Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 4’ Category

Improving Immigration and Asylum procedures

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Immigration and asylum is always controversial. People have strong view, both for and against current immigration policy and practice. But these policies are underpinned by a legislative framework (albeit a very complex one) and if we believe, as I do, that upholding the rule is an important societal value, then it is important that those impacted by our law on immigration and asylum should be able to rely on decisions that are made in accordance with the law, and that there should be rights of appeal where something has gone wrong.

For a number of years, however, the immigration and asylum appeals process has been under close government scrutiny. In the early part of the 21st century, the concern was with the huge numbers of immigration cases being taken on judicial review to the High Court. More recently, most of these cases were taken away from the High Court and transferred to the Immigration and Asylum chambers of the First Tier Tribunal and the Upper Tribunal.

However, numbers remained high. In this context, there were concerns that too many cases brought were unmerited, being used as a delaying tactic to postpone deportation; and that some of those providing advice and assistance in immigration cases were not providing a properly professional service.

As part of its major series of reports on the justice system, written to assist the Transformation of our Justice System programme led by HM Courts and Tribunals Service, JUSTICE, the all-party Human Rights group, has just published a report Immigration and Asylum Appeals – a Fresh Look. (I declare an interest, I was a member of the working party, chaired by Sir Ross Cranston, that wrote the report.)

In it they try to take a dispassionate look at the problems and challenges which face the immigration and asylum appeals procedure. Their approach is to look at each of the steps through which a case may go in order to  identify difficulties and recommend practical change.

The report is quite detailed. In outline, it argues:

Home Office refusal decisions The Working Party’s view is  that better Home Office decision-making – with more emphasis on getting it right first time – is the key to delivering a better appellate system;

The application process for immigration and asylum appeals. Here the working party argues that more detailed attention needs to be paid to the move to online processes. At the same time the working party addresses the issue of unsupervised, unqualified and poor quality representatives purporting to provide advice and assistance to appellants;

Appeals against adverse decisions of the Home Office on immigration and asylum matters in the First-tier Tribunal (Immigration and Asylum Chamber). This examines the important role of tribunal case workers in moving cases forward. It also wants to see stronger judicial case management to improve tribunal efficiency.

Hearings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). This section of the report focusses in particular on video-conferencing and video-hearings, recognising the potential advantages of these models. At the same time, the report stresses the fundamental principles that should govern any expansion in their use and where they will not be appropriate.

Appeals to the Upper Tribunal (Immigration and Asylum Chamber), Judicial Reviewapplications and appeals to the Court of Appeal. This part of the report focusses on the multiple stages that may be gone through when seeking permission to appeal. The working party considered the tension between the important right of review in this jurisdiction and the pressure on the system that flows from too many appellate stages. While not recommending removing rights of appeal, the report outlines ways to streamline this process.

A key theme to emerge from the report is that there needs to be much better communication between the parties.The Working Party considers how this might be facilitated both at the pre-hearing stage and on a continuing informal basis.

Detailed recommendations are made on ways to improve the management of cases and to reduce the number of unnecessary appeals – to the benefit of all participants in the system and the administration of justice more generally.

The above note has been adapted from the report which is available at https://justice.org.uk/new-justice-working-party-report-on-immigration-and-asylum-appeals/

 

 

 

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Diversity in the Judiciary: slow progress

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The judicial diversity statistics were published on 12 July 2018. They are based in information as at 1 April 2018.  The statistics show there has been further, albeit slow, progress in the appointment of women in judicial posts; there has been some progress, though less than for women, in the appointment of those from Black and Ethnic Minorities groups as judges. that:

  • 29% of court judges and 46% of tribunal judges were female. 50% of non-legal members of tribunals were female.
  • Around half of court judges aged under 50 are female.  Females outnumber males among tribunal judges at all age groups under 60.
  • 24% of Judges in the Court of Appeal and in the High Court were female.
  • 41% of Upper Tribunal Judges were female.
  • Since 2014 there has been a 5-percentage point increase in female representation among court judges.
  • 8% of judges identified as BAME (7% of court and 11% of tribunal judges); non-legal tribunal members 17%
  • BAME representation among court judges aged 40 or over (98% of judges) was only slightly below that of the working age general population in each age band, while BAME representation among tribunal judges was higher than that of the working age general population at all age bands from 40 and over. Non-legal members have considerably higher BAME representation than that of the working age general population at all age groups.
  • A third of court judges and two thirds of tribunal judges are from non-barrister backgrounds.
  • More than half of magistrates were female (55%)
  • 12% of magistrates declared themselves as BAME.
  • There were very few magistrates aged under 40 (4%) compared with 55% of magistrates who were aged over 60.

On 27 June 2018 (outside the period used for the report) the appointment of three Lady Justices and four Lord Justices of Appeal were announced. On 9 July 2018 the appointment of five High Court Judges were announced, three of which were male and two of which were female. These will be reflected in the statistics for 2019.

The full report is available at https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2018/

There are two major challenges relating to judicial appointments which have been aired recently.

First, there are concerns at the significant reduction in the numbers of Lay Justices who sit in Magistrates’ Court.

Second, there are concerns about unfilled appointments to the High Court, attributed to recent reductions in the pay and benefits associated with these appointments. This is an issue currently under review by the Senior Salaries Review Body. The outcome of the consultation is currently awaited. It was the subject of a recent speech given by the Lord Chief Justice.

See https://www.gov.uk/government/consultations/major-review-of-the-judicial-salary-structure

The Lord Chief Justice’s speech is at https://www.judiciary.uk/wp-content/uploads/2018/07/20180704-lcj-speech-mansion-house-speech.pdf

 

 

Written by lwtmp

July 12, 2018 at 10:42 am

Preventing digital exclusion

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A great deal of effort is currently being put into finding ways of using IT to deliver legal services, whether in the form of: providing legal advice and assistance to those who need it;  conducting various types of legal activity/process on-line; dealing with disputes online.

In general, the modernisation of the practice and procedure of the law through IT is to be welcomed. At the same time, there are concerns that some of the most vulnerable in society may be excluded from this brave new world. They may not have easy access to computers, or the ability to use them. In rightly encouraging digital solutions, at the same time policy makers need to ensure that the most vulnerable are not left behind.

In a recent policy paper, the human Rights group JUSTICE has drawn attention to the importance of ensuring that people are not excluded from the rapidly developing digital legal world.

In their report Preventing digital exclusion from online justice (published in June 2018), they analysed the potential issues that those engaged in the reform of legal procedures need to bear in mind.

The report makes a number of recommendations, directed primarily at HM Courts and Tribunals Service. They include:

  • Greater investment in “trusted faces” in “trusted places” i.e. services already providing digital support and internet access.
  • Considering the specific challenges of providing support to the digitally excluded, especially hard to reach cohorts – including testing Assisted Digital services in regions where the internet may be difficult to access. (Assisted Digital envisages a flexible mix of telephone, webchat, face-to-face, and paper-based support services. HMCTS is commissioning a programme of work to evaluate what types of support and in what combinations works best.)
  • Paying specific attention to highly digitally excluded groups, like homeless people and detainees.
  • Designing online justice services with an independent “look and feel” to reflect the constitutional independence of the courts.
  • Maximising the benefits of the “multi-channel” approach – helping people move with ease between digital access, phone assistance, face-to-face assistance, and paper.
  • Ensuring online justice services cater for the most affordable and ubiquitous mode of digital interaction: mobile technology.
  • Conducting end-to-end pilots of online justice services, learning from hearing and enforcement stages what is required at earlier stages.
  • Researching how people behave in an online environment and choices between Assisted Digital channels.
  • Collecting and making available the widest range of data possible to support research by external experts.

Internationally, there is a great deal of experiment going on with different forms of communicating advice and assistance. There are being kept under review by Professor Roger Smith who, with funding from the Legal Education Foundation, provides – among other things – an annual review of development in the use of IT to increase access to justice. He also writes a blog which looks in mor detail at specific initiatives relating to trying to improve access to justice – not just through the use of new technologies but also new ways of funding them such as crowd funding.

For those interested in how the application of new technologies might change ways in which the delivery of legal services are undertaken, this is an outstanding resource – full of links to detailed initiatives. At the same time, the need for realism in potential impacts is also stressed. It is important not always to believe the hype surrounding new applications.

The JUSTICE report is at https://justice.org.uk/new-justice-report-on-preventing-digital-exclusion/.

The Annual Reviews of digital delivery of legal services can be found at https://www.thelegaleducationfoundation.org/digital/digital-report.

Roger Smith’s blog on developments in Law, technology and Access to Justice is at https://law-tech-a2j.org/publications/

Also relevant is the report, published in July 2018, from the Centre for Justice Innovation, which also looks at public attitudes towards the greater use of IT in the justice system.

See http://justiceinnovation.org/portfolio/just-technology-emergent-technologies-justice-system-public-thinks/

 

 

 

Transforming the Justice system – views from the National Audit Office

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In this blog, I have tried to keep readers abreast of developments with the major Transformation of the Justice system programme. I have observed that this is not always easy and depends on keeping an eye out for press releases, blogs and now the new monthly e-bulletin issued by HM Courts and Tribunals Service.

In May 2018, the National Audit Office (NAO) published its first appraisal of how the programme is going.

Obviously the NAO is supportive of the aims of the programme, which it summarises as follows:

In 2016, HMCTS set up a portfolio of change programmes that will introduce

new technology and working practices to modernise and upgrade the justice system.

By March 2023, HMCTS expects to employ 5,000 fewer staff, reduce the number of
cases held in physical courtrooms by 2.4 million cases per year and reduce annual
spending by £265 million. Savings will come from lower administrative and judicial staff costs, fewer physical hearings and running a smaller estate. As well as making savings HMCTS expects the reformed system to work better for all those involved, use court time more proportionately, and make processes more accessible to users.

The NAO report helpfully reminds readers of the scale and scope of the overall programme:

The HMCTS change portfolio consists of several related programmes, which in turn
are made up of many individual projects. The major programmes are:
• The HMCTS Reform Programme which is modernising processes and systems
to reduce demand on courts by moving activity out of courtrooms. For example,
it will introduce online services and digital case files and expand the use of video
technology in hearings.
• The Common Platform Programme which is developing shared processes
and a digital criminal justice case management system to share information
between HMCTS, the Crown Prosecution Service and the police. It is jointly
managed by these organisations.
• The Transforming Compliance and Enforcement Programme (TCEP) which
is upgrading systems in HMCTS’s National Compliance and Enforcement Service,
used to enforce court orders such as penalties and compensation.
As part of these programmes, HMCTS is also reducing and modernising the
court and tribunal estate and creating cross-jurisdictional hearing centres and national ‘customer service centres’. These will centralise case management and administration and provide support to the public, judges and lawyers on civil and criminal matters.
The NAO makes some rather obvious observations:

1 The scope of the programme is challenging

2 The timetable has been expanded

3 The scope of some projects has been reduced

4 Progress has been slower than expected

5 Costs have risen and likely benefits decreased

6 There remain funding gaps for the later stages.

The NAO notes that many of these points have been taken on board within HMCTS. Nonetheless, the NAO argues that more should be done to demonstrate in detail how the reformed system will work. It states that it is important to sustain the committment of all those involved in the design and delivery of the new service. It implicitly criticises the Ministry of Justice for its failure to reintroduce the legislation that will be needed to ensure that aspects of the reform programme can be implemented. The NAO warns that the scale and spped of change may result in changes having unexpected consequences. And as much of the anticipated savings arise from reductions in staff, this could actually lead to an inability to deliver the service.

The public response of HMCTS has been upbeat – as indeed it has to be. A Press Release acknowledges that the programme is challenging; it summarises a number of specific changes that have been delivered; and remains confident that the programme will be successfully delivered.

My own view is that it is very important that the transformation programme is delivered. But the managerial challenge of delivering a large scale change should not be underestimated. To date, key judicial figures have been working with HMCTS to promote the need for and advantages of change. Continued judicial leadership will be essential. But I think it would be wise to develop a wider group of ‘change champions’, particularly within the judiciary more broadly and from  the legal professions. Many practitioners will accept that the current system does not serve the public well. Many will have good ideas for how things could be done more efficiently and to greater public benefit. Giving them the encouragement to voice their support for change would be highly desirable.

The NAO report is at https://www.nao.org.uk/wp-content/uploads/2018/05/Early-progess-in-transforming-courts-and-tribunals.pdf.

The HMTCS Press release is at https://www.gov.uk/government/news/hmcts-response-to-national-audit-office-report-on-court-reform-programme?utm_medium=email&utm_source=

Search warrants – reform proposals

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As a keen follower of the work of the Law Commission (I was once a Commissioner), I confess I had not spotted the fact that the Commission was undertaking work relating to the law on search warrants. It did not get a mention in either its 12th or 13th programmes.

The reason for this is that in December 2016, they were give a specific commission by the Home Office to undertake work in this area. The first fruits of this project have now been published in the form of  a Consultation Paper setting out the Commission’s initial ideas as to how the law might be reformed.

A search warrant is a written authorisation that allows an investigator to enter premises to search for material or individuals. Search warrants are usually issued by a court following an application by a police officer or other investigator. Most search warrants authorise the investigator to seize and retain relevant material found during the search.

Surprisingly, perhaps, detailed analysis of the law reveals that there over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984, are used to look for evidence of a criminal offence.  More specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials or to rescue people or animals in danger or distress. Other powers relate to complex financial or other types of specialised investigation.

The Commission identified a number of problems with the current law:

  • the sheer number of provisions, coupled with their complexity, leads to a confusing legislative landscape;
  • there is inconsistency across search warrant provisions and in the procedure for obtaining a search warrant. Importantly, there is inconsistency in the applicability of statutory safeguards and the protection afforded to particular categories of material;
  • a large proportion of the legislation, in particular the Police and Criminal Evidence Act 1984, predates the advent of electronic material and risks failing to deal with emerging digital technology and the forms in which criminal activity now takes place; and
  • the number of appeals generated by search warrants legislation, and the legal fees incurred, creates excessive cost for all parties.

In the light of their analysis, the Commission has made proposals to:

  • simplify the law and procedure governing search warrants by rendering it more rational and accessible at all stages of the search warrant process;
  • make the law fairer by extending protections, improving judicial scrutiny and making the law more transparent;
  • modernise the law to ensure that it reflects the changing nature of investigations and is equipped to deal with current technology; and
  • make the law more cost-effective by introducing a streamlined way to obtain a search warrant and a new procedure to challenge and correct procedural deficiencies.

The consultation runs until 5 September 2018.

For further details and links to the consultation go to https://www.lawcom.gov.uk/project/search-warrants/

 

 

 

 

 

Written by lwtmp

June 7, 2018 at 9:35 am

Keeping up to date with the Transformation of our Justice System project

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I have commented before that it is quite hard for those outside Government and the Judiciary to keep abreast of developments with the Transformation project. Occasional blog items from HM Courts and Tribunals service are useful but don’t necessarily pick up all that is going on.

I therefore welcome the announcement that from June there is to be a monthly e-bulletin devoted to the programme. Those interested are able to subscribe to the service, thereby receiving regular updates.

The first edition is available at https://content.govdelivery.com/accounts/UKHMCTS/bulletins/1f03e7b

Transforming the Justice system – maintaining the estate; answering the phones; better listing

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I have noted many of the developments that are currently taking place within  courts and tribunals, arising from the Transformation programme that has been on-going for the past couple of years. Much of the emphasis has been on the design and development of new practices and procedures – e.g. pilot schemes relating to the use of on-line courts, or the digitization of procedures

A recent blog from the Head of HM Courts and Tribunals Service, Susan Acland-Hood, notes that the transformation programme is not just  the use of high-tech innovations. It also includes more bread and butter issues, which nonetheless affect the public and those who work in the courts.

In her recent post, she notes three specific examples of investment, designed to improve the day-to-day operation of the courts and the court service.

1 Maintenance and repair. Many court buildings suffer from heating systems that do not work, lifts that do not work, and a generally drab physical environment. The modernisation programme includes improvements to the overall environment of courts and tribunals.

2 Answering the phone.  Investment is being made in a number of call centres whose task will be to answer questions directed to a number of courts – county courts and magistrates courts. This is designed to ensure that calls don’t go unanswered, especially in smaller courts where there may be insufficient staff to handle all the incoming calls.

3 Tacking delay.  The blog notes that the number of outstanding cases in the Crown Court is at the lowest level since 2004; the time taken from first listing in the Magistrates’ Court to completion at the Crown Court has been decreasing since the peak of 196 days in 2015 to 175 days in 2017. (It is not clear whether this is due to greater efficiency or because few cases are coming into the criminal justice system.) It also note the positive impact of the use of single-justices hearings to reduce delay.

Forther information is available at https://insidehmcts.blog.gov.uk/2018/05/17/reform-means-getting-the-basics-right-too/

 

 

Written by lwtmp

June 4, 2018 at 10:01 am