Martin Partington: Spotlight on the Justice System

Those coming new to the study of law are facing a rapidly changing legal profession. The ability to create Alternative Business Structures (ABS) is one of the factors driving this change. At present there is little in the way of organised research to enable students to find out what the impact of their creation is on the ways in which legal services are delivered. But the Legal Futures website (see links at the side of this page) is a good place to start finding out what is happening.

I last wrote about developments with ABS in March 2013. I was commenting on the report of the Solicitors Regulatory Authority on its first year of operation. I noted that the number of ABS licensed by the SRA was then over 100.

Since then, numbers have continued to rise. Now (August 2013) the current total is 183. And there are some big beasts waiting in the wings who have started the process of applying for a licence under the scheme. Most notable is the application by the Direct Line Insurance company – the largest motor insurer in the UK – to apply for an ABS licence. This has been done in partnership with a legal practice Paribas Law – which itself was one of the early firms to achieve an ABS licence.

At least part of the reason for Direct Line seeking to do this is that, with the abolition of referral fees (from which it derived a lot of income) it now wants to provide the legal services that arise out of accident claims itself.

But developments in the ABS are not limited to high profile applications such as Co-op Legal Services or BT or now DLG Legal Services (which is the commercial name being used by Direct Line in its application).

At the other end of the market a number of existing providers of legal services at the social welfare end of the market have been contemplating how ABS might help them sustain their services, facing as they are huge cuts in publicly funded legal aid. Leading the field here is the legal advice charity in Leicester, which in April 2013 became the first not-for-profit organisation to set up an alternative business structure (ABS). The Community Advice and Law Service (CALS) won approval to launch Castle Park Solicitors Community Interest Company, whose profits will go to support the continuing work of the charity.

Research carried out by Warwick University earlier this year suggested that around 20% of existing advice centres are likely to explore this option. It is far to early to conclude from this example that the ABS will fill the funding gap left by reductions in legal aid. But it does show that those lawyers who are dedicated to providing legal services to the poor are being innovative in the light of public expenditure cuts.

To date I have only commented on ABS approved by the SRA. But it should be remembered that the Council of Licensed Conveyances also has authority to license ABS applications for companies supplying conveyancing services. To date, 38 licences have been granted.

For information about ABS available in Legal Futures, see http://www.legalfutures.co.uk/tag/alternative-business-structures

For information about SRA licences see http://www.sra.org.uk/solicitors/firm-based-authorisation/abs-register/register.page

For information about CLC licences see http://www.clc-uk.org/absregister.html

The Government is currently engaged in a delicately choreographed exercise relating to the use by the police of their power to stop and search people.

Following the widespread riots that swept London and other major cities in the summer of 2011, there arose claims that one of the reasons why there was considerable distrust in many communities – especially ethnic minority communities – with the police arose from the use of stop and search powers. As a consequence,  in December 2011 the Home Secretary commissioned Her Majesty’s Inspectorate of Constabulary (HMIC) to carry out an inspection into the use of stop and search legislation  in all 43 Home Office funded forces in England and Wales.

At the beginning of July 2013, the Home Secretary announced that she wanted to hold a consultation on the use of these power. There was no suggestion that the powers would be abolished. But the consultation was designed to get views from the public about how they should be used.

Just a few days later, HMIC published its report. it is very critical of police practice in this area. The headline conclusions, drawn from the Press Release, are:

Over a million stop and search encounters have been recorded every year since 2006; but in 2011/12 only 9% led to arrests. The police use of stop and search powers has been cited as a key concern for police legitimacy and public trust in most of the major public inquiries into policing since the 1970s. While there is much public debate about the disproportionate use of the powers on black and minority ethnic people, there has to date been surprisingly little attention paid – by either the police service or the public – to how effective the use of stop and search powers is in preventing and detecting crime.

The inspection, which included a public survey of over 19,000 people found that:

• the majority of forces (30) had not developed an understanding of how to use the powers of stop and search so that they are effective in preventing and detecting crime, with too many forces not collecting sufficient information to assess whether or not the use of the powers had been effective;
• 27% of the 8,783 stop and search records examined by HMIC did not include sufficient grounds to justify the lawful use of the power. The reasons for this include: poor understanding amongst officers about what constitutes the ‘reasonable grounds’ needed to justify a search, poor supervision, and an absence of direction and oversight by senior officers;
• there is high public support for the use of these powers, but this support diminishes when there is a perception that the police are ‘overusing’ them; and
• half of forces did nothing to understand the impact that stop and search had on communities, and less than half complied with the requirements of the Police and Criminal Evidence Act 1984 code of practice to make arrangements for stop and search records to be scrutinised by the public.

When all findings are considered, HMIC concludes that the priority chief officers give to improving the use of stop and search powers has slipped since the publication of the Stephen Lawrence Inquiry Report in 1999.

Notwithstanding these general findings, the report gives examples which show that use of stop and search powers has the potential to play an important role in the way the police prevent crime and catch criminals, whilst at the same time preventing unnecessary arrests. The proactive use of stop and search powers can lead to serious crimes being prevented and detected:

• East. Arrest of a predatory paedophile after police officers on routine patrol found a car with blacked-out windows parked in suspicious circumstances on an industrial estate. The driver tried to distract them from looking in the vehicle, which aroused further suspicion and the officers decided to search it, finding a 12-year-old girl who had been groomed for sex through social media. The offender was convicted and received a 17-year prison sentence.
• North East. Whilst officers were dealing with a collision on a motorway, they smelled cannabis in one of the vehicles and conducted a search of the car and the occupants, finding a large quantity of cannabis in bags and suitcases. Further enquiries led to a further seizure of approximately £400,000 worth of cannabis, and more arrests were made. The people involved were part of an organised group suspected of committing crime nationally.
• North. Routine patrol officers checked a car that was shown on police computer systems as associated with drug misuse. The officers’ suspicion was raised on speaking to the occupants and they conducted a search, which led to finding a large suitcase containing many unsealed bottles of liquid labelled as shampoo, which were subsequently found to contain over 30 kilos of high purity amphetamine, with an estimated street value in excess of £3 million.

The Government’s consultation on stop and search continues until 24 September 2013. Announcements on the outcomes of the consultation will appear later in the year.

All the information about the HMIC report is available at http://www.hmic.gov.uk/publication/stop-and-search-powers-20130709/
. You can follow the links to the press release, the full report and findings from individual police forces.

Details of the Home Office consultation is at https://www.gov.uk/government/consultations/stop-and-search

In Chapter 3 of the book, I raise the question of whether voting in elections should be made compulsory (p. 28). I note that this is already the law in Australia.

The up-coming Australian general election has caused a number of commentators to revisit this issue. The BBC News website carried a very interesting piece on just this question. See http://www.bbc.co.uk/news/world-asia-23810381.

The article makes a number of points worth noting:

• compulsory voting has been the law for the best part of a century;
• turnout in elections is very high – around 94%
• but penalties for non voting are not severe – a small fine;
• and many people avoid voting by not registering to vote;
• thus the ‘real’ turnout is not as high as the headline figure suggests;
• that compulsory voting is the law in 22 other countries but the law is enforced in only 10 of them.

The article quotes arguments for and against the position in Australia.

There is no suggestion that compulsory voting will be introduced in the UK. But I think it is an issue that should at least be raised for public debate. What do you think?

The original code of practice for victims, though innovative at the time (2006), is now regarded as a bit out of date. The Government is currently working on a revised version. This will set out more clearly what different groups of victims should be entitled to expect. The new Code will contain sections on

• Entitlements for victim
• Duties for criminal justice agencies
• Entitlements to children and young people under 18
• Duties for criminal justice agencies for children and young people under 18, and
• Businesses

The new Code will also for the first time include restorative justice in the issues to be considered in relation to the victims of crime.

It will also propose changes to the ways in which complaints can be made when things are alleged to have gone wrong.

For more detail on the work so far, see https://www.gov.uk/government/consultations/improving-the-code-of-practice-for-victims-of-crime

The Government has made two key appointment in the process of creating the new National Probation Service.

Mike Maiden, former Chief Executive of Staffordshire and West Midlands Probation Trust, will undertake the role of Director of Probation, leading the National Probation Service in England.

Sarah Payne, current Chief Executive of Wales Probation Trust, will take up the post as Director National Offender Management Service (NOMS), Wales. Her role will also include overarching responsibility for public and private prisons and contractual oversight of private sector prison delivery in Wales.

They will lead a team of the country’s top offender managers, working with around 30,000 offenders each year who pose a high-risk of serious harm to the public.

The new directors will work alongside private and voluntary sector organisations who will be delivering rehabilitation services to low and medium risk offenders within 21 Contract Package Areas across England and Wales.4

They take up full responsibilities in April 2014.

For more detail go to https://www.gov.uk/government/news/national-probation-service-appointments-announced