Martin Partington: Spotlight on the Justice System

An interesting item on the BBC Today programme the other day concerned the decision by the Director of Public Prosecutions – as head of the Crown Prosecution Service – to give greater opportunity to the victims of crime to ask for a review of any decision by the CPS not to take a prosecution forward.

As readers of the book will know, a decision to prosecute is taken by the application of the two stage ‘full code’ test set out in the Crown Prosecutors Code: the evidential stage; and the public interest stage. Around 80,000 cases a year which have been referred to the CPS are not proceeded with.

Until relatively recently, it was thought that if the CPS decided not to prosecute and told the prospective defendant of their decision, that was the end of the matter. But case law developments have indicated that senior judges think that it should be possible for a person affected by such a decision should be able to seek a review of that decision. The DPP agrees.

I thought I would try to find out a little more about this. It was not as straightforward as I anticipated. The idea of allowing easier review was set out by the DPP, not in a CPS consultation paper, but in a lecture delivered earlier this year, which has just been published in the Criminal Law Review.

Under the title ‘Finality in criminal justice: when should the CPS reopen a case?’ Keir Starmer develops an interesting argument that not all decisions can or should be final – even where this may leave an alleged criminal defendant not quite knowing whether he/she is out of the wood. (See 2012, Crim. L.R. 526)

With this as the starting point, I turned to the CPS Code for Crown Prosecutors to see if the policy outlined by the DPP was reflected there. Despite the fact that the CPS has just published a draft revised code – due to come into effect later this year/early next year – there was no specific reference to the new policy.

An email to me from the CPS suggested that there would be a separate Guidance Note on the implementation of the new policy in due course.

It is not going to be the case that all 80,000 cases will automatically reviewed. But it seems that there will be a procedure for those who think an incorrect decision has been taken to ask for a review. It seems to me that this is potentially quite an important change in prosecutions practice and procedure.

To read the new draft code (the consultation runs till 12 October 2012) go to http://www.cps.gov.uk/consultations/code_2012_consultation_index.html

In the book, I talk about some of the problems of knowing how to interpret official statistics on crime. In particular I discuss in outline the differences between Police Recorded Crime Statistics and the British Crime Survey.

In recent months there have been a number of technical changes in the way statistics on crime are published.

1 From April 2012, statistics on crime are published by the Office for National Statistics (ONS), not the Home Office. The opening website is available at http://www.ons.gov.uk/ons/taxonomy/index.html?nscl=Crime+in+England+and+Wales

2 The British Crime Survey is no more. It has been replaced by the somewhat less catchy but more accurate Crime Survey for England and Wales. There is a separate survey of crime in Scotland, called the Scottish Crime and Justice Survey.

3. On 19 July 2012, under the rather inviting title Trends in crime: a short story 2011/12 the ONS has recently a rather helpful table, summarising the principal differences between the Crime Survey for England and Wales and the Criminal Statistics. See http://www.ons.gov.uk/ons/rel/crime-stats/crime-statistics/period-ending-march-2012/trends-in-crime–a-short-story.html

The Government White Paper on reform of the criminal justice system, published in July 2012, refers to two judiciary driven initiatives designed to encourage more accused persons to plead guilty at an early stage.

The better established of these operates in the Magistrates’ Courts under the heading: Stop Delaying Justice. Since January 2012, magistrates have been encouraged to manage as many criminal cases as possible on the basis that there should be no more than two hearings and that the whole process should be over within 6 weeks.

The introduction of the initiative followed a speech delivered by the Lord Chief Justice in 2011 on the importance of ensuring the there are no unnecessary delays and wasted expenditure. It was developed by the magistrates themselves working with district judges and the Crown prosecution service.

The obvious risk is that, with pressure to plead guilty before the accused knows all the evidence against him/her, this may lead to incorrect decisions. A BBC Radio 5 Live documentary suggested that at least some cases might have resulted in unfair decisions being reached. See http://www.bbc.co.uk/news/uk-17690404

But the Magistrates’ Association and the CPS both defend the new scheme, in particular on the principle that justice delayed can be justice denied.

An equivalent scheme is also being tested in the Crown Court. During 2012-2013, Crown Courts in the London area will be developing Early Guilty Plea Protocols. These are also designed to ensure that those accused of offences are encouraged to plead guilty early. The first of these protocols, applying in Wood Green Crown Court was published in June 2012: see http://www.cps.gov.uk/london/early_guilty_plea_scheme/

The Government White paper on the reform of the Criminal Justice system states that the Government will support the roll-out of these schemes on a national basis over the coming months.

The importance of evaluating the effects of these initiatives seems to be very great, though the White Paper makes no mention of any such evaluation currently being undertaken.

For further information on the initiative, see http://www.crimeline.info/stop-delaying-justice/

For a very sceptical view by a serving magistrate see:http://thejusticeofthepeace.blog.co.uk/2011/11/10/stop-delaying-justice-12145157/

13 July 2012 saw the publication by the Ministry of Justice of a new White Paper on the reform of criminal justice. It is a rather unusual document. A typical White Paper will set out government policy on a given subject matter, with policy ideas pretty well worked out and with a promise of imminent legislation.

This White Paper, entitled Swift and Sure Justice: The Government’s Plans for Reform of the Criminal Justice System does neither. Instead it reviews a number of recent developments that have been taking place in the administration of criminal justice and offers somewhat tentative ideas for further reform on which further annoucements will be made in due course.

At the heart of the paper, and reflecting the title of the document, the Government sets out two principles:

“swift: so that the low-level, straightforward and uncontested cases, where a quick response is appropriate, are dealt with promptly and efficiently; and

“sure: so that the system can be relied upon to deliver punishment and redress fairly and in accordance with the law and public expectation. A criminal justice system which fails to command public confidence in this way has fallen at the first hurdle.”

The Government states that its ‘reforms are designed to secure guilty pleas earlier in the prosecution process, improving efficiency, reducing paperwork and process times and alleviating some of the burden on witnesses and victims of crime’.

Under the ‘swift’ label, four specific matters are addressed:

1. First are two initiatives led by the judiciary (rather than government) to tighten criminal case management and encourage early guilty pleas. These are the subject of a separate blog post.

2. Second, simplifying and extending police-led prosecutions. ‘The Home Secretary recently announced that, in addition to existing police powers to prosecute low-level traffic offences, [the government] will introduce changes to enable the police to continue to prosecute these cases when there is no plea or the defendant fails to appear, avoiding unnecessary adjournments and the handing of cases over to the Crown Prosecution Service. We will also extend this simpler, police-led, approach to a wider range of low-level offences.’ This is potentially a very significant change that needs close scrutiny; the separation of investigation (the police function) from prosecution (the CPS function) was introduced by Police and Criminal Evidence Act 1984 as a key reform needed to reduce some of the notorious miscarriages of justice that occurred in the 1960s and 1970s. This should not be undermined.

3. Following the summer riots of 2011, up to 100 magistrates’ courts are sitting on Saturdays and Bank Holidays. ‘[The government] will continue to test innovative approaches to court sitting times, assessing the merits of more flexible sittings, including early morning, evening and weekend sittings for different types of hearings.

4. The Government also states that it is looking ‘for more opportunities to apply public service reform principles to the delivery of criminal justice services. This includes opening the services to new providers and introducing alternative models of delivery including new forms of partnership with the private sector and mutuals. This will build on what has already been achieved with offender management services, for example, through the payment by results pilots we are taking forward.’

Under the ‘sure’ banner, the Govdernment is anxious that the criminal justice system should command public confidence. Punishment should be deterrent but should also aim to prevent reoffending. The government also wants more offenders to face up to the consequences of their crime. It wants action which both punishes them and supports them to address their offending behaviour.

Again a number of specific intiatives are mentioned:

1 Reforms are already in place to make prisons places of meaningful work.

2 The Government has set out proposals to include a punitive element in every community sentence.

3. It is testing the principle of payment by results. A programme of pilots is underway applying a range of different approaches under which those delivering rehabilitation services to offenders will be paid according to their success in reducing reoffending. In the case of the justice reinvestment pilots, funding will be reinvested if savings to the system are made. This provides the platform for introducing greater diversity in the supply of these services, using the public, private and voluntary sectors and innovative approaches to how those services are delivered.

4. Neighbourhood Justice Panels are being established in 15 areas. These involve community representatives and use restorative justice techniques to get a firm and early grip on offending, preventing problems escalating unnecessarily.

5. The Government acknowledges that the unprecedented rise in the use of out-of-court sanctions (for example, cautions and penalty notices for disorder) has raised concerns about whether they have been used appropriately. The White Paper states: ‘We are therefore developing the Justice Test which will provide a helpful tool to help professionals exercise their discretion in a fair and consistent way.’

6 The White Paper also states that there will be a more fundamental look at the way that summary justice is delivered. ‘We are determined to build on the important contribution of magistrates which has been a feature of our system of justice for centuries. The reforms we are setting out will engage magistrates and harness their potential, returning to them a pivotal role in their communities. We are developing proposals to empower a lay magistrate, sitting alone, to deal with certain low-level uncontested cases, in some cases outside traditional court buildings.’

7. Interestingly the Government sees the introduction of Police and Crime Commissioners as another fundamental policy change which will make a contribution to delivering sure justice. The White Paper states: ‘We have already announced that they will take on responsibility for commissioning services for victims of crime and we are considering whether over time they should also be involved in commissioning services for the management of offenders.’ This would represent a major policy shift and be very controversial.

In addition to swift and sure, other labels are used:

Efficient – a focus on investment in new technology including better video facilities.

Transparency – more information about crime in your area.

Accountability – with a key role for the Police and Crime Commissioners, mentioned above

Three specific ideas are listed for further work:

1 The possibility of empowering a lay magistrate to deal with certain uncontested, low-level cases on his or her own.

2 The introduction of a monetary threshold for the either way offences of theft and handling stolen goods below which magistrates would not have the power to commit the case for trial at the Crown Court, but the defendant’s right to elect for trial by jury would remain unchanged.

3 Consideration of reform of the legislation relating to the use of video links in criminal proceedings.

Full details of the White Paper can be found at http://www.justice.gov.uk/downloads/publications/policy/moj/swift-and-sure-justice.pdf

Prosecutors in criminal cases often have to make difficult judgements about whether or not to prosecute. This is particularly so in cases involving complex economic crime – fraud, bribery and so on. The Coalition Government has just announced a consultation on ‘deferred prosecution agreements’ – basically a formal arrangement whereby, for agreeing to assist with an investigation, any prosecution will be deferred.

The Consultation Paper states:
‘Under a DPA, the prosecutor would lay, but would not immediately proceed with, criminal charges pending successful compliance with agreed terms and conditions stated in the DPA. The terms and conditions might include:

• payment of a financial penalty;
• restitution for victims;
• disgorgement of the profits of wrongdoing; and
• measures to prevent future offending (a monitoring or reporting requirement).

These would be discussed and agreed between the parties and then placed before a judge for consideration and approval. Time limits would be attached to the terms and conditions so that compliance can be managed and it will be clear when the agreement should cease.

Our intention is that this new tool will enhance prosecutors’ ability to detect and pursue economic crime committed by commercial organisations and to ensure economic offending which takes place across more than one jurisdiction is dealt with more effectively, as well as achieving better outcomes for victims.’

As with cautions and other recent innovations in the criminal justice system, this represents another development outside the historic ‘due process’ model of the criminal justice system.

The consultation runs for three months until 9 August 2012; developments with the idea will be kept under review.

For further detail go to:

https://consult.justice.gov.uk/digital-communications/deferred-prosecution-agreements

The Queen’s speech which sets out the Government’s legislative proposals for the forthcoming year, was delivered on May 9 2012. While the headline media commentary was largely on the economy, there are matters in the proposals which – if enacted – will have an impact on the English Legal System. These are listed here, so that readers can take note of them and follow how they come into legislative form:

1 House of Lords reform – this is potentially the ‘big one’ in terms of constitutional change and political controversy. It is far from certain that sufficient political consensus will be created – in particular within the Coalition – to make its enactment an inevitability.

2 The Enterprise and Regulatory Reform Bill will contain proposals which will impact on the work of Employment Tribunals, and seek to ensure that more employment disputes are resolved by conciliation.

3 The Groceries Adjudicator Bill will create a new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – thus another area of disputes will – in effect be removed from the courts. (There are over 60 industry adjudication schemes already in existence in the UK – many of them not well understood but doing work of resolving disputes that otherwise might have gone to courts).

4 The draft Local Audit Bill will, if enacted, abolish the Audit Commission, which audits the activities of local government.

5 The Children and Families Bill will amend the law on adoption. It will also bring into law changes to the Family Justice system recommended by the Norgrove report.

6 The Electoral Registration and Administration Bill will make it easier for people to register to vote.

7 The Crime and Courts Bill will give statutory authority for the creation of the National Crime Agency. It will also amend some of the current provisions relating to the making of judicial appointments. It also provides for the televising of some court proceedings.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 not only reforms legal aid, it also makes important changes to the sentencing options available to courts in criminal trials. In outline:

The Act contains a number of new measures to protect the public and reduce reoffending. These include:

• Creating a new youth remand and sentencing structure, which gives more flexibility to courts to decide on appropriate disposals

• Creating tougher community sentences with longer curfews for offenders

• Giving prosecutors the right to appeal against bail decisions when they think the defendant could be dangerous, or might flee the country

• Reforming the Rehabilitation of Offenders Act, to help ex-offenders reintegrate into society after their sentences.

• Creating a tough new sentencing regime to replace the inconsistent Imprisonment for Public Protection (IPP) sentence.

• Doubling to 30 years the starting point for sentences for murders motivated by hate on grounds of disability or transgender – in line with other hate crime murders.

In addition, the Act creates a number of new offences. These include:

• Making it an offence to threaten people with a knife in public and at schools, with offenders receiving a minimum prison sentence (6 months for adults and a 4 months Detention Training Order for 16 and 17 year olds)

• Making prisoners work harder, longer and on meaningful tasks, earning money for victims

• Making it a crime to squat in people’s homes

• Creating a new offence to appropriately punish drivers who seriously injure others by driving dangerously

Further information is at http://www.justice.gov.uk/legislation/bills-and-acts/acts/legal-aid-and-sentencing-act?dm_i=4P,SEF0,24B1P,2BC4T,1

Getting the balance right between punishment and rehabilitation in the criminal justice system is one of the most difficult policy objectives. Whatever politicians try to do tends to cause public outcry. Nevertheless, there is a widespread acceptance that locking people up in gaol is – for many – not the best way to prevent reoffending. For years, senior figures, including very influential judges such as Lord Woolf and Lord Phillips have argued that there should be more investment in probation services and new approaches to community sentences.

The Government has very recently published two consultation papers on these interrelated topics.

In Punishment and Reform: Effective Community Sentences the Government argues that it needs to strengthen the community sentence regime in order that it is not regarded as a soft option.

The Consultation Paper argues: “Too many community orders do not include an element which the public and offenders would recognise as ‘punishment’. It is a fundamental principle of justice that those who are found to have done wrong should be punished. …[I]n this consultation we explore how we can ensure that all community orders have a clear, punitive element of Community Payback, restriction of liberty backed by electronic monitoring, or a financial penalty.
“This means developing the punitive options available to the courts. Provisions in the Legal Aid, Sentencing and Punishment of Offenders Bill will increase the maximum length of curfews so that we can keep offenders off the street for longer, stop them socialising in the evenings, and remove opportunities for them to cause trouble. We have also ended the unsatisfactory situation in which unemployed offenders sentenced to Community Payback could work for just six hours per week. Instead, these offenders will be required to work more intensively in a way that more closely replicates a normal working day and week. We want to build on these tough punitive options further by being creative with the technology available for monitoring offenders’ movements, and by exploring the use of asset seizure as a standalone punishment that could be added to community sentences.
“We also want to see fines used more flexibly to punish offenders. Financial penalties should not simply be reserved for the lowest-level offenders. In the right circumstances, a heavy fine can be just as effective a punishment as a community order. In this consultation we set out proposals to support sentencers to make more flexible use of the fine, and ask for views on how we can improve the information available to courts to ensure fines are set at the right level.”

Any new appproach to community sentencing has to be underpinned by appropriate enforcement, which is – in the main – the task of the probation services. In the other Consultation Paper Punishment and Reform: Effective Probation Service, the Government sets out ideas for new approaches to the delivery of probation services.

The Paper argues that the key features of ‘our core proposition for change’ are:

• a stronger role for public sector Probation Trusts as commissioners of  probation services;
• devolving to Probation Trusts the budget for community offender services, from which Trusts will commission services to meet local need;
• some services, such as electronic monitoring of curfew requirements, may continue to be commissioned at national level where we can get most value for money for the taxpayer;
• Probation Trusts will retain responsibility for providing advice to court on sentencing and the enforcement of those sentences;
• consistent with the probation role in protecting the public, they will be responsible for making certain ‘public interest’ decisions for all offenders (such as the initial assessment of their risk and the resolution of recalls and breaches);
• they will continue to supervise directly those offenders who present higher levels of risk;
• opening up to competition all probation services not directly provided by Probation Trusts. This will include competing the management and supervision of lower risk offenders, alongside other services to reform offenders such as accredited programmes. Those providing services under competition will be increasingly incentivised through payment by results to reduce reoffending;
• ensuring a diverse market of providers by encouraging the participation of the voluntary, private and public sectors, alongside new models for delivering public services such as joint ventures, social enterprises and Public Service Mutuals;
• allowing Probation Trusts to compete for services. In such cases, we will require them to become separate entities, independent of those Probation Trusts which are responsible for commissioning, giving advice to court, managing higher risk offenders and taking public interest decisions as set out above;
• strengthening local probation presence as the front line of offender management. We will support the joint commissioning of services for offenders between probation and key partners such as local authorities, health and the police;
• there may be potential over time for other public bodies, such as local authorities or, with a broadened statutory role, Police and Crime Commissioners to take responsibility for probation services. For the time being, we propose to make Probation Trusts accountable, through their contractual arrangements with the National Offender Management Service (NOMS), for working with Police and Crime Commissioners.

The Paper concludes: ‘If community penalties are to be taken seriously by offenders and command the confidence of sentencers and the public, they need to be effectively enforced. Targeted enforcement activity by Her Majesty’s Courts and Tribunals Service (HMCTS) has already brought improvements to fine collection rates, and this consultation sets out our plans for further improvements. Likewise, for community orders we want to ensure that offender managers have sufficient discretion and powers to ensure offenders comply with their sentence.
‘To be truly effective, sentences in the community should not only punish and reform offenders, but also ensure that offenders pay back to society for the harm they have caused. This consultation asks for views on how we can go further in ensuring as many offenders as possible make reparation to victims and take part in restorative justice approaches whenever appropriate.’

These seem to me to be ambitious aims, in principle to be welcomed. The challenge will be selling these ideas to the public, and ensuring that in these cash-strapped times there are adequate resources available to ensure that the objectives of the plans can be delivered. The Consultations run until the end of June 2012. Further developments will be reported here in due course.

For an introduction to the proposals see http://www.justice.gov.uk/news/features/punishment-and-reform

In the book I discuss how the more serious criminal cases, all of which start in the magistrates’ courts, get to the Crown Court. it used to be the case that cases would only be transferred after a committal hearing. Committals in indictable-only cases were abolished and replaced by a process known as ‘sending’ under section 51 of the Crime and Disorder Act 1998. This enables cases to be sent straight to the Crown court after the defendant’s first appearance in the magistrates’ court.

The Criminal Justice Act 2003 made provision for the same procedure to be adopted in cases that could be tried either way, where it was decided that they would be tried on indictment. The relevant provision has not to date been implemented, but the Secretary of State for Justice has now decided to bring this provision into effect from April 2012. It is estimated that this will reduce the number of committal hearings by around 60,000.

Defence lawyers are furious that, in anticipation of the change they will no longer be paid for committal hearings; this decision is currently the subject of a judicial review.

In 2009, the Ministry of Justice started to use communication technologies to create, initially on an experimental basis, virtual courts. They enable a defendant, charged in a police station, to have their first hearing held over secure video link from the magistrates’ court. This can happen within hours of being charged and if the defendant pleads guilty, the court can often sentence on the same day.

The same equipment allows police witnesses to give evidence in court via the police station. This initiative, known as ‘Live Links’, began in July 2011. It allows for the police to free up time to carry out frontline duties rather than travelling to and from court.

Defence lawyers are concerned that the initiatives created problems. In particular, they aregue that the police still need to address fully the issue of how officers exhibit live evidence, such as their notebooks, when they are physically not present.

However, the Government is so convinced of the value of these two related initiatives that the announced at the end of November 2011 that by spring 2012, the entire criminal justice system is required to go digital, with secure electronic transfer of case files between the police, prosecutors and courts becoming the norm rather than the exception.

For more details see: http://www.justice.gov.uk/news/press-releases/moj/newsrelease281111a.htm