Martin Partington: Spotlight on the Justice System

Prosecutors in criminal cases often have to make difficult judgements about whether or not to prosecute. This is particularly so in cases involving complex economic crime – fraud, bribery and so on. The Coalition Government has just announced a consultation on ‘deferred prosecution agreements’ – basically a formal arrangement whereby, for agreeing to assist with an investigation, any prosecution will be deferred.

The Consultation Paper states:
‘Under a DPA, the prosecutor would lay, but would not immediately proceed with, criminal charges pending successful compliance with agreed terms and conditions stated in the DPA. The terms and conditions might include:

• payment of a financial penalty;
• restitution for victims;
• disgorgement of the profits of wrongdoing; and
• measures to prevent future offending (a monitoring or reporting requirement).

These would be discussed and agreed between the parties and then placed before a judge for consideration and approval. Time limits would be attached to the terms and conditions so that compliance can be managed and it will be clear when the agreement should cease.

Our intention is that this new tool will enhance prosecutors’ ability to detect and pursue economic crime committed by commercial organisations and to ensure economic offending which takes place across more than one jurisdiction is dealt with more effectively, as well as achieving better outcomes for victims.’

As with cautions and other recent innovations in the criminal justice system, this represents another development outside the historic ‘due process’ model of the criminal justice system.

The consultation runs for three months until 9 August 2012; developments with the idea will be kept under review.

For further detail go to:

https://consult.justice.gov.uk/digital-communications/deferred-prosecution-agreements

In addition to new rules on judicial appointments (see other blog entry) the Crime and Courts Bill 2012 will, when enacted, deliver other changes to the court system. These include:

• Allowing broadcasting from courtrooms
• Increasing the efficiency of fines by providing incentives for compliance, so offenders bear the cost for delaying payment, not taxpayers
• Creating a Single County Court system and a Single Family Court for England and Wales to allow greater flexibility for the handling of cases
• Allowing data to be shared between the courts, tribunals service and other agencies so fee exemption applications can be checked electronically.

While these may seem somewhat minor issues given the challenges currently facing the government, these changes should make some improvements in how courts function, and thus from this perspective are to be broadly welcomed.

One of the first new Bills to be introduced into Parliament, following the Queens Speech, is the Crime and Courts Bill. In relation to judicial appointments it includes measures to:

• Have an independent lay person as chair of the selection panels for both the Lord Chief Justice and President of the UK Supreme Court, rather than a judge
• Increase Judicial Appointments Commission (JAC) involvement in the selection and appointment of the judges who are authorised to sit as Deputy High Court Judges
• Provide the Lord Chancellor with an increased and more effective role in appointing the most senior judges – through the use of pre-selection consultation in appointments to the Court of Appeal and Heads of Division and sitting on the selection commission for the appointment of the Lord Chief Justice and President of the UK Supreme Court
• Reduce the role of the Lord Chancellor in the appointment of less senior judges, by transferring his powers for judicial appointments below the High Court and Court of Appeal to the Lord Chief Justice
• Introduce flexible deployment so judges can move between working in the courts and tribunals systems, to help judicial career development. (This was seen as a key step in the report published by the Advisory Panel on Judicial Diversity.)

Obviously these changes will not come into effect until the Bill has become law. Developments will be jept under review here.

The Queen’s speech which sets out the Government’s legislative proposals for the forthcoming year, was delivered on May 9 2012. While the headline media commentary was largely on the economy, there are matters in the proposals which – if enacted – will have an impact on the English Legal System. These are listed here, so that readers can take note of them and follow how they come into legislative form:

1 House of Lords reform – this is potentially the ‘big one’ in terms of constitutional change and political controversy. It is far from certain that sufficient political consensus will be created – in particular within the Coalition – to make its enactment an inevitability.

2 The Enterprise and Regulatory Reform Bill will contain proposals which will impact on the work of Employment Tribunals, and seek to ensure that more employment disputes are resolved by conciliation.

3 The Groceries Adjudicator Bill will create a new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – thus another area of disputes will – in effect be removed 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).

4 The draft Local Audit Bill will, if enacted, abolish the Audit Commission, which audits the activities of local government.

5 The Children and Families Bill will amend the law on adoption. It will also bring into law changes to the Family Justice system recommended by the Norgrove report.

6 The Electoral Registration and Administration Bill will make it easier for people to register to vote.

7 The Crime and Courts Bill will give statutory authority for the creation of the National Crime Agency. It will also amend some of the current provisions relating to the making of judicial appointments. It also provides for the televising of some court proceedings.

At page 40 of the book, it is stated that the Queen’s speech – which starts each session of a Parliament – is usually delivered in November. This used to be the case.Readers of the book who also take note of what is happening in Parliament may therefore be puzzled as to why in 2012 the speech was delivered in May.

The reason is that, following enactment of the Fixed-Term Parliaments Act 2011 – which will result in future General Elections normally being held in May (see p 30 of the book), it has been decided that the Queen’s speech should also be delivered in May – i.e. roughly on the anniversary of the Election that started the Parliament.

The question of the relationship between the English Legal System and in particular the UK Supreme Court and the European Court of Human Rights has been generating a lot of political heat in recent months – much of it deriving from the decision in the case Abu Qatada – who the British Government was to deport to Jordan for trial, but who – it is feared – may have evidence obtained by torture used against him. The political fallout from this very controversial case has been significant, with many people demanding that the UK no longer acknowledge the jurisdiction of the European Court.

By chance, in April 2012 – during the UK Presidency of the Council of Europe – a conference was held in Brighton designed to consider proposals for the reform of the court. In the event, the ‘nuclear option’ of the UK withdrawing from the Convention was averted and instead a number of reforms were agreed, designed to rebalance the relationships between Strasbourg and national supreme courts.

In outline, the Brighton Declaration does the following things:

• Makes proposals for amending the Convention to include the principles of subsidiarity and the margin of appreciation – this should give more power to domestic courts t0 decide matters without intervention from Strasbourg;
• Proposes amending the Convention to tighten the admissibility criteria- so that trivial cases can be thrown out and the focus of the Court can be serious abuses
• Reducing the time limit for claims from six months to four
• Improving the selection process for judges
• Setting out a roadmap for further reform.

The full text of the Brighton Declaration is at http://www.coe.int/en/20120419-brighton-declaration/

It will be realise that while what has been achieved may be useful first steps, the final implementation of the reform proposals will take some time to complete.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 not only reforms legal aid, it also makes important changes to the sentencing options available to courts in criminal trials. In outline:

The Act contains a number of new measures to protect the public and reduce reoffending. These include:

• Creating a new youth remand and sentencing structure, which gives more flexibility to courts to decide on appropriate disposals

• Creating tougher community sentences with longer curfews for offenders

• Giving prosecutors the right to appeal against bail decisions when they think the defendant could be dangerous, or might flee the country

• Reforming the Rehabilitation of Offenders Act, to help ex-offenders reintegrate into society after their sentences.

• Creating a tough new sentencing regime to replace the inconsistent Imprisonment for Public Protection (IPP) sentence.

• Doubling to 30 years the starting point for sentences for murders motivated by hate on grounds of disability or transgender – in line with other hate crime murders.

In addition, the Act creates a number of new offences. These include:

• Making it an offence to threaten people with a knife in public and at schools, with offenders receiving a minimum prison sentence (6 months for adults and a 4 months Detention Training Order for 16 and 17 year olds)

• Making prisoners work harder, longer and on meaningful tasks, earning money for victims

• Making it a crime to squat in people’s homes

• Creating a new offence to appropriately punish drivers who seriously injure others by driving dangerously

Further information is at http://www.justice.gov.uk/legislation/bills-and-acts/acts/legal-aid-and-sentencing-act?dm_i=4P,SEF0,24B1P,2BC4T,1

The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) has after a long passage through Parliament finally received the Royal Assent and is now an Act of Parliament.

This means that changes to the scope, eligibility and other aspects of the legal aid scheme – many of which have been outlined in earlier comments in this blog – are now law. The Legal Services Commission’s website notes that these reforms are due to be implemented on 1 April 2013.

The Act also means that a new Agency will be created. The LSC will be replaced by the Legal Aid Agency, which will be an Executive Agency of the Ministry of Justice. The Legal Aid Agency will also start to operate formally on 1 April 2013.

Independence of legal decision-making is to be preserved with the creation of a Director of Legal Aid Casework. The Director of Legal Aid Casework will have independence from the Lord Chancellor in applying directions and guidance to individual funding decisions. This is protected under the new statutory framework.

As Chief Executive Designate of the new Agency, it is expected that Matthew Coats will also be appointed the Director of Legal Aid Casework.

According to the Ministry of Justice Press release:

“The Act:

• Ensures that legal aid is available for those who require formal legal advice and assistance and provides access to a range of alternative sources of dispute resolution in appropriate cases

• Increases mediation funding to £25 million a year and provide an additional £20 million a year for the next three years for third sector advice and assistance organisations

• Reforms civil litigation procedures by dealing with disproportionate legal costs, and by capping the amount that lawyers can take in success fees

• Makes referral fees illegal in personal injury cases.

It remains to be seen whether the outcomes indicated above are achieved in practice. Certainly there is widespread concern throughout the legal world that great damage will be done to the provision of legal advice and assistance to the poor.

Further news will be noted in these columns over the coming months.

Getting the balance right between punishment and rehabilitation in the criminal justice system is one of the most difficult policy objectives. Whatever politicians try to do tends to cause public outcry. Nevertheless, there is a widespread acceptance that locking people up in gaol is – for many – not the best way to prevent reoffending. For years, senior figures, including very influential judges such as Lord Woolf and Lord Phillips have argued that there should be more investment in probation services and new approaches to community sentences.

The Government has very recently published two consultation papers on these interrelated topics.

In Punishment and Reform: Effective Community Sentences the Government argues that it needs to strengthen the community sentence regime in order that it is not regarded as a soft option.

The Consultation Paper argues: “Too many community orders do not include an element which the public and offenders would recognise as ‘punishment’. It is a fundamental principle of justice that those who are found to have done wrong should be punished. …[I]n this consultation we explore how we can ensure that all community orders have a clear, punitive element of Community Payback, restriction of liberty backed by electronic monitoring, or a financial penalty.
“This means developing the punitive options available to the courts. Provisions in the Legal Aid, Sentencing and Punishment of Offenders Bill will increase the maximum length of curfews so that we can keep offenders off the street for longer, stop them socialising in the evenings, and remove opportunities for them to cause trouble. We have also ended the unsatisfactory situation in which unemployed offenders sentenced to Community Payback could work for just six hours per week. Instead, these offenders will be required to work more intensively in a way that more closely replicates a normal working day and week. We want to build on these tough punitive options further by being creative with the technology available for monitoring offenders’ movements, and by exploring the use of asset seizure as a standalone punishment that could be added to community sentences.
“We also want to see fines used more flexibly to punish offenders. Financial penalties should not simply be reserved for the lowest-level offenders. In the right circumstances, a heavy fine can be just as effective a punishment as a community order. In this consultation we set out proposals to support sentencers to make more flexible use of the fine, and ask for views on how we can improve the information available to courts to ensure fines are set at the right level.”

Any new appproach to community sentencing has to be underpinned by appropriate enforcement, which is – in the main – the task of the probation services. In the other Consultation Paper Punishment and Reform: Effective Probation Service, the Government sets out ideas for new approaches to the delivery of probation services.

The Paper argues that the key features of ‘our core proposition for change’ are:

• a stronger role for public sector Probation Trusts as commissioners of  probation services;
• devolving to Probation Trusts the budget for community offender services, from which Trusts will commission services to meet local need;
• some services, such as electronic monitoring of curfew requirements, may continue to be commissioned at national level where we can get most value for money for the taxpayer;
• Probation Trusts will retain responsibility for providing advice to court on sentencing and the enforcement of those sentences;
• consistent with the probation role in protecting the public, they will be responsible for making certain ‘public interest’ decisions for all offenders (such as the initial assessment of their risk and the resolution of recalls and breaches);
• they will continue to supervise directly those offenders who present higher levels of risk;
• opening up to competition all probation services not directly provided by Probation Trusts. This will include competing the management and supervision of lower risk offenders, alongside other services to reform offenders such as accredited programmes. Those providing services under competition will be increasingly incentivised through payment by results to reduce reoffending;
• ensuring a diverse market of providers by encouraging the participation of the voluntary, private and public sectors, alongside new models for delivering public services such as joint ventures, social enterprises and Public Service Mutuals;
• allowing Probation Trusts to compete for services. In such cases, we will require them to become separate entities, independent of those Probation Trusts which are responsible for commissioning, giving advice to court, managing higher risk offenders and taking public interest decisions as set out above;
• strengthening local probation presence as the front line of offender management. We will support the joint commissioning of services for offenders between probation and key partners such as local authorities, health and the police;
• there may be potential over time for other public bodies, such as local authorities or, with a broadened statutory role, Police and Crime Commissioners to take responsibility for probation services. For the time being, we propose to make Probation Trusts accountable, through their contractual arrangements with the National Offender Management Service (NOMS), for working with Police and Crime Commissioners.

The Paper concludes: ‘If community penalties are to be taken seriously by offenders and command the confidence of sentencers and the public, they need to be effectively enforced. Targeted enforcement activity by Her Majesty’s Courts and Tribunals Service (HMCTS) has already brought improvements to fine collection rates, and this consultation sets out our plans for further improvements. Likewise, for community orders we want to ensure that offender managers have sufficient discretion and powers to ensure offenders comply with their sentence.
‘To be truly effective, sentences in the community should not only punish and reform offenders, but also ensure that offenders pay back to society for the harm they have caused. This consultation asks for views on how we can go further in ensuring as many offenders as possible make reparation to victims and take part in restorative justice approaches whenever appropriate.’

These seem to me to be ambitious aims, in principle to be welcomed. The challenge will be selling these ideas to the public, and ensuring that in these cash-strapped times there are adequate resources available to ensure that the objectives of the plans can be delivered. The Consultations run until the end of June 2012. Further developments will be reported here in due course.

For an introduction to the proposals see http://www.justice.gov.uk/news/features/punishment-and-reform