Posts Tagged ‘Justice Committee’
Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession
I have noted before that a number of Parliamentary Committees are examining aspects of the impact of Covid 19. The Justice Committee is in the middle of publishing a series of reports on this question. The first two of these, on Courts and on the Legal Profession have been published (30 July 2020 and 3 Aug 2020).
Both reports are, inevitably, in the nature of interim reports – given that we are still in the middle of a crisis, the outcome of which is far from clear.
The first report, on the Courts, takes up the widespread criticism that there were already considerable backlogs and unacceptable delays in the criminal justice system which have been exacerbated by the arrival of Covid 19.
The Committee notes that measures being put in place to improve the performance of the Crown Courts include a possible increase in the number of sitting days and the opening of the (temporary) Nightingale Courts – specially adapted spaces in which criminal trials can be dealt with.
As regards Magistrates’ Courts, the Committee found that the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. (The backlog previously peaked at 327,000 outstanding cases in 2015.) By mid-June, the figure was even higher. HMCTS has promised a ‘recovery plan’; the Committee states that it looks forward to seeing it.
By contrast with the criminal justice system, the civil, administrative and family systems have fared relatively better. Much of this has been the result of the ability of the courts and tribunals service to move hearings online. The Committee repeats concerns raised elsewhere, for example about enabling those who find it hard to use IT to participate, and that some types of family dispute are hard to deal with online.
The Committee stresses the importance of HMCTS undertaking proper evaluations of the impact of these new procedures on users of the system. It also emphasises that changes in practice arising out of the need to respond to the pandemic should not be adopted on a permanent basis, without more evaluation and consultation.
The Justice Committee report on the impact on the legal profession is not as general as its title might suggest. It focusses primarily on the impact on legal aid practitioners and other advice agencies, arguing that they continue to need financial support if the provision of services – particularly in criminal cases – is not to be lost.
The Committee’s report on the impact of Covid 19 on the Courts is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51905.htm
Their report on the impact of the pandemic on the legal profession is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/520/52003.htm
Disclosure of Evidence: Justice Committee report
It is a fundamental principle of the criminal justice system in England and Wales that the prosecution must disclose unused evidence to the defence. Following considerable press publicity given to criminal trials in which this principle has not been observed – leading to lengthy delays in a case being brough to trial, in some cases leading to a defendant being sent to prison for a crime he did not commit – the Justice Committee in the House of Commons took a look at the issue.
In July 2018 they published their report. In it they make no recommendations to change the law. Indeed, the confirm that the principle of disclosure is an important one to ensure a fair trial. What they do say is that those working in the criminal justice system must take their responsibilities in relation to disclosure more seriously.
The Committee notes that in early December 2017 the Government announced that the then Attorney General would conduct a review of disclosure. While the Attorney General has since changed, the Committee expects that this review will conclude.
The Committee also notes that the Crown Prosecution Service, National Police Chiefs’ Council and College of Policing published a “National Disclosure Improvement Plan” in January 2018. (Noted in this blog 1 Feb 2018)
The Justice Committee’s recent report in effect builds on these initiatives. It states, in summary that there needs to be:
- a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add-on;
- the right skills and technology to review large volumes of material that are now routinely collected by the police; and
- clear guidelines on handling sensitive material.
Finally, the Government must consider whether funding across the system is sufficient to ensure a good disclosure regime. The Committee notes that delayed and collapsed trails that result from disclosure errors only serve to put further strain on already tight resources.
The Committee plans to return to this issue both when the Government publishes its response to the report, and when the Attorney General’s review is completed.
The report can be seen at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85902.htm
The role of the magistracy
In October 2016, the Justice Select Committee published a report on the role of the magistracy in the criminal justice system. The Ministry of Justice responded to this report in December 2016.
There was a lot of common ground between what the Select Committee recommended and what the government is planning in relation to the magistracy.
A couple of specific issues caught my attention.
First, the Committee had noted that there appear to be some difficulties in ensuring that there are sufficient magistrates able and willing to undertake work in the Family Court. This has led the Ministry of Justice to make some administrative changes allowing a more flexible approach to be adopted for enabling magistrates to undertake family court work. The Ministry of Justice has indicated that it may consider special recruitment of some new magistrates who would only sit in the Family Court. However, even if it was concluded that this would be a good policy to adopt, it would require a change in the law. Any such change will therefore be some time off.
Second, the Committee report and the response from the Government raise some interesting issues about the future of the Magistrate’s Clerk. The Justices’ Clerk is the senior lawyer and adviser to the magistracy. Currently the appointment of the Justices’ Clerk is made under the Justice of the Peace Act, 1997. This requires the post holder to be a solicitor or barrister of five years’ standing or be a solicitor or barrister with five years’ experience of working in Magistrates’ Courts.
The Government has raised the possibility either that Justices’ Clerk would no longer be a statutory appointment, but rather appointed under new non-statutory arrangements. An alternative idea is that the functions of the Justices’ clerk might be undertaken by other officials working in the court system. The Government response to the Select Committee report states that this question is currently the subject of a ‘private’ consultation: “A consultation on the creation of a new senior leadership structure for lawyers working within HM Courts & Tribunals Service: Proposals to make changes to the role of the justices’ clerk”. This was published in December 2016 but is not apparently publicly available.
It seems unlikely that a major change to the role of the Justices’ Clerk would take place without some publication, so – again – I suspect that any change will be some time away. It should be remembered that part of the purpose of making the appointment of Justices’ clerks a statutory process was to help guarantee their independence in advising magistrates. It will be essential that this issue is taken on board in any proposals for reform.
For the Justice Committee’s report, go to http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/165/16504.htm
For the Government response, go to https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577348/government-response-justice-committee-report-role-of-the-magistracy.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 