Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘criminal justice

Disclosure of evidence: planning for change – first steps

leave a comment »

In July 2017, the Inspectorates of the Crown Prosecution Service and Constabulary published a very critical report on the failure of police and prosecution services to apply the rules relating to the disclosure of evidence held by police/prosecutors to defence teams. (I noted the report here in November 2017).

Since then, it seems that the issue of the failure of the police and prosecution to disclose evidence to defence lawyers which might undermine or weaken the prosecution case has received almost daily attention in the mass media. A number of well publicised cases have emerged in which those accused of serious crimes (in particular rape) have found out only at a late stage that evidence which undermines the case against them is available.

A number of reasons have been advanced for these failures. For example, it is argued that the current law was put in place before the arrival of mobile phones and the vast amounts of electronic data that is generated on phones and tablet.

It is also argued that police and prosecutors lack the resources to comb through all this information to see what might by relevant.

This is an extremely serious issue which goes to the heart of the criminal justice system. People must feel that the system is fair and that those who run it are complying with the rules.

Clearly both the police and CPS are taking this issue seriously. The first tangible step has recently been taken. At the end of January 2108, a plan was published  by the Crown Prosecution Service (CPS), the National Police Chiefs’ Council (NPCC) and the College of Policing.  This sets out measures designed to improve practice in this area.

These first steps include:

  • Reviewing disclosure training with the College of Policing
  • Developing a cadre of specialist and experienced disclosure experts in every force
  • Providing all multimedia evidence from the CPS to the defence digitally
  • Putting in place specific improvement plans for each force and CPS area
  • Setting up a system for the CPS and police to better identify and deal with cases with significant and complex disclosure issues.

This will not be the last word on this subject. Much work has to be done to ensure that all those engaged in the criminal justice system actually act in accordance with the statutory rules on disclosure. But it is an important first step.

The text of the plan can be found at http://www.npcc.police.uk/Publication/National%20Disclosure%20Improvement%20Plan%20January%202018.pdf

Advertisements

Written by lwtmp

February 1, 2018 at 11:12 am

Paying for criminal defence advocacy

leave a comment »

Relations between Government and the Criminal Bar have not, in recent years been characterised by a great deal of warmth and mutual understanding. Indeed, criminal barristers went on strike recently against what they regarded as unfair policy on legal aid remuneration.

I am sure it would be overstating things to say that peace has now broken out between the Government and the Criminal Bar.  But a new Consultation Paper on the remuneration of criminal defence advocates (including solicitor advocates) has been published which seems to be the fruit of close working relationship between the two sides.

Certainly the chairman of the Bar Council has welcomed the paper’s publication and has urged advocates to support the recommendations set out in the paper.

One of the key aims of the new proposals is to try to ensure that payments reflect actual work done by advocates on behalf of their clients.

The proposals also seek to reflect the changing nature of criminal trial practice as the criminal courts’ efficiency programme continues to develop.

The proposals also aim to give a sense of career progress to those who undertake criminal defence advocacy. Pay should be higher as experience is gained and more serious cases are undertaken.

The recommendations are not based on any increase in the amount of money available for paying advocates; but they are designed to be a rational response to the changing face of criminal advocacy and to take a fresh look at a payments system that was last looked at 20 years ago.

The details of the consultation – which runs till early March 2017, are at https://www.gov.uk/government/news/proposals-to-reform-criminal-defence-advocates-pay-published

Written by lwtmp

January 23, 2017 at 12:03 pm

Reassessing the use of the dock in criminal trials

leave a comment »

In July 2015, JUSTICE, the Human Rights Group published an interesting paper on the use of the dock in the criminal trial process. It has not perhaps had the attention it deserves, but its recommendations should be considered in the context of the Transformation of our Justice System currently being taken forward.

I reproduce here the Press Release published at the time which admirably summarises the arguments.

The use of the dock for adult defendants in our criminal courts is unquestioned. Secure docks – with high walls made of glass panels – are most common, although some defendants will be held in open, wooden docks. While some courts will allow the defendant out of the dock in narrow circumstances, this is a far from uniform practice. Despite their use being an accepted norm, particularly among the legal profession, the dock has not always been so embedded within the courtroom.

The established use of docks was not cemented until as late as the 1970s, while the secure dock now in use did not arrive until 2000. Even today, there is no statutory requirement or judicial authority requiring their use in our courts. Rather, it is simply recommended Ministry of Justice policy that they be available in all criminal courts. The rationale for these increased security measures in recent decades has not been documented in the public record.

JUSTICE is concerned that the use of the dock impacts upon the defendant’s right to a fair trial, in particular: effective participation in one’s defence; preserving the presumption of innocence; and maintaining dignity in the administration of justice. These rights have long been protected by our domestic legal system, the European Convention on Human Rights and international human rights law.

Notably, a number of other jurisdictions, including those that share our common law heritage, have abandoned the use of the dock. These jurisdictions offer useful examples of discreet and humane alternatives, which are used on a case-by-case basis. Available statistical evidence for the Netherlands and the United States demonstrates security incidents rarely occur, and the same can be expected of England and Wales.

Moreover, the adverse impact of the dock on the defendant’s right to a fair trial has been explicitly recognised by appellate courts in both the USA and Australia; in fact, the rejection of the dock in the USA is safeguarded by reference to constitutional guarantees the findings of a recent experimental study in Australia aimed at assessing the prejudicial impact of the dock on juries further support JUSTICE’s concerns.

In light of our legal obligations to secure the right to a fair trial in practice – and taking into account the experience of comparative jurisdictions – JUSTICE calls for reconsideration of the use of the dock in our criminal courts. At a time when HM Courts and Tribunal Service is reviewing the use of its estate, attention should be given to how our courtrooms are designed, by reference to actual need, rather than tradition.

Recommendations

  1.  There should be a presumption that all defendants sit in the well of the court, behind or close to their advocate;
  2. Open docks should no longer be used and defendants should sit with their legal team;
  3. Where security concerns exist, a procedural hearing should be held to satisfy the court that additional security is required;
  4. In cases where there is no security risk, defendants should also sit with their legal team;
  5. We invite the Lord Chief Justice to consider issuing a practice direction with regard to the above recommendations;
  6. We invite HM Courts and Tribunal Service, the Ministry of Justice and other appropriate agencies to explore alternative security measures to the dock, mindful of the need for such measures to be concealed from the judge/jury and comfortable for the defendant; and
  7. We invite the Ministry of Justice and other relevant agencies to review prisoner escort custody contracts to ensure appropriate security can be supplied to the courtroom.

The report is at https://justice.org.uk/in-the-dock/

Written by lwtmp

November 27, 2016 at 1:35 pm

Lammy Review: racial bias in the criminal justice system

leave a comment »

In this blog, I noted (Feb 2016) the appointment of the MP for Tottenham, David Lammy, to lead a review of racial bias in the criminal justice system. He has now published his ’emerging findings’ in a letter he has sent to the Prime Minister. His final report is expected in 2017. The Press Release states:

The review commissioned an analysis paper looking at disproportionality in the criminal justice system. One finding was that for every 100 white women handed custodial sentences at Crown Courts for drug offences, 227 black women were sentenced to custody. For black men, this figure is 141 for every 100 white men.

Among all those found guilty at Crown Court in 2014, 112 black men were sentenced to custody for every 100 white men .

The disproportionality analysis also found that, among those found guilty, a greater proportion of black women were sentenced to custody at Crown Court than white women.

 

Other notable findings highlighted today from the disproportionality analysis and the wider Lammy review include:

  • Of those convicted at Magistrates’ Court for sexual offences, 208 black men and 193 Asian men received custodial sentences for every 100 white men.

  • BAME defendants are more likely than their white counterparts to be tried at Crown Court – with young black men around 56% more likely than their white counterparts;

  • BAME men were more than 16% more likely than white men to be remanded in custody;

  • BAME men were 52% percent more likely than white men to plead ‘not guilty’ at crown court;

  • In prisons, BAME males are almost five times more likely to be housed in high security for public order offences than white men, and

  • Mixed ethnic men and women were more likely than white men and women to have adjudications for breaching prison discipline brought against them – but less likely to have those adjudications proven when reviewed.

  • 51% of the UK-born BAME population agree that ‘the criminal justice system discriminates against particular groups’, compared to 35% of the UK-born white population;

  • 41% of youth prisoners are from minorities backgrounds, compared with 25% ten years ago, despite prisoner numbers falling by some 66% in that time;

  • The number of Muslim prisoners has almost doubled in the last decade.

The next stage for the review will be to examine the reasons for these figures and to explore whether they reveal bias in the system against those from BAME groups.

It has also been announced that Lammy will – as part of this exercise – take a closer look at diversity in the judiciary and the numbers of judges from BAME groups.

The details of the emerging findings are at https://www.gov.uk/government/news/lammy-review-emerging-findings-published

 

Written by lwtmp

November 23, 2016 at 11:33 am

Transforming the English Legal System: Criminal Justice

leave a comment »

The Consultation Paper, Transforming our Legal System, states, in relation to the Criminal Justice system that, first, the criminal courts should be more flexible. This will be achieved by:
i. Aligning the criminal courts: Magistrates’ courts and the Crown Court deal with
different levels of criminal offence, but they must work better together to provide a
more efficient service. We are working with the judiciary on structural and
procedural changes that will give the senior judiciary clearer oversight of, and
flexibility to manage, judicial leadership in the criminal jurisdiction. This will enable
the Crown Court and magistrates’ courts to operate more closely together –
stronger leadership and alignment will improve court performance for everyone
involved. To support this, we will bring the structures of the courts closer by
reforming existing local justice areas and making it easier to transfer cases between
the Crown Court and Magistrates’ Court when appropriate – starting in the right
place will make the process simpler and easier for victims and defendants.
ii. Making it easier for vulnerable and intimidated witnesses (including victims) to give
evidence: We will roll out the use of pre-trial cross-examination in Crown Court
trials, allowing vulnerable and intimidated witnesses to pre-record their cross-
examination, meaning the witness does not always need to attend the trial itself. A
pilot found that this procedure meant witnesses gave evidence in half the time it
would take at trial. We believe that expanding this will reduce distress for victims
and witnesses and improve their overall experience of the justice system.
Second, the Government wants courts to do more to address offender behaviour. It is proposed that this should be done by:
i.Introducing problem solving courts: We are exploring the opportunities for problem
solving methods further with the judiciary and collecting the evidence base. We are
continuing to trial this approach in locations across the UK.
ii. Using out of court disposals: We will use out of court disposals in appropriate cases,
to help change offenders’ behaviour at the earliest possible opportunity– with swift
and certain consequences for offenders who do not comply with the conditions
attached.
Thirdly, the Government is seeking to improve process and technology for more efficient and digital justice. It plans to do this by
i. Streamlining process: We are making changes to the way cases progress through
the criminal courts, including removing unnecessary appearances in court (such as
first appearances in magistrates’ courts for cases which can only be tried in the
Crown Court), introducing a more efficient process to allocate cases to the Crown
Court or magistrates’ courts and allowing simple decisions to be made via a new
online system.

ii. Using technology to make processes more efficient: We will increase the use

of video link and telephone and video conferencing technology to make
hearings easier and more convenient for all, including victims and witnesses
and criminal justice system agencies. We will work with the police to hold bail
hearings by video link from police stations to reduce the need for some
offenders to be held in police cells overnight. In appropriate cases offenders
will be able to plead guilty, be convicted and sentenced all on the same day by
live video link from police stations.
iii. Introducing a new collaborative IT system: The Common Platform is already
being developed to provide a single case management IT system for use
throughout the Crown Court and magistrates’ courts. It will provide access to
case material and information to many agencies within the criminal justice
system as well as the defence, victims and witnesses. Many current paper and
court-based processes will be moved online, saving time and increasing
efficiency for all court users.
iv. Enabling online convictions and fixed fines: For certain routine, low-level
summary, non-imprisonable offences with no identifiable victim, we propose to
introduce a system which resolves cases entirely online. Defendants would log
on to an online system to see the evidence against them before entering a
plea. If they plead guilty, they can opt in to (and can always opt out of) the
online system which allows them to view the penalty, accept the conviction
and penalty, and pay their fine. Cases would be resolved immediately and
entirely online, without the involvement of a magistrate.

Many of these proposals build on initiatives already started. However, the suggestion for more problem solving courts is potentially quite innovative and could lead to significant change to the ways in which the criminal courts have historically operated.

See chapter 2: https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf

 

Written by lwtmp

October 5, 2016 at 9:54 am

Reforming prisons

leave a comment »

One of the most intractable issues in the criminal justice system is enabling prisons do more to try to draw offenders away from a life of crime and to become more productive and engaged citizens.

In the Queen’s Speech, delivered on 18 May 2016, the announcement of a new Prisons Bill was made. The details are not yet available but at the heart of the reforms are proposals to significantly improve educational opportunities for inmates – and to give Prison Governors more autonomy over how they run their prisons.

Accompanying the text of the Queen’s speech was an announcement that in the short-term 6 pilot ‘trailblazer’ reform prisons would be established to test the effectiveness of new approaches. The intention is that 5000 prisoners should be in the reform prisons by the end of 2016.

The importance of education of prisoners was emphasise in a review, published at the same time by Dame Sally Coates.

For further (preliminary) information on reform prisons see https://www.gov.uk/government/news/biggest-shake-up-of-prison-system-announced-as-part-of-queens-speech

The Coates report can be found at https://www.gov.uk/government/publications/unlocking-potential-a-review-of-education-in-prison

The big challenge, noted by many commentators, is how such reforms can be made effective given the large numbers of people currently detained in prison. Many think that it will be essential for numbers in jail to be reduced if those who would really benefit from the reform proposals are to be helped.

 

Written by lwtmp

May 20, 2016 at 5:56 pm

Bringing coherence to sentencing: proposals from the Law Commission

leave a comment »

There is a huge volume of law relating to the sentences courts may impose on those found guilt of committing criminal offences.

Indeed, there is so much that judges often take decisions that, in law, they are not allowed to make. To quote from a recent announcement from the Law Commission:

A survey of 400 Court of Appeal cases from 2012 by the sentencing expert Robert Banks found that 262 were appeals against sentences and that of these, 76 included sentences that had been unlawfully passed in the Crown Court. Banks wrote, “[This] figure shows that we can no longer say the sentencing system is working properly. Cases since then have indicated that these figures are not unrepresentative.”

Currently, the law lacks coherence and clarity: it is spread across many statutes, and frequent updates are brought into force at different times by different statutory instruments and with a variety of transitional arrangements. This makes it difficult, if not impossible for practitioners and the courts to understand what the present law of sentencing procedure actually is. This can lead to delays, costly appeals and unlawful sentences.

The Law Commission is currently engaged in a project designed to introduce a single sentencing statute that will act as the first and only port of call for sentencing tribunals.

It will set out the relevant provisions in a clear and logical way, and ensure that all updates to sentencing procedure can be found in a single place. It is not the aim of this project to interfere with mandatory minimum sentences or with sentencing tariffs in general. Those will remain entirely untouched, but the process by which they come to be imposed will be streamlined and much improved.

The latest stage in the process has recently taken place with the publication on 20 May 2016 of a paper setting out proposals for the transition from the current position to a reformed position.

The amount of work still to be undertaken is enormous, and will not be effective for at least two more year – perhaps longer. But this is a project of great importance not just to criminal lawyers, but all those interested in the criminal justice system.

For an outline of the progress on work to date go to http://www.lawcom.gov.uk/project/sentencing-code/

 

Written by lwtmp

May 20, 2016 at 5:27 pm