Reforming the Justice system: creation of the Family Court
The long-awaited Family Court opened for business on 22 April 2014.
Following enactment of the Crime and Courts Act 2013, instead of family cases being divided amongst Family Proceedings Courts (as Magistrates’ Courts dealing with family matters are called), county courts and the Family Division of the High Court, there is now a single point of contact for all family matters that need resolution by courts. In practice, the judges that formerly undertook family work will continue to do so, and the buildings used for family cases will be the same. But questions of how matters are to be divided between the different types of judge will be decided by judicial administration on a practical basis. It is specifically provided that certain types of simple cases may be dealt with by magistrates sitting on their own, rather than in panels. Justices’ clerks and their assistants are also given wider powers to assist the judiciary in straightforward cases.
As you will be aware, the Children and Families Act 2014 was given Royal Assent on 13 March and a number of significant family justice reforms will be introduced from 22 April.
The reforms to the family justice system are aimed at improving the way the system functions as a whole. In particular, we want to make sure that the welfare of children is at the centre of decisions, reduce delays in proceedings, and encourage families to use court as a last resort to resolve disputes. We are:
- Placing a requirement on a person to attend a meeting to find out about mediation before they are allowed to make certain applications to the family court, for example, disputes over finances or children arrangements (unless exemptions apply – such as in cases of domestic violence).
- Moving to the use of child arrangements orders (CAOs) in place of ‘residence’ and ‘contact’ orders.
- Streamlining court processes for divorce and dissolution of a civil partnership by removing the requirement for the court to consider the arrangements for children as part of these processes.
- Introducing a 26-week time limit for completing care and supervision cases, to improve the timeliness of finding a permanent placement for children. The court will have the discretion to extend cases by up to eight weeks at a time, should that be necessary to resolve proceedings justly.
- Restricting the use of expert evidence in children (both public and private law) proceedings to that which is necessary to resolve the proceedings justly and requires courts to have regard to the impact of delay on the child when deciding whether to permit expert evidence in children proceedings and whether the court can obtain information from parties already involved;
- Reducing unnecessary administrative work, by removing the need to renew interim care orders and interim supervision orders as frequently, allowing the courts to set interim orders which are in line with the timetable for the case.
The Children and Families Act 2014 is also brought into effect on the same day. This implements the recommendations of the Norgrove Committee on Family Justice. It
- makes attendance at a meeting to find out about mediation a compulsory requirement, before any proceedings before a court can be started (save for exceptional cases, e.g. where there is domestic violence) so separating couples must consider alternatives to court battles when resolving financial matters and arrangements for child contact;
- replaces residence and contact orders with ‘child arrangements orders’ designed to encourage parents to focus on the child’s needs rather than what they see as their own ‘rights’;
- introduces a 26 week time limit for care proceedings to further reduce the excessive delays in these cases and give greater certainty to the children involved (this can be extended by up to 8 weeks if necessary to resolve a case justly);
- streamlines the process of obtaining a divorce or dissolution of a civil partnership;
- restricts the use of expert witnesses in both private and public law children proceedings, requiring the court to consider the impact of delay on the child and whether the information could actually be obtained from parties already before the court.
The impact of cuts to legal aid are that it appears there are many more litigants in person before the courts. It remains to be seen whether, when the changes have bedded down, this remains the case.
For further information see https://www.gov.uk/government/news/family-justice-reforms-to-benefit-children; and https://www.gov.uk/government/news/major-changes-in-family-courts.
Pre-recorded evidence trial
An issue which has received a lot of public attention in recent months is the way in which some witnesses in criminal trials are required to give their evidence. In a pilot experiment in three courts, including Kingston Crown Court, the most vulnerable victims and witnesses are able to give their evidence and be cross-examined away from the intense atmosphere of a live courtroom, in an attempt to spare them from what could be aggressive questioning in front of jury, judge and their alleged attacker.
People who may find it difficult to give their best possible evidence in a courtroom environment and all child victims will be considered for pre-trial cross-examination. This allows them to give their evidence and be cross-examined by both prosecution and defence barristers ahead of the trial, in front of a judge. The video recording is then shown to the jury as part of the trial. Previously victims could have been subject to lengthy, stressful questioning by multiple barristers in view of jurors and the public gallery.
This initiative follows the recent review of the Victims’ Charter.
If the pilot works, the new procedure will be rolled out across the country. This will be particularly relevant to cases involving the abuse of children and victims of rape and other assaults.
Implementation of Law Commission Reports
The 4th Annual Report into the implementation of reports by the Law Commission for England and Wales was published in May 2014. It lists the reports that have been implemented or which are in the process of implementation. It also sets out the 2 reports which the Government has decided should not be legislated, though in one case, dealing with the credibility of experts giving evidence in criminal cases, the Government argues that this has been achieved through amendments to the Criminal Courts Procedure Rules. (The other – a major report on the reform of Partnership law is not going ahead.)
There is a long list of reports on which final decisions of Government are still awaited.
Interestingly the report notes that the Law Commission’s report Renting Homes, which the Government in Westminster decided should not go ahead, is being taken forward by the Government in Wales.
The report is available at https://www.gov.uk/government/publications/report-on-the-implementation-of-the-law-commission-proposals-jan-2013-to-jan-2014
What is happening to Judicial Review?
Judicial review lies at the heart of our constitutional settlement. It is acknowledged that Parliamentary Sovereignty means that what Parliament legislates is the law. The rule of law implies that everyone, including officials of the state, must act within the law. The doctrines of the Separation of Powers and the independence of the judiciary give ultimate authority to the judiciary to decide whether or not decisions taken by state officials are lawful or not.
In recent years, some have argued that judicial review has been used not really to challenge the legality of decisions taken by officials, but to delay the consequences of decisions taken by officials. There are two specific contexts in which it is argued that judicial review has been used more as a delaying tactic than as a serious legal challenge: immigration and asylum cases; and planning decisions. These arguments are strongly challenged, in particular by public lawyers who deny that there is misuse or abuse of the system.
Nevertheless, the present Government has decided that the existing rules need to be changed. The first tranche of announcements were made in 2013 (see blog item for October 2013).
In February 2014, further announcements were made, many of which are being taken further in the Criminal Justice and Courts Bill 2014.
- Following the earlier decision to transfer immigration and asylum cases to the Tribunals Service, the Government decided that planning cases should also be diverted away from the Administrative Court and sent to a new Planning Court. (This replaces an earlier proposal that such cases should go to a new planning chamber in the Tribunals Service.) The Planning Court will be a part of the High Court, but there will be specialist judges who will deal with planning cases – not dissimilar to the specialist courts in the commercial law area. The hope is that, by taking planning cases out of the general run of cases going to the Administrative Court, they can be dealt with more quickly so that key planning decisions can be finalised more quickly.
- The Government wants to speed up appeals in cases which are of national importance which are inevitably going to end up in the Supreme Court, by expanding the circumstances in which such cases may go to that court without first going to the Court of Appeal. All such cases must involve a point of law of general public importance. This change, which is being legislated in the Criminal Justice and Courts Bill 2014, currently before Parliament, will not just apply to judicial review cases but to all civil cases. It will also apply to decisions of the Upper Tribunal, the Employment Appeal Tribunal and the Special Immigration Appeals Commission.
- The Government wants to stop JRs which are based on technical flaws in the original decision-making process, when it is ‘highly likely’ that the end result would have remained the same. This is also being legislated in the Criminal Justice and Courts Bill 2014. Judges are to refuse permission to bring a JR case where they accept that it is highly likely that the outcome would have been the same. How this will work in practice cannot at this stage be determined, but it may be predicted that judicial interpretation of the phrase ‘highly likely’ will vary from judge to judge, and this clause may itself generate a whole new area of litigation.
- The Government has decided that the details of anyone financially backing a JR must be disclosed, even if they are not a named party, so that costs can be fairly allocated. In the past backers have used individuals, and even set up new companies, to front JRs – meaning that any assessments by the court of the financial capacity of the applicant have not always been a fair representation. This change is also contained in the Criminal Justice and Courts Bill 2014.
- The Government has decided to create a presumption that third parties who apply to join in a JR case as “interveners” should normally be responsible for paying their own way – for example when a campaign group applies to become involved in a case already taking place between an individual and an authority. At present other parties in the case can be ordered to cover the legal costs of the intervener.This presumption will not apply in ‘exceptional circumstances’. In future these third parties will also have to compensate other parties if they cause them to run up greater legal bills unnecessarily. This presumption will not, however, apply where a third party is invited by the court to intervene.
- The Government has decided that the use of ‘cost capping orders’ is to be significantly reduced. At present such orders, also called protective costs orders, are used by applicants for JR to prevent them having to pay the costs of the body against whom they are bringing proceedings where they (the applicants) lose their challenge. The effect of this is the alter the normal rule that the loser pays the costs of the winning party. Since the bodies challenged by JR are public bodies, the Government argues that this imposes an unfair burden on the taxpayer who in effect has to pick up the cost. The Government plans to limit the use of protective costs orders to very exceptional cases of public importance. This is also being taken forward in the Criminal Justice and Courts Bill 2014. (Special rules will apply in environmental cases.)
- By making changes to the rule of Court Procedure, the Government intends to make applicants who take ‘weak’ cases to a second chance hearing (known as an oral renewal) pay for some of the legal bill encountered by the other side in the process of preparing their defence more often.
- Finally it plans to ensure that grants of legal aid are limited to JR cases that ‘have merit’.
In proposing these changes the Government asserts that the principle that individuals can challenge the legality of government action is still preserved. Nonetheless, public lawyers have been vocal in their hostility to these changes.
Criminal Justice and Courts Bill 2014
The Criminal Justice and Courts Bill, published early in 2014, is a complex measure which proposes a significant number of changes to the law. The bulk of these relate to the criminal justice system, though the Government’s plans to change judicial review are also included in the Bill. The headline contents of the Bill are:
- New Offences of Juror Misconduct: To reflect the changes to modern society, four new offences of juror misconduct will be introduced – researching details of a case (including any online research), sharing details of the research with other jurors, disclosing details of juror deliberation and engaging in other prohibited conduct.
- New Criminal Offence of being Unlawfully At Large: Criminals who go on the run will face an additional sentence of up to two years. Offenders who have been released from the custodial part of their sentence and are recalled to custody because they have breached their strict licence conditions but do not surrender to custody are unlawfully at large. Once apprehended they may serve the remainder of their sentence but currently there is no additional punishment for these offenders.
- Ending Automatic Early Release for Paedophiles and Terrorists: Criminals convicted of rape or attempted rape of a child or serious terrorism offences will no longer be automatically released at the half-way point of their prison sentence. Under proposals in the Bill they would only be released before the end of their custodial term at the discretion of the independent Parole Board. Alongside this, no criminals who receive the tough Extended Determinate Sentence (EDS) will be released automatically two-thirds of the way into their custodial term. This means that many of them will end up spending significantly more time in prison. In total these changes will affect about 500 offenders per year.
- Clampdown on Cautions for Serious and Repeat Offenders: Criminals will no longer be able to receive a caution for the most serious offences such as rape and robbery and for a range of other serious ‘either way’ offences, for example possession of any offensive weapon, supplying Class A drugs or a range of sexual offences against children. For less serious offences, criminals will also no longer be able to receive a second caution for the same, or similar, offence committed in a two year period. In total these changes are likely to affect around 14,000 offenders a year.
- Life Sentences for More Terrorist Offences: The maximum sentence for three terrorist offences – weapons training for terrorist purposes, other training for terrorism and making or possession of explosives, will be increased to a life sentence. Terrorists convicted of a second very serious offence will face the ‘two strikes’ automatic life sentence.
- Charging Offenders for Court Costs: Convicted criminals will be made to pay towards the cost of running the country’s criminal courts. All convicted adult offenders will have to pay a charge; the money will be reinvested back into the running of the courts.
- Single Magistrates to Handle Low-Level Cases: More than three quarters of a million low-level ‘regulatory cases’, such as TV licence evasion and road tax evasion, may be dealt with by a single magistrate rather than a bench of two or three. Legislation will allow a procedure to enable some summary-only, non-imprisonable offences to be dealt with by a single magistrate, supported by a legal adviser, away from traditional magistrates’ courtrooms.
- Banning Violent Rape Pornography: Possession of explicit pornography that shows images depicting rape will become illegal. It is currently illegal to publish this material and the new legislation will close a loophole to also prevent possession.
- Overhauling Detention of Young Offenders : The rehabilitation of young offenders will be overhauled by introducing secure colleges. Led by a principal, the secure college will put education at the heart of youth rehabilitation. The legislation follows the announcement on 17 January that a pathfinder secure college will be opened in the East Midlands in 2017.
- Increase Juror Age Limit : People aged 75 and under will be able to sit as jurors in England and Wales. The move is part of a drive to make the criminal justice system more inclusive and to reflect modern society by giving more people the opportunity to serve on a jury. The current age limit is 70.
Finally, Judicial Review Reform: The Government argues that economic growth will be supported by measures to speed up the Judicial Review process and reduce the number of meritless claims clogging the system. This argument is fiercely contested. It will be the subject of a separate blog.
For details see http://services.parliament.uk/bills/2013-14/criminaljusticeandcourts.html
Paying for civil justice: policy on court fees
Late in 2013, the Government announced a short consultation on fees to be charged for using the civil courts. The Government’s argument is that, at a time or austerity, those who seek to use the courts – in particular to resolve high value disputes – should pay more towards to cost of so doing.
The Government’s case was summarised thus:
“The courts play a vital role in our democracy. They provide access to justice for those who need it, help to maintain social order and support the proper functioning of the economy. They:
- deal with those accused of committing crimes, acquitting the innocent and convicting and punishing the guilty;
- provide the right environment for business and commerce to flourish, giving people the confidence to enter into business safe in the knowledge that the commercial arrangements they agree will be recognised and enforced by the courts; and
- deal with matters affecting families, from protecting children at risk of harm to making arrangements for couples who are separating.
For many years, users have been charged fees to access the civil court system, which includes all civil, family and probate jurisdictions, as well as the Court of Protection and the Court of Appeal (Civil Division).
The power to charge fees in the civil court system of England and Wales is set out in a number of pieces of legislation, including the Courts Act 2003 and the Mental Capacity Act 2005. When setting fees in the civil court system, the Lord Chancellor is required to have regard to the principle that access to justice must not be denied.
In recent years, the government’s policy has been to set fees on the basis of full cost recovery: that is, the use of fee income to recover the full cost of the court system, minus the cost of the remissions system (fee waivers). However, until now, the courts have been operating at less than full cost recovery, which has diverted resources from other areas of operations.
It is critical that the courts are properly funded if they are to continue to provide access to justice whilst contributing to the ongoing development of a more efficient, modernised court service.
At the same time, the government has made reducing the fiscal deficit a top priority, in order to set the economy on course for growth. Under the terms of its Spending Review settlement, the Ministry of Justice is required to reduce its annual spending by over £2.5 billion by 2014/15. The courts, and those who use them, must make a contribution to reducing public spending.
Achieving this outcome in this environment involves some difficult choices: there is a limit to how much can be achieved by those spending cuts alone. For these reasons, the government believes that it is preferable that those who can afford to pay should contribute more to the costs of the courts, so that access to justice is preserved and the cost to the taxpayer is reduced.”
Within this context, proposals for very significant rises in court fees were floated. Some have argued that a consequence would be that high value international cases will move to other jurisdictions where fees are less. Others have argued that the proposals will have significant human rights implications.
Detailed policy announcements are anticipated later in 2014. Whatever the outcome, they will be very controversial.
See: https://consult.justice.gov.uk/digital-communications/court-fees-proposals-for-reform
Victims’ right to review prosecution decisions
From June 2013, there has been a procedure in place allowing victims to ask the CPS to review any decision not to take a case forward, either by not charging a person or by continuing procedures. In most cases, this involved a process of reviewing the initial decision by a more senior officer within the CPS.
An enhanced procedure is available for certain classes of victim:
- Victims of the most serious crime
- Persistently targeted victims
- Vulnerable or intimidated victims
Their rights are now set out in a revised version of the Victims’ Code that was published in December 2013.
A detailed summary of the procedure is at http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/, which also has a link to the full Victims’ Code.
Deferred prosecution agreements: code of practice published
I have already noted that the Director of Public Prosecutions was consulting on the possible use of Deferred prosecution Agreements – designed in particular to assist in the investigation of serious fraud. In February 2014, the DPP published the Code of Practice that relates to DPAs.
DPAs involve companies reaching an agreement with a prosecutor, where the company is charged with a criminal offence but proceedings are automatically suspended. The company agrees to a number of conditions, which may include payment of a financial penalty, payment of compensation and implementation of a corporate compliance programme. DPAs may be used for fraud, bribery and economic crime.
The text of the Code is at http://www.cps.gov.uk/publications/directors_guidance/index.html
Regulating Claims Management Companies
The process of driving Claims Management Companies that fail to adhere to the rules regulating their activities out of business seems to be having some success. The Government announced in February 2014 that in the previous year the authorisation of over 200 companies had been revoked. It was also announced that over 500 companies had gone out of business since referral fees were banned in 2013.
From April 2014, CMCs will have to pay higher fees to help cover the cost of regulatory activity.
For further information, go to https://www.gov.uk/government/news/clampdown-on-rogue-claims-firms
Alternative Business Structures: keeping up to date
I’ve already noted that it is really hard keeping on track with the development of Alternative Business Structures. The Legal Futures blog (list in the right hand side of this page) is the best source of news and comment. I draw attention to two recent items which I think are important and interesting.
First is a piece by Chris Kenny, Chief Executive of the Legal Services Board, who argues that it is the market, not regulation, that is driving the development of ABS.
Second, is a really excellent survey by Neil Rose, founder of Legal Futures of where the ABS market has reached over the last couple of years.
To read these, go to http://www.legalfutures.co.uk/blog/time-turn-back-clock for the Kenny piece; and http://www.legalfutures.co.uk/blog/waiting-dyson-moment for the Rose article
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 