Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 5’ Category

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/

 

 

 

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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

Mental health and Fair Trial

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Since 2015 the Human Rights group JUSTICE has produced a remarkable series of reports on different aspects of the justice system. (I declare an interest; I am a member of the JUSTICE Council.)

Their report Mental Health and Fair Trial was published in November 2017. in it, it outlined the precarious position vulnerable people may be in when confronted by the criminal justice system.

Since the JUSTICE reports are written by specialist sub-groups with specific knowledge of the issues raised, the recommendations they propose are aimed at dealing with practical challenges faced by those working in criminal justice. The available evidence suggests that people in the criminal justice system are far more likely to suffer from mental health problems than the general population.

The report argues that ‘argues that from first contact with the police through to sentence, there remain fundamental problems with the English justice system’s response to mental health. Left unaddressed the fair trial rights of many defendants may be undermined.’

The report makes over 50 recommendations for change grouped into the following broad categories.

1. The investigative stage – Mental health experts, not police officers, should be identifying people with vulnerability as a result of mental ill health or learning disability and those identified should have access to proper support.
2. Decision as to charge or prosecution – A specialist prosecutor should be appointed for each Crown Prosecution Service area who must make the charging decision in cases of vulnerability, assisted by up-to-date guidance and assessments.
3. Pre-trial and trial hearings – Trial processes can be bewildering and incomprehensible for those with mental ill health and learning disabilities. Magistrates’ courts, youth courts and the Crown Court should have a dedicated mental health judge with enhanced case management powers and responsibility for a case progression protocol.
4. Legal capacity tests – A capacity based test of fitness to plead and fitness to stand trial, placed on a statutory footing should be available in all courts and the “insanity” defence should be amended to a defence of ‘not criminally responsible by reason of a recognised medical condition’.
5. Disposal and sentencing – A Sentencing Guideline on mental health and vulnerability should be created and a broader range of disposals made available to sentencers to meet the needs of the case.

Although the report was launched with strong support from the Lord Chief Justice, it is not known whether the Government or other agencies mentioned in the report have actively taken forward these recommendations. But they deserve careful consideration.

The report is available at https://justice.org.uk/mental-health-fair-trial/

Written by lwtmp

July 11, 2018 at 2:01 pm

Enforcement of judgments

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One of the challenges for the civil justice system is knowing how to enforce judgments made by the courts that money should be paid by the losing party to the winner. At the heart of this issue is the problem of whether someone cannot pay (because they just do not have the resources) or won’t pay (because they won’t).

The rules relating to enforcement agents working for both the High Court and County Court were amended with effect from April 2014, and a review of the first year of operation of the new rules was started a year later in 2015. The results of that review were published in April 2018.

The results of the review are not in themselves particularly startling though there are indications that the new rules are beginning to have some impact, both in relation to the behaviour of enforcement agents, and in encouraging people to come to an agreement before their possessions are actually seized for sale (the usual objective of enforcement action in civil cases).

This is very much work in progress. Indeed, a significant component of the big Transformation Programme is the Transforming Compliance and Enforcement Programme (TCEP) which is upgrading systems in HMCTS’s National Compliance and Enforcement Service, used to enforce court orders such as penalties and compensation. If this works, this will have impact across the whole of the justice system, not just civil justice, as it will also deal with fines and compensation orders made in criminal courts.

For the one year review, see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695833/one-year-review-bailiff-reform-web.pdf

Written by lwtmp

June 8, 2018 at 10:32 am

Transforming the Justice system – views from the National Audit Office

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In this blog, I have tried to keep readers abreast of developments with the major Transformation of the Justice system programme. I have observed that this is not always easy and depends on keeping an eye out for press releases, blogs and now the new monthly e-bulletin issued by HM Courts and Tribunals Service.

In May 2018, the National Audit Office (NAO) published its first appraisal of how the programme is going.

Obviously the NAO is supportive of the aims of the programme, which it summarises as follows:

In 2016, HMCTS set up a portfolio of change programmes that will introduce

new technology and working practices to modernise and upgrade the justice system.

By March 2023, HMCTS expects to employ 5,000 fewer staff, reduce the number of
cases held in physical courtrooms by 2.4 million cases per year and reduce annual
spending by £265 million. Savings will come from lower administrative and judicial staff costs, fewer physical hearings and running a smaller estate. As well as making savings HMCTS expects the reformed system to work better for all those involved, use court time more proportionately, and make processes more accessible to users.

The NAO report helpfully reminds readers of the scale and scope of the overall programme:

The HMCTS change portfolio consists of several related programmes, which in turn
are made up of many individual projects. The major programmes are:
• The HMCTS Reform Programme which is modernising processes and systems
to reduce demand on courts by moving activity out of courtrooms. For example,
it will introduce online services and digital case files and expand the use of video
technology in hearings.
• The Common Platform Programme which is developing shared processes
and a digital criminal justice case management system to share information
between HMCTS, the Crown Prosecution Service and the police. It is jointly
managed by these organisations.
• The Transforming Compliance and Enforcement Programme (TCEP) which
is upgrading systems in HMCTS’s National Compliance and Enforcement Service,
used to enforce court orders such as penalties and compensation.
As part of these programmes, HMCTS is also reducing and modernising the
court and tribunal estate and creating cross-jurisdictional hearing centres and national ‘customer service centres’. These will centralise case management and administration and provide support to the public, judges and lawyers on civil and criminal matters.
The NAO makes some rather obvious observations:

1 The scope of the programme is challenging

2 The timetable has been expanded

3 The scope of some projects has been reduced

4 Progress has been slower than expected

5 Costs have risen and likely benefits decreased

6 There remain funding gaps for the later stages.

The NAO notes that many of these points have been taken on board within HMCTS. Nonetheless, the NAO argues that more should be done to demonstrate in detail how the reformed system will work. It states that it is important to sustain the committment of all those involved in the design and delivery of the new service. It implicitly criticises the Ministry of Justice for its failure to reintroduce the legislation that will be needed to ensure that aspects of the reform programme can be implemented. The NAO warns that the scale and spped of change may result in changes having unexpected consequences. And as much of the anticipated savings arise from reductions in staff, this could actually lead to an inability to deliver the service.

The public response of HMCTS has been upbeat – as indeed it has to be. A Press Release acknowledges that the programme is challenging; it summarises a number of specific changes that have been delivered; and remains confident that the programme will be successfully delivered.

My own view is that it is very important that the transformation programme is delivered. But the managerial challenge of delivering a large scale change should not be underestimated. To date, key judicial figures have been working with HMCTS to promote the need for and advantages of change. Continued judicial leadership will be essential. But I think it would be wise to develop a wider group of ‘change champions’, particularly within the judiciary more broadly and from  the legal professions. Many practitioners will accept that the current system does not serve the public well. Many will have good ideas for how things could be done more efficiently and to greater public benefit. Giving them the encouragement to voice their support for change would be highly desirable.

The NAO report is at https://www.nao.org.uk/wp-content/uploads/2018/05/Early-progess-in-transforming-courts-and-tribunals.pdf.

The HMTCS Press release is at https://www.gov.uk/government/news/hmcts-response-to-national-audit-office-report-on-court-reform-programme?utm_medium=email&utm_source=

Search warrants – reform proposals

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As a keen follower of the work of the Law Commission (I was once a Commissioner), I confess I had not spotted the fact that the Commission was undertaking work relating to the law on search warrants. It did not get a mention in either its 12th or 13th programmes.

The reason for this is that in December 2016, they were give a specific commission by the Home Office to undertake work in this area. The first fruits of this project have now been published in the form of  a Consultation Paper setting out the Commission’s initial ideas as to how the law might be reformed.

A search warrant is a written authorisation that allows an investigator to enter premises to search for material or individuals. Search warrants are usually issued by a court following an application by a police officer or other investigator. Most search warrants authorise the investigator to seize and retain relevant material found during the search.

Surprisingly, perhaps, detailed analysis of the law reveals that there over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984, are used to look for evidence of a criminal offence.  More specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials or to rescue people or animals in danger or distress. Other powers relate to complex financial or other types of specialised investigation.

The Commission identified a number of problems with the current law:

  • the sheer number of provisions, coupled with their complexity, leads to a confusing legislative landscape;
  • there is inconsistency across search warrant provisions and in the procedure for obtaining a search warrant. Importantly, there is inconsistency in the applicability of statutory safeguards and the protection afforded to particular categories of material;
  • a large proportion of the legislation, in particular the Police and Criminal Evidence Act 1984, predates the advent of electronic material and risks failing to deal with emerging digital technology and the forms in which criminal activity now takes place; and
  • the number of appeals generated by search warrants legislation, and the legal fees incurred, creates excessive cost for all parties.

In the light of their analysis, the Commission has made proposals to:

  • simplify the law and procedure governing search warrants by rendering it more rational and accessible at all stages of the search warrant process;
  • make the law fairer by extending protections, improving judicial scrutiny and making the law more transparent;
  • modernise the law to ensure that it reflects the changing nature of investigations and is equipped to deal with current technology; and
  • make the law more cost-effective by introducing a streamlined way to obtain a search warrant and a new procedure to challenge and correct procedural deficiencies.

The consultation runs until 5 September 2018.

For further details and links to the consultation go to https://www.lawcom.gov.uk/project/search-warrants/

 

 

 

 

 

Written by lwtmp

June 7, 2018 at 9:35 am