Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘criminal justice

Transforming the English Legal System: Criminal Justice

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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

 

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Written by lwtmp

October 5, 2016 at 9:54 am

Reforming prisons

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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

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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

Problem solving courts – next steps

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One of the really interesting ideas under consideration in government and the judicary is that of ‘problem solving’ courts. The concept has been floating around for some time but has recently been given new impetus.

The idea is that offender behaviour change might be enhanced through a model of judicially supervised rehabilitative programmes. These would be designed to encourage
innovation in the use of judicial disposals and improve compliance with the orders of the court; and to deliver a swifter and more certain response to crime and to reduce
reoffending.
In February 2016, the government  announced the terms of reference for a working group – reporting to the Lord Chancellor and the Lord Chief Justice.
The working group will advise on:
  • existing models of problem-solving courts nationally and internationally, and their applicability to England and Wales;
  • the feasibility of options for pilot models including practical, legislative and constitutional issues, and judicial leadership;
  • the support needed from within and without the criminal justice system, including the development, or improvement, of pathways in to rehabilitative and behaviour change interventions
  • the key criteria for a future suite of pilots of problem-solving courts, including the lessons from previous pilots and the required statutory provisions for taking forward any new pilots.
The working group will need to take account of domestic and international evidence of what works well in engendering behaviour change through a problem-solving court approach. This includes the scope, quality and effectiveness of past and current models, in particular theUSA, Canada, Australia and New Zealand.The group should also consider the reasons why previous attempts at setting up Problem Solving Courts have been unsuccessful and take account of lessons learnt.
No date is given for the completion of the group’s work but I guess it won’t appear before the end of 2016.
It obviously is designed to fit with recent announcements about changes to the ways in which prisons are run – and the need to ensure that few people are actually sent to prison so that – om their different ways – both courts and the prison service will be working on offender education and rehabilitation.
The text of the announcement is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/499465/tor-problem-solving-courts.pdf

Written by lwtmp

February 19, 2016 at 5:41 pm

Stricter guidance for sentencing offenders who plead guilty

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One of the issues that the criminal justice system faces is to decide what incentives should be offered to those who are being prosecuted through the courts to plead guilty.

Legislation has for many years provided that sentencing discounts for early guilty pleas should be applied. (Criminal Justice Act 2003, s 144). Gudidance on how the power should be exercised was published in 2007.

Under s120(3)(a) the Coroners and Justice Act 2009 the Sentencing Council has been required to prepare new sentencing guidelines about the discharge of a court’s duty under

the 2003 Act. Following a period of research into how the current guidance is working, the Sentencing Council announced in February 2016 that it was consulting on new guidance on the reductions in sentence where a defendant pleads guilty.
In summary the Council proposes to bring forward the point at which a guilty plea must be made if the defendant is to obtain the maximum sentencing reduction.

It will do this by maintaining the current level of reduction (one third) for those who plead at the first stage of court proceedings, but giving a lower reduction than that available currently for a guilty plea entered any later in proceedings.

The stage at which an offender can benefit from the maximum one-third reduction will be much more tightly defined.

Under the Council’s proposals, to qualify for the maximum reduction, an offender must plead guilty the first time they are asked for their plea in court.

For offenders who plead guilty after that first stage the maximum reduction they can be given will be reduced to one-fifth, compared to one-quarter under the current process. Reductions then drop further the closer to the trial date the plea is entered.

It should be stressed that the reduction is expressed as a maximum – judges can deviate from the guidance in particular cases. Special considerations apply to murder cases.

The object of the proposed reforms is to try to ensure that more cases are dealt with by guilty plea, thereby reducing the resources required for trials.

The final guidance will be published following completion of the consultation, which runs until the middle of May 2016.

For further details see https://www.sentencingcouncil.org.uk/consultations/reduction-in-sentence-for-a-guilty-plea-guideline-consultation/

Written by lwtmp

February 18, 2016 at 6:58 pm

Criminal legal aid changes – recent decisions

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It is, to me, one of the curiosities of public life that U-turns are usually portrayed in the mass media as a sign of official/political incompetence. To me the idea that someone might change their mind because they had had second thoughts is a sign of maturity and intelligence.

Whether you regard the Secretary of State for Justice as incompetent or intelligent and mature, there is no doubt that his recent written statement to the House of Commons on the change of direction on Criminal Legal Aid reform is important.

The issues are:

1 Reductions in fees paid to legal aid applicants. They had been reduced in March 2014 by 8.5%. A similar sized reduction was planned for July 2015, but this was put on hold while the MoJ did not work to ensure that such a cut would be unlikely to reduce the quality of criminal advocacy. In his January 2016, Michael Gove has announced that there will be a further postponement of the proposed cut. “I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year.” Whether or not that fee cut will be brought back into effect in April 2017 will depend on how the market for the provision of criminal legal aid services has developed in the meantime.

2 Consolidation of provision of criminal legal aid. There has long been a view in Government that there are too many soicitors’ firms offering criminal legal aid services. Various proposals have been made to reduce their number. The most draconian proposal was that existing criminal legal aid contract should be replaced by new contracts that would be awarded, following a tendering process, in which contracts would be awarded to those firms who submitted the lowest bids for legal aid work.

Unsurprisingly this was fiercely resisted by solicitors on the basis that, if implemented, this would be a ‘race to the bottom’ – standards would fall because services would only be offered by those charging the least.

Mr Gove’s predecessor, Chris Grayling, came up with an alternative plan, known as ‘dual contracting’. Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.

  • An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
  • And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.

The dual contracting model was  designed to meet concerns expressed by the legal profession about price competition.

A tender process under this proposed scheme did go ahead, but ended very badly with a lot of adverse publicity about both process and outcome.

The primary arguments against these alternative proposals were

  • Many solicitors firms feared that the award of a limited number of “dual” contracts – with a restriction therefore on who could participate in the duty legal aid rota would lead to a less diverse and competitive market.
  • Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and potentially quality.
  • And, possibly the most compelling argument, many also pointed out that a process of natural consolidation was taking place in the criminal legal aid market, as crime reduced and natural competition took place.

In the face of considerable potential litigation (99 cases in the pipeline, plus a judicial review challenging the whole process), the Government has announced that this exercise will also be set aside. There will be a further review of the process towards consolidation early in 2017.

3 Quality of criminal advocacy. In the midst of all this, the report from Sir William Jeffrey on how to enhance the quality of criminal advocay has not been forgotten. Mr Gove stated:

I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.

I don’t think that criminal legal aid practitioners are completely off the hook as regards potential changes to how they work. But for the immediate future, things are clearer.

For Mr Gove’s written statement, go to https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting.

For further information on the Jeffrey Review, see this blog at https://martinpartington.com/2015/11/05/enhancing-the-quality-of-criminal-advocacy/

 

Written by lwtmp

February 10, 2016 at 6:45 pm

Review of racial bias in the criminal justice system

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Stephen Lawrence was a Black British man from Eltham, south east London, who was murdered in a racially motivated attack while waiting for a bus on the evening of 22 April 1993. This shocking incident was the subject of an inquiry, led by Sir William Macpherson, which, when it reported in 1999, found among other things that there was ‘institutional racism’ in parts of the criminal justice system.

This in turn led the Judicial Studies Board to establish a programme of ethnic awareness training as part of its programme.

Notwithstanding the concerns raised by the Lawrence case, the present position is that:

  • BAME individuals currently make up over a quarter of prisoners – compared to 14% of the wider population of England and Wales.
  • BAME people make up a disproportionate amount of Crown Court defendants (24%).
  • Those who are found guilty are more likely to receive custodial sentences than white offenders (61% compared to 56%).

In light of these findings the Government has asked (January 2016) David Lammy MP to lead a review of the Criminal Justice System in England and Wales to investigate evidence of possible bias against black defendants and other ethnic minorities. With significant overrepresentation of black, Asian and minority ethnic (BAME) individuals in the criminal justice system, the review will consider their treatment and outcomes to identify and help tackle potential bias or prejudice.

He has been asked to report by early 2017.

For further details see https://www.gov.uk/government/news/review-of-racial-bias-and-bame-representation-in-criminal-justice-system-announced

Written by lwtmp

February 10, 2016 at 11:37 am

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