Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Transforming the Justice System: the Prisons and Courts Bill 2017

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Enromous changes to the ways in which courts – both criminal and civil – and tribunals operate have already been foreshadowed in a number of policy documents published during 2016. Parts 2 to 4 of the Prisons and Courts Bill contain provisions that will give statutory authority to the changes that have been proposed.

The headline provisions may be set out as follows:

Part 2 creates new procedures in civil, family, tribunal and criminal matters.

It makes changes to court procedures in the Crown Court and magistrates’ courts to make processes and case management more efficient.

It allows some offenders charged with summary-only, non-imprisonable offences to be convicted and given standard penalties using a new online procedure.

It extends the use of live audio and video links, and ‘virtual’ hearings where no parties are present in the court room but attend by telephone or video conferencing facilities.

It makes provision which will apply across the civil, criminal and tribunal jurisdictions to ensure public participation in proceedings which are heard virtually (by the streaming of hearings), including the creation of new criminal offences to guard against abuse, for example by recording such stramed hearings.

It creates a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions.

It bans cross-examination of vulnerable witnesses  – in particular those who have been the subject of domestic abuse – in certain family cases.

It confers the power to make procedure rules for employment tribunals and the Employment Appeal Tribunal on the Tribunal Procedure Committee and extends the membership of the Committee to include an employment law practitioner and judge or non-legal member.

 

Part 3 contains measures relating to the organisation and functions of courts and tribunals.

It extends the role of court and tribunal staff authorised to exercise judicial functions giving the relevant procedure rules committees the power to authorise functions in their respective jurisdictions.

It abolishes local justice areas, enabling magistrates to be appointed on a national basis, not just to a specific local justice area.

It replaces statutory declarations with statements of truth in certain traffic and air quality enforcement proceedings.

It makes reforms to the arrangements for the composition of employment tribunals and the Employment Appeal Tribunal.

It enables the High Court to make attachment of earnings orders for the recovery of money due under a judgment debt, as far as practicable, on the same basis as in the County Court.

Part 4 contains measures relating to the judiciary and the Judicial Appointments Commission.

It enables more flexible deployment of judges by enabling them to sit in different jurisdictions.

It brings the arrangements for the remuneration of judges and members of employment tribunals – currently undertaken by the Secretary of State for Employment – under the remit of the Lord Chancellor.

It rationlises the roles of  judges in leadership positions who will support a reformed courts and tribunals system. (This includes provision to abolish the statutory post of Justice Clerk; this role will continue, but those qualified to be Clerks will also be able to undertake analogous work in other court/tribunal contexts.)

It  gives the Judicial Appointments Commission the power to carry out more work (not directly related to judicials appointments) on a cost-recovery basis.

Source, Explanatory Notes to the Prisons and Courts Bill 2017, available at https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/en/17145en02.htm

Prison Reform: the Prison and Courts Bill 2017

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The Prison and Courts Bill 2017 is a major piece of proposed legislation which aims to give effect to major reforms of both the prison service and the work of courts and tribunals.

The note deals with the first item – reform of the prison service.

The main policy objectives for prison reform were set out in the White Paper Prison Safety and Reform which was published in November 2016 and noted in this blog on 23 November 2016.

A good number of the proposed reforms do not actually require new legislation. They can be achieved by changes to the ways in which prisons are run, or by changes to the Prison Rules. But key changes do require legislation. These are dealt with in Part 1 of the new Bill.

The major changes may be set out as follows:

  1.  The Bill will create a statutory purpose of prisons and updates the existing duties of the Secretary of State in relation to prisons (amending those created in the Prison Act 1952 (“the 1952 Act” ))

    The Bill provides that “in giving effect to sentences or orders of imprisonment or detention imposed by courts, prisons must aim to—

    (a) protect the public,

    (b) reform and rehabilitate offenders,

    (c) prepare prisoners for life outside prison, and

    (d) maintain an environment that is safe and secure.”

  2. It also imposes a duty on the Secretary of State to make an Annual Report to Parliament on the work of the prison service, measured against the criteria set out in the Bill.
  3. It creates Her Majesty’s Inspectorate of Prisons, comprising Her Majesty’s Chief Inspector of Prisons (an existing statutory office) and staff who carry out functions on the Chief Inspector’s behalf, places additional reporting requirements on the Chief Inspector in relation to prisons, and provides powers of entry and access to information to facilitate the exercise of the Chief Inspector’s statutory inspection functions in relation to prisons.
  4. It establishes the Prisons and Probation Ombudsman (“PPO”) – currently a non-statutory appointment – as a statutory office, and provides the Secretary of State with the powers to add its remit.
  5. In relation to prison security, the Bill will enable  public communication providers (“PCPs”) – for example, mobile phone network operators – to be authorised to interfere with wireless telegraphy to disrupt the use of unlawful mobile phones in custody.
  6. It also  makes provision for the testing of prisoners for psychoactive substances (as defined in the Psychoactive Substances Act 2016) within prisons.

For further detail about this Bill and links to relevant material, go to https://www.gov.uk/government/news/prisons-and-courts-bill-what-it-means-for-you

 

 

Written by lwtmp

March 8, 2017 at 10:51 am

Posted in Chapter 5

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Determining the limits of Executive Power: the Miller case

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There is no doubt that 24 January 2017 was a big day for the Supreme Court. That was the date on which 11 Justices handed down their decision in R (on the application of Miller and another)  v Secretary of State for Exiting the European Union [2017] UKSC 5.
At issue was a fundamental constitutional question: could the decision of the UK to exit the European Union be implemented by the Government itself exercising executive power deriving from the Royal Prerogative, or did the process have to be authorised by Parliament passing a Bill which would give the Government the power to start the exit process.
The Government argued – in outline – that the power of the UK Government to enter into international treaty obligations is something that is exercised by exercise of prerogative powers. Thus, equally the Government argued – the power to disengage from treaty obligations could be done by exercise of those same prerogative powers.
Those who challenged the Government’s position argued that because accessing the EU had been accompanied by the enactment of the European Communities Act 1972, (which gave domestic effect to the UK’s obligations under the then existing EU Treaties, together with subsequent statutes, which gave effect to and related to later EU Treaties, and the European Union Referendum Act 2015) the Act of 1972 had created legal rights and obligations in our domestic law. Owing to the well-established rule that prerogative powers may not extend to acts which result in a change to UK domestic law, and withdrawal from the EU Treaties would change domestic law, the Government cannot serve a Notice unless first authorised to do so by an Act of Parliament.
By a majority of 8 – 3, the Supreme Court upheld the decision of the High Court that the process of starting Brexit could not be started by the exercise of the prerogative, but must be authorised by an Act of Parliament.
The Supreme Court acknowledged that the 2016 referendum was an event of great political significance. However, its legal significance had to determined by what Parliament included in the statute authorising it, and that statute simply provided for the referendum to be held without specifying the consequences.
The change in the law required to implement the referendum’s outcome must be made in the only way permitted by the UK constitution, namely by legislation.
There has been a great deal of comment – much of it vitriolic and ill-informed – on the decisions of the courts. Those who argued in favour of the Government appeared to have forgotten some basic constitutional principles.
  • The Sovereignty of Parliament means that Parliament ( not the Executive) has the power to make and unmake laws (indeed that was a key argument of the case for Brexit – that the UK had ceded too much law making power from the UK Parliament to the EU).
  • The Separation of Powers means that there are checks and balances in our constitutional settlement, which implies that the judiciary must have the independence to reach decisions that the Government of the day may not like.

It can be argued that the Secretary of State for Justice and Lord Chancellor Mwas too slow to uphold her obligations under section 3 of the Constitutional Reform Act 2005 to uphold the continued independence of the judiciary – certainly in the immediate aftermath of the initial High Court decision in which considerable abuse was heaped upon the judges. Those who accused the judges of ‘being out of touch’ showed that they had no understanding of what the role of the judges is and should be in a parliamentary democracy.

Of course, those in power who find that they are prevented from doing what they would like may be expected to rail against those who have put barriers in their way – recent events in the USA bear witness to this proposition. But it should be remembered that without checks and balances, government leaders may well be tempted to take more and more power to themselves, with potentially extremely serious consequences for the people they seek to govern.

One further question that this case provokes is whether the current mix of constitutional principle – the precise limits of which are unclear – and law is the mot appropriate basis on which the Constitution of the UK should be founded. Is one implication of the Miller case that the time has now come for the UK to adopt a written constitution?

Written by lwtmp

February 27, 2017 at 10:08 am

Reform of the Youth Justice System

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In 2007, the average monthly number of persons under the age of 18 held in custody was 2909. Today that average monthly figure is about 900. Generally far fewer young people are brought into the criminal justice system than was the case 10 years ago.

At first sight it might seem that these dramatic falls in numbers – which do not  get much publicity – should be a good news story. But it is not as simple as the. The figures mask other problems about the overall state of the youth justice system. Once children and young people are in custody the outcomes are not good enough. Levels of violence and self-harm are too great and reoffending rates are unacceptably high.  69% of those sentenced to custody going on to commit further offences within a year of their release.

This raises questions about what more can be done to ensure that young people do not enter the system in the first place, and if they do are given every opportunity to turn their lives around by receiving appropriate education and training to enable them to start leading productive lives in society.

The Government has taken a number of measure to address these problems.

In 2016, they commissioned Charlie Taylor – a former head teacher and child care expert – to undertake a review of the Youth justice system. His report was published in December 2016. The Government’s response to his report was published on the same day.

In a written statement to Parliament on 24 February, the Government now announced the next steps it is taking in response to that review.

First, it has appointed Charlie Taylor to be the new Chair of the Youth Justice Board – so that he can oversee the reforms he advocated.

Second the Government has announced that a new Youth Custody Service is to be established as a distinct arm of HM Prison and Probation Service, with a dedicated Director accountable directly to the Chief Executive.

Third there has been (yet another) review of the physical estate used for the detention of under 18s. It states bluntly that the time for reports is over – all those who know about this accept that the estate is not up to modern standards. What is needed is action to improve the estate.

Perhaps by comparison with the huge problems facing the prison service more generally – which new proposals for reform of the prison system are designed to address – youth justice is an issue on which it is hard to attract attention from the mass media. But it seems plausible to suggest that if you get the youth justice system working effectively, you may be able to reduce some of the pressures that might arise further down the line.

The Charlie Wilson Review is at https://www.gov.uk/government/publications/review-of-the-youth-justice-system

The Government response to the report is at the same page.

A summary of the Justice Secretary’s statement to Parliament is at https://www.gov.uk/government/speeches/youth-justice-update.

The report on the youth justice estate is at https://www.gov.uk/government/publications/youth-custody-improvement-board-findings-and-recommendations

 

Written by lwtmp

February 26, 2017 at 12:09 pm

Setting time limits to police bail

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In recent years there has been much complaint about the shadow can be cast over people’s lives when those people have become of interest to the police, but where the police do not have enough evidence to justify charging them with the committal of an offence. A number of well-known members of the public were on police bail for months, not knowing whether any further steps were going to be taken against them.

When she was Home Secretary, Theresa May decided that there had to be limits to the time any person could be made subject to police bail (technically known as ‘pre-charge bail’).

Part 4 of the Policing and Crime Act 2017 contains provisions which reflect this decision.

The Act amends PACE Act 1984 by creating a presumption that where the police decide to release a person without charging them, the release should not be subject to the imposition of bail, unless defined pre-conditions are satisfied.

The conditions are

  • Condition A is that there are reasonable grounds to suspect that the person on bail is guilty of the offence for which they were arrested and are on bail.
  • Condition B is that there are reasonable grounds for believing either that further time is needed for the police to make a charging decision under police-led prosecution arrangements (where the person has been bailed for that purpose) or that further investigation is necessary.
  • Condition C is that there are reasonable grounds for believing that the charging decision or investigation (as applicable) is being conducted diligently and expeditiously.
  • Condition D is that releasing the person on bail continues to be both necessary
    and proportionate in all the circumstances of the particular case (having regard, in particular,to any bail conditions that are or would be imposed).

Where the bail pre-conditions are satisfied, the period of bail will normally by limited to 28 days (3 months in Serious Fraud Office cases) though the period may be extended to three months by senior police officers, with the possibility of further extensions approved by the magistrates.

Further information is available at https://www.gov.uk/government/collections/policing-and-crime-bill

Written by lwtmp

February 24, 2017 at 12:34 pm

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Policing and Crime Act 2017

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The Policing and Crime Act 2017 received the Royal Assent at the end of January 2017. It is a large piece of legislation covering a wealth of topics. The Home Office Press Release summarises the  main provisions as follows. The Act will:

  • place a duty on police, fire and ambulance services to work together and enable police and crime commissioners to take on responsibility for fire and rescue services where a local case is made
  • reform the police complaints and disciplinary systems to ensure that the public have confidence in their ability to hold the police to account, and that police officers will uphold the highest standards of integrity
  • further support the independence of HM Inspectorate of Constabulary and ensure that it is able to undertake end-to-end inspections of the police
  • enable chief officers to make the most efficient and effective use of their workforce by giving them the flexibility to confer a wider range of powers on police staff and volunteers (while for the first time specifying a core list of powers that may only be exercised by warranted police officers)
  • increase the accountability and transparency of the Police Federation for England and Wales by extending its core purpose to cover the public interest and making it subject to the Freedom of Information Act 2000
  • reform pre-charge bail to stop people remaining on bail for lengthy periods without independent judicial scrutiny of its continued necessity
  • stop the detention in police cells of children and young people under 18 who are experiencing a mental health crisis (and restrict the circumstances when adults can be taken to police stations) by reforming police powers under sections 135 and 136 of the Mental Health Act 1983
  • amend the Police and Criminal Evidence Act 1984, including to ensure that 17-year-olds who are detained in police custody are treated as children for all purposes, and to increase the use of video link technology
  • amend the Firearms Acts, including to better protect the public by closing loopholes that can be exploited by criminals and terrorists
  • make it an offence to possess pyrotechnic articles at qualifying musical events
  • reform the late night levy to make it easier for licensing authorities to implement and put cumulative impact policies on a statutory footing
  • better protect children and young people from sexual exploitation by ensuring that relevant offences in the Sexual Offences Act 2003 cover the live streaming of images of child sex abuse
  • increase the maximum sentence from 5 to 10 years’ imprisonment for those convicted of the most serious cases of stalking and harassment
  • confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences which would not be offences today, and on those persons still living who have had the conviction disregarded under the provisions of the Protection of Freedoms Act 2012

 In anticipation of these changes, a number of revisions to the PACE Codes of Practice were also presented to Parliament in December.

For further detail on the Policing and Crime Act 2017, go to https://www.gov.uk/government/collections/policing-and-crime-bill.

The current texts of the  PACE codes as amended can be found at https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice.

Written by lwtmp

February 24, 2017 at 12:13 pm

Independent Office for Police Conduct

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Following a review of the governance arrangements for the Independent Police Complaints Commission, and a Government Consulation held in 2015, the Policing and Crime Act 2017 provides in section 33 and Schedule 9 for the Commission to be renamed the Independent Office for Police Conduct. It will continue to investigate complaints against the police, but will have a clearer governance structure.

This change is in part a response to survey evidence showing a lack of public confidence in the current IPCC.

The review is at https://www.gov.uk/government/publications/governance-of-the-independent-police-complaints-commission.

The consultation, published on the same date, is at https://www.gov.uk/government/consultations/reforming-the-independent-police-complaints-commission-structure-and-governance.

 

Written by lwtmp

February 21, 2017 at 5:52 pm