Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘criminal justice system

Transformation: Courts and Tribunals, 2022: HMCTS and MoJ respond to the Public Accounts Committee

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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.

 

 

 

 

Transforming Criminal Justice: progress reports

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I have already noted the report on progress with family, civil and administrative justice. This entry summarises a recent note on progress with the transformation of the criminal justice system. There are 11 projects listed which relate to criminal justice.This note sets out the main ones.

Projects supporting summary justice

  1. The Single Justice Service (SJS) contains all services delivered by the magistrates’ court which can be considered by a single magistrate. It builds upon the implementation of the Single Justice Procedure (SJP), introducedto process some 850,000 summary non-imprisonable cases per year; this involves working with prosecutors, including TV Licensing, TfL, the DVLA, the police and other non-police prosecutors such as local authorities. The purpose of the SJS is to deal more proportionately with the least serious offences, to which the majority of defendants either do not respond or plead guilty, and which almost exclusively result in a financial penalty. Subject to legislation, this may include the ability to accept a statutory fixed fine online for the most minor offences (in which case the implications of doing so will be carefully and clearly explained). The option for a hearing will remain.
  1. The SJS is underpinned by a digital system known as Automated Track Case Management (ATCM)  and is supported by the Single Justice Service Centre (SJSC). So far, the service is live for cases prosecuted by TfL (Transport for London).  Those who plead not guilty have the case transferred for a hearing in the magistrates’ court.
  1. Since 12 April 2018, defendants have been able to plead online if they choose to do so (rather than on paper). The SJSC team based in Stoke takes calls from defendants and help those who would like to plead online to do so. The ability to plead online builds on the experience of the ‘Make a Plea’ service, which has been live since August 2014, for defendants involved in summary non-imprisonable motoring offences, such as speeding and having no insurance, and has been rolled out to all 43 police forces. During 2017, over 83,000 pleas were registered through this service and it now receives around 1,600 pleas online each week.

Projects supporting hearings in the magistrates’ and Crown courts

  1. Online plea and allocation: This aim of the project is it make it possible for represented defendants (through their legal representative) to indicate a plea online, before coming to court; and for decisions on allocation to be taken outside the courtroom where that is appropriate. The aim is to support earlier engagement with the court and swifter allocation of cases, and to free up courtroom space and time currently used to hear pleas. Subject to legislation, the project will also enable indictable only cases to go straight to the Crown Court without the need for an unnecessary hearing in the magistrates’ court.
  2. Case progression project: This project aims to ensure all activities required to achieve an effective trial or sentencing hearing in the magistrates’ and Crown courts are carried out by the participants to the case in advance, and that trial and sentencing hearings can go ahead as planned. It builds on the recommendations of the Leveson report on criminal justice efficiency and will enable some case progression activity to take place outside the courtroom through online, audio and video channels.
  3. Court hearings project: This project is specifically focused on trials and sentencing hearings in both the magistrates’ and Crown courts. This project will ensure that criminal trials and sentencing hearings are enabled by the right technology and physical environment in the courtroom to ensure the smooth running of the hearings on the day, building on the increasing use of technology that we see already in the criminal courts.
  1. Video remand hearings: This service aims to transform the way in which hearings for defendants held in custody could be administered in the future, and ultimately enable suitable proceedings to be held fully by video (in other words, with the option of not just the defendant, but others appearing by video, subject to judicial agreement and discretion). The aim is to reduce the amount of time defendants are held in custody without a judicial decision, particularly the number of defendants held overnight, and to reduce unnecessary journeys. It is also an opportunity to improve processes around those appearing on video from the police station now, including improving access to early legal advice.
  1. Youth project: This project will look specifically at the needs of children and young defendants to ensure that we do not apply adult processes to children, but instead look at each stage of the process and shape a version of it that is appropriate for young people, with the right safeguards and enhancements.
  1. All these service projects are underpinned by the digital infrastructure known as the Common Platform, a shared system between the police, HMCTS and CPS and accessible by participants across the criminal justice system. This will allow earlier access to the Initial Details of the Prosecution Case (IDPC) for legal professionals; better handling of multimedia; a single, shared view of cases; and direct transmission of case results to those who ought to know.

Adapted from  HMCTS Reform Update  Autumn 2018 at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744912/HMCTS_Reform_Update_2_Oct_2018.pdf

 

 

 

 

Supporting Exonerees

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The adverse impact of being wrongfully convicted of a crime that you have not committee is obvious. But once the wrongful conviction comes to light, how should the state deal with those now exonerated. This detailed issues was the subject of a special report by JUSTICE, the Human Rights Organisation, in April 2018. (I am a member of the JUSTICE council but was not involved in this report.)

Way back in 1982, JUSTICE published a report, Compensation for Wrongful Imprisonment. Unfortunately, little has changed since then. Exonerees still do not receive the support they need to return to a normal life and are not properly compensated. A number of recent cases of wrongful conviction highlight the need to continue to address the issue and argue for change.

The new report makes it clear that, although monetary compensation may well be important, it is not just a question of money. Other types of support are needed as well.

The report makes 14 recommendations including:

  • Better management of the transition from incarceration to release.
  • The need for specialist psychiatric care for exonerees.
  • The setting up of a residential service to provide practical and welfare support to exonerees.
  • An independent body to determine whether applicants are eligible for compensation.
  • Automatic compensation for wrongful imprisonment, subject to certain exceptions.
  • An apology and explanation of the failure that leads to a quashed conviction and, where necessary, a public inquiry.

The full report is available at https://justice.org.uk/our-work/areas-of-work/criminal-justice-system/supporting-exonerees-ensuring-accessible-continuing-and-consistent-support/


 

Written by lwtmp

July 11, 2018 at 2:20 pm

Mental health and Fair Trial

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Since 2015 the Human Rights group JUSTICE has produced a remarkable series of reports on different aspects of the justice system. (I declare an interest; I am a member of the JUSTICE Council.)

Their report Mental Health and Fair Trial was published in November 2017. in it, it outlined the precarious position vulnerable people may be in when confronted by the criminal justice system.

Since the JUSTICE reports are written by specialist sub-groups with specific knowledge of the issues raised, the recommendations they propose are aimed at dealing with practical challenges faced by those working in criminal justice. The available evidence suggests that people in the criminal justice system are far more likely to suffer from mental health problems than the general population.

The report argues that ‘argues that from first contact with the police through to sentence, there remain fundamental problems with the English justice system’s response to mental health. Left unaddressed the fair trial rights of many defendants may be undermined.’

The report makes over 50 recommendations for change grouped into the following broad categories.

1. The investigative stage – Mental health experts, not police officers, should be identifying people with vulnerability as a result of mental ill health or learning disability and those identified should have access to proper support.
2. Decision as to charge or prosecution – A specialist prosecutor should be appointed for each Crown Prosecution Service area who must make the charging decision in cases of vulnerability, assisted by up-to-date guidance and assessments.
3. Pre-trial and trial hearings – Trial processes can be bewildering and incomprehensible for those with mental ill health and learning disabilities. Magistrates’ courts, youth courts and the Crown Court should have a dedicated mental health judge with enhanced case management powers and responsibility for a case progression protocol.
4. Legal capacity tests – A capacity based test of fitness to plead and fitness to stand trial, placed on a statutory footing should be available in all courts and the “insanity” defence should be amended to a defence of ‘not criminally responsible by reason of a recognised medical condition’.
5. Disposal and sentencing – A Sentencing Guideline on mental health and vulnerability should be created and a broader range of disposals made available to sentencers to meet the needs of the case.

Although the report was launched with strong support from the Lord Chief Justice, it is not known whether the Government or other agencies mentioned in the report have actively taken forward these recommendations. But they deserve careful consideration.

The report is available at https://justice.org.uk/mental-health-fair-trial/

Written by lwtmp

July 11, 2018 at 2:01 pm

Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases

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In July 2017,  HM Crown Prosecution Service Inspectorate and HM Inspectorate for Constabulary published a joint report on the disclosure of unused evidence. Based on the analysis of a number of sets of court papers, the report reveals very poor compliance with the relevant rules.

The report states: “Disclosure is one of the cornerstones of the criminal justice system and disclosure of unused material is a key component of the investigative and prosecution process. …Every unused item that is retained by police and considered relevant to an investigation should be reviewed to see whether it is capable of undermining the prosecution case or assisting the defence case. If either factor applies it must be disclosed to the defence.’

This inspection by HMCPSI and HMIC identified a number of issues which are contributing to widespread failures across the board by both police and prosecutors.

  • Police scheduling (the process of recording details of sensitive and non-sensitive material) is poor and this, in turn, is not being challenged by prosecutors.
  • Police are routinely failing to comply with guidance and requirements when completing and recording data, such as the non-sensitive disclosure schedule (known as MG6C).
  • The College of Policing is supposed to provide training on disclosure. [But] Many officers admitted they lacked confidence in their role and responsibilities as disclosure officer.
  • Prosecutors are expected to reject substandard schedules and there was little evidence of such challenge occurring, with a culture of acceptance prevailing.
  • There was also poor decision-making by prosecutors on the Criminal Procedure and Investigations Act (CPIA) test for disclosure. In 54% of cases prosecutors simply endorsed schedules without recording their reasoning.
  • There were further failings in maintaining a complete audit trail of actions and decisions setting out the prosecution disclosure process.
  • There was poor supervision of standards, although where police forces have introduced quality control mechanisms this was found to improve the quality of data.
  • The exchange of information and documents between the police and CPS is often hindered rather than helped by technology, with a number of police systems presenting problems.

The report set out a strict timetable for change.

Immediately:

all disclosure issues relating to unused material to be identified at the charging stage.

Within six months:

the CPS to comply with the Attorney General’s Guidelines on Disclosure, with an allocated prosecutor reviewing every defence statement and giving prompt guidance to police;

police forces to improve supervision of unused material;

CPS Compliance and Assurance Team to begin dip sampling;

all police forces to establish role of dedicated disclosure champion of senior rank;

a system of sharing information between CPS Areas and Headquarters to monitor performance;

CPS and police to develop effective communications processes.

Within 12 months:

the College of Policing to introduce a disclosure training package;

the CPS and police to review digital case management systems.

The full report is available at http://www.justiceinspectorates.gov.uk/cjji/inspections/making-it-fair-the-disclosure-of-unused-material-in-volume-crown-court-cases/

Written by lwtmp

November 6, 2017 at 3:00 pm

The treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the criminal justice system: the Lammy Review

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At the beginning of 2016, David Lammy MP was asked by the then Prime Minister David Cameron to review the workings of the criminal justice system, with the object of seeing whether the system worked fairly, in particular in relation to BAME individuals. (The review was noted in this blog in February 2016; its interim findings were noted here in November 2016)

The final report of the review was published in September 2017.

The bare statistics tell a familiar story. Thus the study found, for example:

  • the fact that BAME individuals are disproportionately represented in the criminal justice system costs the taxpayer at least £309 million each year;
  • the proportion of BAME young offenders in custody rose from 25% to 41% between 2006 and 2016, despite the overall number of young offenders falling to record lows;
  • the rate of Black defendants pleading not guilty in Crown Courts in England and Wales between 2006 and 2014 was 41%, compared to 31% of white defendants. (This means they lose the possibility of reduced sentences and it raises questions about their level of trust in the system.);
  • the BAME proportion of young people offending for the first time rose from 11% in 2006 to 19% a decade later;
  • there was an identical increase in the BAME proportion of young people reoffending over the same period.

Lammy looked at what happens in a number of other countries to see whether we could learn from experience elsewhere.

Two specific examples may be noted.

  1. Taking inspiration from youth justice in Germany, Lammy argues that rigorous assessments of a young offender’s maturity should inform sentencing decisions. Those judged to have low levels of maturity could also receive extended support from the youth justice system until they are 21.
  2. He also called for ‘Local Justice Panels’ to be established, taking inspiration from New Zealand’s Rangatahi courts, where local people with a direct stake in a young offender’s life are invited to contribute to their hearings. These panels would normally deal with first-time offenders given community sentences, include key figures such as teachers or social workers, and hold local services to account for a child’s rehabilitation.

Lammy made a number of innovative recommendations for judges, prosecutors and prisons.

For example, he proposed that a ‘deferred prosecution’ model  be rolled out, allowing low-level offenders to receive targeted rehabilitation before entering a plea. Those successfully completing rehabilitation programmes would see their charges dropped, while those who did not would still face criminal proceedings. (Such a scheme has already been piloted in the West Midlands, with violent offenders 35% less likely to reoffend. Victims were also more satisfied, feeling that intervention before submitting a plea was more likely to stop reoffending.)

He recommended that all sentencing remarks made by judges in the Crown Court should be published. He argued that this could help to make justice more transparent for victims, witnesses and offenders. It would also  start to address the ‘trust deficit’ between BAME individuals and the justice system, which Lammy argues  has contributed to Black and Asian men and Asian women being over 50% more likely than their White counterparts to enter a not guilty plea.

He also argues the UK should learn from the US system for ‘sealing’ criminal records, claiming ex-offenders should be able to apply to have their case heard by a judge or independent body, such as the Parole Board, where they could prove they have reformed. The judge would then decide whether to ‘seal’ the record, having considered factors such as time since the offence and evidence of rehabilitation. If the decision goes the applicant’s way, their record will still exist, but the individual would not need to disclose it and employers would not be able to access it. Lammy hoped this would help the people affected to become more employable.

Lammy accepts that there are other wider social issues that must be addressed as well; but he argues that the recommendations he makes could do much to build greater trust in the criminal justice system, reduce reoffending and improve outcomes for victims.

Whether or not these recommendations will lead to actual changes on the ground is too early to say. The fact that two Prime Ministers strongly supported the review might suggest that there would be some political impetus for follow-up. But, given other political priorities, I would not expect a rapid response from Ministers.

The Press Release, with links to the report can be found at https://www.gov.uk/government/news/lammy-publishes-historic-review

 

 

 

 

 

 

 

 

 

 

 

 

 

Written by lwtmp

September 29, 2017 at 9:58 am

Efficiency in the Criminal Justice System: the view of the National Audit Office

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In March 2016, the National Audit Office published a very interesting and pretty hard hitting report on efficiency in the Criminal Justice system – or rather inefficiency. Set against the programme for the Transformation of our Justice System that was announced by the Government in the summer 2016, the contents of the NAO need to be remembered. In essence it argues that the current reform programme will not be adequate to drive out inefficiency, and ensure better value for money.

I set out here an edited version of the Summary Chapter of the report which gives the headline issues that need to be dealt with.

Key findings of the National Audit Office:

1 Performance

  • Delays are getting worse against a backdrop of continuing financial pressure.
  • There have been some improvements in the management of cases since 2010-11. But two-thirds of cases still do not progress as planned, creating unnecessary costs.
  • Trials that collapse or are delayed create costs for all the participants, including the CPS, witnesses and HMCTS. (In 2014-15, the Legal Aid Agency (LAA) funded defence counsel to the tune of £93.3 million for cases that were not heard in court).
  • Delays and collapsed trials also damage the public’s confidence in the system.
    Giving evidence in court as a witness or victim can be a difficult and stressful process. The uncertainty caused by delays and collapsed trials exacerbates this.

2. Addressing the causes of inefficiency

The Ministry and CPS are leading an ambitious reform programme but this will not address all the causes of inefficiency.

  • The court reform programme’s scope is far-reaching. It includes rationalising and modernising the estate to enable more efficient digital working and the roll-out of a single digital case management system accessible by all parties. Better IT infrastructure and a modernised estate would provide the tools for a more efficient, less paper-based system, but are not sufficient to address all the causes of inefficiency in the system.
  • Inefficiencies are created where individuals and organisations do not get things right first time, and problems are compounded because mistakes often occur early in the life of a case and are not corrected.
  • There can be multiple points of failure as cases progress through the system but these are often not identified until it is too late. (A 2015 inspection found that 18.2% of police charging decisions were incorrect. Incorrect charging decisions should be picked up by the CPS before court, but 38.4% of cases were not reviewed before reaching court. The system’s reliance on paper also builds in inefficiency).
  • The system as a whole is inefficient because its individual parts have strong incentives to work in ways that create cost elsewhere.
  • As there is no common view of what success looks like, organisations may not act in the best interests of the whole system. (For example, courts staff seek, under judicial direction, to ensure they are in use as much as possible by scheduling more trials than can be heard so that there are back-ups when one trial cannot proceed. This is both a cause and a result of the inefficiencies in the system, and leads to costs for other parts of the system, for example witnesses who spend a day waiting to give evidence for a trial that is not then heard, and who may then be more likely to disengage from the process).
  • There is significant regional variation in the performance of the system, suggesting that there is scope for efficiency gains. (A victim of crime in North Wales has a 7 in 10 chance that the trial will go ahead at Crown Court on the day it is scheduled, whereas in Greater Manchester the figure is only 2 in 10. The large variation in performance across the country means that victims and witnesses will experience very different levels of service.)
  • If the performance in those Local Criminal Justice Board areas with the highest rate of cracked trials was equivalent to the best-performing quartile, 15% more cases would proceed as planned, saving a minimum of £4 million in CPS costs, as well as those costs incurred by other organisations.
  • There are some mechanisms to identify and share good practice, but awareness and use of these varies. Our case study visits identified a range of innovative approaches that made a positive impact on the system. These included implementing an appointment system for the approval of search warrants, which saved a significant amount of police time, and creating a dedicated videoconferencing court. But there is varied awareness and use of mechanisms to identify and disseminate learning from these initiatives.

3 Conclusion on value for money

  • Reducing inefficiency in the justice system is essential if the increasing demand and reducing funding are not to lead to slower, less accessible justice. Although the bodies involved have improved the management of cases, around two-thirds of criminal trials still do not proceed as planned on the day they are originally scheduled. Delays and aborted hearings create extra work, waste scarce resources and undermine confidence in the system.
  • Notwithstanding the challenges of improving the efficiency of a system designed to maintain independence of the constituent parts, there are many areas where improvements must be made. Large parts of the system are paper-based and parties are not always doing what they are supposed to do in a timely manner.
  • The system is not currently delivering value for money.
  • The ambitious reforms led by the Ministry, HMCTS, CPS and judiciary are designed to tackle many of these issues by reducing reliance on paper records and enabling more flexible digital working. They have the potential to improve value for money but will not address all of the causes of inefficiency.
  • More also needs to be done to explore and address the wide regional variations in performance, and to create incentives that encourage all parties to operate in the best interests of the system as a whole.

Recommendations

a The Criminal Justice Board should agree what ‘good’ looks like for the system as a whole, and the levels of performance that each part of the system can commit to deliver to achieve this. It should report publicly on whether these levels of performance are being met. While it is important that the different parts of the system are not able to unduly influence individual cases, this cannot preclude agreement over the level of service that each element of the system should provide. Whenever possible, these measures should focus on quality and align with the system’s overarching aims.
b The Criminal Justice Board should regularly review performance at a level sufficient to identify good practice. Unlike many other areas of government, there is granular performance data available for many aspects of the system. Identifying and exploring regional variations in performance will highlight innovative practice, as well as giving organisations across the system incentives to improve.
c The Criminal Justice Board should establish mechanisms to increase transparency and encourage feedback through the system. This is particularly important where one element of the system has a direct but discretionary impact on another. (For example, when magistrates’ courts refer ‘either way’ cases to Crown Court they should be able to find out how many of these cases were ultimately sentenced within magistrates’ court powers. This would allow them to judge whether they are sending the right cases.)

Note. The Criminal Justice Board, is a cross-governmental group chaired by the Justice Secretary. It includes ministers and officials from the Ministry of Justice (the Ministry), its executive agency HM Courts & Tribunals Service (HMCTS), the Home Office, the Attorney General’s Office and the Crown Prosecution Service (CPS). It also includes representatives of police forces, police and crime commissioners and senior members of the judiciary.

Source: https://www.nao.org.uk/wp-content/uploads/2016/03/Efficiency-in-the-criminal-justice-system.pdf