Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

A Smarter Approach to Sentencing: the Government’s White Paper, 2020

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Devising effective sentencing policy is hard. Ministers are often under great political pressures to deal with matters of public concern, which leads to frequent changes in sentencing law. This in turn can make the law hard to find and apply. The Sentencing Act 2020 is about to get the Royal Assent. Once in force it will provide a Code – an uptodate framework available online – within which new policies and changes to the law can be set.

Even before the ink has dried on the new Code, changes are in the pipeline. The Counter Terrorism and Sentencing Bill 2020 is well on its way through the Parliament ary process. (See https://martinpartington.com/2020/07/22/counter-terrorism-and-sentencing-bill-2020/)

More radical change is now promised by the White Paper on Sentencing, A Smarter Approach to Sentencing, published in September 2020.

It is a substantial document – reflecting a number of commitments made by the Conservative party in its election manifesto 2019 – on which the Government will be consulting over the next 12 months. A Bill is not anticipated until 2021.

The White Paper states that it is seeking to address three issues of public concern:

  1. Automatic Release: Sentences passed by judges and magistrates in the courts are criticised, often not for their overall length, but for the shortness of the time offenders actually spend in custody. The blanket use of automatic early release has, in the Government’s view, undermined confidence in the system. Too many serious and dangerous offenders are still released too early from custody; this risks public safety, and means the time spent in prison does not always properly fit the crime. The Counter-Terrorism Bill mentioned above deals with some of the issues; the White Paper argues for a more general policy to apply to all dangerous offenders, not just terrorists.
  2. Improving Confidence: Confidence in non-custodial sentencing options is low. The Government wants to gain greater confidence in the delivery of community sentencing. This is essential to reduce the prison population. Sentencers and the public need to be sure that there are effective non-custodial options, particularly for low-level offenders. The Government also wants to ensure that a wider range of non-custodial sentencing options are available to the courts, by capitalising fully on Electronic Monitoring technology, alongside enhanced community supervision delivered by a reformed National Probation Service and an expanded use of existing non-custodial conditions.
  3. Addressing the Causes of Offending: The Government wants to do more to address the causes of offending, particularly where it is driven by drug and alcohol misuse. In 2018/19, 28% of men and 42% of women entering prison reported having a drug problem. These issues are associated with offending, particularly low-level, repeat offending. Whilst there have been routes available to help treat and manage these needs in the justice system, as well as mental health needs, there have been too few options available to sentencers, and not enough confidence in the quality of these services.

The changes proposed in the White Paper are numerous. They include:

1. Introducing whole life orders for child killers, as well as allowing judges to hand out this maximum punishment to 18-20-year olds in exceptional cases to reflect the gravity of a crime. For example, acts of terrorism which lead to mass loss of life.

2. Introducing new powers to halt the automatic release of offenders who pose a terrorist threat or are a danger to the public.

3. Reducing the opportunities for over 18s who committed murder as a child, to have their minimum term reviewed – ensuring they cannot game the system and torment victims’ families further.

4. Ending the halfway release of offenders sentenced to between four and seven years in prison for serious crimes such as rape, manslaughter and GBH with intent. The Government proposes that they should have to spend two-thirds of their time behind bars.

5. Increasing the starting point for determining sentences for 15-17 year olds who commit murder from a minimum of 12 years to two thirds of the equivalent starting point for adults.This would ensure that the seriousness of the offence is taken into account and there is less of a gap between older children and young adults.

6. Longer tariffs for discretionary life sentences. Increasing the minimum period that must be spent in prison by requiring judges to base their calculation of the tariff on what two-thirds of an equivalent determinate sentence would be, rather than half as they do now. This will mean life sentence prisoners serve longer in prison before they can be considered for release by the Parole Board.

7. Raising the threshold for passing a sentence below the minimum term for repeat offenders, including key serious offences such as “third strike” burglary which carries a minimum three-year custodial sentence and “two strike” knife possession which has a minimum six-month sentence for adults. The should make it less likely that a court will depart from these minimum terms.

8. Piloting Problem Solving Court models in up to five courts, targeted at repeat offenders who would otherwise have been sent to custody.

9. Making full use of tagging technologies to create a tough restrictive order in the community. To support rehabilitation, courts and probation staff will have greater flexibility to impose curfew orders.

10. Piloting new ways of delivering timely and high-quality Pre-Sentence Reports.

11. Introducing new legislation to create the possibility of life sentences for drivers who kill.

12. Doubling the maximum sentence for assaulting an emergency worker from 12 months to 2 years.

The White Paper also proposes reforming criminal records disclosure to reduce the time period in which offenders have to declare offences to employers.

The full details of the White Paper are at https://www.gov.uk/government/publications/a-smarter-approach-to-sentencing

This entry is adapted from the Government Press Release: at https://www.gov.uk/government/news/radical-sentencing-overhaul-to-cut-crime

Written by lwtmp

October 9, 2020 at 5:08 pm

Search warrants: proposals from the Law Commission

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One of the important powers the police have when they are investigating crime is the power to search premises and if necessary seize property that might be evidence to be used in a subsequent prosecution. A search warrant is an authorisation by a magistrate giving the police (or other investigtors) to make a search.

Around 40,000 search warrants are issued in England and Wales every year. There are over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”), are used to look for evidence of a criminal offence. Some more specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials, or to rescue people or animals in danger or distress. Other powers relate to complex financial or specialised investigations.

However, as the Law Commission notes, there are problems with the current system. These include:

  • Error: A 2016 review by the National Crime Agency found that 79% of investigations had defective warrants (of which 8% had significant deficiencies).
  • Inefficiency: Sometimes it can take three weeks to obtain a search warrant, during which time evidence might have been lost and further crimes committed.
  • Insufficient powers: Law enforcement agencies do not have effective powers to obtain electronic evidence, which might be stored on remote servers in an unknown jurisdiction. Such material can be vital for the successful prosecution of serious criminal offences.
  • Inadequate safeguards: There is currently not enough protection for individuals whose electronic devices are seized. Safeguards also vary depending on the type of warrant issued, so some individuals have fewer statutory protections than others.

To meet these shortcomings, the Law Commission has made a number of recommendations:

  • Strengthened law enforcement powers: These include:
    • Updating law enforcement powers so that they more clearly apply to electronic devices and data and allow digital evidence to be seized and copied.
    • The expansion of “multiple entry warrants” which would allow for a property to be searched on multiple occasions and “all premises warrants” which would allow all premises occupied or controlled by a specified person to be searched.
    • Permitting a police constable to search a person found on premises under the authority of a search warrant issued under PACE.
    • Giving the Insolvency Service and NHS Counter Fraud Authorities in England and Wales the ability to apply for and execute search warrants.
  • Improved process: The Law Commission makes recommendations to improve procedural efficiency, reduce the scope for serious errors and ensure that the issuing authority, a magistrate or judge, is presented with an accurate and complete picture of the investigation. These include: ensuring that the duty of an applicant to provide full and frank disclosure to the court is properly adhered to; introducing standardised entry warrant application forms and a template for entry warrants; considering the possibility of creating an online search warrants application portal; improving procedures for hearing search warrant applications to ensure that there is adequate judicial oversight.
  • Electronic evidence and materials: Amending the legal framework that currently governs the search and seizure of electronic material to facilitate the collection and examination of electronic material in a way which does not inhibit criminal investigations or impose unreasonable demands on law enforcement agencies. This could allow for electronic devices to be searched and data to be copied while on the premises. (The Government should consider whether this should include data stored remotely (even if in another jurisdiction).) The Commission also recommends measures to ensure transparency and accountability and limit the interference with property and privacy rights. Unneeded data should be swiftly deleted, and devices returned as soon as is practical.
  • Safeguards: These should be reformed to ensure that non-police investigators, such as members of the Serious Fraud Office, are subject to similar safeguards as the police. The Commission also recommends that an occupier should have a right to ask for a legal representative to be present to observe the execution of a warrant.
  • Personal records and journalistic material: In relation to personal records and confidential journalistic material, we conclude that they should remain obtainable under PACE in very limited circumstances. We recommend that the Government considers whether the law governing access to these categories of material under PACE strikes the right balance between the competing interests at play, and whether the law ought to be reformed.

As this project was undertaken at the request of the Home Office, there is reasonable likelihood that firm policy proposals will emerge in due course.

Source: adapted from https://www.lawcom.gov.uk/project/search-warrants/

Written by lwtmp

October 8, 2020 at 12:10 pm

When Things Go Wrong: the response of the justice system: a report from JUSTICE

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When Things Go Wrong: Grenfell

On 24 August 2020, JUSTICE, the Human Rights Group published an important report on the principles that should be applied when establishing public inquiries when some catastrophic event has occurred.

At present, a tragic incident may result in a range of concurrent legal processes: criminal investigations, disciplinary hearings and civil claims may be initiated that share identical subject matter with an inquiry, inquest or both. These overlapping processes can be confusing for those involved: at worst, layers of legal duplication can fuel the pain of loss. From the perspective of those caught up in the aftermath of the disaster – including victims, witnesses and alleged wrongdoers – the process can be agonisingly protracted. Further, survivors and their families often speak of alienation, mistreatment and whitewashing by the very bodies set up to identify the wrongs they have suffered. Their accounts suggest that inquest and inquiry processes are often highly adversarial and potentially retraumatising. And those with the most at stake may understandably fear that nothing will change once the processes conclude.

A Working Party of JUSTICE, chaired by Sir Robert Owen, asked whether there were ways to overcome these perceived deficiences. It considered:

  • timely justice: how elements of current fact-finding processes and investigation might be integrated to reduce duplication and delay;
  • transparency and responsibility: how investigations, inquiries and inquests can be better coordinated to embed best practice, promote certainty and ensure inclusion of bereaved people and survivors; and
  • fairer outcomes: how inquiry hearings can be improved with regard to procedures, evidence and effective participation.

The report made 54 recommendations under the following broad heads:

  • The framework – They recommended new State and independent bodies to provide oversight and facilitate information-sharing – a Central Inquiries Unit within Government, a full-time Chief Coroner and a special procedure inquest for investigating mass fatalities as well as single deaths linked by systemic failure, able to consider closed material and make specific recommendations to prevent recurrence.
  • Opening investigations – Greater collaboration between agencies, in order to build a cross-process dossier, which would reduce the multiple occasions that bereaved people and survivors have to recount traumatic events and ensure that they are fully informed throughout the process.
  • Procedure – Processes for appointing inquiry chairs and panels, for establishing the terms of reference and for providing information and relevant documents to core participants need to be more structured and transparent. Drawing on previous JUSTICE working parties on accessibility, we recommend that bereaved people and survivors are placed at the heart of the process – in choice of hearing space; improved communication and questioning by professionals and signposting to support services. Aside from the legal formalities, the report also called for widespread use of commemorative “pen portraits” and therapeutic spaces for bereaved and survivor testimony.
  • A statutory duty of candour, including a rebuttable requirement for position statements, which would help foster a “cards on the table” approach. Directing the inquiry to the most important matters early on could result in earlier findings and reduced costs.
  • Accountability and systemic change – An independent body should lead oversight and monitoring of the implementation of inquest and inquiry recommendations, whose review could aid scrutiny by parliamentary committees.

Source: Adapted from https://justice.org.uk/our-work/system-wide-reform/when-things-go-wrong/


Written by lwtmp

September 7, 2020 at 4:55 pm

Posted in chapter 6

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The Criminal Legal Aid Review: interim announcements

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The Government announced, way back in December 2018, that it planned to undertake a review of the Criminal Legal Aid scheme. This was a response to a fierce campaign (including instances of strike action) by the legal professions complaining about the very poor rates of pay now offered for criminal legal aid work, and evidence that – at those levels of pay – the future prospects for a criminal legal aid service looked bleak.

Although, under the Legal Aid, Sentencing and Punishment of Offenders Act 2013, the scope of the Criminal Legal Ad scheme had not been reduced in the same way as the civil legal aid scheme had been, Government austerity measures certainly bit on the pay and conditions of those undertaking criminal legal aid work.

The announcement of the review in December 2018 provided some acknowledgement by the Government that all might not be well. But setting up a review can be used as a mechanism for postponing hard decisions. As the result of further lobbying by criminal legal aid practitioners, the Government decided that it would offer an accelerated set of interim measures to try and mollify the legal profession – at least in the short term.

On 21 August 2020 the Government’s decisions on the accelerated measures were announced. In making the announcement, the Lord Chancellor stated that the changes would represent an injection of around £51m into the Criminal Legal Aid Budget. Set against a total spend (in 2019-2020) of around £820m on Criminal Legal Aid it is only a modest increase (just over 6%). The additional resources will be used to deal with a number of detailed issues such as how litigators and advocates are paid for work on unused material and how advocates are paid for work on paper-heavy cases.

In announcing his decision, the Lord Chancellor commented:

“[The] accelerated areas are only the first step towards the wider review, which we always intended would result in reforms that would support a sustainable and diverse market of practitioners. Since then, Covid-19 has thrown into sharp relief concerns about the sustainability of the market. …

“Fundamentally, we want to ensure that the market can: meet demand now and into the future; provide an effective and efficient service that ensures value for money for the taxpayer, and continue to provide defendants with high-quality advice from a diverse range of practitioners. …

“Having reflected on whether our original approach to delivering the review was the right one to achieve these overarching aims, I have decided that the next phase of the Review should involve an independently-led review that will be ambitious and far-reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market. It will consider working practices and market incentives and how these can drive efficient and effective case progression and deliver value for money for the taxpayer. Planning is in progress and I plan to launch it as soon as possible after Parliament returns [in September 2020].

“Alongside the independent review, we will also prioritise work to ensure that the fee schemes … are consistent with and enable wider reforms that seek to modernise the criminal justice system, in line with our original aims for the review. Given the rapid changes in ways of working that have been adopted across the justice system to support recovery in the courts, it is essential that the criminal legal aid system actively enables the defence profession to play its role in these efforts.”

So a lot of further change may be anticipated. In the meantime, long-suffering criminal legal aid practitioners will soldier on, hoping for better times ahead.

Details of the announcement and the details of the Government’s changes – which will be brought into effect by regulations in August 2020 – see https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/

Written by lwtmp

August 25, 2020 at 4:43 pm

Posted in Chapter 10, Chapter 5

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Whither the Sentencing Council?

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Many Government consultation are on rather specific issues. The consultation considered here is rather different, designed to encourage some rather more blue-skies thinking about the work of the Sentencing Council.

It has been launched because 2020 marks the 10th anniversary of the establishment of the Sentencing Council for England and Wales. During that time it has produced 27 sets of definitive guidelines encompassing 145 separate guidelines that cover 227 offences and eight overarching topics.

As the accompanying press release notes: “Developing guidelines is a collaborative process; as well as input from Council members and the small multi-disciplinary team who support its work, it relies on the cooperation of individuals and organisations working in the criminal justice system and beyond to ensure that it has the fullest information possible to draw on.”

Over the years, thousands of magistrates and judges have completed surveys or participated in detailed research, providing the Council with evidence which underpin the guidelines. It has held more than 30 public consultations, which have received almost 4,000 responses.

In addition to producing guidelines, the Council also: publishes research and statistics on sentencing; seeks to promote public understanding of sentencing through information on its website; provides educational materials for use in schools; and works with other organisations, for example the police.  

The stated purpose of the consultation – which opened in March 2020 – is not to look back (though obviously it reflects on the work of the Council to date), but to look forward. It is asking all those with an interest in criminal justice and sentencing to contribute to a discussion on what the Council’s future objectives and priorities should be.

The Consultation runs until mid September 2020.

It can be found at https://consult.justice.gov.uk/sentencing-council/what-next-for-sentencing-council/

Written by lwtmp

August 24, 2020 at 4:41 pm

Reviewing the mandatory retirement age for judges

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The arguments in favour of having a mandatory retirement age (MRA) for the judiciary and other similar office holders are that it:

  1. promotes and preserves judicial independence by avoiding individual decisions in each case (albeit with limited provision for extension which enables retired judges to continue to sit post-retirement);
  2. preserves judicial dignity by avoiding the need for individual health and capacity assessments;
  3. maintains public confidence in the capacity and health of the judiciary;
  4. supports workforce planning and allows for greater career progression/ diversity;
  5. shares opportunity between the generations by balancing the need for experienced judges to continue in office for a reasonable time against career progression opportunities for newer appointees (and thereby also promoting diversity in the judiciary).

There have, however, been practical problems associated with the policy. In particular, the recruitment picture for many judicial offices in England and Wales has changed significantly in recent years. There have been more frequent and higher volume recruitment for most types of judges while a greater proportion of recruitment exercises have resulted in shortfalls. Not all available posts have been filled. This has affected appointments all levels in the judiciary including the lay magistracy.

Additionally, life expectancy in the UK has improved since the mandatory retirement age for most judges was legislated to be 70 in 1993. Many individuals now tend to live and work for longer.

In recent years, the MRA has become a subject for debate. In November 2017 the House of Commons Constitution Committee’s Follow-up Report on Judicial Appointments gave further consideration to changing the retirement age and the Committee asked the Lord Chancellor and senior members of the judiciary to reflect on whether the current MRA of 70 continued to be appropriate given the demands on judicial resource.

In the 2018 Major Review of the Judicial Salary Structure, the Senior Salaries Review Body (SSRB) commented that some judges would stay in post for longer were the MRA raised. They also suggested that the current MRA may dissuade some people from joining the judiciary as they felt that they would be unable to serve for a sufficiently long time once appointed.

In 2019 the Justice Select Committee’s report on The Role of the Magistracy, acknowledged the proposals of the Magistrates Association to allow magistrates to sit beyond the MRA if demand could not be met by recruitment alone. However, it was noted that any such provision would require legislation.

Spurred on by these comments, the Government has now published a Consultation Paper on whether the MRA should be amended. 2 Options are identified: a rise to the age of 72; or a rise to the age of 75. In addition, the consultation also asks whether magistrates should be able to be asked to continue sitting even after retirement.

The Lord Chancellor notes that “The retirement age for most judges was last legislated for 27 years ago, and the time is now right to consider whether the age of 70 continues to achieve its objective of balancing the requirement for sufficient judicial expertise to meet the demands on our courts and tribunals whilst safeguarding improvements in judicial diversity and protecting the independence of and confidence in our judiciary.”

The Consultation opened in July 2020 and runs until mid-October 2020.

Documents on the review are at https://consult.justice.gov.uk/digital-communications/judicial-mandatory-retirement-age/

Written by lwtmp

August 24, 2020 at 4:26 pm

Reviewing the Criminal Injuries Compensation scheme

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Despite all the headline attention being given to the Covid-19 pandemic and measures being taken to mitigate some of the effects of the disruption to courts and tribunals that it has caused, the Ministry of Justice continues to undertake other work which does not attract the same public attention.

The issue considered here relates to a consultation on the Criminal Injuries Compensation Scheme, which was announced in July 2020.

The Criminal Injuries Compensation Scheme (the Scheme) is a statutory scheme that exists to compensate victims of violent crime in Great Britain. Its core purpose is to recognise, through compensation, the harm experienced by victims injured as a result of violent crime, including physical and sexual assault as well as domestic terrorist attacks. The Scheme was last reviewed in 2012.

The cross-Government Victims Strategy of September 2018 included undertakings to do more for victims at every stage of the criminal justice system. As part of this, the Government committed to engaging in a comprehensive review of the Scheme. The terms of reference were published in December 2018. The review has examined whether the Scheme remains fit for purpose, reflects the changing nature of violent crime and effectively supports victims in their recovery.

In July 2020, the Government published a Consultation Paper on proposals for dealing with problems that those with experience of the working of the scheme made to the review. The Consultation is open until 9 October 2020. One of the issues specifically addressed is the lack of awareness of the scheme on the part of victims of crime.

It is likely that detailed amendments to the scheme will eventually emerge from this process. However major overhaul of the scheme seems unlikely.

The details of the consultation are at https://www.gov.uk/government/consultations/criminal-injuries-compensation-scheme-review-2020

Written by lwtmp

August 24, 2020 at 3:33 pm

Jury trial in the cinema?

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I wrote earlier about the experiment run by the human rights group JUSTICE on the possible use of ‘virtual jury trials’ (4 June 2020). This was seen as one way of increasing the number of cases being dealt with while the Court service struggles to protect all those involved in serious criminal trials save from the Covid-19 virus.

I’ve just read a fascinating item by Joshua Rozenberg, describing an initiative taking place in Scotland which involves juries going to the cinema and watching a trial fed into the cinema by closed circuit TV. With the numbers of screens available in multiplex cinemas, such an idea could enable quite significant numbers of trials to go ahead. Initally it is hoped that 16 screens in Glasgow and Edinburgh could be used.

Rozenberg writes: “Cameras and microphones will relay the proceedings to the cinema where jurors will hear and see the trial as if they were watching a movie. The screen will be divided into four so that jurors can see the judge, counsel and the accused while listening to witnesses or viewing the evidence.”

Members of the jury will also be under the eye of a camera, so that they can be seen in the actual court room.

Rozenberg reports the Lord Chief Justice for England and Wales as being rather dubious about this idea, suggesting that it would turn a jury trial into some form of entertainment. But would this not be preferable to proposals to do away with jury trial (an idea supported today by the former Lord Chief Justice, Lord Phillips) – at least for a time – to enable the criminal justice system in England start to offer a more acceptable level of service?

I agree with Rozenberg that this is an idea worth considering. It would also overcome some of the technical problems that might be associated with running criminal trial over Zoom or another video networking platform.

Joshua Rozenberg’s blog is at https://rozenberg.substack.com/p/trial-by-movie.

Some of the potential problems about the use of remote criminal proceedings are discussed by Roger Smith in https://law-tech-a2j.org/remote-courts/remote-courts-and-the-consequences-of-ending-practical-obscurity/

Written by lwtmp

August 20, 2020 at 4:55 pm

Equal Treatment Bench Book: revised edition

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A revised edition of the Equal Treatment Bench Book was published in March 2020. It aims to increase 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. (I wrote about the first edition of the revised bench book in this blog in April 2018.)

This latest edition of the Equal Treatment Bench Book 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. It includes new and expanded sections on litigants in person, refugees, modern slavery, Islamophobia and anti-Semitism.

There are practical suggestions 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.

The Equal Treatment Bench Book has also issued guidance on the conduct of remote hearings.

See https://www.judiciary.uk/publications/new-edition-of-the-equal-treatment-bench-book-launched/

Written by lwtmp

August 20, 2020 at 11:40 am

Independent Review of Administrative Law

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In an earlier blog (13 July 2020), I noted the House of Lords Library paper on the proposed Constitution, Rights and Democracy Commission, an idea contained in the Conservative Party manifesto for the 2019 General Election.

Although no further steps towards the creation of the Commission have been announced, at the end of July 2020 the Government announced that it was establishing an independent review of administrative law to look in particular at judicial review – the power of the courts to review and where necessary overturn a decision made by Goverment.

Governments frequently complain that the use of judicial review can prevent them from taking decisions they think are necessary. Defenders of judicial review argue that the principle of the rule of law demands that executive/administrative actions can only be taken if they are authorised by law.

The Independent Review, chaired by Sir Edward Faulks QC, a former Minister of State for Civil Justice, has been asked to examine a number of questions relating to judicial review.

The Terms of Reference for the Review state that the Review should

  • examine trends in judicial review of executive action,  in particular in relation to the policies and decision making of the Government;
  • bear in mind how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law;
  • consider data and evidence on the development of JR and of judicial decision-making and consider what (if any) options for reforms might be justified.

More specifically the review has to consider:
1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality (an area of law developed by the judges) should be codified in statute;
2. Whether the legal principle of non-justiciability  (i.e. that certain types of decision cannot be reviews in the courts) requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government;
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful; and
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing – i.e. deciding who can bring an action by way of judicial review; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners (the ability of bodies not parties to an action to intervene in the action by providing specialist advice or assistance).

The Review has been asked to report by the end of 2020. Recommendations will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancashire, Michael Gove.

Although the announcement does not state this, the creation of this panel is, at least in part, a result of the decision of the Supreme Court in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41. The issues in the case were noted in this blog on 24 September 2019. Although it was argued that the Prime Minister’s use of the prerogative to prorogue Parliament (i.e. bring a Parliament to an end prior to the holding of a General Election) was non-justiciable – i.e. it could be reviewed by the Court, the Supreme Court rejected this argument and found exercise of the power was justiciable. Further, there the effect of the Prime Minister’s decision was to prevent all Parliamentary activity for 5 weeks, this was far more than necessary to prepare for a General Election and so went beyond the scope of his prerogative power and was unlawful.

The announcement of the review and links to the Terms of Reference are at https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review

The Supreme Court decision in the Miller case is at https://www.supremecourt.uk/cases/uksc-2019-0192.html