Martin Partington: Spotlight on the Justice System

The Criminal Justice and Courts Bill, published early in 2014, is a complex measure which proposes a significant number of changes to the law. The bulk of these relate to the criminal justice system, though the Government’s plans to change judicial review are also included in the Bill. The headline contents of the Bill are:

• New Offences of Juror Misconduct: To reflect the changes to modern society, four new offences of juror misconduct will be introduced – researching details of a case (including any online research), sharing details of the research with other jurors, disclosing details of juror deliberation and engaging in other prohibited conduct.

• New Criminal Offence of being Unlawfully At Large: Criminals who go on the run will face an additional sentence of up to two years. Offenders who have been released from the custodial part of their sentence and are recalled to custody because they have breached their strict licence conditions but do not surrender to custody are unlawfully at large. Once apprehended they may serve the remainder of their sentence but currently there is no additional punishment for these offenders.

• Ending Automatic Early Release for Paedophiles and Terrorists: Criminals convicted of rape or attempted rape of a child or serious terrorism offences will no longer be automatically released at the half-way point of their prison sentence. Under proposals in the Bill they would only be released before the end of their custodial term at the discretion of the independent Parole Board. Alongside this, no criminals who receive the tough Extended Determinate Sentence (EDS) will be released automatically two-thirds of the way into their custodial term. This means that many of them will end up spending significantly more time in prison. In total these changes will affect about 500 offenders per year.

• Clampdown on Cautions for Serious and Repeat Offenders: Criminals will no longer be able to receive a caution for the most serious offences such as rape and robbery and for a range of other serious ‘either way’ offences, for example possession of any offensive weapon, supplying Class A drugs or a range of sexual offences against children. For less serious offences, criminals will also no longer be able to receive a second caution for the same, or similar, offence committed in a two year period. In total these changes are likely to affect around 14,000 offenders a year.

• Life Sentences for More Terrorist Offences: The maximum sentence for three terrorist offences – weapons training for terrorist purposes, other training for terrorism and making or possession of explosives, will be increased to a life sentence. Terrorists convicted of a second very serious offence will face the ‘two strikes’ automatic life sentence.

• Charging Offenders for Court Costs: Convicted criminals will be made to pay towards the cost of running the country’s criminal courts. All convicted adult offenders will have to pay a charge; the money will be reinvested back into the running of the courts.

• Single Magistrates to Handle Low-Level Cases: More than three quarters of a million low-level ‘regulatory cases’, such as TV licence evasion and road tax evasion, may be dealt with by a single magistrate rather than a bench of two or three. Legislation will allow a procedure to enable some summary-only, non-imprisonable offences to be dealt with by a single magistrate, supported by a legal adviser, away from traditional magistrates’ courtrooms.

• Banning Violent Rape Pornography: Possession of explicit pornography that shows images depicting rape will become illegal. It is currently illegal to publish this material and the new legislation will close a loophole to also prevent possession.

• Overhauling Detention of Young Offenders : The rehabilitation of young offenders will be overhauled by introducing secure colleges. Led by a principal, the secure college will put education at the heart of youth rehabilitation. The legislation follows the announcement on 17 January that a pathfinder secure college will be opened in the East Midlands in 2017.

• Increase Juror Age Limit : People aged 75 and under will be able to sit as jurors in England and Wales. The move is part of a drive to make the criminal justice system more inclusive and to reflect modern society by giving more people the opportunity to serve on a jury. The current age limit is 70.

Finally, Judicial Review Reform: The Government argues that economic growth will be supported by measures to speed up the Judicial Review process and reduce the number of meritless claims clogging the system. This argument is fiercely contested. It will be the subject of a separate blog.

For details see http://services.parliament.uk/bills/2013-14/criminaljusticeandcourts.html

On July 1 2013, the Property Chamber of the First-Tier Tribunal came into existence, the latest step in the transformation of the tribunal system which followed the recommendations on the Leggatt Review of Tribunals in 2001. This particular reform had been delayed, despite recommendations from the Law Commission that the former Residential Property Tribunal should be brought within the reformed Tribunal structure.

The new Chamber brings together Rent Assessment Committees, Leasehold Valuation Tribunals, Residential Property Tribunals, Rent Tribunals, Agricultural Land Tribunals and the jurisdiction of the Adjudicator to HM Land Registry.

The Chamber is divided into three:

• Residential Property
• Land Registration
• Agricultural Land & Drainage

The types of case dealt with by the Property Chamber include:

Residential Property

• some disputes about private sector rents
• some disputes about residential leasehold management, including the payability of service charges
• valuation for enfranchisement and lease extension
• disputes about the right to buy where a property is considered to be particularly suitable for the elderly
• disputes about park homes
• appeals against local authority notices about the condition of a property and appeals about Houses in Multiple Occupation

Land Registration

• references from the Chief Land Registrar
• applications from the public to rectify or cancel documents relating to registered land
• appeals from Land Registry decisions relating to Network Access Agreements and any other application, matter or appeal under the Land Registration Act 2002

Agricultural Land & Drainage

• disputes between agricultural tenants and landlords arising from tenancy agreements
• applications in respect of certain drainage disputes between neighbours.

For further information, go to http://www.justice.gov.uk/tribunals/property-chamber

For the Law Commission report go to http://lawcommission.justice.gov.uk/publications/land-valuation-and-housing-tribunals.htm

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

1. Offender Rehabilitation Bill

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

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

The main benefits of the Bill would be to:

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

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

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

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

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

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

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

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

 2 Draft  Consumer Rights Bill, designed to

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

One of the policy features which underpin the civil court system is that the civil courts should as far as possible be self-funding. (This aim does not currently include judicial salaries and pensions.)
The current position is that in 2011/12 the cost of running the non-criminal business administered by Her Majesty’s Courts and Tribunals Service (HMCTS) was around £713m. Of this amount 67% was funded through fees (£480m) with the remaining 33% funded by the taxpayer (£233m) as part of the Ministry of Justice’s spending settlement.

The tax-payer subsidy is made up of two elements:

• Fees set below full-cost levels, i.e. the fee charged does not cover the actual cost to the court or tribunal of processing the work being charged.

• Fee income foregone under a system of fee remissions (waivers). In 2011/12 approximately 171,000 fee remissions were granted at a total value of £27.8m.

The Government’s overall aim is to reduce the taxpayer subsidy for the civil business by ensuring that fee income covers 100% of the cost of providing services, minus the income foregone to the remission system. For tribunals the aim is to maximise cost recovery and separate targets below full cost recovery have been agreed by the Ministry of with Her Majesty’s Treasury.

To achieve this objective, basic fees will need to rise – to address the first point.

This blog refers to a consultation on the second issue – fee remission – designed to introduce great uniformity of approach and better targetting of the remission regime to the very poor. In effect, the remission system relies on a means-test, and the consultation paper indicates that the means-test will become tougher for all but the very poor.

Details of what the Government is proposing are set out in https://consult.justice.gov.uk/digital-communications/fee-remissions-court-tribunals/consult_view

One point should be noted. In the good old days, it was a principle of government that any consultation should last for at least 3 months – to enable those who might wish to comment find the time to assemble their thoughts, and draft their responses. There is a notable current trend that consultation periods should be much briefer. The consultation period for the current exercise is only a month. The consultation on the judicial review changes, noted before, was similarly attenuated.

Last December 2012 I drew attention to the consultation on judicial review announced by the Lord Chancellor, Chris Grayling. Despite my prediction that these proposals would draw a lot of criticism, the Government has announced that they will go ahead broadly as planned. On 9 May 2013 it was announced that they would:

• Introduce a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down.

• Ban people from seeking a hearing in person if their initial written application has been ruled as totally without merit.

• Halve the time limit for applying for a judicial review of a planning decision from three months to six weeks.

• Reducing the time limit for applying for a judicial review of a procurement decision from three months to four week.

In addition that Government is still contemplating  separate proposals which would  see the fee for a Judicial Review application increase from £60 to £235.

Two consultation proposals are not being taken forward. They were:

• For cases based on a continuing issue or multiple decisions, clarifying the point when the time limit starts, to avoid long delays.
• Scrapping oral renewals for any case which has already had a hearing before a judge on substantially the same matter, for example, at a court, tribunal or statutory inquiry.

These changes do not require legislation, but only changes to court rule

The press release is at:https://www.gov.uk/government/news/grayling-no-more-using-judicial-review-as-a-cheap-delaying-tactic

For the full text of the Government’s response see: https://consult.justice.gov.uk/digital-communications/judicial-review-reform

Given the fact that the bulk of delay arises from the huge number of applications in immigration and asylum cases, it is in my view unlikely that these changes will have a significant impact, though the imposition of higher and new fees may deter some applicants. We shall see.

The consultation paper on Judicial Review has now been published. Responses are invited by 24 January 2013. If the Christmas and New Year holiday period is discounted, this leaves the response time very short.

The Consultation Paper’s analysis of the problem (so far as it is a problem) is not in my view very clear. As the Press Release puts it:  ‘There were 11,200 applications last year (2011), compared to just 160 in 1974 – and of last year’s decided applications only 1,200 (one in six) were deemed suitable for a Judicial Review to go ahead.’

The vast bulk of these applications were made in cases involving aspects of immigration and asylum.

The present rules already require applications for judicial review to be made within 3 months of the date of the decision which it is sought to review, and the courts have discretion to refuse to hear cases where the application was made towards the end of the period. In other words anyone seeking judicial review has to get a move on.

Of course, each of the applications has to be considered; this creates an enormous burden on judges who have to read the papers and decide whether or not to grant leave.  If they refuse leave, they have to provide written reasons, and these may themselves trigger an application for an oral hearing to reconsider the application. If this is rejected, there is a further right of appeal to the Court of Appeal.

Until recently, all application were made to the Administrative Court in London; there has been an element of decentralisation by the creation of Administrative Court centres in Birmingham, Manchester, Cardiff, and Leeds.

In addition, some immigration/asylum cases are now dealt with by the Upper Tribunal. And  clauses in the Crime and Courts Bill, currently before Parliament, will, if enacted, allow for all immigration, asylum or nationality Judicial Reviews to be heard in the Upper Tribunal. It is also proposed to give the Lord Chief Justice greater freedom to deploy Judges more flexibly across the courts and tribunals to respond more quickly to changes in demand.

If the immigration and asylum cases are stripped out of the system, the remaining number is actually quite small and should be capable of being handled without undue delay. The Government however is not willing to wait and see what the impact of removing those categories of case would be. It is also proposing other amendments, in particular to time limits (which are already short).

• For planning cases – reducing the time after the initial decision that an application for Judicial Review can be lodged from three months to six weeks, to match the time limit for challenges to the High Court on planning matters;
• For procurement cases – reducing the time after the initial decision that an application for Judicial Review can be lodged from three months to 30 days, to match the time limit for procurement appeals

There are also proposals to restrict the circumstances in which an oral renewal may be sought.

Finally it is proposed to increase quite sharply the fees that must be paid for making an application for judicial review  – from £65 to £215 for an application, with another £235 for an oral hearing.

The aim of these reforms seems to be not immigration and asylum – which are already being dealt with – but other types of challenge to official decisions, in particular decisions such as planning decisions, in relation to which some argue that JR causes economic damage by delaying important projects.

Some pretty big legal guns are being lined up to challenge these proposals and I suspect they will get heavily criticised in the House of Lords; but it is the House of Commons that matters more and here legal arguments may have less impact.

Clearly the Government is determined to do something. There may be ways in which procedures can be streamlined without damaging the interests of those who may wish to challenge the exercise of public power.

Future posting will keep you up to date.

To read the Consultation Paper, go to http://www.justice.gov.uk/news/press-releases/moj/judicial-review-consultation

Under the heading ‘Unclogging the Courts’, on 19 November 2012, the Justice Secretary announced that he planned to introduce changes to judicial review – the legal process available to those wishing to challenge decisions taken by government and other public bodies. The announcement said that there would be a consultation exercise, presumably with a Consultation Paper.

Although promised, no Consultation Paper has yet appeared. Measures stated to be in the Justice Secretary’s sights include:

• Shortening the length of time following an initial decision that an application for a judicial review can be made in some cases – and stopping people from using tactical delays
• Halving the number of opportunities currently available to challenge the refusal of permission for a judicial review, from the current four to two
• Reforming the current fees so that they cover the costs of providing judicial review proceedings.

This is an extremely important announcement which has the potential to do great damage to an important area of law and practice that has developed over the last 50 years.

The Minister of Justice is attempting to sell the argument on the basis that changes will result in swifter justice outcomes; the Prime Minister was at the same time selling the proposed changes as a way to reduce the number of challenges to major economic infrastucture developments, such as the building of new airports and high speed railways.

These ideas will undoubtedly be extremely controversial. Updates will appear here in due course.

To see the original announcement go to http://www.justice.gov.uk/news/press-releases/moj/grayling-unclogging-the-courts-to-bring-swifter-justice

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 demise of the Administrative Justice and Tribunals Council (AJTC) has been sought by the Government for some time. It is one of the bodies destined for abolition in the ‘bonfire of the quangos’ – which has been the subject of a number of comments in the blog. But the AJTC has strong supporters, particularly in the House of Lords. And before the final rites are completed – the making of an order under the Public Bodies Act 2011 – the House of Commons Public Administration Select Committee decided to take one final look at the arguments for and against abolition.
Their report, published on 8 March 2012, regards the arguments used by Government in favour of abolition as pretty thin. As their press release notes: “The Committee found that the Government’s rationale for winding up the AJTC was questionable, and that the Ministry of Justice may not have either the resources or the expertise to take on its functions.” It also thought the claimed financial savings were unlikely to materialise.
The Committee also noted that the Government itself had proposed “to establish a “group of administrative justice experts and key stakeholders—particularly those who represent the views of users” to “provide a valuable forum for sharing information and best practice, and […] to test policy ideas”. We understand that this user group is likely to include some former members of the AJTC.” The Committee recommends that the Government provide further information on its proposals for the membership and operation of this group of experts and key stakeholders.
To me this looks to have the potential for the creation of a new body with arguably some of the AJTC functions. Perhaps the main difference will be that members of the new body will not be paid!
In my view the extent of the terrain of administrative justice is so great that sensible and coherent policy of benefit to the citizen simply cannot be developed in one Government department without support from across government and input from researchers able to view what is going on in other countries.
To read the report of the Select Committee, go to http://www.publications.parliament.uk/pa/cm201012/cmselect/cmpubadm/1621/162102.htm

NB I should declare an interest; I was appointed specialist adviser to the Committee for this report.