Archive for the ‘Chapter 9’ Category
Mandatory retirement age for judges
For a number of years, concern has grown about the ability of the courts’ system to recruit judges, particular to the most senior positions in the High Court. One obvious idea, which gained considerable traction in 2020, was that the mandatory retirement age (MRA) for judges, set some years ago at 70, should be increased.
In July 2020, the Government launched a consultation on whether this would be a good idea, and if so what any new age limit should be. The results of this consultation are now in and were published in March 2021.
The Government has now decided that it will increase the MRA to 75, thereby putting the MRA back to the level it was some 20 years ago when the present MRA was introduced.
It might have been thought that this change could be made relatively straightforwardly, but in fact statutory amendment is required. In the familiar phrase used on these occasions, this will happen ‘when parliamentary time allows’.
This is often seen as pushing the required change into some indeterminate future date. My hunch is that, in this context, there is a degree of urgency. I doubt whether there will be a separate Act of Parliament on the point. But it would not surprise me if a clause was inserted in an appropriate Bill going through Parliament in the near future.
The consultation and the Government’s response are available at https://www.gov.uk/government/consultations/consultation-on-judicial-mandatory-retirement-age
What do judges think about their job?
The UK Judicial Attitude Survey is a longitudinal survey conducted by Prof Cheryl Thomas of the University College London Judicial Institute. It covers all serving salaried judges in England & Wales, Scotland and Northern Ireland. It assesses judges’ views and experiences of their working lives over time. The results of the 3rd JAS were published in February 2021; earlier surveys were published in 2016 and 2014. With close to 100% participation over 6 years, this report provides a reliable assessment of judicial attitudes to their working lives and how they may have changed over this time period. The following note, which I have adapted from the Executive Summary, sets out the headline findings.
1 General feelings
Virtually all judges feel they provide an important service to society and have a strong personal attachment to being a member of the judiciary. They have a deep commitment to their job.
While judges feel most valued by their judicial colleagues at court, court staff, the legal profession and parties in cases, only two thirds feel valued by the public. Very few judges feel valued by the Government (9%) or the media (12%), and no judges feel greatly valued by the Government or media.
2 Working conditions
A majority of judges said that working conditions were worse than they were two years ago,
The courts judiciary feels working conditions have deteriorated more in the last two years than do judges in UK tribunals.
A majority of judges rated the following as Good or Excellent: security at court, quality of administrative support and physical quality of judges’ personal work space. One working condition rated Poor by a majority of judges was the morale of court and tribunal staff.
Over a third of judges continue to have concerns about their safety out of court.
Almost half of all judges said they would like more guidance on how to deal with internet and social media coverage of their work as a judge.
3. Salary and pensions
Most judges were paid more before they became a judge than they are paid in post. Two-thirds of all salaried judges feel that their pay and pension entitlement combined does not adequately reflect the work they have done and will do before retirement.
4. IT Resources and the New Digital Programme
A majority of judges said that the standard of IT equipment provided to them personally to use in 2020 had improved from 2014 and 2016, and that internet access and IT support in 2020 had also both improved from 2014 and 2016. But they felt that the standard of IT equipment used in courts and tribunals in 2020 had continued to decline since 2014 and 2016.
By 2020 virtually all salaried judges were on e-Judiciary (the internal web-based communications system), and most judges rated it as either Excellent to Good or Adequate.
By 2020 wifi was available in nearly all court/hearing rooms. Most judges rated its quality as Excellent/Good or Adequate.
5. Working during the Covid-19 emergency
During May-June 2020, a majority of judges said that the judiciary was managing change well during the Covid-19 emergency. The extent to which judges were working in their court or tribunal varied substantially by judicial post during the first lockdown in May-June 2020.
6 Future planning
A large proportion of the salaried judiciary say they might consider leaving the judiciary early over the next 5 years. In 2020, a new factor, “lack of respect for the judiciary by government”, was more significant in prompting judges to leave early than any other factor identified in 2016. There was also a substantial increase from 2016 in judges who said that stressful working conditions, increases in workload and further demands for out of hours work would make them more likely to leave the judiciary early.
A majority of judges said the same 3 factors would make them more likely to remain in the judiciary: higher remuneration, better administrative support and restoration of previous pension entitlements.
7. Recruitment
In 2020, almost two-thirds of all judges said they would encourage suitable people to apply to the judiciary. The main reasons for this were: the chance to contribute to justice being done , the challenge of the work, public service and intellectual satisfaction
The full report is available at https://www.judiciary.uk/announcements/judicial-attitudes-survey/
Responding to Covid-19: the work of tribunals
All parts of the English Legal System have been affected by Covid 19 – some more adversely than others. The criminal justice system in particular is under severe pressure – not all the result of covid.
By contrast, one sector of the justice system that has risen to the challenge of Covid particularly well is the Tribunals system. It has taken full advantage of new technologies, new ways of working, flexible approaches by judges, support staff and members of the public to ensure that its work has continued – in some cases more successfully than before Covid 19 struck.
In the latest edition of Tribunals Journal, which was published towards the end of March 2021, gives a first hand account, by different tribunal heads, of how they have coped with Covid over the past 12 months.
The outcome is truly impressive and shows how much can be done. Highly recommended read.
Of course, it is not yet clear how far the practices adopted over the past 12 months will continue after the pandemic has subsided. However, my view is that simply going back to the old ways of working, without careful analysis of the experience of the last 12 months, would be a seriously retrograde step.
See https://www.judiciary.uk/publications/tribunals-journal/ and click on the link for the Special Edition for 2021.
The latest edition of Tribunals
Equal Treatment Bench Book – 2021 revision
The Equal Treatment Bench Book (ETBB) is the subject of frequent amendment. A Comprehensive revision was released in February, 2021..
The aim of the ETBB to increase judicial awareness and understanding of the different circumstances of people appearing in courts and tribunals. It is designed to enable effective communication and suggests steps which should increase participation by all parties.
This new revision of the ETBB cites recent evidence regarding the experiences of different communities living in Britain today. It contains practical guidance aimed at helping make the court experience more accessible for parties and witnesses who might be uncertain, fearful or feel unable to participate.
There are practical tips on communicating with those speaking English as a second language or through interpreters, communicating with people with mental disabilities, a guide to different naming systems, and latest views on acceptable terminology.
There is new and expanded content on:
- The impact of the COVID-19 pandemic on different groups and how to conduct remote hearings (on audio or video platforms) fairly
- Welsh/English bilingualism and the right to speak Welsh in courts and tribunals in Wales
- Reducing jargon and legalese
- Assisting a litigant who has difficulty reading or writing
- Extended guidance in relation to litigants-in-person (ie people representing themselves)
- New entries in the disability glossary
- Confidence in the courts of minority ethnic communities
- Sensitivity if a witness is experiencing menopausal symptoms
Although intended primarily for use by judges in courts and tribunals, its contents deserve to be widely known appearing in a court or tribunal or with an interest in how the legal system works. It is of particular relevance to those who may be seeking a judicial appointment.
The full text of the 2021 revision is at https://www.judiciary.uk/announcements/equal-treatment-bench-book-new-edition/
Seeking legal help online: the challenge of design
In December 2020 Roger Smith, who runs the excellent Law, Technology and Access to Justice website (at https://law-tech-a2j.org/,) posted an item about an important report from Australia.
Written by Jo Szczepanska and Emma Blomkamp, and published by Justice Connect (a not-for-profit Law Charity, see https://justiceconnect.org.au/) their recently published report Seeking Legal Help Online –
Understanding the ‘missing majority’ offers a range of practical ideas on how to design self-help resources that can actually be used by those seeking help. In Smith’s words: “It puts Australian experience front and centre of global discussion of a key topic.”
The phrase ‘missing majority’ in the title refers to the fact that the majority of people will not or cannot afford to use the services of legal practitioners to assist in the resolution of disputes or other problems. However, in the words of the report “as the missing majority progressively adopts technology, there are increasing opportunities to find new models of providing cost-efficient and effective free legal assistance at scale”. The report aims to find a better understanding of the opportunities to assist the missing majority through online resources, recognising their limits as well as their potential.
The report sought to answer the following 5 questions:
- How do people search for legal help online? The first set of insights describes the variety and mixed results of searching techniques used by participants in this research.
- What is the self-help journey like? This looks at the difficulties of trying to solve problems on your own. For example legal jargon is confusing for most people who haven’t studied law; the rules and procedures of the legal system can be opaque; and the process to understand and resolve an issue can be incredibly time-consuming. Indeed the whole process can be highly stressful.
- How can different resources help and how are resources used? The report draws on participants’ own analyses and explanations of why they would select certain tools, when they would use them, and what combinations of resources would work best for them and their issue. Where self-help became overwhelming, participants would start looking for a professional to help them.
- How can resources be improved? This considered the shortcomings of existing legal resources and the behaviour exhibited by people as they try to decipher and then apply new knowledge. These insights highlight issues of access, trust, accessibility, appropriateness and usefulness.
Unfortunately, many online legal resources remain limited in their design, simply putting online existing forms and leaflets. Some people with disabilities cannot access or use online legal resources at all because the resources have not been designed with their needs in mind. Resources often also contain overly technical and complex language. - How do help-seekers define a legal problem? This part of the study draws attention to the question of how a diverse range of people who find themselves in need of legal information or assistance try to find that information. Overall, the stories from participants and examples from live searches and testing of resources highlight the differences and commonalities of searching for legal help and information online.
In the light of the findings from the empirical part of the study, the final section of the report presents a series of recommendations and design principles, offering guidelines for improving online legal self-help resources. The recommendations focus on how to involve people with lived experience of trying to use existing resources together with relevant professionals in funding, researching, designing, testing, implementing, promoting, and evaluating online self-help resources.
Suggestions in the report are tailored for a range of different target audiences: users, funders, service providers, and resource makers. They are grouped under five main headings:
- Invest in information design and user experience;
- Involve people with lived experience in making online resources
- Break down silos between sectors, organisations, communities, and self-help
- Establish communities of practice to support makers of online self-help resources
- Invest in consumer outreach, search engine optimisation, communications, and marketing.
This blog does not reflect the detailed ideas contained in the report. Anyone wanting to develop new online resources should read this report for its ideas about how this might be done in ways that would actually help. The scope for innovations seems almost limitless. Policy on access to justice needs to take self-help seriously.
(This entry has been adapted from the report’s Executive Summary.)
It can be downloaded at https://justiceconnect.org.au/about/digital-innovation/missing-majority-report/
Independent Review of Criminal Legal Aid – announcement
Just before Christmas, the Government made the long awaited announcement that the independent review of Criminal Legal Aid would start work in January 2021 – with a view to reporting by the end of 2021. The Chair of the Inquiry is to be Sir Christoher Bellamy, a retired judge – formerly President of the Competititon Appeal Trbunal. He will be supported by an Expert Panel, though the composition of the Panel has not yet been announced
The announcement contains a link to the terms of reference for the inquiry which set out in rather more detail than usual the aims of the inquiry and some of the issues it is required to take into account. The document states that the Criminal Legal Aid Review ‘has two main objectives’:
- To reform the Criminal Legal Aid fee schemes so that they:
• fairly reflect, and pay for, work done.
• support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce.
• support just, efficient, and effective case progression; limit perverse incentives, and ensure value for money for the taxpayer.
• are consistent with and, where appropriate, enable wider reforms.
• are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies; and
• ensure cases are dealt with by practitioners with the right skills and experience. - To reform the wider Criminal Legal Aid market to ensure that the provider market:
• responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer.
• operates to ensure that Legal Aid services are delivered by practitioners with the right skills and experience.
• operates to ensure the right level of Legal Aid provision and to encourage a diverse workforce.
The document also states that ‘ultimate objective of the Criminal Legal Aid System is to provide legal advice and representation to those who most need it’ and that in order to achieve this overarching objective,
“the Independent Review will seek to make recommendations that will ensure the Criminal Legal Aid System:
a. provides high quality legal advice and representation;
b. is provided through a diverse set of practitioners;
c. is appropriately funded;
d. is responsive to user needs both now and in the future;
e. contributes to the efficiency and effectiveness of the Criminal Justice System;
f. is transparent;
g. is resilient; and
h. is delivered in a way that provides value for money to the taxpayer.”
Furthermore “in order to conduct this analysis, the review will consider the following themes:
- resilience
- transparency
- competition,
- efficiency; and
- diversity.
For criminal legal aid practitioners this is a very important moment. It is clear that the current criminal legal aid is not working as it should. The question remains whether, despite the generally positive tone of the initial press release, a substantially reformed system will ultimately be implemented. This will be an important test for both Government and the legal professions. Much will depend on the political skills of the Lord Chancellor in ensuring that the resources to reform the system are available.
The announcement is at https://www.gov.uk/government/news/independent-review-into-criminal-legal-aid-to-launch-in-january. This includes the link to the terms of reference.
Whither the Sentencing Council?
Many Government consultation are on rather specific issues. The consultation considered here is rather different, designed to encourage some rather more blue-skies thinking about the work of the Sentencing Council.
It has been launched because 2020 marks the 10th anniversary of the establishment of the Sentencing Council for England and Wales. During that time it has produced 27 sets of definitive guidelines encompassing 145 separate guidelines that cover 227 offences and eight overarching topics.
As the accompanying press release notes: “Developing guidelines is a collaborative process; as well as input from Council members and the small multi-disciplinary team who support its work, it relies on the cooperation of individuals and organisations working in the criminal justice system and beyond to ensure that it has the fullest information possible to draw on.”
Over the years, thousands of magistrates and judges have completed surveys or participated in detailed research, providing the Council with evidence which underpin the guidelines. It has held more than 30 public consultations, which have received almost 4,000 responses.
In addition to producing guidelines, the Council also: publishes research and statistics on sentencing; seeks to promote public understanding of sentencing through information on its website; provides educational materials for use in schools; and works with other organisations, for example the police.
The stated purpose of the consultation – which opened in March 2020 – is not to look back (though obviously it reflects on the work of the Council to date), but to look forward. It is asking all those with an interest in criminal justice and sentencing to contribute to a discussion on what the Council’s future objectives and priorities should be.
The Consultation runs until mid September 2020.
It can be found at https://consult.justice.gov.uk/sentencing-council/what-next-for-sentencing-council/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 