Posts Tagged ‘transformation of the justice system’
Enromous changes to the ways in which courts – both criminal and civil – and tribunals operate have already been foreshadowed in a number of policy documents published during 2016. Parts 2 to 4 of the Prisons and Courts Bill contain provisions that will give statutory authority to the changes that have been proposed.
The headline provisions may be set out as follows:
Part 2 creates new procedures in civil, family, tribunal and criminal matters.
It makes changes to court procedures in the Crown Court and magistrates’ courts to make processes and case management more efficient.
It allows some offenders charged with summary-only, non-imprisonable offences to be convicted and given standard penalties using a new online procedure.
It extends the use of live audio and video links, and ‘virtual’ hearings where no parties are present in the court room but attend by telephone or video conferencing facilities.
It makes provision which will apply across the civil, criminal and tribunal jurisdictions to ensure public participation in proceedings which are heard virtually (by the streaming of hearings), including the creation of new criminal offences to guard against abuse, for example by recording such stramed hearings.
It creates a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions.
It bans cross-examination of vulnerable witnesses – in particular those who have been the subject of domestic abuse – in certain family cases.
It confers the power to make procedure rules for employment tribunals and the Employment Appeal Tribunal on the Tribunal Procedure Committee and extends the membership of the Committee to include an employment law practitioner and judge or non-legal member.
Part 3 contains measures relating to the organisation and functions of courts and tribunals.
It extends the role of court and tribunal staff authorised to exercise judicial functions giving the relevant procedure rules committees the power to authorise functions in their respective jurisdictions.
It abolishes local justice areas, enabling magistrates to be appointed on a national basis, not just to a specific local justice area.
It replaces statutory declarations with statements of truth in certain traffic and air quality enforcement proceedings.
It makes reforms to the arrangements for the composition of employment tribunals and the Employment Appeal Tribunal.
It enables the High Court to make attachment of earnings orders for the recovery of money due under a judgment debt, as far as practicable, on the same basis as in the County Court.
Part 4 contains measures relating to the judiciary and the Judicial Appointments Commission.
It enables more flexible deployment of judges by enabling them to sit in different jurisdictions.
It brings the arrangements for the remuneration of judges and members of employment tribunals – currently undertaken by the Secretary of State for Employment – under the remit of the Lord Chancellor.
It rationlises the roles of judges in leadership positions who will support a reformed courts and tribunals system. (This includes provision to abolish the statutory post of Justice Clerk; this role will continue, but those qualified to be Clerks will also be able to undertake analogous work in other court/tribunal contexts.)
It gives the Judicial Appointments Commission the power to carry out more work (not directly related to judicials appointments) on a cost-recovery basis.
Source, Explanatory Notes to the Prisons and Courts Bill 2017, available at https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/en/17145en02.htm
Following the introduction of fees to take a case to the Employment Tribunal, the Government undertook to carry out a review to examine the impact of the new fees on the work of the tribunals. They have now carried out this review and in January 2017 published a Consultation Paper on changes they are suggesting might be made to the fees charging system.
The paper states that the introduction of fees had three principal objectives. These objectives were:
(i) the financial objective:those who use the ETs are contributing around £9 million per annum in fees (which is in line with estimates at the time),transferring a proportion of the cost of the ETs fromtaxpayers to those who use the Employment Tribunals.
(ii)the behavioural objective:while there has been a sharp, significant and sustained fall in ET claims following the introduction of fees, there has been a significant increase in the number of people who have turned to Acas’s conciliation service.There were over 80,000 notificationsto Acas in the first year of the new early conciliation service, and more than 92,000 in 2015/16. This suggests that more people are now using conciliation than were previously using voluntary pre-claim conciliation and the ETs combined.(iii) access to justice:our assessment suggests that conciliation is effective in helping up to a little under half of the people who refer disputes to them (48%) avoid the need to go to the ETs, and where it has not worked, many (up to a further 34%) went on to issue proceedings.
The fall in ET claims has been significant and much greater than originally estimated.In many cases, we consider this to be a positive outcome: more people have referred their disputes to Acas’s conciliation service. Nevertheless, there is also some evidence that some people who have been unable to resolve their disputes through conciliation have been discouraged from bringing a formal ET claim because of the requirement to pay a fee.This assessment is reinforced by the consideration given to the particular impact that fees have had on the volumes of workplace discrimination claims, in accordance with the duties under section 149 (1)of the Equality Act 2010.
There have been two recent consultations which could affect the work of Employment tribunals and the Employment Appeal Tribunal. The first, considered here, is on procedure. The other, on fees, is the subject of a separate note.
As part of its Transforming our Justice System programme, in December 2016 the Government published a short consultation on how reform of employment tribunals might fit into the overall transformation programme. The Consultation Paper noted that because these tribunals were set up under the Employment Tribunals Act 1996, major change could not be achieved without reform of that Act. The Consultation Paper therefore noted that major change was likely to take rather longer to be delivered, given the difficulties of obtaining parliamentary time for an amending Bill.
In the interim, this consultation set out what seems to be a rather minor change, namely that the responsibility for drafting the procedural rules which apply to the work of Employment tribunals should be added into the work already being done by the Tribunals Rules Committee.
This may actually be a rather more controversial proposal than might at first appear, since many judges in both the Employment Tribunal and Employment Appeal Tribunal have long thought that they should be part of the court system, not the tribunal system. They argue that they deal with disputes between parties (which is more what courts do) rather than citizen-state disputes (which is more what tribunals do).
The problem with this argument is that courts do deal with citizen-state disputes as well as tribunals; and other tribunals do deal with party-party disputes.
In my view the essence of tribunals is that they should generally be less formal than courts, and also use specialist expertise where needed. These considerations seem to have tipped the balance in the Government’s thinking. My own view is that the Government’s proposals are sensible.
The consultation closed in mid-January 2017, so no final decision has been taken. It will be seen whether the Government’s initial view prevails.
For the consultation paper, see https://www.gov.uk/government/consultations/reforming-the-employment-tribunal-system
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:
- 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.
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.