Archive for the ‘Chapter 4’ Category
Improving efficiency in the criminal justice system
Sir Brian Leveson achieved national fame for chairing his inquiry into the press. Since that work finished, he has been appointed President of the Queen’s Bench Division of the High Court. He is currently leading another inquiry – not one that is hitting the headlines of the press inquiry, but one that could be of considerable importance to the development of the English Legal System. This is the inquiry into efficiency in the criminal justice system. It started work in March 2014 and is expected to produce a first report around the end of 2014.
Its terms of reference are:
- ‘While taking into account:
a) existing rules and procedures for criminal cases;
b) current initiatives to improve the efficiency and speed of the criminal justice system (in particular recent changes relating to the early guilty plea scheme);
c) the need for robust case management;
d) recommendations made in previous reviews of the criminal justice system, including those not implemented at the time; and
e) Government reforms to the criminal justice system;
- 1. To review current practice and procedures for pre-trial hearings and recommend ways in which such procedures could be:
a) further reduced or streamlined;
b) improved with the use of technology both to minimise the number of such hearings or, alternatively, conducted (whether by telephone, or internet based video solutions) without requiring the attendance of advocates.
- 2. To review the Criminal Procedure Rules to ensure that:
a) maximum efficiency is required from every participant within the system;
and
b) any changes proposed are fully supported by the Rules.
- 3. To report to the Lord Chief Justice within 9 months.
The Inquiry has established three sub-groups to investigate specific themes within these general terms.
Each group is tasked with identifying the problems occurring within its own ‘theme’. Each group is also, perhaps most importantly, tasked with finding a workable solution to each of those problems.
The three sub-groups are:
1) Case Management (Chaired by Professor David Ormerod);
2) Listing & IT (Chaired by Lord Justice Fulford)
3) The Trial (Chaired by Mr Justice Openshaw)
It seems that in the first instance, the inquiry is wanting to go for some relatively easy targets. Thus the website for the inquiry states:
‘In the first phase, the review will examine the extent to which better use could be made of technology – for example holding short hearings by telephone or web or video-based applications. It is expected to identify ways to reduce the number of pre-trial hearings that require defendants in custody and advocates attending court.’
But the work of the sub-group on the trial could lead to quite major changes in the ways in which criminal justice is delivered in England and Wales.
At present the progress of the Inquiry is not clear; the website is not as informative as to the progress made so far. But this blog will keep an eye out for the promised report and comment on its findings in due course.
For more detail see http://www.judiciary.gov.uk/the-president-of-the-queens-bench-divisions-review-of-efficiency-in-criminal-proceedings/
Law Commission – 12th Programme of Law Reform
The Law Commission published its 12th Programme of law reform in July 2014.
Nine projects have been accepted into the programme.
Two of these are specific to the Welsh Government:
- The form and accessibility of the law applicable in Wales: an Advice to Government, considering ways in which the existing legislation can be simplified and made more accessible, and how future legislation could reduce problems.
- Planning and development control in Wales: a law reform project to recommend a simplified and modernised planning system for Wales.
In terms of potential impact on the English Legal system, the most significant it a project on
- Sentencing procedure; a law reform project to recommend a single sentencing statute.
The rest of the projects relate to important areas of substantive law.
- Mental capacity and detention, a project to consider how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes. This follows sharp criticism of the present state of the law by Justices of the Supreme Court
- Land registration, a project that will comprise a wide-ranging review of the Land Registration Act 2002 (itself a Law Coimmission Act), with a view to amendment where elements of the Act could be improved in light of experience with its operation.
- Wills, a law reform project to review the law of wills, focusing on mental capacity and will making, formalities that dictate how a will should be written and signed, and how mistakes in wills can be corrected.
- Bills of sale, is a law reform review of the law relating to “bills of sale” loans, including logbook loans.
There are also two scoping exercises designed to see whether detailed proposals for law reform should be developed. These are:
- Firearms: a scoping exercise to consider the enactment of a single statute containing modified and simplified versions of all firearms offence.
- Protecting consumer prepayments on retailer insolvency: a scoping review to assess the scale of the problem and consider was to increase protection for consumers.
In addition, the Law Commission will continue to work on projects brought forward from the 11th programme that are still to be completed.
Details can be found at http://lawcommission.justice.gov.uk/areas/12th-programme.htm
What has happened to Legal Aid?
The big changes to the legal aid scheme, designed to cut public expenditure on legal aid, were introduced in April 2013, following enactment of LASPO 2012.
The first Annual Report of the Legal Aid Agency has now been published. This provides more information on the direct impact this has had on the amount of legally aided work that has been undertaken in the first 12 months since the Act came into effect.
In summary:
• Total acts of assistance and spend – The LAA continued to fund advice, assistance and representation for eligible individuals across England and Wales by funding 1.8 million acts of assistance overall (Civil Legal Aid and Criminal Legal Aid). [2012-13: 2.3 million]. Total net expenditure was £1,709.5 million. [2012-13: £1,916.7 million].
• Number of providers – As at 31 March 2014 the LAA held 1,435 civil and 1,519 crime contracts [March 2013:1,899 civil and 1,599 crime contracts].
• Civil Legal Aid – The LAA funded 0.50 million Civil Legal Aid acts of assistance overall [2012-13: 0.93 million, a 46% decrease in the year]. Civil Legal Aid net expenditure was £800.9 million [2012-13: £941.6 million].
• Criminal Legal Aid – The LAA funded 1.32 million Criminal Legal Aid acts of assistance [2012-13: 1.36 million, a 3% decrease in the year]. Criminal Legal Aid spend was £908.6 million [2012-13: £975.1 million].
What these figures show is the dramatic impact the cuts in Legal Aid have had on civil legally aided matters. There have been huge falls, both in the numbers of acts of assistance, and in the numbers of those with civil legal aid contracts with the Legal Aid Agency. By comparison, criminal legal aid has suffered less, though well publicised actions in particular by the Bar indicate that the fees payable for legally aided work in crime have been subject to considerable constraint.
Lawyers will of course deplore these trends. But it has to be said that there is no indication of any political will to restore funding to the legal aid scheme. This appears to be the start of a new reality, a context in which rather different forms of service delivery to the public will have to be devised.
The LAA Annual report is available at https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2013-to-2014
Dealing with serious crime: the Serious Crime Bill 2014
The National Crime Agency started work on 8 October 2013. (See blog for that date).
Its launch was accompanied by the publication of a Government paper setting out a strategy for dealing with serious and organised crime.
The paper defined organised crime as including:
- drug trafficking,
- human trafficking, and
- organised financial crimes, counterfeiting, organised
acquisitive crime and cyber crime.
The paper stated that the strategy also deals with serious crime which demands a national coordinated response, notably other fraud and child sexual exploitation.
The paper out reasons why dealing with organised crime is important.
” Organised crime is a threat to our national security. It costs the United Kingdom at least £24 billion each year, leads to loss of
life and can deprive people of their security and prosperity. Crime groups intimidate and corrupt and have a corrosive impact on
some communities. Cyber crime undermines confidence in our communications technology and online economy. Organised
immigration crime threatens the security of our borders. We regard human trafficking as a pernicious form of modern slavery.
Financial crime can undermine the integrity and stability of our financial markets and institutions.
Overseas, organised crime undermines good governance and the stability of countries of strategic importance to our national security. Organised crime groups overseas can facilitate or engage in terrorism.”
To counter this, the Government states that the aim of its strategy is:
“to substantially reduce the level of serious and organised crime affecting the UK and its interests.”
The strategy uses the framework developed for counter-terrorist work. It has four components:
- prosecuting and disrupting people engaged in serious and organised crime (Pursue);
- preventing people from engaging in this activity (Prevent);
- increasing protection against serious and organised crime (Protect); and
- reducing the impact of this criminality where it takes place (Prepare).
The Government has undertaken to publish annual reports setting out the extent to which these objectives have been achieved.
Looking at these issues from the perspective of the English Legal System it seems clear that the balance between policing activity being delivered locally to local communities – which has until recently been the predominant model – and being delivered nationally to deal with new forms of criminality is bound to change. This shift is not a question that has been widely discussed in public media.
In June 2014, the Government has started the process of giving the strategy more legal backing through the Serious Crime Bill 2014. It will be some months before this reaches the statute book. But in outline the Bill seeks to
- Improve the Government’s ability to recover criminal assets by amending the Proceeds of Crime Act 2002.
- Amend the Computer Misuse Act 1990 to ensure sentences for attacks on computer systems fully reflect the damage they cause.
- Create a new offence targeting people who knowingly participate in an organised crime group.
- Extend the scope of Serious Crime Prevention Orders and gang injunctions.
- Establish new powers to seize, detain and destroy chemical substances suspected of being used as cutting agents for illegal drugs.
- Clarify the Children and Young Persons Act 1933 to make it explicit that cruelty which is likely to cause psychological harm to a child is an offence.
- Create a new offence of possessing ‘paedophilic manuals’.
- Extend the extra-territorial reach of the offences in the Female Genital Mutilation Act 2003 (and the equivalent Scottish legislation) so that they apply to habitual as well as permanent UK residents.
- Allow people suspected of committing an offence overseas under sections 5 (preparation of terrorist acts) or 6 (training for terrorism) of the Terrorism Act 2006 to be prosecuted in the UK.
For further details on the strategy, see https://www.gov.uk/government/publications/serious-organised-crime-strategy.
For details on the Bill, see https://www.gov.uk/government/news/new-powers-to-tackle-serious-and-organised-crime-announced
Implementation of Law Commission Reports
The 4th Annual Report into the implementation of reports by the Law Commission for England and Wales was published in May 2014. It lists the reports that have been implemented or which are in the process of implementation. It also sets out the 2 reports which the Government has decided should not be legislated, though in one case, dealing with the credibility of experts giving evidence in criminal cases, the Government argues that this has been achieved through amendments to the Criminal Courts Procedure Rules. (The other – a major report on the reform of Partnership law is not going ahead.)
There is a long list of reports on which final decisions of Government are still awaited.
Interestingly the report notes that the Law Commission’s report Renting Homes, which the Government in Westminster decided should not go ahead, is being taken forward by the Government in Wales.
The report is available at https://www.gov.uk/government/publications/report-on-the-implementation-of-the-law-commission-proposals-jan-2013-to-jan-2014
Regulating Claims Management Companies
The process of driving Claims Management Companies that fail to adhere to the rules regulating their activities out of business seems to be having some success. The Government announced in February 2014 that in the previous year the authorisation of over 200 companies had been revoked. It was also announced that over 500 companies had gone out of business since referral fees were banned in 2013.
From April 2014, CMCs will have to pay higher fees to help cover the cost of regulatory activity.
For further information, go to https://www.gov.uk/government/news/clampdown-on-rogue-claims-firms
Reforming the criminal justice system
This blog has already noted ideas for reforming criminal justice – for example, the creation of new traffic courts, and the review of the criminal trial process to make it more cost effective.
A policy think tank, the Policy Exchange, has recently (Feb 2014) published a paper – Future Courts – setting out ideas for more radical reform of the criminal justice system, in particular magistrates’ courts. The following synopsis is taken from their website. What ideas do you think might work? What would not?
“Magistrates should dispense justice inside police stations at peak times – including evenings and weekends – and be put in charge of the administration of out-of-court disposals, as part of a radical drive to speed up the operation of the criminal justice system.
Future Courts argues that locating magistrates in police stations would deliver much swifter justice, dramatically reducing the time it takes to punish criminals. There is currently a two month delay from the time an offender is charged by the police to the sentence being handed down in a magistrates’ court. The report says that this wasted time weakens the power of punishments and means that the system does little to change the behaviour of offenders.
Reforming summary justice so that magistrates hear cases on-the-spot in police stations would also allow them to oversee or directly administer out-of-court disposals such as simple cautions. There has been considerable public concern about the police’s use of these disposals, which now account for 20% of all criminal cases, including their use in response to very serious offences such as rape. The report calls for a massive expansion in the size of the magistracy to help meet the requirements of these expanded roles. Currently there are 23,000 magistrates and they preside over 90% of all criminal cases in England and Wales, although applications to join the magistracy have dramatically decreased in recent years.
The paper highlights the huge financial pressures faced by Her Majesty’s Court and Tribunals Service, which must cut its budget by 37.8% between 2012 and 2016. It says that the Ministry of Justice will inevitably focus on reducing the size of the court estate to meet this challenge. With 230 magistrates’ courts in England and Wales, compared to just 180 NHS Accident and Emergency Departments, the paper concludes that there is significant scope to re-alter the size of the estate, but that the government must take concrete steps to protect the local justice infrastructure and the functioning of the lay magistracy, which has existed for over 650 years.
The report recommends:
The recruitment of 10,000 new magistrates, taking overall numbers to 33,000: They would sit in police stations and other community buildings, oversee out-of-court disposals, review offenders’ sentences on an on-going basis, and spend a third of their volunteering time undertaking community engagement work.
A more diverse magistracy: courts sitting during evenings and weekends will encourage younger, professional people to apply, but more action is needed. Instead of automatic retirement at 70, a new ‘tenure period’ for magistrates of 10 years should be implemented, creating greater turnover – and polices should be enacted to specifically target younger and more ethnically diverse recruits.
Greater court innovation: The Ministry of Justice, the Judicial College and the Magistrates’ Association should devise a new training package for 500 or so ‘problem solving’ magistrates and judges, specialising in dealing with people with drug and alcohol addiction.
The creation of new ‘Justice Hubs’: Court buildings currently house an average of six courtrooms. As the overall footprint of the court estate is reduced, the report recommends the creation of much larger courthouses, containing around 50 courtrooms. Newly-built or converted ‘Justice Hubs’, located to serve major population areas and co-located with other justice agencies, would accommodate different criminal courts (e.g. magistrates and Crown Courts), civil courts and tribunals under the same roof, as well as housing the full range of justice services and custody facilities.”
To read the whole report go to http://www.policyexchange.org.uk/publications/category/item/future-courts-a-new-vision-for-summary-justice
Filming in the Court of Appeal
Not exactly like the OJ Simpson trial in the US, but a very small next step has been taken in giving the media direct access to proceedings in Court. From 5 October 2013, five courtrooms at the Royal Courts of Justice – which houses the Court of Appeal – have been wired to allow broadcasting to take place.
Cases will not be shown in full. Rather, the broadcasters – BBC, Sky, ITV and Press Association – will be able to film proceedings from only one court room on any given day. They will agree which courtroom and will inform the judiciary the day before.
They will be able to show the footage for the purpose of news reporting only – i.e. not streamed live. All costs associated with filming within the Court of Appeal have been met by the broadcasters involved.
Advocates’ arguments, and the judges’ summing up, decision and (in criminal cases) sentencing remarks may be filmed.
Victims, witnesses and defendants will not be filmed.
In general I welcome this modest development. I do hope that when further decisions about broadcasting proceedings are taken, consideration will be given to alternative procedures, like tribunals or other forms of alternative dispute resolution, which the ordinary citizen is far more likely to encounter in real life.
Further information is at https://www.gov.uk/government/news/landmark-day-for-justice-television-broadcasting-in-courts-goes-live
MoJ Review of Legal Services Regulation
Despite its relative newness, there have been complaints that the current legal services regulatory landscape is too complex and burdensome. These complaints have been raised by stakeholders through a number of routes, including the Cabinet Office’s Red Tape Challenge.To obtain more information about the challenges legal service providers face the Ministry of Justice has decided to conduct a review of the legal services statutory framework.
The review will consider what could be done to simplify the regulatory framework and reduce unnecessary burdens on the legal sector while ensuring there is still appropriate oversight. It will consider the full breadth of the legislative framework, covering at least 10 pieces of primary legislation and over 30 statutory instruments.
The Press Release announcing the review states that the MoJ are also open to comments on the interaction between the legislative framework and the detailed rules and regulations of the approved regulators, licensing authorities and the Legal Services Board and Office for Legal Complaints, although these are not owned by MoJ.
The first stage of the review is a ‘call for evidence’ from stakeholders. The evidence provided to the MoJ will be analysed to identify potential ways in which the framework might be simplified. MoJ are interested in hearing legal service providers’ concerns with, and ideas for reducing, regulatory burdens and simplifying the legal services regulatory framework.
The closing date for the call for evidence was 2 September 2013. There are no indications of what the outcome of this process will be, but developments will be noted in later blogs on this site.
Source: http://www.redtapechallenge.cabinetoffice.gov.uk/moj-review-of-legal-services-regulation/
National Crime Agency: open for business
The long awaited launch of the National Crime Agency occurred on Monday 7 October 2013. It brings together, in a single body, four formerly separate activities under four Command heads. These are:
Border Control Command, designed to increase security at border entry points.
Economic Crime Command covering a range of crimes including:
Child Exploitation and Online Protection Centre (CEOP) Command which aims to protect children from sexual exploitation on the internet.
Organised Crime Command (OCC) which leads, supports and co-ordinates the national effort to identify, pursue and disrupt serious and organised criminals.
The Agency also contains the National Cyber Crime Agency, which aims to provide a joined-up national response to cyber and cyber-enabled crime.
Critics of this new initiative argue that this is largely a ‘re-branding’ exercise for pre-existing bodies with a rather underwhelming track record, which is also likely to struggle because it has had its funding cut. My view is that it is far to early to assume that this will be the case. The Agency has to have some time to establish itself before we can determine whether it is delivering the benefits planned for it.
There is quite a lot of information about the agency available on-line. Go to http://www.nationalcrimeagency.gov.uk/ and follow the various and varied links.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 