Archive for August 2020
The Criminal Legal Aid Review: interim announcements
The Government announced, way back in December 2018, that it planned to undertake a review of the Criminal Legal Aid scheme. This was a response to a fierce campaign (including instances of strike action) by the legal professions complaining about the very poor rates of pay now offered for criminal legal aid work, and evidence that – at those levels of pay – the future prospects for a criminal legal aid service looked bleak.
Although, under the Legal Aid, Sentencing and Punishment of Offenders Act 2013, the scope of the Criminal Legal Ad scheme had not been reduced in the same way as the civil legal aid scheme had been, Government austerity measures certainly bit on the pay and conditions of those undertaking criminal legal aid work.
The announcement of the review in December 2018 provided some acknowledgement by the Government that all might not be well. But setting up a review can be used as a mechanism for postponing hard decisions. As the result of further lobbying by criminal legal aid practitioners, the Government decided that it would offer an accelerated set of interim measures to try and mollify the legal profession – at least in the short term.
On 21 August 2020 the Government’s decisions on the accelerated measures were announced. In making the announcement, the Lord Chancellor stated that the changes would represent an injection of around £51m into the Criminal Legal Aid Budget. Set against a total spend (in 2019-2020) of around £820m on Criminal Legal Aid it is only a modest increase (just over 6%). The additional resources will be used to deal with a number of detailed issues such as how litigators and advocates are paid for work on unused material and how advocates are paid for work on paper-heavy cases.
In announcing his decision, the Lord Chancellor commented:
“[The] accelerated areas are only the first step towards the wider review, which we always intended would result in reforms that would support a sustainable and diverse market of practitioners. Since then, Covid-19 has thrown into sharp relief concerns about the sustainability of the market. …
“Fundamentally, we want to ensure that the market can: meet demand now and into the future; provide an effective and efficient service that ensures value for money for the taxpayer, and continue to provide defendants with high-quality advice from a diverse range of practitioners. …
“Having reflected on whether our original approach to delivering the review was the right one to achieve these overarching aims, I have decided that the next phase of the Review should involve an independently-led review that will be ambitious and far-reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market. It will consider working practices and market incentives and how these can drive efficient and effective case progression and deliver value for money for the taxpayer. Planning is in progress and I plan to launch it as soon as possible after Parliament returns [in September 2020].
“Alongside the independent review, we will also prioritise work to ensure that the fee schemes … are consistent with and enable wider reforms that seek to modernise the criminal justice system, in line with our original aims for the review. Given the rapid changes in ways of working that have been adopted across the justice system to support recovery in the courts, it is essential that the criminal legal aid system actively enables the defence profession to play its role in these efforts.”
So a lot of further change may be anticipated. In the meantime, long-suffering criminal legal aid practitioners will soldier on, hoping for better times ahead.
Details of the announcement and the details of the Government’s changes – which will be brought into effect by regulations in August 2020 – see https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/
Whither the Sentencing Council?
Many Government consultation are on rather specific issues. The consultation considered here is rather different, designed to encourage some rather more blue-skies thinking about the work of the Sentencing Council.
It has been launched because 2020 marks the 10th anniversary of the establishment of the Sentencing Council for England and Wales. During that time it has produced 27 sets of definitive guidelines encompassing 145 separate guidelines that cover 227 offences and eight overarching topics.
As the accompanying press release notes: “Developing guidelines is a collaborative process; as well as input from Council members and the small multi-disciplinary team who support its work, it relies on the cooperation of individuals and organisations working in the criminal justice system and beyond to ensure that it has the fullest information possible to draw on.”
Over the years, thousands of magistrates and judges have completed surveys or participated in detailed research, providing the Council with evidence which underpin the guidelines. It has held more than 30 public consultations, which have received almost 4,000 responses.
In addition to producing guidelines, the Council also: publishes research and statistics on sentencing; seeks to promote public understanding of sentencing through information on its website; provides educational materials for use in schools; and works with other organisations, for example the police.
The stated purpose of the consultation – which opened in March 2020 – is not to look back (though obviously it reflects on the work of the Council to date), but to look forward. It is asking all those with an interest in criminal justice and sentencing to contribute to a discussion on what the Council’s future objectives and priorities should be.
The Consultation runs until mid September 2020.
It can be found at https://consult.justice.gov.uk/sentencing-council/what-next-for-sentencing-council/
Reviewing the mandatory retirement age for judges
The arguments in favour of having a mandatory retirement age (MRA) for the judiciary and other similar office holders are that it:
- promotes and preserves judicial independence by avoiding individual decisions in each case (albeit with limited provision for extension which enables retired judges to continue to sit post-retirement);
- preserves judicial dignity by avoiding the need for individual health and capacity assessments;
- maintains public confidence in the capacity and health of the judiciary;
- supports workforce planning and allows for greater career progression/ diversity;
- shares opportunity between the generations by balancing the need for experienced judges to continue in office for a reasonable time against career progression opportunities for newer appointees (and thereby also promoting diversity in the judiciary).
There have, however, been practical problems associated with the policy. In particular, the recruitment picture for many judicial offices in England and Wales has changed significantly in recent years. There have been more frequent and higher volume recruitment for most types of judges while a greater proportion of recruitment exercises have resulted in shortfalls. Not all available posts have been filled. This has affected appointments all levels in the judiciary including the lay magistracy.
Additionally, life expectancy in the UK has improved since the mandatory retirement age for most judges was legislated to be 70 in 1993. Many individuals now tend to live and work for longer.
In recent years, the MRA has become a subject for debate. In November 2017 the House of Commons Constitution Committee’s Follow-up Report on Judicial Appointments gave further consideration to changing the retirement age and the Committee asked the Lord Chancellor and senior members of the judiciary to reflect on whether the current MRA of 70 continued to be appropriate given the demands on judicial resource.
In the 2018 Major Review of the Judicial Salary Structure, the Senior Salaries Review Body (SSRB) commented that some judges would stay in post for longer were the MRA raised. They also suggested that the current MRA may dissuade some people from joining the judiciary as they felt that they would be unable to serve for a sufficiently long time once appointed.
In 2019 the Justice Select Committee’s report on The Role of the Magistracy, acknowledged the proposals of the Magistrates Association to allow magistrates to sit beyond the MRA if demand could not be met by recruitment alone. However, it was noted that any such provision would require legislation.
Spurred on by these comments, the Government has now published a Consultation Paper on whether the MRA should be amended. 2 Options are identified: a rise to the age of 72; or a rise to the age of 75. In addition, the consultation also asks whether magistrates should be able to be asked to continue sitting even after retirement.
The Lord Chancellor notes that “The retirement age for most judges was last legislated for 27 years ago, and the time is now right to consider whether the age of 70 continues to achieve its objective of balancing the requirement for sufficient judicial expertise to meet the demands on our courts and tribunals whilst safeguarding improvements in judicial diversity and protecting the independence of and confidence in our judiciary.”
The Consultation opened in July 2020 and runs until mid-October 2020.
Documents on the review are at https://consult.justice.gov.uk/digital-communications/judicial-mandatory-retirement-age/
Jury trial in the cinema?
I wrote earlier about the experiment run by the human rights group JUSTICE on the possible use of ‘virtual jury trials’ (4 June 2020). This was seen as one way of increasing the number of cases being dealt with while the Court service struggles to protect all those involved in serious criminal trials save from the Covid-19 virus.
I’ve just read a fascinating item by Joshua Rozenberg, describing an initiative taking place in Scotland which involves juries going to the cinema and watching a trial fed into the cinema by closed circuit TV. With the numbers of screens available in multiplex cinemas, such an idea could enable quite significant numbers of trials to go ahead. Initally it is hoped that 16 screens in Glasgow and Edinburgh could be used.
Rozenberg writes: “Cameras and microphones will relay the proceedings to the cinema where jurors will hear and see the trial as if they were watching a movie. The screen will be divided into four so that jurors can see the judge, counsel and the accused while listening to witnesses or viewing the evidence.”
Members of the jury will also be under the eye of a camera, so that they can be seen in the actual court room.
Rozenberg reports the Lord Chief Justice for England and Wales as being rather dubious about this idea, suggesting that it would turn a jury trial into some form of entertainment. But would this not be preferable to proposals to do away with jury trial (an idea supported today by the former Lord Chief Justice, Lord Phillips) – at least for a time – to enable the criminal justice system in England start to offer a more acceptable level of service?
I agree with Rozenberg that this is an idea worth considering. It would also overcome some of the technical problems that might be associated with running criminal trial over Zoom or another video networking platform.
Joshua Rozenberg’s blog is at https://rozenberg.substack.com/p/trial-by-movie.
Some of the potential problems about the use of remote criminal proceedings are discussed by Roger Smith in https://law-tech-a2j.org/remote-courts/remote-courts-and-the-consequences-of-ending-practical-obscurity/
Equal Treatment Bench Book: revised edition
A revised edition of the Equal Treatment Bench Book was published in March 2020. It aims to increase awareness and understanding of the different circumstances of people appearing in courts and tribunals. It is designed to enable effective communication and suggests steps which should increase participation by all parties. (I wrote about the first edition of the revised bench book in this blog in April 2018.)
This latest edition of the Equal Treatment Bench Book cites recent evidence regarding the experiences of different communities living in Britain today. It contains practical guidance aimed at helping make the court experience more accessible for parties and witnesses who might be uncertain, fearful or feel unable to participate. It includes new and expanded sections on litigants in person, refugees, modern slavery, Islamophobia and anti-Semitism.
There are practical suggestions on communicating with those speaking English as a second language or through interpreters, communicating with people with mental disabilities, a guide to different naming systems, and latest views on acceptable terminology.
The Equal Treatment Bench Book has also issued guidance on the conduct of remote hearings.
See https://www.judiciary.uk/publications/new-edition-of-the-equal-treatment-bench-book-launched/
Independent Review of Administrative Law
In an earlier blog (13 July 2020), I noted the House of Lords Library paper on the proposed Constitution, Rights and Democracy Commission, an idea contained in the Conservative Party manifesto for the 2019 General Election.
Although no further steps towards the creation of the Commission have been announced, at the end of July 2020 the Government announced that it was establishing an independent review of administrative law to look in particular at judicial review – the power of the courts to review and where necessary overturn a decision made by Goverment.
Governments frequently complain that the use of judicial review can prevent them from taking decisions they think are necessary. Defenders of judicial review argue that the principle of the rule of law demands that executive/administrative actions can only be taken if they are authorised by law.
The Independent Review, chaired by Sir Edward Faulks QC, a former Minister of State for Civil Justice, has been asked to examine a number of questions relating to judicial review.
The Terms of Reference for the Review state that the Review should
- examine trends in judicial review of executive action, in particular in relation to the policies and decision making of the Government;
- bear in mind how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law;
- consider data and evidence on the development of JR and of judicial decision-making and consider what (if any) options for reforms might be justified.
More specifically the review has to consider:
1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality (an area of law developed by the judges) should be codified in statute;
2. Whether the legal principle of non-justiciability (i.e. that certain types of decision cannot be reviews in the courts) requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government;
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful; and
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing – i.e. deciding who can bring an action by way of judicial review; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners (the ability of bodies not parties to an action to intervene in the action by providing specialist advice or assistance).
The Review has been asked to report by the end of 2020. Recommendations will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancashire, Michael Gove.
Although the announcement does not state this, the creation of this panel is, at least in part, a result of the decision of the Supreme Court in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41. The issues in the case were noted in this blog on 24 September 2019. Although it was argued that the Prime Minister’s use of the prerogative to prorogue Parliament (i.e. bring a Parliament to an end prior to the holding of a General Election) was non-justiciable – i.e. it could be reviewed by the Court, the Supreme Court rejected this argument and found exercise of the power was justiciable. Further, there the effect of the Prime Minister’s decision was to prevent all Parliamentary activity for 5 weeks, this was far more than necessary to prepare for a General Election and so went beyond the scope of his prerogative power and was unlawful.
The announcement of the review and links to the Terms of Reference are at https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review
The Supreme Court decision in the Miller case is at https://www.supremecourt.uk/cases/uksc-2019-0192.html
Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession
I have noted before that a number of Parliamentary Committees are examining aspects of the impact of Covid 19. The Justice Committee is in the middle of publishing a series of reports on this question. The first two of these, on Courts and on the Legal Profession have been published (30 July 2020 and 3 Aug 2020).
Both reports are, inevitably, in the nature of interim reports – given that we are still in the middle of a crisis, the outcome of which is far from clear.
The first report, on the Courts, takes up the widespread criticism that there were already considerable backlogs and unacceptable delays in the criminal justice system which have been exacerbated by the arrival of Covid 19.
The Committee notes that measures being put in place to improve the performance of the Crown Courts include a possible increase in the number of sitting days and the opening of the (temporary) Nightingale Courts – specially adapted spaces in which criminal trials can be dealt with.
As regards Magistrates’ Courts, the Committee found that the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. (The backlog previously peaked at 327,000 outstanding cases in 2015.) By mid-June, the figure was even higher. HMCTS has promised a ‘recovery plan’; the Committee states that it looks forward to seeing it.
By contrast with the criminal justice system, the civil, administrative and family systems have fared relatively better. Much of this has been the result of the ability of the courts and tribunals service to move hearings online. The Committee repeats concerns raised elsewhere, for example about enabling those who find it hard to use IT to participate, and that some types of family dispute are hard to deal with online.
The Committee stresses the importance of HMCTS undertaking proper evaluations of the impact of these new procedures on users of the system. It also emphasises that changes in practice arising out of the need to respond to the pandemic should not be adopted on a permanent basis, without more evaluation and consultation.
The Justice Committee report on the impact on the legal profession is not as general as its title might suggest. It focusses primarily on the impact on legal aid practitioners and other advice agencies, arguing that they continue to need financial support if the provision of services – particularly in criminal cases – is not to be lost.
The Committee’s report on the impact of Covid 19 on the Courts is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51905.htm
Their report on the impact of the pandemic on the legal profession is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/520/52003.htm
Video Hearings Process Evaluation
One of the many developments included in Her Majesty’s Courts and Tribunals Service (HMCTS) Transformation programme is greater use of remote hearings. Two researchers at the London School of Economics were commissioned to make an independent evaluation of the use of remote hearings. Their findings were published on 29 July 2020.
The report examined the development, implementation, and user experience of the video hearings service and platform across four different hearing types in the civil, family, and tax jurisdictions: Set Aside Judgments, First Direction Appointments, Short Notice Hearings, and Basic Tax Appeals. These were issues which judges in the pilot centres (Birmingham and Manchester) thought suitable for remote hearings.
Methods involved a combination of observation, semi-structured interviews, and analysis of HMCTS documentation. However, the sample of hearings studied was small – just 23 in total.
Some of the research findings might have been predicted: some hearings were subject to technical glitches; judges did not have all the kit (especially a second screen) they would like; they probably needed some more training.
From my perspective, the most interesting findings of the research related to the user experience. The summary states:
Most users commented on the convenience of having a video hearing and the time and cost it saved them. Some users also reported reduced stress and anxiety due to being able to take part in a hearing from their home or from their solicitors office.
Legal professionals felt the cases selected for the pilot were appropriate and also recognised this option as a benefit for parties.
Users reported finding their video hearing easy, effective and straightforward. However, some recognised a challenge with communicating over video and felt that it might be difficult for people who are not familiar with or do not have
access to the suitable technology.Users maintained the view that pre-hearing support was highly valuable and helped them navigate the technology on the day of their hearing. All users were highly satisfied with how the judge managed the hearing and the formality of the hearing.
Users who experienced technological issues did not report these as unmanageable and thought that judges dealt with any disruption effectively.
The cases used for this research were all dealt with pre-Covid-19. Since then the pace of change has increased and there has been a considerable rise in the numbers of cases being dealt with remotely. An evaluation of this new digital landscape will be published in due course.
While some may wish this, a return to the pre-Covid days is unlikely. A key challenge, however, will be to support those who find the technologies hard to manage; this has to be faced by those seeking to put more hearings on line.
The report, written by Meredith Rossner and Martha McCurdy, may be found at https://www.gov.uk/government/publications/hmcts-video-hearings-process-evaluation-phase-2-final-report
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 