Archive for the ‘Chapter 5’ Category
Launch of the Unified Probation Service
One experiment in use of the private sector to deliver important public services came to an end on 28 June 2021 with the Government’s announcement of its Unified Probation Service.
This undoes a reform introduced less than a decade ago by the then Lord Chancellor, Chris Grayling, who decided that while a public sector probation service would be retained for looking after the most serious offenders, private and charitable organisations would be responsible for looking after other offenders.
The specific aims of the Grayling reforms were to reduce the amount of re-offending and promote rehabilitation of offenders. These aims were sensible. Most would argue in favour of them.
What was heavily criticised from the outset by many with an interest in the criminal justice system was that the policy would be delivered primarily by private organisations opearting under contracts with Government. In the event, the critics were proved right. Operation of the contracts did not work in practice. It neither cut costs nor reduced reoffending.
The Government announced some time ago that contracts with private providers would be ended early. The latest announcement marks the completion of the process. The new service will continue to engage with some third sector/charitable organisations. But the new service in effect re-creates the National Probation Service which existed before the Grayling changes were made.
Getting probation right is always a challenge for Government. Some who think that the principal role of the criminal justice system is to punish may regard probation as soft option. The reality, however, is that it is clearly in the public interest that serious efforts are made to turn around the lives of offenders so that they can play a full part in society. Probation officers are on the front line in the delivery of these objectives. It is right that they should be seen as delivering a key public service.
I commented on the original Grayling proposals in this blog on 13 August 2013.
Details of the Government’s latest announcement are at https://www.gov.uk/government/news/bigger-better-probation-service-to-cut-crime
The Queen’s speech 2021: proposals affecting the English Legal System
In this note I set out a brief summary of those Bills which are most likely to impact upon the English Legal System and the topics I consider in my book on the subject.
Top of the list is the Police, Crime, Sentencing and Courts Bill. This Bill is not new, but is one being carried over from the last Parliament.
It has already attracted a great deal of public attention with widespread protests against its proposals for changing the law on the powers of the police to control demonstrations.
But it is a Bill which goes much wider than that and contains a range of important proposals which will affect reforms to the ways of working in courts and tribunals, on bail and on sentencing.
A Draft Victims Bill will also be published containing proposals to:
● Put into law the rights that were set out in the recent Victims’ Code which are designed to improve victims of crime experience of the criminal justice systeem; and
● Set expectations for the standard and availability of victim support for victims of domestic abuse and sexual violence.
Being a draft Bill, these ideas will be the subject of consultation before a definitive Bill is presented to Parliament. These measures are unlikely to become law for a couple of years.
A Judicial Review Bill is proposed. The issue of judicial review has been on the Government’s agenda for a long time. It was the subject of a review by a team led by Lord Faulks which suggested the possibility of some detailed changes to the current law (in particularly creating a power for the courts to suspend a quashing order) but which thought the main principles of the law should remain unchanged. The Government has launched a consultation on whether further questions need to be addressed, in particular whether and if so how the courts could be prevented from reviewing particular categories of issue. The outcome of this consultation is not yet available. I assume that the Bill which has been announced will not be published until the current consultation is completed.
A Dissolution and Calling of Parliament Bill is designed to repeal the Fixed-Terms Parliaments Act 2011. In addition, the briefing on the Bill states that it will revive the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament. (This provokes an interesting question whether prerogative powers – which are the residual powers of the Crown still exercised by the Executive branch of Government – retain this character once they have been provided for in an Act of Parliament.)
Furthermore, it is said that the Bill will reaffirm ‘the long-standing position that the courts may not block a dissolution (and hence a general election)’ through a non-justiciability clause.
Both the Judicial Review Bill and the Dissolution and Calling of Parliament Bill will be the subject of intense critical debate, particularly by constitutional and public lawyers as well as others interested in the operation of Government.
Finally, mention may be made of the Electoral Integrity Bill which make changes to the ways in which elections are run. In addition to the widely publicised proposal that voters should be required to bring some form of photo ID with them to the polling station, the Bill will also require election messages sent on social media should contain an ‘imprint’ showing who has published the message; improving access to polling stations for the disabled; and removing limits on the ability of UK citizens who live overseas (expats) to vote in UK elections.
The speech and the background briefing are available at https://www.gov.uk/government/publications/queens-speech-2021-background-briefing-notes
End of the 2019-2021 Parliamentary Session: legislative and other outcomes
It feels as though the 2019-2021 Parliamentary session, which started immediately after the election of the Boris Johnson Government and has just come to an end has gone on for ever. The dramas of Brexit were anticipated; those of the Covid-19 pandemic were certainly not. This note looks at some of the key outcomes from this session, in particular those that impact on my book, Introduction to the English Legal System, the 15th edition of which will be published soon.
As I have written before, despite all the attention and time that needed to be spent on dealing with the pandemic, four important pieces of legislation managed to get through the Parliamentary process.
The Divorce, Dissolution and Separation Act 2020 and the Sentencing Act passed in 2020. Both have been considered in these notes and are included in the new edition of the Book.
Two other important pieces of legislation completed their parliamentary journey in the dying days of the 2019-2021 session.
First is the Domestic Abuse Act 2021 which should have a major impact on how domestic abuse is dealt with by the police, social authorities and the courts. I have written about this legislation before (see 15 March 2019, 21 May 2020, and 23 July 2020). A Press Release summarizing the key features of the new Act – which has taken a long time to reach the statute book – is at https://www.gov.uk/government/news/landmark-domestic-abuse-bill-receives-royalassent .
The other Act which should be noted here is the Counter-Terrorism and Sentencing Act 2021, about which I have also written before (on 22 July 2020). This is designed to strengthen provisions relating to the detention and monitoring of those convicted of terrorist offences. See the press release at https://www.gov.uk/government/news/longer-jail-terms-and-stricter-monitoring-as-new-terror-laws-gain-royal-assent for a brief overview of this Act.
This Act needs to be kept distinct from the quite separate Police, Crime, Sentencing and Courts Bill. This was not introduced into Parliament until March 2021. It has already attracted considerable public attention, with demonstrations against the Bill being held in many cities throughout the country.
The Bill picks up proposals in the Smarter Approach to Sentencing White Paper, about which I wrote here on 9 October 2020. But it also reflects earlier Conservative Party manifesto pledges. An extremely helpful background note, setting out both the origins of the Bill and it principal features can be found in the House of Commons Library Research Briefing at https://commonslibrary.parliament.uk/research-briefings/cbp-9158/ which was published in March 2021.
Media headlines are focused on issues relating to powers to limit the right to protest peacefully, but there is a great deal more in this wide-ranging Bill. This Bill will be brought back to Parliament once the new 2021-2022 session gets under way.
Also worth mentioning in this context is the Parliamentary Constituencies Act 2020. This provides for major changes to the boundaries of parliamentary constituencies, to try to ensure that there is approximately the same number of voters in each constituency. This is an idea that has been around for some time – originally linked with proposals to reduce the number of MPs in the House of Commons. This aspect of the changes has been abandoned. The work of redrawing the boundaries will be undertaken by the Boundary Commissions – one each for England, Wales, Scotland and Northern Ireland. Final reports are due by 1 July 2023. See further https://www.gov.uk/government/news/new-law-passed-will-make-voting-in-uk-general-election-fairer
What the legislative landscape for the next 12 months will look like will become clearer after the Queen’s Speech, which will be delivered on 11 May 2021. This will be the subject of a separate note.
Criminal Injuries Compensation scheme: updated guidance
Government guidance on the Criminal Injuries Compensation scheme was updated in April 2021.
The guidance in available at https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide
Reforming the Parole Board: first steps
In October 2020 a ‘root and branch review’ of the Parole Board was announced.
One part of this review was a public consultation on the question of whether hearings of the Parole Board should be held in public. The outcome of this consultation has now been published (8 February 2021).
At present, the Parole Board Rules forbid Parole Board hearings from taking place in public. In responses to the Consultation, a minority of respondents argued that all hearings should be open. However, a majority thought this would be impracticable. Too many hearings involved the consideration of matters that it would not be in the public interest to disclose.
The Government has now concluded that there might be limited circumstances in which an open hearing might be appropriate. It has therefore decided that the Parole Board Rules should be amended to at least make it possible for a hearing to take place in public.
It is likely that the relevant rule amendment will be made in the coming months. Meanwhile, work continues on the other that formed part of the root and branch review. Further announcements are anticipated later in 2021.
I wrote a blog item on the review and its scope when it was announced in October 2020. See https://martinpartington.com/2020/10/31/root-and-branch-review-of-the-system-of-parole-and-the-work-of-the-parole-board/
The Report on the outcome of the Consultation on making hearings open to the public is at https://www.gov.uk/government/consultations/root-and-branch-review-of-the-parole-system
Reform of the justice system: update on progress
Those who are following the progress of the programme to change the ways in which the justice system works might care to look at the presentation delivered to the 4th Annual Users Conference.
Online sessions were spread across three days (3, 4, 5 November 2020) and covered the work of criminal, civil, family, tribunals and cross-jurisdictional reform projects over the past 12 months, a year that has been significantly impacted by the need to respond to the pandemic.
Readers can access the main speeches at https://www.judiciary.uk/announcements/civil-justice-councils-9th-national-forum-on-access-to-justice-for-those-without-means/
This links to the principal speeches which are on YouTube.
Further information and powerpoint presentation can be accessed at https://www.gov.uk/government/news/hmcts-heads-online-for-2020-public-user-event#history
Impact of Covid-19 on the criminal justice system: the view of the Criminal Justice Inspectorates
There are 4 Inspectorates which have statutory power to keep different parts of the criminal justice system under review: prosecution, police, prisons, and probation. Covid-19 has impacted all aspects of the system.
While the inspectorates have on many occasions worked with each other (on some occasions with other agencies outside the criminal justice system), it is rare for all 4 of the criminal justice inspectorates to come together to write a joint report on a single issue. The impact of Covid-19 on the criminal justice system has been the trigger for their latest report, Impact of the pandemic on the criminal justice system, which was published on 19 January 2021.
As the press release to the report makes clear, each of the Inspectorates has been examining the impact of Covid-19 on their individual parts of the system. They have already published or will soon be publishing their own individual resports on the impact of the virus.
But the Chief Inspectors are obviously extremely concerned about the enormous stresses being placed throughout the criminal justice system – not all deriving from the pandemic, but to which the pandemic has added new dimensions.
In their joint report, the Chief Inspectors draw together common issues which are discussed in each of their studies. They spell out how the Covid-19 pandemic has affected the work of the police, prosecutors, prisons, probation and youth offending teams. They point to difficulties and lengthy waits at all stages of the criminal justice process observing that delays “benefit no one and risk damage to many”.
While the Chief Inspectors were able to praise some positive initiatives that had been taken during the Covid-19 pandemic, including the acceleration of digital working, and the commitment of staff, other areas were of more concern. They included the lack of education provision in custody and in the community for young people and the highly restrictive regimes imposed on a majority of prisoners which have continued for many months without respite, impacting negatively on their physical, emotional and psychological wellbeing and also more generally on prospects for effective rehabilitation.
In the Chief Inspectors’ view, the greatest risk to criminal justice comes from the “unprecedented and very serious” backlogs in courts. The number of ongoing cases in Crown Courts was 44 per cent higher in December 2020 compared to February of the same year. Latest figures show more than 53,000 cases are waiting to come before Crown Courts. Some of these cases have been scheduled for 2022. Despite additional funding, the continuing impact of Covid-19 is likely cause further delays.
A particular source of frustration are cases which have been listed for trial but are then cancelled and postponed, all adding to the stress of victims as well as of the accused.
The Joint Report has been used as the basis for a meeting with the Justice Select Committee which is very concerned about the impact of Covid-19 on the Justice system and indeed reported on the issue in October 2020.
The evidence in this report clearly demonstrates the potential importance of the proposed Royal Commission on the Criminal Justice system. The delay in establishing this, which I have criticised before, is a real source of frustration for all those who want to see major improvements in the operation and effectiveness of the Criminal Justice system.
Details of the Joint Report can be found at https://www.justiceinspectorates.gov.uk/cjji/inspections/impact-of-the-pandemic-on-the-criminal-justice-system/
The evidence of the Chief Inspectors to the Justice Committee is at https://committees.parliament.uk/committee/102/justice-committee/news/138547/committee-gets-early-sight-of-criminal-justice-system-report/
Revisiting ‘pre-charge bail’ – further changes in the wind
In recent years there was much complaint about the shadow that can be cast over someone’s life when that person has become of interest to the police, but where the police do not have enough evidence to justify charging him or her with the committal of an offence. A number of well-known members of the public were placed on police bail for months, not knowing whether any further steps were going to be taken against them.
When she was Home Secretary, Theresa May decided to amend the law so that, in most cases, a person would normally be subject to ‘pre-charge bail’ for only 28 days (though limited extensions could be granted). There were two main justifications offered for making these changes:
- When a person has been arrested, the time they can be detained by the police pending a charge is closely regulated. If the evidence is not available to justify a charge, they must be released. Mrs May thought it was right that ‘pre-charge bail’ should also be time limited.
- Mrs May thought that if a 28 day limit was imposed, this would incentivise the police to get on with their evidence gathering and therefore bring the issue of whether or not to charge a person to a head more quickly.
As an alternative to releasing a person on bail, the 2017 Act gave the police the power to release suspects under investigation (RUI).
It is fair to say that there was considerable professional resistence to these proposals. Individual police forces and the College of Policing were both very concerned that the implications of making these changes had not been fully thought through and were unlikely to have the hoped-for effect. Nonetheless, Part 4 of the Policing and Crime Act 2017 brought these changes into effect.
On 5 November 2019 the government announced that there would be a review of the pre-charge bail legislative framework. The objective of the review was to ensure that there was in place a system that:
• prioritises the safety of victims and witnesses;
• supports the effective management of investigations;
• respects the rights of individuals under investigation, victims and witnesses to timely decisions and updates; and
• supports the timely progression of cases to courts.
Between February and April 2020, the Home Office conducted a public consultation on proposals for amending the legislation.
At around the same time, in late 2019 and early 2020, a joint inspection by HM Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) and HM Crown Prosecution Service Inspectorate (HMCPSI) into how these changes were working in practice was undertaken. The report from the inspection was published in December 2020.
The headline findings of the joint inspection were:
- that suspects are still faced with lengthy delays and that the changes also had unintended consequences for victims, who view them as overwhelmingly negative;
- that not enough thought was given as to how the legislative changes would affect victims;
- that RUI leaves too many victims without the reassurance and protection that bail conditions can provide;
- there was an inconsistent implementation of the changes by forces due to a lack of clear guidance;
- that investigations involving suspects released under investigation tend to take longer and are subject to less scrutiny than ones involving formal bail; and
- that victims and suspects do not understand the legislation and are not being updated about the progress of their case.
For example, in many cases of domestic abuse and stalking, suspects were being released under investigation instead of being formally bailed with conditions. This was very worrying because of the high harm and risk associated with these types of crime. The Inspectorates found through their research that victims of domestic abuse felt less safe since the changes were made.
Reports in the press today (13 January 2021) suggest that the outcome of the Home Office’s review will shortly be published together with details on how the law is to be amended.
Details of the Home Office Consultation are at https://www.gov.uk/government/consultations/police-powers-pre-charge-bail
The Inspectorates reports and accompanying research is found at https://www.justiceinspectorates.gov.uk/hmicfrs/news/news-feed/further-changes-to-bail-legislation-must-consider-victims-needs/
The Press story is in the Times 13 January 2021 at https://www.thetimes.co.uk/article/reforms-to-police-bail-that-left-victims-at-risk-will-be-scrapped-2mdzzmxk5
Royal Commission on Criminal Procedure – 40th Anniversary of the publication of the Philips report
Yesterday (6 January 2021) I published a note on two recent reports about the police powers of stop and search. This has triggered a response from one reader who has reminded (more accurately informed) me that, almost 40 years to the day, the report of the report of the Royal Commission on Criminal Procedure (RCCP) – chaired by the late Sir Cyril Philips – was published on 5 January 1981.
Sometimes Royal Commissions get a bad press. It is said they are used as a means of kicking difficult subjects into the long grass, in the hope that somehow they will go away or at least provide Ministers with an excuse not to do something until the Commission has reported by which time someone else will be in charge.
The Royal Commission on Criminal Procedure was not one of these. It was a major undertaking – accompanied by a substantial research programme – which lead to three major developments in the criminal justice system in England and Wales.
The first of these was the establishment of the Crown Prosecution Service. Until the RCCP reported, the police were responsible for both investigating a crime and taking the decision to prosecute. A number of miscarriages of justice at the time occurred because the police did, on occasion, use these twin functions to ensure that they were in charge of getting evidence that would eventually enable them to bring a prosecution.
The RCCP insisted that there had to be a separation between the investigation function and the prosecution function. At the time this was regarded as a very controversial idea, but the Government agreed to implement the recommendation. Following the publication of a White Paper in 1983, the Prosecution of Offenders Act 1985 created the new service, which started work in 1986. It brought together, under the Director for Public Prosecutions (DPP), the former DPP’s office and the prosecution offices from individual police forces in England and Wales. Despite a lot of teething problems, the CPS has become a well established part of the criminal justice system – albeit now struggling with others from funding cuts and Covid 19.
The second major outcome from the RCCP was the enactment of the Police and Criminal Evidence Act 1984. This sought to bring clarity to the powers of the police. Since this involved some rationalisation and expansion of police power, the PACE Codes of Practice were also put in place to set boundaries on the ways in which those powers were to be exercised. Although the Codes have been revised and added to since the original legislation was enacted, the basis framework recommended by the RCCP has survived. Indeed, the creation of the CPS was, at least in part, to provide another check on the possible abuse by the police of their reformed powers.
A third development recommended by the RCCP was the creation of the Police Complaints Authority (now the Independent Office for Police Complaints). This replaced an earlier Police Complaints Board which did not have the powers or resources to take complaints against the police seriously.
I would not for one moment argue that the RCCP report solved all the problems relating to the criminal justice system. (The fact that only a decade later there was a further Royal Commission, this time on Criminal Justice, which – among other things – recommended the creation of the Criminal Cases Review Commission, shows that the criminal justice system always presents challenges for policy makers and practitioners.)
But it did create a structure which has lasted more or less intact for 40 years.
Experience with both these Royal Commissions demonstrates that their work can deliver significant and lasting change. This is one of the reasons why I, for one, am so disappointed that the Royal Commission on the Criminal Justice System, promised by the present Government, is not being taken forward more urgently. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 