Justice

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In an earlier blog, Covid 19 and the English Legal System (8): guidance on new working practices, published on 3 July 2020, I drew attention to a resource from the Judiciary, setting out guidance to different courts and tribunals on how to manage cases in the current Covid 19 environment.

This note draws attention to just one of the documents that is to be found on that website. The Remote Access Family Court, (version 5), written by one of the Family Court judges, Mr Justice MacDonald, is a detailed statement of the ways in which in the context of the work of the Family Court, remote access hearings may be conducted, the sorts of proceedings for which remote hearings might be appropriate; the considerations to be taken into account when deciding whether a case should proceed remotely or not.

The primary impetus for the production of the document is the need to keep the business of the family courts going, particularly where matters must be dealt with urgently. The document acknowledges that the continuing need for social distancing is likely to mean that the practices and procedures considered in this report are like to retain their relevance, at least for some months ahead.

However, while acknowledging that aspects of the practices and procedures currently being used may be retained once the problems associated with the Covid 19 pandemic have eased, it states in terms that it should not be assumed that changes currently being adopted will necessarily be retained into the future.

What is clearly needed is for HMCTS to gather robust evidence about how innovations in practice and procedure are working, which takes into account not only the views of judges and lawyers, but also – crucially – the views of parties to proceedings who have experienced the new procedures in operation. New ways of working which work well should be retained; those which do not should be altered or abandoned.

A very first attempt to gather evidence about the new system in operation was made in April 2020, when the Nuffield Family Justice Observatory was asked to undertake a rapid consultation on the use of remote hearings in the family justice system. This produced some preliminary information which helped consideration of when remote hearings might be possible and when remote access should not be used. For example, there was a general feeling that video hearings are more satisfactory than telephone hearings. There was also worry about some of the difficulties associated with the use of different technologies. But these findings are acknowledged to be only preliminary. Much more work needs to be done before a rounded assessment can be made, on which future policy may be based.

What the pandemic has done – and this comment applies to the whole of the justice system, not just family justice – has created the conditions in which new ways of working can be tested. It would be really disappointing if positive lessons learned from these experiences cannot be captured by a proper research programme, which would help the development of future policies for dispute resolution in courts and tribunals.

The report by Mr Justice MacDonald is at https://www.judiciary.uk/announcements/updated-version-of-the-remote-family-access-court-released/

The Nuffield Family Justice Observatory consultation is at https://www.nuffieldfjo.org.uk/coronavirus-family-justice-system/family-courts

Written by lwtmp

July 7, 2020 at 11:38 am

Passing of the Divorce, Dissolution and Separation Act 2020: reforming divorce law

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The Divorce, Dissolution and Separation Act 2020 received the Royal Assent on 26 June 2020. It comes into force on a date to be determined, probably later in 2020. A transition period  is required so that new court forms and procedures, including those to be used online, can be written and agreed.

As modern Acts of Parliament go, this measure is modest in length – a mere 9 sections. But, as I have noted in this blog before, the Act

  • replaces the current requirement to evidence either a conduct or separation ‘fact’ with the provision of a statement of irretrievable breakdown of the marriage (for the first time, couples can opt to make this a joint statement).
  • removes the possibility of contesting the decision to divorce, as a statement will be conclusive evidence that the marriage has irretrievably broken down.
  • introduces a new minimum period of 20 weeks from the start of proceedings to confirmation to the court that a conditional order of divorce may be made, allowing greater opportunity for couples to agree practical arrangements for the future where reconciliation is not possible and divorce is inevitable.

The history of the campaign to reform the law of divorce is a long and tortuous one. The Church of England report, Putting Asunder, was published in 1964. It was the subject of one of the Law Commission’s earliest report, published in 1966. The Commission published its proposals for a single ground for divorce in 1990. Many commentators take this as the starting date for the campaign for reform which has culminated in the present Act.

The Act itself can be found at https://services.parliament.uk/Bills/2019-21/divorcedissolutionandseparation.html

The 1966 Law Commission report is at https://www.lawcom.gov.uk/project/reform-of-the-grounds-of-divorce-the-field-of-choice/#related

The 1990 Law Commission report is at https://www.lawcom.gov.uk/project/family-law-the-ground-for-divorce/

 

 

Written by lwtmp

July 6, 2020 at 10:47 am

Transformation of the justice system: money claims online

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In November 2018, HM Courts and Tribunals Service launched its money claim online service. On July 3 2020, it announced that a significant milestone had been reached in the use of this service, namely that, after 18 months, over 100,000 cases had gone through the new system.

The Government states:

The service aims to make it simpler and quicker for people to submit a claim, by allowing them to do so from their own home and removing complex legal language from the online application. Most people take less than 15 minutes to complete the initial claim form. Almost 9 in 10 people using the service have been satisfied or very satisfied with it, with claims now being issued in minutes, not days.

In many cases, this that means claims can be issued, responded to and settled without the need for third-party involvement.

See https://www.gov.uk/government/news/more-than-10000-civil-money-claims-issued-online

(The figure IS 100,000, not the 10,000 mentioned in the Press Release Heading!)

Written by lwtmp

July 4, 2020 at 11:03 am

Covid 19 and the English Legal System (9): introduction of a common platform for remote hearings in criminal, civil and family cases

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Moves towards doing more court and tribunal business via remote links, rather than by personal appearances in courtrooms, had begun even before the Covid 19 pandemic struck. Indeed, the use of virtual or remote courts and tribunals was a key element in the Transformation of the Justice system that was in progress before the virus arrived.

The pandemic has, however, sharply accelerated the expansion in the use of remote hearings.

The Government has been using the Cloud Video Platform (CVP). It was initially used in the criminal justice system across 60 crown courts and 93 magistrates’ courts. The technology has been used in some 3,600 crown court hearings and more than 7,000 overnight remand cases heard by magistrates. It was not used for cases involving jury trial.

The announcement of the first stage in the use of this technology is at https://www.gov.uk/government/news/new-tech-will-help-keep-the-criminal-justice-system-moving-during-covid-19-pandemic

On July 1, 2020, the Government announced that it had decided to expand the use of the CVP to over 120 civil and family courts.

The Press announcement states that: ‘CVP can be accessed by any device that has a camera and a microphone – such as a mobile phone or tablet. Anyone can join easily, and securely, through a web browser, and sessions can be locked to make sure only appropriate parties join. Training rooms can also be set up so that sessions may be rehearsed before they go live.’

Further details are at https://www.gov.uk/government/news/new-video-tech-to-increase-remote-hearings-in-civil-and-family-courts

Although the rapid roll-out of this platform has been driven by the challenges arising from Covid 19, I assume that, once in place, this technology will become part of the fabric of the justice system.

Looking ahead, the full potential of such technology to enable potential court users to access the courts more easily will need to be explored and be accompanied by a substantial public education programme.

 

 

 

Lawtech: support for innovation in the delivery of legal services

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I have recently posted a number of items relating to the application of information technologies in the delivery of legal services.

Another source of information and support for the development of technology in the delivery of legal services may be found at Lawtech – part of a range of initiatives that have been formed under the overall Tech Nation label. (Other activities of Tech Nation relate to, for example, the finance sector, AI, cybersecurity, the net zero economy.)

The objective of the organisation is to support new companies wanting to develop new services in the areas covered by Tech Nation. Considerable innovation has occurred in recent years in the ways in which financial services are delivered. The challenge is to see how the provision of legal services can similarly be transformed.

The Technation website states:

The legal and tech community have the opportunity and responsibility to restructure and reinvent legal services, to meet and exceed the evolving demands of business and society, in our digital world.

LawtechUK is an initiative that will help transform the UK legal sector through tech

This work is supported by a Lawtech Delivery Panel (LTDP), chaired by Christina Blacklaws, a former President of the Law Society.

This is a government-backed initiative bringing together legal sector leaders and experts from government, the judiciary, academia and industry in a single forum, to support the digital transformation of the UK legal sector. The LTDP act as an important advisory board to LawtechUK

An introduction to LawTech may be found at https://technation.io/lawtechuk/

Law tech companies that have been supported through Tech Nation are listed at https://technation.io/lawtechdatacommons/lawtech-startups-and-scaleups/

Further impetus for these developments has been given by an important report published by the Law Society in October 2019 on the importance for law firms of Law Tech. In particular, it offers encouragment to solicitors in small firms and sole practitioners to take Lawtech seriously.

The Law Society Report may be downloaded at https://www.lawsociety.org.uk/campaigns/lawtech/guides/introduction-to-lawtech

 

 

 

Computers and the delivery of legal services – the Society for Computers and Law

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It is not hard to imagine that the use of computers will increasingly impact on the ways in which legal and dispute resolution services are provided. Many will resist such developments, not least because they will threaten existing ways of workings with which people are familiar.

But those thinking about how the world of legal practice will develop over the short to medium term should be aware of what is happening and how developments may affect the future, not just in England of course, but universally.

In this context, those starting their legal studies should be aware of the Society for Computers and Law.

The Society’s website explains that it was established in 1973 “to promote the use and understanding of information technology (IT) in the context of the law”. For the first twenty years of its existence it focused more on the technical aspects of IT in use to support legal practices. Since then its focus has shifted more to the practice of IT law as a specialist subject as this has evolved to encompass new issues like the world wide web and digital media.

As a charity, the objects of the Society are

(1) The advancement of education of the public in the fields of: a. information technology law and other related legal subjects; b. information technology as applied to the practice of the law; and c. the law, by the use of information technology.

(2) The promotion of the sound development, administration and knowledge of the law relating to information technology and related legal subjects, both generally and by research and study concerning the same.

The issues which are currently at the forefront of their efforts at the start of the 21st century include:

Operational effectiveness: ranging from the choice of hardware and operating systems through to software selection and development for both lawyers and support teams.

Legal matters: such as data protection, computer contracts and software ownership.

The administration of justice: the impact of IT on the Courts.

Education: promoting the benefits at all levels that the use of information technology has to the legal profession as a whole.

The Society is currently engaged in an important exercise to promote the development of TechLaw in the legal curriculum.

Further information is available at the Society’s website at https://www.scl.org/society

 

 

 

 

Written by lwtmp

July 3, 2020 at 11:56 am

Remote/online courts – worldwide developments

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Over recent years, there have been significant moves towards the use of Information Techologies in the delivery of legal and dispute resolution services. The Covid 19 pandemic has provided a sharp impetus towards the adoption of new practices and procedures, given the difficulties of holding trials in traditional court-room settings arising from the need for social distancing.

Under the leadership of Prof Richard Susskind, a consortium of groups interested in the development of on-line courts has created a brilliant website, Remote Courts.org, which provides an extensive clearing-house of information about developments around the world.

One of the primary objectives of the website is to try to ensure that, as ideas emerge, wheels are not unnecessarily re-invented. There is now a great deal of international experience which can be drawn on, and this is expanding rapidly.

The site is available at https://remotecourts.org/

 

 

 

Written by lwtmp

July 3, 2020 at 11:32 am