Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 4’ Category

Judicial decision making – tackling the problem of ‘cognitive bias’

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When coming to decisions, we all have a tendency to reach decisions that are not entirely logical or free from bias. We should all aim to limit the effects of such biases. This is particularly important for those reaching decisions in a judicial setting. However, this is hard to do unless we know about the biasses that may exist and how they may be countered.

In a recent edition of Tribunals Journal (2018 No 2) Simon Ward – a medic who also sits as medical member of the First Tier Tribunal – discusses five major types of cognitive bias that exist when we are required to weigh evidence before reaching a decisions. He also considers techniques for countering these biasses.

  1. Representativeness. Similarity or resemblance to a group is used to imply representativeness of that group rather than using the real probability of membership. Applying the actual base rate rather than the perceived occurrence rate of the factor being considered, is recommended so the correct likelihood is utilised.

  2. Availability. Easily recalled or available memories or experiences are used to predict or estimate an outcome rather than the actual objective occurrence. Using measures to reduce reliance on memory such as reminders, prompts and checklists, is advocated so that accuracy is maintained.

  3. Anchoring. Salient or prominent features are preferred and given undue influence or anchored onto before evaluation is completed. Slowing down decision making to allow time to evaluate matters fully is advised so the correct weight or apportionment is applied.

  4. Confirmation. Information that confirms our own pre-existing expectations or beliefs is filtered and selected in preference to opposing or contradictory aspects. Actively seeking out alternative possibilities or positions is suggested so as to challenge and counter subjective, partisan or partial viewpoints.

  5. Optimism. Overconfident or optimistic evaluations are made of how much we know and how reliably we know it, whilst our own knowledge limits are undervalued. Comparing the current evaluation to a reference group of similar membership is recommended so as to allow calibration of the current decision

The article gives further examples of the applications of these principles and how they may be applied in practice. The lessons are, of course, important for all decision-takers, not only judges. It is an issue to which, historically, little attention has been paid in judicial training. It is very interesting that a practicing tribunal member should be seeking to share his expertise on this often misundertood issue.

The full article is at https://www.judiciary.uk/wp-content/uploads/2018/03/tribunals-journal-edition2-2018.pdf pages 2-9.

 

 

 

 

 

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Written by lwtmp

March 4, 2019 at 12:58 pm

Public Legal Education: the Solicitor General’s vision

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In the past, the Attorney-General tried to promote the cause of Public Legal Education. This role seems now to have been delegated to the Solicitor-General.

In October 2018, the current post-holder, Robert Buckland MP launched a new ‘vision’ to which he hoped interested organisations would sign up.

The Press Release stated:

The statement creates a shared vision for the PLE community to aspire to which will help drive forward legal education initiatives. The statement reveals 7 goals for where PLE might be in 10 years’ time.

The goals are:

  1. PLE will be supported by a robust evidence base, showing what the need is and what works best.

  2. PLE will be of high quality, maintained to ensure that it remains accurate and accessible and useful for the people who need it.

  3. PLE will be universal and reach across all demographics, prioritising children, young adults and vulnerable groups

  4. PLE will be scaled up through delivery by the legal community

  5. PLE will harness technology and be delivered through innovative methods, both on and offline

  6. PLE will be embeded into public services and government departments

  7. PLE will be understood as beneficial and utlised by other sectors

Whether much can be achieved without additional investment in the development of PLE must be a moot point, but I suppose that a statement such as this is better than nothing. The statement was launched at an event organised by the All Party Parliamentary Group on Public Legal Education and Pro Bono legal work.

See https://www.gov.uk/government/news/our-vision-for-legal-education

Written by lwtmp

November 21, 2018 at 3:51 pm

Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review

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In June 2018, I noted here the critical report from the National Audit Office  – published in May 2018 – on the Transformation: Courts and Tribunals Programme 2022.

The NAO report was reviewed by the Public Accounts Committee , which took evidence from the Ministry of Justice and HM Courts and Tribunals Service. In July 2018, it published a pretty brutal report which listed a number of concerns about the programme and set out a number of recommendations on the way forward.

The PAC found, in summary:

  1. It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
  2. It found that HMCTS had failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes.
  3. Despite revising the timescale, it thought that HMCTS’s imperative to deliver at such a fast pace risked not allowing time for meaningful consultation or evaluation and could lead to unintended consequences.
  4. The Committee thought HMCTS had not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable.
  5. It found that, one third of the way through the programme, the Ministry of Justice still did not understand the financial implications of its planned changes on the wider justice system.
  6. The Committee remained concerned that the Ministry of Justice was taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.

In relation to findings 1, 2 and 4 above, the Committee wanted HMCTS to start producing update reported on a regular 6 month basis, starting in January 2019.

In relation to finding 3, it wanted, by November 2018, HMCTS to publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.

In relation to findings 5 and 6 it recommended regular updates from the Ministry of Justice, again starting in January 2019.

The Government has just announced that it has agreed to all the PACs recommendations.

As I said in my original comment on the report from the National Audit Office, my personal view is that it is essential that the justice system is modernised. Doing nothing is not an option. While stern criticism may well help to ensure that the Director of the reform programme keeps her eye on the ball, I also think that it is important to support those working on the reform programme. Such harsh criticism could be extremely undermining of staff confidence and could paradoxically increase the chances of some of the negative outcomes listed by the Committee coming to fruition.

I will keep readers of the blog posted as and when new material is published.

The NAO report is at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/

The PAC report is at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm

The Government’s response is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746797/CCS001_CCS1018676736-001_Treasury_Minutes_Gov_Resp_43-58_Cm9702_Web_Accessible.pdf

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Transformation: Court and Tribunals 2022 – progress reports

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I have observed before that it is quite hard for someone outside HM Court and Tribunal Service to keep up to date with progress with the Transforming our Justice System, now Transformation Courts and Tribunals 2022, reform programme.

For some time there has been an occasional blog, setting out information about a number of initiatives.

In recent months, a monthly Bulletin (also called an electronic Newsletter) has been launched, the latest of which, published on 1 Oct  2018 contains links to a detailed report Reform Update, Autun 2018, setting out the story so far.

The transformation programme is a very substantial one – it consists of some 50 projects. Not all of them have yet started and very few have as yet been completed. Many ideas are, quite rightly, being tested and evaluated before being nationally rolled out.

The easiest way to get an overview of the projects and their progress is to look at the summary table of the report (pp 22-26).

I will be adding further detail on these projects, dividing the information into broad subject headings.

The monthly bulletin can be accessed by clicking on the link under the heading Newsletter at https://www.gov.uk/government/news/hmcts-reform-programme.

The Reform Update report can be seen at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf

The Inside HMCTS blog can be accessed at https://insidehmcts.blog.gov.uk/

 

 

 

 

 

 

 

The work of the Law Commission: Justice Committee inquiry 2018

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In the summer 2018, the House of Commons Justice Committee announced that it would start an inquiry into the work of the Law Commission. To date it has received oral and written evidence from the Law Commission.

The evidence shows that over the last 8 years, the core funding for the work of the Commission has been cut by over 50%.

To make up the short-fall, the Commission has been undertaking a number of projects funded by Government Departments, which fall outside the programme of Law Reform which the Commission had itself determined and agreed with the Government.

In oral evidence, the then Chair, Sir David Bean made the point that, while funded projects were important, it could mean that other important projects would have to be dropped or postponed, because they did not fit the political priorities of the day.

The final outcome of the inquiry is currently awaited.

The written and oral evidence is available at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/work-of-the-law-commission-17-19/publications/

Written by lwtmp

September 25, 2018 at 12:26 pm

Posted in Chapter 4

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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/

 

 

 

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