Suspension of the Transforming Compliance and Enforcement Programme (TCEP).
What is the point of going to court if, having obtained a judgement in your favour, you cannot get it enforced? This has long been recognised as a problem for the Civil Justice system.
Reforms to the relevant law were introduced in April 2014.
In this blog in June 2018 I noted the publication of a review of how the new rules relating to the enforcement of judgements were operating, based on the first full year of their operation. Reform of the legal basis of enforcement was an important part of the Transforming Compliance and Enforcement Programme, which was itself an important adjunct (though separately funded) of the Transforming our Justice System programme.
The aim of TCEP was that, through better investment in IT, enforcement would be able to be carried out more quickly and efficiently.
The Government has now announced that the TCEP is to be put on hold – the Ministry of Justice just does not have enough money to take the programme forward. While changes that have been made will continue to be implemented, further change and investment must wait.
This will be very disappointing news for those who would like to see significant improvement in enforcement work.
The announcement, made on 6 September 2018, is at https://www.gov.uk/government/news/compliance-and-enforcement-work-to-continue-unchanged
The functions of the family court: the need for joined-up policies?
Shortly before his retirement from the post of President of the Family Court, Sir James Munby gave an extremely interesting lecture at the University of Liverpool about what he regarded as the failings of the current family court system.
He developed two principal arguments. The first focussed on what might be called the core functions of the family court; the other offered a more ‘holistic’ vision for the family justice system.
In relation to the first, Sir James noted that the core functions of the family court involved three key issues
- determining questions of status – were a couple married or in a civil partnership or not;
- determining what should happen to the children of marriage; and
- determining the financial consequences of family breakdown.
He argued that the procedural rules and practices in relation to each of these questions were complex and resulted in potentially people having to go to court on more than one occasion to resolve their issues. Despite the unification of the family court under a single name, it did not and could not in practice operate as a ‘one-stop shop’.
It could be argued that these days questions of status were increasingly being determined on a ‘self-help’ basis (which would increase if the basic law on divorce were to be reformed and simplified) ; and that financial matters were being decided in special financial proceedings meetings taking place outside the formal court structure. Thus the courts were increasingly used for determining questions relating to children. But these trends should not mean that the issue of whether the family court could become more of a one stop shop should not be investigated more closely.
It was the second set of arguments – for a more holistic approach to family justice – that I found interesting. Sir James is a keen advocate of ‘problem-solving’ courts – courts that have the resources and expertise to try to deal with all the problems families may face (including, for example, criminal matters or public law issues such as immigration status) – so that families can obtain a secure basis on which they can build their future lives.
This is an interesting argument and reflects (although Sir James may not have been aware of this) research and policy development a number of years back which argued that people don’t have discrete problems (e.g. housing, or employment, or family – which are categories created by lawyers which don’t reflect how life is actually lived) but ‘clusters’ of problems. This led to interesting experiments, now regrettably abandoned for the creation of Community Legal Advice Centres or Community Legal Advice Networks, that could deal with clients in a ‘holistic’ faction.
These views are controversial, at least for lawyers, since they would mean cutting across long established categorisation of the justice system – into criminal, civil, administrative and family justice system – each with their own practices, procedures and traditions. For this reason, my hunch is that Sir James’ views may not be taken forward, at least in the short-term.
But I thought his arguments were rather refreshing, and worth thinking about.
You can read his lecture at https://www.judiciary.uk/wp-content/uploads/2018/05/speech-by-pfd-what-is-family-law.pdf
The future of Family Drug and Alcohol Courts
For a number of years, Family Drug and Alcohol Courts (FDAC) have existed in a small number of court locations in England. Inspired by a model developed in the USA, Judge Nicholas Crichton thought that such courts could offer a ‘problem-solving’ approach for families caught up in the justice system, because of the negative interactions between the use of drugs or alcohol and the treatment of children. If parents could be helped to kick their habits, it was argued, this might enable families to be kept together, rather than divided with children being taken into care.
Although judges and ministers like the concept, the roll out of the concept has been left very much to local initiatives. In 2015, a FDAC National Unit was created to support existing schemes (there are currently 10 teams, working in 15 courts, service families in 23 local authorities) and to encourage the development of new schemes.
In June 2018, the National Unit announced that it would have to close, as central government funding was being withdrawn from the Unit. Since then, a firm of solicitors has stumped up £12,500 for 3 years, and is leading a fundraising campaign to obtain the £250,000 needed to keep the Unit open.
The schemes themselves are also funded on a cash limited ad hoc basis. For example, in October 2017, £6m was awarded to the Tavistock and Portman NHS Foundation Trust to enable the work of FDAC teams to be extended to more boroughs in London. The grant was made from the Government’s Life Chances Fund.
There is evidence that, where they exist, schemes deliver savings to the taxpayer (by reducing the costs of keeping children in care, for example.) But it seems that there is still someway to go before use of the approach will be rolled out on a national basis, and funded on a secure recurrent basis.
Further information on the FDAC National Unit is at http://fdac.org.uk/.
News about the private funding initiative is at https://www.thetimes.co.uk/article/law-firm-steps-in-to-help-save-family-drug-and-alcohol-court-mtk6jrtxd.
News about the grant from the Life Chances fund is at https://tavistockandportman.nhs.uk/about-us/news/stories/problem-solving-family-drug-and-alcohol-courts-fdacs-support-more-families-6m-life-chances-grant/
Improving Immigration and Asylum procedures
Immigration and asylum is always controversial. People have strong view, both for and against current immigration policy and practice. But these policies are underpinned by a legislative framework (albeit a very complex one) and if we believe, as I do, that upholding the rule is an important societal value, then it is important that those impacted by our law on immigration and asylum should be able to rely on decisions that are made in accordance with the law, and that there should be rights of appeal where something has gone wrong.
For a number of years, however, the immigration and asylum appeals process has been under close government scrutiny. In the early part of the 21st century, the concern was with the huge numbers of immigration cases being taken on judicial review to the High Court. More recently, most of these cases were taken away from the High Court and transferred to the Immigration and Asylum chambers of the First Tier Tribunal and the Upper Tribunal.
However, numbers remained high. In this context, there were concerns that too many cases brought were unmerited, being used as a delaying tactic to postpone deportation; and that some of those providing advice and assistance in immigration cases were not providing a properly professional service.
As part of its major series of reports on the justice system, written to assist the Transformation of our Justice System programme led by HM Courts and Tribunals Service, JUSTICE, the all-party Human Rights group, has just published a report Immigration and Asylum Appeals – a Fresh Look. (I declare an interest, I was a member of the working party, chaired by Sir Ross Cranston, that wrote the report.)
In it they try to take a dispassionate look at the problems and challenges which face the immigration and asylum appeals procedure. Their approach is to look at each of the steps through which a case may go in order to identify difficulties and recommend practical change.
The report is quite detailed. In outline, it argues:
• Home Office refusal decisions The Working Party’s view is that better Home Office decision-making – with more emphasis on getting it right first time – is the key to delivering a better appellate system;
• The application process for immigration and asylum appeals. Here the working party argues that more detailed attention needs to be paid to the move to online processes. At the same time the working party addresses the issue of unsupervised, unqualified and poor quality representatives purporting to provide advice and assistance to appellants;
• Appeals against adverse decisions of the Home Office on immigration and asylum matters in the First-tier Tribunal (Immigration and Asylum Chamber). This examines the important role of tribunal case workers in moving cases forward. It also wants to see stronger judicial case management to improve tribunal efficiency.
• Hearings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). This section of the report focusses in particular on video-conferencing and video-hearings, recognising the potential advantages of these models. At the same time, the report stresses the fundamental principles that should govern any expansion in their use and where they will not be appropriate.
• Appeals to the Upper Tribunal (Immigration and Asylum Chamber), Judicial Reviewapplications and appeals to the Court of Appeal. This part of the report focusses on the multiple stages that may be gone through when seeking permission to appeal. The working party considered the tension between the important right of review in this jurisdiction and the pressure on the system that flows from too many appellate stages. While not recommending removing rights of appeal, the report outlines ways to streamline this process.
A key theme to emerge from the report is that there needs to be much better communication between the parties.The Working Party considers how this might be facilitated both at the pre-hearing stage and on a continuing informal basis.
Detailed recommendations are made on ways to improve the management of cases and to reduce the number of unnecessary appeals – to the benefit of all participants in the system and the administration of justice more generally.
The above note has been adapted from the report which is available at https://justice.org.uk/new-justice-working-party-report-on-immigration-and-asylum-appeals/
Diversity in the Judiciary: slow progress
The judicial diversity statistics were published on 12 July 2018. They are based in information as at 1 April 2018. The statistics show there has been further, albeit slow, progress in the appointment of women in judicial posts; there has been some progress, though less than for women, in the appointment of those from Black and Ethnic Minorities groups as judges. that:
- 29% of court judges and 46% of tribunal judges were female. 50% of non-legal members of tribunals were female.
- Around half of court judges aged under 50 are female. Females outnumber males among tribunal judges at all age groups under 60.
- 24% of Judges in the Court of Appeal and in the High Court were female.
- 41% of Upper Tribunal Judges were female.
- Since 2014 there has been a 5-percentage point increase in female representation among court judges.
- 8% of judges identified as BAME (7% of court and 11% of tribunal judges); non-legal tribunal members 17%
- BAME representation among court judges aged 40 or over (98% of judges) was only slightly below that of the working age general population in each age band, while BAME representation among tribunal judges was higher than that of the working age general population at all age bands from 40 and over. Non-legal members have considerably higher BAME representation than that of the working age general population at all age groups.
- A third of court judges and two thirds of tribunal judges are from non-barrister backgrounds.
- More than half of magistrates were female (55%)
- 12% of magistrates declared themselves as BAME.
- There were very few magistrates aged under 40 (4%) compared with 55% of magistrates who were aged over 60.
On 27 June 2018 (outside the period used for the report) the appointment of three Lady Justices and four Lord Justices of Appeal were announced. On 9 July 2018 the appointment of five High Court Judges were announced, three of which were male and two of which were female. These will be reflected in the statistics for 2019.
The full report is available at https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2018/
There are two major challenges relating to judicial appointments which have been aired recently.
First, there are concerns at the significant reduction in the numbers of Lay Justices who sit in Magistrates’ Court.
Second, there are concerns about unfilled appointments to the High Court, attributed to recent reductions in the pay and benefits associated with these appointments. This is an issue currently under review by the Senior Salaries Review Body. The outcome of the consultation is currently awaited. It was the subject of a recent speech given by the Lord Chief Justice.
See https://www.gov.uk/government/consultations/major-review-of-the-judicial-salary-structure
The Lord Chief Justice’s speech is at https://www.judiciary.uk/wp-content/uploads/2018/07/20180704-lcj-speech-mansion-house-speech.pdf
Preventing digital exclusion
A great deal of effort is currently being put into finding ways of using IT to deliver legal services, whether in the form of: providing legal advice and assistance to those who need it; conducting various types of legal activity/process on-line; dealing with disputes online.
In general, the modernisation of the practice and procedure of the law through IT is to be welcomed. At the same time, there are concerns that some of the most vulnerable in society may be excluded from this brave new world. They may not have easy access to computers, or the ability to use them. In rightly encouraging digital solutions, at the same time policy makers need to ensure that the most vulnerable are not left behind.
In a recent policy paper, the human Rights group JUSTICE has drawn attention to the importance of ensuring that people are not excluded from the rapidly developing digital legal world.
In their report Preventing digital exclusion from online justice (published in June 2018), they analysed the potential issues that those engaged in the reform of legal procedures need to bear in mind.
The report makes a number of recommendations, directed primarily at HM Courts and Tribunals Service. They include:
- Greater investment in “trusted faces” in “trusted places” i.e. services already providing digital support and internet access.
- Considering the specific challenges of providing support to the digitally excluded, especially hard to reach cohorts – including testing Assisted Digital services in regions where the internet may be difficult to access. (Assisted Digital envisages a flexible mix of telephone, webchat, face-to-face, and paper-based support services. HMCTS is commissioning a programme of work to evaluate what types of support and in what combinations works best.)
- Paying specific attention to highly digitally excluded groups, like homeless people and detainees.
- Designing online justice services with an independent “look and feel” to reflect the constitutional independence of the courts.
- Maximising the benefits of the “multi-channel” approach – helping people move with ease between digital access, phone assistance, face-to-face assistance, and paper.
- Ensuring online justice services cater for the most affordable and ubiquitous mode of digital interaction: mobile technology.
- Conducting end-to-end pilots of online justice services, learning from hearing and enforcement stages what is required at earlier stages.
- Researching how people behave in an online environment and choices between Assisted Digital channels.
- Collecting and making available the widest range of data possible to support research by external experts.
Internationally, there is a great deal of experiment going on with different forms of communicating advice and assistance. There are being kept under review by Professor Roger Smith who, with funding from the Legal Education Foundation, provides – among other things – an annual review of development in the use of IT to increase access to justice. He also writes a blog which looks in mor detail at specific initiatives relating to trying to improve access to justice – not just through the use of new technologies but also new ways of funding them such as crowd funding.
For those interested in how the application of new technologies might change ways in which the delivery of legal services are undertaken, this is an outstanding resource – full of links to detailed initiatives. At the same time, the need for realism in potential impacts is also stressed. It is important not always to believe the hype surrounding new applications.
The JUSTICE report is at https://justice.org.uk/new-justice-report-on-preventing-digital-exclusion/.
The Annual Reviews of digital delivery of legal services can be found at https://www.thelegaleducationfoundation.org/digital/digital-report.
Roger Smith’s blog on developments in Law, technology and Access to Justice is at https://law-tech-a2j.org/publications/
Also relevant is the report, published in July 2018, from the Centre for Justice Innovation, which also looks at public attitudes towards the greater use of IT in the justice system.
Supporting Exonerees
The adverse impact of being wrongfully convicted of a crime that you have not committee is obvious. But once the wrongful conviction comes to light, how should the state deal with those now exonerated. This detailed issues was the subject of a special report by JUSTICE, the Human Rights Organisation, in April 2018. (I am a member of the JUSTICE council but was not involved in this report.)
Way back in 1982, JUSTICE published a report, Compensation for Wrongful Imprisonment. Unfortunately, little has changed since then. Exonerees still do not receive the support they need to return to a normal life and are not properly compensated. A number of recent cases of wrongful conviction highlight the need to continue to address the issue and argue for change.
The new report makes it clear that, although monetary compensation may well be important, it is not just a question of money. Other types of support are needed as well.
The report makes 14 recommendations including:
- Better management of the transition from incarceration to release.
- The need for specialist psychiatric care for exonerees.
- The setting up of a residential service to provide practical and welfare support to exonerees.
- An independent body to determine whether applicants are eligible for compensation.
- Automatic compensation for wrongful imprisonment, subject to certain exceptions.
- An apology and explanation of the failure that leads to a quashed conviction and, where necessary, a public inquiry.
The full report is available at https://justice.org.uk/our-work/areas-of-work/criminal-justice-system/supporting-exonerees-ensuring-accessible-continuing-and-consistent-support/
Mental health and Fair Trial
Since 2015 the Human Rights group JUSTICE has produced a remarkable series of reports on different aspects of the justice system. (I declare an interest; I am a member of the JUSTICE Council.)
Their report Mental Health and Fair Trial was published in November 2017. in it, it outlined the precarious position vulnerable people may be in when confronted by the criminal justice system.
Since the JUSTICE reports are written by specialist sub-groups with specific knowledge of the issues raised, the recommendations they propose are aimed at dealing with practical challenges faced by those working in criminal justice. The available evidence suggests that people in the criminal justice system are far more likely to suffer from mental health problems than the general population.
The report argues that ‘argues that from first contact with the police through to sentence, there remain fundamental problems with the English justice system’s response to mental health. Left unaddressed the fair trial rights of many defendants may be undermined.’
The report makes over 50 recommendations for change grouped into the following broad categories.
1. The investigative stage – Mental health experts, not police officers, should be identifying people with vulnerability as a result of mental ill health or learning disability and those identified should have access to proper support.
2. Decision as to charge or prosecution – A specialist prosecutor should be appointed for each Crown Prosecution Service area who must make the charging decision in cases of vulnerability, assisted by up-to-date guidance and assessments.
3. Pre-trial and trial hearings – Trial processes can be bewildering and incomprehensible for those with mental ill health and learning disabilities. Magistrates’ courts, youth courts and the Crown Court should have a dedicated mental health judge with enhanced case management powers and responsibility for a case progression protocol.
4. Legal capacity tests – A capacity based test of fitness to plead and fitness to stand trial, placed on a statutory footing should be available in all courts and the “insanity” defence should be amended to a defence of ‘not criminally responsible by reason of a recognised medical condition’.
5. Disposal and sentencing – A Sentencing Guideline on mental health and vulnerability should be created and a broader range of disposals made available to sentencers to meet the needs of the case.
Although the report was launched with strong support from the Lord Chief Justice, it is not known whether the Government or other agencies mentioned in the report have actively taken forward these recommendations. But they deserve careful consideration.
The report is available at https://justice.org.uk/mental-health-fair-trial/
Enforcement of judgments
One of the challenges for the civil justice system is knowing how to enforce judgments made by the courts that money should be paid by the losing party to the winner. At the heart of this issue is the problem of whether someone cannot pay (because they just do not have the resources) or won’t pay (because they won’t).
The rules relating to enforcement agents working for both the High Court and County Court were amended with effect from April 2014, and a review of the first year of operation of the new rules was started a year later in 2015. The results of that review were published in April 2018.
The results of the review are not in themselves particularly startling though there are indications that the new rules are beginning to have some impact, both in relation to the behaviour of enforcement agents, and in encouraging people to come to an agreement before their possessions are actually seized for sale (the usual objective of enforcement action in civil cases).
This is very much work in progress. Indeed, a significant component of the big Transformation Programme is the Transforming Compliance and Enforcement Programme (TCEP) which is upgrading systems in HMCTS’s National Compliance and Enforcement Service, used to enforce court orders such as penalties and compensation. If this works, this will have impact across the whole of the justice system, not just civil justice, as it will also deal with fines and compensation orders made in criminal courts.
For the one year review, see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695833/one-year-review-bailiff-reform-web.pdf
Explanatory notes to Bills and Acts
Explanatory notes have been published alongside Bills and Acts for many years now.
There are legal purists who argue that no lawyer worth his/her salt should look at them; truly independent legal advice can only be based on the actual legislative words.
I completely disagree with this argument. In my view these notes are key to an understanding of what particular Acts of Parliament are about and are an essential ingredient in promoting the public understanding of law.
The Office of Parliamentary Counsel considered Explanatory Notes in a couple of short papers published in 2014 and 2015. (I missed them at the time.)
It is clear that there is no intention of abandoning the use of these Notes. Indeed, it is intended that their use and usefulness should be enhanced. A survey of users of legislation found that overwhelmingly the Notes were used by people consulting statutes on-line. At the same time, it also found that significant numbers of those using statutory material either did not know they existed or how to find them.
The two papers can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/322113/Explanatory_Notes_survey_Jul_2013_report.pdf
and https://www.gov.uk/government/consultations/explanatory-notes-for-bills-new-format
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 