One of the more surprising pledges in the Coalition programme for government was to extend anonymity in rape cases to defendants. Such a move would turn the clock back to 1976, when the Sexual Offences Act introduced anonymity for those accused of rape. That provision was repealed in 1988. Shortly after the Coalition pledge, which provoked a storm of adverse publicity, deputy prime minister Nick Clegg signalled a willingness to drop the government’s plans when he told Parliament: “I want to make it clear that, although the Government have proposed the idea, we want to listen to everybody who has a stake or expertise in or insight into the matter. If our idea does not withstand sincere scrutiny, we will of course be prepared to change it.”

Now it would seem that the government has abandoned these plans. When asked in the Commons last week if he will conduct a public consultation on whether to grant anonymity to defendants in rape cases, justice minister Crispin Blunt said: “The Government are minded to strengthen anonymity before charge. We want to hear the views of those who may have any new evidence to assist our deliberations, and we will bring our conclusions to Parliament in the autumn.” However, he went on to say: “Since the principal points of judgment around the issue are clear and very narrow…the Government do not propose to manage a full, formal public consultation.” Crucially he added: “We want in the first instance to try to find a non-statutory solution, and given that we had 21 Criminal Justice Acts passed over the 13 years of the last Administration, I am sure that Labour Members will understand why we are loath to find even more statutes to put on the statute book.”

Instead the government will negotiate with the Press Complaints Commission to persuade newspapers and websites to grant anonymity to suspects. “It was agreed on both sides of the House when the Sexual Offences Act 2003 went through Parliament that all people charged with offences ought to have their identity protected until the point of charge. That is the guidance that the Press Complaints Commission put into effect in 2004.” He added that there is an issue around the strength of that guidance which required attention. According to the ‘Guardian’, Government sources said the minister had not performed a U-turn because ministers had not committed themselves to changing the law. Ministers are still committed to granting anonymity to suspects between arrest and charge and believe that a change in the PCC code is the best way of achieving this.

Legal aid minister Jonathan Djanogly has announced plans to scrap a £2.6 million per year training contract grant scheme. Since the scheme began in 2002 more than 750 trainees have benefited from grants of over £20,000 each to help cover their training fees and salary. The Legal Services Commission gave the grants to legal aid firms to allow them to fund 100% of the tuition fees of the Professional Skills Course, and to contribute towards Legal Practice Course fees and the trainee’s salary for the two years of their training contract.

The Ministry of Justice claims that the cut is an important cost-saving measure. Their spokesman said that when the scheme was introduced, financial inducements were needed to attract more young lawyers into the legal aid market, but now there are too many lawyers chasing too little work. “The grant scheme was a laudable idea, but the long-term future of legal aid is still assured, with enough young lawyers continuing to enter the profession,” he said. Those whose training is already being funded will be unaffected.

The decision has provoked anger from critics who say that the abolition of the scheme will undermine small legal firms who recruit from under-privileged backgrounds, as well as reducing the number of lawyers working in areas such as immigration and crime. Many will not be able to afford to undertake the lower paid work, and the decision could result in new lawyers turning toward more lucrative legal career paths. Laura Janes, chair of Young Legal Aid Lawyers, said: “If the government takes away this tiny but important lifeline, the kind of people who want to use the law to help ordinary people will no longer be able to afford it. This government has not even commenced their analysis of the legal aid position yet, and they already seem to be committed to getting rid of diversity in legal aid provision,” She added: “The provision of these grants went some way toward sustaining the flow of talented entrants into the legal aid sector, and making sure that legal aid work is not a closed door to applicants from poorer backgrounds.”

Lord Bach, former legal aid minister, condemned the move, saying: “This is a mean decision which will lead to some skilled and committed young lawyers not choosing the legal aid path, but looking to other parts of the law. Everyone knows that there may have to be some savings in the total legal aid budget, but to cancel this superb scheme which has worked so well for the last 8 years in order to save £2.6 million, looks petty and incredibly short-sighted.” Beth Forrester of the Junior Lawyers Division said: “The JLD is acutely aware that the current financial climate has had a grave impact on the availability of training contracts throughout the profession, but we are very disappointed to see that those junior lawyers in particular, who are looking to progress in an area of law which is of maximum benefit to the community, are going to be hardest hit.”

Last word to Laura Janes: “In this age of financial austerity, there is going to be more need than ever for the safety net of legal aid. What steps are the government going to take to ensure there is a next generation of properly supervised, qualified legal aid lawyers? Firms are dropping like flies and those left are going to be relying on armies of unqualified paralegals, who cannot deliver the level of quality the government claims it is committed to.”

Yesterday Home Secretary Theresa May told Parliament that a rapid review of key counter-terrorism and security powers is underway. The review, a commitment in the coalition agreement, published on 20 May 2010, will look at what counter-terrorism powers and measures could be rolled back in order to restore the balance of civil liberties and counter-terrorism powers “and, in so doing, restore the ancient civil liberties that should be synonymous with the name of our country.”

She said: “The review will consider six key powers: control orders; section 44 stop-and-search powers and the use of terrorism legislation in relation to photography; the use of the Regulation of Investigatory Powers Act 2000 by local authorities and access to communications data more generally; extending the use of deportations with assurances in a manner that is consistent with our legal and human rights obligations; measures to deal with organisations that promote hatred or violence; and the detention of terrorist suspects before charge.” She believes that these are the most controversial and sensitive powers. “In particular, the issue of pre-charge detention has been the subject of considerable debate in the House, and tomorrow we will consider whether to renew the current detention limit for a further six months.” That would provide sufficient time to look carefully at pre-charge detention and to explore how the period of detention below 28 days can be reduced. She added: “Personally, I was always in favour of 14 days, but the whole point of a review is to look at what the appropriate period should be, and I do not wish to pre-empt the review’s decision or the information with which it will come forward.”

The review will be conducted by the Home Office with the full involvement of the police, security and intelligence agencies and other Government Departments, including those in Scotland and Northern Ireland, and with oversight from Lord Ken Macdonald QC, former Director of Public Prosecutions. The proposals made by Lord Carlile, in his statutory role as independent reviewer of terrorism legislation, will be fully considered as part of the review. The Home Secretary concluded: “I want the review to be conducted as openly and transparently as possible. I have asked Liberty to contribute to the review, and it has said that it would be delighted to do so. I am keen to involve other civil liberty and community organisations and, as with other reviews, I would urge anyone with an interest to submit their views to the Home Office.” On timing, she said: “I have ordered that the review should be completed as quickly as possible, because it is important that the police and the security and intelligence agencies are able to do their vital work with certainty and confidence. I will report back to Parliament on the outcome of the review after the summer recess.”

Home Secretary Theresa May told Parliament yesterday that the government will change how stop and search powers under section 44 of the Terrorism Act are used, with immediate effect.

The move is in response to a decision by the European Court of Human Rights,  which found that the use of stop and search powers under section 44 of the Terrorism Act 2000  amounted to a  violation of the right to a private life. The court said the powers were drawn too broadly at the time of their initial authorisation and did not have enough safeguards to protect civil liberties. The Home Secretary told the House of Commons: “I will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of the civil liberties of every one of us.” She added that the new government had been concerned about the use of section 44 powers for some time. The changes are designed to comply with the Strasbourg ruling and provide clarity for the police before a review of all counterterrorism legislation this summer. The terms of reference for the review are expected to be announced next week.

The Home Secretary has sought urgent legal advice and consulted police forces, and interim guidance for the police has been introduced which sets a new suspicion threshold. Officers will no longer be able to search individuals using section 44 powers. Instead they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist. Police may search only vehicles under section 44 of the law, and then only if they have reasonable suspicion of terrorist activity. The changes will bring the operation of counter-terrorism use of stop and search powers fully into line with the European Court’s judgment. Theresa May concluded: “The first duty of government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights.”

In reply, Alan Johnson, the former Labour Home Secretary, said he was ‘amazed’ that his successor had not tried to appeal against the Strasbourg ruling. He went on to say: “I am deeply concerned about the Home Secretary’s intention to restrict section 44 powers to searches of vehicles. That quite clearly restricts the powers of the police.” But Lord Carlile, the government’s independent reviewer of anti-terror legislation, speaking on BBC’s ‘World at One’ yesterday, said section 44 had been ineffective in combating terrorism, had caused community tensions and was used arbitrarily and for incorrect purposes. He added: “You don’t have to search people to discourage terrorists, the evident availability of police officers in the area, obvious uniformed policing, is just as much of a deterrent.” And Shami Chakrabarti, director of the human rights group Liberty, said: “Liberty welcomes the end of the infamous section 44 stop and search power that criminalised and alienated more people than it ever protected. We argued against it for ten years and spent the last seven challenging it all the way to the Court of Human Rights. It is a blanket and secretive power that has been used against school kids, journalists, peace protesters and a disproportionate number of young black men. To our knowledge, it has never helped catch a single terrorist. This is a very important day for personal privacy, rights to protest and race equality in Britain.”

The Law Society is celebrating victory in defeating the previous Government’s plans to make acquitted defendants pay most of the costs of their own defence. A High Court judgment handed down on 15 June by Lord Justice Elias and Mr Justice Keith has ruled unlawful an attempt by the previous Lord Chancellor, Jack Straw, to cap the costs paid to people acquitted in criminal cases.

The Law Society’s case for judicial review concerned the Prosecution of Offences Act 1985, section 16 which gives the courts the power to award costs to successful defendants of such an amount “as the court considers to be reasonably sufficient to compensate the defendant for any expenses which he has properly incurred in the proceedings.” Until last October, regulations made under the Act stated that the test to be applied in determining awards of costs was to be the test set out in section 16. This scheme came under scrutiny by the MoJ as a result of budget overruns and the impact of a small number of very high cost cases. It decided therefore to take advantage of a power contained in the Act to set rates or scales for payments of costs out of central funds and to introduce a scheme which limited recoverable costs to legal aid rates.

The Government estimated that its new scheme would save £20 million each year. The cost of this was to be borne by individuals, an average of £16,200 per case in the Crown Court, representing the difference between the average costs of a privately paid case (£19,000) and the average cost of a legally aided case (£2800). The point at issue in the litigation was whether the Lord Chancellor, in setting rates or scales, can decide what is “reasonable” to allow the defendant, even if as a consequence the amount that will be recovered falls well short of the amount the defendant actually incurred.  The grounds on which the Law Society alleged that the new scheme is unlawful are: the scheme is for improper purposes; there is an irrational distinction depending on who fixes the costs and also between defence and prosecution; defendants are deprived of a fair trial; and there is a flawed understanding of the effects of the policy.

In his judgment Lord Justice Elias made it clear that the statute does not allow the Lord Chancellor to decide what is reasonable. In setting out a scheme of rates and scales, he has to respect the statutory purpose set out in the Prosecution of Offences Act. The Act was intended to provide reasonable compensation for successful defendants. He said: “The question is whether the objectives which the Lord Chancellor is avowedly seeking to achieve by adopting the New Scheme are lawful. In my judgment, they are not lawful.” He went on to say: “The new regulations involve a decisive departure from past principles. They jettison the notion that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence.” He concluded: “Accordingly, I would uphold the judicial review on the single ground that the Lord Chancellor has sought to achieve objectives which are inconsistent with the purpose for which he can pass these regulations.”

The full text of the judgement in [2010] EWHC 1406 (Admin) Case No CO/214/2010 can be found at:
http://www.bailii.org/ew/cases/EWHC/Admin/2010/1406.html