Archive for the ‘Chapter 4’ Category
Equal treatment: Guidance from the Judicial College
It should go without saying that, particularly in the legal arena, those who take part in proceedings before courts and tribunals need to feel that they have been treated equally.
This is, of course, easier said than done, as David Lammy’s report on the Criminal Justice System, published in 2017 showed. (See this blog 29 Sept 2017). But for many years first the Judicial Studies Board and now the Judicial College have offered guidance to judges (and by extension to others involved in the justice system) about the best ways to try to ensure that people are treated fairly.
Much of this focusses on the language that judges and others involved in the justice system use generally (for example in relation to litigants in person) and in relation to those from specific sectors of society, who may be defined by their religion, their ethnicity, their sexual orientation, mental or physical disabilities, their gender.
In February 2018, the Judicial College published an on-line updated revision to its ‘Equal Treatment Bench Book’. Bench books were originally devised as a handy guide to key issues which could sit on the judge’s desk, available for him to refer to it that seemed necessary.
I am not sure whether this particular Bench Book can be used in this way. For one thing, it is very long – well over 400 pages. And the issues raised are such that I would have thought judges would need to have considered them before a case or other proceedings have started. (It would not be desirable for a judge to stop in the middle of a sentence in order to look up how a particular person should be addressed.)
But I don’t agree, as some comments in the press have suggested, that the Equal Treatment Bench Book is an example of political correctness gone mad. It seems to me to be an honourable attempt to raise questions and address issues that arise in practice but that many judges may not have thought about before. (Indeed, I think there are some parts of the book that would be of interest to a wider readership.)
I set out the link to the text here, and invite readers to take a look at the Book and come to their own view on its value.
Practitioners and academics: new alliances
In my book Introduction to the English Legal System, I argue that legal academics play an important role in the development of our understanding of the law and that their role should be given more recognition than it sometimes has had in the past. (See Chapter 9, section 9.10).
Recently, however, my interest has been stimulated by stories in the professional legal press concerning a rather different collaboration between the world of legal practice and the academic world.
A number of firms, particularly those engaged in personal injury litigation, have been working with academic statisticians and ‘decision scientists’ to try to understand what are the variables that are in play when litigation is under consideration and thus trying to understand better the risks of taking particular cases on and to predict better the potential outcome of issues that are being litigated. This may help practitioners to decide whether a case should settle, or be fought through to trial.
The firms concerned think this may be beneficial both for small value large volume groups of claims, as well as high value claims. One finding that has emerged from this work is that the models that are being used suggest that the upper level of the Judicial College Guidelines on damages for different types of injury is almost irrelevant in most cases.
It is possible that this approach might also be used by the Courts and Tribunals service to analyse cases that pass through the courts. It might help, for example, in making determinations on which cases might be suitable for the small claims track or the fast track in the allocation of civil disputes in the county court – a possibility hinted at by Sir Ernest Ryder in a recent speech where he said:
Digitisation will, if we are sensible, provide us with the opportunity to gather data on the operation of our justice systems in ways that we have often been unable to before. It provides us with the opportunity to make our justice systems more adaptive; but again, only after proper scrutiny and discussion.
It seems to me that these initiatives will grow in number in the near future. What will be needed is proper evaluation of these tools to see whether they do in fact assist in both legal and judicial practice, and how they might be developed.
For press reports on these initiatives see https://www.legalfutures.co.uk/latest-news/hodge-jones-allen-embraces-predictive-modelling-pi-work; and https://www.legalfutures.co.uk/latest-news/leading-law-firm-joins-forces-lse-professors-find-ways-predict-litigation.
Sir Ernest Ryder’s speech is at https://www.judiciary.gov.uk/wp-content/uploads/2018/02/ryder-spt-open-justice-luxembourg-feb-2018.pdf
Going digital – piloting video hearings
The Transforming our Justice System reform programme has flagged the possibility of much more use of digital technology in the processing and handling of disputes. Following the announcement at the beginning of February 2018 that it is now possible to start divorce proceedings on-line (see this blog for 2 Feb 2018), we now have a new announcement about how cases might be heard using new technologies
This development, announced on 15 February 2018, concerns the piloting of video hearings in the Tax Tribunal. This initiative will be rolled out in a measured way, with potential participants being asked whether they would like their cases to be dealt with on-line.
It seems that the Tax Tribunal has been chosen for this experiment as it is presumed that many tax cases turn on rather complex points of law, rather than major disputes on questions of fact which might require the presence of parties in the same room.
This new announcement builds on another pilot, which ran in the autumn of 2017 in which a number of case management hearings in the Immigration and Asylum Chamber were dealt with through video hearings. The results of these seem to have been very positive and demonstrate that such issues can be dealt with more efficiently on-line without compromising standards of justice.
HMCTS do seem to be taking a measured approach to these developments, wanting to bring all those involved – judges, practitioners and litigants – with them, to ensure that these developments do meet user needs.
Further announcements will emerge in the months ahead.
To read more about the video Tax Hearing pilot, see https://www.gov.uk/government/news/video-hearing-pilot-launched.
For the HMCTS blog on these developments go to https://insidehmcts.blog.gov.uk/2018/02/15/video-hearings-can-make-a-difference-for-court-and-tribunal-users/
Controlling trolling? A job for the Law Commission
Although the Law Commission’s 13th Programme of Work was announced only in December 2017, the Commission has already had those plans amended by the Government asking whether changes to the law are needed to ensure that internet trolling can be controlled. More specifically the government has asked the Law Commission to review the laws around offensive communications and assess whether they provide the right protection to victims online.
This is a serious problem. Research shows that nearly a third of UK internet users were on the receiving end of trolling, harassment or cyberbullying in 2017.The Commission will review the current laws and set out how they apply to online communications. Its work be informed by developing Government policy in the Government Digital Charter. (See https://www.gov.uk/government/publications/digital-charter published in January 2018.)
Among issues to be addressed are the following:
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How the Malicious Communications Act 1988 deals with offensive online communications
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How the Communications Act 2003 deals with online communications
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What “grossly offensive” means and whether that poses difficulties in legal certainty
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Whether the law means you need to prove fault or prove intention to prosecute offensive online communications
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The need to update definitions in the law which technology has rendered obsolete or confused, such as the meaning of “sender”
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How other parts of the criminal law overlap with online communications laws
It is intended that thw work should be undertaken swiftly. A consultation paper is expected within 6 months.
For further detail see https://www.lawcom.gov.uk/government-asks-law-commission-to-look-at-trolling-laws/
Reshaping the Court estate: a further consultation
The programme of transformation of the justice system depends on the closure of a significant number of existing court buildings and reinvestment of the savings of running costs and the capital receipts from buildings that have been disposed of in a smaller but more efficient court estate.
In January 2018, Her Majesty’s Courts and Tribunals Service published a Consultation Paper setting out the basic principles on which detailed plans are now being developed. At the same time there were 5 more specific papers setting our proposals for closing courts in a number of areas, including Cambridge, the Thames Valley, London and Lancashire. There is nothing particularly new in this paper, though it does give interesting accounts of a number of initiatives currently on-going to deliver new ways of working in courts and tribunals.
The key aims are that there should be
- more videolinks and virtual hearings;
- digital service delivery, with a major reduction in the use of paper files;
- flexible opening hours;
- improved service delivery with much more work being undertaken online.
The number of court buildings will be reduced from around 530 buildings (a decade ago) to a total of 239 buildings in 2018. It is accepted that this will lead to some increase in travel time to reach those buildings, but the vast majority will still, according to HMCTS figures, still be within 2 hours travelling distance. As much work will in future be delivered without the need for lawyers and parties to be present in court, it is argued that this will further mitigate any inconvenience. What will be important will be to ensure that cases listed for a particular day are actually dealt with on that day.
The Consultation Paper reminds readers that the transformation policy is designed
- to enable existing and new buildings to be much more flexible in the ways in which they can be used;
- to ensure better public facilities – e.g. waiting rooms, rooms for clients to consult with their advisers;
- to ensure that the vulnerable are able to feel confident about using court facilities;
- to include of modern ICT to enable more work to be done online
- to support the needs of all the professionals who use the courts;
- to move towards an estate that provides dedicated hearing centres, while seeking
opportunities to concentrate back office functions in a smaller number of centres where they can be carried out most efficiently.
There will be resistance to some of these ideas. For example, the Bar has already argued against more flexible opening hours. It is said that this could be discriminatory against women barristers who may find it hard to take cases outside traditional working hours. While this is an issue that must be addressed, such arguments fail to acknowledge the fact historically the Court Service has only paid lip-service to the idea of delivering a service to court users. Many parties to litigation may find it more convenient to attend hearings outside of 10-4, Mondays to Fridays. The transformation programme provides a challenge to those who work in the courts to consider how they can deliver the service that clients want, when they want it.
The Consultation runs until 29 March 2018. The documentation can be found at https://consult.justice.gov.uk/digital-communications/transforming-court-tribunal-estate/
New Lord Chancellor and Secretary of State for Justice: David Gauke MP
In the good old days, Lord Chancellors came and went comparatively infrequently. Unlike their possibly more ‘political’ colleagues, Lord Chancellors seemed to float above the hurly-burly of day-to-day politics.
The reforms to the post of Lord Chancellor, introduced by the government of Tony Blair, resulted in major changes to the role and thus the office holder.
No longer did they have to be in the House of Lords. They no longer had to be professionally qualified as lawyers. In the last 2 and a half years, there have been no fewer than 4 Lord Chancellors.
The latest appointee, in January 2018, is David Gauke. Unlike his immediate predecessors, he is qualified as a Solicitor and has had experience of private legal practice.
I do not anticipate major changes of policy to arise from this new appointment. The Ministry of Justice is engaged in major programmes of work on the justice system, the prison system, legal aid – among others. What I think is needed is a period of stability to ensure that these important initiatives are actually delivered.
For further information see https://www.gov.uk/government/ministers/secretary-of-state-for-justice
You can read the Lord Chancellor’s speech at his swearing in ceremony at https://www.gov.uk/government/speeches/lord-chancellor-swearing-in-speech-david-gauke
You can see him deliver this speech at https://www.judiciary.gov.uk/announcements/live-stream-swearing-in-of-the-new-lord-chancellor-the-right-honourable-david-gauke-mp/
Law Commission: 13th Programme announced
After delay resulting from the calling of the General Election in May 2017, the Law Commission has just (14 December 2017) announced its latest programme of law reform projects which it intends to take forward over the next three years.
The list is an interesting one containing a wide variety of topics.
A number of these can be see to be a response to technological change. Projects on Automated Vehicles, Electronic Signatures, Intermediated Securities or Smart Contracts would not have been on such a list, even three years ago (when the 12th Programme was published).
The general area of property law attracts a number of projects. These include: Modernising Trust Law for a Global Britain, Registered Land and Chancel Repair Liability, Museum Collections, Residential Leasehold, and Unfair Terms in Residential Leasehold.
There is a number of projects that will examine how current processes, which affect the public, might be reformed. These include: Administrative Review, Employment Law Hearing Structures, and Simplifying the Immigration Rules.
Controversial issues concerning both the start and end of life are reflected in proposals to review Surrogacy and A Modern Framework for Disposing of the Dead.
In addition to these new projects, the Law Commission will continue to work on items brought over from the 12th Programme of work, including work on Sentencing, and Search warrants.
The Law Commission also lists a number of other topics which is considered for inclusion but which do not appear in the current programme.
Further details of all these projects can be found at https://www.lawcom.gov.uk/project/13th-programme-of-law-reform/
Transforming our Justice System: Transformation – Courts and Tribunals 2022
Despite the loss of the Prisons and Courts Bill 2017 at the General Election, held in June 2017, work on the Transforming our Justice System programme continues apace. (For those aspects of the reforms which need legislation, a replacement bill is expected shortly.)
Keeping up to date with the progress that has been made is hard, as most of the changes do not hit the headlines in the media. (About the only issue which has been subject to any public discussion has been criticism from the Bar about a pilot trialling the use of courts for longer periods during the day. The criticism focussed almost entirely on the inconvenience this would cause to barristers – no mention of the possibility that the public might prefer court hearings outside the traditional 10-4 Monday-Friday time frame.)
Specific developments can be noted by keeping an eye on Press Releases from the Ministry of Justice. A recent example is the announcement of the opening of the first two Courts and Tribunals Service Centres in Birmingham and Stoke on Trent
See https://www.gov.uk/government/news/first-courts-tribunals-service-centres-launched
A more rolling source of news can be found in the extremely interesting blog relating to the transformation programme – now called Transformation: Courts and Tribunals 2022. This provides news about the new services that are being developed for modernising the courts and tribunals system, both giving accounts of what is currently on going and also what is planned.
The link to the blog is at https://insidehmcts.blog.gov.uk/category/transformation-courts-and-tribunals-2022/
It is possible to sign up to an email notification service so that you are told when a new blog entry is published.
Prisons and Courts Bill 2017: new version awaited
One of the casualties of the calling of the General Election in June 2017 was that the Prison and Courts Bill 2017 was lost – i.e. failed to complete its Parliamentary process.
I have noted in earlier blogs the key features of this important legislation, both in relation to the reform of the Prison Service and to the Civil Justice system. It also planned to deal with rules relating to whiplash injuries (see entries in Spotlight on the Justice System 8 March 2017.)
It is clear from announcements in the Queen’s speech – delivered in June 2017 – that the Bill will be introduced, not necessarily in the same form but with the same policy objectives in mind.
For the moment, therefore, plans are on hold (though civil servants are actively working on the assumption that eventually they will get the new legal powers they need to introduce the proposed reforms.)
I will give further details when the new Bill is published.
New Lord Chancellor and Secretary of State for Justice: David Lidington MP
Following the outcome of the General Election in 2017, the period of office of the first female Lord Chancellor, Lynne Truss MP, was brought to an end.
This was widely predicted, as there was a widely held opinion, especially among lawyers and the judiciary, that she had failed to gain the confidence of the legal profession. In particular, her failure to intervene to protect the independence of the judiciary when sections of the mass media attacked senior judges for upholding the argument that parliamentary authority was required before the formal process of the UK leaving the EU could begin, was seen as a lack of understanding of the Lord Chancellor’s obligations to protect the independence of th judiciary, set out in the Constitutional Reform Act 2005. Lord Thomas, the current Lord Chief Justice, was particularly critical of this.
Truss’ replacement is David Lidington MP. He is another post holder who has no experience of the law. Under section 2 of the Constitutional Reform Act, non-lawyers must nevertheless be ‘qualified by experience’. What this phrase means in practice is proving hard to determine. Presumably the post holder should be someone who understands and is willing to uphold the independence of the judiciary – even where such independence may lead to decisions unwelcome to the Government of the day.
At present it is impossible to say whether the new appointee will turn out to be a more satisfactory appointment than his predecessor, though his previous experience as a Foreign Office Minister suggests that he may have a particular understanding of the importance of upholding the rule of law, and the function of the judiciary is the process.
For comments of the Lord Chief Justice to the Constitution Committee of the House of Lords see http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/constitution-committee/lord-chief-justice/oral/49312.pdf
For the Lord Chancellor’s speech at his swearing-in ceremony, see https://www.gov.uk/government/speeches/lord-chancellor-swearing-in-speech-david-lidington
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 