Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 2’ Category

Independent Review of Administrative Law

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In an earlier blog (13 July 2020), I noted the House of Lords Library paper on the proposed Constitution, Rights and Democracy Commission, an idea contained in the Conservative Party manifesto for the 2019 General Election.

Although no further steps towards the creation of the Commission have been announced, at the end of July 2020 the Government announced that it was establishing an independent review of administrative law to look in particular at judicial review – the power of the courts to review and where necessary overturn a decision made by Goverment.

Governments frequently complain that the use of judicial review can prevent them from taking decisions they think are necessary. Defenders of judicial review argue that the principle of the rule of law demands that executive/administrative actions can only be taken if they are authorised by law.

The Independent Review, chaired by Sir Edward Faulks QC, a former Minister of State for Civil Justice, has been asked to examine a number of questions relating to judicial review.

The Terms of Reference for the Review state that the Review should

  • examine trends in judicial review of executive action,  in particular in relation to the policies and decision making of the Government;
  • bear in mind how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law;
  • consider data and evidence on the development of JR and of judicial decision-making and consider what (if any) options for reforms might be justified.

More specifically the review has to consider:
1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality (an area of law developed by the judges) should be codified in statute;
2. Whether the legal principle of non-justiciability  (i.e. that certain types of decision cannot be reviews in the courts) requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government;
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful; and
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing – i.e. deciding who can bring an action by way of judicial review; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners (the ability of bodies not parties to an action to intervene in the action by providing specialist advice or assistance).

The Review has been asked to report by the end of 2020. Recommendations will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancashire, Michael Gove.

Although the announcement does not state this, the creation of this panel is, at least in part, a result of the decision of the Supreme Court in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41. The issues in the case were noted in this blog on 24 September 2019. Although it was argued that the Prime Minister’s use of the prerogative to prorogue Parliament (i.e. bring a Parliament to an end prior to the holding of a General Election) was non-justiciable – i.e. it could be reviewed by the Court, the Supreme Court rejected this argument and found exercise of the power was justiciable. Further, there the effect of the Prime Minister’s decision was to prevent all Parliamentary activity for 5 weeks, this was far more than necessary to prepare for a General Election and so went beyond the scope of his prerogative power and was unlawful.

The announcement of the review and links to the Terms of Reference are at https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review

The Supreme Court decision in the Miller case is at https://www.supremecourt.uk/cases/uksc-2019-0192.html

Counter-Terrorism and Sentencing Bill 2020

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So far as the legal system is concerned (and in many other contexts as well) the headlines have all been about dealing with Covid-19. But this does not mean we should not keep an eye on other developments which will have an impact on aspects of the legal system.

One example is the Counter-Terrorism and Sentencing Bill 2019-21, introduced in the House of Commons in May 2020, and which yesterday (21 July 2020) completed the Report Stage and Third Reading. It now proceeds to the House of Lords.

This Bill is a second response to two terror attacks which occurred in London – at Fishmongers Hall on 29 November 2019 and in Streatham on 2 February 2020.  Each attack was committed by a known terrorism offender who had been released automatically at the halfway point of their sentence without any input from the Parole Board. There was no provision to allow for an assessment of risk prior to release.

The first response was the enactment of emergency legislation, the Terrorist Offenders (Restriction of Early Release) (TORER) Act 2020. This was designed to ensure that terrorist offenders serving or sentenced to a determinate sentence could not be released before the end of their custodial term without the agreement of the Parole Board.

The Counter-Terrorism and Sentencing Bill 2019-21 develops the law on the handling of those found guilty of terrorist offences further. It has two broad objectives:

  1. Longer periods in custody

Reflecting the seriousness of the offences they have committed, the Government hopes that the changes will offer better protection for the public and more time in which to support the disengagement and rehabilitation of offenders through the range of tailored interventions available while they are in prison.

Among the measures in the Bill are:

  • Serious and dangerous terrorist offenders will spend longer in custody, by introducing the Serious Terrorism Sentence for the most serious and dangerous terrorist offenders. This sentence carries a minimum of 14 years to be spent in custody, with an extended licence period of up to 25 years.
  • This legislation removes the possibility of an early release from custody for serious and dangerous terrorist offenders, aged under and over 18, who receive an Extended Determinate Sentence.
  • This legislation increases the maximum sentence that the court can impose for three terrorism offences (membership of a proscribed organisation, supporting a proscribed organisation, and attending a place used for terrorist training), from 10 to 14 years.
  • The courts will be given power to find any offence with a maximum penalty of more than two years to have a terrorist connection. (This may result in a higher sentence than would otherwise be the case.)

2. Changes to the management and monitoring of terrorist offenders.

The measures in the Bill include:

  • extending the scope of the sentence for offenders of particular concern (SOPC) by expanding the list of terrorist and terror-related offences which attract the sentence, and creating an equivalent sentence for offenders aged under 18 in England and Wales, Scotland and Northern Ireland. This will ensure terrorist offenders have a minimum period of supervision on licence of 12 months following release.
  • extending the maximum licence periods for serious and dangerous terrorist offenders for offenders aged under and over 18.
  • extending the application of mandatory polygraph testing when on licence to terrorist offenders aged over 18.

The Bill’s measures will also

  • strengthen Terrorism Prevention and Investigation Measures (used by Counter-terrorism Police and the Security Services),
  • support the use of Serious Crime Prevention Orders in terrorism cases, and
  • expand the list of offences that trigger the Registered Terrorist Offender notification requirements. These changes strengthen our ability to manage the risk posed by those of terrorism concern.

Details of the Bill and background fact sheets are available at https://www.gov.uk/government/publications/counter-terrorism-and-sentencing-bill.

The Bill and the Explanatory Notes are at https://services.parliament.uk/Bills/2019-21/counterterrorismandsentencing.html

Proposed Constitution, Democracy and Rights Commission

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One proposal that caught the eye in the Conservative Party’s manifesto for the December 2019 general election was that, following the UK’s withdrawal from the EU, it would be necessary to look at “broader aspects” of the UK’s constitution. The idea was that a constitution, democracy, and rights commission should be established to examine the following issues:

  • the relationship between the government, parliament, and the courts;
  • the functioning of the royal prerogative;
  • the role of the House of Lords; and
  • access to justice for ordinary people.

Other areas would include examining judicial review and amending the Human Rights Act 1998 to balance the rights of individuals, national security, and effective government.

The Government has said that it wants to ensure a range of expertise is represented on the commission. It also wants the commission to evidence from third parties and civic society to inform any recommendations. However, there are currently limited details available on the remit, form, and composition of the commission.

Several commentators and academics have welcomed the general principle of reviewing the UK’s constitutional arrangements. However, some have expressed concern about the context of the commission, particularly coming after the Supreme Court found against the Government on constitutional issues.

Those interested in starting to think about the issues which the Commission, once established, might consider will find the Research Briefing paper, written by Charley Coleman from the House of Lords Library and published in late March 2020, to be an excellent introduction.

The briefing can be found at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0089/

Covid 19 and the English Legal System (5): Parliamentary inquiries (revised)

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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.

A big day in the Supreme Court: R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)

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Major cases raising fundamental constitutional issues are rare, which is why 24 Sept 2019 is a significant day. The supreme court ruled that the Prime Minister’s decision to prorogue Parliament for 5 weeks was unlawful.

For the Prime Minister, it was argued, in essence, that the prorogation of Parliament is an act which falls within the scope of the Prerogative (acts formerly taken by the monarch in person, now taken by Ministers). As an essentially political decision, it should not be capable of review by a court – in the technical language it was not ‘justiciable’.

The Supreme Court – sitting with 11 justices – ruled unanimously that it was possible for the courts to judicially review the exercise of prerogative power – to determine whether such exercise fell within the accepted boundaries for the use of such powers. In short, the review of the power to prorogue was a justiciable matter.

That alone did not mean that the Government had acted unlawfully. Prorogation is an important part of the Parliamentary calendar.  It brings one Parliamentary session to a close. Ministers then prepare a Queen’s Speech which sets out the Government’s legislative priorities for the coming 12 months. Members of the Supreme Court accepted that a prorogation for a short period was necessary, even though Parliament could not function during that period.

However, the justices accepted evidence (including evidence from the former Prime Minister Sir John Major) that in recent years prorogations tended to be for between 4 and 6 days.  That was the average amount of time needed to sort out the Queen’s Speech.

The key point about a prorogation is that it brings all the work that can be carried on in Parliament to a complete standstill. No Committees can work, no Parliamentary Questions can be answered. Prorogation is distinct from recess when Parliament does not sit (e.g. in holiday periods) but other Parliamentary business does continue.

Thus the issue in the present case was whether a 5-week prorogation was appropriate.
On this the justices were unanimous. They held unequivocally that such a long prorogation prevented Parliament from exercising its constitutional function of holding the Government to account.
The fallout from this decision is far from clear.
The Speaker of the House of Commons has announced that Parliamentary business will resume on Wednesday 25 September 2019. Will the Government take any steps to counter this decision?
One effect of prorogation is that Bills going through Parliament at the time of prorogation fall, and have to be reintroduced or carried over into the following session. (Where there is a general election, ‘carry-over’ is not possible.) What will happen in this instance?
Looking to the longer term, was one of the problems here that we do not have a written constitution in the United Kingdom that might have clarified in a basic law the process for prorogation? There are certainly some influential voices being heard that the time is approaching when we should adopt a written constitution.
All the written submissions made to the Supreme Court have been published on-line – as have all the hearings in the Court. This case will be studied by lawyers and politicians for years to come, and will divide opinion.
You can find all the material relating to the case at
https://www.supremecourt.uk/watch/prorogation/judgment.html,
https://www.supremecourt.uk/cases/uksc-2019-0192.html
https://www.supremecourt.uk/brexit/written-case-submissions.html

Prisoners’ voting rights: recent developments

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For over a decade there has been a stand-off between the UK Government and the European Court of Human Rights on the question of whether prisoners should have a right to vote. The law in the UK is that they should not. The European Court of Human Rights took the view that a blanket ban was a denial of the right to vote provided for in the European Convention on Human Rights.

The Coalition Government got as far as publishing a draft Bill setting out a number of options for resolving the impasse (which included doing nothing) in 2013. I noted this in this blog in August 2014. Since then the issue has gone very quiet.

It appears that towards the end of 2016, the Government did issue an undertaking to the Council of Europe that is would do something by the end of 2017. Readers of this blog might be forgiven for not spotting that, in fact, the Government has recently done just that. Not a Bill, as many of us has been expecting, but in the form of a Statement to Parliament.

On November 2nd 2017, the Secretary of State for Justice said (in part):

[T]he Government has considered this issue carefully. We have decided to propose administrative changes to address the points raised in the 2005 judgment, while maintaining the bar on convicted prisoners in custody from voting.

First, we will make it clear to criminals when they are sentenced that while they are in prison this means they will lose the right to vote. This directly addresses a specific concern of the [in the original ECtHR] judgment that there was not sufficient clarity in confirming to offenders that they cannot vote in prison.

Second, we will amend guidance to address an anomaly in the current system, where offenders who are released back in the community on licence using an electronic tag under the Home Detention Curfew scheme can vote, but those who are in the community on Temporary Licence, cannot.

Release on Temporary Licence is a tool typically used to allow offenders to commute to employment in the community and so prepare themselves for their return to society. Reinstating the civic right of voting at this point is consistent with this approach…

These measures will see no changes to the criteria for temporary release, and no offenders will be granted release in order vote.

Our estimate is that these changes to temporary licence will affect up to one hundred offenders at any one time and none of them will be able to vote from prison.

So, hey presto! No need for new legislation or amendment of the  Representation of the People Act 1983, but a simple change to Prison Service guidance.

The question this statement raises, of course, is whether this will be enough to satisfy the Council of Europe. My suspicion is that it may not, and that this will not resolve the issue once and for all. But it will probably be enough to kick the issue into the grass for a few more months – possibly longer.

The question of whether the European Court of Human Rights should have jurisdiction over this issue has recently been taken up in a book published by The Policy Exchange. In Human Rights and Political Wrongs: A new approach to Human Rights law Professor Sir Noel Malcolm argues that while Human Rights are very important, the way in which those rights have been interpreted and developed by the European Court of Human Rights has been inconsistent, and in some contexts has had the effect of undermining the authority of democratically elected governments. He argues that Human Rights should be limited to setting the boundaries of state power and that decisions on whether particular policies or decisions are in breach of Human Rights should be done by domestic courts.

I see the publication of this book as the first step in putting the question of whether we have a separate British Bill of Rights back onto the domestic political agenda.

The Secretary of state’s statement is at https://www.gov.uk/government/speeches/secretary-of-states-oral-statement-on-sentencing.

Professor Malcolm’s book can be downloaded free at https://policyexchange.org.uk/

 

 

 

 

Constitutional conventions

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Constitutional conventions are an important features of the UK constitutional settlement. As the conventions are not exactly rules in the normal sense, it can on occasion be hard to know what they are and when they apply. In 2011, the then Coalition Government published a statement of Constitutional Conventions that had been drafted by the then Secretary to the Cabinet Sir Gus O’Donnell. Although the work had been started at the request of the former Prime Minister, Gordon Brown MP, it was thought to be particularly helpful to guide the Coalition Government, led by David Cameron and Nick Clegg. The book was published in October 2011.
Recent events in the House of Lords – where a draft Statutory Instrument (which was designed, as part of the Government’s Welfare Reform plan, to cut tax credits to those in work) were not approved by a majority of the Lords, despite being approved in the House of Commons – have thrown a new spotlight on these conventional rules. (They have also reopened the wider issue of the composition of the House of Lords and whether or not it should become an elected body.)
The specific issue – relating to the approval of the Statutory Instrument already approved in the House of Commons – is to be subject to a review led by Lord Strathclyde.
This incident emphasises the point that while the process of government usually ticks over in a fairly ordered way, the lack of detail written rules can on occasion lead to considerable controversy.

The Cabinet Manual setting out the main laws, rules and conventions affecting the conduct and operation of government is available at https://www.gov.uk/government/publications/cabinet-manual

Written by lwtmp

October 28, 2015 at 6:19 pm

Prisoners’ Voting Rights: the view of the European Court of Justice

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I have written before about the stand off between the UK Government and the European Court of Human Rights on the question of whether the UK’s policy of prohibiting any prisoner from voting is compatible with the right to vote set out in the European Convention on Human Rights. (See 5 December 2012, 17 Oct 2013 and 21 Aug 2014.)

Although the issue has been seen largely as a matter arising from the European Convention on Human Rights, the issue also raises a question of European Law – namely whether a total ban on voting infringes the rights of citizens to vote in elections for the European Parliament.

The question was raised in the UK in the Supreme Court in 2013 as one concerning the equal treatment as between EU citizens residing in Member States other than that of their nationality. However, that principle would not apply to UK Citizens being detained in UK prisons. In any event, the EU legal principle of non-discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison. Thus,  the Supreme Court held on that occasion that EU law did not apply.

The issue has come back to the European Court of Justice in a case involving France: Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde Case C-650/13. (October 2015) Here the ECJ held that a Member State can maintain an indefinite ban on voting in European Parliament elections for certain nationals of that State, although such a ban must, be proportionate. In the case, Delvigne was convicted in March 1988 of a serious crime and sentenced to a term of imprisonment of 12 years. Under the (French) law in effect at the time, this resulted in a total loss of his civic right to vote. However, after release he could apply to have his right to vote reinstated. He did this in 2012, but his application was rejected.

Despite the fact that French electoral law was amended in 1994 to limit any voting ban to 10 years, the ECJ held that the original law was proportionate and would be upheld. This result was reached following analysis of  Articles 39 and 49 of the Charter of Fundamental Rights of the European Union.

There seem to be clear implications in this judgement for the UK. On the one hand, for those sentenced to substantial prison sentences, the position under the old law in France is arguably harsher than the law in the UK, where rights to vote are restored when a prisoner’s sentence is served. On the other hand, the position relating to those sentenced for shorter terms in the UK is arguably harsher than the position in France.

Of course, the ECJ ruling applies only to the right to vote in European elections. The wider limitations on prisoners’ right to vote, and the long-standing divergence of view between the ECtHR and the UK Government on the legal position in the UK, remain.

For details of the ECJ judgement see http://curia.europa.eu/juris/document/document.jsf?text=&docid=169189&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=242509

Written by lwtmp

October 15, 2015 at 3:35 pm

The changing constitution – abolition of the Select Committee on Political and Constitutional Reform

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Just over a year ago, (October 2014) I published a blog item here on a consultation by the Political and Constitutional Reform Select Committee of the House of Commons in which it explored the arguments for and against the adoption of a Written Constitution. It followed that with a rather anodyne report, published before the dissolution of the Coalition Government, suggesting that more work should be done on this.
It also suggested that the Committee should be reconstituted after the outcome of the 2015 Election was known.
Despite the fact that there is considerable discussion about constitutional change, particularly issues – such as English Votes for English Laws – which came out of the Scottish Referendum, the Select Committee itself has not been reconstituted.

For the Select Committee’s Final Report on this subject go to http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/599/59902.htm
Under the title ‘Consultation on A new Magna Carta?’ it attaches, as an Annex, a draft accessible summary constitution, with options for reform, written by Professor Robert Blackburn of King’s College London. This is an interesting contribution to a much wider debate.
For more detailed discussion about constitutional developments you need to look at the work of the Constitution Unit, based in University College London. See http://www.ucl.ac.uk/constitution-unit/

Written by lwtmp

October 12, 2015 at 3:04 pm

Revolution in the Justice system?

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On 23 June 2015, the Lord Chancellor delivered a major speech on his vision for the development of the Justice system. Mr Gove is not shy of taking on existing established practices – witness his battles with the teachers when he was Secretary of State for Education under the Coalition Government.

In his speech, entitled What does a one nation justice policy look like? he argues that the justice system is in need of fundamental reform if is it to deliver access to justice to ordinary people.

A potentially very important difference between what he was trying to do in the world of education and what he now seeks to do to the justice system is that for the latter, much of the initiative for reform is coming from the judiciary itself. They see the need for better use of court facilities, fundamental investment in IT which would enable much legal work to be done without attendance at courts, support for new ideas – in particular in civil justice – endorsing proposals recently set out by Justice in its report Civil Justice in an Age of Austerity. (see this blog, entry for 5 May 2015)

First reactions to the Lord Chancellor’s speech can be heard in a special edition of the BBC programme Law in Action which was broadcast on the same day. The discussion – by Sir Stanley Burnton, Dame Hazel Genn and Keir Starmer – provides a useful basis for understanding what may start to unfold in the justice system over the next five years

What is absolutely certain is that anyone starting the study of law should be aware of what is in the pipeline – things are likely to change pretty quickly.

To read the speech go to https://www.gov.uk/government/speeches/what-does-a-one-nation-justice-policy-look-like

To hear the Law in Action Broadcast go to http://www.bbc.co.uk/programmes/b05zktnf#auto

The Centre for Justice Innovation, whose work is mentioned in the programme has a website at http://www.justiceinnovation.org/