Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

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Dealing with domestic abuse: draft Bill published

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Given all the time and attention devoted to Brexit, it is perhaps not surprising that important policy initiatives have not been achieving the publicity they deserve. A good example of this was the publication, in January 2019, of a draft Domestic Abuse Bill.

Domestic abuse is a cruel and complex crime that can affect anyone. It leaves physical and emotional scars that can last a lifetime. It also places a considerable demand on public services . Home Office research estimates the economic and social costs of domestic abuse to society to be £66 billion for victims in 2016 to 2017.

A consultation, launched in March 2018  asked questions on policy should develop to d achieve 4 main objectives:

  • promote awareness – to  raise public and professional awareness
  • protect and support – to enhance the safety of victims and the support that they receive
  • transform the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation
  • improve performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.

Following the consultation, the Government has defined 9 measures that require legislative change – which is the focus of the draft Bill. They are:

  • create a statutory definition of domestic abuse
  • establish the office of Domestic Abuse Commissioner and set out the commissioner’s functions and powers
  • provide for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order
  • prohibit perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and prevent victims from having to cross-examine their abusers) and give the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress
  • create a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts
  • enable high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody
  • place the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing
  • ensure that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy
  • extend the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.

As the Bill has been published in draft, it is unlikely to become law until 2020 at the earliest.

For further detail see https://www.gov.uk/government/publications/domestic-abuse-consultation-response-and-draft-bill

The Home Office research is at https://www.gov.uk/government/publications/the-economic-and-social-costs-of-domestic-abuse

Information on the Domestic Violence Disclosure Scheme and related guidance (which was updated in December 2016) is available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf

 

 

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Written by lwtmp

March 15, 2019 at 10:27 am

Criminal Injuries Compensation: Abolition of the ‘same roof’ rule

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At the end of February 2019, the Government announced that it was introducing a measure to amend the criminal juries compensation scheme. The amendment would abolish the rule that a victim could not claim compensation under the scheme where he/she lived under the same roof at the perpetrator.

The ‘same roof rule’ was part of the original scheme introduced in 1964 and was intended to ensure perpetrators would not benefit from compensation paid to victims they lived with.

It was amended in October 1979 so future victims could claim compensation if they no longer lived with their attacker and were unlikely to do so again. However, as is common with many changes to the law, this was not made retrospective – which meant some victims may have missed out on compensation if they were a victim of a violent crime before the law change.

A statutory instrument, laid in Parliament on 28 Feb 2019, will remove the pre-1979 rule completely – enabling more victims access to compensation.

Ministers had recognised the rule’s unfair impact on victims of crimes such as child sexual abuse. The move will amend the Criminal Injuries Compensation Scheme so that all victims abused by someone they lived with can reapply for compensation – regardless of when the attack took place.

It will mean that victims who may not have come forward because of the rule, or were previously denied awards under it, will be eligible to claim compensation – with awards being made to those who meet the Scheme’s other criteria.

The ongoing review of the Criminal Injuries Compensation Scheme, which will report later in 2019, will look at, among other things, concerns around the eligibility rules, the definition of ‘violent crime’, and the type of injuries that are covered.

See press announcement https://www.gov.uk/government/news/access-to-compensation-scheme-for-victims-who-lived-with-their-attacker

 

 

 

Written by lwtmp

March 14, 2019 at 4:57 pm

Transformation: Courts and Tribunals, 2022: HMCTS and MoJ respond to the Public Accounts Committee

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I noted in 2018 the critical report from the National Audit Office (see this blog June 2018) and the subsequent report (which I labelled ‘brutal’) from the Public Accounts Committee (see this blog October 2018) on the courts and tribunals transformation programme.

Well, now the Ministry of Justice and HM Courts and Tribunals Service have come back with a series of replies, setting out the progress that has been made with the transformation programme, and setting out targets for the following 6 months.

Between November 2018 and February 2019, MoJ and HMCTS published no fewer that 6 reports, each one responding individually to the six principal criticisms made by the Public Accounts Committee.

The most fundamental question is whether the timeframe for the delivery of the transformation programme is being adhered to. The report on Recommendation 1 – which deals with this question – acknowledges that parts of the programme have not yet been started while listing a substantial body of completed work.

Other responses deal with:

  • the impact of the transformation programme on users;
  • engagement with stakeholders;
  • the financial implications of the transformation programme on the wider justice system;
  • evaluating the impact of the reform programme on access to justice and the fairness of the justice system; and
  • balancing the portfolio of change projects to ensure that there is some flexibility and an ability to respond to financial pressures.

Interestingly, less than a month after the publication of the latest of these reports a Press Release in March stated that at least some aspects of the Transformation programme will not be completed until 2023.

There is a lot of detail in the reports. They can be found by going to https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals

This links to each of the six individual responses.

In January 2019, the Justice Select Committee announced that it too would be conducting an inquiry into the Courts and Tribunals Reform programme. See https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/

It is right that such a major reform programme should be carefully scrutinised by MPs. They can help to ensure that the transformation, that I think is needed, is delivered.

 

 

 

 

Understanding Courts – a report from JUSTICE

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In January 2019, the Human Rights Group JUSTICE published the report, Understanding Courts. It was the work of a group chaired by  Sir Nicholas Blake.

The central message of the report – which builds on other reports published over the last few years by JUSTICE – is that going to court can be a confusing, intimidating and disempowering experience for lay people, whether as parties, witnesses or jurors. This is only compounded for people who are unrepresented, and for otherwise vulnerable people.

This report argues that, in the context of the current programme of reform of courts and tribunals, lay people should be put at the heart of court processes. The objective is to encourage meaningful access to justice through effective participation.

There are 41 recommendations in the report which focus on what effective participation should mean in practice. In broad outline, the key issues are that

  • lay people should be informed about what will happen at their hearing through advance information provided by multiple means;
  • court professionals should recognise that lay people should be their primary focus and adapt their approach accordingly;
  • case management should ensure that lay people understand processes and assists with that understanding;
  • legal jargon and confusing modes of address should be avoided, using plain English alternatives;
  • there needs to be a change in professional culture that can otherwise exclude lay people;
  • there should be appropriate adaptations to enable participation by children and those with a disability; and
  • there should be support for all users who need it.

It is an interesting report, which deserves to be taken seriously. But I have the specific comments to make.

1 Tribunals have long espoused the key principles set out in this report. There is mention in this report that the user focus of tribunals needs to be brought into the court system. If this report has the effect of stopping (court) judges regarding tribunals as second class courts, rather than as first class dispute resolution forums, then it will have served a useful purpose.

2 There are many recommendations in the reports about ensuring that information provided by courts is user-friendly and up to date. This again is welcome but this is a message that has been developed on many occasions over recent years. Now is the time to get down to the hard work of developing user-friendly information and forms that really do enable individuals to improve their access to justice – using the potential of IT to the full.

3 If the change of culture recommended in the report is to be fully realise this has a significant implication for the training, not just of the judiciary, but also of court staff and other legal professionals. The recent spate of press stories about bullying judges is extremely worrying – it is hard to see how a bullying judge would have the empathy or patience to adopt the approach outlined in this report. Judges already in post will need as much training in the interpersonal skills required to change court culture as those coming new to the role.

The full report is available at https://justice.org.uk/our-work/areas-of-work/what-is-a-trial/

 

 

 

 

The Victims Strategy – 2018

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In September 2018, the Government published its cross-government Victims Strategy. It sets out a criminal justice system wide response to improving the support offered to victims of crime and incorporates actions from all criminal justice agencies, including the police, CPS and courts.

It is divided into 5 key sections

  1. overarching commitments. These include:
  • Strengthening the Victims’ Code, and consulting on the detail of victim focused legislation, including strengthening the powers of the Victims’ Commissioner, and delivering a Victims’ Law.
  • Holding agencies to account for compliance with the Victims’ Code through improved reporting, monitoring and transparency.
  • Developing the detail on the role of the Independent Public Advocate for bereaved families who have lost loved ones in extraordinary and tragic events.
  • Abolishing the rule which denied compensation for some victims who lived with their attacker prior to 1979 and consulting on further changes to the Criminal Injuries Compensation Scheme.
  1. improving support for all victims of crime, whether or not they report the crime. This includes commitments to:
  • Increase spending from £31 million in 2018 to £39 million in 2020/21 to improve services and pathways for survivors and victims of sexual violence and abuse who seek support to and from Sexual Assault Referral Centres.
  • Develop a new delivery model for victim support services, coordinating funding across government.
  • Expand and extend support available to families bereaved by homicide, including bringing in new funding for advocacy support for families bereaved by domestic homicide.
  • Spend £8 million on interventions to ensure support is available to children who witness domestic abuse.
  • Pilot the ‘Child House’ model in London, whereby multiple services are brought together in a child-friendly environment to minimise additional trauma.
  1. improving victim support after a crime has been reported. This includes commitments to:
  • Introduce improved police training, including new guidance on conducting interviews and collecting evidence, and a trial of body worn cameras to take Victim Personal Statements.
  • Increase the number of Registered Intermediaries, communication experts helping vulnerable victims and witnesses give their best evidence at police interview and at court, by 25%.
  • Increase opportunities for victims to engage in alternative solutions to court.
  • Improve overall victim communication, including when explaining decisions not to prosecute and on the right to review Crown Prosecution Service decisions.
  1. better support for victims during the court process. This includes commitments to:
  • Improve the court environment, with new victim-friendly waiting areas and a new court design guide focussing on accessibility for the most vulnerable.
  • Free up court time in the magistrates’ court by dealing with crimes with no identifiable victim (e.g. fare evasion) outside court hearings.
  • Continue to use video links to allow vulnerable victims to provide evidence away from the defendant and courtroom altogether.
  • Encourage take up of pre-trial therapy by launching new guidance and a toolkit for prosecutors and therapists.
  1. making sure victims understand a court’s decision, the implications for them, and for the offender. This includes commitments to:
  • Review and consider extending the Unduly Lenient Sentence scheme so victims and the public can have sentences reconsidered by the Court of Appeal.
  • Reform the Victim Contact Scheme, making it easier to opt in, introducing more frequent communication, and greater use of digital contact methods.
  • Improve Victim Liaison Officer training, especially in supporting victims during parole hearings and in making a Victim Personal Statement.
  • Review and consider whether any improvements need to be made to entitlements for victims of mentally disordered offenders.

This is substantial agenda of what seem to me to be good ideas. Some of them can be implemented quickly. Others will take more time. What is therefore also needed is a committment to publish progress reports which show how these initiatives are developing throughout the country.

Source: Adapted from https://www.gov.uk/government/publications/victims-strategy/victims-strategy-html-version where the full text of the strategy statement can be found.

Review of the Criminal Injuries Compensation scheme

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When the Criminal Injuries Compensation scheme was originally introduced in 1964, there was a rule that applicants were not entitled to compensation if they were living with their assailant as members of the same family at the time of the incident.

The reasons for the rule were, broadly, difficulties with evidence in such cases, and a wish to ensure that offenders did not benefit from compensation paid to the victim who they were living with. The rule applied to all victims of abuse inflicted by a family member living under the same roof; this included physical as well as sexual abuse.

The rule was amended in 1979 to apply to adults only. Under the revised rule applicants could still be refused compensation if at the time of the incident they were adults living with the assailant as members of the same family, unless they no longer lived together and were unlikely to do so again. The amended rule gave CICA discretion to consider what had happened after the incident taking place, which  significantly reduced the number of applicants who were refused under this amended rule. The amended rule was, however, not retrospective.

In July 2018 the Court of Appeal found that the pre-1979 rule unlawfully discriminated against an applicant who had suffered injury before the 1979 changes.

The government has decided to not appeal this ruling. Instead, it confirmed it would consult on changes to the Criminal Injuries Compensation Scheme.

In September 2018, the Government announced that it was launching a review that will look at concerns around the eligibility rules of the scheme, the sustainability of the scheme and the affordability of any changes to be made. The review will also enable the government to take full account of recommendations made by the Independent Inquiry into Child Sexual Abuse.

More specifically, the review will look at issues including:

  • time limits for applications – the scheme’s time limit requires that applications be made by a person over 18 as soon as practicable and no later than 2 years after the date of the incident. It is suggested that victims of child sex abuse disproportionately delay reporting such crimes and applications for compensation, and therefore miss out on compensation.
  • the ‘same roof’ rule – we will remove the pre-1979 rule and we will consider further changes to the remaining ‘same roof’ rule and previous failed applications.
  • unspent convictions – the scheme automatically excludes an award if the applicant has an unspent conviction which resulted in a specified sentence (custodial sentence, community order or youth rehabilitation order). It is suggested the rules disproportionately impact vulnerable victims of child sex abuse who may have offended in response to being abused/exploited/groomed.
  • crime of violence– the scheme sets out what constitutes a crime of violence for the purposes of assessing entitlement to compensation. It is suggested that this definition should be broadened to include sexual exploitative behaviour, such as grooming.
  • terrorism – the terrorist attacks of last year left people with serious life changing injuries and brought to light questions about the suitability of the scheme in providing support to victims of terrorism. The review will consider and clarify the eligibility, entitlement and amount of compensation to be awarded. This will build on the roll-out of the ground-breaking Victims of Terrorism Unit last year, to help ensure the best possible support.

The intention is that the review will be completed sometime in 2019, with change following thereafter. There is no hint that the review will expand the scope of the types of injury for which compensation can be claimed.

Details of the review can be found at https://www.gov.uk/government/news/justice-secretary-announces-victim-compensation-scheme-review-scraps-unfair-rule

 

 

Written by lwtmp

November 29, 2018 at 12:11 pm

Creating a Sentencing Code: proposals from the Law Commission

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Way back in May 2016 I noted the publication of a Consultation by the Law Commission on the creation of a single code of law on sentencing for criminal offences. Well, the outcome of that consultation is now published. It is a great law reform effort and one that deserves to be implemented at the earliest opportunity.

To remind readers, the current law is so complicated that judges frequently get their sentencing decisions wrong. As the Commission itself noted:

The current law of sentencing is inefficient and lacks transparency. The law is incredibly complex and difficult to understand even for experienced judges and lawyers.

It is spread across a huge number of statutes, and is frequently amended. Worse, amendments are brought into force at different times for different cases. The result of this is that there are multiple versions of the law that could apply to any given case.

This makes it difficult, if not impossible at times, for practitioners and the courts to understand what the present law of sentencing procedure actually is.

This leads to delays, costly appeals and unlawful sentences.

There is near unanimity from legal practitioners, judges and academic lawyers that the law in this area is in urgent need of reform.

A new Sentencing Code has three key benefits:

  • it makes the law simpler and easier to use;
  • it increases public confidence in the criminal justice system; and
  • it increases the efficiency of the sentencing process.

The benefits claimed for the new code are that it would:

  • help stop unlawful sentences by providing a single reference point for the law of sentencing, simplify many complex provisions and remove the need to refer to historic legislation;

  • save up to £256 million over the next decade by avoiding unnecessary appeals and reducing delays in sentencing clogging up the court system;

  • rewrite the law in modern language, improving public confidence and allowing non-lawyers to understand sentencing more easily;

  • remove the unnecessary layers of historic legislation; and

  • allow judges to use the modern sentencing powers for both current and historic cases, making cases simpler to deal with and ensuring justice is better served.

It is hoped that the Sentencing Code could be enacted as a Consolidation Bill which would take up far less Parliamentary time than a normal bill. Progress ought to be made on this during 2019, if the political will is there.

For further information see https://www.lawcom.gov.uk/project/sentencing-code/ which provides links to the Report and the Draft Code

 

 

 

Written by lwtmp

November 27, 2018 at 4:57 pm

Posted in Chapter 5

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