Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Reshaping the Court estate: a further consultation

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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/

 

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Written by lwtmp

January 19, 2018 at 12:18 pm

New Lord Chancellor and Secretary of State for Justice: David Gauke MP

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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/

Written by lwtmp

January 16, 2018 at 12:26 pm

Posted in Chapter 4

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Law Commission: 13th Programme announced

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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/

 

 

 

Written by lwtmp

December 14, 2017 at 12:14 pm

Posted in Chapter 3, Chapter 4

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New administrative justice oversight body announced

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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

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.

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Written by lwtmp

December 12, 2017 at 1:22 pm

Posted in chapter 6

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Prisoners’ voting rights: recent developments

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For over a decade there has been a stand-off between the UK Government and the European Court of Human Rights on the question of whether prisoners should have a right to vote. The law in the UK is that they should not. The European Court of Human Rights took the view that a blanket ban was a denial of the right to vote provided for in the European Convention on Human Rights.

The Coalition Government got as far as publishing a draft Bill setting out a number of options for resolving the impasse (which included doing nothing) in 2013. I noted this in this blog in August 2014. Since then the issue has gone very quiet.

It appears that towards the end of 2016, the Government did issue an undertaking to the Council of Europe that is would do something by the end of 2017. Readers of this blog might be forgiven for not spotting that, in fact, the Government has recently done just that. Not a Bill, as many of us has been expecting, but in the form of a Statement to Parliament.

On November 2nd 2017, the Secretary of State for Justice said (in part):

[T]he Government has considered this issue carefully. We have decided to propose administrative changes to address the points raised in the 2005 judgment, while maintaining the bar on convicted prisoners in custody from voting.

First, we will make it clear to criminals when they are sentenced that while they are in prison this means they will lose the right to vote. This directly addresses a specific concern of the [in the original ECtHR] judgment that there was not sufficient clarity in confirming to offenders that they cannot vote in prison.

Second, we will amend guidance to address an anomaly in the current system, where offenders who are released back in the community on licence using an electronic tag under the Home Detention Curfew scheme can vote, but those who are in the community on Temporary Licence, cannot.

Release on Temporary Licence is a tool typically used to allow offenders to commute to employment in the community and so prepare themselves for their return to society. Reinstating the civic right of voting at this point is consistent with this approach…

These measures will see no changes to the criteria for temporary release, and no offenders will be granted release in order vote.

Our estimate is that these change to temporary licence will affect up to one hundred offenders at any one time and none of them will be able to vote from prison.

So, hey presto! No need for new legislation or amendment of the  Representation of the People Act 1983, but a simple change to Prison Service guidance.

The question this statement raises, of course, is whether this will be enough to satisfy the Council of Europe. My suspicion is that it may not, and that this will not resolve the issue once and for all. But it will probably be enough to kick the issue into the grass for a few more months – possibly longer.

The question of whether the European Court of Human Rights should have jurisdiction over this issue has recently been taken up in  book published by The Policy Exchange. In Human Rights and Political Wrongs: A new approach to Human Rights law Professor Sir Noel Malcolm argues that while Human Rights are very important, the way in which those rights have been interpreted and developed by the European Court of Human Rights has been inconsistent, and in some contexts has had the effect of undermining the authority of democratically elected governments. He argues that Human Rights should be limited to setting the boundaries of state power, and that decisions on whether particular policies or decisions are in breach of Human Rights should be done by domestic courts.

I see the publication of this book as the first step in putting the question of whether we have a separate British Bill of Rights back onto the domestic political agenda.

The Secretary of state’s statement is at https://www.gov.uk/government/speeches/secretary-of-states-oral-statement-on-sentencing.

Professor Malcolm’s book can be downloaded free at https://policyexchange.org.uk/

 

 

 

 

Children Across the Justice Systems

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This was the title of an extremely important and interesting lecture, given by Sir James Munby, President of the Family Court, to the Howard League for Penal Reform at the end of October 2017

What, it might be asked, was our leading family judge doing talking to those whose interest is in the criminal justice system?

Sir James used his lecture as an opportunity to argue for a new approach to the treatment of young people who come into contact with the criminal justice and penal systems. He sets out with admirable clarity what he sees as the main problems with  current arrangements, including:  the very complex set of institutions with which the young offender may come into contact; the huge variety of government departments – both central and local – charged with developing and delivering policy in relation to young offender; and the inconsistency of approach of different agencies towards how young offenders and their families should be dealt with.

Sir James argues that, in this context, family justice and criminal justice should be brought together. Specifically, he argues that the role of the Family Drug and Alcohol Court should be expanded to enable it to take on cases which are currently dealt with in the Youth Court.

He recognizes that such a development would represent a big policy change and could not come into being in the short-term. He therefore also proposes interim measures that might go someway towards meeting the objective he has outlined.

So far as I am aware,the Government is not currently contemplating such a major change, but I think Sir James offers ideas that should be carefully considered.

The lecture is available at https://www.judiciary.gov.uk/wp-content/uploads/2017/10/speech-pfd-children-across-the-justice-systems.pdf

Written by lwtmp

November 8, 2017 at 12:47 pm

Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases

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In July 2017,  HM Crown Prosecution Service Inspectorate and HM Inspectorate for Constabulary published a joint report on the disclosure of unused evidence. Based on the analysis of a number of sets of court papers, the report reveals very poor compliance with the relevant rules.

The report states: “Disclosure is one of the cornerstones of the criminal justice system and disclosure of unused material is a key component of the investigative and prosecution process. …Every unused item that is retained by police and considered relevant to an investigation should be reviewed to see whether it is capable of undermining the prosecution case or assisting the defence case. If either factor applies it must be disclosed to the defence.’

This inspection by HMCPSI and HMIC identified a number of issues which are contributing to widespread failures across the board by both police and prosecutors.

  • Police scheduling (the process of recording details of sensitive and non-sensitive material) is poor and this, in turn, is not being challenged by prosecutors.
  • Police are routinely failing to comply with guidance and requirements when completing and recording data, such as the non-sensitive disclosure schedule (known as MG6C).
  • The College of Policing is supposed to provide training on disclosure. [But] Many officers admitted they lacked confidence in their role and responsibilities as disclosure officer.
  • Prosecutors are expected to reject substandard schedules and there was little evidence of such challenge occurring, with a culture of acceptance prevailing.
  • There was also poor decision-making by prosecutors on the Criminal Procedure and Investigations Act (CPIA) test for disclosure. In 54% of cases prosecutors simply endorsed schedules without recording their reasoning.
  • There were further failings in maintaining a complete audit trail of actions and decisions setting out the prosecution disclosure process.
  • There was poor supervision of standards, although where police forces have introduced quality control mechanisms this was found to improve the quality of data.
  • The exchange of information and documents between the police and CPS is often hindered rather than helped by technology, with a number of police systems presenting problems.

The report set out a strict timetable for change.

Immediately:

all disclosure issues relating to unused material to be identified at the charging stage.

Within six months:

the CPS to comply with the Attorney General’s Guidelines on Disclosure, with an allocated prosecutor reviewing every defence statement and giving prompt guidance to police;

police forces to improve supervision of unused material;

CPS Compliance and Assurance Team to begin dip sampling;

all police forces to establish role of dedicated disclosure champion of senior rank;

a system of sharing information between CPS Areas and Headquarters to monitor performance;

CPS and police to develop effective communications processes.

Within 12 months:

the College of Policing to introduce a disclosure training package;

the CPS and police to review digital case management systems.

The full report is available at http://www.justiceinspectorates.gov.uk/cjji/inspections/making-it-fair-the-disclosure-of-unused-material-in-volume-crown-court-cases/

Written by lwtmp

November 6, 2017 at 3:00 pm