Tag Archive | "The Law Gazette"

Criminal Law Solicitors Association disclosure survey


As part of its campaign, with others, to ensure that both the Prosecuting authorities and the Courts comply with the Law and Criminal procedure rules, the Criminal Law Solicitors Association (CLSA) is conducting a disclosure survey.

The CLSA has long challenged what it claims to be repeated failures by prosecutors to disclose information on time, and has begun collecting examples from solicitors to present to the Ministry of Justice, the Criminal Procedure Rule Committee and the Commons justice select committee.

The laws and rules are supposed to maintain balance, fairness and efficiency in the Criminal Justice system. The survey seeks information about experience of disclosure of evidence failings, or late service by the Prosecution, and the frequency of such failure. Specifically, the attitude of the Court when the defence have brought the disclosure failure to the attention of the Court is sought and opinion on the desirability of strengthening the requirements.

CLSA pose one particular question: “At the trial or final contested hearing, where late service of documents, media or any other evidence places the defence under unreasonable logistical or time pressure would you support a strengthening of CrimPR 24.13 so such evidence can only be admitted by leave of the court in exceptional circumstances or by S10 agreement?”

According to the ‘Gazette’ the survey, which opened last Monday, has already attracted 400 responses, with 300 in the first twenty-four hours. Robin Murray, association committee member and former vice-chair, said: “The survey shows the Crown prosecution fail, on a daily basis, to do what the law requires them to, which is to serve the evidence so the defendant knows the case against them.

“When these failings are brought to the attention of the courts time and again, the courts fail to hold the prosecution to account, which means either a waste of public money because cases are adjourned unnecessarily or, far more seriously, the defence are put under pressure to proceed without reasonable notice of recently served evidence.”

One anonymous respondent in the ‘Gazette’ said: “The very mechanism that exists to give victims justice not only fails to deliver that justice but re-victimises the vulnerable all over again…There are simply not enough CPS staff or Police to process and prepare cases properly but I believe there is also an obligation on the part of the Defence to request it and they are not always as assiduous as they could be with regard to this.”

Another respondent wrote: “That the Government neither says nor does anything about this speaks volumes concerning its attitude towards justice and the rule of law in the UK. It seems to aspire to standards that wouldn’t even be acceptable in a third world autocracy.”

One more damning comment in the ‘Gazette’: “The failure of the Crown to comply with their disclosure obligation is the norm. This leads to miscarriages of justice and defendants routinely acknowledge that the magistrates’ court is no place to get justice. This has now crept into the Crown court where the defence have to constantly fight to get disclosure… In nearly every single case I have at the moment, approximately 50, the Crown have failed to comply with their disclosure obligation and I’ve had to list the case for a mention hearing.”

Posted in Criminal Justice, Legal AidComments (0)

Extended court sittings


A new pilot scheme from HM Courts & Tribunals Service (HMCTS) will introduce extra sittings at civil, crown, and magistrates’ courts to increase the number of cases seen each day.

The pilots are expected to begin in May, in six courts over six months. The six pilot courts are: Newcastle and Blackfriars Crown court; Sheffield and Highbury Corner magistrates’ court; and Brentford County Court and Manchester Civil Justice Centre. The plans will see the crown court sit until 18:00, civil courts until 19:00, and magistrates until 20:30.

The ‘Gazette’ reports that a spokesperson for HMTCS said: “We are exploring flexible operating hours in six pilot courts to test how we can improve access to justice for everyone by making the service more convenient for working people. These pilots will help us understand how flexible hours affect all court users and will be fully evaluated before any decision is taken on rollout.”

The HMCTS spokesperson said flexible operating hours are just one aspect of the government’s plans to transform the justice system, which include increased use of virtual hearings. “We are investing over £1bn to reform our courts to deliver swifter justice, that is modern, more accessible and better meets the needs of all court users. We are exploring flexible operating hours in six pilot courts to test how we can improve access to justice for everyone by making the service more convenient for working people,” the spokesperson said.

The Bar Council has urged HMCTS to ensure that the impact on parents, and women in particular, is built into the evaluation criteria used to test the success of the pilots.

Quoted in ‘Solicitors Journal’, the chairman of the Bar, Andrew Langdon QC, said the biggest impact of these changes will fall on women barristers. “These arrangements will make it almost impossible for parents with childcare responsibilities to predict if they can make the school run or to know when they will be able to pick children up from the child-minders,” he said.

He added: “Childcare responsibilities still fall disproportionately to women, many of whom do not return to the profession after having children. It is hard to see how these plans sit with the government’s commitment to improving diversity in the profession and the judiciary. The profession and the judiciary must reflect the communities they serve. We need measures that will help women stay in the profession, rather than make it even more difficult to be a mother and a barrister at the same time.”

Richard Miller, head of justice at the Law Society, said that previous experiments did not find sufficient benefits. “An effective pilot would have to maintain a clear focus on impact – whether on members of the public using the court service or professionals providing advice and representation. This includes advising people making or defending civil claims, those involved in criminal proceedings or family court services,” he said.

He added: “We welcome the assurance this pilot will be subject to a robust evaluation before any decision is taken to roll out the scheme. We look forward to getting more detail from HMCTS – both about the pilot and about how they will evaluate it.”

Posted in Civil Law, Criminal Justice, Law UpdatesComments (0)

Enabling tax avoidance


According to the ‘Gazette’, solicitors, with the exception of those in-house, are among the main losers from last week’s spring budget. A combination of higher national insurance contributions and increased taxes on dividends will hit self-employed practitioners, partners and director shareholders.

In addition, accountants, lawyers, tax planners and advisers who provide advice on how to avoid tax will face tough penalties under new proposals being consulted on by the government. Under the plans set out in an HMRC consultation document enablers of tax avoidance could have to pay a fine of up to 100 per cent of the tax the scheme’s user underpaid. The fines are designed to be levied against accountants and lawyers who create tax avoidance schemes of the kind used by celebrities. Read the full story

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Personal Injuries proposals


In a move described as ‘heavy handed, excessive, and disastrous’ the Ministry of Justice announced last week that it plans to either scrap the right to compensation or, alternatively, put a cap on the amount people can claim for minor soft-tissue injuries. Capping whiplash compensation would see the average pay-out cut from £1,850 to a maximum amount of £425.

MoJ also said it would raise the limit for cases in the small claims court for all personal injury claims from £1,000 to £5,000. Read the full story

Posted in Civil Law, Legal AidComments (0)

City police recruit law firms tackle cyber criminals


In a pilot programme that could have huge implications for the future of cyber security law enforcement, the City of London Police will be pursuing cyber criminals through civil courts rather than criminal courts.

The force will work with private sector law firms to seize and recover assets from criminals through civil litigation procedures for the recovery of assets. Solicitors will be tasked with recouping the assets using civil litigation, potentially raising the prospect of a panel of firms pursuing cases on a no win, no fee basis or through third-party funders.

The force’s Economic Crime Directorate believes that this method will allow far quicker identification, seizure and return of assets to victims.

The two-year pilot scheme has been launched by the City of London Police. It will be deployed in tandem with asset recovery under the Proceeds of Crime Act (POCA), adding another weapon to the armoury of law enforcers.

A working group to oversee the experiment has been set up by the City of London police, officers from the National Crime Agency, and Metropolitan police, and law and private investigation firms.

The force says the scheme is a way of more effectively tackling fraud, which is now the biggest type of crime, estimated to cost £193bn a year and overwhelming police and the criminal justice system. The Office for National Statistics said in July that there had been more than 5.8m incidents of cybercrime in the past year, enough to virtually double the headline crime rate in England and Wales.

The experiment, which is backed by the government and being closely watched by other law enforcement agencies, is expected to lead to cases reaching civil courts this year or early next year. Year one of the project will be part-funded through a £157,000 grant from the Home Office’s Police Innovation Fund. Officers have applied for similar funding for year two.

Detective Superintendent Maria Woodall, operational lead for the pilot said: ’This innovative new scheme will hopefully allow us to be more flexible and creative in how we identify and seize criminal assets in certain cases to get those funds back to the victims of crime and out of the hands of criminals.’

In July the Commons Home Affairs Select Committee produced a highly critical report on proceeds of crime, saying the regime is not fit for purpose and calling for radical reform. Its recommendations included more collaboration between public bodies involved in POCA and the private sector, and the creation of a market for private enforcement.

As reported in the ‘Gazette’, one firm that submitted evidence to the committee calling for such a market was Pinsent Masons. Alan Sheeley, head of civil fraud and asset recovery at the firm, described the pilot as a ‘vital step forward’, adding “This is a really exciting and long overdue step for law enforcement agencies in the UK.”

Less convinced, as reported in the ‘Guardian’, is Katie Wheatley, joint head of criminal law at Bindmans, a London law firm. She expressed unease over the proposals, which she said gave police “what they would regard as an easy deterrent, without having the inconvenience of proving an offence to a criminal standard.”

She said the plan risked creating a conflict between private firms’ profit motive and the fairness of the process. “We’ve seen privatisation in this context in other ways, for example prison privatisation,” she said. “We all know how badly that’s gone wrong.”

Posted in Criminal Justice, Legal ITComments (0)

Crime Contingency Contracts


Following justice secretary Michael Gove’s January decision to scrap a controversial ‘two-tier’ contracting regime, for which firms competed to secure one of 527 duty provider contracts, replacement contracts were expected to come into force later this year.

The Legal Aid Agency (LAA) is now offering to extend current contingency contracts, which were due to expire on 10 January 2017, to 31 March 2017. Providers have until 30 June to accept the offer.

The LAA said: “This extension is needed so that we can:

  • allow the tender process and mobilisation period to be completed so providers can prepare for a new crime contract in 2017
  • ensure continuity of crime services from 11 January 2017 to the start date of the replacement crime contract Letters will be issued to all Crime Contingency Contract holders shortly. Providers will have until 23.59 on 30 June to accept the contract extension. “Any providers who do not accept the extension will retain a contract to the current end date of 10 January 2017.”

The LAA also announced that it had entered into a three week consultation with representative bodies on the content of the 2017 Standard Crime Contract on 8 June 2016. A spokesperson for the agency confirmed that the representative bodies are the Law Society, Bar Council, Legal Aid Practitioners Group and Advice Services Alliance.

As reported in the ‘Gazette’, a Law Society spokesperson said: “We are expecting the contract to be largely uncontroversial, mainly reflecting changes proposed in the draft 2015 contracts when the Legal Aid Agency drafted “own” and “duty” contracts for the two-tier arrangements.

“The Society has been working with the practitioner groups and the LAA to try to find a mechanism to mitigate the problem of “ghost” duty solicitors by tightening up the rules to ensure that only those currently active in criminal law can act as duty solicitors.”

Also quoted in the ‘Gazette’, Zoe Gascoyne, chair of the Criminal Law Solicitors’ Association, regretted the fact that the CLSA and the LCCSA were not statutory consultees. LCCSA president Greg Foxsmith said the association has “made the case for duty solicitor slots to remain with individual solicitors, rather than firms,” adding “with over 1,000 members in London desperate to know what the provisions of the proposed new contracts [are], it is bizarre that the LCCSA is not consulted but instead the Bar Council is invited to comment.”

One may ask why this last minute rush to deal with a well flagged matter. Could it be that the all consuming hustings for the referendum has led politicians, of all colours, to take their eyes off the ball of routine government business. Be grateful that we have a diligent, highly professional civil service to see that essential business is maintained.

Posted in Criminal Justice, Legal AidComments (0)

Discriminatory residence test for legal aid summarily thrown out


Our blog on Monday said that the Supreme Court would begin hearing arguments in a case challenging the government’s Legal Aid residence test that day. Remarkably by Monday evening the case was resolved.

The Supreme Court has taken what is believed to be the unprecedented step of allowing an appeal halfway through a two-day hearing. The bench of seven justices in the UK’s highest court abruptly halted the case and announced on Monday afternoon that it had found against the Ministry of Justice.

The government had been seeking to introduce the residence test via secondary legislation. The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which brought the case, said that this is outside the government’s powers and also discriminatory under human rights laws.

As reported in the ‘Gazette’ a brief statement by the supreme court said: “The issues in this appeal were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

“At the end of today’s hearing the supreme court announced that it was allowing the appeal on ground [of ultra vires] … The supreme court asked the parties whether they wished to address the court on the second issue. The case has been adjourned while this is considered.”

On Tuesday the court confirmed on its website that the hearing ‘has now concluded’. Full written reasons for its decision ‘will follow in due course’.

Law Society chief executive Catherine Dixon said: “This judgment goes some way in reaffirming the philosophy behind legal aid, which is that everyone should have the ability to get expert legal advice and representation to defend their legal rights.

“The court has upheld the vital principle that government must act within the scope of its powers and particular scrutiny must be given where equality before the law is being threatened.”

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, said: “Right now though, it is clear that the Supreme Court believed rationing British justice using delegated legislation was repugnant to British law and it was willing to act decisively to stop that happening.” Should the government want to introduce a residence test in the future, Halford said it would have to propose primary legislation with the residence test in it.

Such a swift ruling is a humiliating setback for the MoJ. Reversals were a regular matter for the previous unlamented justice secretary Grayling, but Gove has had the sense to abandon many unpopular measures introduced by his predecessor. He has blotted his copybook by allying himself with this now thrown out policy. He intended to proceed with plans to introduce the scheme this summer.

A Ministry of Justice spokesperson said: “We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.”

Posted in Civil Liberties, Legal AidComments (0)

The impact of legal aid cuts


The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean “litigants in person (LiPS) achieve worse outcomes compared with their represented counterparts.”

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Some lost their jobs due to the pressure, while others got into debt due to court issues, including paying for photocopying and travelling to and from court.

Meanwhile, seven in 10 reported they might ‘think twice’ about taking a case to court themselves if they could not afford a lawyer.

The charity said it was only after people had been through the process of going to the family court that they realised the value of having a lawyer, with 70% saying that instructing a professional would have benefited their court experience. The lack of professional support has also placed intolerable pressure on the court system.

Gillian Guy, chief executive of Citizens Advice, said: “For people representing themselves in the family courts, whether in a divorce case or to keep the legal right to see their children, the workload to prepare can be unmanageable. In extreme cases people are quitting their job so they have the time to do research before going to court.

“The stress of making your case against qualified barristers and navigating complex court processes without the right guidance can make existing mental and physical health problems worse.”

In January the lord chief justice, Lord Thomas of Cwmgiedd, delivered a warning about the legal aid situation in England and Wales. “Our system of justice has become unaffordable to most,” he said. “In consequence, there has been a considerable increase of litigants in person for whom our current court system is not really designed.”

Three years after the government scrapped legal aid across much of civil law, more ‘advice deserts’ are emerging in the sectors that remain in scope. Several parts of England and Wales now have inadequate housing law cover which could give rise to potential conflicts of interest. A number of areas have no cover at all.

According to the ‘Gazette’ the Law Centres Network said: “Parliament’s intention in LASPO was that the most vulnerable people should still be able to access legal assistance. As evictions and homelessness rise steadily, a decline in housing legal aid uptake suggests that need is not being met.”

From the usual spokesperson for the Legal Aid Agency we learn that the ’vast majority’ of England and Wales have access to LAA-funded housing advice. “We constantly monitor the situation across the country and we are actively seeking new providers in two areas,” the spokesperson said. “Legal aid is a vital part of our justice system but we must ensure it is sustainable and fair for those who need it, those who provide services and for the taxpayer, who pays for it.”

Posted in Civil Law, Civil Liberties, Legal AidComments (0)

The £25 billion legal sector


The legal sector is growing over two and a half times faster than the economy as a whole. The UK Legal sector was worth £25.7bn in 2015, up by £1.9bn on the previous year. The sector has grown by an average of 3.3% a year over the past decade.

These are headline findings to emerge from Economic Value of the Legal Services Sector, which the Law Society says is the first study of the contribution that legal services makes to the wider UK economy.

The new analysis shows that:

  • 8,000 new jobs are created and £379 million is added to the economy for every one per cent growth in the UK legal services sector.
  • The sector grew by 8 per cent from 2014 to 2015.
  • Each £1 of extra turnover in the sector stimulates £1.39 in the rest of the economy.
  • Every 100 extra jobs in legal services supports a further 67 jobs.
  • An estimated 370,000 people are employed in legal services in the UK. 63 per cent are solicitors or employed by solicitor firms.
  • Net exports of legal services have grown by an average of 5.6 per cent per annum over the last 10 years, to £3.6 billion.

The report presents findings from two different studies based on input-output analytic tables published by the Office for National Statistics every five years.

According to the Gazette, these demonstrate the extent to which the legal sector supports activity elsewhere in the economy. In 2010 this ‘output multiplier’ was 2.39 – every extra £1 in demand for legal services supported £2.39 in spending across the economy. For every 100 extra jobs created in the sector, 167 jobs across the entire UK economy would have been created.

Based on these figures a 1% ‘positive shock’ to the legal services market would add £379m in gross value (GVA) added to the UK economy and 8,000 extra jobs. Conversely, a ‘negative shock’ would result in a £242m loss in gross value added in the initial year.

Introducing the study, the Law Society chief executive Catherine Dixon said: “The provision of expert legal services is fundamental to the success of business and commerce and underpins the very fabric of our society.

“From high street solicitors to global law firms, and from in-house solicitors to those who operate in alternative business models, our research shows that growth in legal services significantly contributes to the wider economy, boosting investment and jobs. Solicitors and employees of solicitor firms make up 63 per cent of the legal sector.”

The study shows that net exports of legal services have also grown in value by an average of 5.6 per cent per annum over the last 10 years, to £3.6 billion in 2014. The legal services sector is a net exporter, helping to offset the UK’s overall balance of payments deficit. English and Welsh law is the choice of law internationally and England and Wales is the jurisdiction of choice.

Posted in Law UpdatesComments (0)

Bill for abandoned legal aid contracts


The government admits to spending more than £400,000 on an abortive attempt to impose new criminal legal aid reforms. This was revealed in response to a request made by the Gazette to the Ministry of Justice under the Freedom of Information Act.

The Gazette sought a response to three queries. The first query asked “how much money the Ministry of Justice/Legal Aid Agency spent on the procurement process for 2015 duty provider crime contracts, from 27 November 2014 (when the procurement process opened) until 28 January 2016 (when justice secretary Michael Gove announced in a written ministerial statement that he would not go ahead with the introduction of the new dual contracting system)?”

The Legal Aid Agency’s information governance team said the procurement tender process was ‘one component’ of a ‘larger’ Legal Aid Transformation (LAT) programme, for which the agency has incurred a total of £5.5m in one-off implementation costs on the ‘entire’ programme since its inception.

The programme ran from 2013/14, covering initiatives such as reforms related to prison law, restrained assets, judicial review payments, civil fees, and crime fees and competition. The £5.5m figure includes three cost categories which the agency said can be ‘separately identified as directly related to the crime tender’. These are:

– External legal fees of £13,565, associated with drafting the criminal legal aid contracts, incurred between 27 November 2014 and 28 January 2016,

– Legal support on the procurement and assessment process, which the agency said was distinct from legal work, incurred a cost of £125,933.

– Agency staff incurred a cost of £271,574.

The Gazette’s second query asked how much the Ministry of Justice had spent defending the judicial review brought by the Fair Crime Contracts Alliance and around 100 claims issued by law firms in accordance with part 7 of the Civil Procedure Rule.

The LAA went to great lengths to detail the pros and cons of revealing such information, but concluded: “We reached the view that, on balance, the public interest is better served by withholding this information under Section 31(1)(c) and Section 43(2) of the Act at
this time….In this case, we believe that releasing the information would be likely to prejudice both the administration of justice as well as the Department’s commercial interests”

The Gazette’s third query asked “What does the Ministry of Justice/Legal Aid Agency plan to do with documents from the procurement process that show the marking by the assessors and moderators of all the applicant firms’ bids?”

The LAA responded that “No specific arrangements have been made concerning this documentation. Storage/disposal of documents will be in line with the LAA’s corporate retention policies.”

The quoted figure of just over £400k must be treated with suspicion. The cost of the aborted litigation that the LAA refuses to put a figure to must have been significant. And that’s not to mention the large number of LAA staff who worked full time on this project, the very expensive road shows, the strikes and disruptions of courts and other costs.

The pig-headedness of the unlamented former Lord Chancellor will undoubtedly have cost more than any hoped for savings.

Posted in Criminal Justice, Legal AidComments (0)

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