Public Legal Education: the Solicitor General’s vision
In the past, the Attorney-General tried to promote the cause of Public Legal Education. This role seems now to have been delegated to the Solicitor-General.
In October 2018, the current post-holder, Robert Buckland MP launched a new ‘vision’ to which he hoped interested organisations would sign up.
The Press Release stated:
The statement creates a shared vision for the PLE community to aspire to which will help drive forward legal education initiatives. The statement reveals 7 goals for where PLE might be in 10 years’ time.
The goals are:
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PLE will be supported by a robust evidence base, showing what the need is and what works best.
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PLE will be of high quality, maintained to ensure that it remains accurate and accessible and useful for the people who need it.
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PLE will be universal and reach across all demographics, prioritising children, young adults and vulnerable groups
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PLE will be scaled up through delivery by the legal community
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PLE will harness technology and be delivered through innovative methods, both on and offline
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PLE will be embeded into public services and government departments
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PLE will be understood as beneficial and utlised by other sectors
Whether much can be achieved without additional investment in the development of PLE must be a moot point, but I suppose that a statement such as this is better than nothing. The statement was launched at an event organised by the All Party Parliamentary Group on Public Legal Education and Pro Bono legal work.
See https://www.gov.uk/government/news/our-vision-for-legal-education
What happened to the Lammy Review? Tackling racial disparity in the criminal justice system
The Lammy Review on the treatment and outcomes of BAME individuals in the criminal justice system was published in autumn 2017 (noted in this blog in September 2017). At the same time, the Government had launched its Race Disparity Audit – the first results from which were also published in 2017.
A year on, in October 2018, the Ministry of Justice has published a policy paper on tackling racial disparity in the criminal justice system. It summarises both what has been done and how new developments may be taken forward.
The Press Release states, in part:
There is an undeniable over-representation of ethnic minorities within CJS which [the Government is] determined to challenge and change. For the Criminal Justice System to be viewed as effective and fair it needs the trust, confidence and engagement of citizens from all communities.
[This] update highlights progress across different parts of CJS, from the early stages of the system to court, prison and probation. It also explores cross-cutting work on areas such as data. The update sets out next steps and [the Government’s] continued commitment to progress in this area.
Nevertheless, the Ministry of Justice has partnered with police forces, Police and Crime Commissioners and the Mayor’s Office for Policing and Crime in London to develop pilots of this model in 4 areas: London (North West Borough Command Unit), Surrey, Cumbria and West Yorkshire. We are working with these areas as well as national partners on the pilot design and sharing best practice around implementation and data collection. Although ethnicity is not a selection criterion for being offered a ‘deferred prosecution’, areas will monitor this with the aim of understanding any impact on disproportionality. We expect pilots to go live in police areas during 2019. All of the pilot areas propose to include youth.
The Government has also decided to publish regular updates to the facts and figures relating to ethnicity. These are prepared by, the Ethnicity Facts and Figures service, part of a unit established in the Cabinet Office. The data relate to many aspects of life in the UK, including crime and the criminal justice system.
For the policy statement from the Ministry of Justice, see https://www.gov.uk/government/publications/tackling-racial-disparity-in-the-criminal-justice-system-2018
Data from the Ethnicity Facts and Figures Service are at https://www.ethnicity-facts-figures.service.gov.uk/ from which there are links to ‘Crime Justice and the Law’.
Transforming Criminal Justice: progress reports
I have already noted the report on progress with family, civil and administrative justice. This entry summarises a recent note on progress with the transformation of the criminal justice system. There are 11 projects listed which relate to criminal justice.This note sets out the main ones.
Projects supporting summary justice
- The Single Justice Service (SJS) contains all services delivered by the magistrates’ court which can be considered by a single magistrate. It builds upon the implementation of the Single Justice Procedure (SJP), introducedto process some 850,000 summary non-imprisonable cases per year; this involves working with prosecutors, including TV Licensing, TfL, the DVLA, the police and other non-police prosecutors such as local authorities. The purpose of the SJS is to deal more proportionately with the least serious offences, to which the majority of defendants either do not respond or plead guilty, and which almost exclusively result in a financial penalty. Subject to legislation, this may include the ability to accept a statutory fixed fine online for the most minor offences (in which case the implications of doing so will be carefully and clearly explained). The option for a hearing will remain.
- The SJS is underpinned by a digital system known as Automated Track Case Management (ATCM) and is supported by the Single Justice Service Centre (SJSC). So far, the service is live for cases prosecuted by TfL (Transport for London). Those who plead not guilty have the case transferred for a hearing in the magistrates’ court.
- Since 12 April 2018, defendants have been able to plead online if they choose to do so (rather than on paper). The SJSC team based in Stoke takes calls from defendants and help those who would like to plead online to do so. The ability to plead online builds on the experience of the ‘Make a Plea’ service, which has been live since August 2014, for defendants involved in summary non-imprisonable motoring offences, such as speeding and having no insurance, and has been rolled out to all 43 police forces. During 2017, over 83,000 pleas were registered through this service and it now receives around 1,600 pleas online each week.
Projects supporting hearings in the magistrates’ and Crown courts
- Online plea and allocation: This aim of the project is it make it possible for represented defendants (through their legal representative) to indicate a plea online, before coming to court; and for decisions on allocation to be taken outside the courtroom where that is appropriate. The aim is to support earlier engagement with the court and swifter allocation of cases, and to free up courtroom space and time currently used to hear pleas. Subject to legislation, the project will also enable indictable only cases to go straight to the Crown Court without the need for an unnecessary hearing in the magistrates’ court.
- Case progression project: This project aims to ensure all activities required to achieve an effective trial or sentencing hearing in the magistrates’ and Crown courts are carried out by the participants to the case in advance, and that trial and sentencing hearings can go ahead as planned. It builds on the recommendations of the Leveson report on criminal justice efficiency and will enable some case progression activity to take place outside the courtroom through online, audio and video channels.
- Court hearings project: This project is specifically focused on trials and sentencing hearings in both the magistrates’ and Crown courts. This project will ensure that criminal trials and sentencing hearings are enabled by the right technology and physical environment in the courtroom to ensure the smooth running of the hearings on the day, building on the increasing use of technology that we see already in the criminal courts.
- Video remand hearings: This service aims to transform the way in which hearings for defendants held in custody could be administered in the future, and ultimately enable suitable proceedings to be held fully by video (in other words, with the option of not just the defendant, but others appearing by video, subject to judicial agreement and discretion). The aim is to reduce the amount of time defendants are held in custody without a judicial decision, particularly the number of defendants held overnight, and to reduce unnecessary journeys. It is also an opportunity to improve processes around those appearing on video from the police station now, including improving access to early legal advice.
- Youth project: This project will look specifically at the needs of children and young defendants to ensure that we do not apply adult processes to children, but instead look at each stage of the process and shape a version of it that is appropriate for young people, with the right safeguards and enhancements.
- All these service projects are underpinned by the digital infrastructure known as the Common Platform, a shared system between the police, HMCTS and CPS and accessible by participants across the criminal justice system. This will allow earlier access to the Initial Details of the Prosecution Case (IDPC) for legal professionals; better handling of multimedia; a single, shared view of cases; and direct transmission of case results to those who ought to know.
Adapted from HMCTS Reform Update Autumn 2018 at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744912/HMCTS_Reform_Update_2_Oct_2018.pdf
Disclosure of Evidence: the Attorney-General’s review
In November 2018, the Attorney General published the results of his review into the practice and procedures of police and prosecutors relating to the disclosure of evidence held by prosecutors to the defence, where such evidence might undermine or weaken the prosecution’s case.
The importance of ensuring that such disclosure takes place is accepted by all those responsible for criminal justice policy to be at the heard of a fair judicial process.
The Attorney-General’s review found, in common with earlier official reports, that the duty to record, retain and review material collected during the course of the investigation was not routinely complied with by police and prosecutors.
The Review makes clear that disclosure obligations begin at the start of an investigation. Investigators have a duty to conduct a thorough investigation, manage all material appropriately and follow all reasonable lines of inquiry, whether they point towards or away from any suspect. The Review found that this was not happening routinely in all cases. At the least this caused costly delays for the justice system and at worst it meant that cases were being pursued which the evidence did not support. The impact of these failings caused untold damage to those making allegations and those accused of them.
The Review concluded that “to enable lasting change, there must be a ‘zero tolerance’ culture for disclosure failings across the police and the Crown Prosecution Service (CPS)”.
Of course, this is easier said than done. Hard pressed police and prosecutors may well be tempted to take short cuts. In order to counter these temptations, the Government has taken a number of steps.
1. It has welcomed the steps already taken by the police and CPS to address the issues through the National Disclosure Improvement Plan and will work with each to ensure they lead to long-term, effective and sustained change. HM Government intend, through the Attorney General and Home Secretary, to hold police and prosecution leaders personally responsible for this.
2. As the Review found that non-disclosure is a system-wide problem which needs a systematic response, the Criminal Justice Board, which the Attorney General sits on, will take responsibility for strategic oversight of the collective response from all parts of the system – from police, to prosecutors to the judiciary.
3. The Review found that police and other investigators could be better supported by technological advancements when reviewing and capturing digital evidence. To address this, the Government plans to convene a ‘Tech Summit’ in spring 2019 to help all 43 police forces in England and Wales handle the increasing volumes and complexity of this type of evidence. This will build on the work of the police and help to engineer a way forward with the help of private tech companies. Through the Police Transformation Fund, the Government is already investing in national work to support policing in its wider digital transformation.
4. While the underpinning legislation thought to be still fit for purpose, the Government has concluded that the guidelines which support it need to be updated to meet the challenges of the rise of modern technology. This will happen through secondary legislation.
5. Finally, the work already started by the CPS to improve its data collection to capture the extent of the disclosure problems is essential. The Government will oversee the CPS’s delivery of a new data collection regime which is fit for purpose.
Whether or not all these initiatives will have the desired effect remains to be seen. But there is no doubt that at present practice and procedure on the ground has the potential to undermine the integrity of the criminal trial process.
The full text of the review is at https://www.gov.uk/government/publications/review-of-the-efficiency-and-effectiveness-of-disclosure-in-the-criminal-justice-system.
The Justice Select Committee’s report on this issue, published in July 2018, is at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85902.htm
Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board
In November 2015, I noted in this blog the critical report by Sir Bill Jeffrey on standards of criminal advocacy. I also noted the consultation paper on the subject issued by the Government.
In June 2018, the SRA and the BSB published two reports on the subject.
The first report explores the views of the judiciary on the current quality, provision and regulation of advocacy within the criminal courts. The Judicial Perceptions Report, involved in-depth interviews with 50 High Court and circuit judges.
Key findings were:
- While judges viewed the current quality of advocacy as competent, some felt that standards were declining in some areas, especially in relation to core courtroom skills such as case preparation and dealing with some witnesses.
- Advocates’ skills in dealing with young and vulnerable witnesses are largely improving.
- The most commonly cited barrier to high quality advocacy was advocates taking on cases beyond their level of experience.
- Judges were uncertain over when, and how, they should report poor advocacy to regulators.
The second report arose from a Thematic Review of Criminal Advocacy, undertaken by the SRA. It was informed by data gathering and interviews with 40 solicitors’ firms actively involved in providing advocacy by solicitors within the courts.
Key findings of the SRA’s thematic review included:
- Firms use in-house solicitors to support the vast majority of criminal work in magistrates’ courts and youth courts (90 percent), and 29 percent of work in the Crown Court.
- The solicitors’ advocacy market is dominated by smaller firms and increasingly ageing individuals, while the number of new entrants to the market is falling.
- Levels of complaints regarding advocacy work are relatively low (22 recorded complaints in two years across all 40 sample firms).
- Approaches to training are inconsistent, with its delivery often infrequent, limited or not planned.
To me, the most concerning finding is that those doing this work are aging and are not currently being replaced by younger colleagues. It may be assumed that the cuts to criminal legal aid have had an impact on this.
Building upon the findings of both reports the SRA will be undertaking further work to understand the work of solicitor advocates. The Bar Standards Board also intends to publish its strategy for assuring the quality of advocacy shortly.
The reports can be accessed at https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/regulators-publish-reports-into-criminal-advocacy-standards/
or https://www.sra.org.uk/sra/how-we-work/reports/criminal-advocacy.page
Transforming administrative justice – current projects: progress reports
Information about the progress of the Transformation: Courts and Tribunals 2022 programme has been emerging from HMTCS. (See this blog October 2 October 2018).
In this note I look in a little more detail at projects in the administrative justice area.
In their recent progress update, HMCTS listed 5 projects that were either started or in prospect relating to administrative justice. These were:
- Upper Tribunal: Building the IT infrastucture to enable new digital ways of working across Upper Tribunal.
- Social Security and Child Support (SSCS): Establishing a new, digital process to improve the experience of appellants, allowing them to submit, track and manage their appeal online. Pilot projects are already been trialled in a number of venues.
- Immigration and Asylum Chamber (IAC): Developing the administration of the Immigration and Asylum Chamber’s service so that it can adapt according to different needs of users. It will enable case resolution both online and by video.
- Employment Tribunals (ET): This project will use a combination of the tribunals authorisation and the civil money claims models to develop an ET service that can change the way it works according to what the user needs. This will include the ability to resolve cases online and by video.
- Specialist Tribunals: The project will establish new ways of working across the tribunals, developed on a tribunal-by-tribunal basis. This includes the Pilot project enable appeals to be made to the Tax Tribunal on-line, which are being tested and evaluated.
Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review
In June 2018, I noted here the critical report from the National Audit Office – published in May 2018 – on the Transformation: Courts and Tribunals Programme 2022.
The NAO report was reviewed by the Public Accounts Committee , which took evidence from the Ministry of Justice and HM Courts and Tribunals Service. In July 2018, it published a pretty brutal report which listed a number of concerns about the programme and set out a number of recommendations on the way forward.
The PAC found, in summary:
- It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
- It found that HMCTS had failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes.
- Despite revising the timescale, it thought that HMCTS’s imperative to deliver at such a fast pace risked not allowing time for meaningful consultation or evaluation and could lead to unintended consequences.
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The Committee thought HMCTS had not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable.
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It found that, one third of the way through the programme, the Ministry of Justice still did not understand the financial implications of its planned changes on the wider justice system.
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The Committee remained concerned that the Ministry of Justice was taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.
In relation to findings 1, 2 and 4 above, the Committee wanted HMCTS to start producing update reported on a regular 6 month basis, starting in January 2019.
In relation to finding 3, it wanted, by November 2018, HMCTS to publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.
In relation to findings 5 and 6 it recommended regular updates from the Ministry of Justice, again starting in January 2019.
The Government has just announced that it has agreed to all the PACs recommendations.
As I said in my original comment on the report from the National Audit Office, my personal view is that it is essential that the justice system is modernised. Doing nothing is not an option. While stern criticism may well help to ensure that the Director of the reform programme keeps her eye on the ball, I also think that it is important to support those working on the reform programme. Such harsh criticism could be extremely undermining of staff confidence and could paradoxically increase the chances of some of the negative outcomes listed by the Committee coming to fruition.
I will keep readers of the blog posted as and when new material is published.
The NAO report is at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/
The PAC report is at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm
The Government’s response is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746797/CCS001_CCS1018676736-001_Treasury_Minutes_Gov_Resp_43-58_Cm9702_Web_Accessible.pdf
Transforming family justice: current projects – progress reports
There are currently six projects associated with the Family Justice system.
1.Online divorce
This project aims to deliver a transformed national end-to-end digital service for individuals and their legal representatives to make an application to legally end their marriage or civil partnership and resolve associated financial issues.
The first stage – supporting applications for uncontested divorce, and allowing digital upload of marriage certificates – was rolled out nationally from 30 April 2018. By mid-September 2018, over 13,500 on-line applications had been received. Fewer than 1% of applications have contained errors that meant they needed to be resubmitted, compared to over 40% of the old paper forms.
The Government is now testing an online system, to be used by legal representatives, for Financial Remedy consent orders.
2 Online probate for personal applicants
This project aims to provide a digital, user-designed application form and a new case management system to actively manage probate applications. The project will create a simpler, digital process for users, as well as reducing the cost and time spent processing applications. To date the service has received 3,862 applications with just over 3,194 grants of probate having been issued.
3 Family public law
This project will make the family public law process more efficient, ensuring the court, parties and their representatives have access to the right information, at the right time, to help decide the best outcomes for children involved in public law cases.
In particular, it will allow evidence to be submitted and shared electronically and cases can be managed much more securely and effectively.
It will also allow orders to be written and produced in real time in court (in many cases), meaning that everyone leaves with immediate clarity on what has been agreed.
The first parts of the new system to be developed are now being tested.
4.Adoption
Following the first stage of the work on family public law, there is a project to digitise the adoption process for both public and private law cases, again developing systems to manage these cases more securely and effectively. Once all the parts are complete, they will fit together so that cases can move seamlessly from one to another.
The plan is for this work to start imminently and to run alongside the public law service development.
5. Court of Protection
This project will be to enable people using the Court of Protection to initiate and manage their cases online. This work will begin in Spring 2019.
6. Private Family Law
Later, the project will move to develop and implement systems and processes to enable private family law litigants to initiate and manage their cases online – again, fitting together seamlessly. This work is expected to begin in Summer 2019.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 