Controlling trolling? A job for the Law Commission
Although the Law Commission’s 13th Programme of Work was announced only in December 2017, the Commission has already had those plans amended by the Government asking whether changes to the law are needed to ensure that internet trolling can be controlled. More specifically the government has asked the Law Commission to review the laws around offensive communications and assess whether they provide the right protection to victims online.
This is a serious problem. Research shows that nearly a third of UK internet users were on the receiving end of trolling, harassment or cyberbullying in 2017.The Commission will review the current laws and set out how they apply to online communications. Its work be informed by developing Government policy in the Government Digital Charter. (See https://www.gov.uk/government/publications/digital-charter published in January 2018.)
Among issues to be addressed are the following:
-
How the Malicious Communications Act 1988 deals with offensive online communications
-
How the Communications Act 2003 deals with online communications
-
What “grossly offensive” means and whether that poses difficulties in legal certainty
-
Whether the law means you need to prove fault or prove intention to prosecute offensive online communications
-
The need to update definitions in the law which technology has rendered obsolete or confused, such as the meaning of “sender”
-
How other parts of the criminal law overlap with online communications laws
It is intended that thw work should be undertaken swiftly. A consultation paper is expected within 6 months.
For further detail see https://www.lawcom.gov.uk/government-asks-law-commission-to-look-at-trolling-laws/
Divorce on-line: recent developments
On January 30 2018 the Government announced that a fully online divorce application process is being tested across England and Wales for the first time. (It had been trialled in a small number of areas from 2017.)
The initial pilot allowed people seeking a divorce to use an online system which offered prompts and guidance to assist them in completing their application. But they still had to print off the form and send it to the court.
HM Courts & Tribunals Service (HMCTS) has now extended the service so that the application is now fully digital – submitting the form, sending the relevant documents, and payment. In the first week HMCTS received 130 online applications.
According to HMCTS the online system has drastically cut the number of applications being returned because of errors – showing a 90% improvement from paper forms. This is particularly important given the increasing numbers seeking a divorce without using a lawyer to help them.
Users of the new service seem to like it. It has already gained positive feedback with people welcoming the simplified, streamlined and easy to understand system which delivers their application instantly – without the worry of it being lost in the post.
The next stages will include making the system available for use by legal representatives. A date has not yet been publicly announced for this further development.
For further detail, see https://www.gov.uk/government/news/hm-courts-and-tribunals-service-tests-fully-digital-divorce-application
Experience in other contexts suggests that once up and running, use of on-line application procedures will increase very rapidly. Indeed, people will wonder why this development had not occurred years ago. This sort of development is at the heart of the Transformation of our Justice System reform programme.
Disclosure of evidence: planning for change – first steps
In July 2017, the Inspectorates of the Crown Prosecution Service and Constabulary published a very critical report on the failure of police and prosecution services to apply the rules relating to the disclosure of evidence held by police/prosecutors to defence teams. (I noted the report here in November 2017).
Since then, it seems that the issue of the failure of the police and prosecution to disclose evidence to defence lawyers which might undermine or weaken the prosecution case has received almost daily attention in the mass media. A number of well publicised cases have emerged in which those accused of serious crimes (in particular rape) have found out only at a late stage that evidence which undermines the case against them is available.
A number of reasons have been advanced for these failures. For example, it is argued that the current law was put in place before the arrival of mobile phones and the vast amounts of electronic data that is generated on phones and tablet.
It is also argued that police and prosecutors lack the resources to comb through all this information to see what might by relevant.
This is an extremely serious issue which goes to the heart of the criminal justice system. People must feel that the system is fair and that those who run it are complying with the rules.
Clearly both the police and CPS are taking this issue seriously. The first tangible step has recently been taken. At the end of January 2018, a plan was published by the Crown Prosecution Service (CPS), the National Police Chiefs’ Council (NPCC) and the College of Policing. This sets out measures designed to improve practice in this area.
These first steps include:
- Reviewing disclosure training with the College of Policing
- Developing a cadre of specialist and experienced disclosure experts in every force
- Providing all multimedia evidence from the CPS to the defence digitally
- Putting in place specific improvement plans for each force and CPS area
- Setting up a system for the CPS and police to better identify and deal with cases with significant and complex disclosure issues.
This will not be the last word on this subject. Much work has to be done to ensure that all those engaged in the criminal justice system actually act in accordance with the statutory rules on disclosure. But it is an important first step.
The text of the plan can be found at http://www.npcc.police.uk/Publication/National%20Disclosure%20Improvement%20Plan%20January%202018.pdf
Administrative justice: research review
This links to an important publication from the UK Institute for Administrative Justice:
Research Roadmap: Where we’ve been and where we need to go with administrative justice research
Parole Board – review of procedures
The decision by the Parole Board to release the London Cab Driver John Warboys – who had been convicted of raping a number of his customers – has generated a great deal of publicity. Many of the challenges in that case arose from the fact that Warboys had been sentenced to an Indeterminate Sentence, which meant that he could continue to be detained after the period set by the judge as punishment for his crime, where it was anticipated that his release would be a danger to the public. (The law relating to such sentences was changed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.)
The Government has now announced that there is to be a review of the practices and procedures of the Parole Board. This is to include a review of how the work of the Board impacts on the victims of the crimes committed by those the Board is considering for release.
The terms of the reference are as follows:
This review will consider the case for changes in law, policy and procedure in relation to Parole Board decision-making. It will include an examination of the transparency of the process and reasons for parole decisions, and how victims are appropriately engaged in that process. It will take account of the interests of justice, public confidence in the system and the impact on victims. The review will draw on the views and experience of victims, practitioners and international best practice.The review will focus on the following areas:1. The law, policy, guidance and practice relating to challenges to Parole Board decision making, specifically whether there should be a mechanism to allow parole decisions to be reconsidered.2. The transparency of Parole Board decision making, including:whether the outcomes of Parole Board decisions should be published or otherwisedisclosed;whether the reasons for those decisions should be published, and if so to what extent; andwhether there are any other changes that should be made in order to contribute to greater transparency.3. Victim involvement in Parole Board hearings:to review the relevant entitlements outlined in the Victims’ Code to determine whether improvements should be made to how victims are currently involved in and contribute to Parole Board hearings;what improvements should be made to how their involvement is facilitated.4. Arrangements for communicating with victims:to review whether the current entitlements for victims who qualify under the Domestic Violence, Crime and Victims Act 2004 for the Victim Contact Scheme are adequate, including in relation to Victim Personal Statements and licence conditions;to review whether improvements can be made to the way that the scheme operates in practice, in particular the process by which victims are notified of their entitlements and of decisions; whilst respecting the victim’s preference for how they are contacted;to consider the question of ongoing contact with victims who are eligible for the Victim Contact Scheme but have previously opted out; andwhether there need to be new entitlements or procedures for victims not covered by the statutory scheme.
Financial Remedies Courts: developments in Family Justice
2018 will witness the start of a new approach to dealing with the financial matters that can arise when married couples are divorced. The current President of the Family Division, Sir James Munby has set out his ambition that disputes about financial matters should be treated quite separately from the process of getting the divorce itself.
To this end, a series of pilots is being launched in February 2018 in which, in three trial areas of the country, financial matters will be dealt with by specially trained judges in a reduced number of family court hearing centres. The courts undertaking this work will be known generally as Financial Remedies Courts.
The new system will initially be operated on a trial basis in three areas of the country: London, the Black Country and South East Wales.
The President clearly hopes that expansion of the scheme to other parts of the country will take place rapidly.
In a recent Circular, Sir James wrote:
My core ambition for financial remedy work is to improve significantly both the application of procedural justice and the delivery of substantive justice.Procedural justice will be bettered by the appointment of a cadre of specialist judges to the Financial Remedies Court (FRC) and by a process of early allocation of a case to the right judge at the right level at the right place, so as to ensure maximum efficiency. It will be bettered by the application and enforcement of standard directions and interim orders and by ensuring that FDRs (where the majority of cases settle already) are conducted with consistency, with sufficient time being allowed not only for the hearing but also for judicial preparation.The delivery of substantive justice will be improved by an improved programme of judicial training; by the reporting of judgments in small and medium cases by the judges of the FRC to promote transparency and consistency; and by ensuring that sufficient time is allowed for the preparation and conduct of final hearings.An increase in transparency will result in increased predictability of outcome, which in turn should lead to a higher rate of settlement or, for those cases that do not settle, a reduced rate of appeals.
Reshaping the Court estate: a further consultation
The programme of transformation of the justice system depends on the closure of a significant number of existing court buildings and reinvestment of the savings of running costs and the capital receipts from buildings that have been disposed of in a smaller but more efficient court estate.
In January 2018, Her Majesty’s Courts and Tribunals Service published a Consultation Paper setting out the basic principles on which detailed plans are now being developed. At the same time there were 5 more specific papers setting our proposals for closing courts in a number of areas, including Cambridge, the Thames Valley, London and Lancashire. There is nothing particularly new in this paper, though it does give interesting accounts of a number of initiatives currently on-going to deliver new ways of working in courts and tribunals.
The key aims are that there should be
- more videolinks and virtual hearings;
- digital service delivery, with a major reduction in the use of paper files;
- flexible opening hours;
- improved service delivery with much more work being undertaken online.
The number of court buildings will be reduced from around 530 buildings (a decade ago) to a total of 239 buildings in 2018. It is accepted that this will lead to some increase in travel time to reach those buildings, but the vast majority will still, according to HMCTS figures, still be within 2 hours travelling distance. As much work will in future be delivered without the need for lawyers and parties to be present in court, it is argued that this will further mitigate any inconvenience. What will be important will be to ensure that cases listed for a particular day are actually dealt with on that day.
The Consultation Paper reminds readers that the transformation policy is designed
- to enable existing and new buildings to be much more flexible in the ways in which they can be used;
- to ensure better public facilities – e.g. waiting rooms, rooms for clients to consult with their advisers;
- to ensure that the vulnerable are able to feel confident about using court facilities;
- to include of modern ICT to enable more work to be done online
- to support the needs of all the professionals who use the courts;
- to move towards an estate that provides dedicated hearing centres, while seeking
opportunities to concentrate back office functions in a smaller number of centres where they can be carried out most efficiently.
There will be resistance to some of these ideas. For example, the Bar has already argued against more flexible opening hours. It is said that this could be discriminatory against women barristers who may find it hard to take cases outside traditional working hours. While this is an issue that must be addressed, such arguments fail to acknowledge the fact historically the Court Service has only paid lip-service to the idea of delivering a service to court users. Many parties to litigation may find it more convenient to attend hearings outside of 10-4, Mondays to Fridays. The transformation programme provides a challenge to those who work in the courts to consider how they can deliver the service that clients want, when they want it.
The Consultation runs until 29 March 2018. The documentation can be found at https://consult.justice.gov.uk/digital-communications/transforming-court-tribunal-estate/
New Lord Chancellor and Secretary of State for Justice: David Gauke MP
In the good old days, Lord Chancellors came and went comparatively infrequently. Unlike their possibly more ‘political’ colleagues, Lord Chancellors seemed to float above the hurly-burly of day-to-day politics.
The reforms to the post of Lord Chancellor, introduced by the government of Tony Blair, resulted in major changes to the role and thus the office holder.
No longer did they have to be in the House of Lords. They no longer had to be professionally qualified as lawyers. In the last 2 and a half years, there have been no fewer than 4 Lord Chancellors.
The latest appointee, in January 2018, is David Gauke. Unlike his immediate predecessors, he is qualified as a Solicitor and has had experience of private legal practice.
I do not anticipate major changes of policy to arise from this new appointment. The Ministry of Justice is engaged in major programmes of work on the justice system, the prison system, legal aid – among others. What I think is needed is a period of stability to ensure that these important initiatives are actually delivered.
For further information see https://www.gov.uk/government/ministers/secretary-of-state-for-justice
You can read the Lord Chancellor’s speech at his swearing in ceremony at https://www.gov.uk/government/speeches/lord-chancellor-swearing-in-speech-david-gauke
You can see him deliver this speech at https://www.judiciary.gov.uk/announcements/live-stream-swearing-in-of-the-new-lord-chancellor-the-right-honourable-david-gauke-mp/
Law Commission: 13th Programme announced
After delay resulting from the calling of the General Election in May 2017, the Law Commission has just (14 December 2017) announced its latest programme of law reform projects which it intends to take forward over the next three years.
The list is an interesting one containing a wide variety of topics.
A number of these can be see to be a response to technological change. Projects on Automated Vehicles, Electronic Signatures, Intermediated Securities or Smart Contracts would not have been on such a list, even three years ago (when the 12th Programme was published).
The general area of property law attracts a number of projects. These include: Modernising Trust Law for a Global Britain, Registered Land and Chancel Repair Liability, Museum Collections, Residential Leasehold, and Unfair Terms in Residential Leasehold.
There is a number of projects that will examine how current processes, which affect the public, might be reformed. These include: Administrative Review, Employment Law Hearing Structures, and Simplifying the Immigration Rules.
Controversial issues concerning both the start and end of life are reflected in proposals to review Surrogacy and A Modern Framework for Disposing of the Dead.
In addition to these new projects, the Law Commission will continue to work on items brought over from the 12th Programme of work, including work on Sentencing, and Search warrants.
The Law Commission also lists a number of other topics which is considered for inclusion but which do not appear in the current programme.
Further details of all these projects can be found at https://www.lawcom.gov.uk/project/13th-programme-of-law-reform/
New administrative justice oversight body announced
This Press release and blog confirms the creation of the Administrative Justice Council – the body replacing the Administrative Justice Forum as the oversight body for the Administrative justice system in the UK. It has not yet started work. Progress will be noted here in due course.
UKAJI is pleased to hear that the new Administrative Justice Council has been announced. We have called for a new vision of administrative justice and an oversight body to work closely with UKAJI and other research-focused organisations to ensure that thinking, new initiatives and policy change are informed by empirical evidence. We look forward to working with JUSTICE, Sir Ernest Ryder, and colleagues on the new Administrative Justice Council.
See below for the official press release from JUSTICE and an article in the Law Society Gazette.
6 December 2017 – For immediate release
JUSTICE to host successor to the Administrative Justice Forum
JUSTICE has agreed to host the successor body to the Administrative Justice Forum.
It will be renamed the Administrative Justice Council (AJC) and will continue to advise government departments on administrative justice issues. Lord Justice Ernest Ryder, Senior President of Tribunals, has agreed to be the AJC’s chair.
View original post 1,004 more words
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 