Martin Partington: Spotlight on the Justice System

From 1 October 2011, the National Mediation Helpline has been replaced by a new on-line directory of accredited mediators, who provide mediation services for people in dispute on a civil law matter. Mediation is provided for a fixed fee, which varies according to the amount of money in dispute. The fees are set out on the first page of the website. It makes the process of finding a mediator very easy and is clearly designed to encourage use of mediation in the dispute resolution process.

For details see http://www.civilmediation.justice.gov.uk/

Unlike the situation in many other countries, the televising of court proceedings has not been a central feature of the English Legal System.

There are signs of significant change on the horizon.

First, the Supreme Court has already decided not only to let television companies make documentary programmes about its work (see this blog Feb 2011) but also to enable Sky TV viewers to see full broadcasts of its proceedings. For further details see http://news.sky.com/home/supreme-court.

Second, Justice Minister Ken Clarke has announced that limited televising of proceedings will be allowed. Initially this will be limited to the Court of Appeal where filming will be of judges’ summary remarks only;  victims, witnesses, offenders and jurors will not be filmed. He has stated that this may be extended to the Crown Court at a later date.

This second step will not take place overnight, however. Legislative change is required to repeal  Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981, which currently forbid the broadcasting of court proceedings. See further http://www.justice.gov.uk/news/press-releases/moj/moj-newsrelease060911a.htm.

One consequence of these developments may be that members of the public who think that most cases are heard by courts will be reinforced in this view, whereas readers of the book will know that in every area of the law, save perhaps family law, great number of issues are disposed of outside court proceedings.

Nonetheless, I welcome this development and suspect that in a year or two people will wonder why we took so long to reach this position.

The Legal Aid, Sentencing and punishment of offenders Bill 2011 is the big one, certainly so far as the legal system is concerned. It is a complex measure, attempting to achieve three quite distinct policy objectives. Underpinning much of it is the Government’s desire to cut public expenditure.

This is seen most clearly in Part 1 which deals with legal aid. The long awaited abolition of the Legal Services Commission is contained in the Bill, together with provision of the appointment of a Director of Legal Aid who will head up a new agency within the Ministry of Justice. In practical terms, it is the changes (i.e. cuts) to civil legal aid that are likely to have the most significant impact on the ground. The Bill gives legislative effect to the Government’s proposals to make fundamental changes to legal aid – which will take a lot of issues currently in scope of the legal aid scheme out of the scope of legal aid, will increase the charges paid by members of the public for getting legal aid assistance and reduce the sums paid to lawyers who provide legal aid services.

Arguments that have been made by many – not just lawyers – about the impact these changes will have on access to justice have been met by the Government’s counter argument that the UK spends too much on legal aid – far more than most other countries. It has to be said, however, that by comparison with the proposals for reform of sentencing (see below) these changes have not actually received much attention in the mass media.

Details of the proposals for change can be found at http://www.official-documents.gov.uk/document/cm80/8072/8072.pdf.

Part 2 of the Bill deals with recommendations of Lord Justice Jackson about making changes to the current system of ‘no-win-no-fee’ Conditional Fee Agreement cases, to limit the amounts that lawyers can charge by way of success fees.

The Government argues: [CFAs] have played an important role in extending access to justice but they also enable claims to be pursued with no real risk to claimants and the threat of excessive costs to defendants. It cannot be right that, regardless of the extreme weakness of a claim, the sensible thing for the defendant to do is to settle, and get out before the legal costs start running up. This is precisely what has happened and it is one of the worst instances of this country’s compensation culture…

[T]he Government believes that the right way forward is to abolish the recoverability of CFA success fees and ATE insurance premiums.

The Bill provides for these changes: for more detail see also http://www.official-documents.gov.uk/document/cm80/8041/8041.pdf.

The final part of the Bill deals with proposals for reforming sentencing. These issues were debated heavily in the press, with the Justice Secretary facing a lot of criticism that he was being ‘soft on crime’ – wanting to keep people out of prison to save money. The quite respectable argument – which at the least demands a careful hearing – that more might be done to turn people away from crime if they were not in prison was a subtlety that got lost in much of the mass media.

In the light of the decision not to proceed with the idea for giving those pleading guilty to charges a higher discount from their sentence than they can currently get, the Bill’s proposals are more modest than were originally envisaged by the Government when it published its Consultation Paper on the reform of Sentencing in November 2010.

The Bill is currently in the Committee stage, which will end in mid-October 2011. I estimate that the Bill will pass into law early in 2012.

Details on all three components of the Bill will be considered further here and in the book in due course.

One of the items I have not yet commented on here are the Government’s draft proposals for a smaller, reformed House of Lords, to which members are elected, which were published in May 2011. The question of House of Lords reform has been debated for well over 100 years; and there have been major changes – significant reductions in the numbers of hereditary peers; introduction of life peers. But till now no elected members.

The proposals, contained in the a draft House of Lords Reform Bill  and accompanying White Paper, set out possible options for how a reformed House could look. While the draft Bill sets out firm proposals, the White Paper also considers alternative options on which the Government remains open-minded. For example, the Bill proposes that 80% of the reformed House should be elected, with 20% being appointed by a special appointments commission to sit as independent cross-benchers; the White Paper considers the case for a 100% elected body.

Key proposals contained in the draft House of Lords Reform Bill include:

• a reformed House containing only 300 members, considerably smaller than the present House. Members would be paid a salary, rather that simply claim expenses and a daily allowance as currently happens;
• those elected would be eligible to sit for a single term of three parliaments (i.e. roughly 15 years). Life and hereditary appointments would disappear;
• elections using the single transferable vote (STV), electing a third of members each time with elections normally taking place at the same time as General Elections. The White Paper acknowledges that other modes of election might also be considered;
• the franchise would be based on multi-member electoral districts, drawn up independently based on national and county boundaries;
• there would be a continuation of the presence of Bishops of the Church of England in the House of Lords, though their number would be reduced from 26 to 12;
• the new membership elections would be staggered over the course of three electoral cycles, which once complete would ensure that there was a continual renewal of a third of the House.

As regards the functions of the House of Lords, both the draft Bill and White Paper are clear that the powers of the reformed House of Lords should remain the same. It would continue with its legislative functions of scrutinising legislation; it would also continue its investigative and accountability functions through its Select Committee, thereby complementing the work of the Commons.

It is the Government’s intention that the first elections take place in 2015. The draft Bill and White Paper are currently being considered by a Joint Committee, composed of 13 peers and 13 MPs, before legislation is introduced next year.

Although the Bill is an important component of the Coalition Government’s programme, it has already drawn some pretty hostile reaction, both from those who think it goes too far, and those who thinks it does not go far enough. We will clearly return to the issue in the next (academic) year how far the weight that the Prime Minister and Deputy Prime Minister have put behind the proposals is able to push the proposals.

What do you think of them? Should Church of England Bishops retain a right to sit, whereas other religious leaders have no such right? Should the body be wholly elected? Should the name of the House of Lords be changed – given the new system of appointment? If so, what should be the name? Senate?

For full details of the proposals, go to http://www.cabinetoffice.gov.uk/resource-library/house-lords-reform-draft-bill

In a new report, the Administrative Justice and Tribunals Council makes the argument that there are too many successful appeals before tribunals, the result of poor decision taking within government. It argues there should be more emphasis on ‘getting it right’; and that departments that have unacceptably high levels of successful appeals should be made to help fund the tribunals and ombudsmen that sort incorrect decisions out. The following note is taken from the executive summary.

‘The report‘s key message is that public bodies can save money and improve the quality of service by making fewer mistakes and learning more from those they do make.

‘Every day, public bodies make thousands of decisions about individuals across a diverse landscape – welfare benefits, immigration, education, tax, health and so on. Unfortunately, evidence suggests that far too many of these initial decisions are incorrect. Across the public sector there are high volumes of
appeals (over a million each year) against decisions and complaints about service provision. A worrying proportion of these appeals  and complaints – nearly 40 per cent in some cases – are upheld by tribunals or ombudsmen.

‘Incorrect decisions impact significantly on the lives of those directly concerned. Compounding the problem is the repetition of these expensive errors. Too few public bodies have in place feedback mechanisms to ensure that the outcomes of appeals and complaints are understood throughout the organisation.

‘Getting it right first time saves money. Mistakes result in considerable costs for the users of public services, the organisations concerned, and for the wider  public purse. There is little evidence that the financial costs of not getting it right first time are fully understood by public bodies, partly because many of the  costs can be off-loaded to tribunals and ombudsmen. As a result, the precise financial cost of poor decision-making and poor service delivery is unknown.

‘Poor service and waste of public money are unacceptable. The need for a sustained initiative to tackle the problem is long over-due. Public bodies must make it a priority to reduce mistakes and the financial and non-financial costs which go with them. This is particularly important at a time when there are  significant cutbacks in public spending.

‘Taking evidence from previous studies and two case studies conducted as part of this project, this report explains what right first time means and offers  practical advice on how public bodies can ensure that their decision-making or service delivery meets that standard.

‘Right first time’ means:
• making a decision or delivering a service to the user fairly, quickly, accurately and effectively;

• taking into account the relevant and sufficient evidence and circumstances of a particular case;

• involving the user and keeping the user updated and informed during the process;
• communicating and explaining the decision or action to the user in a clear and understandable way, and informing them about their rights in relation to  complaints, reviews, appeals or alternative dispute resolution;
• learning from feedback or complaints about the service or appeals against decisions;
• empowering and supporting staff through providing high quality guidance, training and mentoring.

‘A key finding of the study is that in order to get things right first time, public sector bodies must be learning organisations, always understanding their users and genuinely putting their perspective at the heart of processes and systems. The report identifies the fundamentals of right first time as Leadership, Culture,
Responsiveness, Resolution, and Learning.

‘The study also highlights Practical Steps that should be adapted and followed by leaders of public bodies when reviewing their services and attempting to establish a right first time approach. These Practical Steps relate to undertaking analysis, deciding on action and encouraging monitoring and learning.

‘Public bodies with responsibility for making original decisions must take the lead in improving the quality of the service they offer. All such bodies should carry out a review of their systems, procedures and decision-making structures, using the guidance offered in the Practical Steps, to ensure that they are doing all they can to get decisions right first time. As part of this, they should audit and
report on the volumes and costs of handling appeals, complaints and reviews on an annual basis. In addition, they must take demonstrable steps to feedback learning from appeals and complaints.

‘Embedding and supporting right first time in the culture and practice of administrative justice must also be seen as the responsibility of governments and parliaments.

‘The report argues that it is time to adopt a ‘polluter pays’ approach to help promote a right first time culture. Tribunals (including, but not limited to, those within the Tribunals Service) are currently carrying a heavy share of the financial burden caused by incorrect decisions.

‘It recommends the development of funding models by which original decision-making organisations contribute to the cost of running tribunals through direct reference to the volume of successful appeals they generate.

‘This report is intended to be a practical working tool to help public bodies  improve their performance, thereby reducing stress and cost for both end users and for the administrative justice organisations who deal with complaints and appeals. It is vital that all bodies serving the public should improve the quality of decision-making.

‘By implementing the findings and recommendations of this report they will not only save money but will help to improve the public’s trust and confidence in public services.’

For further information see http://www.justice.gov.uk/ajtc/docs/AJTC_Right_first_time_web%287%29.pdf

In April 2011, I commented on the creation of HM Courts and Tribunals Service – the single executive agency responsible for running both courts and tribunals.

In this note I comment on two matters:

judicial diversity; and access to tribunals.

Judicial diversity: One of the arguments made in favour of merging courts and tribunals was that the merger would make it easier for those appointed to chair tribunals also to as judges in the courts. This idea is being actively developed in the context of thinking about ways of increasing judicial diversity – i.e. ensuring that the judiciary is better balanced in terms of the numbers of women judges and judges from ethnic minority groups.

This is an issue that the Judicial Appointments Commission has been grappling with for some time. It is now clear that judicial leaders and others engaged in the judicial appointments process are coming to see how the merger of courts and tribunals can enable new thinking to develop about judicial careers – with people gaining judicial experience in a variety of judicial contexts, both tribunals and courts.

The Judicial Diversity Taskforce has recently published a report on progress towards greater diversity, in which this benefit from the merger of courts and tribunals is particularly noted. See: Improving Judicial Diversity; Progress towards delivery of the ‘Report of the Advisory Panel on Judicial Diversity 2010’ available at http://www.justice.gov.uk/downloads/publications/policy/moj/judicial-diversity-report-2010.pdf

Access to tribunals: One feature of the current system of tribunals is that, for the most part, access to them is free to users. The merger of Courts and Tribunals, combined with the economic challenges facing the current government has caused officials to start a process of identifying those tribunals which should charge fees and what those fees should be. The recent update on the delivery of the MoJ Business Plan indicates that this work should be completed by the end of 2011.

If changes on the lines contemplated are introduced this will do much to change the accessibility of members of the public to tribunals. While it is not possible to prejudge the outcome of this review at this stage, it is worth noting that many of those concerned with the future development of administrative justice view these potential developments with considerable alarm.

For example, in responding to a Ministry of Justice consultation on introducing fee charges for appeals in the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, the Administrative Justice and Tribunals Council argued against the introduction of fees in individual vs state jurisdictions as such charges fall on individuals who already face a massive inequality of arms in challenging state decisions. From this perspective a compelling argument would need to be made in favour of the imposition of fees to persuade the Council that fees should be introduced. The consultation paper contained no such argument.

The Council is not opposed in principle to the charging of a fee for the underlying public service of providing and administering the system of immigration visas. However the AJTC remains concerned about any proposal that treats tribunals as if they were providing a chargeable public service like any other. They are not. It has been well established for more than half a century that tribunals are necessary to provide an independent mechanism by which individuals can seek redress for alleged mistakes by government departments and other public bodies. Individuals should not have to pay a second time to challenge mistakes in a situation where the state is alleged to have been at fault.

Most unfair of all is the suggestion that appellants will not receive a refund of appeal fees even if the Home Office withdraws its case or the appellant wins his or her case. Collectively, these proposals appear to place administrative ease and income generation above basic principles of fairness and justice which in the Council’s opinion is unacceptable.

The Council considers that a major factor in the cost of the appeal system is a lack of effective incentives for initial decision takers to get their decisions right first time. The current proposals fail to recognise that the failure rate in original decision making by the UK Border Agency is unacceptably high. The Council recognises that improvements are being made but the introduction of appeal fees does not appear to encourage UKBA and Tribunals Service staff to make the correct decisions. It actually reduces any existing incentive. This cannot be the right way to proceed if public services are to improve. See http://www.justice.gov.uk/ajtc/adjust/articles/feesinequality.htm

This robust line of argument is worth bearing in mind as further proposals for fee charging start to emerge from the Government

The increased use of ways of dealing with offenders outside the formal court system is noted in the book in Chapter 5, p 149. The particular focus there was on the use of so-called ‘on-the-spot fines’ for public order offences. But there are other out of court disposals available as well, e.g. cautioning.

While the use of such methods of disposal may be appropriate for first-time youth offenders – to prevent them getting a criminal record, which may impact on their ability to get employment later in life – such disposals do evade the ‘due process’ features of the criminal court process. They would not seem to be particularly appropriate for persistent offenders.

In an important and interesting report, undertaken jointly by HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate, called ‘Exercising Discretion: The Gateway to Justice’ the following points emerge.

1. The number of crimes that are dealt with outside the formal criminal justice system has risen dramatically in a five year period by 135 percent. The most commonly used out-of-court disposals – warnings, cautions and penalty notices for disorder – now account for around one third of the 1.29 million offences brought to justice. When restorative justice outcomes – which are not currently included in national data – are added to this figure it is clear that out-of-court disposals have become an increasingly important tool in the fight against crime for both police officers and prosecutors.

2. When out of court disposals are used effectively, particularly restorative justice where offenders are encouraged to repair the harm they have done, we found high levels of victim satisfaction, promising signs of a reduction in re-offending, and minimal bureaucracy when the offender was dealt with quickly.

3. However, the inspection found significant variations in the use of out-of-court disposals around the country ranging from 26% of offences brought to justice in one criminal justice area to 49% in another. Choosing an out-of-court disposal or prosecution in court will have very different consequences for individuals depending on the requirements to keep a record of the result for disclosure to a court or a prospective employer. Local variations in practice are inevitable and expected but the inconsistencies we have identified mean that some offenders will receive differential treatment depending on where they were found or where they live.

4. In a small sample of 190 out-of-court disposals, the inspection found that about a third were administered inappropriately. In most of these cases, an out-of-court disposal was inappropriate as the offending was too frequent or serious.

The report concludes that while out-of-court disposals are a legitimate way of dealing with some criminality, more work needs to be done to improve consistency and prevent inappropriate use. A national strategy that brings greater transparency and consistency in the use of out-of-court disposals is now urgently required based on a proportionate response to the level of offending and the nature of the offender, what works to improve victim satisfaction, reduce re-offending and gives value for money for communities who ultimately foot the bill.

The full report may be seen at http://www.hmic.gov.uk/SiteCollectionDocuments/Joint%20Inspections/CJI_20110609.pdf

What do you think? How should the balance be struck between formal and informal processes?

The Government’s plans for a National Crime Agency, to be established by April 2013, have been taken a stage further with the publication by the Home Office of the paper ‘National Crime Agency – a plan for the creation of a national crime-fighting capability’.

The Paper state: ‘Sharing intelligence, capabilities, expertise and assets, the NCA will comprise distinct Commands for Organised Crime, Border Policing, Economic Crime, and the Child Exploitation and Online Protection Centre. Each Command will be led by a senior experienced individual and will manage its own priorities and risks.’

Full details of the plans, as they currently stand, are published at http://www.homeoffice.gov.uk/publications/crime/nca-creation-plan?view=Binary