Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 5’ Category

Abolition of the Criminal Court charge

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Prediction is a hazardous business. On 30 Novermber 2015, I wrote – in relation to the Criminal Court charge –

 While it is unlikely that there will be abolition so soon after introduction, my hunch is that the Government will be returning to the issue in the not too distant future.

Well I was both right and wrong: the Government has returned to the issue, but much more rapidly that most people anticipated.

Michael Gove, the Justice Secretary announced yesterday (3 Dec 2015) that the charge would be scrapped from 24 December 2015. The announcement was made to the Magistrates’ Association, a number of whose members had resigned from the magistracy over the imposition of the charge.

No doubt such a rapid change of mind will be portrayed as a U turn (though of course the initial decision to introduce the charge was taken by Gove’s predecessor Chris Grayling). But if a policy is shown to be absurd and not working, then surely it is more rational to change it rather than to doggedly adhere to it?

Anyway, at least on this occasion a rapid decision has been taken to kill off a policy was had drawn substantial criticism, not just from the magistrates but more widely from the legal world.

At the same time the Lord Chancellor has annouced to Parliament, perfectly sensibly in my view, that there should be a wider review of the different ways in which financial orders can be made against those convicted of crime – for example by fines, the victim surcharge, compensation orders, and making contribution to prosecution costs.

The Lord Chancellor would like to see a simpler and more rational structure of these different matters, which have developed over recent years in very piece meal fashion.

The Lord Chancellor’s statement is at: https://www.gov.uk/government/speeches/courts

Written by lwtmp

December 4, 2015 at 10:31 am

New Code of Practice for Victims of Crime

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In October 2015, a new Code of Practice for Victims was published, replacing one originally published in 2013. It sets out in some detail what victims of crime should expect from the criminal justice system. There are separate sections for adult and young victims. It also sets out the responsibilities the Code places on the key actors in the criminal justice system.

It is relevant to all stage in the criminal justice process: investigation and pre-trial; the trial itself; and post-trial.

The code summarises the entitlements as follows:

You are entitled to:
• A written acknowledgement that you have reported a crime, including the basic details of the offence;
• An enhanced service if you are a victim of serious crime, a persistently targeted victim or a vulnerable or intimidated victim;
• A needs assessment to help work out what support you need;
• Information on what to expect from the criminal justice system;
• Be referred to organisations supporting
victims of crime;
• Be informed about the police investigation, such as if a suspect is arrested and charged and any bail conditions imposed;
• Make a Victim Personal Statement (VPS) to explain how the crime affected you;
• Read your VPS aloud or have it read aloud on your behalf, subject to the views of the court, if a defendant is found guilty;
• Be informed if the suspect is to be prosecuted or not or given an out of court disposal;
• Seek a review of the police or CPS’s decision not to prosecute in accordance with the National Police Chiefs Council (NPCC) and CPS Victims’ Right to Review schemes;
Be informed of the time, date and location and outcome of any court hearings;
• Be informed if you need to give evidence in court, what to expect and discuss what help and support you might need with the Witness Care Unit;
• Arrange a court familiarisation visit and enter the court through a different entrance from the suspect and sit in a separate waiting area where possible;
• Meet the CPS advocate and ask him or her questions about the court process where circumstances permit;
• Be informed of any appeal against the offender’s conviction or sentence;
• To opt into the Victim Contact Scheme (VCS) if the offender is sentenced to 12 months or more for a specified violent or sexual offence;
• If you opt in to the VCS to:
– make a VPS for consideration by the Parole Board if the offender is considered for release or transfer and apply to the Parole Board to read it out at the hearing;
– make representations about the conditions attached to the offender’s licence on release and be informed about any licence conditions relating to you;
• Apply for compensation under the Criminal Injuries Compensation Scheme;
• Receive information about Restorative Justice and how you can take part;
• Make a complaint if you do not receive the information and services you are entitled to, and to receive a full response from the relevant service provider.

To see the whole Code, go to https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crimeThis also gives links to a leaflet about the code and a text of a note that is given to victims.

Written by lwtmp

December 1, 2015 at 11:35 am

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Public spending review: impact on the Justice system (1): Court closures and investment in IT

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The long awaited announcement that there would be significant investment in prisons and also in the IT infrastructure for the Courts and Tribunals service, paid for by selling existing old prisons and little used court buildings, was made by the Chancellor of the Excehquer in the Autumn Statement and Spending Review, announced on 25 November 2015.

More specifically, the Ministry of Justice website notes:
On prisons

£1.3 billion will be invested to reform and modernise the prison estate to make it even more efficient, safer and focused on supporting prisoner rehabilitation. The government will build 9 new, modern prisons – 5 of which will open this Parliament – with better education facilities and other rehabilitative services, while selling ageing, inefficient prisons on prime real estate to free up land for new homes.

By investing in the prison estate, the government will reduce running costs in prisons by £80 million a year when the reforms are complete. New investment will also fund video conference centres, allowing up to 90,000 cases to be heard from prison instead of court, and will deliver more safety improvements in prisons, including body scanners and mobile phone blocking technology.

The Government states its hope that these reforms will reduce reoffending through more effective rehabilitation, and will reduce the cost of transporting prisoners between courts and prisons, stamp out the organisation of crime from within prisons, and stem the availability of drugs and other illicit substances.

The Government also states that these developments will build on the probation reforms undertaken in the last Parliament, which will reduce the costs of the system and reinvest them into extending probation support to 45,000 short-sentence offenders for the first time, to tackle reoffending.

 

On courts and tribunals

Over £700 million will be invested to fully digitise the courts and create a more modern estate. This will generate savings to the taxpayer of approximately £200 million a year from 2019-20. The government will also look at changes to court fees as it continues to put the courts on a more sustainable financial footing.

The text of the statement and other documents may be accessed at https://www.gov.uk/government/topical-events/autumn-statement-and-spending-review-2015

The impact on the Ministry of Justice is at https://www.gov.uk/government/news/ministry-of-justices-settlement-at-the-spending-review-2015

Written by lwtmp

November 30, 2015 at 11:06 am

The future of the Criminal Courts charge

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The Criminal Justice and Courts Act 2015 introduced the principle that those convicted of crimes should be required to make a contribution towards the costs of the criminal court. Regulations prescribe the charges that must be imposed:

Conviction by a magistrates’ court in proceedings conducted in accordance with section 16A of the Magistrates’ Courts Act 1980 (trial by single justice on the papers)(a)

£150

Conviction by a magistrates’ court for a summary offence on a guilty plea

£150

Conviction by a magistrates’ court at a trial of a summary offence where (a) the defendant did not enter a plea, (b) the trial proceeded in the absence of the defendant, and (c) the court dealt with the case on the papers without reliance on any oral evidence

£150

Conviction by a magistrates’ court for an offence triable either-way on a guilty plea

£180

Conviction by a magistrates’ court at a trial of a summary offence

£520

Conviction by a magistrates’ court at a trial of an offence triable either way

£1000

Conviction by the Crown Court on a guilty plea

£900

Conviction by the Crown Court at a trial on indictment

£1200

Magistrates’ court when dealing with a person under section 21B(1)(b), (c) or (d) of the Prosecution of Offenders Act 1985

£100

Crown Court when dealing with a person under section 21 B(2)(b) or (c) of the Prosecution of Offenders Act 1985

£150

Crown Court dismissing an appeal by a person against conviction or sentence

£150

Court of Appeal dismissing an application for leave to bring an appeal under Part 1 of the Criminal Appeal Act 1968 against a person’s conviction or sentence

£150

Court of Appeal dismissing an appeal under Part 1 of the Criminal Appeal Act 1968 against a person’s conviction or sentence

£200

The charges have been criticised by many lawyers and judges on the basis that they have the potential to create a perverse incentive to plead guilty (and thereby attract a lower charge) even in cases where the case should go to trial. Press reports have suggested that the current Lord Chancellor, Michael Gove, is not unsympathetic to reviewing the rules, although the recent statement on Public Expenditure did not mention the charge.

Nonetheless, the Justice Select Committee decided that it would issue an urgent report on the matter. This was published on 20 November 2015. It recommended abolition, or, failing that, that sentencers should have discretion over whether or not to impose a charge and what the amount of the charge should be.

While it is unlikely that there will be abolition so soon after introduction, my hunch is that the Government will be returning to the issue in the not too distant future.

You can read the Justice Committee report at http://www.publications.parliament.uk/pa/cm201516/cmselect/cmjust/586/58602.htm

Written by lwtmp

November 30, 2015 at 10:43 am

Enhancing the Quality of Criminal Advocacy

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In 2014, a review of  criminal advocacy services by Sir Bill Jeffrey was published. In his report he pointed out some harsh truths for the legal professions:

For example:

  • Recorded and reported crime are down.
  • Fewer cases reach the criminal courts.
  • More defendants plead guilty, and earlier than in the past.
  • Court procedures are simpler.
  • There is substantially less work for advocates to do.
  • Its character is different, with more straightforward cases and fewer contested trials.
  • In the publicly funded sector (86% of the total), it pays less well.
  • There has been a marked shift in the distribution of advocacy work in the Crown Court between the two sides of the profession. There are many more solicitor advocates than there were in the years following the liberalisation of rights of audience. Between 2005-06 and 2012-13, the percentage of publicly funded cases in which the defence was conducted by a solicitor advocate rose from 4% to 24% of contested trials and from 6% to 40% of guilty pleas. Both figures are on a rising trend.
  • In 2012-2013, Crown Prosecution Service (CPS) in-house lawyers led the prosecution in approximately 45% of Crown Court trials.

He noted that there would be serious implications for the criminal justice system, if current trends towards the use of solicitor advocates and away from the criminal Bar continue. Sir Bill was clear that it would be neither feasible nor desirable to wind the clock back on rights of audience. He found that solicitor advocates are a valuable and established part of the scene. But if the Bar’s share of the work continues to decline, as the current generation moves to retirement, the supply of top-end advocates to undertake the most complex trials would be in doubt.

This stark assessment is the background to a new  consultation, launched in October 2015 by the government, setting on a number of measures it argues are necessary to enhance the quality of advocacy in criminal cases.

The paper sets out two principal reasons why it feels it must undertake this consultation:

  1. The Government has a responsibility to ensure the delivery of an efficient, fair and effective justice system in which the public has confidence and therefore has a legitimate interest in making sure that good quality criminal advocacy services are available to those that need them.
  2. The government, via the Legal Aid Agency (LAA), is also the largest single procurer of criminal defence advocacy services, and has a responsibility to ensure that, where such advocacy services are being paid for with public money, they are of a good quality.

The specific proposals on which the Government is seeking views  can be summarised as follows:

  • the proposed introduction of a panel scheme – publicly funded criminal defence advocacy in the Crown Court and above would be undertaken by advocates who are members of this panel;
  • the proposed introduction of a statutory ban on referral fees in criminal cases;
  • how disguised referral fees can be identified and prevented; and
  • the proposed introduction of stronger measures to ensure client choice and prevent conflicts of interest.

The period of consultation expires at the end of November 2015. If these, or measures similar to what is proposed go ahead, they will have a profound impact on the ways in which criminal practitioners work and the way in which the Legal Aid Agency operates.

For Sir Bill Jeffrey’s report go to https://www.gov.uk/government/news/advocates-must-adapt-to-a-changing-landscape.

For the consultation go to https://consult.justice.gov.uk/digital-communications/enhancing-the-quality-of-criminal-advocacy

Written by lwtmp

November 5, 2015 at 12:53 pm

Restorative Justice: Information pack for the judiciary

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It is some time since I wrote in this blog about restorative justice. (See Nov 2012 and April 2013).
The leading charity in the field, the Resorative Justice Council, has just (October 2015) published an information pack about restorative justice.The pack has been developed with the help of the Magistrates’ Association, the Ministry of Justice and Her Majesty’s Courts and Tribunals Service.

It is designed to help magistrates, crown court judges and court staff to understand restorative justice, the benefits it can bring to all parties involved in a crime and the role that the judiciary can play in the process.

As well as providing information on restorative justice and its use in sentencing, the pack features a checklist for restorative justice, an article about why the judiciary can have confidence in the approach, and the voices of victims and offenders who have taken part in a restorative justice process.

The pack can be downloaded free from https://www.restorativejustice.org.uk/resources/restorative-justice-and-judiciary-information-pack

Written by lwtmp

October 28, 2015 at 5:56 pm

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Rise in numbers of private prosecutions?

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The principal prosecution authority in the English Legal System is the Crown Prosecution Service. Private prosecutions, brought by individuals, have been rare. But two recent news items, reported in the Times Newspaper suggest that we may be witnessing an increase in private prosecutions.
On 2 September 2015 it was reported that some of the families caught up in the terrible refuse lorry accident in Glasgow last year were contemplating bringing criminal proceedings against the driver.
On 3 September 2015, there was an interesting feature also suggesting that private prosecutions might be on the interest, in particular where allegations of serious corporate fraud were involved. The key issue made in the article was that the reason why private prosecutions might be on the increase might be reductions in funding for the CPS which meant that they did not have the resources to take on serious cases.
It is hard to judge from a single newspaper article whether this really is a trend; and it is certainly not possible to say whether the suggested reason – public expenditure cuts – is the principal reason why this is happening. However, the two items – taken together – perhaps lay down a marker that this is an issue which needs to be kept under review.
Although I have argued elsewhere that not all cuts to public expenditure are necessarily harmful, if those cuts are preventing the CPS from doing its job of bringing to court cases that fall within its code of practice, this would seem to extremely worrying and an issue on which there should be proper research.
For the article see: http://www.thetimes.co.uk/tto/law/article4545615.ece

Written by lwtmp

September 14, 2015 at 3:51 pm

Use of stop and search powers by the police: recent developments

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On 10 October 2014 I wrote about the new Code of Guidance, prepared by the College of Policing on the use of stop and search powers.

The use of the new Code, called Best Use of Stop and Search, went live on 1 December 2014. It is a voluntary  scheme, but one to which all police forces in England and Wales have signed up. It is designed to ensure the police take a more intelligence-led approach to using these powers, and that they are only used when necessary. Adoption of the code is seen as part of a range of measures designed to contribute to a reduction in the overall use of stop and search, lead to better and more intelligence-led stop and searches and more effective outcomes.

Initially only thirty-five forces were fully implementing the Scheme, City of London, Derbyshire, South Yorkshire, Greater Manchester Police, Lincolnshire, South Wales and Dorset police came full on board in April 2015. Key elements of the scheme are that

  • Forces will publish their stop and search outcomes on http://data.police.uk/data/stop-and-search/, This allows members of the public to see how their force is using these powers
  • Forces can now arrange for members of the public to accompany officers on patrol, so they can see how the police use stop and search
  • Where a force receives a large volume of complaints on the use of stop and search, that force will explain to their local community scrutiny group how it is using the powers
  • Forces should reduce the number of stop and searches where there are no reasonable grounds for suspicion.

See https://www.police.uk/news/best-use-stop-and-search/

In August 2015, it was announced that policed forces would be publishing further data on how they use these powers.This means that members of the public can see the number of stop and searches, the outcomes and the proportion of these outcomes that were linked to the purpose of the search in any given police area. The data also provide a breakdown of the ethnicity and age of people stopped and searched and the time of day stops are carried out on a monthly basis.

Currently 25 forces also publish their stop and search data on the crime maps on this site. This allows residents in these areas to see where stop and searches take place, and view details about the stop and search including the reason and outcome.

See https://www.police.uk/news/stop-and-search-data-published-policeuk/

The data are available at http://data.police.uk/data/stop-and-search/

At present the data is presented in a rather raw spreadsheet format. A more narrative account would make for easier reading of the data.

Written by lwtmp

August 8, 2015 at 11:44 am

The treasure in the heart of man – making prisons work

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The new Lord Chancellor, Michael Gove, is turning out to be a very interesting appointment. Following his speech on his vision for the justice system, (see this blog 23 June 2015), he has now given a truly remarkable lecture on how prisons might be made to work more effectively in helping to rehabilitate offenders and leading them to play a constructive role in society.

Taking his inspiration from Winston Churchill, who once said ‘There is a treasure, if only you can find it, in the heart of every man’ he has noted that education must be at the heart of the prison experience.

To be fair, his predecessor said something very similar; but then went on to ban books being available to prisoners, which seemed, at the least, to be counter-productive.

Michael Gove, pursuing interested he had as Secretary of State for Education, has returned to the same theme.

At present, Gove noted

45% of adult prisoners re-offend within one year of release. For those prisoners serving shorter sentences – those of less than twelve months – the figure rises to 58%. And, saddest of all, more than two-thirds of offenders under the age of 18 re-offend within twelve months of release.

Referring to the characteristics of those in prison, he said:

Prisoners come – disproportionately – from backgrounds where they were deprived of proper parenting, where the home they first grew up in was violent, where they spent time in care, where they experienced disrupted and difficult schooling, where they failed to get the qualifications necessary to succeed in life and where they got drawn into drug-taking.

Three quarters of young offenders had an absent father, one third had an absent mother, two-fifths have been on the child protection register because they were at risk of abuse and neglect.

  • 41% of prisoners observed domestic violence as a child
  • 24% of prisoners were taken into care as children. That compares with just 2% of the general population
  • 42% of those leaving prison had been expelled from school when children compared to 2% of general population
  • 47% have no school qualifications at all – not one single GCSE – this compares to 15% of the working age general population
  • Between 20 and 30% of prisoners have learning difficulties or disabilities and 64% have used Class A drugs

His answer to this is to try to ensure that there is much more ‘purposeful activity’ in prisons so that prisoners are helped to fill in some of the gaps in their education and upbringing.

Gove continued:

In prisons there is a – literally – captive population whose inability to read properly or master basic mathematics makes them prime candidates for re-offending. Ensuring those offenders become literate and numerate makes them employable and thus contributors to society, not a problem for our communities. Getting poorly-educated adults to a basic level of literacy and numeracy is straightforward, if tried and tested teaching models are followed, as the armed forces have demonstrated. So the failure to teach our prisoners a proper lesson is indefensible.

In this context, Gove proposes that prisoners should be required to earn early release from prison by showing they have participated in and learned from appropriate educational opportunities. He want to down play, even abolish, the automatic release of prisoners halfway through their sentences – a practice which he says means that sentences imposed by judges hardly ever mean what they purport to say.

It is not clear how far detailed policy work has been undertaken to bring this vision into effect – it seems likely that it would be a policy that would require significant additional resources, even if in the long run savings could be made through the reduction It may therefore be easier said than done. But as a goal for the prison system to aim for, it makes a lot of sense.

To read the whole speech go to https://www.gov.uk/government/speeches/the-treasure-in-the-heart-of-man-making-prisons-work

Written by lwtmp

August 3, 2015 at 9:55 am

Revolution in the Justice system?

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On 23 June 2015, the Lord Chancellor delivered a major speech on his vision for the development of the Justice system. Mr Gove is not shy of taking on existing established practices – witness his battles with the teachers when he was Secretary of State for Education under the Coalition Government.

In his speech, entitled What does a one nation justice policy look like? he argues that the justice system is in need of fundamental reform if is it to deliver access to justice to ordinary people.

A potentially very important difference between what he was trying to do in the world of education and what he now seeks to do to the justice system is that for the latter, much of the initiative for reform is coming from the judiciary itself. They see the need for better use of court facilities, fundamental investment in IT which would enable much legal work to be done without attendance at courts, support for new ideas – in particular in civil justice – endorsing proposals recently set out by Justice in its report Civil Justice in an Age of Austerity. (see this blog, entry for 5 May 2015)

First reactions to the Lord Chancellor’s speech can be heard in a special edition of the BBC programme Law in Action which was broadcast on the same day. The discussion – by Sir Stanley Burnton, Dame Hazel Genn and Keir Starmer – provides a useful basis for understanding what may start to unfold in the justice system over the next five years

What is absolutely certain is that anyone starting the study of law should be aware of what is in the pipeline – things are likely to change pretty quickly.

To read the speech go to https://www.gov.uk/government/speeches/what-does-a-one-nation-justice-policy-look-like

To hear the Law in Action Broadcast go to http://www.bbc.co.uk/programmes/b05zktnf#auto

The Centre for Justice Innovation, whose work is mentioned in the programme has a website at http://www.justiceinnovation.org/