Archive for the ‘Chapter 4’ Category
Increasing diversity in the Judiciary
There has long been a desire to see more female and black and minority ethnic (BAME) people appointed to the judiciary. The present Lord Chief Justice Lord Thomas has promoted a number of initiatives designed to build on work already started by the Judicial Appointments Commission.
In April 2017, the Judicial Diversity Committee of the Judges’ Council published its latest report on progress together with – for the first time – an Action Plan for activities to be undertaken in 2017-2018.
The headline objectives of the Committee are set out in the report as follows:
In the next 12 months, we will –
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continue our dialogue with BAME lawyers better to understand the barriers they face and identify what more the judiciary can do to support them;
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work with the Law Society, Bar Council and CILEx to ensure that we are doing all we can to reach the broadest range of talent;
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encourage more networking among the existing courts and tribunals judiciary;
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run more workshops to support a greater number of candidates from under-represented groups to prepare for the selection process;
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further develop our communications to potential candidates and those who have an interest in judicial diversity; and
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improve the monitoring and evaluation of our initiatives.
While these aims may seem little bland, detailed reading of the report reveals that there is intended to be an extensive programme of workshops, mentoring, outreach and other initiative designed to encourage those from groups currently under-represented in the judiciary to think about law and a judicial career.
The report also provides a link to a number of judges talking about their experience in becoming a judge – designed to inspire others to contemplate following their path. See https://www.judiciary.gov.uk/about-the-judiciary/judges-career-paths/videos-judges-talk-about-their-judicial-careers/
The report is at https://www.judiciary.gov.uk/publications/judicial-diversity-committee-of-the-judges-council-report-on-progress-and-action-plan-2016-17/
Transforming the Justice System: the Prisons and Courts Bill 2017
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
Independent Office for Police Conduct
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 review is at https://www.gov.uk/government/publications/governance-of-the-independent-police-complaints-commission.
The consultation, published on the same date, is at https://www.gov.uk/government/consultations/reforming-the-independent-police-complaints-commission-structure-and-governance.
Implementation of Law Commission reports
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
Transforming the English Legal System: Family Justice
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.
Transforming the English Legal System: Administrative Justice
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.
Transforming the English Legal System: Civil Justice
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.
See chapter 3 in https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf
Transforming the English Legal System: Criminal Justice
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 use
of 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.
See chapter 2: https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf
Transforming the English Legal System
September 2016 saw the publication of an extremely important Consultation Paper, which sets out ideas on how the courts and tribunals system in England and Wales should be reformed.
Its proposals are based on three principles, that the reformed system should be proportionate, accessible and just.
The Paper states:
To deliver a system that is proportionate and tailored for the complexity andseriousness of individual cases, [the Government is] taking a consistent approach across jurisdictions [i.e., criminal, administrative, family and civil], including:i. More use of case officers for routine tasks: Judges spend too much of their timedealing with uncontroversial, routine or straightforward matters which could just aseffectively be dealt with by court staff under judicial authorisation. Where it isappropriate, specially trained staff will be able to carry out some of this work tohelp justice move faster.ii. More decisions made “on the papers”: Where a case is relatively straightforward orroutine, representations will be made online in writing for a judge to consideroutside of a traditional court room, without the need for a physical hearing,meaning a more convenient experience for everyone involved.iii. More virtual hearings: Where a judge needs to listen to the parties make theirarguments, it will be possible in many cases to hold the hearings over telephone orvideo conference, without the need for the parties to travel to a court building.There will still be an important place for physical court hearings for criminal trialsand other serious or complex cases, but where they are appropriate, virtualhearings offer an easy and convenient alternative for everybody.iv. More cases resolved out of court: In appropriate cases, we will encourage partiesto settle their disputes themselves, without the intervention of the courts.
i. Putting probate applications online: Dealing with probate affairs can be difficult andcomplicated at a time when people are often coping with bereavement. We aredigitising the probate system to allow the entire process to be managed online,from application to resolution, making it an easier and faster process when casesare uncontested.ii. Managing divorce online: Work has already begun to allow divorce applications tobe made and managed online, removing some of the bureaucracy from oftenstressful and lengthy proceedings and simplifying cumbersome administrativeprocesses.iii. Digitising applications for Lasting Powers of Attorney: Allowing people to makearrangements for a time in the future when they may not be able to makedecisions by themselves is a helpful but often emotionally stressful process.Applications have been partially digitised since 2014, resulting in fewer applicationforms being returned because of errors. We will build on this by making the systemfully digital to deliver a quicker service.
i. Provide a system that works for everyone: Digital and online processes are easyand efficient for many people, but the justice system must also work for peoplewho do not or cannot access services online. We must provide an alternative routeof access for every service that moves online. ..ii. Continue to ensure open justice: It is a core principle of our justice system thatjustice is open. “It is not merely of some importance, but of fundamentalimportance that justice should not only be done, but should be manifestly andundoubtedly seen to be done,” as Lord Chief Justice Hewart said in 1924. Theprinciple of open justice will be upheld and the public will still be able to see andhear real-time hearings, whilst we continue to protect the privacy of the vulnerable.
Diversity in the Judiciary
For a number of years, it has been accepted that there should be greater diversity among the judiciary. The gender and ethnicity of the judiciary should broadly reflect the gender and ethnicity of the population as a whole. There has been considerable effort to more the judiciary away from their ‘white, male, upper middle class’ image.
The present Lord Chief Justice is determined that progress towards a more balanced judiciary should be advanced. The latest Judicial Diversity Statistics, published in July 2016, indicate that some progress has been made.
The headline findings are that in April 2016:
- The number of woman Court of Appeal Judges remains the same as last year at eight out of 39 (21 per cent).
- Twenty two out of 106 High Court Judges are women (21 per cent). In April 2015 the number was 21 (20 per cent).
- In the courts the percentage of female judges has increased from April 2015 to April 2016 from 25% to 28%. In tribunals it remained stable at 45%.
- The number of female Circuit Judges increased from 146 in April 2015 to 160 in April 2016 (from 23 per cent to 26 per cent)
- More than half (51 per cent) of the 85 court judges who are under 40 years of age are women (53% last year). In tribunals, 64 per cent of the 56 judges under 40 are women (56% last year)
- The percentage of judges who identify as Black, Asian and Minority Ethnic (BAME)is 5% in courts (6% last year), and in tribunals 9% (stable since 2015). This is higher for judges under 40 – 8% (6% last year) for courts and 14% (15% last year) for tribunals.
- A third (34%, compared with 36% in 2015) of court judges and two thirds (65%, compared with 67% in 2015) of tribunal judges are from non-barrister backgrounds. Judges in lower courts more likely to come from a non-barrister background.
The conclusions that may be drawn from these findings is that some progress has been made in the appointment of women as judges; but the numbers of BAME judges remain low.
In order to encourage applications, particularly from women and BAME candidates, the Judges Council has established a Judicial Diversity Committee, which undertakes different events and initiatives to encourage a wider range of candidates to apply for judicial appointment. They have recently published their first report.
Their work includes:
- sponsoring networking events;
- running a judicial shadowing programme;
- appointing judicial role models from the existing bench to provide advice and guidance to potential applicants.
One pilot initiative relates to developing ways to encouraging applications for appointment to the High Court bench from those who have not had practice experience as a barrister, including leading academics.
To see the Judicial Diversity Statistics, go to https://www.judiciary.gov.uk/wp-content/uploads/2016/07/judicial-diversity-statistics-2016-2.pdf.
The report of the Judicial Diversity Committee is at https://www.judiciary.gov.uk/wp-content/uploads/2016/07/judicial-diversity-committee-progress-report-13-16.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 