Martin Partington: Spotlight on the Justice System

In the 2011-2012 edition of the book (pp 182-3), I summarise the recommendations of the Norgrove on reforms to the family justice system, in particular to reduce the unacceptable delays current blighting the system.

The Government’s response was published in Feb 2012, and its main conclusions have been noted in this blog.

There have been two recent further developments.

First, the creation of the proposed Family Justice Board has been taken a step forward with the appointment of its first Chair. Interestingly, the appointee is David Norgrove, the author of the original report. This makes sense – he clearly has a vision of how the family justice system should develop, and his appointment should allow him to steer the recommendations he made for the reform of the system.

For the annoucement, see http://www.justice.gov.uk/news/features/family-justice-board-chair-appointed

The second development comes from the judiciary. Following publication of the Norgrove report, Mr Justice Ryder was asked to lead a programme of consultation and to make recommendations for the ways in which judicial reform would assist the delivery of Norgrove’s objectives. At the end of July 2012, the Ryder Report was published.

He states that reforms will come in two stages. Stage 1 will focus on the better management of the court resources that are dealing with family matters. These measures are designed to ensure that the  proposals currently before Parliament (in the Crime and Courts Bill) for the creation of a unified Family Court are properly implemented. He hopes that these administrative changes will be in place by mid-2013.

Stage 2 of the reforms will be based on principles set out in the Children and Families Bill, which is likely to receive Parliamentary approval in 2014. It is likely that the Bill that the second Bill will deal with the Government’s published desire to limit care cases to 26 weeks save in judicially excepted circumstances, to describe a more focused scrutiny of the final care plan,  extend interim and supervision care orders without monthly renewal for six months and implement the Government’s proposals in private law relating to
shared parenting, child arrangement orders and contact enforcement.

Ryder argues that  stage 2 will require judges to take greater responsibility for case management to reduce the delays that Norgrove so criticised.

Ryder stresses that for both reform stages there will need to be specialist judicial training to ensure that judges fully understand their new powers and responsibilities.

Full details of Mr Justice Ryder’s recommendations are at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/ryderj_recommendations_final.pdf

An interesting item on the BBC Today programme the other day concerned the decision by the Director of Public Prosecutions – as head of the Crown Prosecution Service – to give greater opportunity to the victims of crime to ask for a review of any decision by the CPS not to take a prosecution forward.

As readers of the book will know, a decision to prosecute is taken by the application of the two stage ‘full code’ test set out in the Crown Prosecutors Code: the evidential stage; and the public interest stage. Around 80,000 cases a year which have been referred to the CPS are not proceeded with.

Until relatively recently, it was thought that if the CPS decided not to prosecute and told the prospective defendant of their decision, that was the end of the matter. But case law developments have indicated that senior judges think that it should be possible for a person affected by such a decision should be able to seek a review of that decision. The DPP agrees.

I thought I would try to find out a little more about this. It was not as straightforward as I anticipated. The idea of allowing easier review was set out by the DPP, not in a CPS consultation paper, but in a lecture delivered earlier this year, which has just been published in the Criminal Law Review.

Under the title ‘Finality in criminal justice: when should the CPS reopen a case?’ Keir Starmer develops an interesting argument that not all decisions can or should be final – even where this may leave an alleged criminal defendant not quite knowing whether he/she is out of the wood. (See 2012, Crim. L.R. 526)

With this as the starting point, I turned to the CPS Code for Crown Prosecutors to see if the policy outlined by the DPP was reflected there. Despite the fact that the CPS has just published a draft revised code – due to come into effect later this year/early next year – there was no specific reference to the new policy.

An email to me from the CPS suggested that there would be a separate Guidance Note on the implementation of the new policy in due course.

It is not going to be the case that all 80,000 cases will automatically reviewed. But it seems that there will be a procedure for those who think an incorrect decision has been taken to ask for a review. It seems to me that this is potentially quite an important change in prosecutions practice and procedure.

To read the new draft code (the consultation runs till 12 October 2012) go to http://www.cps.gov.uk/consultations/code_2012_consultation_index.html

So, after years of discussion about the desirability of reforming the House of Lords, the changes proposed by the Coalition Government have been kicked into the long grass. Tory backbench MPs have ensured that this Coalition policy would not see the light of day. Even the more modest reforms proposed by Lord Steel have been shelved – including sensible proposals that members of the House of Lords should be able to resign.

One consequence of this outcome is that the propsed changes to the constitution of the House of Commons are now also under threat – though final decisions on the size of the Commons and changes to constituency boudaries will not be made until 2013.

In the book, I talk about some of the problems of knowing how to interpret official statistics on crime. In particular I discuss in outline the differences between Police Recorded Crime Statistics and the British Crime Survey.

In recent months there have been a number of technical changes in the way statistics on crime are published.

1 From April 2012, statistics on crime are published by the Office for National Statistics (ONS), not the Home Office. The opening website is available at http://www.ons.gov.uk/ons/taxonomy/index.html?nscl=Crime+in+England+and+Wales

2 The British Crime Survey is no more. It has been replaced by the somewhat less catchy but more accurate Crime Survey for England and Wales. There is a separate survey of crime in Scotland, called the Scottish Crime and Justice Survey.

3. On 19 July 2012, under the rather inviting title Trends in crime: a short story 2011/12 the ONS has recently a rather helpful table, summarising the principal differences between the Crime Survey for England and Wales and the Criminal Statistics. See http://www.ons.gov.uk/ons/rel/crime-stats/crime-statistics/period-ending-march-2012/trends-in-crime–a-short-story.html

The Government White Paper on reform of the criminal justice system, published in July 2012, refers to two judiciary driven initiatives designed to encourage more accused persons to plead guilty at an early stage.

The better established of these operates in the Magistrates’ Courts under the heading: Stop Delaying Justice. Since January 2012, magistrates have been encouraged to manage as many criminal cases as possible on the basis that there should be no more than two hearings and that the whole process should be over within 6 weeks.

The introduction of the initiative followed a speech delivered by the Lord Chief Justice in 2011 on the importance of ensuring the there are no unnecessary delays and wasted expenditure. It was developed by the magistrates themselves working with district judges and the Crown prosecution service.

The obvious risk is that, with pressure to plead guilty before the accused knows all the evidence against him/her, this may lead to incorrect decisions. A BBC Radio 5 Live documentary suggested that at least some cases might have resulted in unfair decisions being reached. See http://www.bbc.co.uk/news/uk-17690404

But the Magistrates’ Association and the CPS both defend the new scheme, in particular on the principle that justice delayed can be justice denied.

An equivalent scheme is also being tested in the Crown Court. During 2012-2013, Crown Courts in the London area will be developing Early Guilty Plea Protocols. These are also designed to ensure that those accused of offences are encouraged to plead guilty early. The first of these protocols, applying in Wood Green Crown Court was published in June 2012: see http://www.cps.gov.uk/london/early_guilty_plea_scheme/

The Government White paper on the reform of the Criminal Justice system states that the Government will support the roll-out of these schemes on a national basis over the coming months.

The importance of evaluating the effects of these initiatives seems to be very great, though the White Paper makes no mention of any such evaluation currently being undertaken.

For further information on the initiative, see http://www.crimeline.info/stop-delaying-justice/

For a very sceptical view by a serving magistrate see:http://thejusticeofthepeace.blog.co.uk/2011/11/10/stop-delaying-justice-12145157/

13 July 2012 saw the publication by the Ministry of Justice of a new White Paper on the reform of criminal justice. It is a rather unusual document. A typical White Paper will set out government policy on a given subject matter, with policy ideas pretty well worked out and with a promise of imminent legislation.

This White Paper, entitled Swift and Sure Justice: The Government’s Plans for Reform of the Criminal Justice System does neither. Instead it reviews a number of recent developments that have been taking place in the administration of criminal justice and offers somewhat tentative ideas for further reform on which further annoucements will be made in due course.

At the heart of the paper, and reflecting the title of the document, the Government sets out two principles:

“swift: so that the low-level, straightforward and uncontested cases, where a quick response is appropriate, are dealt with promptly and efficiently; and

“sure: so that the system can be relied upon to deliver punishment and redress fairly and in accordance with the law and public expectation. A criminal justice system which fails to command public confidence in this way has fallen at the first hurdle.”

The Government states that its ‘reforms are designed to secure guilty pleas earlier in the prosecution process, improving efficiency, reducing paperwork and process times and alleviating some of the burden on witnesses and victims of crime’.

Under the ‘swift’ label, four specific matters are addressed:

1. First are two initiatives led by the judiciary (rather than government) to tighten criminal case management and encourage early guilty pleas. These are the subject of a separate blog post.

2. Second, simplifying and extending police-led prosecutions. ‘The Home Secretary recently announced that, in addition to existing police powers to prosecute low-level traffic offences, [the government] will introduce changes to enable the police to continue to prosecute these cases when there is no plea or the defendant fails to appear, avoiding unnecessary adjournments and the handing of cases over to the Crown Prosecution Service. We will also extend this simpler, police-led, approach to a wider range of low-level offences.’ This is potentially a very significant change that needs close scrutiny; the separation of investigation (the police function) from prosecution (the CPS function) was introduced by Police and Criminal Evidence Act 1984 as a key reform needed to reduce some of the notorious miscarriages of justice that occurred in the 1960s and 1970s. This should not be undermined.

3. Following the summer riots of 2011, up to 100 magistrates’ courts are sitting on Saturdays and Bank Holidays. ‘[The government] will continue to test innovative approaches to court sitting times, assessing the merits of more flexible sittings, including early morning, evening and weekend sittings for different types of hearings.

4. The Government also states that it is looking ‘for more opportunities to apply public service reform principles to the delivery of criminal justice services. This includes opening the services to new providers and introducing alternative models of delivery including new forms of partnership with the private sector and mutuals. This will build on what has already been achieved with offender management services, for example, through the payment by results pilots we are taking forward.’

Under the ‘sure’ banner, the Govdernment is anxious that the criminal justice system should command public confidence. Punishment should be deterrent but should also aim to prevent reoffending. The government also wants more offenders to face up to the consequences of their crime. It wants action which both punishes them and supports them to address their offending behaviour.

Again a number of specific intiatives are mentioned:

1 Reforms are already in place to make prisons places of meaningful work.

2 The Government has set out proposals to include a punitive element in every community sentence.

3. It is testing the principle of payment by results. A programme of pilots is underway applying a range of different approaches under which those delivering rehabilitation services to offenders will be paid according to their success in reducing reoffending. In the case of the justice reinvestment pilots, funding will be reinvested if savings to the system are made. This provides the platform for introducing greater diversity in the supply of these services, using the public, private and voluntary sectors and innovative approaches to how those services are delivered.

4. Neighbourhood Justice Panels are being established in 15 areas. These involve community representatives and use restorative justice techniques to get a firm and early grip on offending, preventing problems escalating unnecessarily.

5. The Government acknowledges that the unprecedented rise in the use of out-of-court sanctions (for example, cautions and penalty notices for disorder) has raised concerns about whether they have been used appropriately. The White Paper states: ‘We are therefore developing the Justice Test which will provide a helpful tool to help professionals exercise their discretion in a fair and consistent way.’

6 The White Paper also states that there will be a more fundamental look at the way that summary justice is delivered. ‘We are determined to build on the important contribution of magistrates which has been a feature of our system of justice for centuries. The reforms we are setting out will engage magistrates and harness their potential, returning to them a pivotal role in their communities. We are developing proposals to empower a lay magistrate, sitting alone, to deal with certain low-level uncontested cases, in some cases outside traditional court buildings.’

7. Interestingly the Government sees the introduction of Police and Crime Commissioners as another fundamental policy change which will make a contribution to delivering sure justice. The White Paper states: ‘We have already announced that they will take on responsibility for commissioning services for victims of crime and we are considering whether over time they should also be involved in commissioning services for the management of offenders.’ This would represent a major policy shift and be very controversial.

In addition to swift and sure, other labels are used:

Efficient – a focus on investment in new technology including better video facilities.

Transparency – more information about crime in your area.

Accountability – with a key role for the Police and Crime Commissioners, mentioned above

Three specific ideas are listed for further work:

1 The possibility of empowering a lay magistrate to deal with certain uncontested, low-level cases on his or her own.

2 The introduction of a monetary threshold for the either way offences of theft and handling stolen goods below which magistrates would not have the power to commit the case for trial at the Crown Court, but the defendant’s right to elect for trial by jury would remain unchanged.

3 Consideration of reform of the legislation relating to the use of video links in criminal proceedings.

Full details of the White Paper can be found at http://www.justice.gov.uk/downloads/publications/policy/moj/swift-and-sure-justice.pdf

The next step on the road to possible reform of the House of Lords has taken place. The House of Lords Reform Bill 2012 has been published.

If enacted in its published form 80 per cent of House of Lords members would be elected by the public (360 of the total number of Lords). The total number of members would be reduced by nearly half from 826 to 450.

The first elections for members of the reformed House of Lords would take place in May 2015. One-third of the elected members would be chosen then, with another third in 2020 and the final third in 2025 – 120 members in each election.

Existing Peers would be ‘phased’ out as elected members were brought in.

The Bill provides that the remaining 20 per cent (90 members) would be appointed by a statutory Appointments Commission on a non-party basis.

In addition, the Bill provides that there would also be 12 Church of England bishops, a reduction from the current 26 church representatives, reflecting the smaller overall size of the Chamber. In addition, anyone appointed to a Ministerial position who was also made a members of the House of Lords would be added to the overall total.

Under the Bill, members of the reformed House would serve for 15-year terms of office, and they would only be allowed to serve for one term. Elected members would be picked using a Semi-Open List electoral system, giving voters the choice of voting for a party or for an individual in their region.

The Bill provides that the reformed House of Lords would not challenge the historical legislative primacy of the House of Commons. The new Bill specifically states that the Parliament Acts of 1911 and 1949, which define the relationship between the Houses, remain in force.

Publication of the Bill has resulted in great controversy, with many predicting that it will no become law. The progress of the Bill however cannot be ignored and progress will be noted here.

To see the Bill and its Explanatory Notes go to http://services.parliament.uk/bills/2012-13/houseoflordsreform/documents.html

Following its approval under the new Alternative Business Structure (see archive March 2012) Co-operative Legal Services has just announced a major expansion of its activities, including the employment of 3000 new staff (most of them legally qualified) over the next five years. These will include significant training opportunities for young lawyers.

Building on their current operation in Bristol, the plan is to open 5 additional hubs in different parts of the country, as well as a specialist family law unit to be based in London.

The focus of the company is on issues that impact on ordinary people: buying and selling houses; employment issues; probate and will writing; and personal injury.

Much of the advice and work will be undertaken on-line, using new website formats, though face-to-face services will be offered where appropriate.

The one surprising omission on their present list of activities is housing law – landlords and tenants often need legal advice and assistance in creating and ending tenancies.

For more detail go to http://www.co-operative.coop/legalservices/