Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 5’ Category

The Victims Strategy – 2018

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In September 2018, the Government published its cross-government Victims Strategy. It sets out a criminal justice system wide response to improving the support offered to victims of crime and incorporates actions from all criminal justice agencies, including the police, CPS and courts.

It is divided into 5 key sections

  1. overarching commitments. These include:
  • Strengthening the Victims’ Code, and consulting on the detail of victim focused legislation, including strengthening the powers of the Victims’ Commissioner, and delivering a Victims’ Law.
  • Holding agencies to account for compliance with the Victims’ Code through improved reporting, monitoring and transparency.
  • Developing the detail on the role of the Independent Public Advocate for bereaved families who have lost loved ones in extraordinary and tragic events.
  • Abolishing the rule which denied compensation for some victims who lived with their attacker prior to 1979 and consulting on further changes to the Criminal Injuries Compensation Scheme.
  1. improving support for all victims of crime, whether or not they report the crime. This includes commitments to:
  • Increase spending from £31 million in 2018 to £39 million in 2020/21 to improve services and pathways for survivors and victims of sexual violence and abuse who seek support to and from Sexual Assault Referral Centres.
  • Develop a new delivery model for victim support services, coordinating funding across government.
  • Expand and extend support available to families bereaved by homicide, including bringing in new funding for advocacy support for families bereaved by domestic homicide.
  • Spend £8 million on interventions to ensure support is available to children who witness domestic abuse.
  • Pilot the ‘Child House’ model in London, whereby multiple services are brought together in a child-friendly environment to minimise additional trauma.
  1. improving victim support after a crime has been reported. This includes commitments to:
  • Introduce improved police training, including new guidance on conducting interviews and collecting evidence, and a trial of body worn cameras to take Victim Personal Statements.
  • Increase the number of Registered Intermediaries, communication experts helping vulnerable victims and witnesses give their best evidence at police interview and at court, by 25%.
  • Increase opportunities for victims to engage in alternative solutions to court.
  • Improve overall victim communication, including when explaining decisions not to prosecute and on the right to review Crown Prosecution Service decisions.
  1. better support for victims during the court process. This includes commitments to:
  • Improve the court environment, with new victim-friendly waiting areas and a new court design guide focussing on accessibility for the most vulnerable.
  • Free up court time in the magistrates’ court by dealing with crimes with no identifiable victim (e.g. fare evasion) outside court hearings.
  • Continue to use video links to allow vulnerable victims to provide evidence away from the defendant and courtroom altogether.
  • Encourage take up of pre-trial therapy by launching new guidance and a toolkit for prosecutors and therapists.
  1. making sure victims understand a court’s decision, the implications for them, and for the offender. This includes commitments to:
  • Review and consider extending the Unduly Lenient Sentence scheme so victims and the public can have sentences reconsidered by the Court of Appeal.
  • Reform the Victim Contact Scheme, making it easier to opt in, introducing more frequent communication, and greater use of digital contact methods.
  • Improve Victim Liaison Officer training, especially in supporting victims during parole hearings and in making a Victim Personal Statement.
  • Review and consider whether any improvements need to be made to entitlements for victims of mentally disordered offenders.

This is substantial agenda of what seem to me to be good ideas. Some of them can be implemented quickly. Others will take more time. What is therefore also needed is a committment to publish progress reports which show how these initiatives are developing throughout the country.

Source: Adapted from https://www.gov.uk/government/publications/victims-strategy/victims-strategy-html-version where the full text of the strategy statement can be found.

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Review of the Criminal Injuries Compensation scheme

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When the Criminal Injuries Compensation scheme was originally introduced in 1964, there was a rule that applicants were not entitled to compensation if they were living with their assailant as members of the same family at the time of the incident.

The reasons for the rule were, broadly, difficulties with evidence in such cases, and a wish to ensure that offenders did not benefit from compensation paid to the victim who they were living with. The rule applied to all victims of abuse inflicted by a family member living under the same roof; this included physical as well as sexual abuse.

The rule was amended in 1979 to apply to adults only. Under the revised rule applicants could still be refused compensation if at the time of the incident they were adults living with the assailant as members of the same family, unless they no longer lived together and were unlikely to do so again. The amended rule gave CICA discretion to consider what had happened after the incident taking place, which  significantly reduced the number of applicants who were refused under this amended rule. The amended rule was, however, not retrospective.

In July 2018 the Court of Appeal found that the pre-1979 rule unlawfully discriminated against an applicant who had suffered injury before the 1979 changes.

The government has decided to not appeal this ruling. Instead, it confirmed it would consult on changes to the Criminal Injuries Compensation Scheme.

In September 2018, the Government announced that it was launching a review that will look at concerns around the eligibility rules of the scheme, the sustainability of the scheme and the affordability of any changes to be made. The review will also enable the government to take full account of recommendations made by the Independent Inquiry into Child Sexual Abuse.

More specifically, the review will look at issues including:

  • time limits for applications – the scheme’s time limit requires that applications be made by a person over 18 as soon as practicable and no later than 2 years after the date of the incident. It is suggested that victims of child sex abuse disproportionately delay reporting such crimes and applications for compensation, and therefore miss out on compensation.
  • the ‘same roof’ rule – we will remove the pre-1979 rule and we will consider further changes to the remaining ‘same roof’ rule and previous failed applications.
  • unspent convictions – the scheme automatically excludes an award if the applicant has an unspent conviction which resulted in a specified sentence (custodial sentence, community order or youth rehabilitation order). It is suggested the rules disproportionately impact vulnerable victims of child sex abuse who may have offended in response to being abused/exploited/groomed.
  • crime of violence– the scheme sets out what constitutes a crime of violence for the purposes of assessing entitlement to compensation. It is suggested that this definition should be broadened to include sexual exploitative behaviour, such as grooming.
  • terrorism – the terrorist attacks of last year left people with serious life changing injuries and brought to light questions about the suitability of the scheme in providing support to victims of terrorism. The review will consider and clarify the eligibility, entitlement and amount of compensation to be awarded. This will build on the roll-out of the ground-breaking Victims of Terrorism Unit last year, to help ensure the best possible support.

The intention is that the review will be completed sometime in 2019, with change following thereafter. There is no hint that the review will expand the scope of the types of injury for which compensation can be claimed.

Details of the review can be found at https://www.gov.uk/government/news/justice-secretary-announces-victim-compensation-scheme-review-scraps-unfair-rule

 

 

Written by lwtmp

November 29, 2018 at 12:11 pm

Creating a Sentencing Code: proposals from the Law Commission

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Way back in May 2016 I noted the publication of a Consultation by the Law Commission on the creation of a single code of law on sentencing for criminal offences. Well, the outcome of that consultation is now published. It is a great law reform effort and one that deserves to be implemented at the earliest opportunity.

To remind readers, the current law is so complicated that judges frequently get their sentencing decisions wrong. As the Commission itself noted:

The current law of sentencing is inefficient and lacks transparency. The law is incredibly complex and difficult to understand even for experienced judges and lawyers.

It is spread across a huge number of statutes, and is frequently amended. Worse, amendments are brought into force at different times for different cases. The result of this is that there are multiple versions of the law that could apply to any given case.

This makes it difficult, if not impossible at times, for practitioners and the courts to understand what the present law of sentencing procedure actually is.

This leads to delays, costly appeals and unlawful sentences.

There is near unanimity from legal practitioners, judges and academic lawyers that the law in this area is in urgent need of reform.

A new Sentencing Code has three key benefits:

  • it makes the law simpler and easier to use;
  • it increases public confidence in the criminal justice system; and
  • it increases the efficiency of the sentencing process.

The benefits claimed for the new code are that it would:

  • help stop unlawful sentences by providing a single reference point for the law of sentencing, simplify many complex provisions and remove the need to refer to historic legislation;

  • save up to £256 million over the next decade by avoiding unnecessary appeals and reducing delays in sentencing clogging up the court system;

  • rewrite the law in modern language, improving public confidence and allowing non-lawyers to understand sentencing more easily;

  • remove the unnecessary layers of historic legislation; and

  • allow judges to use the modern sentencing powers for both current and historic cases, making cases simpler to deal with and ensuring justice is better served.

It is hoped that the Sentencing Code could be enacted as a Consolidation Bill which would take up far less Parliamentary time than a normal bill. Progress ought to be made on this during 2019, if the political will is there.

For further information see https://www.lawcom.gov.uk/project/sentencing-code/ which provides links to the Report and the Draft Code

 

 

 

Written by lwtmp

November 27, 2018 at 4:57 pm

Posted in Chapter 5

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What does the Criminal Cases Review Commission do?

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It is hard to convey in print how the Criminal Cases Review Commission (CCRC) goes about its work. It has in recent months been trying to develop new ways of informing people – in particular prisoners – how it goes about its Review processes.

It has launched a YouTube channel which currently hosts two short films –

  1. “Not the end of the Road” directed at young prisoners;
  2. “Miscarriage of Justice – A survivor’s story” – a more general film aimed at informing prisoners and their families about how the CCRC work.

Links to both these films can be found on the CCRC’s website at https://ccrc.gov.uk/

 

Written by lwtmp

November 22, 2018 at 3:39 pm

What happened to the Lammy Review? Tackling racial disparity in the criminal justice system

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The Lammy Review on the treatment and outcomes of BAME individuals in the criminal justice system was published in autumn 2017 (noted in this blog in September 2017). At the same time, the Government  had launched its Race Disparity Audit – the first results from which were also published in 2017.

A year on, in October 2018, the Ministry of Justice has published a policy paper on tackling racial disparity in the criminal justice system. It summarises both what has been done and how new developments may be taken forward.

The Press Release states, in part:

There is an undeniable over-representation of ethnic minorities within CJS which [the Government is] determined to challenge and change. For the Criminal Justice System to be viewed as effective and fair it needs the trust, confidence and engagement of citizens from all communities.

[This] update highlights progress across different parts of CJS, from the early stages of the system to court, prison and probation. It also explores cross-cutting work on areas such as data. The update sets out next steps and [the Government’s] continued commitment to progress in this area.

Much of the emphasis in the policy statement is on the need to get better data. But Lammy also recommended some procedural changes. One example is that he advocated for wider use of a ‘deferred prosecution’ model in which a person accused of committing an eligible crime is given an opportunity to complete specified conditions (for example rehabilitative activity, reparation to the victim and/or unpaid work) instead of being prosecuted. This could be done without being required to admit guilt.
Interim results from existing trials of similar approaches (Operation Turning Point in the
West Midlands, Operation Checkpoint in Durham) show promise for this approach to
reduce re-offending as well as achieving victim satisfaction and cost savings. This  approach also has potential to reduce disproportionality since Lammy notes that BAME
defendants are consistently more likely to plead not guilty and so face more punitive
outcomes.
The Government states that it needs further evidence  before any decision can be made to promote wider use of this model –  particularly on outcomes for BAME participants and the impact of not requiring a guilt admission.

Nevertheless, the Ministry of Justice has partnered with police forces, Police and Crime Commissioners and the Mayor’s Office for Policing and Crime in London to develop pilots of this model in 4 areas: London (North West Borough Command Unit), Surrey, Cumbria and West Yorkshire. We are working with these areas as well as national partners on the pilot design and sharing best practice around implementation and data collection. Although ethnicity is not a selection criterion for being offered a ‘deferred prosecution’, areas will monitor this with the aim of understanding any impact on disproportionality. We expect pilots to go live in police areas during 2019. All of the pilot areas propose to include youth.

This work fits in with the Government’s aims for youth of intervening early to divert individuals from the CJS and secure the best outcomes for BAME youth.
In addition, other ‘deferred prosecution’ initiatives are under consideration by police, inspired by this Lammy recommendation. This includes initiatives focused on specific cohorts of female offenders or drugs offences.
The Government will share insights and resources from its work with these areas,
and if they come to fruition the results will be of interest.

The Government has also decided to publish regular updates to the facts and figures relating to ethnicity. These are prepared by, the Ethnicity Facts and Figures service, part of a unit established in the Cabinet Office. The data relate to many aspects of life in the UK, including crime and the criminal justice system.

For the policy statement from the Ministry of Justice, see https://www.gov.uk/government/publications/tackling-racial-disparity-in-the-criminal-justice-system-2018

Data from the Ethnicity Facts and Figures Service  are at https://www.ethnicity-facts-figures.service.gov.uk/ from which there are links to ‘Crime Justice and the Law’.

Written by lwtmp

November 21, 2018 at 3:27 pm

Transforming Criminal Justice: progress reports

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I have already noted the report on progress with family, civil and administrative justice. This entry summarises a recent note on progress with the transformation of the criminal justice system. There are 11 projects listed which relate to criminal justice.This note sets out the main ones.

Projects supporting summary justice

  1. The Single Justice Service (SJS) contains all services delivered by the magistrates’ court which can be considered by a single magistrate. It builds upon the implementation of the Single Justice Procedure (SJP), introducedto process some 850,000 summary non-imprisonable cases per year; this involves working with prosecutors, including TV Licensing, TfL, the DVLA, the police and other non-police prosecutors such as local authorities. The purpose of the SJS is to deal more proportionately with the least serious offences, to which the majority of defendants either do not respond or plead guilty, and which almost exclusively result in a financial penalty. Subject to legislation, this may include the ability to accept a statutory fixed fine online for the most minor offences (in which case the implications of doing so will be carefully and clearly explained). The option for a hearing will remain.
  1. The SJS is underpinned by a digital system known as Automated Track Case Management (ATCM)  and is supported by the Single Justice Service Centre (SJSC). So far, the service is live for cases prosecuted by TfL (Transport for London).  Those who plead not guilty have the case transferred for a hearing in the magistrates’ court.
  1. Since 12 April 2018, defendants have been able to plead online if they choose to do so (rather than on paper). The SJSC team based in Stoke takes calls from defendants and help those who would like to plead online to do so. The ability to plead online builds on the experience of the ‘Make a Plea’ service, which has been live since August 2014, for defendants involved in summary non-imprisonable motoring offences, such as speeding and having no insurance, and has been rolled out to all 43 police forces. During 2017, over 83,000 pleas were registered through this service and it now receives around 1,600 pleas online each week.

Projects supporting hearings in the magistrates’ and Crown courts

  1. Online plea and allocation: This aim of the project is it make it possible for represented defendants (through their legal representative) to indicate a plea online, before coming to court; and for decisions on allocation to be taken outside the courtroom where that is appropriate. The aim is to support earlier engagement with the court and swifter allocation of cases, and to free up courtroom space and time currently used to hear pleas. Subject to legislation, the project will also enable indictable only cases to go straight to the Crown Court without the need for an unnecessary hearing in the magistrates’ court.
  2. Case progression project: This project aims to ensure all activities required to achieve an effective trial or sentencing hearing in the magistrates’ and Crown courts are carried out by the participants to the case in advance, and that trial and sentencing hearings can go ahead as planned. It builds on the recommendations of the Leveson report on criminal justice efficiency and will enable some case progression activity to take place outside the courtroom through online, audio and video channels.
  3. Court hearings project: This project is specifically focused on trials and sentencing hearings in both the magistrates’ and Crown courts. This project will ensure that criminal trials and sentencing hearings are enabled by the right technology and physical environment in the courtroom to ensure the smooth running of the hearings on the day, building on the increasing use of technology that we see already in the criminal courts.
  1. Video remand hearings: This service aims to transform the way in which hearings for defendants held in custody could be administered in the future, and ultimately enable suitable proceedings to be held fully by video (in other words, with the option of not just the defendant, but others appearing by video, subject to judicial agreement and discretion). The aim is to reduce the amount of time defendants are held in custody without a judicial decision, particularly the number of defendants held overnight, and to reduce unnecessary journeys. It is also an opportunity to improve processes around those appearing on video from the police station now, including improving access to early legal advice.
  1. Youth project: This project will look specifically at the needs of children and young defendants to ensure that we do not apply adult processes to children, but instead look at each stage of the process and shape a version of it that is appropriate for young people, with the right safeguards and enhancements.
  1. All these service projects are underpinned by the digital infrastructure known as the Common Platform, a shared system between the police, HMCTS and CPS and accessible by participants across the criminal justice system. This will allow earlier access to the Initial Details of the Prosecution Case (IDPC) for legal professionals; better handling of multimedia; a single, shared view of cases; and direct transmission of case results to those who ought to know.

Adapted from  HMCTS Reform Update  Autumn 2018 at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744912/HMCTS_Reform_Update_2_Oct_2018.pdf

 

 

 

 

Disclosure of Evidence: the Attorney-General’s review

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In November 2018, the Attorney General published the results of his review into the practice and procedures of police and prosecutors relating to the disclosure of evidence held by prosecutors to the defence, where such evidence might undermine or weaken the prosecution’s case.

The importance of ensuring that such disclosure takes place is accepted by all those responsible for criminal justice policy to be at the heard of a fair judicial process.

The Attorney-General’s review found, in common with earlier official reports, that the duty to record, retain and review material collected during the course of the investigation was not routinely complied with by police and prosecutors.

The Review makes clear that disclosure obligations begin at the start of an investigation. Investigators have a duty to conduct a thorough investigation, manage all material appropriately and follow all reasonable lines of inquiry, whether they point towards or away from any suspect. The Review found that this was not happening routinely in all cases. At the least this caused costly delays for the justice system and at worst it meant that cases were being pursued which the evidence did not support. The impact of these failings caused untold damage to those making allegations and those accused of them.

The  Review concluded that “to enable lasting change, there must be a ‘zero tolerance’ culture for disclosure failings across the police and the Crown Prosecution Service (CPS)”.

Of course, this is easier said than done. Hard pressed police and prosecutors may well be tempted to take short cuts. In order to counter these temptations, the Government has taken a number of steps.

1. It has  welcomed the steps already taken by the police and CPS to address the issues through the National Disclosure Improvement Plan and will work with each to ensure they lead to long-term, effective and sustained change. HM Government intend, through the Attorney General and Home Secretary, to hold police and prosecution leaders personally responsible for this.

2. As the Review found that non-disclosure is a system-wide problem which needs a systematic response, the Criminal Justice Board, which the Attorney General sits on, will  take responsibility for strategic oversight of the collective response from all parts of the system – from police, to prosecutors to the judiciary.

3. The Review found that police and other investigators could be better supported by technological advancements when reviewing and capturing digital evidence. To address this, the Government plans to convene a ‘Tech Summit’ in spring 2019 to help all 43 police forces in England and Wales handle the increasing volumes and complexity of this type of evidence. This will build on the work of the police and help to engineer a way forward with the help of private tech companies. Through the Police Transformation Fund, the Government is already investing in national work to support policing in its wider digital transformation.

4. While the underpinning legislation thought to be still fit for purpose, the Government has concluded that the guidelines which support it need to be updated to meet the challenges of the rise of modern technology. This will happen through secondary legislation.

5. Finally, the work already started by the CPS to improve its data collection to capture the extent of the disclosure problems is essential. The Government will oversee the CPS’s delivery of a new data collection regime which is fit for purpose.

Whether or not all these initiatives will have the desired effect remains to be seen. But there is no doubt that at present practice and procedure on the ground has the potential to undermine the integrity of the criminal trial process.

Adapted from https://www.gov.uk/government/news/creating-a-zero-tolerance-culture-for-disclosure-failings-across-the-criminal-justice-system.

The full text of the review is at https://www.gov.uk/government/publications/review-of-the-efficiency-and-effectiveness-of-disclosure-in-the-criminal-justice-system.

The Justice Select Committee’s report on this issue, published in July 2018, is at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85902.htm

 

Written by lwtmp

November 18, 2018 at 10:20 am