Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 5’ Category

The Criminal Legal Aid Review: interim announcements

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The Government announced, way back in December 2018, that it planned to undertake a review of the Criminal Legal Aid scheme. This was a response to a fierce campaign (including instances of strike action) by the legal professions complaining about the very poor rates of pay now offered for criminal legal aid work, and evidence that – at those levels of pay – the future prospects for a criminal legal aid service looked bleak.

Although, under the Legal Aid, Sentencing and Punishment of Offenders Act 2013, the scope of the Criminal Legal Ad scheme had not been reduced in the same way as the civil legal aid scheme had been, Government austerity measures certainly bit on the pay and conditions of those undertaking criminal legal aid work.

The announcement of the review in December 2018 provided some acknowledgement by the Government that all might not be well. But setting up a review can be used as a mechanism for postponing hard decisions. As the result of further lobbying by criminal legal aid practitioners, the Government decided that it would offer an accelerated set of interim measures to try and mollify the legal profession – at least in the short term.

On 21 August 2020 the Government’s decisions on the accelerated measures were announced. In making the announcement, the Lord Chancellor stated that the changes would represent an injection of around £51m into the Criminal Legal Aid Budget. Set against a total spend (in 2019-2020) of around £820m on Criminal Legal Aid it is only a modest increase (just over 6%). The additional resources will be used to deal with a number of detailed issues such as how litigators and advocates are paid for work on unused material and how advocates are paid for work on paper-heavy cases.

In announcing his decision, the Lord Chancellor commented:

“[The] accelerated areas are only the first step towards the wider review, which we always intended would result in reforms that would support a sustainable and diverse market of practitioners. Since then, Covid-19 has thrown into sharp relief concerns about the sustainability of the market. …

“Fundamentally, we want to ensure that the market can: meet demand now and into the future; provide an effective and efficient service that ensures value for money for the taxpayer, and continue to provide defendants with high-quality advice from a diverse range of practitioners. …

“Having reflected on whether our original approach to delivering the review was the right one to achieve these overarching aims, I have decided that the next phase of the Review should involve an independently-led review that will be ambitious and far-reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market. It will consider working practices and market incentives and how these can drive efficient and effective case progression and deliver value for money for the taxpayer. Planning is in progress and I plan to launch it as soon as possible after Parliament returns [in September 2020].

“Alongside the independent review, we will also prioritise work to ensure that the fee schemes … are consistent with and enable wider reforms that seek to modernise the criminal justice system, in line with our original aims for the review. Given the rapid changes in ways of working that have been adopted across the justice system to support recovery in the courts, it is essential that the criminal legal aid system actively enables the defence profession to play its role in these efforts.”

So a lot of further change may be anticipated. In the meantime, long-suffering criminal legal aid practitioners will soldier on, hoping for better times ahead.

Details of the announcement and the details of the Government’s changes – which will be brought into effect by regulations in August 2020 – see https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/

Written by lwtmp

August 25, 2020 at 4:43 pm

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Whither the Sentencing Council?

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Many Government consultation are on rather specific issues. The consultation considered here is rather different, designed to encourage some rather more blue-skies thinking about the work of the Sentencing Council.

It has been launched because 2020 marks the 10th anniversary of the establishment of the Sentencing Council for England and Wales. During that time it has produced 27 sets of definitive guidelines encompassing 145 separate guidelines that cover 227 offences and eight overarching topics.

As the accompanying press release notes: “Developing guidelines is a collaborative process; as well as input from Council members and the small multi-disciplinary team who support its work, it relies on the cooperation of individuals and organisations working in the criminal justice system and beyond to ensure that it has the fullest information possible to draw on.”

Over the years, thousands of magistrates and judges have completed surveys or participated in detailed research, providing the Council with evidence which underpin the guidelines. It has held more than 30 public consultations, which have received almost 4,000 responses.

In addition to producing guidelines, the Council also: publishes research and statistics on sentencing; seeks to promote public understanding of sentencing through information on its website; provides educational materials for use in schools; and works with other organisations, for example the police.  

The stated purpose of the consultation – which opened in March 2020 – is not to look back (though obviously it reflects on the work of the Council to date), but to look forward. It is asking all those with an interest in criminal justice and sentencing to contribute to a discussion on what the Council’s future objectives and priorities should be.

The Consultation runs until mid September 2020.

It can be found at https://consult.justice.gov.uk/sentencing-council/what-next-for-sentencing-council/

Written by lwtmp

August 24, 2020 at 4:41 pm

Reviewing the Criminal Injuries Compensation scheme

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Despite all the headline attention being given to the Covid-19 pandemic and measures being taken to mitigate some of the effects of the disruption to courts and tribunals that it has caused, the Ministry of Justice continues to undertake other work which does not attract the same public attention.

The issue considered here relates to a consultation on the Criminal Injuries Compensation Scheme, which was announced in July 2020.

The Criminal Injuries Compensation Scheme (the Scheme) is a statutory scheme that exists to compensate victims of violent crime in Great Britain. Its core purpose is to recognise, through compensation, the harm experienced by victims injured as a result of violent crime, including physical and sexual assault as well as domestic terrorist attacks. The Scheme was last reviewed in 2012.

The cross-Government Victims Strategy of September 2018 included undertakings to do more for victims at every stage of the criminal justice system. As part of this, the Government committed to engaging in a comprehensive review of the Scheme. The terms of reference were published in December 2018. The review has examined whether the Scheme remains fit for purpose, reflects the changing nature of violent crime and effectively supports victims in their recovery.

In July 2020, the Government published a Consultation Paper on proposals for dealing with problems that those with experience of the working of the scheme made to the review. The Consultation is open until 9 October 2020. One of the issues specifically addressed is the lack of awareness of the scheme on the part of victims of crime.

It is likely that detailed amendments to the scheme will eventually emerge from this process. However major overhaul of the scheme seems unlikely.

The details of the consultation are at https://www.gov.uk/government/consultations/criminal-injuries-compensation-scheme-review-2020

Written by lwtmp

August 24, 2020 at 3:33 pm

Jury trial in the cinema?

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I wrote earlier about the experiment run by the human rights group JUSTICE on the possible use of ‘virtual jury trials’ (4 June 2020). This was seen as one way of increasing the number of cases being dealt with while the Court service struggles to protect all those involved in serious criminal trials save from the Covid-19 virus.

I’ve just read a fascinating item by Joshua Rozenberg, describing an initiative taking place in Scotland which involves juries going to the cinema and watching a trial fed into the cinema by closed circuit TV. With the numbers of screens available in multiplex cinemas, such an idea could enable quite significant numbers of trials to go ahead. Initally it is hoped that 16 screens in Glasgow and Edinburgh could be used.

Rozenberg writes: “Cameras and microphones will relay the proceedings to the cinema where jurors will hear and see the trial as if they were watching a movie. The screen will be divided into four so that jurors can see the judge, counsel and the accused while listening to witnesses or viewing the evidence.”

Members of the jury will also be under the eye of a camera, so that they can be seen in the actual court room.

Rozenberg reports the Lord Chief Justice for England and Wales as being rather dubious about this idea, suggesting that it would turn a jury trial into some form of entertainment. But would this not be preferable to proposals to do away with jury trial (an idea supported today by the former Lord Chief Justice, Lord Phillips) – at least for a time – to enable the criminal justice system in England start to offer a more acceptable level of service?

I agree with Rozenberg that this is an idea worth considering. It would also overcome some of the technical problems that might be associated with running criminal trial over Zoom or another video networking platform.

Joshua Rozenberg’s blog is at https://rozenberg.substack.com/p/trial-by-movie.

Some of the potential problems about the use of remote criminal proceedings are discussed by Roger Smith in https://law-tech-a2j.org/remote-courts/remote-courts-and-the-consequences-of-ending-practical-obscurity/

Written by lwtmp

August 20, 2020 at 4:55 pm

Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession

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I have noted before that a number of Parliamentary Committees are examining aspects of the impact of Covid 19. The Justice Committee is in the middle of publishing a series of reports on this question. The first two of these, on Courts and on the Legal Profession have been published (30 July 2020 and 3 Aug 2020).

Both reports are, inevitably, in the nature of interim reports – given that we are still in the middle of a crisis, the outcome of which is far from clear.

The first report, on the Courts, takes up the widespread criticism that there were already considerable backlogs and unacceptable delays in the criminal justice system which have been exacerbated by the arrival of Covid 19.

The Committee notes that measures being put in place to improve the performance of the Crown Courts include a possible increase in the number of sitting days and the opening of the (temporary) Nightingale Courts – specially adapted spaces in which criminal trials can be dealt with.

As regards Magistrates’ Courts,  the Committee found that the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. (The backlog previously peaked at 327,000 outstanding cases in 2015.) By mid-June, the figure was even higher. HMCTS has promised a ‘recovery plan’; the Committee states that it looks forward to seeing it.

By contrast with the criminal justice system, the civil, administrative and family systems have fared relatively better. Much of this has been the result of the ability of the courts and tribunals service to move hearings online. The Committee repeats concerns raised elsewhere, for example about enabling those who find it hard to use IT to participate, and that some types of family dispute are hard to deal with online.

The Committee stresses the importance of HMCTS undertaking proper evaluations of the impact of these new procedures on users of the system. It also emphasises that changes in practice arising out of the need to respond to the pandemic should not be adopted on a permanent basis, without more evaluation and consultation.

The Justice Committee report on the impact on the legal profession is not as general as its title might suggest. It focusses primarily on the impact on legal aid practitioners and other advice agencies, arguing that they continue to need financial support if the provision of services – particularly in criminal cases – is not to be lost.

The Committee’s report on the impact of Covid 19 on the Courts is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51905.htm

Their report on the impact of the pandemic on the legal profession is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/520/52003.htm

 

 

 

 

 

 

Counter-Terrorism and Sentencing Bill 2020

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So far as the legal system is concerned (and in many other contexts as well) the headlines have all been about dealing with Covid-19. But this does not mean we should not keep an eye on other developments which will have an impact on aspects of the legal system.

One example is the Counter-Terrorism and Sentencing Bill 2019-21, introduced in the House of Commons in May 2020, and which yesterday (21 July 2020) completed the Report Stage and Third Reading. It now proceeds to the House of Lords.

This Bill is a second response to two terror attacks which occurred in London – at Fishmongers Hall on 29 November 2019 and in Streatham on 2 February 2020.  Each attack was committed by a known terrorism offender who had been released automatically at the halfway point of their sentence without any input from the Parole Board. There was no provision to allow for an assessment of risk prior to release.

The first response was the enactment of emergency legislation, the Terrorist Offenders (Restriction of Early Release) (TORER) Act 2020. This was designed to ensure that terrorist offenders serving or sentenced to a determinate sentence could not be released before the end of their custodial term without the agreement of the Parole Board.

The Counter-Terrorism and Sentencing Bill 2019-21 develops the law on the handling of those found guilty of terrorist offences further. It has two broad objectives:

  1. Longer periods in custody

Reflecting the seriousness of the offences they have committed, the Government hopes that the changes will offer better protection for the public and more time in which to support the disengagement and rehabilitation of offenders through the range of tailored interventions available while they are in prison.

Among the measures in the Bill are:

  • Serious and dangerous terrorist offenders will spend longer in custody, by introducing the Serious Terrorism Sentence for the most serious and dangerous terrorist offenders. This sentence carries a minimum of 14 years to be spent in custody, with an extended licence period of up to 25 years.
  • This legislation removes the possibility of an early release from custody for serious and dangerous terrorist offenders, aged under and over 18, who receive an Extended Determinate Sentence.
  • This legislation increases the maximum sentence that the court can impose for three terrorism offences (membership of a proscribed organisation, supporting a proscribed organisation, and attending a place used for terrorist training), from 10 to 14 years.
  • The courts will be given power to find any offence with a maximum penalty of more than two years to have a terrorist connection. (This may result in a higher sentence than would otherwise be the case.)

2. Changes to the management and monitoring of terrorist offenders.

The measures in the Bill include:

  • extending the scope of the sentence for offenders of particular concern (SOPC) by expanding the list of terrorist and terror-related offences which attract the sentence, and creating an equivalent sentence for offenders aged under 18 in England and Wales, Scotland and Northern Ireland. This will ensure terrorist offenders have a minimum period of supervision on licence of 12 months following release.
  • extending the maximum licence periods for serious and dangerous terrorist offenders for offenders aged under and over 18.
  • extending the application of mandatory polygraph testing when on licence to terrorist offenders aged over 18.

The Bill’s measures will also

  • strengthen Terrorism Prevention and Investigation Measures (used by Counter-terrorism Police and the Security Services),
  • support the use of Serious Crime Prevention Orders in terrorism cases, and
  • expand the list of offences that trigger the Registered Terrorist Offender notification requirements. These changes strengthen our ability to manage the risk posed by those of terrorism concern.

Details of the Bill and background fact sheets are available at https://www.gov.uk/government/publications/counter-terrorism-and-sentencing-bill.

The Bill and the Explanatory Notes are at https://services.parliament.uk/Bills/2019-21/counterterrorismandsentencing.html

Enacting the Sentencing Code

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In 2018, the Law Commission published the final report on one of its largest law consolidation exercises – the creation of a Sentencing Code. The Sentencing Code does not make new law, but consolidates into a single place all the law relating to sentencing.

The law on sentencing was spread throughout a large number of enactments. It had become particularly complex because changes in the law often resulted in earlier pieces of legislation being repealed except for specific provisions relating to sentencing. Thus the law applicable to any particular offence could be very hard to discover. Indeed, it was so hard to discover that, in 2012, an analysis of 262 randomly selected cases in the Court of Appeal (Criminal Division) found that 36 percent had received unlawful sentences. The Law Commission attributed these results to the level of complexity in the existing legislation.

In order to achieve this outcome, two pieces of legislation are required:

  • The Sentencing (Pre-consolidation Amendments) Act 2020
  • The Sentencing Bill

Sentencing (Pre-consolidation Amendments) Act 2020

This is a very technical piece of legislation which amends current law so that it is brought into a state to be consolidated when the Sentencing Code itself comes into effect (which will be on 1 October 2020). Once the Code is effective, the pre-consolidation Act becomes redundant.

The Sentencing Bill 2020

The Sentencing Bill which contains the Sentencing Code is a consolidation bill. It does not therefore need to go through the normal Parliamentary Process. Instead it is considered by a specially constituted Joint Committee on Consolidation Bills. At the time of preparing this note, the Bill has been introduced into the House of Lords where it has received its second reading. However, the Joint Committee has not yet been established.

Sentencing code: structure
The code is set out in Parts 2 to 13 of the bill. The code’s structure follows the chronology of a sentencing hearing, as follows:

(a) Before sentencing:

• Part 2 is about powers exercisable by a court before passing sentence.

(b) Sentencing:

• Part 3 is about court procedure when sentencing.
• Part 4 is about the discretion a court has when sentencing.

(c) Sentences:

• Part 5 is about absolute and conditional discharges.
• Part 6 is about orders relating to conduct.
• Part 7 is about fines and other orders relating to property.
• Part 8 is about disqualification.
• Part 9 is about community sentences.
• Part 10 is about custodial sentences.
• Part 11 is about behaviour orders.

(d) General:

• Part 12 contains miscellaneous and general provisions about sentencing.
• Part 13 deals with interpretation.

As a consolidation bill does not alter the law, there are no explanatory notes. However the House of Lords Library has provided an excellent short introduction to the Bill, available at  https://lordslibrary.parliament.uk/research-briefings/lln-2020-0084/

What about new offences or new sentences? Keeping the Code up to date

As is well known, Governments frequently change the criminal law, adding new offences of amending existing ones. Henceforth the sentencing implications of such changes are to be dealt with by way of amendments to the Sentencing Code. The intention is that the Code will automatically be updated as new sentencing provisions are enacted. One of the first examples of changes to the Code can be found in the Counter Terrorism and Sentencing Bill 2020, currently before Parliament. See https://services.parliament.uk/Bills/2019-21/counterterrorismandsentencing/documents.html

Up to date electronic versions of the Code will be available online.

The role of the Sentencing Council

Sentencing powers give sentencers considerable discretion. The role of the Sentencing Council, giving guidance on how that discretion should be exercised, is unaffected by the Sentencing Act and the creation of the Sentencing Code.

 

 

 

 

Written by lwtmp

July 21, 2020 at 11:07 am

Transformation of the Justice System: reports on the progress of the HMCTS reform programme

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It is a some time since I wrote about the great Transformation of the Justice system programme that was launched in 2016. It is quite a challenge to follow the progress of the reform programme. I thought it would be useful to bring together the principal documents which relate to the project which will fundamentally reshape the justice system for years to come.

  • The Transformation of the Justice system project was formally launched in a joint statement issued by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in September 2016.

See https://www.gov.uk/government/publications/transforming-our-justice-system-joint-statement

Initially planned for completion in 2021, the end date is currently set back to December 2023, though many parts of the programme have been completed. The principal features the programme can be seen in the following diagram.

The PAC report resulted in six separate responses from the Government, details of which are at https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals. (see this blog 10 March 2019)

  • One issue, raised in both the above reports,  related to the adequacy of HMCTS engagement with stakeholders. HMCTS responded by commissioning an independent audit of stakeholder engagement which was published in October 2019. See https://www.gov.uk/government/publications/hmcts-stakeholder-perception-audit-report-2019. A further progress report on stakeholder engagement was published in January 2020. (It can be found by googling HMCTS Engaging with our external stakeholders 2020 which leads to a Report published in Jan 2020.)

This has not to date led to a further report from the Public Accounts Committee.

HMCTS issued a response to this report in the form of a Press Release, which is available at https://www.gov.uk/government/news/hmcts-response-to-justice-select-committee-report-on-court-and-tribunal-reforms

I hope that this blog entry, listing key documents and reports relating to the transformation project will be useful for those wanting to get an overview of the project and its progress. I will endeavour to keep readers up with more specific developments as they occur. For the moment, many of these have become intertwined with arrangements that have been made to adjust the work of the courts and tribunals to the effects of the Covid 19 pandemic.

Royal Commission on the Criminal Justice system – details awaited

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In the Queen’s Speech, delivered in December 2019, it was announced that the Government would establish a Royal Commission to review and improve the efficiency and effectiveness of the criminal justice process. Little has been heard of this proposal since then. However, in recent meetings with the House of Commons Justice Committee, the Lord Chancellor made it clear that he has been given the resources needed to enable the establishment of the Commission.

At present – and no doubt reflecting other more pressing priorities driven by Covid 19 – no further information is available. It is, however, likely to be a broad-ranging inquiry, not only limited to the operation of the courts, but taking other aspects of the criminal justice system into account as well.

A separate consultation on the Criminal Legal Aid scheme closed in June 2020. The results of that inquiry are likely to be published towards the end of 2020. A number of interim changes to the criminal legal aid scheme were announced in February 2020.

For the Queen’s Speech, December 2019, see https://www.gov.uk/government/speeches/queens-speech-december-2019

The announcement of the consultation on Criminal Legal aid is at https://www.gov.uk/guidance/criminal-legal-aid-review

Reaction of the Law Society is at https://www.lawsociety.org.uk/en/topics/criminal-justice/criminal-legal-aid

Victims of crime: increase of the victim surcharge and consultation on new Code for victims

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In March 2020, the Government announced that it was increasing the Victim Surcharge by 5%. This was done by a Statutory Instrument which came into force on 14 April 2020.

The Victim Surcharge is not a fine, but a separate charge which courts must impose on all offenders to ensure they bear some responsibility towards the cost of supporting victims. Revenue from the Surcharge contributes to the Victim and Witness Budget which is used to grant fund Police and Crime Commissioners, who commission local support services for victims. It also funds nationally commissioned support such as:

  • Rape Support centres across England and Wales,
  • the Court Based Witness Service, and
  • the National Homicide Service.

The Government estimates that the 5% increase will raise between  £1 million and £2 million a year to help fund victim support services. It will see offenders pay between £1 to £9 extra, depending on their sentence. The Government is considering whether the surcharge should be increased even further.

Also in March 2020, the Government announced a consultation on proposals to change the Victims’ Code. If brought into effect, these would change the structure of the existing Code so it becomes a clearly defined set of rights, that are easy for victims to understand and which set out the minimum level of service victims can expect from criminal justice agencies.

The proposals focus on a number of key areas:

  • raising awareness and accessibility;
  • providing clearer information on victims’ rights to access practical and emotional support;
  • strengthening communication and taking account of the victim’s preferences; and
  • increasing the voice of the victim by providing more flexibility in the Victim Personal Statement process.

The Consultation ran until the end of May 2020; the outcome is still awaited.

For the announcement on the increase in the victim surcharge, see https://www.gov.uk/government/news/criminals-made-to-pay-more-to-fund-victim-support

More information on the Consultation on the Victims Code is at https://consult.justice.gov.uk/victim-policy/consultation-on-improving-the-victims-code/

 

Written by lwtmp

July 8, 2020 at 4:49 pm