Posts Tagged ‘criminal justice system’
Impact of Covid-19 on the criminal justice system: the view of the Criminal Justice Inspectorates
There are 4 Inspectorates which have statutory power to keep different parts of the criminal justice system under review: prosecution, police, prisons, and probation. Covid-19 has impacted all aspects of the system.
While the inspectorates have on many occasions worked with each other (on some occasions with other agencies outside the criminal justice system), it is rare for all 4 of the criminal justice inspectorates to come together to write a joint report on a single issue. The impact of Covid-19 on the criminal justice system has been the trigger for their latest report, Impact of the pandemic on the criminal justice system, which was published on 19 January 2021.
As the press release to the report makes clear, each of the Inspectorates has been examining the impact of Covid-19 on their individual parts of the system. They have already published or will soon be publishing their own individual resports on the impact of the virus.
But the Chief Inspectors are obviously extremely concerned about the enormous stresses being placed throughout the criminal justice system – not all deriving from the pandemic, but to which the pandemic has added new dimensions.
In their joint report, the Chief Inspectors draw together common issues which are discussed in each of their studies. They spell out how the Covid-19 pandemic has affected the work of the police, prosecutors, prisons, probation and youth offending teams. They point to difficulties and lengthy waits at all stages of the criminal justice process observing that delays “benefit no one and risk damage to many”.
While the Chief Inspectors were able to praise some positive initiatives that had been taken during the Covid-19 pandemic, including the acceleration of digital working, and the commitment of staff, other areas were of more concern. They included the lack of education provision in custody and in the community for young people and the highly restrictive regimes imposed on a majority of prisoners which have continued for many months without respite, impacting negatively on their physical, emotional and psychological wellbeing and also more generally on prospects for effective rehabilitation.
In the Chief Inspectors’ view, the greatest risk to criminal justice comes from the “unprecedented and very serious” backlogs in courts. The number of ongoing cases in Crown Courts was 44 per cent higher in December 2020 compared to February of the same year. Latest figures show more than 53,000 cases are waiting to come before Crown Courts. Some of these cases have been scheduled for 2022. Despite additional funding, the continuing impact of Covid-19 is likely cause further delays.
A particular source of frustration are cases which have been listed for trial but are then cancelled and postponed, all adding to the stress of victims as well as of the accused.
The Joint Report has been used as the basis for a meeting with the Justice Select Committee which is very concerned about the impact of Covid-19 on the Justice system and indeed reported on the issue in October 2020.
The evidence in this report clearly demonstrates the potential importance of the proposed Royal Commission on the Criminal Justice system. The delay in establishing this, which I have criticised before, is a real source of frustration for all those who want to see major improvements in the operation and effectiveness of the Criminal Justice system.
Details of the Joint Report can be found at https://www.justiceinspectorates.gov.uk/cjji/inspections/impact-of-the-pandemic-on-the-criminal-justice-system/
The evidence of the Chief Inspectors to the Justice Committee is at https://committees.parliament.uk/committee/102/justice-committee/news/138547/committee-gets-early-sight-of-criminal-justice-system-report/
Independent Review of Criminal Legal Aid – announcement
Just before Christmas, the Government made the long awaited announcement that the independent review of Criminal Legal Aid would start work in January 2021 – with a view to reporting by the end of 2021. The Chair of the Inquiry is to be Sir Christoher Bellamy, a retired judge – formerly President of the Competititon Appeal Trbunal. He will be supported by an Expert Panel, though the composition of the Panel has not yet been announced
The announcement contains a link to the terms of reference for the inquiry which set out in rather more detail than usual the aims of the inquiry and some of the issues it is required to take into account. The document states that the Criminal Legal Aid Review ‘has two main objectives’:
- To reform the Criminal Legal Aid fee schemes so that they:
• fairly reflect, and pay for, work done.
• support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce.
• support just, efficient, and effective case progression; limit perverse incentives, and ensure value for money for the taxpayer.
• are consistent with and, where appropriate, enable wider reforms.
• are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies; and
• ensure cases are dealt with by practitioners with the right skills and experience. - To reform the wider Criminal Legal Aid market to ensure that the provider market:
• responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer.
• operates to ensure that Legal Aid services are delivered by practitioners with the right skills and experience.
• operates to ensure the right level of Legal Aid provision and to encourage a diverse workforce.
The document also states that ‘ultimate objective of the Criminal Legal Aid System is to provide legal advice and representation to those who most need it’ and that in order to achieve this overarching objective,
“the Independent Review will seek to make recommendations that will ensure the Criminal Legal Aid System:
a. provides high quality legal advice and representation;
b. is provided through a diverse set of practitioners;
c. is appropriately funded;
d. is responsive to user needs both now and in the future;
e. contributes to the efficiency and effectiveness of the Criminal Justice System;
f. is transparent;
g. is resilient; and
h. is delivered in a way that provides value for money to the taxpayer.”
Furthermore “in order to conduct this analysis, the review will consider the following themes:
- resilience
- transparency
- competition,
- efficiency; and
- diversity.
For criminal legal aid practitioners this is a very important moment. It is clear that the current criminal legal aid is not working as it should. The question remains whether, despite the generally positive tone of the initial press release, a substantially reformed system will ultimately be implemented. This will be an important test for both Government and the legal professions. Much will depend on the political skills of the Lord Chancellor in ensuring that the resources to reform the system are available.
The announcement is at https://www.gov.uk/government/news/independent-review-into-criminal-legal-aid-to-launch-in-january. This includes the link to the terms of reference.
Sentencing Act 2020 given Royal Assent
On 22 October 2020, the Sentencing Act 2020 received the Royal Assent. A commencement date has not yet been set, but once it is, the Sentencing Code – which the Act contains – will come into force.
I have considered the content of the Code at https://martinpartington.com/2020/07/21/enacting-the-sentencing-code/
This is a significant achievement, undertaken by the Law Commission, which hopefully will bring greater clarity to the rules which the courts must apply when they sentence those convicted of crimes.
A press notice is at https://www.gov.uk/government/news/sentencing-code-granted-royal-assent
Covid-19 and the English Legal System (15) – Criminal Justice in existential crisis?
On Friday 30 October 2020 a research consultancy, Crest, published a report Impact and legacy of Covid-19 on the CJS: Modelling overview. Using existing data to model future developments, the report set out what it regarded as the possible impact of Covid-19 on the Criminal Justice System.
The rather sober title of the report was not matched by the press release Crest drafted to draw attention to its study. This was headed “A perfect storm: why the criminal justice system is facing an existential crisis”. This apocalytic vision certainly caught the eye of some journalists – which is of course the reason why I am now writing about it now.
And the report is a really important one, which underscores the urgent need for the Government to get on with the appointment and work of the promised Royal Commission on the Criminal Justice system. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)
The report starts by reminding readers that, even before Covid-19, the CJS was facing a number of long-standing problems: decreasing charge rates, worsening court timeliness and an estimated backlog in the courts of c.104K
cases, prisons and probation operating at full capacity. Covid-19 has added to those pressures. The report also predicts a future of increased pressure, the consequence of the likely rise in long term unemployment due to the economic impact of Covid, leading to more crime, and the 20,000 increase in police officer numbers, leading to more detection and the need to process more people through the system.
The research team’s modelling suggests, that without any action, the Crown Court backlog is projected to increase from c.45.5K in 2019 in to c.195.5K (x4) in 2024. and the magistrates’ court backlog is projected to increase from c.58.6K in 2019 to 580.3K (x10) in 2024.
Current responses by Government – e.g. making more courts covid-safe and opening Nightingale Courts in a number of town – just do not cut the mustard, in Crest’s view. Much more dramatic action is needed.
The principal criticism contained in the report is that there is currently no ‘whole-system’ view of the challenges facing the CJS. Different parts of the system work in isolation from other parts.
For example: the 20K police uplift will lead to a rise in pressure on the court backlogs; if the courts increase their outflow in sentenced cases, there will be a rise in pressure on prisons and probation.
Furthermore, assuming equilibrium is achieved in courts, suspended sentence orders are projected to increase by 24%, post-release supervision caseload will increase by 30% and community sentence orders are projected to increase by 14% by 2024. This will put extreme pressure on a probation service which was already underperforming.
There is, in the report’s view, inadequate recognition within Government of the interdependencies of each part of the criminal justice system.
The Crest report states that
“to bring the backlog back to pre-Covid levels will require a change in more than just capacity.
Options include:
● increasing the speed with which cases are dealt with: e.g. increasing the efficiency of listing, decreasing victim attrition, decreasing cracked trials etc.
● decreasing the amount of cases entering the court system by increasing effective out of court disposals
● decreasing the amount of police recorded crime originally entering the CJS through effective crime prevention programmes.”
I think some would argue that this list of options is not an original one. All these ideas have been discussed within the CJS, and achieving the outcomes suggested in the report is not easy. But what this report has very effectively done is highlight precisely the challenges that the now increasingly delayed Royal Commission must address. It should be a matter of urgency for the Government to get the Commission up and running.
The Crest Report is available at https://www.crestadvisory.com/post/covid-19-and-the-criminal-justice-system
Jury trials – a case for change?
One response to the difficulties of running jury trials in the current Covid-19 world, where social distancing is crucial yet difficult to achieve in a crowded courtroom, has been that – at least temporarily – alternatives to juries should be tried.
The Lord Chancellor has set his face against this idea. Indeed, most people who even float the idea that jury trials should be abolished tend to be treated with scorn.
Nevertheless, it is worth noting that there is the occasional voice to be heard, suggesting that jury trial is not all that it is cracked up to be.
In this context, readers of this blog might be interested in a book, published in 2019, by the late Louis Blom-Cooper QC who suggested that criminal trials might be run differently.
In Unreasoned Verdict, Blom-Cooper argues that:
The system of jury trial has survived, intact, for 750 years. This book explains the nature and scope today of jury trial, with its minor exceptions. It chronicles the origins and development of jury trial in the Anglo-Saxon world, seeking to explain and explore the principles that lie at the heart of the mode of criminal trial. It observes the distinction between the professional judge and the amateur juror or lay participant, and the value of such a mixed tribunal. Part of the book is devoted to the leading European jurisdictions, underlining their abandonment of trial by jury and its replacement with the mixed tribunal in pursuance of a political will to inject a lay element into the trial process. Democracy is not an essential element in the criminal trial.
The book also takes a look at the appellate system in crime, from the Criminal Appeals Act 1907 to the present day, and urges the reform of the appellate court, finding the trial decision unsatisfactory as well as unsafe.
Other important issues are touched upon – judicial ethics and court-craft; perverse jury verdicts (the nullification of jury verdicts); the speciality of fraud offences, and the selection of models for various crimes, as well as suggested reforms of the waiver of a jury trial or the ability of the defendant to choose the mode of trial. The section ends with a discussion of the restricted exceptions to jury trial, where the experience of 30 years of judge-alone trials in Northern Ireland – the Diplock Courts – is discussed.
Finally, the book proffers its proposal for a major change in direction – involvement of the defendant in the choice of mode of trial, and the intervention (where necessary) of the expert, not merely as a witness but as an assessor to the judiciary or as a supplemental decision-maker.
I think it highly unlikely that there will be any change in the foreseeable future. But that does not mean that arguments against the ways in which juries are currently used should not at least be considered and debated to see whether there might be alternative arrangements that might work better and more fairly.Source: adapted from publisher’s notice at https://www.bloomsburyprofessional.com/uk/unreasoned-verdict-9781509915224/
Royal Commission on the Criminal Justice system – details awaited
In the Queen’s Speech, delivered in December 2019, it was announced that the Government would establish a Royal Commission to review and improve the efficiency and effectiveness of the criminal justice process. Little has been heard of this proposal since then. However, in recent meetings with the House of Commons Justice Committee, the Lord Chancellor made it clear that he has been given the resources needed to enable the establishment of the Commission.
At present – and no doubt reflecting other more pressing priorities driven by Covid 19 – no further information is available. It is, however, likely to be a broad-ranging inquiry, not only limited to the operation of the courts, but taking other aspects of the criminal justice system into account as well.
A separate consultation on the Criminal Legal Aid scheme closed in June 2020. The results of that inquiry are likely to be published towards the end of 2020. A number of interim changes to the criminal legal aid scheme were announced in February 2020.
For the Queen’s Speech, December 2019, see https://www.gov.uk/government/speeches/queens-speech-december-2019
The announcement of the consultation on Criminal Legal aid is at https://www.gov.uk/guidance/criminal-legal-aid-review
Reaction of the Law Society is at https://www.lawsociety.org.uk/en/topics/criminal-justice/criminal-legal-aid
Covid 19 and the English Legal System (6): the Criminal Justice crisis [stop press]
The huge backlog of criminal trials, resulting from the Covid 19 pandemic, is clearly very worrying for those responsible for managing the Criminal Justice system/
Two specific ideas for dealing with this have been floated in recent days.
In evidence to the House of Commons Justice Committee to be given on 23 June 2020, the Lord Chief Justice is likely to be promoting his favoured idea, that trial by a 12 person jury should be replaced by a trial judge sitting with two assessors.
The Human Rights Group JUSTICE has been conducting experiments using a virtual jury – in which 12 jury members join a virtual hearing online.
I declare an interest. I am a member of the Council of JUSTICE. Last Friday I watched an extract from the 4th virtual trial, which was being held on a pilot basis. I was extremely impressed and many of those who engaged in the process commented on the realism of the proceedings.
JUSTICE argues that this experiment should be expanded and that virtual jury trials should be used much more widely. These should be seen as preferable to the introduction of trials heard by judges sitting just with 2 assessors. Those who agree with this view are asked to convey their thoughts to the Justice Committee, inviting them to take their comments into account in their deliberations.
The Justice Select Committee website is at https://committees.parliament.uk/work/254/coronavirus-covid19-the-impact-on-prison-probation-and-court-systems/
The JUSTICE work on the impact of Covid 19 can be found at https://justice.org.uk/our-work/justice-covid-19-response/
Covid 19 and the English Legal System (5): Parliamentary inquiries (revised)
Those interested in how key actors in the legal world are trying to cope with the implications for the English Legal System of Covid-19 might care to follow the work – currently on-going – of two Parliamentary Select Committees.
The House of Commons Justice Committee launched an inquiry into Coronavirus (COVID-19) on 31 March 2020. It is examining the impact on prisons, the probation service and the court systems. They have held three evidence gathering sessions in which they heard from a number of key witnesses, including the Lord Chief Justice, the Minister of State, key officials from Prisons and Probation, the Chair of the Magistrates Association. It is likely that the Committee will publish a relatively short report in the course of the next few weeks.
At the same time on 13 May 2020, the House of Lords Constitution Committee opened an inquiry into the Constitutional implications of Covid 19. This will be a more wide-ranging inquiry than that being held by the Commons Justice Committee.
The announcement of the inquiry states:
The Covid-19 pandemic and the Government’s measures to respond to it have significant constitutional implications, as well as health, social and economic ones. These include:
- The ability of Parliament to hold the Government to account
- Scrutiny of emergency powers
- The operation of the courts
The Constitution Committee will consider these issues and other related matters as part of an umbrella inquiry into the constitutional implications of Covid-19. The Committee will initially explore questions such as:
- What can Parliament do to maximise its scrutiny of the emergency regulations and to hold the Government to account effectively during lockdown? How are adjustments to procedures and processes working in the House of Lords?
- What are the consequences for different ways of Parliament working on effectiveness, accessibility, fairness and transparency?
- What emergency powers has the Government sought during the pandemic and what powers has it used and how?
- What lessons are there for future uses of emergency powers, their safeguards and the processes for scrutinising them?
- How has the Government used both law and guidance to implement the lockdown and what have been the consequences of its approach? How has this varied across the constituent parts of the United Kingdom?
- What liberties has Parliament loaned the Government during lockdown? What are the processes for reviewing and returning them? Are the sunset provisions in the Acts and regulations sufficient?
- How is the court system operating during the pandemic? What has been the impact of virtual proceedings on access to justice, participation in proceedings, transparency and media reporting?
- How will the justice system manage the increasing backlog of criminal cases? Is it appropriate to rethink the jury system during the pandemic, and beyond, and if so how?
To date, the Committee has issued a call for evidence and has had a number of hearings at which oral evidence has been presented. Among the witnesses who have already given evidence is the ‘guru’ of the use of IT in the delivery of legal services, Prof Richard Susskind and the leading researcher on the justice system, Prof Dame Hazel Genn.
I suspect this report will take somewhat longer to appear than that of the Commons Committee.
In addition to these two inquiries which cover many aspects of the working of the legal and justice systems, in mid-May 2020, the House of Commons Public Administration and Constitutional Affairs Committee also launched an inquiry: Responding to Covid-19 and the Coronavirus Act 2020. The aim of this inquiry is set out as follows:
The Coronavirus Act 2020 was emergency legislation passed by Parliament on 25 March, to provide the Government with the powers it wanted to tackle the Covid-19 pandemic in the UK.
Under section 98 of the Act 2020, every six months there is “parliamentary review” which means that the Government must, so far as is practicable, make arrangements for the following motion to be debated and voted on: “That the temporary provisions of the Coronavirus Act 2020 should not yet expire.”
PACAC is launching an inquiry to scrutinise the constitutional and public administration aspects of the Act, with the goal of supporting and informing that debate.
It has issued a call for evidence but has not to date arranged for any meetings or hearings.
For links to all these inquiries see:
The Justice inquiry is at https://committees.parliament.uk/work/254/coronavirus-covid19-the-impact-on-prison-probation-and-court-systems/
The House of Lords Constitution Committee is at https://committees.parliament.uk/work/298/constitutional-implications-of-covid19/
The evidence of Profs Susskind and Genn is at https://www.parliamentlive.tv/Event/Index/0f0810d1-9489-4506-9108-139f6d4f221e
The PACAC inquiry is at https://committees.parliament.uk/work/310/responding-to-covid19-and-the-coronavirus-act-2020/
All evidence sessions held by Parliamentary Committees can be accessed at https://parliamentlive.tv/Commons.
Transformation: Courts and Tribunals, 2022: HMCTS and MoJ respond to the Public Accounts Committee
I noted in 2018 the critical report from the National Audit Office (see this blog June 2018) and the subsequent report (which I labelled ‘brutal’) from the Public Accounts Committee (see this blog October 2018) on the courts and tribunals transformation programme.
Well, now the Ministry of Justice and HM Courts and Tribunals Service have come back with a series of replies, setting out the progress that has been made with the transformation programme, and setting out targets for the following 6 months.
Between November 2018 and February 2019, MoJ and HMCTS published no fewer than 6 reports, each one responding individually to the six principal criticisms made by the Public Accounts Committee.
The most fundamental question is whether the timeframe for the delivery of the transformation programme is being adhered to. The report on Recommendation 1 – which deals with this question – acknowledges that parts of the programme have not yet been started while listing a substantial body of completed work.
Other responses deal with:
- the impact of the transformation programme on users;
- engagement with stakeholders;
- the financial implications of the transformation programme on the wider justice system;
- evaluating the impact of the reform programme on access to justice and the fairness of the justice system; and
- balancing the portfolio of change projects to ensure that there is some flexibility and an ability to respond to financial pressures.
Interestingly, less than a month after the publication of the latest of these reports a Press Release in March stated that at least some aspects of the Transformation programme will not be completed until 2023. (See https://www.lawgazette.co.uk/news/breaking-hmcts-delays-1bn-courts-reform-by-a-year/5069501.article)
There is a lot of detail in the reports. They can be found by going to https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals
This links to each of the six individual responses.
In January 2019, the Justice Select Committee announced that it too would be conducting an inquiry into the Courts and Tribunals Reform programme. See https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/
It is right that such a major reform programme should be carefully scrutinised by MPs. They can help to ensure that the transformation, that I think is needed, is delivered.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 