Archive for the ‘Chapter 5’ Category
Mental health and Fair Trial
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/
Enforcement of judgments
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
Transforming the Justice system – views from the National Audit Office
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 ofcases held in physical courtrooms by 2.4 million cases per year and reduce annualspending 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 turnare made up of many individual projects. The major programmes are:• The HMCTS Reform Programme which is modernising processes and systemsto 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 videotechnology in hearings.• The Common Platform Programme which is developing shared processesand a digital criminal justice case management system to share informationbetween HMCTS, the Crown Prosecution Service and the police. It is jointlymanaged by these organisations.• The Transforming Compliance and Enforcement Programme (TCEP) whichis 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 thecourt 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.
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
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/
Keeping up to date with the Transformation of our Justice System project
I have commented before that it is quite hard for those outside Government and the Judiciary to keep abreast of developments with the Transformation project. Occasional blog items from HM Courts and Tribunals service are useful but don’t necessarily pick up all that is going on.
I therefore welcome the announcement that from June there is to be a monthly e-bulletin devoted to the programme. Those interested are able to subscribe to the service, thereby receiving regular updates.
The first edition is available at https://content.govdelivery.com/accounts/UKHMCTS/bulletins/1f03e7b
The Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018
The great Transformation of the Justice System programme, being advanced by the Ministry of Justice and HM Courts and Tribunals Service was initially supported, legislatively, by a substantial Prisons and Courts Bill 2017. This fell when the General Election was called in June 2017. (See this Blog, March 2017 and July 2017). Since then, legal system watchers have been awaiting the return of the Bill, either in its original form or in a new guise.
Our patience is now at least partially rewarded with the publication of the Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018, which was introduced into the House of Lords at the end of May 2018. As its title suggests, this is not the full legislative package originally envisaged. Rather it is a short, 4 clause Bill Iwith Schedue) which proposes measures to facilitate the more flexible deployment of judicial and other staff.
Once enacted, the judiciary will be flexibly deployed across jurisdictions, allowing judges to gain experience of different types of cases, helping with their career progression. It will also enable judges to be used in specific courts or tribunals where there are serious backlogs of cases.
As regards the taking over of tasks currently undertaken by judges, authorised staff could carry out some of the more straightforward judicial functions, including tasks like issuing a summons; taking a plea; extending time for service of applications; or considering applications for variations of directions made in private or public law children cases. One noteworthy measure is that the role of the Justices’ Clerk, currently a statutory one, will become non-statutory. This will enable them to give advice on law in the Family Court as well as in the Magistrates’ Court.
Details of the Bill are at https://publications.parliament.uk/pa/bills/lbill/2017-2019/0108/lbill_2017-20190108_en_2.htm#sch1
Transforming the Justice system – maintaining the estate; answering the phones; better listing
I have noted many of the developments that are currently taking place within courts and tribunals, arising from the Transformation programme that has been on-going for the past couple of years. Much of the emphasis has been on the design and development of new practices and procedures – e.g. pilot schemes relating to the use of on-line courts, or the digitization of procedures
A recent blog from the Head of HM Courts and Tribunals Service, Susan Acland-Hood, notes that the transformation programme is not just the use of high-tech innovations. It also includes more bread and butter issues, which nonetheless affect the public and those who work in the courts.
In her recent post, she notes three specific examples of investment, designed to improve the day-to-day operation of the courts and the court service.
1 Maintenance and repair. Many court buildings suffer from heating systems that do not work, lifts that do not work, and a generally drab physical environment. The modernisation programme includes improvements to the overall environment of courts and tribunals.
2 Answering the phone. Investment is being made in a number of call centres whose task will be to answer questions directed to a number of courts – county courts and magistrates courts. This is designed to ensure that calls don’t go unanswered, especially in smaller courts where there may be insufficient staff to handle all the incoming calls.
3 Tacking delay. The blog notes that the number of outstanding cases in the Crown Court is at the lowest level since 2004; the time taken from first listing in the Magistrates’ Court to completion at the Crown Court has been decreasing since the peak of 196 days in 2015 to 175 days in 2017. (It is not clear whether this is due to greater efficiency or because few cases are coming into the criminal justice system.) It also note the positive impact of the use of single-justices hearings to reduce delay.
Forther information is available at https://insidehmcts.blog.gov.uk/2018/05/17/reform-means-getting-the-basics-right-too/
Reform of the Parole Board
The Warboys affair, in which the Parole Board recommended the release from jail of a London taxi driver who had been convicted of a number of rapes and who was suspected of involvement in other offences, caused public outcry in January 2018. It lead to the resignation of the Chair of the Parole Board, Prof Nick Hardwick. And the Secretary of State for Justice, David Gauke, was clearly anxious that there should be changes to the ways in which the Parole Board worked (somewhat disingenuously, as the Parole Board itself had for sometime been arguing for change).
A review of the Parole Board was announced in January 2018 (see this blog for 24 January 2018). The review was asked to look at the following issues:
- the law, policy, guidance and practice relating to challenges to Parole Board decision-making
- the transparency of Parole Board decision-making
- victim involvement in Parole Board hearings
- arrangements for communicating with victims
The result of this review was published on April 28 2018. It can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/703534/review-of-the-law_policy-and-procedure-relating-to-parole-board-decisions.pdf
The Government has made a number of important announcements which will affect the ways in which the Parole Board undertakes its work going forward.
In particular, Rule 25 of the Parole Board Rules – which currently prohibits publication of details of parole board decisions – will be amended in favour of much greater transparency.
In addition, the Government has announced that it will make immediate changes to how it communicates with victims, as well as looking at how more victims can be offered the Victim Contact Scheme (VCS).
A more fundamental change proposed is that there should be created, within the Parole Board itself, a mechanism for the reconsideration of decisions taken by the Board, that would remove the necessity of parties having to launch expensive proceedings in the Courts for judicial review. The precise ways in which the reconsideration process should work have not yet been finalised, but a Consultation Paper setting out various options and suggestions has been published with views sought by the end of July 2018. It is anticipated that reconsiderations would in general be chaired by judges who are members of the Parole Board.
See https://consult.justice.gov.uk/digital-communications/reconsideration-of-parole-board-decisions/
There has also been published the terms of reference for a full review of the Parole Board Rules, with the specific object of trying to improve the transparency of the work of the Board.
See https://www.gov.uk/government/publications/review-of-the-parole-board-rules
The speed with which these first decisions have been taken is an indication of the political pressure to respond to the outcry created by the Warboys case. Further details, in particular on the proposed reconsideration process, will be considered here in due course. It is worth observing that the Secretary of State’s strategy can be delivered entirely through changes to regulations, which will not require parliamentary time.
Equal treatment: Guidance from the Judicial College
It should go without saying that, particularly in the legal arena, those who take part in proceedings before courts and tribunals need to feel that they have been treated equally.
This is, of course, easier said than done, as David Lammy’s report on the Criminal Justice System, published in 2017 showed. (See this blog 29 Sept 2017). But for many years first the Judicial Studies Board and now the Judicial College have offered guidance to judges (and by extension to others involved in the justice system) about the best ways to try to ensure that people are treated fairly.
Much of this focusses on the language that judges and others involved in the justice system use generally (for example in relation to litigants in person) and in relation to those from specific sectors of society, who may be defined by their religion, their ethnicity, their sexual orientation, mental or physical disabilities, their gender.
In February 2018, the Judicial College published an on-line updated revision to its ‘Equal Treatment Bench Book’. Bench books were originally devised as a handy guide to key issues which could sit on the judge’s desk, available for him to refer to it that seemed necessary.
I am not sure whether this particular Bench Book can be used in this way. For one thing, it is very long – well over 400 pages. And the issues raised are such that I would have thought judges would need to have considered them before a case or other proceedings have started. (It would not be desirable for a judge to stop in the middle of a sentence in order to look up how a particular person should be addressed.)
But I don’t agree, as some comments in the press have suggested, that the Equal Treatment Bench Book is an example of political correctness gone mad. It seems to me to be an honourable attempt to raise questions and address issues that arise in practice but that many judges may not have thought about before. (Indeed, I think there are some parts of the book that would be of interest to a wider readership.)
I set out the link to the text here, and invite readers to take a look at the Book and come to their own view on its value.
Disclosure of evidence: planning for change – first steps
In July 2017, the Inspectorates of the Crown Prosecution Service and Constabulary published a very critical report on the failure of police and prosecution services to apply the rules relating to the disclosure of evidence held by police/prosecutors to defence teams. (I noted the report here in November 2017).
Since then, it seems that the issue of the failure of the police and prosecution to disclose evidence to defence lawyers which might undermine or weaken the prosecution case has received almost daily attention in the mass media. A number of well publicised cases have emerged in which those accused of serious crimes (in particular rape) have found out only at a late stage that evidence which undermines the case against them is available.
A number of reasons have been advanced for these failures. For example, it is argued that the current law was put in place before the arrival of mobile phones and the vast amounts of electronic data that is generated on phones and tablet.
It is also argued that police and prosecutors lack the resources to comb through all this information to see what might by relevant.
This is an extremely serious issue which goes to the heart of the criminal justice system. People must feel that the system is fair and that those who run it are complying with the rules.
Clearly both the police and CPS are taking this issue seriously. The first tangible step has recently been taken. At the end of January 2018, a plan was published by the Crown Prosecution Service (CPS), the National Police Chiefs’ Council (NPCC) and the College of Policing. This sets out measures designed to improve practice in this area.
These first steps include:
- Reviewing disclosure training with the College of Policing
- Developing a cadre of specialist and experienced disclosure experts in every force
- Providing all multimedia evidence from the CPS to the defence digitally
- Putting in place specific improvement plans for each force and CPS area
- Setting up a system for the CPS and police to better identify and deal with cases with significant and complex disclosure issues.
This will not be the last word on this subject. Much work has to be done to ensure that all those engaged in the criminal justice system actually act in accordance with the statutory rules on disclosure. But it is an important first step.
The text of the plan can be found at http://www.npcc.police.uk/Publication/National%20Disclosure%20Improvement%20Plan%20January%202018.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 