Archive for the ‘Chapter 5’ Category
Parole Board – review of procedures
The decision by the Parole Board to release the London Cab Driver John Warboys – who had been convicted of raping a number of his customers – has generated a great deal of publicity. Many of the challenges in that case arose from the fact that Warboys had been sentenced to an Indeterminate Sentence, which meant that he could continue to be detained after the period set by the judge as punishment for his crime, where it was anticipated that his release would be a danger to the public. (The law relating to such sentences was changed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.)
The Government has now announced that there is to be a review of the practices and procedures of the Parole Board. This is to include a review of how the work of the Board impacts on the victims of the crimes committed by those the Board is considering for release.
The terms of the reference are as follows:
This review will consider the case for changes in law, policy and procedure in relation to Parole Board decision-making. It will include an examination of the transparency of the process and reasons for parole decisions, and how victims are appropriately engaged in that process. It will take account of the interests of justice, public confidence in the system and the impact on victims. The review will draw on the views and experience of victims, practitioners and international best practice.The review will focus on the following areas:1. The law, policy, guidance and practice relating to challenges to Parole Board decision making, specifically whether there should be a mechanism to allow parole decisions to be reconsidered.2. The transparency of Parole Board decision making, including:whether the outcomes of Parole Board decisions should be published or otherwisedisclosed;whether the reasons for those decisions should be published, and if so to what extent; andwhether there are any other changes that should be made in order to contribute to greater transparency.3. Victim involvement in Parole Board hearings:to review the relevant entitlements outlined in the Victims’ Code to determine whether improvements should be made to how victims are currently involved in and contribute to Parole Board hearings;what improvements should be made to how their involvement is facilitated.4. Arrangements for communicating with victims:to review whether the current entitlements for victims who qualify under the Domestic Violence, Crime and Victims Act 2004 for the Victim Contact Scheme are adequate, including in relation to Victim Personal Statements and licence conditions;to review whether improvements can be made to the way that the scheme operates in practice, in particular the process by which victims are notified of their entitlements and of decisions; whilst respecting the victim’s preference for how they are contacted;to consider the question of ongoing contact with victims who are eligible for the Victim Contact Scheme but have previously opted out; andwhether there need to be new entitlements or procedures for victims not covered by the statutory scheme.
Reshaping the Court estate: a further consultation
The programme of transformation of the justice system depends on the closure of a significant number of existing court buildings and reinvestment of the savings of running costs and the capital receipts from buildings that have been disposed of in a smaller but more efficient court estate.
In January 2018, Her Majesty’s Courts and Tribunals Service published a Consultation Paper setting out the basic principles on which detailed plans are now being developed. At the same time there were 5 more specific papers setting our proposals for closing courts in a number of areas, including Cambridge, the Thames Valley, London and Lancashire. There is nothing particularly new in this paper, though it does give interesting accounts of a number of initiatives currently on-going to deliver new ways of working in courts and tribunals.
The key aims are that there should be
- more videolinks and virtual hearings;
- digital service delivery, with a major reduction in the use of paper files;
- flexible opening hours;
- improved service delivery with much more work being undertaken online.
The number of court buildings will be reduced from around 530 buildings (a decade ago) to a total of 239 buildings in 2018. It is accepted that this will lead to some increase in travel time to reach those buildings, but the vast majority will still, according to HMCTS figures, still be within 2 hours travelling distance. As much work will in future be delivered without the need for lawyers and parties to be present in court, it is argued that this will further mitigate any inconvenience. What will be important will be to ensure that cases listed for a particular day are actually dealt with on that day.
The Consultation Paper reminds readers that the transformation policy is designed
- to enable existing and new buildings to be much more flexible in the ways in which they can be used;
- to ensure better public facilities – e.g. waiting rooms, rooms for clients to consult with their advisers;
- to ensure that the vulnerable are able to feel confident about using court facilities;
- to include of modern ICT to enable more work to be done online
- to support the needs of all the professionals who use the courts;
- to move towards an estate that provides dedicated hearing centres, while seeking
opportunities to concentrate back office functions in a smaller number of centres where they can be carried out most efficiently.
There will be resistance to some of these ideas. For example, the Bar has already argued against more flexible opening hours. It is said that this could be discriminatory against women barristers who may find it hard to take cases outside traditional working hours. While this is an issue that must be addressed, such arguments fail to acknowledge the fact historically the Court Service has only paid lip-service to the idea of delivering a service to court users. Many parties to litigation may find it more convenient to attend hearings outside of 10-4, Mondays to Fridays. The transformation programme provides a challenge to those who work in the courts to consider how they can deliver the service that clients want, when they want it.
The Consultation runs until 29 March 2018. The documentation can be found at https://consult.justice.gov.uk/digital-communications/transforming-court-tribunal-estate/
Children Across the Justice Systems
This was the title of an extremely important and interesting lecture, given by Sir James Munby, President of the Family Court, to the Howard League for Penal Reform at the end of October 2017
What, it might be asked, was our leading family judge doing talking to those whose interest is in the criminal justice system?
Sir James used his lecture as an opportunity to argue for a new approach to the treatment of young people who come into contact with the criminal justice and penal systems. He sets out with admirable clarity what he sees as the main problems with current arrangements, including: the very complex set of institutions with which the young offender may come into contact; the huge variety of government departments – both central and local – charged with developing and delivering policy in relation to young offender; and the inconsistency of approach of different agencies towards how young offenders and their families should be dealt with.
Sir James argues that, in this context, family justice and criminal justice should be brought together. Specifically, he argues that the role of the Family Drug and Alcohol Court should be expanded to enable it to take on cases which are currently dealt with in the Youth Court.
He recognizes that such a development would represent a big policy change and could not come into being in the short-term. He therefore also proposes interim measures that might go someway towards meeting the objective he has outlined.
So far as I am aware,the Government is not currently contemplating such a major change, but I think Sir James offers ideas that should be carefully considered.
The lecture is available at https://www.judiciary.gov.uk/wp-content/uploads/2017/10/speech-pfd-children-across-the-justice-systems.pdf
Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases
In July 2017, HM Crown Prosecution Service Inspectorate and HM Inspectorate for Constabulary published a joint report on the disclosure of unused evidence. Based on the analysis of a number of sets of court papers, the report reveals very poor compliance with the relevant rules.
The report states: “Disclosure is one of the cornerstones of the criminal justice system and disclosure of unused material is a key component of the investigative and prosecution process. …Every unused item that is retained by police and considered relevant to an investigation should be reviewed to see whether it is capable of undermining the prosecution case or assisting the defence case. If either factor applies it must be disclosed to the defence.’
This inspection by HMCPSI and HMIC identified a number of issues which are contributing to widespread failures across the board by both police and prosecutors.
- Police scheduling (the process of recording details of sensitive and non-sensitive material) is poor and this, in turn, is not being challenged by prosecutors.
- Police are routinely failing to comply with guidance and requirements when completing and recording data, such as the non-sensitive disclosure schedule (known as MG6C).
- The College of Policing is supposed to provide training on disclosure. [But] Many officers admitted they lacked confidence in their role and responsibilities as disclosure officer.
- Prosecutors are expected to reject substandard schedules and there was little evidence of such challenge occurring, with a culture of acceptance prevailing.
- There was also poor decision-making by prosecutors on the Criminal Procedure and Investigations Act (CPIA) test for disclosure. In 54% of cases prosecutors simply endorsed schedules without recording their reasoning.
- There were further failings in maintaining a complete audit trail of actions and decisions setting out the prosecution disclosure process.
- There was poor supervision of standards, although where police forces have introduced quality control mechanisms this was found to improve the quality of data.
- The exchange of information and documents between the police and CPS is often hindered rather than helped by technology, with a number of police systems presenting problems.
The report set out a strict timetable for change.
Immediately:
all disclosure issues relating to unused material to be identified at the charging stage.
Within six months:
the CPS to comply with the Attorney General’s Guidelines on Disclosure, with an allocated prosecutor reviewing every defence statement and giving prompt guidance to police;
police forces to improve supervision of unused material;
CPS Compliance and Assurance Team to begin dip sampling;
all police forces to establish role of dedicated disclosure champion of senior rank;
a system of sharing information between CPS Areas and Headquarters to monitor performance;
CPS and police to develop effective communications processes.
Within 12 months:
the College of Policing to introduce a disclosure training package;
the CPS and police to review digital case management systems.
The full report is available at http://www.justiceinspectorates.gov.uk/cjji/inspections/making-it-fair-the-disclosure-of-unused-material-in-volume-crown-court-cases/
Transforming our Justice System: Transformation – Courts and Tribunals 2022
Despite the loss of the Prisons and Courts Bill 2017 at the General Election, held in June 2017, work on the Transforming our Justice System programme continues apace. (For those aspects of the reforms which need legislation, a replacement bill is expected shortly.)
Keeping up to date with the progress that has been made is hard, as most of the changes do not hit the headlines in the media. (About the only issue which has been subject to any public discussion has been criticism from the Bar about a pilot trialling the use of courts for longer periods during the day. The criticism focussed almost entirely on the inconvenience this would cause to barristers – no mention of the possibility that the public might prefer court hearings outside the traditional 10-4 Monday-Friday time frame.)
Specific developments can be noted by keeping an eye on Press Releases from the Ministry of Justice. A recent example is the announcement of the opening of the first two Courts and Tribunals Service Centres in Birmingham and Stoke on Trent
See https://www.gov.uk/government/news/first-courts-tribunals-service-centres-launched
A more rolling source of news can be found in the extremely interesting blog relating to the transformation programme – now called Transformation: Courts and Tribunals 2022. This provides news about the new services that are being developed for modernising the courts and tribunals system, both giving accounts of what is currently on going and also what is planned.
The link to the blog is at https://insidehmcts.blog.gov.uk/category/transformation-courts-and-tribunals-2022/
It is possible to sign up to an email notification service so that you are told when a new blog entry is published.
The treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the criminal justice system: the Lammy Review
At the beginning of 2016, David Lammy MP was asked by the then Prime Minister David Cameron to review the workings of the criminal justice system, with the object of seeing whether the system worked fairly, in particular in relation to BAME individuals. (The review was noted in this blog in February 2016; its interim findings were noted here in November 2016)
The final report of the review was published in September 2017.
The bare statistics tell a familiar story. Thus the study found, for example:
- the fact that BAME individuals are disproportionately represented in the criminal justice system costs the taxpayer at least £309 million each year;
- the proportion of BAME young offenders in custody rose from 25% to 41% between 2006 and 2016, despite the overall number of young offenders falling to record lows;
- the rate of Black defendants pleading not guilty in Crown Courts in England and Wales between 2006 and 2014 was 41%, compared to 31% of white defendants. (This means they lose the possibility of reduced sentences and it raises questions about their level of trust in the system.);
- the BAME proportion of young people offending for the first time rose from 11% in 2006 to 19% a decade later;
- there was an identical increase in the BAME proportion of young people reoffending over the same period.
Lammy looked at what happens in a number of other countries to see whether we could learn from experience elsewhere.
Two specific examples may be noted.
- Taking inspiration from youth justice in Germany, Lammy argues that rigorous assessments of a young offender’s maturity should inform sentencing decisions. Those judged to have low levels of maturity could also receive extended support from the youth justice system until they are 21.
- He also called for ‘Local Justice Panels’ to be established, taking inspiration from New Zealand’s Rangatahi courts, where local people with a direct stake in a young offender’s life are invited to contribute to their hearings. These panels would normally deal with first-time offenders given community sentences, include key figures such as teachers or social workers, and hold local services to account for a child’s rehabilitation.
Lammy made a number of innovative recommendations for judges, prosecutors and prisons.
For example, he proposed that a ‘deferred prosecution’ model be rolled out, allowing low-level offenders to receive targeted rehabilitation before entering a plea. Those successfully completing rehabilitation programmes would see their charges dropped, while those who did not would still face criminal proceedings. (Such a scheme has already been piloted in the West Midlands, with violent offenders 35% less likely to reoffend. Victims were also more satisfied, feeling that intervention before submitting a plea was more likely to stop reoffending.)
He recommended that all sentencing remarks made by judges in the Crown Court should be published. He argued that this could help to make justice more transparent for victims, witnesses and offenders. It would also start to address the ‘trust deficit’ between BAME individuals and the justice system, which Lammy argues has contributed to Black and Asian men and Asian women being over 50% more likely than their White counterparts to enter a not guilty plea.
He also argues the UK should learn from the US system for ‘sealing’ criminal records, claiming ex-offenders should be able to apply to have their case heard by a judge or independent body, such as the Parole Board, where they could prove they have reformed. The judge would then decide whether to ‘seal’ the record, having considered factors such as time since the offence and evidence of rehabilitation. If the decision goes the applicant’s way, their record will still exist, but the individual would not need to disclose it and employers would not be able to access it. Lammy hoped this would help the people affected to become more employable.
Lammy accepts that there are other wider social issues that must be addressed as well; but he argues that the recommendations he makes could do much to build greater trust in the criminal justice system, reduce reoffending and improve outcomes for victims.
Whether or not these recommendations will lead to actual changes on the ground is too early to say. The fact that two Prime Ministers strongly supported the review might suggest that there would be some political impetus for follow-up. But, given other political priorities, I would not expect a rapid response from Ministers.
The Press Release, with links to the report can be found at https://www.gov.uk/government/news/lammy-publishes-historic-review
Prisons and Courts Bill 2017: new version awaited
One of the casualties of the calling of the General Election in June 2017 was that the Prison and Courts Bill 2017 was lost – i.e. failed to complete its Parliamentary process.
I have noted in earlier blogs the key features of this important legislation, both in relation to the reform of the Prison Service and to the Civil Justice system. It also planned to deal with rules relating to whiplash injuries (see entries in Spotlight on the Justice System 8 March 2017.)
It is clear from announcements in the Queen’s speech – delivered in June 2017 – that the Bill will be introduced, not necessarily in the same form but with the same policy objectives in mind.
For the moment, therefore, plans are on hold (though civil servants are actively working on the assumption that eventually they will get the new legal powers they need to introduce the proposed reforms.)
I will give further details when the new Bill is published.
Transforming the Justice System: the Prisons and Courts Bill 2017
Enromous changes to the ways in which courts – both criminal and civil – and tribunals operate have already been foreshadowed in a number of policy documents published during 2016. Parts 2 to 4 of the Prisons and Courts Bill contain provisions that will give statutory authority to the changes that have been proposed.
The headline provisions may be set out as follows:
Part 2 creates new procedures in civil, family, tribunal and criminal matters.
It makes changes to court procedures in the Crown Court and magistrates’ courts to make processes and case management more efficient.
It allows some offenders charged with summary-only, non-imprisonable offences to be convicted and given standard penalties using a new online procedure.
It extends the use of live audio and video links, and ‘virtual’ hearings where no parties are present in the court room but attend by telephone or video conferencing facilities.
It makes provision which will apply across the civil, criminal and tribunal jurisdictions to ensure public participation in proceedings which are heard virtually (by the streaming of hearings), including the creation of new criminal offences to guard against abuse, for example by recording such stramed hearings.
It creates a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions.
It bans cross-examination of vulnerable witnesses – in particular those who have been the subject of domestic abuse – in certain family cases.
It confers the power to make procedure rules for employment tribunals and the Employment Appeal Tribunal on the Tribunal Procedure Committee and extends the membership of the Committee to include an employment law practitioner and judge or non-legal member.
Part 3 contains measures relating to the organisation and functions of courts and tribunals.
It extends the role of court and tribunal staff authorised to exercise judicial functions giving the relevant procedure rules committees the power to authorise functions in their respective jurisdictions.
It abolishes local justice areas, enabling magistrates to be appointed on a national basis, not just to a specific local justice area.
It replaces statutory declarations with statements of truth in certain traffic and air quality enforcement proceedings.
It makes reforms to the arrangements for the composition of employment tribunals and the Employment Appeal Tribunal.
It enables the High Court to make attachment of earnings orders for the recovery of money due under a judgment debt, as far as practicable, on the same basis as in the County Court.
Part 4 contains measures relating to the judiciary and the Judicial Appointments Commission.
It enables more flexible deployment of judges by enabling them to sit in different jurisdictions.
It brings the arrangements for the remuneration of judges and members of employment tribunals – currently undertaken by the Secretary of State for Employment – under the remit of the Lord Chancellor.
It rationlises the roles of judges in leadership positions who will support a reformed courts and tribunals system. (This includes provision to abolish the statutory post of Justice Clerk; this role will continue, but those qualified to be Clerks will also be able to undertake analogous work in other court/tribunal contexts.)
It gives the Judicial Appointments Commission the power to carry out more work (not directly related to judicials appointments) on a cost-recovery basis.
Source, Explanatory Notes to the Prisons and Courts Bill 2017, available at https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/en/17145en02.htm
Prison Reform: the Prison and Courts Bill 2017
The Prison and Courts Bill 2017 is a major piece of proposed legislation which aims to give effect to major reforms of both the prison service and the work of courts and tribunals.
The note deals with the first item – reform of the prison service.
The main policy objectives for prison reform were set out in the White Paper Prison Safety and Reform which was published in November 2016 and noted in this blog on 23 November 2016.
A good number of the proposed reforms do not actually require new legislation. They can be achieved by changes to the ways in which prisons are run, or by changes to the Prison Rules. But key changes do require legislation. These are dealt with in Part 1 of the new Bill.
The major changes may be set out as follows:
- The Bill will create a statutory purpose of prisons and updates the existing duties of the Secretary of State in relation to prisons (amending those created in the Prison Act 1952 (“the 1952 Act” ))
The Bill provides that “in giving effect to sentences or orders of imprisonment or detention imposed by courts, prisons must aim to—
(a) protect the public,
(b) reform and rehabilitate offenders,
(c) prepare prisoners for life outside prison, and
(d) maintain an environment that is safe and secure.”
- It also imposes a duty on the Secretary of State to make an Annual Report to Parliament on the work of the prison service, measured against the criteria set out in the Bill.
- It creates Her Majesty’s Inspectorate of Prisons, comprising Her Majesty’s Chief Inspector of Prisons (an existing statutory office) and staff who carry out functions on the Chief Inspector’s behalf, places additional reporting requirements on the Chief Inspector in relation to prisons, and provides powers of entry and access to information to facilitate the exercise of the Chief Inspector’s statutory inspection functions in relation to prisons.
- It establishes the Prisons and Probation Ombudsman (“PPO”) – currently a non-statutory appointment – as a statutory office, and provides the Secretary of State with the powers to add its remit.
- In relation to prison security, the Bill will enable public communication providers (“PCPs”) – for example, mobile phone network operators – to be authorised to interfere with wireless telegraphy to disrupt the use of unlawful mobile phones in custody.
- It also makes provision for the testing of prisoners for psychoactive substances (as defined in the Psychoactive Substances Act 2016) within prisons.
For further detail about this Bill and links to relevant material, go to https://www.gov.uk/government/news/prisons-and-courts-bill-what-it-means-for-you
Reform of the Youth Justice System
In 2007, the average monthly number of persons under the age of 18 held in custody was 2909. Today that average monthly figure is about 900. Generally far fewer young people are brought into the criminal justice system than was the case 10 years ago.
At first sight it might seem that these dramatic falls in numbers – which do not get much publicity – should be a good news story. But it is not as simple as the. The figures mask other problems about the overall state of the youth justice system. Once children and young people are in custody the outcomes are not good enough. Levels of violence and self-harm are too great and reoffending rates are unacceptably high. 69% of those sentenced to custody going on to commit further offences within a year of their release.
This raises questions about what more can be done to ensure that young people do not enter the system in the first place, and if they do are given every opportunity to turn their lives around by receiving appropriate education and training to enable them to start leading productive lives in society.
The Government has taken a number of measure to address these problems.
In 2016, they commissioned Charlie Taylor – a former head teacher and child care expert – to undertake a review of the Youth justice system. His report was published in December 2016. The Government’s response to his report was published on the same day.
In a written statement to Parliament on 24 February, the Government now announced the next steps it is taking in response to that review.
First, it has appointed Charlie Taylor to be the new Chair of the Youth Justice Board – so that he can oversee the reforms he advocated.
Second the Government has announced that a new Youth Custody Service is to be established as a distinct arm of HM Prison and Probation Service, with a dedicated Director accountable directly to the Chief Executive.
Third there has been (yet another) review of the physical estate used for the detention of under 18s. It states bluntly that the time for reports is over – all those who know about this accept that the estate is not up to modern standards. What is needed is action to improve the estate.
Perhaps by comparison with the huge problems facing the prison service more generally – which new proposals for reform of the prison system are designed to address – youth justice is an issue on which it is hard to attract attention from the mass media. But it seems plausible to suggest that if you get the youth justice system working effectively, you may be able to reduce some of the pressures that might arise further down the line.
The Charlie Wilson Review is at https://www.gov.uk/government/publications/review-of-the-youth-justice-system
The Government response to the report is at the same page.
A summary of the Justice Secretary’s statement to Parliament is at https://www.gov.uk/government/speeches/youth-justice-update.
The report on the youth justice estate is at https://www.gov.uk/government/publications/youth-custody-improvement-board-findings-and-recommendations
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 