Archive for the ‘Chapter 5’ Category
The Policing and Crime Act 2017 received the Royal Assent at the end of January 2017. It is a large piece of legislation covering a wealth of topics. The Home Office Press Release summarises the main provisions as follows. The Act will:
- place a duty on police, fire and ambulance services to work together and enable police and crime commissioners to take on responsibility for fire and rescue services where a local case is made
- reform the police complaints and disciplinary systems to ensure that the public have confidence in their ability to hold the police to account, and that police officers will uphold the highest standards of integrity
- further support the independence of HM Inspectorate of Constabulary and ensure that it is able to undertake end-to-end inspections of the police
- enable chief officers to make the most efficient and effective use of their workforce by giving them the flexibility to confer a wider range of powers on police staff and volunteers (while for the first time specifying a core list of powers that may only be exercised by warranted police officers)
- increase the accountability and transparency of the Police Federation for England and Wales by extending its core purpose to cover the public interest and making it subject to the Freedom of Information Act 2000
- reform pre-charge bail to stop people remaining on bail for lengthy periods without independent judicial scrutiny of its continued necessity
- stop the detention in police cells of children and young people under 18 who are experiencing a mental health crisis (and restrict the circumstances when adults can be taken to police stations) by reforming police powers under sections 135 and 136 of the Mental Health Act 1983
- amend the Police and Criminal Evidence Act 1984, including to ensure that 17-year-olds who are detained in police custody are treated as children for all purposes, and to increase the use of video link technology
- amend the Firearms Acts, including to better protect the public by closing loopholes that can be exploited by criminals and terrorists
- make it an offence to possess pyrotechnic articles at qualifying musical events
- reform the late night levy to make it easier for licensing authorities to implement and put cumulative impact policies on a statutory footing
- better protect children and young people from sexual exploitation by ensuring that relevant offences in the Sexual Offences Act 2003 cover the live streaming of images of child sex abuse
- increase the maximum sentence from 5 to 10 years’ imprisonment for those convicted of the most serious cases of stalking and harassment
- confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences which would not be offences today, and on those persons still living who have had the conviction disregarded under the provisions of the Protection of Freedoms Act 2012
In anticipation of these changes, a number of revisions to the PACE Codes of Practice were also presented to Parliament in December.
For further detail on the Policing and Crime Act 2017, go to https://www.gov.uk/government/collections/policing-and-crime-bill.
The current texts of the PACE codes as amended can be found at https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice.
Following a review of the governance arrangements for the Independent Police Complaints Commission, and a Government Consulation held in 2015, the Policing and Crime Act 2017 provides in section 33 and Schedule 9 for the Commission to be renamed the Independent Office for Police Conduct. It will continue to investigate complaints against the police, but will have a clearer governance structure.
This change is in part a response to survey evidence showing a lack of public confidence in the current IPCC.
The consultation, published on the same date, is at https://www.gov.uk/government/consultations/reforming-the-independent-police-complaints-commission-structure-and-governance.
In October 2016, the Justice Select Committee published a report on the role of the magistracy in the criminal justice system. The Ministry of Justice responded to this report in December 2016.
There was a lot of common ground between what the Select Committee recommended and what the government is planning in relation to the magistracy.
A couple of specific issues caught my attention.
First, the Committee had noted that there appear to be some difficulties in ensuring that there are sufficient magistrates able and willing to undertake work in the Family Court. This has led the Ministry of Justice to make some administrative changes allowing a more flexible approach to be adopted for enabling magistrates to undertake family court work. The Ministry of Justice has indicated that it may consider special recruitment of some new magistrates who would only sit in the Family Court. However, even if it was concluded that this would be a good policy to adopt, it would require a change in the law. Any such change will therefore be some time off.
Second, the Committee report and the response from the Government raise some interesting issues about the future of the Magistrate’s Clerk. The Justices’ Clerk is the senior lawyer and adviser to the magistracy. Currently the appointment of the Justices’ Clerk is made under the Justice of the Peace Act, 1997. This requires the post holder to be a solicitor or barrister of five years’ standing or be a solicitor or barrister with five years’ experience of working in Magistrates’ Courts.
The Government has raised the possibility either that Justices’ Clerk would no longer be a statutory appointment, but rather appointed under new non-statutory arrangements. An alternative idea is that the functions of the Justices’ clerk might be undertaken by other officials working in the court system. The Government response to the Select Committee report states that this question is currently the subject of a ‘private’ consultation: “A consultation on the creation of a new senior leadership structure for lawyers working within HM Courts & Tribunals Service: Proposals to make changes to the role of the justices’ clerk”. This was published in December 2016 but is not apparently publicly available.
It seems unlikely that a major change to the role of the Justices’ Clerk would take place without some publication, so – again – I suspect that any change will be some time away. It should be remembered that part of the purpose of making the appointment of Justices’ clerks a statutory process was to help guarantee their independence in advising magistrates. It will be essential that this issue is taken on board in any proposals for reform.
For the Justice Committee’s report, go to http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/165/16504.htm
Relations between Government and the Criminal Bar have not, in recent years been characterised by a great deal of warmth and mutual understanding. Indeed, criminal barristers went on strike recently against what they regarded as unfair policy on legal aid remuneration.
I am sure it would be overstating things to say that peace has now broken out between the Government and the Criminal Bar. But a new Consultation Paper on the remuneration of criminal defence advocates (including solicitor advocates) has been published which seems to be the fruit of close working relationship between the two sides.
Certainly the chairman of the Bar Council has welcomed the paper’s publication and has urged advocates to support the recommendations set out in the paper.
One of the key aims of the new proposals is to try to ensure that payments reflect actual work done by advocates on behalf of their clients.
The proposals also seek to reflect the changing nature of criminal trial practice as the criminal courts’ efficiency programme continues to develop.
The proposals also aim to give a sense of career progress to those who undertake criminal defence advocacy. Pay should be higher as experience is gained and more serious cases are undertaken.
The recommendations are not based on any increase in the amount of money available for paying advocates; but they are designed to be a rational response to the changing face of criminal advocacy and to take a fresh look at a payments system that was last looked at 20 years ago.
The details of the consultation – which runs till early March 2017, are at https://www.gov.uk/government/news/proposals-to-reform-criminal-defence-advocates-pay-published
In March 2016, the National Audit Office published a very interesting and pretty hard hitting report on efficiency in the Criminal Justice system – or rather inefficiency. Set against the programme for the Transformation of our Justice System that was announced by the Government in the summer 2016, the contents of the NAO need to be remembered. In essence it argues that the current reform programme will not be adequate to drive out inefficiency, and ensure better value for money.
I set out here an edited version of the Summary Chapter of the report which gives the headline issues that need to be dealt with.
Key findings of the National Audit Office:
- Delays are getting worse against a backdrop of continuing financial pressure.
- There have been some improvements in the management of cases since 2010-11. But two-thirds of cases still do not progress as planned, creating unnecessary costs.
- Trials that collapse or are delayed create costs for all the participants, including the CPS, witnesses and HMCTS. (In 2014-15, the Legal Aid Agency (LAA) funded defence counsel to the tune of £93.3 million for cases that were not heard in court).
- Delays and collapsed trials also damage the public’s confidence in the system.
Giving evidence in court as a witness or victim can be a difficult and stressful process. The uncertainty caused by delays and collapsed trials exacerbates this.
2. Addressing the causes of inefficiency
The Ministry and CPS are leading an ambitious reform programme but this will not address all the causes of inefficiency.
- The court reform programme’s scope is far-reaching. It includes rationalising and modernising the estate to enable more efficient digital working and the roll-out of a single digital case management system accessible by all parties. Better IT infrastructure and a modernised estate would provide the tools for a more efficient, less paper-based system, but are not sufficient to address all the causes of inefficiency in the system.
- Inefficiencies are created where individuals and organisations do not get things right first time, and problems are compounded because mistakes often occur early in the life of a case and are not corrected.
- There can be multiple points of failure as cases progress through the system but these are often not identified until it is too late. (A 2015 inspection found that 18.2% of police charging decisions were incorrect. Incorrect charging decisions should be picked up by the CPS before court, but 38.4% of cases were not reviewed before reaching court. The system’s reliance on paper also builds in inefficiency).
- The system as a whole is inefficient because its individual parts have strong incentives to work in ways that create cost elsewhere.
- As there is no common view of what success looks like, organisations may not act in the best interests of the whole system. (For example, courts staff seek, under judicial direction, to ensure they are in use as much as possible by scheduling more trials than can be heard so that there are back-ups when one trial cannot proceed. This is both a cause and a result of the inefficiencies in the system, and leads to costs for other parts of the system, for example witnesses who spend a day waiting to give evidence for a trial that is not then heard, and who may then be more likely to disengage from the process).
- There is significant regional variation in the performance of the system, suggesting that there is scope for efficiency gains. (A victim of crime in North Wales has a 7 in 10 chance that the trial will go ahead at Crown Court on the day it is scheduled, whereas in Greater Manchester the figure is only 2 in 10. The large variation in performance across the country means that victims and witnesses will experience very different levels of service.)
- If the performance in those Local Criminal Justice Board areas with the highest rate of cracked trials was equivalent to the best-performing quartile, 15% more cases would proceed as planned, saving a minimum of £4 million in CPS costs, as well as those costs incurred by other organisations.
- There are some mechanisms to identify and share good practice, but awareness and use of these varies. Our case study visits identified a range of innovative approaches that made a positive impact on the system. These included implementing an appointment system for the approval of search warrants, which saved a significant amount of police time, and creating a dedicated videoconferencing court. But there is varied awareness and use of mechanisms to identify and disseminate learning from these initiatives.
3 Conclusion on value for money
- Reducing inefficiency in the justice system is essential if the increasing demand and reducing funding are not to lead to slower, less accessible justice. Although the bodies involved have improved the management of cases, around two-thirds of criminal trials still do not proceed as planned on the day they are originally scheduled. Delays and aborted hearings create extra work, waste scarce resources and undermine confidence in the system.
- Notwithstanding the challenges of improving the efficiency of a system designed to maintain independence of the constituent parts, there are many areas where improvements must be made. Large parts of the system are paper-based and parties are not always doing what they are supposed to do in a timely manner.
- The system is not currently delivering value for money.
- The ambitious reforms led by the Ministry, HMCTS, CPS and judiciary are designed to tackle many of these issues by reducing reliance on paper records and enabling more flexible digital working. They have the potential to improve value for money but will not address all of the causes of inefficiency.
- More also needs to be done to explore and address the wide regional variations in performance, and to create incentives that encourage all parties to operate in the best interests of the system as a whole.
a The Criminal Justice Board should agree what ‘good’ looks like for the system as a whole, and the levels of performance that each part of the system can commit to deliver to achieve this. It should report publicly on whether these levels of performance are being met. While it is important that the different parts of the system are not able to unduly influence individual cases, this cannot preclude agreement over the level of service that each element of the system should provide. Whenever possible, these measures should focus on quality and align with the system’s overarching aims.
b The Criminal Justice Board should regularly review performance at a level sufficient to identify good practice. Unlike many other areas of government, there is granular performance data available for many aspects of the system. Identifying and exploring regional variations in performance will highlight innovative practice, as well as giving organisations across the system incentives to improve.
c The Criminal Justice Board should establish mechanisms to increase transparency and encourage feedback through the system. This is particularly important where one element of the system has a direct but discretionary impact on another. (For example, when magistrates’ courts refer ‘either way’ cases to Crown Court they should be able to find out how many of these cases were ultimately sentenced within magistrates’ court powers. This would allow them to judge whether they are sending the right cases.)
Note. The Criminal Justice Board, is a cross-governmental group chaired by the Justice Secretary. It includes ministers and officials from the Ministry of Justice (the Ministry), its executive agency HM Courts & Tribunals Service (HMCTS), the Home Office, the Attorney General’s Office and the Crown Prosecution Service (CPS). It also includes representatives of police forces, police and crime commissioners and senior members of the judiciary.
In July 2015, JUSTICE, the Human Rights Group published an interesting paper on the use of the dock in the criminal trial process. It has not perhaps had the attention it deserves, but its recommendations should be considered in the context of the Transformation of our Justice System currently being taken forward.
I reproduce here the Press Release published at the time which admirably summarises the arguments.
The use of the dock for adult defendants in our criminal courts is unquestioned. Secure docks – with high walls made of glass panels – are most common, although some defendants will be held in open, wooden docks. While some courts will allow the defendant out of the dock in narrow circumstances, this is a far from uniform practice. Despite their use being an accepted norm, particularly among the legal profession, the dock has not always been so embedded within the courtroom.
The established use of docks was not cemented until as late as the 1970s, while the secure dock now in use did not arrive until 2000. Even today, there is no statutory requirement or judicial authority requiring their use in our courts. Rather, it is simply recommended Ministry of Justice policy that they be available in all criminal courts. The rationale for these increased security measures in recent decades has not been documented in the public record.
JUSTICE is concerned that the use of the dock impacts upon the defendant’s right to a fair trial, in particular: effective participation in one’s defence; preserving the presumption of innocence; and maintaining dignity in the administration of justice. These rights have long been protected by our domestic legal system, the European Convention on Human Rights and international human rights law.
Notably, a number of other jurisdictions, including those that share our common law heritage, have abandoned the use of the dock. These jurisdictions offer useful examples of discreet and humane alternatives, which are used on a case-by-case basis. Available statistical evidence for the Netherlands and the United States demonstrates security incidents rarely occur, and the same can be expected of England and Wales.
Moreover, the adverse impact of the dock on the defendant’s right to a fair trial has been explicitly recognised by appellate courts in both the USA and Australia; in fact, the rejection of the dock in the USA is safeguarded by reference to constitutional guarantees the findings of a recent experimental study in Australia aimed at assessing the prejudicial impact of the dock on juries further support JUSTICE’s concerns.
In light of our legal obligations to secure the right to a fair trial in practice – and taking into account the experience of comparative jurisdictions – JUSTICE calls for reconsideration of the use of the dock in our criminal courts. At a time when HM Courts and Tribunal Service is reviewing the use of its estate, attention should be given to how our courtrooms are designed, by reference to actual need, rather than tradition.
- There should be a presumption that all defendants sit in the well of the court, behind or close to their advocate;
- Open docks should no longer be used and defendants should sit with their legal team;
- Where security concerns exist, a procedural hearing should be held to satisfy the court that additional security is required;
- In cases where there is no security risk, defendants should also sit with their legal team;
- We invite the Lord Chief Justice to consider issuing a practice direction with regard to the above recommendations;
- We invite HM Courts and Tribunal Service, the Ministry of Justice and other appropriate agencies to explore alternative security measures to the dock, mindful of the need for such measures to be concealed from the judge/jury and comfortable for the defendant; and
- We invite the Ministry of Justice and other relevant agencies to review prisoner escort custody contracts to ensure appropriate security can be supplied to the courtroom.
The report is at https://justice.org.uk/in-the-dock/
One reason to regret the departure of Michael Gove MP as Secretary of State for Justice and Lord Chancellor – following the outcome of the Brexit referendum – was that he did not have the chance to follow through his ideas to improve the rehabilitation functions of prisons. His successor, Liz Truss MP, has taken up the mantle of prison reform. Following the announcement in the Queen’s Speech that there would be a Prisons Bill, the Government in November 2016 published a White Paper setting out in some more detail its proposals.
They include, and have been summarised in the Press Release:
Safe and secure prisons:
- Creating a new network of ‘no-fly’ zones to block drones flying dangerous illicit items into the prison estate, the fitting out of prisons with cutting edge technology to block illegal mobile phones; and testing offenders for drugs on entry and exit from prison;
- Rating prisons on their ability to run safe and decent regimes which reform offenders, cut crime, and keep streets safe – showing which prisons are making real progress in getting prisoners off drugs and into education and employment
- Enshrining in law what the public and Parliament can expect prisons to deliver– making sure prisons operate under a rigorous system of accountability, scrutiny and support, and holding the Secretary of State to account for their performance;
- Giving every single governor greater authority to run their prison the way they think best – moving power from the centre and into the hands of hard-working, trusted staff to deliver lasting improvements and equip offenders with the tools to lead a better life on release.
Stronger accountability and scrutiny:
Overhauling accountability and giving greater bite to the inspection regime so action is taken swiftly – and seriously – where prisons are failing in their duties – including a new emergency trigger for the Justice Secretary to take direct action, with sanctions including the issuing of formal improvement plans to ultimately replacing the leadership of the prison
These measures, which will require legislation, will be supplemented by a major programme of prison building, closing old prisons and replacing them with modern buildings.
In the view of many, the chances of success in reducing reoffending rates (which currently run at about 50%) will only be achieved if the prison population is reduced, so that the education, that Michael Gove was so keen to promote, can actually be provided. Indeed, the Lord Chief Justice, in evidence to the Justice Select Committee in November 2016, argued (as other senior judges have done before him) that more could be done by making community sentences more onerous, and keeping prisons for the most serious offenders.
The Prison Reform White Paper , Prison Safety and Reform, may be read at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565014/cm-9350-prison-safety-and-reform-_web_.pdf