Archive for the ‘Chapter 5’ Category
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
The Prison and Courts Bill 2017 is a major piece of proposed legislation which aims to give effect to major reforms of both the prison service and the work of courts and tribunals.
The note deals with the first item – reform of the prison service.
The main policy objectives for prison reform were set out in the White Paper Prison Safety and Reform which was published in November 2016 and noted in this blog on 23 November 2016.
A good number of the proposed reforms do not actually require new legislation. They can be achieved by changes to the ways in which prisons are run, or by changes to the Prison Rules. But key changes do require legislation. These are dealt with in Part 1 of the new Bill.
The major changes may be set out as follows:
- The Bill will create a statutory purpose of prisons and updates the existing duties of the Secretary of State in relation to prisons (amending those created in the Prison Act 1952 (“the 1952 Act” ))
The Bill provides that “in giving effect to sentences or orders of imprisonment or detentionimposed by courts, prisons must aim to—
(a) protect the public,
(b) reform and rehabilitate offenders,
(c) prepare prisoners for life outside prison, and
(d) maintain an environment that is safe and secure.”
- It also imposes a duty on the Secretary of State to make an Annual Report to Parliament on the work of the prison service, measured against the criteria set out in the Bill.
- It creates Her Majesty’s Inspectorate of Prisons, comprising Her Majesty’s Chief Inspector of Prisons (an existing statutory office) and staff who carry out functions on the Chief Inspector’s behalf, places additional reporting requirements on the Chief Inspector in relation to prisons, and provides powers of entry and access to information to facilitate the exercise of the Chief Inspector’s statutory inspection functions in relation to prisons.
- It establishes the Prisons and Probation Ombudsman (“PPO”) – currently a non-statutory appointment – as a statutory office, and provides the Secretary of State with the powers to add its remit.
- In relation to prison security, the Bill will enable public communication providers (“PCPs”) – for example, mobile phone network operators – to be authorised to interfere with wireless telegraphy to disrupt the use of unlawful mobile phones in custody.
- It also makes provision for the testing of prisoners for psychoactive substances (as defined in the Psychoactive Substances Act 2016) within prisons.
For further detail about this Bill and links to relevant material, go to https://www.gov.uk/government/news/prisons-and-courts-bill-what-it-means-for-you
In 2007, the average monthly number of persons under the age of 18 held in custody was 2909. Today that average monthly figure is about 900. Generally far fewer young people are brought into the criminal justice system than was the case 10 years ago.
At first sight it might seem that these dramatic falls in numbers – which do not get much publicity – should be a good news story. But it is not as simple as the. The figures mask other problems about the overall state of the youth justice system. Once children and young people are in custody the outcomes are not good enough. Levels of violence and self-harm are too great and reoffending rates are unacceptably high. 69% of those sentenced to custody going on to commit further offences within a year of their release.
This raises questions about what more can be done to ensure that young people do not enter the system in the first place, and if they do are given every opportunity to turn their lives around by receiving appropriate education and training to enable them to start leading productive lives in society.
The Government has taken a number of measure to address these problems.
In 2016, they commissioned Charlie Taylor – a former head teacher and child care expert – to undertake a review of the Youth justice system. His report was published in December 2016. The Government’s response to his report was published on the same day.
In a written statement to Parliament on 24 February, the Government now announced the next steps it is taking in response to that review.
First, it has appointed Charlie Taylor to be the new Chair of the Youth Justice Board – so that he can oversee the reforms he advocated.
Second the Government has announced that a new Youth Custody Service is to be established as a distinct arm of HM Prison and Probation Service, with a dedicated Director accountable directly to the Chief Executive.
Third there has been (yet another) review of the physical estate used for the detention of under 18s. It states bluntly that the time for reports is over – all those who know about this accept that the estate is not up to modern standards. What is needed is action to improve the estate.
Perhaps by comparison with the huge problems facing the prison service more generally – which new proposals for reform of the prison system are designed to address – youth justice is an issue on which it is hard to attract attention from the mass media. But it seems plausible to suggest that if you get the youth justice system working effectively, you may be able to reduce some of the pressures that might arise further down the line.
The Charlie Wilson Review is at https://www.gov.uk/government/publications/review-of-the-youth-justice-system
The Government response to the report is at the same page.
A summary of the Justice Secretary’s statement to Parliament is at https://www.gov.uk/government/speeches/youth-justice-update.
The report on the youth justice estate is at https://www.gov.uk/government/publications/youth-custody-improvement-board-findings-and-recommendations
The Policing and Crime Act 2017 received the Royal Assent at the end of January 2017. It is a large piece of legislation covering a wealth of topics. The Home Office Press Release summarises the main provisions as follows. The Act will:
- place a duty on police, fire and ambulance services to work together and enable police and crime commissioners to take on responsibility for fire and rescue services where a local case is made
- reform the police complaints and disciplinary systems to ensure that the public have confidence in their ability to hold the police to account, and that police officers will uphold the highest standards of integrity
- further support the independence of HM Inspectorate of Constabulary and ensure that it is able to undertake end-to-end inspections of the police
- enable chief officers to make the most efficient and effective use of their workforce by giving them the flexibility to confer a wider range of powers on police staff and volunteers (while for the first time specifying a core list of powers that may only be exercised by warranted police officers)
- increase the accountability and transparency of the Police Federation for England and Wales by extending its core purpose to cover the public interest and making it subject to the Freedom of Information Act 2000
- reform pre-charge bail to stop people remaining on bail for lengthy periods without independent judicial scrutiny of its continued necessity
- stop the detention in police cells of children and young people under 18 who are experiencing a mental health crisis (and restrict the circumstances when adults can be taken to police stations) by reforming police powers under sections 135 and 136 of the Mental Health Act 1983
- amend the Police and Criminal Evidence Act 1984, including to ensure that 17-year-olds who are detained in police custody are treated as children for all purposes, and to increase the use of video link technology
- amend the Firearms Acts, including to better protect the public by closing loopholes that can be exploited by criminals and terrorists
- make it an offence to possess pyrotechnic articles at qualifying musical events
- reform the late night levy to make it easier for licensing authorities to implement and put cumulative impact policies on a statutory footing
- better protect children and young people from sexual exploitation by ensuring that relevant offences in the Sexual Offences Act 2003 cover the live streaming of images of child sex abuse
- increase the maximum sentence from 5 to 10 years’ imprisonment for those convicted of the most serious cases of stalking and harassment
- confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences which would not be offences today, and on those persons still living who have had the conviction disregarded under the provisions of the Protection of Freedoms Act 2012
In anticipation of these changes, a number of revisions to the PACE Codes of Practice were also presented to Parliament in December.
For further detail on the Policing and Crime Act 2017, go to https://www.gov.uk/government/collections/policing-and-crime-bill.
The current texts of the PACE codes as amended can be found at https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice.
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 consultation, published on the same date, is at https://www.gov.uk/government/consultations/reforming-the-independent-police-complaints-commission-structure-and-governance.
In October 2016, the Justice Select Committee published a report on the role of the magistracy in the criminal justice system. The Ministry of Justice responded to this report in December 2016.
There was a lot of common ground between what the Select Committee recommended and what the government is planning in relation to the magistracy.
A couple of specific issues caught my attention.
First, the Committee had noted that there appear to be some difficulties in ensuring that there are sufficient magistrates able and willing to undertake work in the Family Court. This has led the Ministry of Justice to make some administrative changes allowing a more flexible approach to be adopted for enabling magistrates to undertake family court work. The Ministry of Justice has indicated that it may consider special recruitment of some new magistrates who would only sit in the Family Court. However, even if it was concluded that this would be a good policy to adopt, it would require a change in the law. Any such change will therefore be some time off.
Second, the Committee report and the response from the Government raise some interesting issues about the future of the Magistrate’s Clerk. The Justices’ Clerk is the senior lawyer and adviser to the magistracy. Currently the appointment of the Justices’ Clerk is made under the Justice of the Peace Act, 1997. This requires the post holder to be a solicitor or barrister of five years’ standing or be a solicitor or barrister with five years’ experience of working in Magistrates’ Courts.
The Government has raised the possibility either that Justices’ Clerk would no longer be a statutory appointment, but rather appointed under new non-statutory arrangements. An alternative idea is that the functions of the Justices’ clerk might be undertaken by other officials working in the court system. The Government response to the Select Committee report states that this question is currently the subject of a ‘private’ consultation: “A consultation on the creation of a new senior leadership structure for lawyers working within HM Courts & Tribunals Service: Proposals to make changes to the role of the justices’ clerk”. This was published in December 2016 but is not apparently publicly available.
It seems unlikely that a major change to the role of the Justices’ Clerk would take place without some publication, so – again – I suspect that any change will be some time away. It should be remembered that part of the purpose of making the appointment of Justices’ clerks a statutory process was to help guarantee their independence in advising magistrates. It will be essential that this issue is taken on board in any proposals for reform.
For the Justice Committee’s report, go to http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/165/16504.htm
Relations between Government and the Criminal Bar have not, in recent years been characterised by a great deal of warmth and mutual understanding. Indeed, criminal barristers went on strike recently against what they regarded as unfair policy on legal aid remuneration.
I am sure it would be overstating things to say that peace has now broken out between the Government and the Criminal Bar. But a new Consultation Paper on the remuneration of criminal defence advocates (including solicitor advocates) has been published which seems to be the fruit of close working relationship between the two sides.
Certainly the chairman of the Bar Council has welcomed the paper’s publication and has urged advocates to support the recommendations set out in the paper.
One of the key aims of the new proposals is to try to ensure that payments reflect actual work done by advocates on behalf of their clients.
The proposals also seek to reflect the changing nature of criminal trial practice as the criminal courts’ efficiency programme continues to develop.
The proposals also aim to give a sense of career progress to those who undertake criminal defence advocacy. Pay should be higher as experience is gained and more serious cases are undertaken.
The recommendations are not based on any increase in the amount of money available for paying advocates; but they are designed to be a rational response to the changing face of criminal advocacy and to take a fresh look at a payments system that was last looked at 20 years ago.
The details of the consultation – which runs till early March 2017, are at https://www.gov.uk/government/news/proposals-to-reform-criminal-defence-advocates-pay-published