The Crown Prosecution Service has this week launched a 12 week public consultation on important changes to the Code for Crown Prosecutors, which is the document that sets out the principles which prosecutors must follow when they decide whether or not to prosecute an individual. The test set out in the Code is applied in every case and it requires prosecutors to consider whether there is sufficient evidence to charge an individual with a criminal offence and whether a prosecution is needed in the public interest.

In announcing the consultation, Keir Starmer QC, Director of Public Prosecutions, said “Following the announcement of the merger between the CPS and the Revenue and Customs Prosecutions Office (RCPO) earlier this year, I have considered further what changes to the Code for Crown Prosecutors should be made in order to ensure that all prosecutors in the new public prosecution service, along with police officers, are making fair and consistent decisions”. The main changes are:

• Prosecutors will have a discretion to determine whether, where there is sufficient evidence and it is in the public interest to prosecute, a prosecution is a proportionate response to the specific offending.
• Prosecutors will have a discretion to stop a prosecution in the public interest, in exceptional circumstances, before all of the evidence is available.
• A fuller section explaining the Threshold Test.
• A fuller section explaining the use of out-of-court disposals for both adults and youths.
• A fuller explanation of how the public interest is assessed.
• Further public interest factors are identified both tending in favour and against prosecution.

According to ‘The Times’, the consultation will fuel the debate on the numbers of cases escaping prosecution in the courts, which they estimate to be half the 1.4 million offenders dealt with by the justice system each year. A Crown Prosecution Service spokesman is reported as accepting that some offenders could be let off under the guidelines. ‘The Times’ also reports that the proposals were immediately condemned by the Magistrates’ Association, which said that it was yet another instance of the blurring of the respective duties of courts and prosecutors. John Howson, deputy chairman of the Magistrates’ Association, is reported as saying that the new discretion for prosecutors seemed to be “part of the complete muddle in the way we treat offenders and over the boundaries between where the prosecutors and the courts lie”, adding that “if someone has offended, they should be brought before the courts, where we have a range of penalties from an absolute discharge to custody. The job of prosecutors is to find the evidence, not to assess the weight of it”.

The consultation period ends on 11 January 2010 and a summary of the responses received will be published. The full text of the consultation can be found at:-

http://www.cps.gov.uk/consultations/rccp2_consultation.pdf

Lord Hunt of Wirral was commissioned by the Law Society in October 2008 to advise on what was needed to establish best modern practice in the regulation of solicitors. His terms of reference were:

‘In light of current and forthcoming changes in the Legal Services market, the differing needs of different types of client, current regulatory debates and the need to promote equality and diversity, to consider the appropriate regulatory rules, monitoring and enforcement regime to ensure high standards of integrity and professionalism for solicitors and their firms in all sectors, and to make recommendations.’

This week the Law Society published his report. In his ‘Welcome’ to the report, Lord Hunt acknowledged that the legal sector is undergoing a radical transformation. Alternative Business Structures will have to be assimilated into the legal regulatory system, the ever changing demands of clients will need to be satisfied, and English and Welsh law must maintain the high international reputation which provides so many business benefits for the UK. “For these, and many other reasons, it is critically important that the regulatory system is constantly revaluated to ensure it is fit to meet both new challenges, and long standing regulatory needs”.

Lord Hunt makes 88 specific recommendations, and there are four main themes in the report. He stresses that all firms must be regulated to the same standard, by a knowledgeable and credible regulator and in accordance with the well-established BRE principles of better regulation. But this does not mean that every firm should be treated in the same way. He advocates a system which he describes as Authorised Internal Regulation (AIR). AIR will be available to all firms, not just those concentrating on corporate work, who demonstrate their willingness and ability to set up internal governance standards that are robust enough to secure compliance. Secondly he recommends the extension of the regulatory net to include will writing, claims management companies and all of probate, as these are complex matters with potentially far reaching consequences.

Lord Hunt recommends that legal professionalism should be translated into regulatory principles. He says it is essential to base any regulatory system in a strong and transparent theoretical framework, ensuring that it has the necessary resilience and flexibility to adapt to the changing world in which it operates. His view is that legal professionalism, rooted firmly in the concept of the rule of law, provides a sound base for the regulator to build on. The fourth theme concerns the regulation of Alternative Business Structures (ABS). He does not oppose the 2011 launch date, as proposed by the Legal Services Board, but stresses the importance of getting it right. It is crucial that appropriate public and consumer safeguards are put in place. Regulators must be clear about the information they require, the scrutiny they intend to undertake, and how they will deal with regulatory breaches. He recommends that ABS should be subject to the same regulatory requirements that govern other law firms.

Bob Heslett, President of the Law Society, welcomed the report and said “Lord Hunt has set out an imaginative and thought provoking blueprint which I am confident will be invaluable to the SRA [Solicitors Regulatory Authority] as it charts its way forward for the future. We look forward to working closely with the SRA as it develops its approach.”
The full text of Lord Hunt’s report can be found at:

http://www.legalregulationreview.com/files/Legal%20Regulation%20Report%20FINAL.pdf

The Law Society claimed a partial victory when, after lobbying hard for a proper pilot and full evaluation of the proposals, the LSC promised that decisions on any roll out will not be taken until full pilots have been evaluated, which will not be before 2013. “This decision is a testament to the strength of the arguments put forward in the responses of the Law Society and all the other organisations who responded to the consultation” said Paul Marsh, Law Society President. He expressed pleasure that the LSC has adopted many of the suggestions in relation to the pilot model that were made in the economic report by LECG which was commissioned by the Law Society and welcomed the acknowledgement of the need for solicitors to be able to follow their clients out of area.

But there the welcome ends. Their main concerns are still that access to justice will be reduced and that there is a great risk of disrupting the existing supplier base. Firms are likely to feel pressured to make unsustainably low bids in order to win a contract and quality will not be taken into account as part of the bid process. The Law Society expressed disappointment that, despite an overwhelmingly negative response to BVT, the LSC has decided to proceed with pilot schemes in Manchester and Bristol. In a recent exchange of correspondence with the LSC, Des Hudson, Chief Executive of the Law Society, called for some protection for firms in the pilot areas. As bidding for contracts in the pilot areas will be open to all the firms in the whole country, this has the potential completely to destabilise and cause permanent damage to the existing supplier base, particularly as economic analysis has confirmed that the market is extremely fragile and that many firms currently operate at marginal profits. He also drew attention to the “complete lack of detail” of how the scheme will operate. “Please explain what, if any, training or advice you intend to provide.” Paul Marsh warned of the potentially destructive impact on firms in the pilot areas that will be forced to exit the market if they did not secure a contract. “For some lawyers in this position, the result will be personal bankruptcy,” said Marsh. “It is not acceptable that people should be bankrupted by the operation of a pilot scheme.”

Other views reported in the ‘Law Society Gazette’ included those of leading criminal law solicitor Andrew Keogh, who predicted the demise of BVT. “The pilots won’t happen. It’s a monumental shift by the LSC, kicking everything into the long grass.” Franklin Sinclair, senior partner at Manchester firm Tuckers, said practitioners would be looking at ways to challenge the decision to proceed, but if the pilots went ahead, it would be a “disaster for clients…I can foresee firms making unsustainable suicide bids and the price ending up so low that providing a service of any quality will not be possible.” Ian Kelcey, chairman of the Law Society’s criminal law committee, warned “each firm [in the pilot] will have to consider what decision it makes in relation to BVT. But they should be under no misapprehension that, if the price drops, the standards required by the SRA will not decrease.”

The full text of Des Hudson’s letter to the LSC is at:- http://www.lawsociety.org.uk/new/documents/2009/deshudson_lsc050809.pdf

and the LSC’s response is at:- http://www.lawsociety.org.uk/new/documents/2009/lscresponsebvt140809.pdf

The Solicitors Regulation Authority (SRA) regulates more than 100,000 solicitors in England and Wales. “Our purpose is to protect the public by ensuring that solicitors meet high standards, and by acting when risks are identified. We are the independent regulatory body of the Law Society of England and Wales.” But there have been repeated complaints that black and minority ethnic (BME) firms have been disproportionately targeted for interventions, and that complaints and disciplinary proceedings have been handled in a discriminatory way. Lord Ouseley, former head of the Commission for Racial Equality, was jointly commissioned by the SRA and the Society of Black Lawyers to conduct an independent investigation into the SRA’s treatment of BME solicitors and firms.

His report has just been published and it makes very uncomfortable reading for the SRA. Lord Ouseley says “it is the issue of disproportionality that has focused the concerns of BME solicitors.” Why are they over-represented in all aspects of regulation as depicted in the statistics produced by the SRA? He highlights two areas of concern in that BME solicitors are more subject to forensic investigations than white solicitors and, as a consequence, are disadvantaged considerably through the non-disclosure of information about allegations made about them. He finds that “not sufficient leadership emphasis has been given to the values of equality and diversity (which) leaves the SRA open to the charge of institutional racism.”

One of his more damning conclusions is the “level of prejudice and bias which exists among personnel” and the “evidence of some stereotyping being applied.” He cites case evidence of BME solicitors who are often assumed to be guilty of complaints or allegations made against them. They are more vulnerable as sole practitioners or practising in firms with four or fewer partners, firms which tend to score higher in the SRA’s risk assessment and therefore feature more in regulatory work. Another reported disadvantage is the failure to deal effectively and independently with complaints made by BME solicitors and staff of alleged discrimination in the way they have been treated by the SRA. “The processes applied seemed designed to ensure that the outcomes are virtually always against the complainer.”

Lord Ouseley makes 40 specific recommendations and “urgent, active and swift implementation is the most important.” The full text of the 106 page report can be found at:
http://www.sra.org.uk/documents/SRA/equality-diversity/ouseley-report.pdf