Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘JUSTICE

Keeping the administrative justice system under review

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When the first major step was taken in the creation of what we would today recognise as a modern administrative justice system – the passing of the Tribunals and Inquiries Act 1958 – the Government of the day decided to create a statutory body – the Council on Tribunals – to keep the work of tribunals under review.

It was a body whose influence waxed and waned over subsequent years, but its reports were influential, particularly in promoting the need for training of tribunal personnel, ensuring that procedures would enable unrepresented parties to have the chance to be heard.

The Leggatt Review of Tribunals (of which I was a member) started with the view that the time had come to abolish the Council – but during discussion, it changed its mind, not least because of the powerful advocacy of its then Chair, the late Lord Tony Newton. Leggatt ended up recommending retention of the body that came to be known as the Administrative Justice and Tribunals Council (AJTC).

In the so-called bonfire of the quangos launched by the Cameron-Clegg Coalition Government in 2010, the AJTC was once again back in the firing line. The truth is that civil servants had long wanted to get rid of a body which they felt added to their administrative burdens without offering much in return.

Notwithstanding the fact that in its final years, the AJTC did extremely valuable work looking at some of the principles and broad strategic issues affecting the administrative justice system, the axe finally fell on the AJTC in 2013.

This was not however the end of the story. An Administrative Justice Advisory Group was created in 2012. In 2013 it became the Administrative Justice Forum (AJF). It was given a specific remit to keep under review the strategic programme of work being undertaken with regard to the administrative justice system – in particular tribunals – work now being taken forward under the Transforming Our Justice System programme.

In March 2017, the Government published the final report of the AJF, summarising some of the issues on which the Ministry of Justice had been working since 2013. Although the work is still ongoing, the AJF has been shut down.

Interestingly, its functions have not entirely disappeared. Arrangements are being put in place (the full details are not yet finalised) for JUSTICE, the Human Rights Group that has been engaged in a major programme of work relating to aspects of the development of the justice system, to host a new advisory group which will continue to have input to the Ministry of Justice.

The key topics on which the AJF reported were, in fact, issues which the former AJTC had done much to promote – for example,

  • the importance of ensuring that practice and procedure take users of tribunals fully into account;
  • the importance of Government departments learning from the outcomes of tribunal decisions, particularly where the may indicate operational practices that may need changing;
  • the importance of enduring that there was no excessive delay in arranging and delivering decisions.

What the AJF did not do was consider broader questions about how different parts of the administrative justice system – tribunals, ombudsmen, complaints procedures – might interact more efficiently.

From my perspective what the latest development shows is that trying to keep a clear overview of the whole of the administrative justice landscape is a daunting prospect, particularly at a time when the bulk of civil service resources have to be devoted to the modernisation programme currently under way. This overview has to come from outside government, led by those who can take a holistic view and who are not locked into any specific aspect of the system.

For the final report of the Administrative Justice Forum see https://www.gov.uk/government/publications/administrative-justice-and-tribunals-final-progress-report

 

 

 

 

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Written by lwtmp

July 10, 2017 at 11:19 am

Reassessing the use of the dock in criminal trials

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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

Transforming the English Legal System: Civil Justice

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The Consultation Paper Transforming our Justice System sets out proposals for reform of the civil justice system that build on work undertaken earlier in 2016 by the Civil Justice Council, JUSTICE and Lord Justice Briggs – all of which have been noted in this blog.
The principal features of what is now proposed are:

 

i. Introducing a new online process for resolving claims: In line with plans across all jurisdictions, we will move more cases away from physical court rooms. Building on Lord Justice Briggs’ proposals in his Civil Court Structures Review we will create a new process to resolve many disputes entirely online, using innovative technology and specialist case officers to progress routine cases through the system and reserving judicial time for the most complex cases. We will create a new, streamlined Rules Committee to design this new system and keep the processes simple. When hearings are required, they may be held over thetelephone or video conference, focusing court resources on the most complex and difficult cases. This will mean that cases should reach a quicker resolution.

ii. Encouraging parties to resolve disputes themselves where possible: We will
increase signposting to mediation and alternative dispute resolution services to
help people avoid court for minor disputes that would be better handled privately,
without needing the court to intervene.
iii. Extending the fixed recoverable costs regime: Fixed recoverable costs are legal
costs which can be recovered from the losing side by the successful party to a
claim, at a prescribed rate. (For civil claims, these are set out in the Civil
Procedure Rules). We will build on measures introduced in the last Parliament for
low value personal injury claims, to limit the level of legal costs recoverable.
These measures provide transparency and certainty for all parties and are
designed to ensure that the amount of legal work done is proportionate to the
value of the claim. We are keen to extend the fixed recoverable costs regime to
as many civil cases as possible. The senior judiciary will be developing proposals
on which we will then consult.
iv. Civil enforcement: We will give the [county court] powers to issue attachment of
earnings orders to the High Court to create a simpler, more consistent approach
to enforcement, and make sure more people can get the money they are owed.
We will also commence the fixed deductions scheme (fixed table) provisions in
the Tribunals, Courts and Enforcement Act 2007 in the County Court and
introduce fixed tables in the High Court, providing transparency and certainty of
the rate of deductions from debtors’ earnings to pay back their creditors.
v. Replacing statutory declarations in county court proceedings with a witness
statement verified by a statement of truth: We will replace outdated and currently
inconsistent procedures, which are inconvenient for people to use and resource
intensive to administer, with a more modern digital approach but keeping strong
penalties where a statement of truth is found to be false.

See chapter 3 in https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf

Third Party Interventions

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In a number of key cases taken to the Supreme Court and th Court of Appeal, the legal arguments presented to the courts have been supplemented by ‘Third Party interventions’ in which submissions are made by organisations who are not directly involved in the specific case, but who have considerable expertise in the area of law the subject of analysis in the courts.

One of the consequences of the reforms to the procedures for judicial review, introduced in 2015, was that the rules on the costs implications for making such interventions were changed – with a view to trying to reduce their number.

During Parliamentary debate, it was acknowledged that there would be cases where the courts really would be assisted by additional expert submissions. In such cases, it was argued that the bodies making those submissions should not be penalised in costs.

The human rights group, JUSTICE, who have successfully intervened in many key human rights cases have just published a guide to the new law To assist the Court: Third Party Interventions in the Public Interest. This sets out the steps that need to be taken to ensure that costs penalties will not be imposed.

The guide is available for download, free, from:http://justice.org.uk/our-work/third-party-interventions/

Written by lwtmp

June 24, 2016 at 2:46 pm

Civil Courts Structure Review: Interim Report

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Lord Justice Briggs has been asked to undertake an urgent review of the structure of the civil courts, to accompany the court reform programme currently being undertaken by the Ministry of Justice. He has recently (12 Jan 2016) published an interim report.

It is clearly work in progress, in that it poses rather more questions than makes provisional recommendations as to what changes should be made. However, the following key issues are identified:

Urgent Priorities

  • Prepare the civil judiciary to play their part in the management of the HMCTS reforms from April 2016, including Judicial College training and staff to support the leadership judges.
  • As soon as possible design the structure and software which will be needed for the re-organised courts, particularly the Online Court.
  • Ease the burden on the Court of Appeal.

On on-line Courts, his provisional view is that

  • There is a clear and pressing need to create an Online Court for claims up to £25,000 designed for the first time to give  litigants effective access to justice without having to incur the disproportionate cost of using lawyers.
  • There will be three stages: Stage 1- a largely automated, inter-active online process for the identification of the issues and the provision of documentary evidence;  Stage 2 – conciliation and case management, by case officers; Stage 3 resolution by judges.
  • The court will use documents on screen, telephone, video or face to face meetings to meet the needs of each case.

He raises a number of further questions, e.g. whether the on-line court should use the current Civil Procedure Rules, or work to new bespoke rules.

On the role of Case Officers, his provisional view is that some of the existing judges’ more routine and non-contentious work should be transferred to Case Officers supervised by judges. Parties should have the right to have a Case Officer’s decision reconsidered by a judge.

He then asks questions about how case officers should undertake their work: by mediating? or by written early neutral evaluation? He also asks what qualifications case officers should have.

He wants to see more civil work being dealt with in the regions outside London, and the development of expertise in dealing with civil cases in more centres outside London.

These issues are summarised in the Press Release, available at https://www.judiciary.gov.uk/civil-courts-structure-review/civil-courts-structure-review-ccsr-interim-report-published/press-summary-of-the-ccsr-interim-report-from-lord-justice-briggs/

The full report is downloadable through links at that page.

Interesting footnote: In line with his on-line vision for the Courts, Lord Justice Briggs is refusing to accept any written submissions on paper – all comments and ideas have to be submitted on-line.

 

 

Written by lwtmp

January 21, 2016 at 12:23 pm