Martin Partington: Spotlight on the Justice System

On 28 June 2013, the Government published Transforming the Criminal Justice System: A Strategy & Action Plan to Reform the Criminal Justice System. The headline news that attracted media attention was that by 2016, and building on a pilot currently under way in Birmingham, all criminal trials would be run using electronic rather than paper files. It is argued that this will reduce waste and improve efficiency.

The action plan also proposes:

• ‘Digital embedded in everyday working’ Building on the current system where police digitally transfer case information to CPS, digital working will mean police can use mobile devices, with access to real-time intelligence and local information, to start building case files from the street and giving evidence via video-link becomes  the norm, not the exception.
• ‘A Criminal Justice System which is faster.’ Legislating to enable the majority of high-volume, low-level ‘regulatory’ cases, such as TV licence evasion and many traffic offences, to be dealt with away from traditional magistrates’ courtrooms, which means freeing up those courts to deal with more serious cases;
• ‘A Criminal Justice System that is transparent and responsive’.  This will support the extension of the ‘Track My Crime’ system, an  initiative, launched by Avon and Somerset Constabulary, which gives victims the opportunity to check the progress of their case online, including the name of the responsible police officer. It allows the police to send updates to victims to update them on their case, creating a more open and transparent criminal justice system.
• ‘Care and consideration for victims and witnesses’ Providing extra support for victims and witnesses by offering them greater protection throughout the criminal justice process, for example by making it easier for witnesses to give evidence by video, and looking at the case for creating an independent complaints ombudsman for victims of crime. (The Government has already announced that it will pilot the use of pre-recorded evidence for vulnerable victims and witnesses so that they are no longer cross-examined in open court.)

This programme of change is to be driven forward by the Criminal Justice Board, which was established in February 2013.

The clear intention of Government is that the investment in IT foreshadowed in these proposals will eventually lead to reductions in public expenditure.

The Press Release on the proposals is at https://www.gov.uk/government/news/damian-green-digital-courtrooms-to-be-rolled-out-nationally

Full detail of the proposals is at https://www.gov.uk/government/publications/transforming-the-criminal-justice-system

Rather limited information about the Criminal Justice Board is at http://www.justice.gov.uk/about/moj/advisory-groups/criminal-justice-board

Magistrates spend a lot of time dealing with traffic offences. And the gap between offences and court decisions is, on average, over 6 months. As part of the Government’s Criminal Justice Strategy and Action Plan, it has established specialist traffic courts in 9 pathfinder areas of the country. The Government has recently announced that, from April 2014, there will be a specialist traffic court in each police area.
Offences dealt with in the dedicated traffic courts could include:

• Driving licence related offences
• Lighting offences
• Load offences
• Miscellaneous motoring offences (including trailer offences)
• Motorway offences (other than speeding)
• Neglect of pedestrian rights
• Neglect of traffic directions
• Noise offences
• Obstruction, waiting and parking offences
• Offences particular to motorcycles
• Speed limit offences
• Vehicle insurance offences
• Vehicle test offences
• Vehicles or parts in dangerous or defective condition

There are currently around 500,000 traffic cases dealt with in magistrates courts each year. The intention will be that specialist centres will be established to process these cases. IT will be used to create digital files and enable people to participate by live links without the need to attend courts. The current pathfinders are dealing with up to 160 cases a day.

The Press announcement is at

https://www.gov.uk/government/news/traffic-courts-in-every-area

As part of the programme of reform of the Family Justice system, the Government has just announced a consultation on how professional standards of those giving expert testimony in family cases might be improved.

The Consultation Paper states:

‘Experts play an important role in assisting the court by providing advice on matters requiring specialist expertise outside the knowledge of the court. In family proceedings relating to children, they may come from many different professions and disciplines including doctors, nurses, psychologists and independent social workers.
‘The standards in this paper are a response to a recommendation made by the Family Justice Review that standards should be developed for expert witnesses in the family courts.’

What the paper proposes are ‘high level’ standards to which those called as experts in family cases would have to agree to. As the paper says:

‘The Ministry of Justice proposes that, in publicly funded family proceedings relating to children, solicitors may only instruct experts who meet the relevant standards. In both publicly and privately funded cases, the expectation is that parties will provide sufficient information to satisfy the court not only that an expert is needed, but also that the proposed expert meets the standards.’

The standards, which have been drawn up by the Family Justice Council,  cover areas including:

• the expert’s area of competence and its relevance to the particular case;
• maintaining expertise through Continuing Professional Development activities;
• statutory registration or membership of an appropriate professional body;
• applying the standards to overseas experts;
• compliance with the Family Procedure Rules and Practice Directions;
• seeking feedback from solicitors and the courts; and
• good practice in relation to fees in publicly funded cases

The Consultation runs until 18 July 2013. The Government hopes they will become effective later in 2013.

For more detail go to https://consult.justice.gov.uk/digital-communications/expert-witnesses/consult_view

The Queen’s Speech 2013 contains few measures that seem likely to impact directly on the English Legal system. The two most obvious candidates are:

1. Offender Rehabilitation Bill

This is designed to extend statutory supervision after release to offenders serving short custodial sentences, allowing probation providers to deal with the causes of re-offending. This would mean that all offenders released from prison will receive at least 12 months’ statutory supervision.

For sentences served in the community, the Bill would create greater flexibility for probation providers so that they are free to deliver innovative and effective interventions to tackle re-offending.

The main benefits of the Bill would be to:

• Reduce re-offending rates for the most prolific offenders.
• Support Government plans to open up probation services to a wide range of providers(including private and voluntary sector providers) through competition and develop use of a system of payment by results for providers

The Bill would provide for drug-abusing offenders to be required to attend treatment appointments, and expand the drugs that an offender can be required to be tested for from class A to class B.

The Bill would create a new rehabilitation activity requirement that can be imposed as part of sentences served in the community. This would provide a flexible requirement within which probation providers can require offenders to attend appointments or activities that support their rehabilitation.

2. Anti-social Behaviour,  Crime and Policing Bill which  contains a variety of measures including policies to tackle anti-social behaviour, forced marriage, dangerous dogs and illegal firearms used  by gangs and in organised crime. It also includes measures to enhance the professional capabilities and integrity of the police, and continuing the process of modernising police pay and conditions.

3. Immigration Bill may have a significant impact on rights of appeal in immigration disputes.

In addition there are two draft Bill which will have an impact on the English Legal system, when enacted.

1 Draft Deregulation Bill, be published in draft for pre – legislative scrutiny. While many regulations are being scrapped and reformed either administratively or via secondary legislation, the main aims of this Bill are, in the Government’s words, to:

• ·         Reduce or remove burdens on businesses and Civil Society and facilitate growth
• ·         Reduce or remove burdens on public bodies, the taxpayer or individuals
• ·         Tidying up the statute book by repealing legislation that is no longer of any practical use.

 2 Draft  Consumer Rights Bill, designed to

•  Give consumers clearer rights in law and to make sure that consumer rights keep pace with technological advances.
• Provide important new protections for consumers alongside measures to  reduce regulation for business, all with the aim of making markets work  better.

In May 2012, I outlined those features of the Queen’s speech which I thought would impact on the English Legal System. Here is my end of term report on those measures:

Dropped
House of Lords reform, I said this was potentially the ‘big one’ in terms of constitutional change and political controversy. But my observation that ‘it is far from certain that sufficient political consensus will be created to make its enactment an inevitability’ proved accurate – it fell at the first fence and now seems firmly in the long grass.

Incomplete
1. The Children and Families Bill designed to amend the law on adoption and bring into law changes to the Family Justice system recommended by the Norgrove report, did not complete its Parliamentary passage and has been carried over into the 2013-2014 session.

2.The draft Local Audit Bill, which was designed to abolish the Audit Commission, got a pretty hostile reception from the ad hoc Parliamentary Committee that undertook a pre-legislative scrutiny of the draft. See http://www.publications.parliament.uk/pa/cm201213/cmselect/cmdraftlocaudit/696/69602.htm. However, the Government made it clear that it would proceed with the bill. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/192495/29073_Cm_8566_v0_4.pdf. A Local Audit and Accountability Bill has been announced in the Queen’s Speech 2013 to take this proposal forward.

Completed
1. Most important for the English Legal System, the Crime and Courts Act 2013 gives statutory authority for the creation of the National Crime Agency. It provides for the creation of a single family court, which will change the infrastructure currently in place. It also amends some of the current provisions relating to the making of judicial appointments and provides for the televising of some court proceedings.
2. The Enterprise and Regulatory Reform Act 2013 implements proposals which seek to ensure that more employment disputes are resolved by conciliation. It also abolishes the Competition Commission and Office for Fair Trading and replaces them with a Competition and Markets Authority.
3. The Electoral Registration and Administration Act 2013 aims to make it easier for people to register to vote.
4.The Groceries Adjudicator Act 2013 formally creates the new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – another area of disputes taken from the courts. (There are over 60 industry adjudication schemes already in existence in the UK – many of them not well understood but doing work of resolving disputes that otherwise might have gone to courts). Although the Act did not receive Royal Assent until April 2013, Christine Tacon was appointed to the post in January 2013.

Comment

It is perhaps a consequence of Coalition Government that the passage of legislation is not as predictable as when a single political party is in Government. Even so, most of the key measures, apart from House of Lords Reform, have made progress. It should of course be noted that major policy changes – effected by legislation passed in previous years – came into effect. These include: the reform of legal aid; fundamental change to the health service; changes to social welfare and benefits.

One of the policy features which underpin the civil court system is that the civil courts should as far as possible be self-funding. (This aim does not currently include judicial salaries and pensions.)
The current position is that in 2011/12 the cost of running the non-criminal business administered by Her Majesty’s Courts and Tribunals Service (HMCTS) was around £713m. Of this amount 67% was funded through fees (£480m) with the remaining 33% funded by the taxpayer (£233m) as part of the Ministry of Justice’s spending settlement.

The tax-payer subsidy is made up of two elements:

• Fees set below full-cost levels, i.e. the fee charged does not cover the actual cost to the court or tribunal of processing the work being charged.

• Fee income foregone under a system of fee remissions (waivers). In 2011/12 approximately 171,000 fee remissions were granted at a total value of £27.8m.

The Government’s overall aim is to reduce the taxpayer subsidy for the civil business by ensuring that fee income covers 100% of the cost of providing services, minus the income foregone to the remission system. For tribunals the aim is to maximise cost recovery and separate targets below full cost recovery have been agreed by the Ministry of with Her Majesty’s Treasury.

To achieve this objective, basic fees will need to rise – to address the first point.

This blog refers to a consultation on the second issue – fee remission – designed to introduce great uniformity of approach and better targetting of the remission regime to the very poor. In effect, the remission system relies on a means-test, and the consultation paper indicates that the means-test will become tougher for all but the very poor.

Details of what the Government is proposing are set out in https://consult.justice.gov.uk/digital-communications/fee-remissions-court-tribunals/consult_view

One point should be noted. In the good old days, it was a principle of government that any consultation should last for at least 3 months – to enable those who might wish to comment find the time to assemble their thoughts, and draft their responses. There is a notable current trend that consultation periods should be much briefer. The consultation period for the current exercise is only a month. The consultation on the judicial review changes, noted before, was similarly attenuated.

Last December 2012 I drew attention to the consultation on judicial review announced by the Lord Chancellor, Chris Grayling. Despite my prediction that these proposals would draw a lot of criticism, the Government has announced that they will go ahead broadly as planned. On 9 May 2013 it was announced that they would:

• Introduce a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down.

• Ban people from seeking a hearing in person if their initial written application has been ruled as totally without merit.

• Halve the time limit for applying for a judicial review of a planning decision from three months to six weeks.

• Reducing the time limit for applying for a judicial review of a procurement decision from three months to four week.

In addition that Government is still contemplating  separate proposals which would  see the fee for a Judicial Review application increase from £60 to £235.

Two consultation proposals are not being taken forward. They were:

• For cases based on a continuing issue or multiple decisions, clarifying the point when the time limit starts, to avoid long delays.
• Scrapping oral renewals for any case which has already had a hearing before a judge on substantially the same matter, for example, at a court, tribunal or statutory inquiry.

These changes do not require legislation, but only changes to court rule

The press release is at:https://www.gov.uk/government/news/grayling-no-more-using-judicial-review-as-a-cheap-delaying-tactic

For the full text of the Government’s response see: https://consult.justice.gov.uk/digital-communications/judicial-review-reform

Given the fact that the bulk of delay arises from the huge number of applications in immigration and asylum cases, it is in my view unlikely that these changes will have a significant impact, though the imposition of higher and new fees may deter some applicants. We shall see.

I always thought that one of the important aspects of the National Curriculum was the introduction of citizenship education. When done well, it teaches young people to understand, challenge and engage with the main pillars of our democracy: politics, the economy and the law. It has also led to some quite brilliant and inspiring project work. Citizenship education is central to how young people can be given the confidence to engage and navigate the law and legal processes.

However, the Department for Education is now conducting a review of the National Curriculum and has issued a consultation document for public comment. Of most interest are the proposals for citizenship education in key stages 3 and 4.

The proposed new curriculum removes the explicit reference to ‘political, legal and human rights, and the responsibilities of citizens’, present in the current curriculum leaving only a vaguer reference to the ‘precious liberties of the citizens of the United Kingdom’.

Other references to ‘influencing decisions affecting communities…’ and ‘strategies for dealing with disagreement and conflict’ have also been removed; although there is now an explicit reference to the ‘importance of personal budgeting, money management and a range of financial products and services’.

The consultation closes on April 16 2013, so if you are moved to comment you’ll need to act fast. You can get further information from the Citizenship Foundation, who have provided a handy critique and guide to proposed changes.
See http://www.citizenshipfoundation.org.uk/main/news.php?n1056

In addition, campaign group Democratic Life has an online response form that you can use. It is pre-filled with thoughts about the citizenship curriculum, which you can leave in or edit as you see fit. It is sent automatically to the Department for Education’s consultation team, and a copy is sent to you.

See http://www.democraticlife.org.uk/

Just as legal aid lawyers might have thought that they had suffered their cuts, along comes another Consultation Paper setting out more ideas for reform – designed, of course, to further reduce public expenditure on legal aid.

The Consultation Paper, Transforming Legal Aid: Delivering a more credible and efficient system, published on April 9th 2013, contains a rather complex mix of ideas that the Government is seeking to pursue.

The headline changes that are under consideration include:

• Removing criminal legal aid in prison law cases that do not justify the use of public money – such as complaints about the category of prison or correspondence a prisoner is allowed.  The Government argues that many such cases can be addressed by the prisoner complaint system.
• Introducing a threshold on Crown Court legal aid to stop wealthy defendants with an annual household disposable income of £37,500 or more being automatically granted legal aid, which would avoid having to fight to get the money back after their trial.
• Introducing a residency test so that only those with a strong connection to the UK are able to receive civil legal aid.
• Discouraging so-called ‘weak’ judicial review cases by tightening up the payment mechanism, only paying providers for work done on bringing a claim once a judge has agreed the case is strong enough to proceed.
• Making it harder for claimants to use civil legal aid to bring speculative cases by tightening the test so that all cases must have at least a 50% chance of success to be funded.
• Introducing competition for legally-aided advice and representation (not including Crown Court advocacy).
• Restructuring the Crown Court advocacy fee scheme by paying the same rates to advocates irrespective of whether there is an early or a late guilty plea or a short trial. This proposal provides more incentive to complete cases as early as possible.
• Reducing certain legal aid fees paid in civil cases and to experts.

These new proposals will be hard fought by the legal professions, in particular the proposal to introduce competitive tendering for the supply of criminal defence services – an issue that has been around a long time but which successive Lord Chancellors have – until now – fought shy of pursuing.

Further information, including links to the consultation paper are at https://www.gov.uk/government/news/making-legal-aid-fairer-for-taxpayers–2
See also https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

The Consultation runs until June 4th 2013