Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Responding to Covid-19: the work of tribunals

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All parts of the English Legal System have been affected by Covid 19 – some more adversely than others. The criminal justice system in particular is under severe pressure – not all the result of covid.

By contrast, one sector of the justice system that has risen to the challenge of Covid particularly well is the Tribunals system. It has taken full advantage of new technologies, new ways of working, flexible approaches by judges, support staff and members of the public to ensure that its work has continued – in some cases more successfully than before Covid 19 struck.

In the latest edition of Tribunals Journal, which was published towards the end of March 2021, gives a first hand account, by different tribunal heads, of how they have coped with Covid over the past 12 months.

The outcome is truly impressive and shows how much can be done. Highly recommended read.

Of course, it is not yet clear how far the practices adopted over the past 12 months will continue after the pandemic has subsided. However, my view is that simply going back to the old ways of working, without careful analysis of the experience of the last 12 months, would be a seriously retrograde step.

See https://www.judiciary.uk/publications/tribunals-journal/ and click on the link for the Special Edition for 2021.

The latest edition of Tribunals

Equal Treatment Bench Book – 2021 revision

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The Equal Treatment Bench Book (ETBB) is the subject of frequent amendment. A Comprehensive revision was released in February, 2021..

The aim of the ETBB to increase judicial awareness and understanding of the different circumstances of people appearing in courts and tribunals.  It is designed to enable effective communication and suggests steps which should increase participation by all parties.

This new revision of the ETBB cites recent evidence regarding the experiences of different communities living in Britain today. It contains practical guidance aimed at helping make the court experience more accessible for parties and witnesses who might be uncertain, fearful or feel unable to participate.

There are practical tips on communicating with those speaking English as a second language or through interpreters, communicating with people with mental disabilities, a guide to different naming systems, and latest views on acceptable terminology.

There is new and expanded content on:

  • The impact of the COVID-19 pandemic on different groups and how to conduct remote hearings (on audio or video platforms) fairly
  • Welsh/English bilingualism and the right to speak Welsh in courts and tribunals in Wales
  • Reducing jargon and legalese
  • Assisting a litigant who has difficulty reading or writing
  • Extended guidance in relation to litigants-in-person (ie people representing themselves)
  • New entries in the disability glossary
  • Confidence in the courts of minority ethnic communities
  • Sensitivity if a witness is experiencing menopausal symptoms

Although intended primarily for use by judges in courts and tribunals, its contents deserve to be widely known appearing in a court or tribunal or with an interest in how the legal system works. It is of particular relevance to those who may be seeking a judicial appointment.

The full text of the 2021 revision is at https://www.judiciary.uk/announcements/equal-treatment-bench-book-new-edition/

Written by lwtmp

April 7, 2021 at 11:08 am

Legal services regulation: turning point, or point of no return?

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This is a really challenging analysis of how the legal profession should engage much more effectively with regulatory reform. Prof Mayson fears that if they do not, they have much to lose.

StephenMayson

Earlier this month, I was invited to give the Wickwire Memorial Lecture at the Schulich School of Law at Dalhousie University in Canada. Frederick B. (Ted) Wickwire QC, a graduate of the School, was the President of the Nova Scotia Barristers’ Society. He died in office at the age of 52 in 1991.

Ted Wickwire was noted for his commitment to public service and to uncompromising professionalism. Each year, a lecture is held in his memory, focusing on an aspect of professional ethics.

It was a great honour to deliver this year’s Lecture, albeit with the constraints of virtual presence. The full text of the Lecture is available for download here.

The Lecture presented an opportunity for me to reflect on some of the underlying themes of my independent review of legal services regulation in England & Wales. In particular, I explored the emerging and increasingly uncomfortable tension between…

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Written by lwtmp

March 30, 2021 at 11:25 am

Posted in Uncategorized

Reforming the Parole Board: first steps

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In October 2020 a ‘root and branch review’ of the Parole Board was announced.

One part of this review was a public consultation on the question of whether hearings of the Parole Board should be held in public. The outcome of this consultation has now been published (8 February 2021).

At present, the Parole Board Rules forbid Parole Board hearings from taking place in public. In responses to the Consultation, a minority of respondents argued that all hearings should be open. However, a majority thought this would be impracticable. Too many hearings involved the consideration of matters that it would not be in the public interest to disclose.

The Government has now concluded that there might be limited circumstances in which an open hearing might be appropriate. It has therefore decided that the Parole Board Rules should be amended to at least make it possible for a hearing to take place in public.

It is likely that the relevant rule amendment will be made in the coming months. Meanwhile, work continues on the other that formed part of the root and branch review. Further announcements are anticipated later in 2021.

I wrote a blog item on the review and its scope when it was announced in October 2020. See https://martinpartington.com/2020/10/31/root-and-branch-review-of-the-system-of-parole-and-the-work-of-the-parole-board/

The Report on the outcome of the Consultation on making hearings open to the public is at https://www.gov.uk/government/consultations/root-and-branch-review-of-the-parole-system

Written by lwtmp

February 10, 2021 at 4:14 pm

Posted in Chapter 5

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Repeal of the Fixed-term Parliaments Act: draft Bill published

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The Fixed-term Parliaments Act 2011 was enacted as part of the agreement reached between the Conservative and Liberal Democrat Parties, when, in 2010, they formed the coalition government led by David Cameron. The idea of fixed-term parliaments had been around for many years. The problem has been that when a political party becomes a government, statutorily fixed-terms reduce the freedom Prime Ministers have long had to decide when they wanted to call an election would be constrained. Those in power have been reluctant to give up this freedom. (There is of course an overall limit – that an election much be called at least every 5 years.)

In 2011, the creation of the Coalition Government changed the political landscape. It was felt that, without setting a timetable for elections, there could be considerabe political instability if the majority partner in the coalition had the freedom to call an election when the opinion polls looked favourable, which could potentiallyhave left the minority in the lurch. The General Election 2015 was conducted within the framework laid down in the 2011 Act.

In 2017, the statutory framework was shown to be considerably less rigid than the title of the Act might have suggested. Mrs May, who had become Prime Minister in 2016, following the Brexit Referendum, thought good polling figures would give her a chance of establishing a more stable Government than that which followed the 2015 election. She was able to hold an election in 2017 because the Act provided that, where the House of Commons voted by a 2/3rd majority in favour of holding an early General Election. The political circumstances at the time enabled her to achieve that result.

In 2019, as the Brexit negotiations were drawing to a close, the Government – now led by Boris Johnson – wanted to find a way of ensuring that it could get a Brexit agreement through the Parliament. The Parliament was so divided on the issue that three attempts to get Parliamentary approval of a draft agreement failed. Mr Johnson thought that one way out of this difficulty would be to be to hold a general election which, if he won, would put the Brexit Agreement at the heart of Government policy. However, he could not do this because the statutory conditions for getting around the Fixed-term Parliaments Act timetable were not met. He did not have a 2/3rd majority in favour of holding a General Election (the route used by Mrs May) nor had he lost a vote of confidence which could also have triggered the calling of an early General Election.

Instead, he tried to prorogue Parliament – bringing one session to an end and starting a new session. But his purported use of the prerogative power to prorogue, which would have resulted in Parliament being totally shut down for 5 weeks, was ruled to be unlawful by the Supreme Court. (See R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41.) He finally achieved his goal by getting Parliament to sidestep the Act through the enactment of the Early Parliamentary General Election Act 2019.

One item in the Conservative Party’s election manifesto for the 2019 General Election was that, if elected, a Conservative Government would repeal the Fixed-Term Parliaments Act. In December 2020 the Draft Fixed Term Parliaments Act (Repeal) Bill was published.

In fact, the Fixed Term Parliaments Act contained a built-in mechanism for its own review. Section 7, added during its parliamentary passage in 2011, provided that between June and November 2020 the Prime Minister should arrange for a committee to review the operation of the Act. That committee was established in November 2020, with 14 MPs and six members of the House of Lords. It is this Committee, chaired by former Conservative Chief Whip Lord (Patrick) McLoughlin, that is now considering the draft Bill.

Two parliamentary committees had already reviewed the operation of the FTPA: the Lords Constitution Committee (2019), and the Commons Public Administration and Constitutional Affairs Committee (2020). Both raised important questions of principle about the whole idea of creating fixed-term parliaments. Was it right, in principle, that a Prime Minister should have the prerogative power be able to choose an election date? Why should general elections not be held within a timetable agreed by Parliament? The policy arguments in favour of fixed term parliaments as well made in an article by Robert Hazell from the Constitution Unit.

One feature of the draft Bill is that it includes provisions designed to prevent the courts from intervening in any decision taken by a Prime Minister to call an election. Two public lawyers, Professor Elliott and Professor Young, have given their views on the Bill including a consideration of whether the Bill’s attempt to restore the Executive’s prerogative power to determine the date for an election also mean that the potential for a challenge in the courts that an exercise of that power has been unreasonable can be eliminated.

Although the repeal of the Fixed Term Parliaments Act might at first sight seem like a rather narrow issue, it does raise important policy and legal issues which must be considered both while the current Bill is in draft form, and after any legislation has been enacted.

For further information, see the following articles:

By Robert Hazell at https://constitution-unit.com/2020/12/11/the-fixed-term-parliaments-act-should-it-be-amended-or-repealed/

By Professor Elliott at https://publiclawforeveryone.com/2020/12/02/repealing-the-fixed-term-parliaments-act/

By Professor Young at https://ukconstitutionallaw.org/2020/12/04/alison-l-young-the-draft-fixed-term-parliaments-act-2011-repeal-bill-turning-back-the-clock/

Written by lwtmp

February 2, 2021 at 1:31 pm

Reform of the justice system: update on progress

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Those who are following the progress of the programme to change the ways in which the justice system works might care to look at the presentation delivered to the 4th Annual Users Conference.

Online sessions were spread across three days (3, 4, 5 November 2020) and covered the work of criminal, civil, family, tribunals and cross-jurisdictional reform projects over the past 12 months, a year that has been significantly impacted by the need to respond to the pandemic.

Readers can access the main speeches at https://www.judiciary.uk/announcements/civil-justice-councils-9th-national-forum-on-access-to-justice-for-those-without-means/

This links to the principal speeches which are on YouTube.

Further information and powerpoint presentation can be accessed at https://www.gov.uk/government/news/hmcts-heads-online-for-2020-public-user-event#history

Review of the Human Rights Act 1998: latest news

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Following the announcement of this review, chaired by Sir Peter Gross, in December 2020, the review has now published its call for evidence, together with the membership of the team who will be assisting Sir Peter in his review.

Evidence is sought on two specific issues:

The first deals with the relationship between domestic courts and the European Court of Human Rights (ECtHR), in particular how the requirement that domestic courts ‘take into account’ decisions of the ECtHR.

The second seeks evidence on the impact of the HRA on the relationship between the judiciary, the executive and the legislature.

The time for responding is short. Submissions have to be in by 7 March 2021.

The Review promises that there will be public consultation sessions to be arranged. The intention is that the report should be submitted to Government in Summer 2021.

Details are at https://www.gov.uk/guidance/independent-human-rights-act-review#contents

Written by lwtmp

February 1, 2021 at 11:42 am

Impact of Covid-19 on the criminal justice system: the view of the Criminal Justice Inspectorates

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There are 4 Inspectorates which have statutory power to keep different parts of the criminal justice system under review: prosecution, police, prisons, and probation. Covid-19 has impacted all aspects of the system.

While the inspectorates have on many occasions worked with each other (on some occasions with other agencies outside the criminal justice system), it is rare for all 4 of the criminal justice inspectorates to come together to write a joint report on a single issue. The impact of Covid-19 on the criminal justice system has been the trigger for their latest report, Impact of the pandemic on the criminal justice system, which was published on 19 January 2021.

As the press release to the report makes clear, each of the Inspectorates has been examining the impact of Covid-19 on their individual parts of the system. They have already published or will soon be publishing their own individual resports on the impact of the virus.

But the Chief Inspectors are obviously extremely concerned about the enormous stresses being placed throughout the criminal justice system – not all deriving from the pandemic, but to which the pandemic has added new dimensions.

In their joint report, the Chief Inspectors draw together common issues which are discussed in each of their studies. They spell out how the Covid-19 pandemic has affected the work of the police, prosecutors, prisons, probation and youth offending teams.  They point to difficulties and lengthy waits at all stages of the criminal justice process observing that delays “benefit no one and risk damage to many”.

While the Chief Inspectors were able to praise some positive initiatives that had been taken during the Covid-19 pandemic, including the acceleration of digital working, and the commitment of staff, other areas were of more concern. They included the lack of education provision in custody and in the community for young people and the highly restrictive regimes imposed on a majority of prisoners which have continued for many months without respite, impacting negatively on their physical, emotional and psychological wellbeing and also more generally on prospects for effective rehabilitation.

In the Chief Inspectors’ view, the greatest risk to criminal justice comes from the “unprecedented and very serious” backlogs in courts. The number of ongoing cases in Crown Courts was 44 per cent higher in December 2020 compared to February of the same year. Latest figures show more than 53,000 cases are waiting to come before Crown Courts. Some of these cases have been scheduled for 2022. Despite additional funding, the continuing impact of Covid-19 is likely cause further delays.

A particular source of frustration are cases which have been listed for trial but are then cancelled and postponed, all adding to the stress of victims as well as of the accused.

The Joint Report has been used as the basis for a meeting with the Justice Select Committee which is very concerned about the impact of Covid-19 on the Justice system and indeed reported on the issue in October 2020.

The evidence in this report clearly demonstrates the potential importance of the proposed Royal Commission on the Criminal Justice system. The delay in establishing this, which I have criticised before, is a real source of frustration for all those who want to see major improvements in the operation and effectiveness of the Criminal Justice system.

Details of the Joint Report can be found at https://www.justiceinspectorates.gov.uk/cjji/inspections/impact-of-the-pandemic-on-the-criminal-justice-system/

The evidence of the Chief Inspectors to the Justice Committee is at https://committees.parliament.uk/committee/102/justice-committee/news/138547/committee-gets-early-sight-of-criminal-justice-system-report/

Revisiting ‘pre-charge bail’ – further changes in the wind

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In recent years there was much complaint about the shadow that can be cast over someone’s life when that person has become of interest to the police, but where the police do not have enough evidence to justify charging him or her with the committal of an offence. A number of well-known members of the public were placed 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 to amend the law so that, in most cases, a person would normally be subject to ‘pre-charge bail’ for only 28 days (though limited extensions could be granted). There were two main justifications offered for making these changes:

  1. When a person has been arrested, the time they can be detained by the police pending a charge is closely regulated. If the evidence is not available to justify a charge, they must be released. Mrs May thought it was right that ‘pre-charge bail’ should also be time limited.
  2. Mrs May thought that if a 28 day limit was imposed, this would incentivise the police to get on with their evidence gathering and therefore bring the issue of whether or not to charge a person to a head more quickly.

As an alternative to releasing a person on bail, the 2017 Act gave the police the power to release suspects under investigation (RUI).

It is fair to say that there was considerable professional resistence to these proposals. Individual police forces and the College of Policing were both very concerned that the implications of making these changes had not been fully thought through and were unlikely to have the hoped-for effect. Nonetheless, Part 4 of the Policing and Crime Act 2017 brought these changes into effect.

On 5 November 2019 the government announced that there would be a review of the pre-charge bail legislative framework. The objective of the review was to ensure that there was in place a system that:
• prioritises the safety of victims and witnesses;
• supports the effective management of investigations;
• respects the rights of individuals under investigation, victims and witnesses to timely decisions and updates; and
• supports the timely progression of cases to courts.

Between February and April 2020, the Home Office conducted a public consultation on proposals for amending the legislation.

At around the same time, in late 2019 and early 2020, a joint inspection by HM Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) and HM Crown Prosecution Service Inspectorate (HMCPSI) into how these changes were working in practice was undertaken. The report from the inspection was published in December 2020.

The headline findings of the joint inspection were:

  • that suspects are still faced with lengthy delays and that the changes also had unintended consequences for victims, who view them as overwhelmingly negative;
  • that not enough thought was given as to how the legislative changes would affect victims;
  • that RUI leaves too many victims without the reassurance and protection that bail conditions can provide;
  • there was an inconsistent implementation of the changes by forces due to a lack of clear guidance;
  • that investigations involving suspects released under investigation tend to take longer and are subject to less scrutiny than ones involving formal bail; and
  • that victims and suspects do not understand the legislation and are not being updated about the progress of their case.

For example, in many cases of domestic abuse and stalking, suspects were being released under investigation instead of being formally bailed with conditions. This was very worrying because of the high harm and risk associated with these types of crime. The Inspectorates found through their research that victims of domestic abuse felt less safe since the changes were made.

Reports in the press today (13 January 2021) suggest that the outcome of the Home Office’s review will shortly be published together with details on how the law is to be amended.

Details of the Home Office Consultation are at https://www.gov.uk/government/consultations/police-powers-pre-charge-bail

The Inspectorates reports and accompanying research is found at https://www.justiceinspectorates.gov.uk/hmicfrs/news/news-feed/further-changes-to-bail-legislation-must-consider-victims-needs/

The Press story is in the Times 13 January 2021 at https://www.thetimes.co.uk/article/reforms-to-police-bail-that-left-victims-at-risk-will-be-scrapped-2mdzzmxk5

Written by lwtmp

January 13, 2021 at 4:15 pm

Royal Commission on Criminal Procedure – 40th Anniversary of the publication of the Philips report

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Yesterday (6 January 2021) I published a note on two recent reports about the police powers of stop and search. This has triggered a response from one reader who has reminded (more accurately informed) me that, almost 40 years to the day, the report of the report of the Royal Commission on Criminal Procedure (RCCP) – chaired by the late Sir Cyril Philips – was published on 5 January 1981.

Sometimes Royal Commissions get a bad press. It is said they are used as a means of kicking difficult subjects into the long grass, in the hope that somehow they will go away or at least provide Ministers with an excuse not to do something until the Commission has reported by which time someone else will be in charge.

The Royal Commission on Criminal Procedure was not one of these. It was a major undertaking – accompanied by a substantial research programme – which lead to three major developments in the criminal justice system in England and Wales.

The first of these was the establishment of the Crown Prosecution Service. Until the RCCP reported, the police were responsible for both investigating a crime and taking the decision to prosecute. A number of miscarriages of justice at the time occurred because the police did, on occasion, use these twin functions to ensure that they were in charge of getting evidence that would eventually enable them to bring a prosecution.

The RCCP insisted that there had to be a separation between the investigation function and the prosecution function. At the time this was regarded as a very controversial idea, but the Government agreed to implement the recommendation. Following the publication of a White Paper in 1983, the Prosecution of Offenders Act 1985 created the new service, which started work in 1986. It brought together, under the Director for Public Prosecutions (DPP), the former DPP’s office and the prosecution offices from individual police forces in England and Wales. Despite a lot of teething problems, the CPS has become a well established part of the criminal justice system – albeit now struggling with others from funding cuts and Covid 19.

The second major outcome from the RCCP was the enactment of the Police and Criminal Evidence Act 1984. This sought to bring clarity to the powers of the police. Since this involved some rationalisation and expansion of police power, the PACE Codes of Practice were also put in place to set boundaries on the ways in which those powers were to be exercised. Although the Codes have been revised and added to since the original legislation was enacted, the basis framework recommended by the RCCP has survived. Indeed, the creation of the CPS was, at least in part, to provide another check on the possible abuse by the police of their reformed powers.

A third development recommended by the RCCP was the creation of the Police Complaints Authority (now the Independent Office for Police Complaints). This replaced an earlier Police Complaints Board which did not have the powers or resources to take complaints against the police seriously.

I would not for one moment argue that the RCCP report solved all the problems relating to the criminal justice system. (The fact that only a decade later there was a further Royal Commission, this time on Criminal Justice, which – among other things – recommended the creation of the Criminal Cases Review Commission, shows that the criminal justice system always presents challenges for policy makers and practitioners.)

But it did create a structure which has lasted more or less intact for 40 years.

Experience with both these Royal Commissions demonstrates that their work can deliver significant and lasting change. This is one of the reasons why I, for one, am so disappointed that the Royal Commission on the Criminal Justice System, promised by the present Government, is not being taken forward more urgently. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)