Archive for the ‘Chapter 4’ Category
Enromous changes to the ways in which courts – both criminal and civil – and tribunals operate have already been foreshadowed in a number of policy documents published during 2016. Parts 2 to 4 of the Prisons and Courts Bill contain provisions that will give statutory authority to the changes that have been proposed.
The headline provisions may be set out as follows:
Part 2 creates new procedures in civil, family, tribunal and criminal matters.
It makes changes to court procedures in the Crown Court and magistrates’ courts to make processes and case management more efficient.
It allows some offenders charged with summary-only, non-imprisonable offences to be convicted and given standard penalties using a new online procedure.
It extends the use of live audio and video links, and ‘virtual’ hearings where no parties are present in the court room but attend by telephone or video conferencing facilities.
It makes provision which will apply across the civil, criminal and tribunal jurisdictions to ensure public participation in proceedings which are heard virtually (by the streaming of hearings), including the creation of new criminal offences to guard against abuse, for example by recording such stramed hearings.
It creates a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions.
It bans cross-examination of vulnerable witnesses – in particular those who have been the subject of domestic abuse – in certain family cases.
It confers the power to make procedure rules for employment tribunals and the Employment Appeal Tribunal on the Tribunal Procedure Committee and extends the membership of the Committee to include an employment law practitioner and judge or non-legal member.
Part 3 contains measures relating to the organisation and functions of courts and tribunals.
It extends the role of court and tribunal staff authorised to exercise judicial functions giving the relevant procedure rules committees the power to authorise functions in their respective jurisdictions.
It abolishes local justice areas, enabling magistrates to be appointed on a national basis, not just to a specific local justice area.
It replaces statutory declarations with statements of truth in certain traffic and air quality enforcement proceedings.
It makes reforms to the arrangements for the composition of employment tribunals and the Employment Appeal Tribunal.
It enables the High Court to make attachment of earnings orders for the recovery of money due under a judgment debt, as far as practicable, on the same basis as in the County Court.
Part 4 contains measures relating to the judiciary and the Judicial Appointments Commission.
It enables more flexible deployment of judges by enabling them to sit in different jurisdictions.
It brings the arrangements for the remuneration of judges and members of employment tribunals – currently undertaken by the Secretary of State for Employment – under the remit of the Lord Chancellor.
It rationlises the roles of judges in leadership positions who will support a reformed courts and tribunals system. (This includes provision to abolish the statutory post of Justice Clerk; this role will continue, but those qualified to be Clerks will also be able to undertake analogous work in other court/tribunal contexts.)
It gives the Judicial Appointments Commission the power to carry out more work (not directly related to judicials appointments) on a cost-recovery basis.
Source, Explanatory Notes to the Prisons and Courts Bill 2017, available at https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/en/17145en02.htm
Following a review of the governance arrangements for the Independent Police Complaints Commission, and a Government Consulation held in 2015, the Policing and Crime Act 2017 provides in section 33 and Schedule 9 for the Commission to be renamed the Independent Office for Police Conduct. It will continue to investigate complaints against the police, but will have a clearer governance structure.
This change is in part a response to survey evidence showing a lack of public confidence in the current IPCC.
The consultation, published on the same date, is at https://www.gov.uk/government/consultations/reforming-the-independent-police-complaints-commission-structure-and-governance.
As a former law Commissioner, I retain an interest in the progress being made with the implementation of Law Commission reports. Under the Law Commission Act 2009, the Government is required to publish an Annual Report setting out progress with the implementarion programme. All went swimmingly up to March 2015 – annual reports were duly published, as required.
But nothing in 2016. The Government has now (January 2017) published the sixth report on implementation, setting out progress between January 2015 and January 2016 – but ‘updated to the point of publication’ – i.e. including details of what happened during 2016.
So what happens now? It seems unlikely that there will be a further formal report until early 2018. Reports every other year might actually make good sense. But that is not what the legislation requires. So long as the legal requirement for an annual report is on the statute book Government should take note of it.
Turning to the content of the report itself, if has to be said that, while no reports from the Law Commission have been definitively rejected by the Government, the list of reports still under consideration by the Government is considerably longer than the list of reports implemented either wholly or in part.
The main success stories were in the areas of consumer rights, contempt of court by jurors, and the rights of third parties against insurers.
Looking to the future, the administrative burden that will inevitably be associated with the Brexit negotiation is likely to result in even slower implementation of reforms which – by definition – will have lower political prioroty.
For details of the Implementarion report, see https://www.gov.uk/government/publications/report-on-the-implementation-of-law-commission-proposals-january-2015-to-january-2016
The Consultation Paper, Transforming our Justice System, has little to say on further reforms to the Family Justice system.
It has been undergoing radical change over the last few years, following publication of the report by David Norgrove and the creation of the single family court. The Government clearly wants work in progress to continue.
Progress with these reforms is kept under active review by the President of the Family Division, Sir James Munby, who now issues regular newsletters on developments – the latest is the subject of a separate blog item.
i. Streamlining procedures and encouraging a balanced approach: We areworking to simplify our procedures and put entire services online wherepossible, carefully designed to be intuitive and easy to follow. Many relativelystraightforward tribunal decisions do not require full physical hearings, so whereappropriate, judges will be making decisions based on written representations,hearings will be held over telephone or video conference and specially trainedcase officers will help cases progress through the system. All of these changeswill make the process quicker and easier to deal with for all parties involved in acase.ii. Digitising the Social Security and Child Support Tribunal: This will be one of thefirst services to be moved entirely online, with an end-to-end digital process thatwill be faster and easier to use for people that use it.iii. Simplifying panel composition: Another factor in taking a balanced, tailoredapproach to tribunal cases is making sure the panels that make decisions intribunals are designed to best suit the circumstances of the case. Most tribunalscurrently reflect historic arrangements that may be out of date and do not tailorthe expertise of the panel according to the case. We propose to revise thecurrent arrangements for setting panel composition to make sure that thatappropriate expertise is focussed on those cases that need it. We wouldwelcome views on how best to achieve this.iv. Reforming employment tribunals: The Employment Tribunals deal with a hugevolume of claims every year – c. 83,000 in 2015/16. They work on similarprinciples to many other tribunals and the civil courts, but currently have anentirely separate structure, including a specific appeals tribunal. We areconsidering whether the new approaches being adopted elsewhere in thejustice system could be applied to the employment jurisdiction.
i. Introducing a new online process for resolving claims: In line with plans across all jurisdictions, we will move more cases away from physical court rooms. Building on Lord Justice Briggs’ proposals in his Civil Court Structures Review we will create a new process to resolve many disputes entirely online, using innovative technology and specialist case officers to progress routine cases through the system and reserving judicial time for the most complex cases. We will create a new, streamlined Rules Committee to design this new system and keep the processes simple. When hearings are required, they may be held over thetelephone or video conference, focusing court resources on the most complex and difficult cases. This will mean that cases should reach a quicker resolution.ii. Encouraging parties to resolve disputes themselves where possible: We willincrease signposting to mediation and alternative dispute resolution services tohelp people avoid court for minor disputes that would be better handled privately,without needing the court to intervene.iii. Extending the fixed recoverable costs regime: Fixed recoverable costs are legalcosts which can be recovered from the losing side by the successful party to aclaim, at a prescribed rate. (For civil claims, these are set out in the CivilProcedure Rules). We will build on measures introduced in the last Parliament forlow value personal injury claims, to limit the level of legal costs recoverable.These measures provide transparency and certainty for all parties and aredesigned to ensure that the amount of legal work done is proportionate to thevalue of the claim. We are keen to extend the fixed recoverable costs regime toas many civil cases as possible. The senior judiciary will be developing proposalson which we will then consult.iv. Civil enforcement: We will give the [county court] powers to issue attachment ofearnings orders to the High Court to create a simpler, more consistent approachto enforcement, and make sure more people can get the money they are owed.We will also commence the fixed deductions scheme (fixed table) provisions inthe Tribunals, Courts and Enforcement Act 2007 in the County Court andintroduce fixed tables in the High Court, providing transparency and certainty ofthe rate of deductions from debtors’ earnings to pay back their creditors.v. Replacing statutory declarations in county court proceedings with a witnessstatement verified by a statement of truth: We will replace outdated and currentlyinconsistent procedures, which are inconvenient for people to use and resourceintensive to administer, with a more modern digital approach but keeping strongpenalties where a statement of truth is found to be false.
i. Aligning the criminal courts: Magistrates’ courts and the Crown Court deal withdifferent levels of criminal offence, but they must work better together to provide amore efficient service. We are working with the judiciary on structural andprocedural changes that will give the senior judiciary clearer oversight of, andflexibility to manage, judicial leadership in the criminal jurisdiction. This will enablethe Crown Court and magistrates’ courts to operate more closely together –stronger leadership and alignment will improve court performance for everyoneinvolved. To support this, we will bring the structures of the courts closer byreforming existing local justice areas and making it easier to transfer cases betweenthe Crown Court and Magistrates’ Court when appropriate – starting in the rightplace will make the process simpler and easier for victims and defendants.ii. Making it easier for vulnerable and intimidated witnesses (including victims) to giveevidence: We will roll out the use of pre-trial cross-examination in Crown Courttrials, allowing vulnerable and intimidated witnesses to pre-record their cross-examination, meaning the witness does not always need to attend the trial itself. Apilot found that this procedure meant witnesses gave evidence in half the time itwould take at trial. We believe that expanding this will reduce distress for victimsand witnesses and improve their overall experience of the justice system.
i.Introducing problem solving courts: We are exploring the opportunities for problemsolving methods further with the judiciary and collecting the evidence base. We arecontinuing to trial this approach in locations across the UK.ii. Using out of court disposals: We will use out of court disposals in appropriate cases,to help change offenders’ behaviour at the earliest possible opportunity– with swiftand certain consequences for offenders who do not comply with the conditionsattached.
i. Streamlining process: We are making changes to the way cases progress throughthe criminal courts, including removing unnecessary appearances in court (such asfirst appearances in magistrates’ courts for cases which can only be tried in theCrown Court), introducing a more efficient process to allocate cases to the CrownCourt or magistrates’ courts and allowing simple decisions to be made via a newonline system.
ii. Using technology to make processes more efficient: We will increase the useof video link and telephone and video conferencing technology to makehearings easier and more convenient for all, including victims and witnessesand criminal justice system agencies. We will work with the police to hold bailhearings by video link from police stations to reduce the need for someoffenders to be held in police cells overnight. In appropriate cases offenderswill be able to plead guilty, be convicted and sentenced all on the same day bylive video link from police stations.iii. Introducing a new collaborative IT system: The Common Platform is alreadybeing developed to provide a single case management IT system for usethroughout the Crown Court and magistrates’ courts. It will provide access tocase material and information to many agencies within the criminal justicesystem as well as the defence, victims and witnesses. Many current paper andcourt-based processes will be moved online, saving time and increasingefficiency for all court users.iv. Enabling online convictions and fixed fines: For certain routine, low-levelsummary, non-imprisonable offences with no identifiable victim, we propose tointroduce a system which resolves cases entirely online. Defendants would logon to an online system to see the evidence against them before entering aplea. If they plead guilty, they can opt in to (and can always opt out of) theonline system which allows them to view the penalty, accept the convictionand penalty, and pay their fine. Cases would be resolved immediately andentirely online, without the involvement of a magistrate.
Many of these proposals build on initiatives already started. However, the suggestion for more problem solving courts is potentially quite innovative and could lead to significant change to the ways in which the criminal courts have historically operated.