Martin Partington: Spotlight on the Justice System

At a late stage in the debates on the Public Bodies Bill, the Government announced that it would reverse its original decision to abolish the Youth Justice Board. Many voices had been raised against taking the functions of the Board into the government machine. (Incidentally, I am always puzzled as to why ministers making ‘U-turns’ is regarded as a bad thing; if they are responding to well argued alternatives should they not be applauded?)

A closer look at what Ministers said, however, shows that while the YJB is being retained, they will be reviewing the particular role that it plays in the youth justice system. Obviously these new ideas will take some time to emerge.

I will keep you posted.

Unlike the situation in many other countries, the televising of court proceedings has not been a central feature of the English Legal System.

There are signs of significant change on the horizon.

First, the Supreme Court has already decided not only to let television companies make documentary programmes about its work (see this blog Feb 2011) but also to enable Sky TV viewers to see full broadcasts of its proceedings. For further details see http://news.sky.com/home/supreme-court.

Second, Justice Minister Ken Clarke has announced that limited televising of proceedings will be allowed. Initially this will be limited to the Court of Appeal where filming will be of judges’ summary remarks only;  victims, witnesses, offenders and jurors will not be filmed. He has stated that this may be extended to the Crown Court at a later date.

This second step will not take place overnight, however. Legislative change is required to repeal  Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981, which currently forbid the broadcasting of court proceedings. See further http://www.justice.gov.uk/news/press-releases/moj/moj-newsrelease060911a.htm.

One consequence of these developments may be that members of the public who think that most cases are heard by courts will be reinforced in this view, whereas readers of the book will know that in every area of the law, save perhaps family law, great number of issues are disposed of outside court proceedings.

Nonetheless, I welcome this development and suspect that in a year or two people will wonder why we took so long to reach this position.

The Legal Aid, Sentencing and punishment of offenders Bill 2011 is the big one, certainly so far as the legal system is concerned. It is a complex measure, attempting to achieve three quite distinct policy objectives. Underpinning much of it is the Government’s desire to cut public expenditure.

This is seen most clearly in Part 1 which deals with legal aid. The long awaited abolition of the Legal Services Commission is contained in the Bill, together with provision of the appointment of a Director of Legal Aid who will head up a new agency within the Ministry of Justice. In practical terms, it is the changes (i.e. cuts) to civil legal aid that are likely to have the most significant impact on the ground. The Bill gives legislative effect to the Government’s proposals to make fundamental changes to legal aid – which will take a lot of issues currently in scope of the legal aid scheme out of the scope of legal aid, will increase the charges paid by members of the public for getting legal aid assistance and reduce the sums paid to lawyers who provide legal aid services.

Arguments that have been made by many – not just lawyers – about the impact these changes will have on access to justice have been met by the Government’s counter argument that the UK spends too much on legal aid – far more than most other countries. It has to be said, however, that by comparison with the proposals for reform of sentencing (see below) these changes have not actually received much attention in the mass media.

Details of the proposals for change can be found at http://www.official-documents.gov.uk/document/cm80/8072/8072.pdf.

Part 2 of the Bill deals with recommendations of Lord Justice Jackson about making changes to the current system of ‘no-win-no-fee’ Conditional Fee Agreement cases, to limit the amounts that lawyers can charge by way of success fees.

The Government argues: [CFAs] have played an important role in extending access to justice but they also enable claims to be pursued with no real risk to claimants and the threat of excessive costs to defendants. It cannot be right that, regardless of the extreme weakness of a claim, the sensible thing for the defendant to do is to settle, and get out before the legal costs start running up. This is precisely what has happened and it is one of the worst instances of this country’s compensation culture…

[T]he Government believes that the right way forward is to abolish the recoverability of CFA success fees and ATE insurance premiums.

The Bill provides for these changes: for more detail see also http://www.official-documents.gov.uk/document/cm80/8041/8041.pdf.

The final part of the Bill deals with proposals for reforming sentencing. These issues were debated heavily in the press, with the Justice Secretary facing a lot of criticism that he was being ‘soft on crime’ – wanting to keep people out of prison to save money. The quite respectable argument – which at the least demands a careful hearing – that more might be done to turn people away from crime if they were not in prison was a subtlety that got lost in much of the mass media.

In the light of the decision not to proceed with the idea for giving those pleading guilty to charges a higher discount from their sentence than they can currently get, the Bill’s proposals are more modest than were originally envisaged by the Government when it published its Consultation Paper on the reform of Sentencing in November 2010.

The Bill is currently in the Committee stage, which will end in mid-October 2011. I estimate that the Bill will pass into law early in 2012.

Details on all three components of the Bill will be considered further here and in the book in due course.

The increased use of ways of dealing with offenders outside the formal court system is noted in the book in Chapter 5, p 149. The particular focus there was on the use of so-called ‘on-the-spot fines’ for public order offences. But there are other out of court disposals available as well, e.g. cautioning.

While the use of such methods of disposal may be appropriate for first-time youth offenders – to prevent them getting a criminal record, which may impact on their ability to get employment later in life – such disposals do evade the ‘due process’ features of the criminal court process. They would not seem to be particularly appropriate for persistent offenders.

In an important and interesting report, undertaken jointly by HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate, called ‘Exercising Discretion: The Gateway to Justice’ the following points emerge.

1. The number of crimes that are dealt with outside the formal criminal justice system has risen dramatically in a five year period by 135 percent. The most commonly used out-of-court disposals – warnings, cautions and penalty notices for disorder – now account for around one third of the 1.29 million offences brought to justice. When restorative justice outcomes – which are not currently included in national data – are added to this figure it is clear that out-of-court disposals have become an increasingly important tool in the fight against crime for both police officers and prosecutors.

2. When out of court disposals are used effectively, particularly restorative justice where offenders are encouraged to repair the harm they have done, we found high levels of victim satisfaction, promising signs of a reduction in re-offending, and minimal bureaucracy when the offender was dealt with quickly.

3. However, the inspection found significant variations in the use of out-of-court disposals around the country ranging from 26% of offences brought to justice in one criminal justice area to 49% in another. Choosing an out-of-court disposal or prosecution in court will have very different consequences for individuals depending on the requirements to keep a record of the result for disclosure to a court or a prospective employer. Local variations in practice are inevitable and expected but the inconsistencies we have identified mean that some offenders will receive differential treatment depending on where they were found or where they live.

4. In a small sample of 190 out-of-court disposals, the inspection found that about a third were administered inappropriately. In most of these cases, an out-of-court disposal was inappropriate as the offending was too frequent or serious.

The report concludes that while out-of-court disposals are a legitimate way of dealing with some criminality, more work needs to be done to improve consistency and prevent inappropriate use. A national strategy that brings greater transparency and consistency in the use of out-of-court disposals is now urgently required based on a proportionate response to the level of offending and the nature of the offender, what works to improve victim satisfaction, reduce re-offending and gives value for money for communities who ultimately foot the bill.

The full report may be seen at http://www.hmic.gov.uk/SiteCollectionDocuments/Joint%20Inspections/CJI_20110609.pdf

What do you think? How should the balance be struck between formal and informal processes?

The Government’s plans for a National Crime Agency, to be established by April 2013, have been taken a stage further with the publication by the Home Office of the paper ‘National Crime Agency – a plan for the creation of a national crime-fighting capability’.

The Paper state: ‘Sharing intelligence, capabilities, expertise and assets, the NCA will comprise distinct Commands for Organised Crime, Border Policing, Economic Crime, and the Child Exploitation and Online Protection Centre. Each Command will be led by a senior experienced individual and will manage its own priorities and risks.’

Full details of the plans, as they currently stand, are published at http://www.homeoffice.gov.uk/publications/crime/nca-creation-plan?view=Binary

Two recent announcements from the Ministry of Justice have been concerned with the interaction between young people and the law.

The first, called the ‘London Justice Programme’ is the latest initiative of the National Centre for Citizenship and the Law. Though based in Nottingham, the Centre has been seeking to develop national initiatives, of which the London Justice Programme is the latest development. At present there is not a lot of detail on what the programme involves, but it does provide opportunities for children at school to visit courts, hold mock trials there, and more generally become more aware of the legal system. The announcement at http://www.justice.gov.uk/news/features/feature170511a.htm provides a link to a video which gives the flavour of what is on offer.

There has also been an announcement about a new DVD – made by the Halton and Warrington Youth Offending Team (which comes under the Youth Justice Board) – which seeks to explain how restorative justice works and the demands that restorative justice measures make on those subject to them. The press announcement suggests that the DVD will be available from the YJB, but my researches do not currently indicate how it may be viewed. But it could be a useful source of information about restorative justice, challenging the perception that it is a ‘soft option’. For the press announcement, see http://www.justice.gov.uk/news/press-releases/yjb/yjb-news-release-20may2011a.htm

The idea of closing number of court buildings – to ‘rationalise the estate’ – have been around for some time. The Coalition Government has taken advantage of the need to cut public expenditure as the basis for ordering the closure of a significant number of court buildings that received relative little use. Nearly 150 of the 530 buildings currently used by the Court Service will be closed.
Of course, there will be much local sadness at the loss of some of these buildings. But it is hard to argue that under-used building should be retained.
Nevertheless, it is important that this closure programme does not lead to increase difficulty in accessing court buildings. Greater use of modern communication technologies should do much to prevent major access problems.

The press announcement can be found at http://www.justice.gov.uk/news/newsrelease141210a.htm

Louise Casey, the Government’s Commissioner for Victims, has just delivered a controversial lecture on changes she thinks are needed in the criminal justice system. She makes two proposals:

• removing the right to trial by jury for what she calls petty crimes; and

• stopping ‘cracked trials’ which waste a lot of public money.

As I discuss in chapter 5 of the book, the first proposal is not new; but it always runs up against the ‘thin end of the wedge’ argument – that if you start to take away the right to jury trial, this will be the start of a process that will abolish jury trials. What is interesting about Casey’s intervention is that she wants money save to be diverted to better victim support.

The second proposal – trying to stop cracked trials – seems to me to be quite hard to achieve in practice. Her proposal that lawyers should receive no more than a fixed fee, whenever a guilty plea is entered, seems to me likely to encourage more people to continue to plead not guilty and therefore ultimately add to the cost of criminal justice.

However the Director of Public Prosecutions has also recently fingered cracked trials as an issue that needs addressing because of the waste of resources cracked trials involve.

It may be that between them, the Commissioner and the DPP will discover a workable way to cut down cracked trials and make sensible savings.

For further info, including a link to a youtube version of the Commissioner’s speech, see:
http://www.justice.gov.uk/about/victims-commissioner-news.htm

So, the Coalition Government has now published its decisions on what public bodies are to be kept, what are to go. Here I comment on the decisions through the specific lens of the English Legal System.

The two highest profile casualties of the cull are the Youth Justice Board and the Administrative Justice and Tribunals Council.

The YJB did have a bit of a reputation for clashing with Government on issues relating to young offenders and how they should be treated in the criminal justice system; presumably  policy will now be taken into the Ministry of Justice. The justification is that this change is wrapped up in a wider review of criminal justice. My view is that the independent voice of the Board will be missed and that Government will still need expert external input into policy making. We shall see.

The Administrative Justice and Tribunals Council, created out of the former Council on Tribunals, had a broad remit to keep administrative justice under review. Given the importance of getting the relationship between the citizen and the state right, ensuring that government operates according to principles of good administration is vital. The Council played a key role in ensuring that different agencies communicated with each other. This facilitative role was particularly important and I think it will be missed.

For me, the most intriguing announcement is that  the whole edifice of independent judicial appointments, created by the previous government, is stated to be under consideration. The new process has not been welcomed by many lawyers but has made judicial appointments more transparent – need to watch this space on this one!

Similarly the future of the Office of the Children’s Commissioner is also under review – an announcement is expected in November 2010.

The public bodies review has usefully tidied up a number of tribunals and brought them into the Tribunals Service. The Residential Property Tribunal Service and the Valuation Tribunal Service, which in my view should always have been in the Tribunals Service, are now to be incorporated. A number of other tribunals are still under consideration for inclusion in the Tribunals service, including the ever popular Plant Varieties and Seeds Tribunal.

The Parole Board has been spared, but its future status and functions are still under review.

The Victims Commissioner is retained, but the Victim’s  Advisory Panel is abolished.

The published list confirms the abolition of a number of bodies which had been announced earlier: these include HM Inspectorate of Court Administration; the Legal Services Commission (not to be confused with the Legal Services Board, which is retained); the Legal Services Ombudsman; and the National Policing Improvement Agency.

On balance, my view is that the legal institutional landscape has changed less than might have been expected. There has actually been some sensible rationalization, particularly in the tribunals world. But I think that the Youth Justice and Administrative Justice worlds have been weakened by the changes.

Full details at http://www.number10.gov.uk/news/latest-news/2010/10/public-body-review-published-55604