Archive for 2020
Covid 19 and the English Legal System (7): steps to recovery
Since March 2020, the Government has worked closely with the judiciary and others to ensure the justice system continues to perform its vital role while keeping court and tribunal users safe.
To achieve this, Her Majesty’s Courts and Tribunals Service has rapidly expanded the use of technology to allow hearings to be conducted by phone and video.
HMCTS also temporarily closed around half of its buildings to focus effort and resources more effectively. The most urgent cases have been prioritised by the judiciary to ensure public safety, protect the vulnerable and safeguard children.
Having responded to the immediate crisis, HMCTS is now focusing on how to recover its operations to increase courts and tribunals capacity to deal both with normal workloads across jurisdictions and outstanding cases.
HMCTS has recently published a progress report to update those interested on its recovery plans. It sets out in a short booklet format the areas of working being undertaken in the short and medium terms.
It assumes that the need to continue to maintain social distancing as far as possible will continue, at least into 2021. It also emphasises that the programme of reform of Courts and Tribunals is continuing. Lessons from the experience of new ways of working, resulting from the need to meet the challenge of Covid 19, must be learned as the broader reform programme unfurls.
The Progress update is at https://www.gov.uk/government/publications/court-and-tribunal-recovery-update-in-response-to-coronavirus
The update has been accompanied by a statement from the Lord Chief Justice and the Vice President of Tribunals, available at https://www.judiciary.uk/announcements/courts-and-tribunals-recovery/
See also a blog from the Head of HMCTS at https://insidehmcts.blog.gov.uk/2020/07/01/coronavirus-recovering-in-our-courts-and-tribunals/
Judicial review and Covid-19: reflections on the role of crowdfunding
This is an interesting item on the use of crowdfunding to pursue issues arising out of the Covid 19 pandemic. it raises some interesting questions about whether this form of litigation finance is appropriate in all circustances.
Judicial review and Covid-19: reflections on the role of crowdfunding
Sam Guy – MA Social Research student and incoming ESRC-funded PhD candidate at the University of York
The Government’s response to the Covid-19 pandemic has been subject to significant numbers of judicial review challenges, many of which have been financed using crowdfunding. These cases, and the public’s responses to them, illuminate some of the opportunities and threats posed by this resource as a form of judicial review funding.
Crowdfunding as responsive collective action
There are at least two benefits of crowdfunding that have become particularly apparent in the pandemic. Firstly, it can offer a quick and expedient method for claimants to raise money towards potentially otherwise unaffordable litigation. The current environment for public interest judicial reviews is one of scarce state funding and high costs risk. Into this context, crowdfunding provides an alternative, democratised source of funding. As a result…
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Covid 19 and the English Legal System (6): the Criminal Justice crisis [stop press]
The huge backlog of criminal trials, resulting from the Covid 19 pandemic, is clearly very worrying for those responsible for managing the Criminal Justice system/
Two specific ideas for dealing with this have been floated in recent days.
In evidence to the House of Commons Justice Committee to be given on 23 June 2020, the Lord Chief Justice is likely to be promoting his favoured idea, that trial by a 12 person jury should be replaced by a trial judge sitting with two assessors.
The Human Rights Group JUSTICE has been conducting experiments using a virtual jury – in which 12 jury members join a virtual hearing online.
I declare an interest. I am a member of the Council of JUSTICE. Last Friday I watched an extract from the 4th virtual trial, which was being held on a pilot basis. I was extremely impressed and many of those who engaged in the process commented on the realism of the proceedings.
JUSTICE argues that this experiment should be expanded and that virtual jury trials should be used much more widely. These should be seen as preferable to the introduction of trials heard by judges sitting just with 2 assessors. Those who agree with this view are asked to convey their thoughts to the Justice Committee, inviting them to take their comments into account in their deliberations.
The Justice Select Committee website is at https://committees.parliament.uk/work/254/coronavirus-covid19-the-impact-on-prison-probation-and-court-systems/
The JUSTICE work on the impact of Covid 19 can be found at https://justice.org.uk/our-work/justice-covid-19-response/
Report of the Commission on Justice in Wales: summary of recommendations
I have just published a short blog on the constitutional changes being made in Wales. As part of that, I mentioned the publication of the Commission on Justice in Wales, whose report was published in October 2019. I think it is an extremely interesting document, for two main reasons.
- There are a number of specific ideas in this report which should be considered more actively for implementation in England as well.
- It offers a holistic set of proposals for a distinct Justice system for Wales. I have long thought that justice policy in England was made in a piecemeal way. This report provides a model of what a comprehensive Justice Policy in England might look like.
Of course, it is easier for a new government to engage in forward planning at a time when its responsibilities are limited. But the ways in which different parts of the English legal system have been dealing with Covid 19 have often been innovative and imaginative. I would argue that this provides an opportunity, for those willing to seize it, for thinking about what a coherent modern justice policy for England might look like.
Anyway, I offer this summary, adapted from the Commission’s report as something that those interested in Justice policy in England might also like to consider.
Source: Commission on Justice in Wales at https://gov.wales/commission-justice-wales
Commission on Justice in Wales: Summary of recommendations
1. Information, advice and assistance
- The funding for legal aid and for the third sector providing advice and assistance should be brought together in Wales to form a single fund.
- Criminal legal aid policy and delivery should be based on the approaches to public defender schemes adopted by the Nordic nations.
2. Criminal justice: reducing crime and promoting rehabilitation
- A new Wales Criminal Justice Board should be created. It should set an overall strategy for Wales including responsibility for ensuring the rights of victims are respected and there is proper delivery of services to victims.
- The Police, Crown Prosecution Service, the judiciary and HM Prison and Probation Service should each publish a strategy in respect of Black, Asian and Minority Ethnic people in Wales and report annually on the strategy to the Assembly.
- Policing and crime reduction policy, including drug abuse and mental health related issues, should be determined in Wales so that it is aligned and integrated with Welsh health, education and social policy.
- Problem-solving courts should be established in Wales along the Northern Ireland model.
- Youth justice policy should be determined and delivered in Wales. The age of criminal responsibility should be raised to at least 12 years old.
- A comprehensive network of services and centres as alternatives to custody should be established rapidly. An integrated and whole system approach to offender management should be established with a single rehabilitative strategy in Wales.
- Needs assessments of Welsh offenders should be conducted to identify the range of interventions required in both prisons and the community.
3. Civil justice
- Digital court services and other dispute resolution services that are being developed and introduced must be fully accessible to people throughout Wales.
- Dispute resolution before courts, tribunals, alternative dispute resolution and ombudsmen, as well as dispute resolution in respect of administrative law, should be promoted and coordinated in Wales through a body chaired by a senior judge.
- The feasibility of a low cost and effective resolution method for civil disputest hrough the use of a comprehensive ombudsmen scheme, taking into account the online court, should be examined.
4. Administrative justice and coroners
- All public bodies, ombudsmen and other tribunals which have been established under Welsh law or by the Welsh Government, which make judicial or quasi-judicial decisions, and are not currently subject to the supervision of the President of Welsh Tribunals, should be brought under the supervision of the President.
- The Administrative Court should have the power to stay court proceedings whilst the Public Services Ombudsman for Wales investigates a complaint. The Ombudsman should have the power to refer a point of law to the Court.
- The Welsh Tribunals Unit should have structural independence and the Welsh tribunals should be used for dispute resolution relating to future Welsh Legislation.
5. Family justice: children
- The law relating to children and family justice in Wales should be brought together in one coherent legal system aligned with functions in relation to health, education and welfare.
- Pending further research and the development of a long-term strategy, an all Wales approach to family justice should be developed and led in Wales through the Family Justice Network for Wales and the Local Family Justice Boards. The approach should be followed by all local authorities for dealing with child protection referrals with the objective of avoiding care proceedings when family support would be more appropriate.
- It should be a matter of routine practice prior to the first hearing in care proceedings to examine the feasibility of problem-solving and the form it might take, with a view to finding what steps short of taking a child into care can be put in place.
- The voice of the child should be heard at every stage of the proceedings.
- Family Drug and Alcohol Courts should be established in Wales
- There should be vigorous support for a programme of research to underpin reform of Welsh family justice and associated preventative services. The overarching aim should be the reduction in the numbers of children taken into care and the provision of far better evidence of the impacts of intervention on family life.
- A carefully thought through long-term policy for reducing the numbers of children taken into care should be developed after the conclusions of the research and then implemented.
- Legal advice should be available to each parent in private family law disputes prior to the commencement of proceedings up to a maximum fixed amount in each case
6. Delivering justice: locality and structure
- A strategy for Wales for provision of proper physical and digital access to justice before the courts, tribunals and other forms of dispute resolution should be drawn up and determined in Wales based on the needs of the people of Wales
7. The legal sector and the economy of Wales
- The Welsh Government should, in close consultation with the legal professions, provide fully-funded legal apprenticeships to enable people to qualify as legal professionals in Wales.
- There should be greater transparency about the level and distribution of expenditure on external legal services by the Welsh Government, each Welsh local authority and all other public bodies in Wales.
- The procurement of barristers’ services should be reformed to help build the capacity of the Bar in Wales.
- The Welsh Government should develop and implement as soon as possible our proposed strategy to reinvigorate the rural and post-industrial legal sector in Wales. It should provide strong support for investment in technology, especially in post-industrial and rural Wales.
- The Welsh Government must provide clear leadership and support for the legal services sector. This should be targeted, user-friendly, flexible and attractive to potential inward investors especially with establishing a technology-based nearshoring centre as an objective.
- The Welsh Government, legal professionals in Wales, the Law Society, the Bar Council, other professional bodies and academia should work in partnership. They should develop and promote the capabilities of the legal sector, promote South Wales as a legal centre and increase the export of legal services.
8. Knowledge, skills and innovation
- Welsh law schools must reassess their undergraduate programmes to take advantage of the scope for comparative studies and transferable qualifications.
- Law tech must be taught to all students and the professions across Wales.
- All university and college education providers in Wales should teach Welsh law as part of the ordinary undergraduate syllabus and work together to produce the necessary material. The place of Welsh law and the distinctiveness of the law in Wales should be properly reflected in professional and continuing legal education and training. Wales specific data should be collected and published on a sufficient scale to enable disaggregation, with a view to proper evidence-based policy development and as a basis for research.
- The Welsh Government should lead the development and implementation of an action plan to promote and support public legal education, particularly for children and young people.
9. The Welsh language
- All justice bodies should be subject to the Welsh Language Measure 2011. The Bar, CILEx and the Law Society should provide courses on using Welsh in the workplace, similar to those used by the Judicial College. Digital services that are being introduced must be accessible, free help must be available and all must be available in Welsh at the same time as the English version.
- Professional legal education for those wishing to practise in Wales must be available in the Welsh language with the phased introduction of the availability of all professional examinations in Welsh. Welsh law schools must collaborate on Welsh medium legal education, especially as regards the provision of teaching materials. All coroner services should be available in the Welsh language.
10. Recommendations on devolution of justice
- There should be legislative devolution of justice. Restrictions and reservations governing the Assembly’s power to legislate on all forms of justice, including policing and offender management and rehabilitation, should be removed, so that it corresponds more closely with the position of the Northern Ireland Assembly and the Scottish Parliament In tandem with the removal of reservations and restrictions on the Assembly’s powers, responsibility for executive functions in relation to justice in Wales should be transferred to the Welsh Government.
- Devolution of justice must be accompanied by a full transfer of financial resources, including all identifiable administrative and capital resources relating to Wales.
11. Recommendations to be implemented under the current scheme of devolution
- Clear and accountable leadership on justice in the Welsh Government must be established under the current scheme of devolution. The Assembly should take a more proactive role in appropriate scrutiny of the operation of the justice system.
- The Welsh Government should address policy issues relating to justice by using external experts who can report jointly with civil servants to Ministers.
- The Welsh Government and the legal sector should develop a joint leadership programme.
- A Law Council of Wales should be established to promote the interests of legal education and the awareness of Welsh law, to ensure proper provision of teaching the law in Welsh, and to assist students in their education and training as future practitioners.
- The organisation of the senior judiciary in Wales should be changed to provide the necessary working relationships and leadership within Wales. Wales should be put in a similar position to Scotland and Northern Ireland in the Supreme Court as regards the appointment of judges to the Supreme Court.
12, Recommendations for implementation with legislative devolution
- With legislative devolution, there must be a new Justice Department in the Welsh Government led by a Cabinet Minister.
- The office of Counsel General should continue as an office that provides independent legal advice to the Welsh Government and heads the Government Legal Service in Wales.
- Legislative devolution will require the establishment of a Justice Committee in the Assembly.
- Where there is overlap between the roles of local, regional and national boards, committees and partnerships, they should be merged.
- With legislative devolution, the governance arrangements for the police should be re-examined.
- The law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England.
- The present system where legal practitioners can practise in England and Wales and the legal professions are jointly regulated should be continued.
- Legislation should provide for a High Court and a Court of Appeal of Wales to be established by the Assembly.
- With legislative devolution, a Welsh Courts and Tribunals Service should be developed from the base of a Welsh Tribunals Unit reformed on the model of the Scottish Courts and Tribunals Service.
- With legislative devolution, the Welsh Government will need to review, and keep under continuing review, the justice infrastructure for Wales.
13. Action to be taken now by the Welsh Government and the Assembly
- The Welsh Government should begin the process of reform by listing the recommendations it will seek to implement whilst the current scheme of devolution continues. The Assembly should make arrangements to monitor and review the process of reform.
The Legal System of Wales – recent developments
In my book, Introduction to the English Legal System, I write that the book is “about the English legal system (which includes at least for the present the legal system in Wales)”.
However, devolution has led to a number of developments which need to be noted which point to the creation of a distinct system of government for Wales. In this context it is possible to see the outlines of a new Welsh Legal system beginning to emerge.
1 The National Assembly of Wales – executive and ‘legislature’
The first Government of Wales Act 1998 (GOWA 98) began a process of devolving powers to Wales. It created a new body, the National Assembly of Wales. Under GOWA 98 this body had executive functions in delivering policy and services in specific areas such as agriculture, culture, economic development, education, health, housing, local government, social services and planning. Henceforth, the National Assembly became responsible for carrying those out in respect of Wales.
At the same time. the National Assembly was given limited legislative powers including the making of regulations, rules and orders, and the giving of financial assistance. The National Assembly was also the body which held the Welsh Government to account.
This blending of executive functions and parliamentary functions proved to be very confusing.
In fact, soon after the National Assembly of Wales was established an informal division was created between the ‘Welsh Assembly Government’ (Ministers and civil servants predominantly based in Cathays Park, Cardiff and other offices across Wales) and the ‘National Assembly for Wales’ (Assembly Members and officials based in Cardiff Bay).
2 National Assembly and Welsh Government
The informal division between the legislative and executive branches of the Welsh Government was formally recognised in the Government of Wales Act 2006 (GOWA 2006).
This established a newly constituted National Assembly as the legislature. It also created a separate executive – initially called the ‘Welsh Assembly Government’, later amended to the ‘Welsh Government’. It was made accountable to the National Assembly.
GOWA 2006 gave the National Assembly power to pass its own primary legislation – initially called ‘Assembly Measures’, from 2011 called ‘Assembly Acts’. These Measures and Acts were limited to 21 areas of activity which were conferred on the National Assembly by the UK Parliament in Westminster. The Wales Act 2014 increased those power by giving the National Assembly limited taxation powers.
The Wales Act 2017 changed the system for determining the powers of the National Assembly from a ‘conferred powers’ model to a ‘reserved powers’ model. (This is consistent with the models adopted for Scotland and Northern Ireland.) In a reserved powers model, there is no specific list of devolved subjects. The model operates on the basis that everything is devolved unless it is reserved to the UK Parliament.
3. Senedd Cymru or the Welsh Parliament.
The increased importance of the Parliamentary function led politicians in Wales to argue that the name of the National Assembly should be altered to reflect more clearly its legislative function. After a period of consultation and legislation, the name of the National Assembly of Wales was changed, on 5 May 2020, to ‘Senedd Cymru or the Welsh Parliament’. With full law-making powers and the ability to vary taxes, the new name will reflect its constitutional status as a national parliament.
4. A Welsh Justice system
Under the doctrine of the separation of powers, governments comprise 3 separate branches: a legislature, an executive and a judiciary. For Wales, the first two of these are now in place. Currently, there is no clearly delineated Welsh Justice system. There are, however, moves to change the current position.
- Commission for Justice in Wales
The Welsh Government established a Commission for Justice in Wales in December 2017. It reported in 2019. It was chaired by Lord John Thomas, who had recently retired as the Lord Chief Justice for England and Wales.
Its report is a very wide-ranging one covering such issues as: legal aid and advice; new approaches to civil dispute resolution; new approaches to the sentencing and rehabilitation of offenders and the protection of victims of crime. I plan to summarise its principal recommendations in a separate blog item.
The work of the Commission for Justice has been complemented by a programme of social research, funded by the Nuffield Foundation, on the development of Administrative Justice in Wales, which has produced reports on matters including housing and education.
- The Legislation, Justice and Constitution Committee Consultation
Arising from the Commission’s report, the Legislation, Justice and Constitution Committee of Senedd Cymru ran, from March to June 2020, a consultation on Making Justice Work in Wales. Its terms of reference stated that its work should be in 2 parts: (i) fact-finding and looking forward; and (ii) analysis of how the justice system could operate more effectively in Wales
In Part 1, the Committee intends
- To identify and map the Senedd and Welsh Government’s existing responsibilities and functions relating to the scrutiny of justice matters;
- To identify and review the current funding arrangements for justice matters already within the responsibility of the Senedd and Welsh Government;
- To consider the existing operation of justice functions in Wales, including Welsh Government policies in devolved areas and their interaction with the administration of justice;
- To consider the impact of relationships between UK and Welsh competence on specific justice matters and to identify areas of concern;
- To consider how the Senedd could have a more proactive role in the scrutiny of justice, including how justice bodies could engage with the Senedd.
In Part 2, the Committee is asked:
- Using results of Part 1, to explore any areas of concern in the balance of justice powers and accordingly whether a more coherent and joined-up approach to justice policy could be achieved;
- To consider the implications, consequences and practicalities of any potential justice devolution;
- To learns lessons on the approach to scrutiny of justice from the UK and other legislatures.
The outcome of the inquiry has not yet been published.
Sources:
General information about the Welsh Government is at https://gov.wales/
Information about Senedd Cymru is at https://senedd.wales/en/Pages/Home.aspx
The Commission on Justice in Wales Report is at https://gov.wales/commission-justice-wales-report
The Nuffield Foundation sponsored programme on Administrative Justice in Wales is at https://www.nuffieldfoundation.org/project/paths-to-administrative-justice-in-wales
Information about the Senedd Cymru Committee inquiry is at https://business.senedd.wales/mgConsultationDisplay.aspx?id=388&RPID=1017209288&cp=yes
Legal services regulation: the Mayson report
This is an important report on the need to rethink the approach to the regulation of legal services and those who provide them. The author Stephen Mayson has summarised his report on his blog. I reproduce what he wrote here, with his permission.
After two years, my final report of the Independent Review of Legal Services Regulation haas been published. It is available for download from this site and from UCL.
In 2016, the Competition & Markets Authority completed its market study and concluded that the legal services sector is not working well for individual consumers and small businesses, and that the current regulatory framework under the Legal Services Act 2007 is not sustainable in the long run. One of its recommendations was that the government should undertake a review of the current regulatory framework.
In light of Brexit, the Ministry understandably did not feel able at the time to commit to a formal review. In July 2018, I therefore volunteered to undertake the Independent Review on a pro bono basis under the auspices of the Centre for Ethics & Law, in the Faculty of Laws at University College London.
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Covid 19 and the English Legal System (5): Parliamentary inquiries (revised)
Those interested in how key actors in the legal world are trying to cope with the implications for the English Legal System of Covid-19 might care to follow the work – currently on-going – of two Parliamentary Select Committees.
The House of Commons Justice Committee launched an inquiry into Coronavirus (COVID-19) on 31 March 2020. It is examining the impact on prisons, the probation service and the court systems. They have held three evidence gathering sessions in which they heard from a number of key witnesses, including the Lord Chief Justice, the Minister of State, key officials from Prisons and Probation, the Chair of the Magistrates Association. It is likely that the Committee will publish a relatively short report in the course of the next few weeks.
At the same time on 13 May 2020, the House of Lords Constitution Committee opened an inquiry into the Constitutional implications of Covid 19. This will be a more wide-ranging inquiry than that being held by the Commons Justice Committee.
The announcement of the inquiry states:
The Covid-19 pandemic and the Government’s measures to respond to it have significant constitutional implications, as well as health, social and economic ones. These include:
- The ability of Parliament to hold the Government to account
- Scrutiny of emergency powers
- The operation of the courts
The Constitution Committee will consider these issues and other related matters as part of an umbrella inquiry into the constitutional implications of Covid-19. The Committee will initially explore questions such as:
- What can Parliament do to maximise its scrutiny of the emergency regulations and to hold the Government to account effectively during lockdown? How are adjustments to procedures and processes working in the House of Lords?
- What are the consequences for different ways of Parliament working on effectiveness, accessibility, fairness and transparency?
- What emergency powers has the Government sought during the pandemic and what powers has it used and how?
- What lessons are there for future uses of emergency powers, their safeguards and the processes for scrutinising them?
- How has the Government used both law and guidance to implement the lockdown and what have been the consequences of its approach? How has this varied across the constituent parts of the United Kingdom?
- What liberties has Parliament loaned the Government during lockdown? What are the processes for reviewing and returning them? Are the sunset provisions in the Acts and regulations sufficient?
- How is the court system operating during the pandemic? What has been the impact of virtual proceedings on access to justice, participation in proceedings, transparency and media reporting?
- How will the justice system manage the increasing backlog of criminal cases? Is it appropriate to rethink the jury system during the pandemic, and beyond, and if so how?
To date, the Committee has issued a call for evidence and has had a number of hearings at which oral evidence has been presented. Among the witnesses who have already given evidence is the ‘guru’ of the use of IT in the delivery of legal services, Prof Richard Susskind and the leading researcher on the justice system, Prof Dame Hazel Genn.
I suspect this report will take somewhat longer to appear than that of the Commons Committee.
In addition to these two inquiries which cover many aspects of the working of the legal and justice systems, in mid-May 2020, the House of Commons Public Administration and Constitutional Affairs Committee also launched an inquiry: Responding to Covid-19 and the Coronavirus Act 2020. The aim of this inquiry is set out as follows:
The Coronavirus Act 2020 was emergency legislation passed by Parliament on 25 March, to provide the Government with the powers it wanted to tackle the Covid-19 pandemic in the UK.
Under section 98 of the Act 2020, every six months there is “parliamentary review” which means that the Government must, so far as is practicable, make arrangements for the following motion to be debated and voted on: “That the temporary provisions of the Coronavirus Act 2020 should not yet expire.”
PACAC is launching an inquiry to scrutinise the constitutional and public administration aspects of the Act, with the goal of supporting and informing that debate.
It has issued a call for evidence but has not to date arranged for any meetings or hearings.
For links to all these inquiries see:
The Justice inquiry is at https://committees.parliament.uk/work/254/coronavirus-covid19-the-impact-on-prison-probation-and-court-systems/
The House of Lords Constitution Committee is at https://committees.parliament.uk/work/298/constitutional-implications-of-covid19/
The evidence of Profs Susskind and Genn is at https://www.parliamentlive.tv/Event/Index/0f0810d1-9489-4506-9108-139f6d4f221e
The PACAC inquiry is at https://committees.parliament.uk/work/310/responding-to-covid19-and-the-coronavirus-act-2020/
All evidence sessions held by Parliamentary Committees can be accessed at https://parliamentlive.tv/Commons.
Covid 19 and the English Legal System (4): Trial by Jury
One of the most serious consequences of Covid 19 has been a huge increase in the backlog of cases awaiting a trial in the criminal courts. Although only a tiny minority of criminal cases are the subject of trial by a jury, by definition they are the most high profile and serious cases.
It is often stated that ‘justice delayed is justice denied’. The authorities responsible for the criminal justice system cannot therefore simply sit on their hands and wait for Covid 19 to disappear. The challenge is to know what practical steps can be taken to ensure that criminal trials do not come to a complete standstill.
At present, the principal response has been for the HM Courts and Tribunals Service to reconfigure existing court buildings to enable trials before a jury to take place in a socially distanced way.
An article in The Times of 4 June 2020 tells how one such trial – in Bristol Crown Court – actually went very well. But, as the author barrister Dominic Thomas points out, the trial required the use of the entire court building – in which 6 trials would normally be going on at the same time. Socially distanced hearings organised on this basis will therefore not make a significant dent in the backlog.
Two alternative ideas have recently been aired. First, also in the Times (May 1 2020), the former High Court judge, Sir Richard Henriques, floated the idea that, at least while the Covid 19 pandemic remains an active threat to public health, criminal cases should be dealt with by trial judges sitting alone. In other words, the use of the jury would be suspended.
This idea might seem to strike at the heart of a key feature of the English Legal System. But it received some heavyweight support (see also Letters to the Editor of the Times on the following day).
In fact, it is not as shocking an idea as might at first appear. It has long been argued by some commentators and practitioners that use of the jury is not suited to particular types of trial – complex and lengthy fraud trials are usually cited as the prime candidate for trials with a judge and assessors in place of the jury.
And it should not be forgotten that there is already power, in the Criminal Justice Act 2003 Part 7, to dispense with the jury in cases where there is a real and present danger of jury tampering – a power that has hardly ever been used but is nonetheless on the statute book.
Shortly before his death in 2018, the campaigning advocate Sir Louis Blom-Cooper completed an important study of the criminal trial system, which among other things shows how, in continental Europe, jury trial was – over the years – replaced by a system of judges sitting with lay assessors.
I share the view that a judge sitting alone would not be the fairest mode of deciding serious criminal cases. The idea of trial judges sitting with, say, two assessors who could help to determine the facts in the light of the evidence presented, seems to me worth pursuing.
An alternative proposal is that jury trials should be retained, but that the trial proceedings should be conducted virtually, with jurors viewing proceedings on computer screens. JUSTICE, the human rights group, is in the process of holding a number of pilot hearings. The first two have been the subject of some independent assessment. The third can be viewed online.
My guess is that as we will be living with the effect of Covid 19 for some time to come, changes will have to be made to the ways in which major criminal trials are conducted.
See: article by Dominic Thomas https://www.thetimes.co.uk/past-six-days/2020-06-04/law/socially-distanced-courts-wont-dent-the-case-backlog-fwgt5p35d
Article by Sir Richard Henriques https://www.thetimes.co.uk/article/jury-trials-could-restart-next-month-as-court-backlogs-grows-says-robert-buckland-rtjq3xpd5
Letters in response: https://www.thetimes.co.uk/article/times-letters-trials-without-juries-would-ease-the-backlog-cdb8bnmwh
Louis Blom-Cooper, Unreasoned Verdict: The Jury’s Out https://www.bloomsburyprofessional.com/uk/unreasoned-verdict-9781509915224/
JUSTICE, Piloting virtual jury trials, see https://justice.org.uk/wp-content/uploads/2020/04/JUSTICE-mock-virtual-trial-press-release.pdf
Evaluation by Prof Linda Mulcahy and Dr Emma Rowden at https://justice.org.uk/wp-content/uploads/2020/04/Mulcahy-Rowden-Virtual-trials-final.pdf
Extract from the 3rd pilot hearing is at https://www.avmi.com/news-and-resources/avmi-develop-and-pilot-first-ever-virtual-mock-jury-trial-service-with-justice/
Covid-19 and the English Legal System (3): the experience of Judicial Review
As one of a series of items on the impact of the pandemic on the English Legal System, I am reblogging this interesting study of how Judicial Review cases are being dealt with online
Judicial review during the Covid-19 pandemic (Part I)
By Joe Tomlinson (University of York), Jack Maxwell (Public Law Project), Jo Hynes (University of Exeter), and Emma Marshall (University of Exeter).
This piece originally appeared on the Admin Law Blog on 26 May 2020 and can be found here. It is reposted with permission and thanks.
The COVID-19 pandemic raises at least two important questions for judicial review in England and Wales. The first is about process: how is judicial review operating in a time of social distancing, when most court processes have quickly shifted to a remote format? A second, related question is about litigation patterns: how are people using judicial review to challenge the Government’s response to COVID-19 itself?
In this two-part post, we offer some tentative answers to these questions. This first part examines how the Administrative Court’s amended judicial review procedure has been working in practice…
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Domestic Abuse Bill 2020
The problem of domestic abuse has slowly risen up the political agenda over the past few years. For far too long regarded it was regarded as essentially a private matter in which public authorities, in particular the police, were often reluctant to act. However, the indefatigable work of charitable organisations, such as Refuge, have done much to change the minds of policymakers. And it was an issue which the former Prime Minister Theresa May took particularly seriously.
Over the last 2 and a half years, there have been a series of steps leading to reform of the law.
1. A Consultation Paper, setting out proposed changes to the law, was published in March 2018. This identified 4 objectives for change:
- promoting awareness – to raise public and professional awareness
- protection and support – to enhance the safety of victims and the support that they receive
- transforming the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation
- improving performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.
2. The consultation was followed by a draft Domestic Abuse Bill in March 2019 which was considered by a Joint Committee of the House of Commons and House of Lords. It set out the following issues which required legislative change. They are:
- creation of a statutory definition of domestic abuse;
- establishment of the office of Domestic Abuse Commissioner, and setting out the commissioner’s functions and powers;
- providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order;
- prohibiting perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and preventing victims from having to cross-examine their abusers) and giving the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress;
- creating a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts;
- enabling high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
- placing the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing;
- ensuring that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy;
- extending the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.
3. The consultation on the Draft Bill was concluded in July 2019, and a Domestic Abuse Bill was introduced into Parliament on the same day. However, it fell when the December 2019 General Election was called.
4. In March 2020, a revised Domestic Abuse Bill was published which is now proceeding through Parliament. It is largely the same as the 2019 Bill though a number of proposed clauses have been strengthened. For example, the powers of the Courts to protect victims from being cross-examined by abusers have been enlarged.
The timetable for the Bill provides that it should have passed through the Commons by the end of June 2020. It is likely to have passed the Lords and be given Royal Assent sometime in the Autumn of 2020.
Although I have not linked this initiative directly to Covid 19, as I have done in a number of other blog items, there is a clear link between the two since one of the well-publicised consequences of the Covid-19 lockdown has been a sharp increase in the numbers of people seeking help to protect them from domestic abuse.
I will update the blog on this issue after the Bill becomes law.
For the work of Refuge, see https://www.refuge.org.uk/
A press release relating to the 2020 Bill is at https://www.gov.uk/government/collections/domestic-abuse-bill
Further documents relating to the Bill are at https://services.parliament.uk/bills/2019-21/domesticabuse.html
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 