Announcing last week that reforms of the law on libel will be taken forward in the next Parliament, Justice Secretary Jack Straw said: “Our current libel laws need to achieve a fair balance between allowing people to protect their reputations from defamatory allegations, and ensuring that freedom of expression and the public’s right to know on matters of public interest are not unnecessarily impeded. At the moment, we believe that the balance is tilted too much in favour of the former”.

The reforms will build on the work of the Libel Working Group, which was established by the Ministry of Justice in January to consider reforms to the law of libel, and whose report was also published last week. The report focuses on four principal areas in which the case for reform has been urged with particular emphasis: libel tourism; the role of public interest considerations in establishing a defence to a libel action; the rules about multiple publication, with particular reference to the internet; and procedural and case management issues relating to the conduct of libel litigation.

Under the MoJ’s proposals, the current multiple publication rule will be replaced with a single publication rule. This will ensure that claimants in libel proceedings cannot bring a case against every publication or download of a story repeating the same claims. Instead, claimants will only be able to bring a single action, within one year of the date of the original publication. The interests of people who are defamed will be protected by giving the court the power to extend this period where necessary. Consideration will also be given to a statutory defence to protect publications that are in the public interest. It is claimed that this would help address the ‘chilling effect’ that the threat of libel proceedings can sometimes have on investigative journalism, which occurs when media outlets and NGOs are cautious about publishing important information due to the threat of legal action. The government also plan to move to prevent the growth of ‘libel tourism’, when foreign claimants use English courts to make libel claims against foreign publications outside the EU which can be accessed in the UK. This will include asking the Civil Procedure Rule Committee to consider tightening the rules where the court’s permission is required to serve defamation cases outside England and Wales. The aim is to head off inappropriate claims at the earliest stage and stop them from reaching court.

Many commentators welcome the proposed reforms but feel that they do not go far enough, particularly in regard to a public interest defence, where more commitment is sought. The Libel Reform Campaign claims that our libel laws are stacked in favour of claimants, reporting that none of the 154 libel proceedings in 2008 identified in the Jackson Review of Civil Litigation Costs (see blog posted on 19 January) were won by defendants. On costs, they state that the most expensive libel action cost £3,243,980; that the average cost for the 20 most expensive trials was £753,676; and that the average cost of a libel trial in England & Wales is 140 times the European equivalent. An earlier government attempt to reduce the costs of libel cases – reducing the success fees that lawyers can charge in defamation cases from 100% to 10% – has been held up in the Lords by a “motion of regret” tabled by the former Commons speaker Lord Martin. The Ministry of Justice is planning to make parliamentary time available to prevent the order being killed off before the election.

The full text of the Libel Working Group report can be found at:-

http://www.justice.gov.uk/publications/docs/libel-working-group-report.pdf

The Criminal Procedure Rule Committee has made the first consolidating edition of the Criminal Procedure Rules, which affect all criminal courts in England and Wales – magistrates’ courts, the Crown Court and the Court of Appeal (Criminal Division). The purpose of consolidation is to ensure that the rules can be found in one authoritative edition, ensuring that the public can obtain an up-to-date paper copy of the rules and have confidence that they can easily see what is required of the participants in a criminal trial in England and Wales. An understanding of the rules is both essential and mandatory.

The Criminal Procedure Rules 2010 will come into force on 5 April 2010 and consolidate The Criminal Procedure Rules 2005 and the eight statutory instruments which subsequently amended them. This re-statement of the rules includes new procedure rules about the investigation of anonymity orders; witness anonymity orders; and appeal against recognition of a foreign driving disqualification.

Amended rules about objecting to the reading of committal statements at trial in the Crown Court are included, as are measures to assist a witness or defendant to give evidence. Other additions and revisions about introducing hearsay evidence and about introducing evidence of bad character; about final representations at trial in a magistrates’ court; and about requests to the Court of Justice of the European Union for preliminary rulings are also included.

A Guide for Court Users, Staff and Practitioners has been prepared by the Secretariat to the Criminal Procedure Rule Committee, and the full text can be found at:

http://www.justice.gov.uk/news/docs/crim-proc-rules-2010-guide.pdf

This guide states that The Criminal Procedure Rules 2010 will not appear on the website until 5 April, 2010.

“Rape is a serious and deeply damaging crime. It is unique in the way it strikes at the bodily integrity and self-respect of the victim, in the demands it makes on those public authorities required to respond to it and in the controversy it generates…(it) is unique as it is an inherently lawful activity made illegal because of lack of consent. Women, men, children, and people of all ages and all social groups can become rape victims”.

 The words of Baroness Stern, invited by the Government Equalities Office and the Home Office to carry out an independent review into the treatment of rape complaints by public authorities, in presenting her final report. In one respect the report is ground breaking. Rape and sexual assault have usually been seen as women’s issues – the victims are female, the perpetrators male – but this is no longer the case. Male rape was recognised by English and Welsh law in 1994 and, according to the Stern Review, the victim is male in around 8% of all recorded rape cases. The report states that only a small proportion of rape is reported to the authorities. Probably about 11 per cent of those who have been raped tell the police about it. In England and Wales in 2008/9, 12,129 rapes of women and 964 rapes of men were recorded by the police. The most recent data, the British Crime Survey from 2008/9, show that the lifetime prevalence for rape and attempted rape in those over 16 was nearly one in 24 women (4.2 per cent) and one in 200 men (0.5 per cent). The number of rapes recorded by the police has risen considerably in recent years. Figures from the Metropolitan Police area for 2009/10 show that recorded rapes increased by 29 per cent in a year and, for England and Wales as a whole, the number of recorded rapes rose from 2,855 in 1988 to 7,636 in 1998 and 13,093 in 2008.

Rape can occur in a range of circumstances. Those usually referred to as ‘stranger rapes’, the sort of incidents most often reported on by the newspapers, where the victim and the perpetrator do not know each other, are a small proportion of rape cases. Most rapes are carried out by someone the victim knows. Much rape occurs in families. False notions about rape are widespread. There is a view that women are in some way to blame for being raped if they go out wearing revealing clothes and have too much to drink. The subject of false allegations came up so often in discussions about rape, and the information about the prevalence of false allegations is so scanty, that Baroness Stern recommends that research be undertaken to establish their frequency. The percentage of all the cases recorded by the police as a rape that end up with someone being convicted is usually quoted as being around six per cent. The ‘Guardian’ leader of 16 March is trenchant in the view that “the scale of rape and sexual assault in our society is appalling. People are right to be indignant that so few rapists still answer for their crimes”.

In dealing with rape complaints, the report states that a substantial amount of change has been introduced in recent years by the responsible public authorities. “Attitudes, policies and practices have changed, fundamentally and for the better. In England and Wales we now have a system with specialisation in dealing with rape at the police, prosecution and judicial levels. We have measures in the courtroom to minimise the trauma of the trial for the complainant. We have a programme to provide state-of-the-art medical centres in every police force area, where victims of rape can be examined and assisted”. In accepting that current policies are right, the report recommends “that the Government and those authorities should take further some of the excellent developments already under way. We have made some detailed recommendations to the police and prosecution services which are designed to make implementation of the existing policies more effective”.

In her report Baroness Stern pays tribute to the work done by Sara Payne, whose findings were the subject of the blog entitled “Rape – the Victims’ Champion’s Review” posted on 4 December last year. The full text of the Stern Review can be found at:-

http://www.equalities.gov.uk/PDF/Stern_Review_acc_FINAL.pdf

Female jurors are tougher on defendants at the start of jury deliberations than male jurors but more open to persuasion to change their vote during deliberations. That was one of the findings of the University College London team, led by Professor Cheryl Thomas, which recently published its report “Are Juries Fair?” for the Ministry of Justice.

All jurors who took part in the case simulation carried out by the team also completed personal profile forms providing information on gender, age, employment status, profession, income, religion and language. According to the team, case simulation is designed specifically to examine causal links between case factors and jury decisions. In a case simulation, a trial is filmed and edited so that only a specific factor (such as the race of the defendant) is altered in different versions of the case. Each version of the case is then shown to a large number of juries to decide. The claim is that this  creates a systematic and controlled study of jury decision-making. By combining the votes of all 797 jurors (both White and BME) who took part in the case simulations at the three courts studied – Winchester, Nottingham and Blackfriars Crown Courts – it was possible to see if any other personal characteristics of jurors (beyond ethnicity) were related to their decision-making in the case. Gender emerged as the only juror characteristic where there were significant differences.

Female jurors appeared tougher on defendants than male jurors before jury deliberations started but more open to persuasion to acquit in deliberations. Female jurors were significantly more likely than male jurors to vote to convict at the start of deliberations (41% guilty votes compared to 35%). But deliberation had the greatest impact on female jurors. After deliberations this gender difference in conviction rates disappears. On final votes after deliberations, female jurors actually had a lower conviction rate than male jurors (33% compared to 34%). Male jurors rarely changed their view; 64% of all jurors that changed their votes during deliberations were women. This pattern of decision-making occurred for all defendants, regardless of race, and at all courts.

The full text of the report ‘Are Juries Fair?’ can be found at:

http://www.justice.gov.uk/about/docs/are-juries-fair-research.pdf

Students from low-income backgrounds can no longer afford to become legal aid lawyers, according to a recent report. Social mobility in the legal aid profession is increasingly being curtailed by the financial difficulties of training, and has reached critical levels. Legal aid is becoming a no-go area for ordinary people who want to become lawyers.

So states a report published this week by Young Legal Aid Lawyers (YLAL), an umbrella organisation formed in 2005 to represent the views of law students, solicitors, barristers and paralegals in response to growing concerns over the future of legal aid. Their report is in response to the Government consultation paper ‘New opportunities: Fair Chances for the Future’ and The Panel on Fair Access to the Professions’ report ‘Unleashing Aspirations’.

YLAL claim: “The reasons why social mobility is particularly lacking in the legal aid sector include the lack of subsidised training opportunities, low salaries, and the almost ubiquitous requirement for entry-level candidates to have copious work experience in legal aid, which inevitably can normally only be obtained on an unpaid basis. The result is that those from low-income families cannot afford to become legal aid lawyers and the legal aid profession is therefore becoming less and less representative of the people it serves: those without means”. The recent reforms to the legal aid system have led to a total dearth of training opportunities in the legal aid sector. A few firms continue to take on trainees every year, but these placements have become increasingly competitive. YLAL research showed that a total of 300 or 400 applications per placement is not uncommon, that practitioners are leaving the legal aid sector in droves and that many firms are closing, with no new firms opening. They are also very concerned about the exorbitant costs of undertaking professional qualifications.

According to YLAL the situation is exacerbated by the low rates of remuneration within legal aid. The Law Society recommended minimum wage for trainee solicitors is £16,650, rising to £18,590 in London. Upon qualification, solicitors can expect to earn less than many key workers and in fact most other workers in general. As mentioned in last November’s blog ‘Legal Aid Funding Reforms – Law Society says NO to more fee cuts’, a survey published by the ‘Guardian’ showed that legal aid solicitors earn on average £25,000 per annum – far less than GPs (who earn more than double) and teachers – and less than social workers, nurses, prison officers and sewage plant operatives. The national median salary is £25,816 whereas the median salary for public sector workers is £27,686.

YLAL make 13 recommendations, which include: an immediate review of the prohibitive costs of professional courses required to access the legal profession; an increase in the number of LSC sponsored training contracts; ongoing support and incentives to all firms that demonstrate a commitment to taking on trainees; and improved assistance to parents and others who support a family, who wish to enter the legal aid profession. They conclude: “If our recommendations are not taken on board, increasing restrictions on legal aid means that we risk creating a system where those who cannot afford to pay for legal help are reliant on an unrepresentative cohort of legal aid lawyers…The absolute right to free legal advice from a lawyer of your choice is an essential part of meaningful access to justice”.

 The full text of  “Legal aid lawyers: the lost generation in the ‘national crusade’ on social mobility” can be found at:

 http://www.younglegalaidlawyers.org/files/YLAL_SOCIAL_MOBILITY_REPORT_FEB_2010.pdf