Martin Partington: Spotlight on the Justice System

There have been two important developments relating to the treatment of victims in the criminal justice system in recent months.

First, in January the Government announced the creation of  the National Victims’ Service. According to the Government, this is designed to guarantee all victims of crime and anti-social behaviour referred by the police more comprehensive and dedicated support, giving victims a louder voice in court through the introduction of the victim personal statement, trebling the funding available for victims’ services in the voluntary sector and introducing special measures which make it easier for vulnerable witnesses to give evidence.

Second, in March 2010, the Government announced the appointment of  a Victims’ Commissioner, whose role will include:

• working across the criminal justice system to improve the support for victims and witnesses, including victims of anti-social behaviour
• chairing the new Victims Advisory Panel and working with local and national victims groups to make sure the voice of victims is fed-back to and impacts directly on Government policy
• reviewing the code of practice for victims of crime, which provides a guarantee to victims of crime of the level of service they are entitled to.

The first Commissioner is Louise Casey, already well known for her work relating to anti-social behaviour.

Sections 44 to 49 of the Criminal Justice Act 2003 make provision for non-jury trial in cases where there is danger of jury tampering or where jury tampering has taken place. Although these provisions came into force on 24 July 2006 they were not used until 2010.

The case in question involved four men accused of armed robbery from a warehouse at London Airport. There had already been an earlier trial which had been halted on the grounds that there had been jury tampering. The Crown Prosecution Service argued that any further trial would equally be threatened by jury tampering. The Court of Appeal agreed and allowed the trial to proceed without a jury.

Initial indications are that these powers are going to be used only very rarely; of course, the potential danger is that, having been used once, their use becomes more common. My own view is that trials without jury will remain very much the exception

In a statement issued by the Lord Chancellor at the end of March 2010, shortly before Parliament rose for the General Election Campaign, the Government indicated that is was engaged in another major set of structural changes to the institutional framework of the English legal system – namely merger of the Courts and Tribunals Services. There was also mention of changing the institutional context within which the Parole Board operates.

The statement conceded that these changes would require a great deal of further work before they could be implemented. The details are unlikely to be available for some time. Underlying the proposals, however, is a clear intention within the Ministry of Justice that it should start to make its contribution to the substantial efficiency savings that all politicians agree must be achieved as part of the overall strategy of getting Britain’s public finances into better shape.

The final version of the DPP’s prosecution guidance in assisted suicide cases was published in February. There was a huge public response to the interim policy. (See September 2009 of this blog). The new guidance sets out in some detail the factors to be balanced in individual cases. The focus is very much on protection of the person who has committed suicide.

The sixteen public interest factors in favour of prosecution are:

• The victim was under 18 years of age.
• The victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide.
• The victim had not reached a voluntary, clear, settled and informed decision to commit suicide.
• The victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect.
• The victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative.
• The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim.
• The suspect pressured the victim to commit suicide.
• The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide.
• The suspect had a history of violence or abuse against the victim.
• The victim was physically able to undertake the act that constituted the assistance himself or herself.
• The suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication.
• The suspect gave encouragement or assistance to more than one victim who were not known to each other.
• The suspect was paid by the victim or those close to the victim for his or her encouragement or assistance.
• The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer (whether for payment or not), or as a person in authority, such as a prison officer, and the victim was in his or her care.
• The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present.
• The suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

The six public interest factors against prosecution are:

• The victim had reached a voluntary, clear, settled and informed decision to commit suicide.
• The suspect was wholly motivated by compassion.
• The actions of the suspect, although sufficient to come within the definition of the crime, were of only minor encouragement or assistance.
• The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide.
• The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide.
• The suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

Do you think this achieves a sensible balance between the interests of suspects and victims?

This Act completed its Parliamentary process in the final days before the General Election 2010 campaign started. The final Act was rather different in content from the Bill (see Box 3.2). While the Bill was before Parliament, a number of additions to it were made.

These included:

1. provisions on the nationality requirements  for civil servants
2. provision for a referendum on the voting  system
3. amendments to the Parliamentary Standards Act 2009
4. provisions  on the tax status of MPs and Members of the House of Lords
5. a  repeal of part of the Act of Settlement to allow non-British National  peers to take their seats in the House of Lords
6. a requirement  for returning officers to take reasonable steps to begin counting votes  given on ballot papers within four hours of the close of a poll

However,  during the final stages, the following were removed from the Bill:

• provisions  on the nationality requirements of civil servants
• the provision  for a referendum on the voting system
• provisions for the end of  the by-elections for hereditary peers
• the provisions allowing  for suspension, resignation and expulsion of Members of the Lords
• the  provisions on demonstrations in the vicinity of Parliament
• the  provisions on human rights claims against devolved administrations
• provisions  about courts and tribunals
• provisions on National Audit

In short the most controversial issues were left for discussion another time. The extent to which the matters dropped will be brought back will clearly depend on the Government’s priorities after the General Election

The Criminal  Procedure Rules Committee (mentioned in Chapter 5) has revised and consolidated the Criminal Procedure Rules. The new edition came into force in April 2010.

As discussed in the book, proposals for reforming the law made by the Law Commission do not always find their way onto the statute book. Issues seen as important by lawyers are not necessarily seen in the same light by politicians and their official advisers. To address this issue, the Law Commission Act 2009 now requires the Lord Chancellor to report annually to Parliament on the progress of recommendations from the Commission.

The new legislation is now supplemented by a protocol agreed between the Government and the Commission (mentioned in Sir James Munby’s podcast) designed to ensure closer collaboration between government and the Commission.

Under the protocol – laid before Parliament at the end of March 2010 – Government departments will:

• give an undertaking that there is serious intention to take forward law reform in the relevant area of law
• keep the Commission up to date on developments in policy that may impact on its proposals
• provide an interim response as soon as possible or in any event within six months of the Law Commission publishing its proposals and a full response as soon as possible or in any event within a year.

The Law Commission will:

• consult departmental ministers about potential law reform projects in their areas
• support all its final reports with an impact assessment
• take full account of the minister’s views in deciding whether and how to continue with a project at agreed review points.

The Advisory Panel on Judicial Diversity published an important report in February 2010, which made 53 recommendations for improving the selection of those appointed to become judges. The Ministry of Justice Press release summarised the main points:

“The panel made 53 recommendations, finding that:

• the diversity of those entering the profession is significantly greater than that of those who have the experience to apply for judicial office. Therefore, delivering a more diverse judiciary is not just about recruiting talent wherever it may be found, but also about retaining talent and enabling capable individuals to reach the top.
• the Judicial Appointments Commission should revise its criteria for assessing merit, to support and underline with greater clarity its commitment to diversity.
• Selection processes should be open and transparent, promote diversity and recognise potential, not just at the entry points to the judiciary but for progression within it to the most senior levels.
• appraisal, owned and run by the judiciary, should be consistently implemented throughout the judiciary. This was particularly requested by women and black, Asian and minority ethnic judges.
• the Judicial Studies Board should evolve into a Judicial College offering courses in ‘Developing Judicial Skills’.
• the legal profession, including law firms, should actively promote judicial office amongst those who are currently not coming forward, and, together with the judiciary, support and encourage talented candidates from under-represented groups to apply.
• a proactive campaign of mythbusting should be undertaken as many of the perceived barriers to diversity are not reflected in practice.
• there should be no quotas or targets for recruiting under-represented groups. But improvements must be made to the way data is captured and shared, so that there can be systematic evaluation of what works and progress can be monitored against agreed benchmarks.”

The Panel also recommended the creation of a judicial diversity taskforce to oversee progress. The report can be found at http://www.justice.gov.uk/publications/judicial-diversity-report.htm.

The idea of the Judicial Studies Board becoming a Judicial College is not in fact a new one. And in the context of its work with tribunals it has long offered instruction on ‘judgecraft’. Applying this to the rest of the judiciary is very welcome – and recognises that judging is a craft that can be taught – not an innate ability that some have and others do not.

A new website http://www.justice.gov.uk/news/newsrelease100310b.htm gives a link to a mock trial where you can see what thought needs to go into the sentencing process. Give it a try and let me know what you think?