Archive for January 2021
Impact of Covid-19 on the criminal justice system: the view of the Criminal Justice Inspectorates
There are 4 Inspectorates which have statutory power to keep different parts of the criminal justice system under review: prosecution, police, prisons, and probation. Covid-19 has impacted all aspects of the system.
While the inspectorates have on many occasions worked with each other (on some occasions with other agencies outside the criminal justice system), it is rare for all 4 of the criminal justice inspectorates to come together to write a joint report on a single issue. The impact of Covid-19 on the criminal justice system has been the trigger for their latest report, Impact of the pandemic on the criminal justice system, which was published on 19 January 2021.
As the press release to the report makes clear, each of the Inspectorates has been examining the impact of Covid-19 on their individual parts of the system. They have already published or will soon be publishing their own individual resports on the impact of the virus.
But the Chief Inspectors are obviously extremely concerned about the enormous stresses being placed throughout the criminal justice system – not all deriving from the pandemic, but to which the pandemic has added new dimensions.
In their joint report, the Chief Inspectors draw together common issues which are discussed in each of their studies. They spell out how the Covid-19 pandemic has affected the work of the police, prosecutors, prisons, probation and youth offending teams. They point to difficulties and lengthy waits at all stages of the criminal justice process observing that delays “benefit no one and risk damage to many”.
While the Chief Inspectors were able to praise some positive initiatives that had been taken during the Covid-19 pandemic, including the acceleration of digital working, and the commitment of staff, other areas were of more concern. They included the lack of education provision in custody and in the community for young people and the highly restrictive regimes imposed on a majority of prisoners which have continued for many months without respite, impacting negatively on their physical, emotional and psychological wellbeing and also more generally on prospects for effective rehabilitation.
In the Chief Inspectors’ view, the greatest risk to criminal justice comes from the “unprecedented and very serious” backlogs in courts. The number of ongoing cases in Crown Courts was 44 per cent higher in December 2020 compared to February of the same year. Latest figures show more than 53,000 cases are waiting to come before Crown Courts. Some of these cases have been scheduled for 2022. Despite additional funding, the continuing impact of Covid-19 is likely cause further delays.
A particular source of frustration are cases which have been listed for trial but are then cancelled and postponed, all adding to the stress of victims as well as of the accused.
The Joint Report has been used as the basis for a meeting with the Justice Select Committee which is very concerned about the impact of Covid-19 on the Justice system and indeed reported on the issue in October 2020.
The evidence in this report clearly demonstrates the potential importance of the proposed Royal Commission on the Criminal Justice system. The delay in establishing this, which I have criticised before, is a real source of frustration for all those who want to see major improvements in the operation and effectiveness of the Criminal Justice system.
Details of the Joint Report can be found at https://www.justiceinspectorates.gov.uk/cjji/inspections/impact-of-the-pandemic-on-the-criminal-justice-system/
The evidence of the Chief Inspectors to the Justice Committee is at https://committees.parliament.uk/committee/102/justice-committee/news/138547/committee-gets-early-sight-of-criminal-justice-system-report/
Revisiting ‘pre-charge bail’ – further changes in the wind
In recent years there was much complaint about the shadow that can be cast over someone’s life when that person has become of interest to the police, but where the police do not have enough evidence to justify charging him or her with the committal of an offence. A number of well-known members of the public were placed on police bail for months, not knowing whether any further steps were going to be taken against them.
When she was Home Secretary, Theresa May decided to amend the law so that, in most cases, a person would normally be subject to ‘pre-charge bail’ for only 28 days (though limited extensions could be granted). There were two main justifications offered for making these changes:
- When a person has been arrested, the time they can be detained by the police pending a charge is closely regulated. If the evidence is not available to justify a charge, they must be released. Mrs May thought it was right that ‘pre-charge bail’ should also be time limited.
- Mrs May thought that if a 28 day limit was imposed, this would incentivise the police to get on with their evidence gathering and therefore bring the issue of whether or not to charge a person to a head more quickly.
As an alternative to releasing a person on bail, the 2017 Act gave the police the power to release suspects under investigation (RUI).
It is fair to say that there was considerable professional resistence to these proposals. Individual police forces and the College of Policing were both very concerned that the implications of making these changes had not been fully thought through and were unlikely to have the hoped-for effect. Nonetheless, Part 4 of the Policing and Crime Act 2017 brought these changes into effect.
On 5 November 2019 the government announced that there would be a review of the pre-charge bail legislative framework. The objective of the review was to ensure that there was in place a system that:
• prioritises the safety of victims and witnesses;
• supports the effective management of investigations;
• respects the rights of individuals under investigation, victims and witnesses to timely decisions and updates; and
• supports the timely progression of cases to courts.
Between February and April 2020, the Home Office conducted a public consultation on proposals for amending the legislation.
At around the same time, in late 2019 and early 2020, a joint inspection by HM Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) and HM Crown Prosecution Service Inspectorate (HMCPSI) into how these changes were working in practice was undertaken. The report from the inspection was published in December 2020.
The headline findings of the joint inspection were:
- that suspects are still faced with lengthy delays and that the changes also had unintended consequences for victims, who view them as overwhelmingly negative;
- that not enough thought was given as to how the legislative changes would affect victims;
- that RUI leaves too many victims without the reassurance and protection that bail conditions can provide;
- there was an inconsistent implementation of the changes by forces due to a lack of clear guidance;
- that investigations involving suspects released under investigation tend to take longer and are subject to less scrutiny than ones involving formal bail; and
- that victims and suspects do not understand the legislation and are not being updated about the progress of their case.
For example, in many cases of domestic abuse and stalking, suspects were being released under investigation instead of being formally bailed with conditions. This was very worrying because of the high harm and risk associated with these types of crime. The Inspectorates found through their research that victims of domestic abuse felt less safe since the changes were made.
Reports in the press today (13 January 2021) suggest that the outcome of the Home Office’s review will shortly be published together with details on how the law is to be amended.
Details of the Home Office Consultation are at https://www.gov.uk/government/consultations/police-powers-pre-charge-bail
The Inspectorates reports and accompanying research is found at https://www.justiceinspectorates.gov.uk/hmicfrs/news/news-feed/further-changes-to-bail-legislation-must-consider-victims-needs/
The Press story is in the Times 13 January 2021 at https://www.thetimes.co.uk/article/reforms-to-police-bail-that-left-victims-at-risk-will-be-scrapped-2mdzzmxk5
Royal Commission on Criminal Procedure – 40th Anniversary of the publication of the Philips report
Yesterday (6 January 2021) I published a note on two recent reports about the police powers of stop and search. This has triggered a response from one reader who has reminded (more accurately informed) me that, almost 40 years to the day, the report of the report of the Royal Commission on Criminal Procedure (RCCP) – chaired by the late Sir Cyril Philips – was published on 5 January 1981.
Sometimes Royal Commissions get a bad press. It is said they are used as a means of kicking difficult subjects into the long grass, in the hope that somehow they will go away or at least provide Ministers with an excuse not to do something until the Commission has reported by which time someone else will be in charge.
The Royal Commission on Criminal Procedure was not one of these. It was a major undertaking – accompanied by a substantial research programme – which lead to three major developments in the criminal justice system in England and Wales.
The first of these was the establishment of the Crown Prosecution Service. Until the RCCP reported, the police were responsible for both investigating a crime and taking the decision to prosecute. A number of miscarriages of justice at the time occurred because the police did, on occasion, use these twin functions to ensure that they were in charge of getting evidence that would eventually enable them to bring a prosecution.
The RCCP insisted that there had to be a separation between the investigation function and the prosecution function. At the time this was regarded as a very controversial idea, but the Government agreed to implement the recommendation. Following the publication of a White Paper in 1983, the Prosecution of Offenders Act 1985 created the new service, which started work in 1986. It brought together, under the Director for Public Prosecutions (DPP), the former DPP’s office and the prosecution offices from individual police forces in England and Wales. Despite a lot of teething problems, the CPS has become a well established part of the criminal justice system – albeit now struggling with others from funding cuts and Covid 19.
The second major outcome from the RCCP was the enactment of the Police and Criminal Evidence Act 1984. This sought to bring clarity to the powers of the police. Since this involved some rationalisation and expansion of police power, the PACE Codes of Practice were also put in place to set boundaries on the ways in which those powers were to be exercised. Although the Codes have been revised and added to since the original legislation was enacted, the basis framework recommended by the RCCP has survived. Indeed, the creation of the CPS was, at least in part, to provide another check on the possible abuse by the police of their reformed powers.
A third development recommended by the RCCP was the creation of the Police Complaints Authority (now the Independent Office for Police Complaints). This replaced an earlier Police Complaints Board which did not have the powers or resources to take complaints against the police seriously.
I would not for one moment argue that the RCCP report solved all the problems relating to the criminal justice system. (The fact that only a decade later there was a further Royal Commission, this time on Criminal Justice, which – among other things – recommended the creation of the Criminal Cases Review Commission, shows that the criminal justice system always presents challenges for policy makers and practitioners.)
But it did create a structure which has lasted more or less intact for 40 years.
Experience with both these Royal Commissions demonstrates that their work can deliver significant and lasting change. This is one of the reasons why I, for one, am so disappointed that the Royal Commission on the Criminal Justice System, promised by the present Government, is not being taken forward more urgently. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)
Review of pre-action protocols in civil litigation – consultation from the Civil Justice Council
When Lord Woolf published his landmark report, Access to Justice, way back in 1996, one of his aims in making his recommendations for changes to civil procedure was to encourage parties contemplating litigation to put their cards on the table. This way, Lord Woolf thought, litigants might be able to come to their own settlement of the issues in dispute between them, rather than incurring the costs of an actual court hearing. Woolf argued that the courts should be the ‘forum of last resort’.
One of the methods for encouraging parties to come to the negotiating table was through the creation of pre-action protocols (PAPs) – steps that should be taken before formal legal proceedings started. Over the years 17 separate pre-action protocols have been developed for different categories of proceeding.
There have, however, been criticisms of PAPs. For example, it was argued that they created additional expense; they caused delay (both things Woolf sought to avoid); they were not effectively enforced by judges.
In October 2020, the Civil Justice Council announced that it was going to review the operation of PAPs.
According to the Press Release issued at the time: “The review will look at all aspects of PAPs including their purpose, whether they are working effectively in practice and what reforms, if any, are required.”
It went on to state that the Civil Justice Council was particularly interested in looking at how PAPs are working for litigants with limited means; the costs associated with PAP compliance; the potential of PAPs in online dispute resolution, and the potential for PAPs to be streamlined.
Although the Civil Justice Council did set out provisional Terms of Reference for their inquiry, it also said that the focus of the review was not closed. As a first step, the CJC decided to conduct a preliminary survey to obtain feedback and suggestions about what ought to be the focus of the review, and the priorities for reform. This was started in October 2020, and ran until December 2020.
The announcement of the review is at https://www.judiciary.uk/announcements/civil-justice-council-launches-review-of-pre-action-protocols/
The results of the initial survey are awaited.
Stop and search – getting the balance right?
One of the most controversial powers use by the police is the power to stop and search people. Heavy-handed use alienates those who are stopped and searched (and the wider community); failure to use these powers can lead to increases in crime.
There is no doubt that the experience of stop and search is felt most acutely amongst the black communities. There is clear evidence that young black men are disproportionately subjected to these processes. While the law and policies relating to stop and search may in theory try to strike a balance between policing needs and the rights of individuals not to be stopped as they go about their business, getting that balance right in practice remains a challenge, particularly for those police forces that use stop and search a lot. Particularly concerning are those who have been stopped and searched on numerous occasions. It is understandable that they might feel they have been treated unfairly.
In this context, a report from the Independent Office for Police Conduct (IOPC) into the use of stop and search by the Metropolitan Police, published in October 2020, is worth noting. Having looked in detail at a sample of stop and search incidents, the IOPC concluded that the legitimacy of stop and searches was being undermined by:
- a lack of understanding about the impact of disproportionality
- poor communication
- consistent use of force over seeking cooperation
- the failure to use body-worn video from the outset of contact and
- continuing to seek further evidence after the initial grounds for the stop and search were unfounded.
Recommendations made by the IPOC to the Met included:
- taking steps to ensure that their officers better understand how their use of stop and search powers impacts individuals from groups that are disproportionately affected by those powers;
- ensuring there is a structure in place so leaders and supervisors are proactively monitoring and supervising the use of stop and search powers…;
- taking steps to ensure that assumptions, stereotypes and bias (conscious or unconscious) are not informing or affecting officer’s decision making when carrying out stop and searches, especially when using these powers on people from Black communities;
- ensuring officers are not relying on the smell of cannabis alone when deciding to stop and search someone and use grounds based upon multiple objective factors;
- ensuring officers carrying out stop and searches always use the principles of GOWISELY and engage in respectful, meaningful conversations with the persons being stopped;
- ensuring stop and search training incorporates a section on de-escalation, including the roles of supervisors and colleagues in controlling the situation and providing effective challenge;
- ensuring officers exercising stop and search powers are ending the encounters once their suspicion has been allayed, in a manner that minimises impact and dissatisfaction, unless there are further genuine and reasonable grounds for continued suspicion;
- ensuring officers exercising stop and search powers are not using restraint/handcuffs as a matter of routine and are only using these tools when reasonable, proportionate and necessary;
- amending stop and search records to include a question about whether any kind of force has been used;
- ensuring officers are following policy and switching on their body-worn video camera early enough to capture the entirety of a stop and search interaction;
- supervisors taking a proactive role in monitoring and ensuring compliance with body-worn video policy.
The challenge with all such reports is to know how they are followed through in practice. Do they lead to changes in front-line behaviour? Or are they left on a shelf, largely ignored?
A very useful review of the law and changes in policy relating to stop and search was published, in November 2020, in a House of Commons Briefing Paper, No 3878. Written by Jennifer Brown, it sets out: the law; the use of the law; the impact of the law; and a brief history of recent changes to law and practice.
Among the points made in the paper:
- The numbers of stops has reduced by over 50% over the past 10 years (though there has been a sharp increase recently).
- Black people were nine times more likely to be searched than white people.
- Use of stops is predominantly by 5 police forces (the Met, Merseyside, West Midlands, Essex and South Yorkshire police forces).
- Most searches were conducted to find drugs.
- Around 20% lead to either arrest or out of court disposal.
- It is estimated that around 8% of all arrests in 2018/19 were generated by a stop and search encounter.
- Stop and search hardly ever results in the prevention of a crime.
The IOPC report is at https://www.policeconduct.gov.uk/news/review-identifies-eleven-opportunities-met-improve-stop-and-search
The House of Commons Briefing paper is at https://commonslibrary.parliament.uk/?s=stop+and+search+&library=1&year=all and follow the link.
New Code of Practice for the treatment of victims of crime
For some time, the Government has been promising the publication of a new Code of Practice on how the victims of crime should be treated by those involved in the criminal justice system. Following a consultation, the new code was published in November 2020. It has been laid before Parliament and came into effect on 1 April 2021.
The Code provides that victims have the following 12 rights. They are set out, in summary, as:
- To be able to understand and to be understood. You have the Right to be given information in a way that is easy to understand and to be provided with help to be understood, including, where necessary, access to interpretation and translation services.
- To have the details of the crime recorded without unjustified delay. You have the Right to have details of the crime recorded by the police as soon as possible after the incident. If you are required to provide a witness statement or be interviewed, you have the Right to be provided with additional support to assist you through this process.
- To be provided with information when reporting the crime. You have the Right to receive written confirmation when reporting a crime, to be provided with information about the criminal justice process and to be told about programmes or services for victims. This might include services where you can meet with the suspect or offender, which is known as Restorative Justice.
- To be referred to services that support victims and have services and support tailored to your needs. You have the Right to be referred to services that support victims, which includes the Right to contact them directly, and to have your needs assessed so services and support can be tailored to meet your needs. If eligible, you have the Right to be offered a referral to specialist support services and to be told about additional support available at court, for example special measures.
- To be provided with information about compensation. Where eligible, you have the Right to be told about how to claim compensation for any loss, damage or injury caused as a result of crime.
- To be provided with information about the investigation and prosecution. You have the Right to be provided with updates on your case and to be told when important decisions are taken. You also have the Right, at certain stages of the justice process, to ask for decisions to be looked at again by the relevant service provider.
- To make a Victim Personal Statement. You have the Right to make a Victim Personal Statement, which tells the court how the crime has affected you and is considered when sentencing the offender. You will be given information about the process.
- To be given information about the trial, trial process and your role as a witness. If your case goes to court, you have the Right to be told the time, date and location of any hearing and the outcome of those hearings in a timely way. If you are required to give evidence, you have the Right to be offered appropriate help before the trial and, where possible, if the court allows, to meet with the prosecutor before giving evidence.
- To be given information about the outcome of the case and any appeals. You have the Right to be told the outcome of the case and, if the defendant is convicted, to be given an explanation of the sentence. If the offender appeals against their conviction or sentence, you have the Right to be told about the appeal and its outcome.
- To be paid expenses and have property returned. If you are required to attend court and give evidence, you have the Right to claim certain expenses. If any of your property was taken as evidence, you have the Right to get it back as soon as possible.
- To be given information about the offender following a conviction. Where eligible, you have the Right to be automatically referred to the Victim Contact Scheme, which will provide you with information about the offender and their progress in prison, and if/when they become eligible for consideration of parole or release. Where applicable, you also have the Right to make a new Victim Personal Statement, in which you can say how the crime continues to affect you.
- To make a complaint about your Rights not being met. If you believe that you have not received your Rights, you have the Right to make a complaint to the relevant service provider. If you remain unhappy, you can contact the Parliamentary and Health Service Ombudsman.
While the new Code is to be welcomed, there are at least three challenges to be faced for it to become effective:
First, as the Government itself acknowledges, the existence of the code is not widely known amongst the general public. Their potential role in trying to ensure that the practices set out in the code are actually delivered won’t be fulfilled if they do not know about the code.
Second, there have been enough reports in the media in recent months which suggest that there is an urgent need for training on the content of the code in all criminal justice agencies – the police, prosecutors, the courts, the probation service, the parole board have all been criticised for ignoring victims.
Third, while the Victim’s Commissioner (currently Dame Vera Baird) has statutory responsibility to promote the interests of victims and witnesses; to take such steps as considered appropriate to encourage good practice; and to keep under the review the operation of the Code, a recent independent report argues that she lacks adequate legal powers to enable her to fulfil her responsbilities. The report recommends that the Commissioner needs additional powers to:
- Undertake effective review of the operation of the Code;
- Rely on the cooperation of bodies named in the Code when encouraging them to adopt good practice;
- Identify weakness in the implementation of the Code;
- Require action if bodies are found not to be complying with the Code;
- In the last resort and if necessary to clarify the law in the public interest, to bring appropriate legal proceedings;
- Receive and direct complaints from victims as users of services provided by bodies named in the Code;
- Conduct and commission research and training on, for example, what constitutes good practice and on victims’ emergent needs;
- Require changes to the Code if it is found to be inadequate;
- Ensure that Parliament is fully aware of victims’ needs, and upholds their entitlements and rights;
- Recommend changes to the law.
As the Government has stated that it wishes to introduce a new Victims Law, the Commissioner hopes that these proposals may be considered as a key element in the development of new legislation.
The new Victims Code may be found at https://www.gov.uk/government/consultations/consultation-on-improving-the-victims-code and follow the links to Government response, and Victims Code 2020.
The report on the Victims’ Commissioner’s powers is at https://victimscommissioner.org.uk/news/independent-report-calls-for-the-victims-commissioner-to-have-enhanced-powers-to-ensure-agencies-are-held-to-account/ – again follow the links.
Further information is available at https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crime
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 