Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 5’ Category

Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board

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In November 2015, I noted in this blog the critical report by Sir Bill Jeffrey on standards of criminal advocacy. I also noted the consultation paper on the subject issued by the Government.

In June 2018, the SRA and the BSB published two reports on the subject.

The first report explores the views of the judiciary on the current quality, provision and regulation of advocacy within the criminal courts. The Judicial Perceptions Report, involved in-depth interviews with 50 High Court and circuit judges.

Key findings were:

  • While judges viewed the current quality of advocacy as competent, some felt that standards were declining in some areas, especially in relation to core courtroom skills such as case preparation and dealing with some witnesses.
  • Advocates’ skills in dealing with young and vulnerable witnesses are largely improving.
  • The most commonly cited barrier to high quality advocacy was advocates taking on cases beyond their level of experience.
  • Judges were uncertain over when, and how, they should report poor advocacy to regulators.

The second report arose from a Thematic Review of Criminal Advocacy, undertaken by the SRA. It was informed by data gathering and interviews with 40 solicitors’ firms actively involved in providing advocacy by solicitors within the courts.

Key findings of the SRA’s thematic review included:

  • Firms use in-house solicitors to support the vast majority of criminal work in magistrates’ courts and youth courts (90 percent), and 29 percent of work in the Crown Court.
  • The solicitors’ advocacy market is dominated by smaller firms and increasingly ageing individuals, while the number of new entrants to the market is falling.
  • Levels of complaints regarding advocacy work are relatively low (22 recorded complaints in two years across all 40 sample firms).
  • Approaches to training are inconsistent, with its delivery often infrequent, limited or not planned.

To me, the most concerning finding is that those doing this work are aging and are not currently being replaced by younger colleagues. It may be assumed that the cuts to criminal legal aid have had an impact on this.

Building upon the findings of both reports the SRA will be undertaking further work to understand the work of solicitor advocates.   The Bar Standards Board also intends to publish its strategy for assuring the quality of advocacy shortly.

The reports can be accessed at https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/regulators-publish-reports-into-criminal-advocacy-standards/

or https://www.sra.org.uk/sra/how-we-work/reports/criminal-advocacy.page

 

 

 

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Written by lwtmp

October 15, 2018 at 4:02 pm

Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review

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In June 2018, I noted here the critical report from the National Audit Office on the Transformation: Courts and Tribunals Programme 2022.

The NAO report was reviewed by the Public Accounts Committee , which took evidence from the Ministry of Justice and HM Courts and Tribunals Service. It published a pretty brutal report which listed a number of concerns about the programme and set out a number of recommendations on the way forward.

The PAC found, in summary:

  1. It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
  2. It found that HMCTS had failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes.
  3. Despite revising the timescale, it thought that HMCTS’s imperative to deliver at such a fast pace risked not allowing time for meaningful consultation or evaluation and could lead to unintended consequences.
  4. The Committee thought HMCTS had not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable.
  5. It found that, one third of the way through the programme, the Ministry of Justice still did not understand the financial implications of its planned changes on the wider justice system.
  6. The Committee remained concerned that the Ministry of Justice was taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.

In relation to findings 1, 2 and 4 above, the Committee wanted HMCTS to start producing update reported on a regular 6 month basis, starting in January 2019.

In relation to finding 3, it wanted, by November 2018, HMCTS to publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.

In relation to findings 5 and 6 it recommended regular updates from the Ministry of Justice, again starting in January 2019.

The Government has just announced that it has agreed to all the PACs recommendations.

As I said in my original comment on the report from the National Audit Office, my personal view is that it is essential that the justice system is modernised. Doing nothing is not an option. While stern criticism may well help to ensure that the Director of the reform programme keeps her eye on the ball, I also think that it is important to support those working on the reform programme. Such harsh criticism could be extremely undermining of staff confidence and could paradoxically increase the chances of some of the negative outcomes listed by the Committee coming to fruition.

I will keep readers of the blog posted as and when new material is published.

The NAO report is at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/

The PAC report is at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm

The Government’s response is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746797/CCS001_CCS1018676736-001_Treasury_Minutes_Gov_Resp_43-58_Cm9702_Web_Accessible.pdf

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Transformation: Court and Tribunals 2022 – progress reports

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I have observed before that it is quite hard for someone outside HM Court and Tribunal Service to keep up to date with progress with the Transforming our Justice System, now Transformation Courts and Tribunals 2022, reform programme.

For some time there has been an occasional blog, setting out information about a number of initiatives.

In recent months, a monthly Bulletin (also called an electronic Newsletter) has been launched, the latest of which, published on 1 Oct  2018 contains links to a detailed report Reform Update, Autun 2018, setting out the story so far.

The transformation programme is a very substantial one – it consists of some 50 projects. Not all of them have yet started and very few have as yet been completed. Many ideas are, quite rightly, being tested and evaluated before being nationally rolled out.

The easiest way to get an overview of the projects and their progress is to look at the summary table of the report (pp 22-26).

I will be adding further detail on these projects, dividing the information into broad subject headings.

The monthly bulletin can be accessed by clicking on the link under the heading Newsletter at https://www.gov.uk/government/news/hmcts-reform-programme.

The Reform Update report can be seen at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf

The Inside HMCTS blog can be accessed at https://insidehmcts.blog.gov.uk/

 

 

 

 

 

 

 

Disclosure of Evidence: Justice Committee report

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It is a fundamental principle of the criminal justice system in England and Wales that the prosecution must disclose unused evidence to the defence. Following considerable press publicity given to criminal trials  in which this principle has not been observed – leading to lengthy delays in a case being brough to trial, in some cases leading to a defendant being sent to prison for a crime he did not commit – the Justice Committee in the House of Commons took a look at the issue.

In July 2018 they published their report. In it they make no recommendations to change the law. Indeed, the confirm that the principle of disclosure is an important one to ensure a fair trial. What they do say is that those working in the criminal justice system must take their responsibilities in relation to disclosure more seriously.

The Committee notes that in early December 2017 the Government announced that the then Attorney General would conduct a review of disclosure. While the Attorney General has since changed, the Committee expects that this review will conclude.

The Committee also notes that the Crown Prosecution Service, National Police Chiefs’ Council and College of Policing  published a “National Disclosure Improvement Plan” in January 2018. (Noted in this blog 1 Feb 2018)

The Justice Committee’s recent report in effect builds on these initiatives. It states, in summary that there needs to be:

  • a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add-on;
  • the right skills and technology to review large volumes of material that are now routinely collected by the police; and
  • clear guidelines on handling sensitive material.

Finally, the Government must consider whether funding across the system is sufficient to ensure a good disclosure regime. The Committee notes that delayed and collapsed trails that result from disclosure errors only serve to put further strain on already tight resources.

The Committee plans to return to this issue both when the Government publishes its response to the report, and when the Attorney General’s review is completed.

The report can be seen at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85902.htm

 

 

Written by lwtmp

October 2, 2018 at 10:48 am

Post-implementation Review: Legal Aid – progress report

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The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) was a multi-faceted piece of legislation, dealing with a number of issues of great importance to the English Legal System. Part 1 of the Act made provision for major cut-backs in the provision of legal aid. This is now the subject of a Post-Implementation Review (PIR), being conducted by the Ministry of Justice.

A Post-Legislative Memorandum on LASPO was written and published by the Ministry of Justice in October 2017. This set out preliminary views on how the Government thought the reforms were working. This was to be the first step to further inquiry.

I noted the launch of the PIR into Part 1 of LASPO here in March 2018. A brief progress report was published by the Ministry of Justice in June 2018.

This stated, in part,

Ministry of Justice (MOJ) officials have led consultative groups formed from organisations and academics representing a cross section of the justice system. These meetings took place in April 2018 and focused on the four themes:

  • criminal justice,
  • family justice,
  • civil justice and
  • the advice and third sector. ..

Further consultative group meetings have been scheduled later in the year with a focus on how individuals navigate through the justice system at present.

In addition, the review team have been meeting a wide variety of interested parties on an individual and small group basis, in order to gather a broad range of evidence of the impact of the changes to the provision of legal aid made under LASPO. Through all forms of engagement, the review team has so far met with over 50 organisations in order to discuss the impact of LAPSO and many more meetings are planned for the coming months.

Alongside meetings with interested parties and to ensure our review is as informed as possible, the review team is also accepting submissions of evidence.

The deadline for the submission of evidence is this month (September 2018).

It seems unlikely that the final decisions arising from the review will be published before 2019. I stick to my prediction that major change to the legal aid scheme is unlikely to be an outcome of the review, but I would be happy to be proved wrong!

It may also be noted that the Justice Committee has published a report on the impact of changes to the criminal legal aid scheme on practitioners. This urges a full review of Criminal Legal Aid, to start no later than March 2019, to be informed by the work currently being undertaken in the PIR. The Government has yet to respond to this report.

 

The Post-Legislative Memorandum is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf

For the PIR update, see https://www.gov.uk/government/publications/post-implementation-review-of-laspo

For the Select Committee report on Criminal Legal Aid, see https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/criminal-legal-aid-report-published-17-19/

 

 

 

Preventing digital exclusion

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A great deal of effort is currently being put into finding ways of using IT to deliver legal services, whether in the form of: providing legal advice and assistance to those who need it;  conducting various types of legal activity/process on-line; dealing with disputes online.

In general, the modernisation of the practice and procedure of the law through IT is to be welcomed. At the same time, there are concerns that some of the most vulnerable in society may be excluded from this brave new world. They may not have easy access to computers, or the ability to use them. In rightly encouraging digital solutions, at the same time policy makers need to ensure that the most vulnerable are not left behind.

In a recent policy paper, the human Rights group JUSTICE has drawn attention to the importance of ensuring that people are not excluded from the rapidly developing digital legal world.

In their report Preventing digital exclusion from online justice (published in June 2018), they analysed the potential issues that those engaged in the reform of legal procedures need to bear in mind.

The report makes a number of recommendations, directed primarily at HM Courts and Tribunals Service. They include:

  • Greater investment in “trusted faces” in “trusted places” i.e. services already providing digital support and internet access.
  • Considering the specific challenges of providing support to the digitally excluded, especially hard to reach cohorts – including testing Assisted Digital services in regions where the internet may be difficult to access. (Assisted Digital envisages a flexible mix of telephone, webchat, face-to-face, and paper-based support services. HMCTS is commissioning a programme of work to evaluate what types of support and in what combinations works best.)
  • Paying specific attention to highly digitally excluded groups, like homeless people and detainees.
  • Designing online justice services with an independent “look and feel” to reflect the constitutional independence of the courts.
  • Maximising the benefits of the “multi-channel” approach – helping people move with ease between digital access, phone assistance, face-to-face assistance, and paper.
  • Ensuring online justice services cater for the most affordable and ubiquitous mode of digital interaction: mobile technology.
  • Conducting end-to-end pilots of online justice services, learning from hearing and enforcement stages what is required at earlier stages.
  • Researching how people behave in an online environment and choices between Assisted Digital channels.
  • Collecting and making available the widest range of data possible to support research by external experts.

Internationally, there is a great deal of experiment going on with different forms of communicating advice and assistance. There are being kept under review by Professor Roger Smith who, with funding from the Legal Education Foundation, provides – among other things – an annual review of development in the use of IT to increase access to justice. He also writes a blog which looks in mor detail at specific initiatives relating to trying to improve access to justice – not just through the use of new technologies but also new ways of funding them such as crowd funding.

For those interested in how the application of new technologies might change ways in which the delivery of legal services are undertaken, this is an outstanding resource – full of links to detailed initiatives. At the same time, the need for realism in potential impacts is also stressed. It is important not always to believe the hype surrounding new applications.

The JUSTICE report is at https://justice.org.uk/new-justice-report-on-preventing-digital-exclusion/.

The Annual Reviews of digital delivery of legal services can be found at https://www.thelegaleducationfoundation.org/digital/digital-report.

Roger Smith’s blog on developments in Law, technology and Access to Justice is at https://law-tech-a2j.org/publications/

Also relevant is the report, published in July 2018, from the Centre for Justice Innovation, which also looks at public attitudes towards the greater use of IT in the justice system.

See http://justiceinnovation.org/portfolio/just-technology-emergent-technologies-justice-system-public-thinks/

 

 

 

Supporting Exonerees

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The adverse impact of being wrongfully convicted of a crime that you have not committee is obvious. But once the wrongful conviction comes to light, how should the state deal with those now exonerated. This detailed issues was the subject of a special report by JUSTICE, the Human Rights Organisation, in April 2018. (I am a member of the JUSTICE council but was not involved in this report.)

Way back in 1982, JUSTICE published a report, Compensation for Wrongful Imprisonment. Unfortunately, little has changed since then. Exonerees still do not receive the support they need to return to a normal life and are not properly compensated. A number of recent cases of wrongful conviction highlight the need to continue to address the issue and argue for change.

The new report makes it clear that, although monetary compensation may well be important, it is not just a question of money. Other types of support are needed as well.

The report makes 14 recommendations including:

  • Better management of the transition from incarceration to release.
  • The need for specialist psychiatric care for exonerees.
  • The setting up of a residential service to provide practical and welfare support to exonerees.
  • An independent body to determine whether applicants are eligible for compensation.
  • Automatic compensation for wrongful imprisonment, subject to certain exceptions.
  • An apology and explanation of the failure that leads to a quashed conviction and, where necessary, a public inquiry.

The full report is available at https://justice.org.uk/our-work/areas-of-work/criminal-justice-system/supporting-exonerees-ensuring-accessible-continuing-and-consistent-support/


 

Written by lwtmp

July 11, 2018 at 2:20 pm