Reforming the criminal justice system
This blog has already noted ideas for reforming criminal justice – for example, the creation of new traffic courts, and the review of the criminal trial process to make it more cost effective.
A policy think tank, the Policy Exchange, has recently (Feb 2014) published a paper – Future Courts – setting out ideas for more radical reform of the criminal justice system, in particular magistrates’ courts. The following synopsis is taken from their website. What ideas do you think might work? What would not?
“Magistrates should dispense justice inside police stations at peak times – including evenings and weekends – and be put in charge of the administration of out-of-court disposals, as part of a radical drive to speed up the operation of the criminal justice system.
Future Courts argues that locating magistrates in police stations would deliver much swifter justice, dramatically reducing the time it takes to punish criminals. There is currently a two month delay from the time an offender is charged by the police to the sentence being handed down in a magistrates’ court. The report says that this wasted time weakens the power of punishments and means that the system does little to change the behaviour of offenders.
Reforming summary justice so that magistrates hear cases on-the-spot in police stations would also allow them to oversee or directly administer out-of-court disposals such as simple cautions. There has been considerable public concern about the police’s use of these disposals, which now account for 20% of all criminal cases, including their use in response to very serious offences such as rape. The report calls for a massive expansion in the size of the magistracy to help meet the requirements of these expanded roles. Currently there are 23,000 magistrates and they preside over 90% of all criminal cases in England and Wales, although applications to join the magistracy have dramatically decreased in recent years.
The paper highlights the huge financial pressures faced by Her Majesty’s Court and Tribunals Service, which must cut its budget by 37.8% between 2012 and 2016. It says that the Ministry of Justice will inevitably focus on reducing the size of the court estate to meet this challenge. With 230 magistrates’ courts in England and Wales, compared to just 180 NHS Accident and Emergency Departments, the paper concludes that there is significant scope to re-alter the size of the estate, but that the government must take concrete steps to protect the local justice infrastructure and the functioning of the lay magistracy, which has existed for over 650 years.
The report recommends:
The recruitment of 10,000 new magistrates, taking overall numbers to 33,000: They would sit in police stations and other community buildings, oversee out-of-court disposals, review offenders’ sentences on an on-going basis, and spend a third of their volunteering time undertaking community engagement work.
A more diverse magistracy: courts sitting during evenings and weekends will encourage younger, professional people to apply, but more action is needed. Instead of automatic retirement at 70, a new ‘tenure period’ for magistrates of 10 years should be implemented, creating greater turnover – and polices should be enacted to specifically target younger and more ethnically diverse recruits.
Greater court innovation: The Ministry of Justice, the Judicial College and the Magistrates’ Association should devise a new training package for 500 or so ‘problem solving’ magistrates and judges, specialising in dealing with people with drug and alcohol addiction.
The creation of new ‘Justice Hubs’: Court buildings currently house an average of six courtrooms. As the overall footprint of the court estate is reduced, the report recommends the creation of much larger courthouses, containing around 50 courtrooms. Newly-built or converted ‘Justice Hubs’, located to serve major population areas and co-located with other justice agencies, would accommodate different criminal courts (e.g. magistrates and Crown Courts), civil courts and tribunals under the same roof, as well as housing the full range of justice services and custody facilities.”
To read the whole report go to http://www.policyexchange.org.uk/publications/category/item/future-courts-a-new-vision-for-summary-justice
Delivering legal services to the public in an age of austerity
Like it or not, there is widespread acknowledgement that the funding of legal aid is not going to be restored to pre-Government cut levels. But knowing how to respond to this gloomy prediction is not easy. The Nuffield Foundation has recently published (February 2014) a really interesting research report which, drawing from international examples, offers many ideas for how we might deliver services effectively in this country as well. It deserves widespread attention.
The report concluded that websites, telephones, video communication and other means of digital communication can, if properly used, assist in maintaining access to justice in a time of austerity.
In their report, the researchers (Prof Alan Paterson and Roger Smith) emphasise the need to devise models of delivery that take account of the fact that not everyone can use websites and telephones. They also highlight the example of NHS Direct, an integrated telephone and internet project, unfortunately abolished just as it seemed to producing results.
However the report says that much could be done through:
- Leadership from the Ministry of Justice in maintaining access to justice despite austerity cuts – a positive commitment to helping citizens to help themselves where they can and continued free access to legislation and cases.
- The fostering of innovation through awards, recognition and, as in the US Legal Services Corporation’s Technical Innovation Grants programme, funds for strategic projects.
- Rigorous testing of channels of delivery including the use of dummy clients.
- Integrated ‘digital first’ but not ‘digital only’ delivery as happens in jurisdictions like New South Wales and New Zealand where internet advice is linked with telephones and face to face provision if required.
- Dynamic digital systems that assist a person through a process such as obtaining a divorce, for example, the rechtwijzer.nl site in The Netherlands.
These are findings that fit well with the conclusions of the Low Commission, also published in early 2014.
The text of the Paterson-Smith report is at http://www.nuffieldfoundation.org/face-face-legal-services-and-their-alternatives-global-lessons
The final report of the Low Commission is at http://www.lowcommission.org.uk/
Further reforms to legal aid
At the end of February, the Government announced its latest plans for reforming the legal aid scheme. The focus is centrally on criminal legal aid. The main driver remains cutting public expenditure on legal aid.
The latest proposals focus on three key elements:
1 Reducing the fees paid for services provided under the criminal legal aid scheme. Under the latest proposals, the cuts will impact more severely on more established practitioners (on average a 6% reduction) with a reduced impact on junior members of the criminal bar. The Government has undertaken to review the effect of these changes in 12 months time. There will also be a further reduction in solicitors’ fees of 8.25% which takes effect in March 2014. Again the Government has undertaken to review the impact of this change in summer 2016.
2 Recognizing the business impact that these cuts will have on practitioners, the latest paper suggest that the Government is prepared to provide some assistance to firms to restructure themselves and to develop business models more viable in the new tougher economic climate. This will include providing specialist help and guidance on where further financial help could be available to lawyers who need access to finance to help restructure their businesses. It will be very interesting to see whether this initiative simply gets up the noses of practitioners and makes them even more dissatisfied; or whether there will be practitioners who can see that new ways of doing things could be more cost effective and enable them to make money as well as deliver a service to the public.
3 Potentially the most interesting aspect of the latest announcement is that there will be a review of procedure in the criminal justice system to see ho far pre-trial steps can be taken without requiring the attendance of practitioners in court. This could help to drive out some waste.
Debate about how legal aid will continue to be a battle between government and practitioners. My own view is that there is no likelihood of return to the funding levels that existed before the current cuts were introduced. Lawyers committed to delivering legal services to the public will continue to be challenged to offer those services in different and more cost-effective ways.
For the text of the Government response to consultation see:
https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps and click on Government Response to Consultation.
Co-operative Legal Services: Podcast with Christina Blacklaws
Co-operative Legal Services was the first large organisation to be authorised by the Solicitors Regulatory Authority as an Alternative Business Structure. In this podcast, I talk to Christina Blacklaws, Head of Policy of Co-operative Legal Services.
She explains how the Co-op wanted to move into the legal services market by building on advice services they had for many year provided to their members. There is still a lot of emphasis on helping people to help themselves. But they wanted to be able to offer full legal services for members (and other members of the public) on issues that affect their daily lives, for example moving house, consumer matters, employment matters, family matters, housing matters, probate issues.
The new service is based in the fundamental values of the Cooperative movement.
3 hubs – in Manchester, Bristol and London – are supported by other staff in the Co-op – e.g. in their banks. They also work with other agencies, e.g. Shelter.
She argues that they key to their service is transparent pricing: each issue brought to the service is broken down into segments and clients pay for those segments of the service that they want.
She also argues that the structure of Co-operative Legal Services is an attractive environment for staff; there are opportunities for staff to develop legal skills to enable them to develop their full potential as lawyers.
To hear what Christina has to say go to http://fdslive.oup.com/www.oup.com/orc/resources/law/els/partington13_14/student/podcasts/Blacklaws.mp3
For more information about Co-op Legal Services go to http://www.co-operativelegalservices.co.uk/
Criminal statistics: questions of reliability
The question of the reliability of criminal statistics is currently the subject of a very important investigation by the Public Administration Committee of the House of Commons. In evidence sessions held before Christmas, evidence was received of how statistics provided by police may be distorted by the practices local police forces adopt for the recording of crime.
The Committee is examining the quality and reliability of police recorded crime data. Issues covered may include:
- the role of the Crime Statistics Advisory Committee in promoting statistical best practice among producers of crime data;
- the practical realities of police crime-recording practices and the factors which may lead these to diverge from established national standards;
- the extent to which the recorded crime data serve as a reliable indicator of national and local crime trends; and
- whether adequate procedures are in place to promote a culture of data integrity within the police.
Witnesses have already told how the ways in which data are collected may reflect the need to satisfy particular government targets for policing.
The final outcomes and comment from Government will appear later in 2014.
Provision of legal services – expanding the roles of Legal Executives
Two decisions from the Legal Services Board (LSB), announced in December 2013, will – if approved by Government – have the effect of enabling legal executives to compete more fully in the legal services market.
The first decision approved at application from ILEX Professional Standards’ (IPS) applications to enable it to authorise members of the Chartered Institute of Legal Executives (CILEx) to practise independently in Probate and Conveyancing. This is likely to pave the way for CILEx members to practise independently in all areas of law. The decision goes to the Lord Chancellor, Chris Grayling, and for subsequent parliamentary approval, anticipated during the course of 2014.
See: http://www.cilex.org.uk/media/media_releases/lsb_approves_practice_rights.aspx
The second decision enables CILEX to regulate Chartered Legal Executives exercising litigation and related rights of audience independently, as well as new rules for regulating immigration advisers.
The ability for individual Chartered Legal Executives already working in a regulated entity to conduct litigation, exercise rights of audience and provide immigration services without supervision requires no further government approval. Thus IPS expects to begin accepting applications from CILEx Fellows in the Summer of 2014. This will benefit thousands of law firms who currently have unnecessary bureaucracies in place to sign-off on the work of experienced Chartered Legal Executives, including those working as fee-earners and partners.
IPS will be able to start authorising independent legal practices offering litigation and immigration services when Parliament has granted powers to set up a compensation fund and to intervene in practices. The LSB has confirmed it will approve IPS’s rules for establishing a compensation fund once Parliament has awarded the relevant powers. This is likely to be taken forward in 2015.
See http://www.cilex.org.uk/media/media_releases/lsb_approves_full_rights.aspx
Provision of legal services: accountants getting in on the act!
Competition in the legal services market will hot up even more in 2014, following the announcement that the Legal Services Board (LSB) has agreed that the Institute of Chartered Accountants in England and Wales (ICAEW) should be a regulator of probate services and also licensing authority for Alternative Business Structures (ABS), subject to approval from the Lord Chancellor.
This is an important step by the Legal Services Board in opening up the provision of legal services. In making this recommendation, the Legal Services Board has recognised that consumers can receive legal services relating to probate work from appropriately regulated ICAEW Chartered Accountants that are of equal quality to traditional legally qualified providers.
It has also recognised that ICAEW is a suitable body to licence ABSs which will facilitate the creation of new business structures between lawyers, accountants and other professionals (such as Independent Financial Advisors).
For initial information, see http://www.icaew.com/en/technical/legal-and-regulatory/legal-services-act/alternative-business-structures
Reforms to Civil Justice 2013 – funding of civil litigation
Keeping track of the changes made to the Civil Justice system, in particular those which followed the reforms recommended by Lord Justice Jackson, is quite a challenge. The Ministry of Justice has provided a useful summary of the changes in the following note. There is also a link to a further website that gives more detail of the legislative basis for the changes that have been made. Links to both sites are set out below.
The main changes are:
- No win no fee Conditional Fee Agreements (CFAs)remain available in civil cases, but the additional costs involved (success fee and insurance premiums) are no longer payable by the losing side.
- No win no fee Damages Based Agreements (DBAs) are available in civil litigation for the first time.
- Referral fees are banned in personal injury cases.
- The introduction of new protocols extending the Road Traffic Act personal injury scheme to £25,000.
- A new fixed recoverable costs (FRC) regime.
- Claimants’ damages are protected: the fee that a successful claimant has to pay the lawyer – the lawyer’s ‘success fee’ in CFAs, or ‘payment’ in DBAs – is capped at 25% of the damages recovered, excluding damages for future care and loss
- General damages for non-pecuniary loss such as pain, suffering and loss of amenity are increased by 10%
- A new regime of ‘qualified one way costs shifting’ (QOCS) is introduced in personal injury cases which caps the amount that claimants may have to pay to defendants. Claimants who lose, but whose claims are conducted in accordance with the rules, are protected from having to pay the defendants costs.
- A new sanction on defendants to encourage earlier settlement of claims.
In addition, the functions of the Advisory Committee on Civil Costs, which was to provide advice to the Master of the Rolls on the Guideline Hourly Rates for solicitors, was transferred to the Civil Justice Council with effect from January 2013.
Information in this blog has been adapted from http://www.justice.gov.uk/civil-justice-reforms
More details are available at http://www.justice.gov.uk/civil-justice-reforms/main-changes
Changes to the treatment of victims
In October 2013, the Government published its revised Code of Guidance for victims. This sets out a list of entitlements to which victims are supposed to have. These include:
- An enhanced service if you are a victim of serious crime, a persistently targeted victim or a vulnerable or intimidated victim;
- A needs assessment to help work out what support you need;
- Information on what to expect from the criminal justice system;
- Be referred to organisations supporting victims of crime;
- Be informed about the police investigation, such as if a suspect is arrested and charged and any bail conditions imposed;
- Make a Victim Personal Statement (VPS) to explain how the crime affected you;
- Read your VPS aloud or have it read aloud on your behalf, subject to the views of the court, if a defendant is found guilty;
- Be informed if the suspect is to be prosecuted or not or given an out of court disposal;
- Be informed about how you can seek a review of CPS decisions not to prosecute, to discontinue or offer no evidence in all proceedings;
- Be informed of the time, date and location and outcome of any court hearings;
- Be informed if you need to give evidence in court, what to expect and discuss what help and support you might need with the Witness Care Unit;
- Arrange a court familiarisation visit and enter the court through a different entrance from the suspect and sit in a separate waiting area where possible;
- Meet the CPS Prosecutor and ask him or her questions about the court process;
- Be informed of any appeal against the offender’s conviction or sentence;
- To opt into the Victim Contact Scheme (VCS) if the offender is sentenced to 12 months or more for a specified violent or sexual offence;
- If you opt in to the VCS to:• make a VPS for consideration by the Parole Board if the offender is considered for release or transfer and apply to the Parole Board to read it out at the hearing;
- make representations about the conditions attached to the offender’s licence on release and be informed about any licence conditions relating to you;
- Apply for compensation under the Criminal Injuries Compensation Scheme;
- Receive information about Restorative Justice and how you can take part;
- Make a complaint if you do not receive the information and services you are entitled to, and to receive a full response from the relevant service provider.
Just before Christmas 2013, the Government announced that from October 2014 its plans to run victim support services locally through the offices of the locally elected Police and Crime Commissioners. The Government has started a process designed to encourage groups to apply for contracts to run such services.
For more details see:
For the text of the Code: https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crime.
For a police view of the Code: http://www.police.uk/news/victims-code/
For details of the new contracting process: https://www.gov.uk/local-commissioning-of-victims-services
New Chair of Youth Justice Board
Lord McNally becomes Chair of the Youth Justice Board from mid March 2014. He takes over from Frances Done who steps down at the end of January 2014.
See https://www.gov.uk/government/news/lord-mcnally-appointed-new-chair-of-youth-justice-board
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 