Martin Partington: Spotlight on the Justice System

The Government has made two key appointment in the process of creating the new National Probation Service.

Mike Maiden, former Chief Executive of Staffordshire and West Midlands Probation Trust, will undertake the role of Director of Probation, leading the National Probation Service in England.

Sarah Payne, current Chief Executive of Wales Probation Trust, will take up the post as Director National Offender Management Service (NOMS), Wales. Her role will also include overarching responsibility for public and private prisons and contractual oversight of private sector prison delivery in Wales.

They will lead a team of the country’s top offender managers, working with around 30,000 offenders each year who pose a high-risk of serious harm to the public.

The new directors will work alongside private and voluntary sector organisations who will be delivering rehabilitation services to low and medium risk offenders within 21 Contract Package Areas across England and Wales.4

They take up full responsibilities in April 2014.

For more detail go to https://www.gov.uk/government/news/national-probation-service-appointments-announced

• In May 2013, the Ministry of Justice published “Transforming Rehabilitation: A Strategy for Reform”. The strategy sets out the Government’s plans for transforming the way in which offenders are managed in the community in order to bring down reoffending rates.

The key aspects of the reforms are:

• Creation of a new public sector National Probation Service (see separate blog item).

• Providing that every offender released from custody will receive statutory supervision and rehabilitation in the community. The Offender Rehabilitation Bill, introduced into the House of Lords in May 2013, will – when enacted – extend this statutory supervision and rehabilitation to all 50,000 of the most prolific group of offenders – those sentenced to less than 12 months in custody.

• Putting in place a nationwide ‘through the prison gate’ resettlement service, meaning most offenders are given continuous support by one provider from custody into the community. This will be supported by ensuring that most offenders are held in a prison designated to their area for at least three months before release.

• Opening the market up to a diverse range of new rehabilitation providers, designed to get the best out of the public, voluntary and private sectors, at the local as well as national level.

• Introducing new payment incentives for market providers to focus on reforming offenders, giving providers flexibility to do what works and freedom from bureaucracy, but only paying them in full for real reductions in reoffending.

For further information on the Government’s plans see http://www.justice.gov.uk/transforming-rehabilitation

For further information on the Offenders Rehabilitation Bill 2013 go to http://services.parliament.uk/bills/2013-14/offenderrehabilitation.html

On 20 August 2013, the Government announced that it plans to increase to 75 the upper age limit for jurors. Each year, about 178,000 people in England and Wales undertake jury service. According to the Justice Minister Damien Green – who made the announcement, the reform is designed to enable people – who in general are living longer – to continue to bring their life experience to the jury room. Certainly the proposal is welcomed by organisations representing the elderly.
But part of the motivation for the change is that there are, it seems, areas of the country where it has proved difficult to find the numbers of people required for jury service. The change will therefore increase the size of the pool from whom jurors can be drawn.
The change requires legislation, which will be introduced next year.
See https://www.gov.uk/government/news/upper-age-limit-for-jury-service-to-be-raised

No one in their right mind would suggest this would they? Of course not. But a recent pamphlet written by Professor Andrew Ashworth and published by the Howard League for Penal Reform argues that in most cases involving what he calls ‘pure property offences’ such as theft, handling of stolen goods, criminal damage and fraud, use of imprisonment should be stopped.
He uses three principal arguments to support this apparently startling proposition.

• First, he argues that there would be more chance of getting compensation paid to the victims of such crimes if the perpetrators were not banged up in jail, unable to continue to earn the money to pay the compensation.

• Second, he argues that the community sentences that are now available to courts are much more stringent than they used to be, requiring those convicted to undertake work in the community, be subject to curfews and so on.

• Third, such a policy would have a profound effect on prisons. At the moment, 20,000 people go to prison each year for theft or handling stolen goods (more than for any other crime), 5,000 for fraud and 1,000 for criminal damage. Giving people who commit these crimes financial penalties to compensate victims and community sentences rather than custody would reduce the sentenced male prison population by 8 per cent (5,000 men) and sentenced female prison population by 21 per cent (700 women). This would save approximately £230 million each year.

Initial Government reaction has been to state that there is no current intention to change the law. But this does not mean that these ideas are not worth considering seriously. Professor Ashworth is no ivory tower academic; he was for a number of years a member of the Sentencing Advisory Panel, latterly its Chair, before its functions were taken over by the Sentencing Guidance Council. He understands the practicalities and the political realities of making such proposals.

However, I think it is unlikely that they will be taken seriously until there is much more general public information about how community sentences work and why they are not just a ‘soft option’. As I argue in the book, it is hard to find a truly informed, rational debate on sentencing policy in the public media.

To read Professor Ashworth’s Pamphlet in full, go to http://www.howardleague.org/online-publications/It is a free download, but you need to register first.

For more information about the Howard League and its work go to http://www.howardleague.org/

The Government’s Consultation on the (further) reform of legal aid was noted in this blog in April 2013. While there is no evidence that the Government intends fundamentally to change its mind on its original proposals, it has made two concessions.

First it has abandoned the idea that those in receipt of legal aid should not have the ability to choose the lawyer they want.

Second, it has decided to do more work on proposals from the Law Society about how changes to legal aid practice might deliver savings while encouraging different forms of practice delivery. There will be a further limited consultation on these proposals in the autumn.

An excellent summary of the Secretary of State’s comments to the Justice Committee can be found at http://www.lawgazette.co.uk/news/grayling-promises-second-consultation-legal-aid-sets-red-lines

You can see what Mr Grayling said to the Justice Committee at http://www.parliamentlive.tv/Main/Player.aspx?meetingId=13501

In December 2012, the College of Policing was created. Its central mission is to set standards for the police service on training, development, skills and qualifications, and  to help the service implement these standards. The College is currently a non-statutory body, though the Government hopes it will be put on a statutory footing by April 2014.

It takes over functions formerly undertaken by the National Policing Improvement Agency, which had been established in 2007 by the previous Labour Government.

The College of Policing’s website gives quite a lot of information about the different issues it seeks to address in the programmes or work that it undertakes.

For more information about the College, see http://www.college.police.uk/en/home.htm

For archive material about the National Policing Improvement Agency, see http://www.npia.police.uk/en/home.htm

On 28 June 2013, the Government published Transforming the Criminal Justice System: A Strategy & Action Plan to Reform the Criminal Justice System. The headline news that attracted media attention was that by 2016, and building on a pilot currently under way in Birmingham, all criminal trials would be run using electronic rather than paper files. It is argued that this will reduce waste and improve efficiency.

The action plan also proposes:

• ‘Digital embedded in everyday working’ Building on the current system where police digitally transfer case information to CPS, digital working will mean police can use mobile devices, with access to real-time intelligence and local information, to start building case files from the street and giving evidence via video-link becomes  the norm, not the exception.
• ‘A Criminal Justice System which is faster.’ Legislating to enable the majority of high-volume, low-level ‘regulatory’ cases, such as TV licence evasion and many traffic offences, to be dealt with away from traditional magistrates’ courtrooms, which means freeing up those courts to deal with more serious cases;
• ‘A Criminal Justice System that is transparent and responsive’.  This will support the extension of the ‘Track My Crime’ system, an  initiative, launched by Avon and Somerset Constabulary, which gives victims the opportunity to check the progress of their case online, including the name of the responsible police officer. It allows the police to send updates to victims to update them on their case, creating a more open and transparent criminal justice system.
• ‘Care and consideration for victims and witnesses’ Providing extra support for victims and witnesses by offering them greater protection throughout the criminal justice process, for example by making it easier for witnesses to give evidence by video, and looking at the case for creating an independent complaints ombudsman for victims of crime. (The Government has already announced that it will pilot the use of pre-recorded evidence for vulnerable victims and witnesses so that they are no longer cross-examined in open court.)

This programme of change is to be driven forward by the Criminal Justice Board, which was established in February 2013.

The clear intention of Government is that the investment in IT foreshadowed in these proposals will eventually lead to reductions in public expenditure.

The Press Release on the proposals is at https://www.gov.uk/government/news/damian-green-digital-courtrooms-to-be-rolled-out-nationally

Full detail of the proposals is at https://www.gov.uk/government/publications/transforming-the-criminal-justice-system

Rather limited information about the Criminal Justice Board is at http://www.justice.gov.uk/about/moj/advisory-groups/criminal-justice-board

Magistrates spend a lot of time dealing with traffic offences. And the gap between offences and court decisions is, on average, over 6 months. As part of the Government’s Criminal Justice Strategy and Action Plan, it has established specialist traffic courts in 9 pathfinder areas of the country. The Government has recently announced that, from April 2014, there will be a specialist traffic court in each police area.
Offences dealt with in the dedicated traffic courts could include:

• Driving licence related offences
• Lighting offences
• Load offences
• Miscellaneous motoring offences (including trailer offences)
• Motorway offences (other than speeding)
• Neglect of pedestrian rights
• Neglect of traffic directions
• Noise offences
• Obstruction, waiting and parking offences
• Offences particular to motorcycles
• Speed limit offences
• Vehicle insurance offences
• Vehicle test offences
• Vehicles or parts in dangerous or defective condition

There are currently around 500,000 traffic cases dealt with in magistrates courts each year. The intention will be that specialist centres will be established to process these cases. IT will be used to create digital files and enable people to participate by live links without the need to attend courts. The current pathfinders are dealing with up to 160 cases a day.

The Press announcement is at

https://www.gov.uk/government/news/traffic-courts-in-every-area

The Queen’s Speech 2013 contains few measures that seem likely to impact directly on the English Legal system. The two most obvious candidates are:

1. Offender Rehabilitation Bill

This is designed to extend statutory supervision after release to offenders serving short custodial sentences, allowing probation providers to deal with the causes of re-offending. This would mean that all offenders released from prison will receive at least 12 months’ statutory supervision.

For sentences served in the community, the Bill would create greater flexibility for probation providers so that they are free to deliver innovative and effective interventions to tackle re-offending.

The main benefits of the Bill would be to:

• Reduce re-offending rates for the most prolific offenders.
• Support Government plans to open up probation services to a wide range of providers(including private and voluntary sector providers) through competition and develop use of a system of payment by results for providers

The Bill would provide for drug-abusing offenders to be required to attend treatment appointments, and expand the drugs that an offender can be required to be tested for from class A to class B.

The Bill would create a new rehabilitation activity requirement that can be imposed as part of sentences served in the community. This would provide a flexible requirement within which probation providers can require offenders to attend appointments or activities that support their rehabilitation.

2. Anti-social Behaviour,  Crime and Policing Bill which  contains a variety of measures including policies to tackle anti-social behaviour, forced marriage, dangerous dogs and illegal firearms used  by gangs and in organised crime. It also includes measures to enhance the professional capabilities and integrity of the police, and continuing the process of modernising police pay and conditions.

3. Immigration Bill may have a significant impact on rights of appeal in immigration disputes.

In addition there are two draft Bill which will have an impact on the English Legal system, when enacted.

1 Draft Deregulation Bill, be published in draft for pre – legislative scrutiny. While many regulations are being scrapped and reformed either administratively or via secondary legislation, the main aims of this Bill are, in the Government’s words, to:

• ·         Reduce or remove burdens on businesses and Civil Society and facilitate growth
• ·         Reduce or remove burdens on public bodies, the taxpayer or individuals
• ·         Tidying up the statute book by repealing legislation that is no longer of any practical use.

 2 Draft  Consumer Rights Bill, designed to

•  Give consumers clearer rights in law and to make sure that consumer rights keep pace with technological advances.
• Provide important new protections for consumers alongside measures to  reduce regulation for business, all with the aim of making markets work  better.

Just as legal aid lawyers might have thought that they had suffered their cuts, along comes another Consultation Paper setting out more ideas for reform – designed, of course, to further reduce public expenditure on legal aid.

The Consultation Paper, Transforming Legal Aid: Delivering a more credible and efficient system, published on April 9th 2013, contains a rather complex mix of ideas that the Government is seeking to pursue.

The headline changes that are under consideration include:

• Removing criminal legal aid in prison law cases that do not justify the use of public money – such as complaints about the category of prison or correspondence a prisoner is allowed.  The Government argues that many such cases can be addressed by the prisoner complaint system.
• Introducing a threshold on Crown Court legal aid to stop wealthy defendants with an annual household disposable income of £37,500 or more being automatically granted legal aid, which would avoid having to fight to get the money back after their trial.
• Introducing a residency test so that only those with a strong connection to the UK are able to receive civil legal aid.
• Discouraging so-called ‘weak’ judicial review cases by tightening up the payment mechanism, only paying providers for work done on bringing a claim once a judge has agreed the case is strong enough to proceed.
• Making it harder for claimants to use civil legal aid to bring speculative cases by tightening the test so that all cases must have at least a 50% chance of success to be funded.
• Introducing competition for legally-aided advice and representation (not including Crown Court advocacy).
• Restructuring the Crown Court advocacy fee scheme by paying the same rates to advocates irrespective of whether there is an early or a late guilty plea or a short trial. This proposal provides more incentive to complete cases as early as possible.
• Reducing certain legal aid fees paid in civil cases and to experts.

These new proposals will be hard fought by the legal professions, in particular the proposal to introduce competitive tendering for the supply of criminal defence services – an issue that has been around a long time but which successive Lord Chancellors have – until now – fought shy of pursuing.

Further information, including links to the consultation paper are at https://www.gov.uk/government/news/making-legal-aid-fairer-for-taxpayers–2
See also https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

The Consultation runs until June 4th 2013