Archive for the ‘Chapter 5’ Category
One of the most intractable issues in the criminal justice system is enabling prisons do more to try to draw offenders away from a life of crime and to become more productive and engaged citizens.
In the Queen’s Speech, delivered on 18 May 2016, the announcement of a new Prisons Bill was made. The details are not yet available but at the heart of the reforms are proposals to significantly improve educational opportunities for inmates – and to give Prison Governors more autonomy over how they run their prisons.
Accompanying the text of the Queen’s speech was an announcement that in the short-term 6 pilot ‘trailblazer’ reform prisons would be established to test the effectiveness of new approaches. The intention is that 5000 prisoners should be in the reform prisons by the end of 2016.
The importance of education of prisoners was emphasise in a review, published at the same time by Dame Sally Coates.
For further (preliminary) information on reform prisons see https://www.gov.uk/government/news/biggest-shake-up-of-prison-system-announced-as-part-of-queens-speech
The Coates report can be found at https://www.gov.uk/government/publications/unlocking-potential-a-review-of-education-in-prison
The big challenge, noted by many commentators, is how such reforms can be made effective given the large numbers of people currently detained in prison. Many think that it will be essential for numbers in jail to be reduced if those who would really benefit from the reform proposals are to be helped.
The programme for restructuring how all the buildings currently used by courts and tribunals – to ensure better and more effective usage – is gathering pace. A significant contribution to how detailed policy may develop was made this month by the legal think-tank, JUSTICE. A recent working party report (in which I participated) recommends:
- The reconception of court and tribunal rooms as ‘justice spaces’. This new model is defined by its inherent flexibility and rejection of the over-standardisation prevalent in existing courts and tribunals. Justice spaces are designed to adapt to the particular dispute resolution process taking place within them, and the needs of users, rather than the other way around.
- A flexible and responsive court and tribunal estate, made up of a number of dynamic parts. The Working Party suggests a portfolio of Flagship Justice Centres; Local Justice Centres; ‘Pop-up courts’; remote access justice facilities; and digital justice spaces.
The Working Party emphasises the importance of technology, and its potential to meet user needs and maximise access to justice. All of the Working Party’s proposals are anchored in a commitment to a core set of principled considerations to ensure fairness of process and access to justice. Finally, the report makes practical recommendations aimed at ensuring the effective implementation of the HMCTS Reform Programme.
The full report (and accompanying Press Release) can be accessed at http://justice.org.uk/what-is-a-court/
There is a huge volume of law relating to the sentences courts may impose on those found guilt of committing criminal offences.
Indeed, there is so much that judges often take decisions that, in law, they are not allowed to make. To quote from a recent announcement from the Law Commission:
A survey of 400 Court of Appeal cases from 2012 by the sentencing expert Robert Banks found that 262 were appeals against sentences and that of these, 76 included sentences that had been unlawfully passed in the Crown Court. Banks wrote, “[This] figure shows that we can no longer say the sentencing system is working properly. Cases since then have indicated that these figures are not unrepresentative.”
Currently, the law lacks coherence and clarity: it is spread across many statutes, and frequent updates are brought into force at different times by different statutory instruments and with a variety of transitional arrangements. This makes it difficult, if not impossible for practitioners and the courts to understand what the present law of sentencing procedure actually is. This can lead to delays, costly appeals and unlawful sentences.
The Law Commission is currently engaged in a project designed to introduce a single sentencing statute that will act as the first and only port of call for sentencing tribunals.
It will set out the relevant provisions in a clear and logical way, and ensure that all updates to sentencing procedure can be found in a single place. It is not the aim of this project to interfere with mandatory minimum sentences or with sentencing tariffs in general. Those will remain entirely untouched, but the process by which they come to be imposed will be streamlined and much improved.
The latest stage in the process has recently taken place with the publication on 20 May 2016 of a paper setting out proposals for the transition from the current position to a reformed position.
The amount of work still to be undertaken is enormous, and will not be effective for at least two more year – perhaps longer. But this is a project of great importance not just to criminal lawyers, but all those interested in the criminal justice system.
For an outline of the progress on work to date go to http://www.lawcom.gov.uk/project/sentencing-code/
One of the really interesting ideas under consideration in government and the judicary is that of ‘problem solving’ courts. The concept has been floating around for some time but has recently been given new impetus.
The working group will advise on:
- existing models of problem-solving courts nationally and internationally, and their applicability to England and Wales;
- the feasibility of options for pilot models including practical, legislative and constitutional issues, and judicial leadership;
- the support needed from within and without the criminal justice system, including the development, or improvement, of pathways in to rehabilitative and behaviour change interventions
- the key criteria for a future suite of pilots of problem-solving courts, including the lessons from previous pilots and the required statutory provisions for taking forward any new pilots.
In July 2015, the Government launched a consultation on closing under used courts. 91 possible buildings were earmarked for possible closure. (See this blog 26 July 2015)
We know that reduction of the court estate is a key component needed to fund the investment needed to modernise the court estate. (See this blog 3o Nov 2015).
The Government has now announced the buildings that are to be closed – together with an indicative timetable showing that the closure programme will run over 2 years.
In the end only 64 of the sites originally identified will close as proposed. A further 22 closures will take place, but modified from the original proposals. 5 escape the axe altogether.
One of the issues that the criminal justice system faces is to decide what incentives should be offered to those who are being prosecuted through the courts to plead guilty.
Legislation has for many years provided that sentencing discounts for early guilty pleas should be applied. (Criminal Justice Act 2003, s 144). Gudidance on how the power should be exercised was published in 2007.
It will do this by maintaining the current level of reduction (one third) for those who plead at the first stage of court proceedings, but giving a lower reduction than that available currently for a guilty plea entered any later in proceedings.
The stage at which an offender can benefit from the maximum one-third reduction will be much more tightly defined.
Under the Council’s proposals, to qualify for the maximum reduction, an offender must plead guilty the first time they are asked for their plea in court.
For offenders who plead guilty after that first stage the maximum reduction they can be given will be reduced to one-fifth, compared to one-quarter under the current process. Reductions then drop further the closer to the trial date the plea is entered.
It should be stressed that the reduction is expressed as a maximum – judges can deviate from the guidance in particular cases. Special considerations apply to murder cases.
The object of the proposed reforms is to try to ensure that more cases are dealt with by guilty plea, thereby reducing the resources required for trials.
The final guidance will be published following completion of the consultation, which runs until the middle of May 2016.
It is, to me, one of the curiosities of public life that U-turns are usually portrayed in the mass media as a sign of official/political incompetence. To me the idea that someone might change their mind because they had had second thoughts is a sign of maturity and intelligence.
Whether you regard the Secretary of State for Justice as incompetent or intelligent and mature, there is no doubt that his recent written statement to the House of Commons on the change of direction on Criminal Legal Aid reform is important.
The issues are:
1 Reductions in fees paid to legal aid applicants. They had been reduced in March 2014 by 8.5%. A similar sized reduction was planned for July 2015, but this was put on hold while the MoJ did not work to ensure that such a cut would be unlikely to reduce the quality of criminal advocacy. In his January 2016, Michael Gove has announced that there will be a further postponement of the proposed cut. “I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year.” Whether or not that fee cut will be brought back into effect in April 2017 will depend on how the market for the provision of criminal legal aid services has developed in the meantime.
2 Consolidation of provision of criminal legal aid. There has long been a view in Government that there are too many soicitors’ firms offering criminal legal aid services. Various proposals have been made to reduce their number. The most draconian proposal was that existing criminal legal aid contract should be replaced by new contracts that would be awarded, following a tendering process, in which contracts would be awarded to those firms who submitted the lowest bids for legal aid work.
Unsurprisingly this was fiercely resisted by solicitors on the basis that, if implemented, this would be a ‘race to the bottom’ – standards would fall because services would only be offered by those charging the least.
Mr Gove’s predecessor, Chris Grayling, came up with an alternative plan, known as ‘dual contracting’. Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.
- An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
- And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.
The dual contracting model was designed to meet concerns expressed by the legal profession about price competition.
A tender process under this proposed scheme did go ahead, but ended very badly with a lot of adverse publicity about both process and outcome.
The primary arguments against these alternative proposals were
- Many solicitors firms feared that the award of a limited number of “dual” contracts – with a restriction therefore on who could participate in the duty legal aid rota would lead to a less diverse and competitive market.
- Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and potentially quality.
- And, possibly the most compelling argument, many also pointed out that a process of natural consolidation was taking place in the criminal legal aid market, as crime reduced and natural competition took place.
In the face of considerable potential litigation (99 cases in the pipeline, plus a judicial review challenging the whole process), the Government has announced that this exercise will also be set aside. There will be a further review of the process towards consolidation early in 2017.
3 Quality of criminal advocacy. In the midst of all this, the report from Sir William Jeffrey on how to enhance the quality of criminal advocay has not been forgotten. Mr Gove stated:
I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.
I don’t think that criminal legal aid practitioners are completely off the hook as regards potential changes to how they work. But for the immediate future, things are clearer.
For Mr Gove’s written statement, go to https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting.
For further information on the Jeffrey Review, see this blog at https://martinpartington.com/2015/11/05/enhancing-the-quality-of-criminal-advocacy/