Party manifestos are probably the most unread of documents. The major upheaval in political campaigning brought about by the three TV debates between the major party leaders could even render them redundant for future elections. In the meantime, it is not without interest to compare the three main manifestos for what they have to say about crime and justice.

Labour express a determination to continue to bear down on crime, building on the 3,600 Neighbourhood Policing Teams now in every area of England and Wales. They claim 26,000 more prison places since 1997, plan to provide a total of 96,000 places by 2014, while at the same time “taking steps to address unnecessary increases in the prison population”. Tories claim that prisons are chronically overcrowded, reoffending rates remain very high – 100,000 persistent offenders responsible for more than half of all crime – and 80,000 prisoners have been let out early from prison. They pledge that early release will not be reintroduced and they will redevelop the prison estate and increase prison capacity. On policing, their aim is to restore responsibility and discretion to the police, getting them out of police stations and onto the street fighting crime, and giving people the power to elect an individual who will set the policing priorities for their community. Liberal Democrats would pay for 3,000 more police on the beat, reduce time-wasting bureaucracy at police stations with better technology that can be deployed on the streets and give local people a real say over their police force through the direct election of police authorities. They would always base drugs policy on independent scientific advice, including making the Advisory Council on the Misuse of Drugs completely independent of government. For Labour, “on drugs, our message is clear – we will not tolerate illegal drug use.”

On Human Rights legislation, Labour detail their introduction of the Human Rights Act in 1998, the establishment of  the Equality and Human Rights Commission in 2007 and, in 2009, the introduction into Parliament of the new Equality Bill. Lib Dems refer to the importance of the Universal Declaration of Human Rights which set out the worth of every human being and pledged governments to uphold that worth in future. Hence their support for the Racial and Religious Hatred Act 2006 and support for the passage of the Equality Bill. The Tories take a different line and, to protect and strengthen civil liberties, pledge to replace the Human Rights Act with a UK Bill of Rights and “roll back Labour’s surveillance state, curtail powers of entry for state officials, and introduce new protections over the use of personal data.”

In the dying days of the last Parliament Jack Straw announced reforms to the libel laws (see blog “Reform of libel laws”, posted on 31 March). The proposals were voted down in the hasty final sessions of that Parliament. Despite that, or perhaps because if it, the party manifesto makes no mention of reform. The Tories promise to conduct reviews of the libel laws as well as family law. Lib Dems are the most specific, pledging definite changes to the libel laws, including Reynolds public interest defences. Legal aid does not get a mention in any of the three manifestos, beyond a promise from the Tories to conduct a review.

 If you want more, try any or all of the following:

http://www.labour.org.uk/policies

http://www.conservatives.com/Policy/Manifesto

http://network.libdems.org.uk/manifesto2010

Criminal firms have seen the introduction of fixed fee schemes for police work and a standard fee system in magistrates courts following a review of legal services by Lord Carter three years ago. Now the consultations on proposals for competitive tendering by criminal defence work firms have come to an end, with solicitors’ firms across the country voicing strong opposition to the proposed system.

The Law Society, the Bar Council and the Criminal Bar Association are all gravely concerned about BVT as currently proposed by the LSC, involving a limited scheme which would cover lower crime work in police stations and the Magistrates’ Courts. This would probably be extended should it prove successful. BVT involves competitive tendering based on price for criminal defence work, as solicitors’ firms will bid for blocks of work, with the lowest bidder getting the work. Strong concerns are expressed that criminal legal aid firms could be drastically reduced, meaning the number of firms available to clients will diminish, as the already financially vulnerable supplier base is put at risk. “The widespread use of BVT is likely to… deny clients access to many competent and dedicated solicitors who want to serve them. The bidding processes proposed are opaque and not suited to the commissioning of professional services, where the freedom of the individual is put at risk”, said Paul Marsh, Law Society President.

In their response to the proposals, the Law Society said that they will have a hugely detrimental impact on the quality of representation in police stations, and thereby damage the criminal justice system as a whole. Of equal concern is the failure to conduct a full and proper impact assessment, taking account of the potential disproportionate impact on women and BME practitioners. Desmond Browne QC, the Chairman of the Bar, said that “we cannot afford to sacrifice the present robust system for a scheme which lacks all economic justification, and which will have a disproportionate impact on BME practitioners. The LSC’s failure properly to assess the impact on BME practitioners is potentially discriminatory and may be unlawful; it has a statutory duty to avoid discrimination and promote equality of opportunity, and it has comprehensively failed to comply with this requirement”.

Speaking at a conference organised by the Legal Action Group to celebrate 60 years of legal aid, justice department minister Lord Bach said that BVT is “not a simple cost cutting exercise. It’s aimed at securing a sustainable, effective and efficient supplier base”. In an interview with the ‘Guardian’ he acknowledged that his policies are deeply unpopular among many former colleagues, adding that “I have to do what I can to ensure the legal aid is spent in the best possible way, and that’s what I’m trying to do.”

The Law Society’s response to the Legal Services Commission’s consultation on best value tendering for CDS contracts 2010 can be found at:-
http://www.lawsociety.org.uk/secure/file/180185/e:/teamsite-deployed/documents/templatedata/Internet%20Documents/Government%20proposals/Documents/bvt_response180609.pdf

It is always an event when the Lord Chief Justice reveals his views on the judicial system and so it was when the new holder of the office, Lord Judge of Draycote, addressed the University of Hertfordshire on 4 November. The title of his speech was “The Criminal Justice system in England and Wales – time for change?” and the full text can be found at http://www.judiciary.gov.uk/docs/speeches/lcj-speech-uni-hertfordshire-041108.pdf

Among many aspects considered was the relationship between the internet and the jury system. Lord Judge’s concerns are twofold. Firstly the availability of the internet to jurors. At the outset of a trial, judges direct the jury not to look at the internet in connection with the trial. They must reach their verdict only on the basis of what they hear in the courtroom. But, inevitably, from time to time an individual juror will disregard the direction and make his own private enquiries. Lord Judge referred specifically to a recent case when a juror went online using a Blackberry during a rape case, causing the conviction to be quashed. And he is not just concerned with today, “but the technology which will be available to our successors in, say, 2020 or 2025. I cannot begin to imagine the extent of the changes which lie ahead.”

His second concern is the extent to which internet culture is inimical to the traditional jury system. “Our system of jury trials depends on twelve good men and women and true coming to court and listening to the case. Orality is the crucial ingredient of the adversarial system. Witness speak and answer questions. Counsel speak and address the jury. Judges speak and give directions.” He described how the young get much information from the internet, how they consult and refer to it. “They are not listening. They are reading.” The potential problem he identifies is whether, learning as they do in this way, they will be accustomed to listening for prolonged periods. “What will happen to our oral tradition? Should it, will it, be forced to change?”

Writing in “The Guardian” Marcel Berlins wonders if the jury system can survive the internet. Accepting the validity of Lord Judge’s observations, he points out that although members of the internet generation are currently in the minority of today’s juries, progress is relentless, and it will not be long before they start to dominate them. He poses the question “what can be done to convey the evidence during a trial in a more palatable way, without destroying the essence of the jury system?”

Neither he nor the Lord Chief Justice (“I do not have solutions”) come up with answers.

Conditional Fee Agreements, also known as ‘no win, no fee’, are alternative methods of funding litigation, introduced widely in 2000 when legal aid for personal injury claims was axed. In this type of funding the solicitors share the risk in that if a case is lost the solicitor will not be paid but if the case is won the solicitor will charge a success fee.
CFAs can be used in all civil litigation except for family cases and provide access to justice for those who could not afford to pursue litigation and who are not eligible for public funding. But according to ‘Press Gazette’ a number the rich and famous have taken advantage of the CFA scheme.

As reported in ‘The Times’, organisations such as Citizens Advice Bureau have been urging a review of the scheme, saying that it is not widening access to justice in the way intended – in fact the actual number of claims has fallen since ‘no win, no fee’ schemes were introduced. The complex legal and financial processes involved are often misunderstood and consumers are misled into thinking the system will be genuinely ‘no win, no fee’ but can often find that costs are hidden and unpredictable. Another criticism is that these deals can create “perverse incentives for the legal profession” and encourage the cherry-picking of high-value cases with a good chance of success, leaving the smaller claims.
The Ministry of Justice has commissioned a review of the arrangements in England and Wales. Justice Minister Bridget Prentice said: “No win, no fee arrangements are vital in helping to give the public a voice in courts. However, we are aware of growing concerns that they may not always be operating in the interests of access to justice. We feel that now is the appropriate time for a comprehensive, objective and evidence based examination of the operation of no win, no fee arrangements in relation to personal injury, employment and defamation cases.”

Jack Straw has made his views clear. Addressing the Labour Conference in Manchester last week he said “I am concerned about …‘no win, no fee’ arrangements. It’s claimed they have provided greater access to justice, but the behaviour of some lawyers in ramping up their fees in these cases is nothing short of scandalous. So I am going to address this and consider whether to cap more tightly the level of success fees that lawyers can charge.”

The review is being led by Professor Richard Moorhead, Deputy Head of Cardiff Law School. He is due to report to ministers in the autumn.

Ask returning holiday makers how things went and they usually respond in superlatives. It is only later that you hear about the airport delays or poor food or upset stomachs or ghastly weather or other matters which reduce the holiday experience to, like most things in life, no more than reasonably satisfying.

Now there is a new potential nightmare to haunt the post holiday period. Under plans approved in principle by the European Parliament, British citizens could be convicted in their absence by foreign courts for such offences as traffic trangressions, theft, shoplifting or fraud, up to assault or murder. The proposals would allow citizens to be extradited automatically under fast-track procedures at the request of another EU country on the basis of a decision by the foreign court.
In Britain it is only in the most exceptional cases that trials take place in absentia, but such trials are more common in other EU countries. The new provisions are not a case of the perfidious European Parliament trampling unbidden on the British justice system. Britain was one of seven countries (since you ask, Slovenia, France, the Czech Republic, Sweden, Slovakia and Germany were the others) who sponsored a raft of proposals, including in absentia judgements, “on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States”. According to the Ministry of Justice the reform meets “an important and pressing need, namely to ensure that requests for the execution of European Arrest Warrants provide the necessary guarantees for citizens who have been sentenced abroad in their absence”. Last week the European Parliament approved the proposals by a thumping 609 to 60 majority, and the matter now goes forward for ratification by the European Council.

The decision has met with widespread opposition. Philip Bradbourn MEP, Conservative justice and home affairs spokesman in the European Parliament, warned that the decision “goes against one of the most fundamental cornerstones of British justice – that the accused has a right to defend himself at trial.” Nigel Farage, leader of the UK Independence Party, said the plan removed basic rights long enshrined in British law. “If we’re accused we must be able to know who accused us”. Pieter Cleppe, of pressure group Open Europe, said that “this proposal could open the door to serious miscarriages of justice”. The European Criminal Bar Association is strongly of the view that “in absentia judgements are by their very nature a violation of the fundamental rights of the accused”. And, in typically trenchant manner, Tim Worstall trumpets that this is “absolute bloody madness… Magna Carta did indeed die in vain.”

So you have been warned. Anyone for Brighton next year?

The Ministry of Justice has announced that the Criminal Justice and Immigration Bill received Royal Assent on 8 May. The first provisions (in relation to dangerous offenders) are expected to come in to force in July.

The Act will:

• introduce a new criminal offence of incitement to hatred on the grounds of sexual orientation
• clarify the law on self defence, articulating the state’s responsibility to stand by those acting in good faith when using force in self defence
• introduce new civil penalties for serious breaches of data protection principles
• abolish the common law offences of blasphemy and blasphemous libel
• reinstate the statutory ban on industrial action by prison officers
• introduce a minimum tariff of two years for prisoners serving indeterminate public protection sentences
• end automatic discounts for offenders given an indeterminate sentence after the initial sentencing decision has been judged unduly lenient
• give powers for courts to make dangerous offenders given a discretionary life sentence serve a higher proportion of their tariff before being eligible for parole
• create a presumption that trials in magistrates’ courts will proceed in the event the accused fails to appear
• introduce a new offence of possession of extreme pornographic images
• extend existing crack house closure powers to tackle premises at the centre of serious and persistent disorder or nuisance, regardless of tenure
• create a new offence of causing a nuisance or disturbance on NHS premises
• provide for non-dangerous offenders who breach the terms of their licence to be recalled to prison for a fixed 28 day period
• create a Youth Rehabilitation Order – a generic community sentence for children and young offenders, this will target the causes of offending behaviour and will simplify the current sentencing framework
• create the Youth Conditional Caution for young offenders
• bring compensation for those wrongly convicted broadly into line with compensation for victims of crime
• provide for special immigration status for terrorists and serious criminals who cannot currently be removed from the UK for legal reasons.