Archive for 2020
The ethics of pro bono
Very interesting reflections on ethics and pro bono law work by the leading commentator on the regulation of the legal professions
A second nation-wide lockdown is now less than 48 hours away.Many of our fellow citizens will as a consequence face unexpected and unwelcome legal issues, and I suspect many of their needs will be met through pro bono provision.
I was therefore honoured and delighted to offer some opening thoughts this morning to a very important and timely seminar hosted by LawWorks and the University of Bristol as part of Pro Bono Week.I was invited to share my reflections on the two-year Independent Review of Legal Services Regulation that I concluded in June and the associated landscape of legal professional ethics. Here are those reflections (also available as a PDF).
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Covid-19 and the English Legal System (15) – Criminal Justice in existential crisis?
On Friday 30 October 2020 a research consultancy, Crest, published a report Impact and legacy of Covid-19 on the CJS: Modelling overview. Using existing data to model future developments, the report set out what it regarded as the possible impact of Covid-19 on the Criminal Justice System.
The rather sober title of the report was not matched by the press release Crest drafted to draw attention to its study. This was headed “A perfect storm: why the criminal justice system is facing an existential crisis”. This apocalytic vision certainly caught the eye of some journalists – which is of course the reason why I am now writing about it now.
And the report is a really important one, which underscores the urgent need for the Government to get on with the appointment and work of the promised Royal Commission on the Criminal Justice system. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)
The report starts by reminding readers that, even before Covid-19, the CJS was facing a number of long-standing problems: decreasing charge rates, worsening court timeliness and an estimated backlog in the courts of c.104K
cases, prisons and probation operating at full capacity. Covid-19 has added to those pressures. The report also predicts a future of increased pressure, the consequence of the likely rise in long term unemployment due to the economic impact of Covid, leading to more crime, and the 20,000 increase in police officer numbers, leading to more detection and the need to process more people through the system.
The research team’s modelling suggests, that without any action, the Crown Court backlog is projected to increase from c.45.5K in 2019 in to c.195.5K (x4) in 2024. and the magistrates’ court backlog is projected to increase from c.58.6K in 2019 to 580.3K (x10) in 2024.
Current responses by Government – e.g. making more courts covid-safe and opening Nightingale Courts in a number of town – just do not cut the mustard, in Crest’s view. Much more dramatic action is needed.
The principal criticism contained in the report is that there is currently no ‘whole-system’ view of the challenges facing the CJS. Different parts of the system work in isolation from other parts.
For example: the 20K police uplift will lead to a rise in pressure on the court backlogs; if the courts increase their outflow in sentenced cases, there will be a rise in pressure on prisons and probation.
Furthermore, assuming equilibrium is achieved in courts, suspended sentence orders are projected to increase by 24%, post-release supervision caseload will increase by 30% and community sentence orders are projected to increase by 14% by 2024. This will put extreme pressure on a probation service which was already underperforming.
There is, in the report’s view, inadequate recognition within Government of the interdependencies of each part of the criminal justice system.
The Crest report states that
“to bring the backlog back to pre-Covid levels will require a change in more than just capacity.
Options include:
● increasing the speed with which cases are dealt with: e.g. increasing the efficiency of listing, decreasing victim attrition, decreasing cracked trials etc.
● decreasing the amount of cases entering the court system by increasing effective out of court disposals
● decreasing the amount of police recorded crime originally entering the CJS through effective crime prevention programmes.”
I think some would argue that this list of options is not an original one. All these ideas have been discussed within the CJS, and achieving the outcomes suggested in the report is not easy. But what this report has very effectively done is highlight precisely the challenges that the now increasingly delayed Royal Commission must address. It should be a matter of urgency for the Government to get the Commission up and running.
The Crest Report is available at https://www.crestadvisory.com/post/covid-19-and-the-criminal-justice-system
Covid 19 and the English Legal System (14) – Family Justice
As with all parts of the English Legal system, the family justice system has had to cope with the effects of Covid-19. A new report from the Nuffield Justice Family Justice Observatory takes a fresh look at how the system has been coping – in particular with the use of remote (where both parties are not in court) and hybrid (where one party is in court) hearings. It is based on a survey of 1300 people involved in family law cases, undertaken in September 2020. It is a follow-up to their first snapshot survey undertaken in April 2020. (see https://martinpartington.com/2020/07/07/covid-19-and-the-english-legal-system-10-family-justice/)
This second survey and accompanying report shows that “most professionals (86%) felt that things were working more smoothly and some reported benefits to working remotely, for both parties and themselves.” However, “[t]hey shared concerns about the difficulties of being sufficiently empathetic, supportive and attuned to lay parties when conducting hearings remotely’. Nonetheless “more than three quarters (78%) felt that fairness and justice had been achieved in the cases they were involved with most or all of the time”.
When it came to how parents and relatives themselves felt. “a majority… (88%) reported having concerns about the way their case was dealt with, and two thirds (66%) felt that their case had not been dealt with well. Two in five (40%) said they had not understood what had happened during the hearing”.
As might be anticipated, there were complaints about problems with connectivity. And there was a feeling that for remote hearings telephone links were not as satisfactory as video links.
The President of the Family Division, Sir Andrew Macfarlane has welcomed the report and undertaken to ensure that the issues raised are addressed.
One specific point made by the Nuffield authors is that they do not expect any early change to practices currently in use to deal with the implications of Covid 19. Because of the urgency of many of the issues which which the family court has to deal, it is essential that all those involved continue to work to improve what is currently happening. Of course, the longer this goes on, the more evidence can be obtained about what works well in the new system as well as what does not work well. I am sure that, after Covid-19, the system as a whole will not return to its pre-pandemic state.
The Nuffield Family Justice Observatory Report and Consultation are at https://www.nuffieldfjo.org.uk/resource/remote-hearings-september-2020.
Sir Andrew Macfalane’s comments are at: https://www.judiciary.uk/announcements/remote-hearings-in-the-family-justice-system-follow-up-consultation-report/
Root and branch review of the system of parole and the work of the Parole Board
The work of the Parole Board has changed significantly over the last 10 years. New rules and new procedures have been introduced. It now holds more than 30 times the number of hearings it held in 2010. In its 2019 General Election Manifesto, the Government stated that it would undertake a fundamental review of the current system. The details of what is planned have now (October 2020) been published. The announcement states:
The Root and Branch review will focus on the following 4 areas:
1.An evaluation of the parole reforms to date:
- considering the overall performance of the parole process and identifying whether any further measures would help to improve the timeliness and efficiency of the process
- the response to Covid-19 (in particular with use of online hearings) and its implications on the way parole reviews may be conducted in the future
- examining the effectiveness of the reconsideration mechanism (introduced to enable prisoners and others ask for a reconsideration of a decision without the expense of taking judicial review proceedings) and whether there is a case for further reform of that process
- identifying any additional legislative or Rule changes that would further improve the parole process including whether the current release test continues to be appropriate
2.The constitution and status of the Parole Board:
- examining whether the Parole Board should remain a non-departmental public body or should be made more visibly independent from the Ministry of Justice
- whether possible alternatives, such as creating a new type of public protection tribunal, could deliver the parole function in a more efficient and cost-effective way
- considering the need for any additional measures to strengthen the Parole Board’s powers to reinforce its status as a court-like body
3.Improving public understanding and confidence:
- exploring whether further steps could be taken by the Board and other parts of the system to help explain and publicise what parole decision making is, how it works and what the assessment entails
- ways to better communicate that parole decisions are not about ongoing punishment for the offences committed and that release is not a reward for good behaviour in prison
- improving messaging that the parole system protects the public by authorising the continued detention of dangerous offenders and that only a minority of prisoners considered for parole are released
4.Openness and transparency:
- developing a way for victims to observe oral hearings in a safe and secure way without compromising the Board’s ability to perform its function and obtain the best possible evidence from the prisoner and professional witnesses
- considering the case for public hearings and whether this would be possible and appropriate in certain limited cases
- looking at ways to build on the work already done to improve openness and transparency.
The Government observes that:
“the underlying aim of this review is to determine whether the Parole Board in its current form and constitution remains the most effective model for what the future of the parole system may look like; to command public confidence in the decisions it makes; and to deliver its functions in the most effective and transparent way possible, whilst ensuring that there is an effective independent judicial mechanism for keeping under review the continued lawfulness of custody.”
At the same time as these terms of reference were published, the Government also published what is called a “Tailored-Review of the Parole Board“. This was undertaken in accordance with the Cabinet Office requirement that all public bodies are reviewed at least once per parliament.
This review of the Parole Board focused predominantly on operational changes that could be made within the current legislative framework, making recommendations which further improve collaboration within the parole system and highlighting existing legal powers that the Parole Board can use to compel the production of evidence and the attendance of witnesses, with the intention of ensuring that all cases progress in a timely manner.
On the same day as these two documents were published, the Government also published its first consultation paper which explores options for increasing the transparency of the parole system. The consultation seeks views on the possibility of allowing victims to observe parole hearings and on whether the media and wider public should also be given greater access to hearings where it is appropriate to do so. The Consultation runs until 1 December 2020. The Government hopes to respond to it by the end of 2020
Changes recommended in the tailored review will no doubt be brought into effect pretty quickly. The consequences of the root and branch review will take longer. But a period of considerable change at the Board can be anticipated.
The Terms of Reference are at https://www.gov.uk/government/publications/parole-system-reform/terms-of-reference
The Tailored Review is at https://www.gov.uk/government/publications/parole-system-reform and follow the link
The Consultation Paper is at https://www.gov.uk/government/consultations/root-and-branch-review-of-the-parole-system
A guide to reading the Official Statistics on judicial review in the Administrative Court
Interesting report of interest to all those interested in administrative justice
A guide to reading the Official Statistics on judicial review in the Administrative Court
By Lewis Graham, Lee Marsons, Maurice Sunkin and Joe Tomlinson
UKAJI is delighted to publish this guide written by Lewis Graham (University of Cambridge), Lee Marsons (University of Essex), Maurice Sunkin (University of Essex), and Joe Tomlinson (University of York) on how to read the official statistics from the Ministry of Justice on judicial review in the Administrative Court.
Specifically, this guide aims to help people understand what the official statistics tell us and do not tell us about the use of judicial review in the Administrative Court. The note draws on the civil justice statistics published annually by the Ministry of Justice. This note seeks to explain the available statistics in an impartial way with a view to making them easier to read and understand.
In light of the current Independent Review of Administrative Law…
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Jury trials – a case for change?
One response to the difficulties of running jury trials in the current Covid-19 world, where social distancing is crucial yet difficult to achieve in a crowded courtroom, has been that – at least temporarily – alternatives to juries should be tried.
The Lord Chancellor has set his face against this idea. Indeed, most people who even float the idea that jury trials should be abolished tend to be treated with scorn.
Nevertheless, it is worth noting that there is the occasional voice to be heard, suggesting that jury trial is not all that it is cracked up to be.
In this context, readers of this blog might be interested in a book, published in 2019, by the late Louis Blom-Cooper QC who suggested that criminal trials might be run differently.
In Unreasoned Verdict, Blom-Cooper argues that:
The system of jury trial has survived, intact, for 750 years. This book explains the nature and scope today of jury trial, with its minor exceptions. It chronicles the origins and development of jury trial in the Anglo-Saxon world, seeking to explain and explore the principles that lie at the heart of the mode of criminal trial. It observes the distinction between the professional judge and the amateur juror or lay participant, and the value of such a mixed tribunal. Part of the book is devoted to the leading European jurisdictions, underlining their abandonment of trial by jury and its replacement with the mixed tribunal in pursuance of a political will to inject a lay element into the trial process. Democracy is not an essential element in the criminal trial.
The book also takes a look at the appellate system in crime, from the Criminal Appeals Act 1907 to the present day, and urges the reform of the appellate court, finding the trial decision unsatisfactory as well as unsafe.
Other important issues are touched upon – judicial ethics and court-craft; perverse jury verdicts (the nullification of jury verdicts); the speciality of fraud offences, and the selection of models for various crimes, as well as suggested reforms of the waiver of a jury trial or the ability of the defendant to choose the mode of trial. The section ends with a discussion of the restricted exceptions to jury trial, where the experience of 30 years of judge-alone trials in Northern Ireland – the Diplock Courts – is discussed.
Finally, the book proffers its proposal for a major change in direction – involvement of the defendant in the choice of mode of trial, and the intervention (where necessary) of the expert, not merely as a witness but as an assessor to the judiciary or as a supplemental decision-maker.
I think it highly unlikely that there will be any change in the foreseeable future. But that does not mean that arguments against the ways in which juries are currently used should not at least be considered and debated to see whether there might be alternative arrangements that might work better and more fairly.Source: adapted from publisher’s notice at https://www.bloomsburyprofessional.com/uk/unreasoned-verdict-9781509915224/
A Smarter Approach to Sentencing: the Government’s White Paper, 2020
Devising effective sentencing policy is hard. Ministers are often under great political pressures to deal with matters of public concern, which leads to frequent changes in sentencing law. This in turn can make the law hard to find and apply. The Sentencing Act 2020 is about to get the Royal Assent. Once in force it will provide a Code – an uptodate framework available online – within which new policies and changes to the law can be set.
Even before the ink has dried on the new Code, changes are in the pipeline. The Counter Terrorism and Sentencing Bill 2020 is well on its way through the Parliamentary process. (See https://martinpartington.com/2020/07/22/counter-terrorism-and-sentencing-bill-2020/)
More radical change is now promised by the White Paper on Sentencing, A Smarter Approach to Sentencing, published in September 2020.
It is a substantial document – reflecting a number of commitments made by the Conservative party in its election manifesto 2019 – on which the Government will be consulting over the next 12 months. A Bill is not anticipated until 2021.
The White Paper states that it is seeking to address three issues of public concern:
- Automatic Release: Sentences passed by judges and magistrates in the courts are criticised, often not for their overall length, but for the shortness of the time offenders actually spend in custody. The blanket use of automatic early release has, in the Government’s view, undermined confidence in the system. Too many serious and dangerous offenders are still released too early from custody; this risks public safety, and means the time spent in prison does not always properly fit the crime. The Counter-Terrorism Bill mentioned above deals with some of the issues; the White Paper argues for a more general policy to apply to all dangerous offenders, not just terrorists.
- Improving Confidence: Confidence in non-custodial sentencing options is low. The Government wants to gain greater confidence in the delivery of community sentencing. This is essential to reduce the prison population. Sentencers and the public need to be sure that there are effective non-custodial options, particularly for low-level offenders. The Government also wants to ensure that a wider range of non-custodial sentencing options are available to the courts, by capitalising fully on Electronic Monitoring technology, alongside enhanced community supervision delivered by a reformed National Probation Service and an expanded use of existing non-custodial conditions.
- Addressing the Causes of Offending: The Government wants to do more to address the causes of offending, particularly where it is driven by drug and alcohol misuse. In 2018/19, 28% of men and 42% of women entering prison reported having a drug problem. These issues are associated with offending, particularly low-level, repeat offending. Whilst there have been routes available to help treat and manage these needs in the justice system, as well as mental health needs, there have been too few options available to sentencers, and not enough confidence in the quality of these services.
The changes proposed in the White Paper are numerous. They include:
1. Introducing whole life orders for child killers, as well as allowing judges to hand out this maximum punishment to 18-20-year olds in exceptional cases to reflect the gravity of a crime. For example, acts of terrorism which lead to mass loss of life.
2. Introducing new powers to halt the automatic release of offenders who pose a terrorist threat or are a danger to the public.
3. Reducing the opportunities for over 18s who committed murder as a child, to have their minimum term reviewed – ensuring they cannot game the system and torment victims’ families further.
4. Ending the halfway release of offenders sentenced to between four and seven years in prison for serious crimes such as rape, manslaughter and GBH with intent. The Government proposes that they should have to spend two-thirds of their time behind bars.
5. Increasing the starting point for determining sentences for 15-17 year olds who commit murder from a minimum of 12 years to two thirds of the equivalent starting point for adults.This would ensure that the seriousness of the offence is taken into account and there is less of a gap between older children and young adults.
6. Longer tariffs for discretionary life sentences. Increasing the minimum period that must be spent in prison by requiring judges to base their calculation of the tariff on what two-thirds of an equivalent determinate sentence would be, rather than half as they do now. This will mean life sentence prisoners serve longer in prison before they can be considered for release by the Parole Board.
7. Raising the threshold for passing a sentence below the minimum term for repeat offenders, including key serious offences such as “third strike” burglary which carries a minimum three-year custodial sentence and “two strike” knife possession which has a minimum six-month sentence for adults. The should make it less likely that a court will depart from these minimum terms.
8. Piloting Problem Solving Court models in up to five courts, targeted at repeat offenders who would otherwise have been sent to custody.
9. Making full use of tagging technologies to create a tough restrictive order in the community. To support rehabilitation, courts and probation staff will have greater flexibility to impose curfew orders.
10. Piloting new ways of delivering timely and high-quality Pre-Sentence Reports.
11. Introducing new legislation to create the possibility of life sentences for drivers who kill.
12. Doubling the maximum sentence for assaulting an emergency worker from 12 months to 2 years.
The White Paper also proposes reforming criminal records disclosure to reduce the time period in which offenders have to declare offences to employers.
The full details of the White Paper are at https://www.gov.uk/government/publications/a-smarter-approach-to-sentencing
This entry is adapted from the Government Press Release: at https://www.gov.uk/government/news/radical-sentencing-overhaul-to-cut-crime
Search warrants: proposals from the Law Commission
One of the important powers the police have when they are investigating crime is the power to search premises and if necessary seize property that might be evidence to be used in a subsequent prosecution. A search warrant is an authorisation by a magistrate giving the police (or other investigtors) to make a search.
Around 40,000 search warrants are issued in England and Wales every year. There are over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”), are used to look for evidence of a criminal offence. Some more specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials, or to rescue people or animals in danger or distress. Other powers relate to complex financial or specialised investigations.
However, as the Law Commission notes, there are problems with the current system. These include:
- Error: A 2016 review by the National Crime Agency found that 79% of investigations had defective warrants (of which 8% had significant deficiencies).
- Inefficiency: Sometimes it can take three weeks to obtain a search warrant, during which time evidence might have been lost and further crimes committed.
- Insufficient powers: Law enforcement agencies do not have effective powers to obtain electronic evidence, which might be stored on remote servers in an unknown jurisdiction. Such material can be vital for the successful prosecution of serious criminal offences.
- Inadequate safeguards: There is currently not enough protection for individuals whose electronic devices are seized. Safeguards also vary depending on the type of warrant issued, so some individuals have fewer statutory protections than others.
To meet these shortcomings, the Law Commission has made a number of recommendations:
- Strengthened law enforcement powers: These include:
- Updating law enforcement powers so that they more clearly apply to electronic devices and data and allow digital evidence to be seized and copied.
- The expansion of “multiple entry warrants” which would allow for a property to be searched on multiple occasions and “all premises warrants” which would allow all premises occupied or controlled by a specified person to be searched.
- Permitting a police constable to search a person found on premises under the authority of a search warrant issued under PACE.
- Giving the Insolvency Service and NHS Counter Fraud Authorities in England and Wales the ability to apply for and execute search warrants.
- Improved process: The Law Commission makes recommendations to improve procedural efficiency, reduce the scope for serious errors and ensure that the issuing authority, a magistrate or judge, is presented with an accurate and complete picture of the investigation. These include: ensuring that the duty of an applicant to provide full and frank disclosure to the court is properly adhered to; introducing standardised entry warrant application forms and a template for entry warrants; considering the possibility of creating an online search warrants application portal; improving procedures for hearing search warrant applications to ensure that there is adequate judicial oversight.
- Electronic evidence and materials: Amending the legal framework that currently governs the search and seizure of electronic material to facilitate the collection and examination of electronic material in a way which does not inhibit criminal investigations or impose unreasonable demands on law enforcement agencies. This could allow for electronic devices to be searched and data to be copied while on the premises. (The Government should consider whether this should include data stored remotely (even if in another jurisdiction).) The Commission also recommends measures to ensure transparency and accountability and limit the interference with property and privacy rights. Unneeded data should be swiftly deleted, and devices returned as soon as is practical.
- Safeguards: These should be reformed to ensure that non-police investigators, such as members of the Serious Fraud Office, are subject to similar safeguards as the police. The Commission also recommends that an occupier should have a right to ask for a legal representative to be present to observe the execution of a warrant.
- Personal records and journalistic material: In relation to personal records and confidential journalistic material, we conclude that they should remain obtainable under PACE in very limited circumstances. We recommend that the Government considers whether the law governing access to these categories of material under PACE strikes the right balance between the competing interests at play, and whether the law ought to be reformed.
As this project was undertaken at the request of the Home Office, there is reasonable likelihood that firm policy proposals will emerge in due course.
Source: adapted from https://www.lawcom.gov.uk/project/search-warrants/
When Things Go Wrong: the response of the justice system: a report from JUSTICE
On 24 August 2020, JUSTICE, the Human Rights Group published an important report on the principles that should be applied when establishing public inquiries when some catastrophic event has occurred.
At present, a tragic incident may result in a range of concurrent legal processes: criminal investigations, disciplinary hearings and civil claims may be initiated that share identical subject matter with an inquiry, inquest or both. These overlapping processes can be confusing for those involved: at worst, layers of legal duplication can fuel the pain of loss. From the perspective of those caught up in the aftermath of the disaster – including victims, witnesses and alleged wrongdoers – the process can be agonisingly protracted. Further, survivors and their families often speak of alienation, mistreatment and whitewashing by the very bodies set up to identify the wrongs they have suffered. Their accounts suggest that inquest and inquiry processes are often highly adversarial and potentially retraumatising. And those with the most at stake may understandably fear that nothing will change once the processes conclude.
A Working Party of JUSTICE, chaired by Sir Robert Owen, asked whether there were ways to overcome these perceived deficiences. It considered:
- timely justice: how elements of current fact-finding processes and investigation might be integrated to reduce duplication and delay;
- transparency and responsibility: how investigations, inquiries and inquests can be better coordinated to embed best practice, promote certainty and ensure inclusion of bereaved people and survivors; and
- fairer outcomes: how inquiry hearings can be improved with regard to procedures, evidence and effective participation.
The report made 54 recommendations under the following broad heads:
- The framework – They recommended new State and independent bodies to provide oversight and facilitate information-sharing – a Central Inquiries Unit within Government, a full-time Chief Coroner and a special procedure inquest for investigating mass fatalities as well as single deaths linked by systemic failure, able to consider closed material and make specific recommendations to prevent recurrence.
- Opening investigations – Greater collaboration between agencies, in order to build a cross-process dossier, which would reduce the multiple occasions that bereaved people and survivors have to recount traumatic events and ensure that they are fully informed throughout the process.
- Procedure – Processes for appointing inquiry chairs and panels, for establishing the terms of reference and for providing information and relevant documents to core participants need to be more structured and transparent. Drawing on previous JUSTICE working parties on accessibility, we recommend that bereaved people and survivors are placed at the heart of the process – in choice of hearing space; improved communication and questioning by professionals and signposting to support services. Aside from the legal formalities, the report also called for widespread use of commemorative “pen portraits” and therapeutic spaces for bereaved and survivor testimony.
- A statutory duty of candour, including a rebuttable requirement for position statements, which would help foster a “cards on the table” approach. Directing the inquiry to the most important matters early on could result in earlier findings and reduced costs.
- Accountability and systemic change – An independent body should lead oversight and monitoring of the implementation of inquest and inquiry recommendations, whose review could aid scrutiny by parliamentary committees.
Source: Adapted from https://justice.org.uk/our-work/system-wide-reform/when-things-go-wrong/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 