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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.”

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Prison reform

Prison reform was a key element of the Prisons and Courts Bill, abandoned in the run up to the general election. And it was not reinstated in the threadbare Queen’s Speech.

In his first public statement since taking up the post of justice secretary, David Lidington has sought to reassure that this apparent dropping of prison reform is not sinister. The Ministry of Justice (MoJ) published an open letter from him claiming that ‘essential’ changes are already under way to make prisons places of ‘safety and reform’.

“The work to make our prisons true places of reform and rehabilitation is already under way – and it will continue unabated,” Lidington writes. He details the work within local communities and with other services such as with Probation, Jobcentres, housing, health and drug services, local businesses and charities to provide innovative schemes and initiatives to prepare prisoners for a life after release and promises: “Only by building on this work to reform offenders and support ex-offenders will we stop the vicious and costly cycle of reoffending.

“This is my priority and as the new Secretary of State, I am committed to building on the essential reforms that are already under way to make prisons places of safety and reform.”

Stressing the importance of staffing he said: “My predecessor has already secured a £100 million a year investment for an extra 2,500 prison officers. The most recent figures show the number of prison officers in post has increased by 515 compared with the previous quarter and we are on track to deliver all 2,500 prison officers by December 2018.”

Lidington claimed that we are the first jurisdiction in the world to introduce testing for psychoactive substances across the estate. And more than 300 dogs have been trained to detect these substances.

On drones he said that the department is working with the police to catch and convict criminals using drones to smuggle contraband into prisons, and have also established a new team of prison and police officers to directly tackle the threat posed by drones. On mobile phones: “We are working with mobile network operators to tackle illicit use of phones. We have now fitted out every single prison across the estate with hand-held mobile phone detectors and detection poles to step up the detection of illegal phones on the landings. More than 150 mobile phones have been cut off since the introduction of new powers through the Serious Crime Act.”

He confirmed that “We are continuing to transform our prison estate to close old and dilapidated prisons and create up to 10,000 new places through a £1.3 billion investment.”

As reported in the ‘Gazette’, Peter Clarke, HM chief inspector of prisons, said the bill had enjoyed broad parliamentary support and had made real progress. Its absence from the Queen’s speech was a ’missed opportunity’, Clarke said, adding: “We will continue to report the harsh reality of what we find in our prisons – all too many of which are dangerous for prisoners and staff alike.”

And Peter Dawson, director of the Prison Reform Trust, said: “The decision puts even more pressure on the new justice secretary to find ways to stop our chronic overuse of prison so that this hardest pressed of public services can start to repair the damage his predecessors have inflicted upon it.”

The full text of the justice secretary’s letter can be found at:
https://www.gov.uk/government/speeches/prison-reform-open-letter-from-the-justice-secretary

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Late night courts

Last month HM Courts and Tribunals Service (HMCTS) announced that it was planning to test late night courts this month in an effort to understand how to make the system more flexible for all users.

The pilot is planned to take place in six courts over six months. Under the scheme, Crown courts at Newcastle and Blackfriars will be open until 6pm, civil courts in Brentford and Manchester until 7pm and magistrates’ courts in Sheffield and Highbury, London, until 8.30pm.

A spokesperson for HMCTS was reported as saying: “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.”

Then came the announcement of a general election and the trial was postponed. It is a fair bet that the majority of the legal profession hope that the postponement is permanent.

The Law Society pointed out that the pilot will rely on the assistance of lawyers who have already been subject to public funding cuts and a flood of civil justice reforms in recent weeks, and warned that any proposal would require robust evaluation to assess the impact.

The Criminal Law Solicitors’ Association (CLSA) said that the announcement of the pilot scheme had been met with anger by criminal practitioners, saying that the absence of defence practitioners from the planning group “is staggering when you consider that they are essential to the smooth running of the justice system. To exclude the very people who ensure that defendants are properly represented and that justice is done is most concerning.”

The CLSA go on to say: “The prison service is currently in crisis and will be faced with dealing with prisoners having to be conveyed and booked into the prisons of an evening. The probation service will need to make officers available at extra cost as will HMCTS, the Crown Prosecution Service, mental health services and social services. Access to justice will be restricted as the “project” has seemingly failed to consider how legal representation will be made available.”

A leading chambers, Garden Court North Chambers has warned the government that remaining goodwill from barristers is running at ‘dangerously low levels.’ In a statement released this month the Manchester set condemns the idea and warns that ministers should no longer rely on lawyers to toe the line.

The Chairman of the Criminal Bar Association (CBA) said the scheme is “misconceived, impractical, an inefficient use of time and inimical to anyone with care responsibilities.” Such schemes have been trialled before and none ended well. He went on to say that the scheme will mean barristers having to work in court far later than they presently do with a serious knock on effect on their ability to prepare that evening for the next day’s cases.

The view of the CBA is that the scheme threatens to have a serious impact on the family lives of barristers who already work long hours. Many have direct childcare responsibilities which make working until 7pm or later in court completely impractical. As the bulk of childcare falls on the shoulders of women lawyers this scheme is likely to be discriminatory.

The future of this proposal is now dependent on who becomes lord chancellor. The record of recent incumbents of that post does not bode well.

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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.”

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Prisons and Courts Bill

“Prison is about punishing people who have committed heinous crimes, but it should be a place where offenders are given the opportunity to turn their lives around,” said the justice secretary, Liz Truss, introducing the Prisons and Courts bill last Thursday.

“I want our prisons to be places of discipline, hard work, and self-improvement, where staff are empowered to get people off drugs, improve their English and maths to get a job on release,” she said.

Under a new framework, the justice secretary will be accountable to parliament for progress in reforming offenders. Meanwhile, governors will take control of budgets for education, employment, and health. The government hopes the measures will drive down the £15bn annual cost of reoffending. This legislation underpins measures in the recently published Prison Safety and Reform White Paper. Read the full story

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Sentencing and the prison population

Justice secretary Liz Truss set out her views on sentencing and the prison population in an address to the Centre for Social Justice last week. She believes that “We should be proud that we live in a society that no longer shames victims of rape; that is prepared to confront child sex abuse, and has brought domestic violence out in the open.”

She said that the problems boil down to four distinct areas: sentences are too long; prisons are too overcrowded to work; the wrong people are in prison; and the management of the prison population at the moment isn’t good enough.

She pointed out that the prison population has remained relatively stable since 2010, at around 85,000 people, and that it is not true that rates of imprisonment have gone up across the board. In 2015 courts handed out 9,000 fewer short-term sentences than they did in 2010.

She identified the biggest driver for prison growth in the last twenty years as the exposure, pursuit and punishment of sexual offences and crimes of violence, and a toughening up of sentences for these crimes. “Since 2000 there has been a 29% increase in those sentenced to custody for robbery and a 75% increase for violence against a person. And there has been a 140% increase in the number of sexual offenders in prison,” she said.

She added: “This has led to a change in the make-up of our prison population – from two in five being prisoners convicted of violent, sexual or drug offences in 1995 to three in five now. There has been a huge difference in the people we send to prison. Compared with 2010, there are now 3,000 more sex offenders in prison.”

She pledged to take action to spare victims of sexual abuse the trauma of giving evidence in open court in criminal cases. In family courts “I will end the appalling practice of domestic abuse victims being cross-examined by their attacker” she said.

“I want to transform our prisons from places of violence and despair to places of self-improvement and hope where all prisoners are given the chance to lead a better life,” she said, “because I believe that everybody is capable of reform.” The Prison and Courts Bill, due to be published this month, will enshrine in law that reforming offenders is a key purpose of prison and that the Secretary of State has responsibility for delivery.

A more systematic, nationally consistent approach is needed to provide quicker and more certain access to mental health treatment for offenders. Early intervention by the courts is vitally important in stopping women offenders from ending up in prison. “We will be announcing our strategy for women later this year and have already announced a new director for women in custody and the community – Sonia Crozier,” she said. “Early intervention is not a ‘nice to have’ added extra to the justice system, it is vital if we are ever to break the cycle of crime, punishment and more crime.”

She acknowledged that: “We also have to deal with the levels of violence and self-harm in our prisons. That is why as well as investing in reform and giving more powers to governors and creating a new frontline agency – Her Majesty’s Prison and Probation Service – we are putting an extra £100m a year into the frontline and will take on 2,500 more frontline officers.”

So much for former justice secretary Grayling’s mismanagement, subservient to Chancellor Osborne’s austerity programme, conceding dangerous cuts, all the while denying that there was crisis in the prison service. Liz Truss knows different. Since this speech was delivered she has offered substantial – and divisive – pay rises. Never was there such a clear example of the false economies of the austerity programme.

She concluded: “The answer to overcrowding is not to cut prisoner numbers in half. It is to make sure we have the right resources, the right workforce, the right buildings and the right regimes to reform offenders and turn their lives around (then) we will see our society become safer and our prison population will reduce.” Let us hope so.

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Reforming the Advocates’ Graduated Fee Scheme

The Ministry of Justice (MoJ) has issued a consultation paper which sets out proposals for the reform of the Advocates’ Graduated Fee Scheme (AGFS). This scheme pays advocates to defend clients in the Crown Court. The current AGFS scheme was last subject to major change in 2007.

In his introduction to the consultation, Sir Oliver Heald QC MP, Minister of State for Courts and Justice, said: “Sir Brian Leveson has produced an outstanding blueprint for the modernisation of our criminal proceedings system. His reforms are already beginning to transform the criminal justice system to reflect the new reality that we face. It is vital that we update the way that we pay criminal defence advocates to reflect this reality too. Our current payment system does not focus enough on the skilled advocacy that barristers and solicitor advocates demonstrate in the Crown Court. I want to change that.”

According to the Government, the AGFS relies too heavily on Pages of Prosecution Evidence (PPE), served by the Crown Prosecution Service, as a means of deciding how complex individual cases are, and therefore how much a defence advocate should be paid. The current scheme also relies on the number of witnesses to help determine the fee to be paid.

The justice system is changing, and new forms of evidence are becoming critical features of many criminal cases. The counting of pages, and counting of new forms of electronic evidence, converted to “pages” is held to be no longer the most effective way of assessing how much work an advocate needs to do in an individual case, and therefore how much that advocate should be paid.

The proposed scheme claims to reduce reliance on counting pages, and instead would introduce a more sophisticated system of classifying offences, based on the typical amount of work required in each case. The time spent in court, conducting the advocacy upon which the justice system relies, would also become a more important driver for the fee paid. It is designed to be cost neutral, “with no intention to reduce or increase the overall cost envelope.”

While encouraging as many members as possible to respond to the proposals, the Law Society asserts that MoJ plans to impose cuts of up to £30 million on criminal defence solicitors. The proposed cuts come less than a month after the MoJ published proposals that will see QCs’ fees rise by 10% at the expense of other criminal advocates. The MoJ will reduce payments to advocates appointed by the court to cross-examine alleged victims of abuse from private rates to legal aid rates, and will make changes to the Litigators Graduated Fee Scheme (LGFS) which will slash payments for paper-heavy Crown Court cases. Criminal solicitors simply cannot afford to absorb any further cuts.

James Parry, chair of the Law Society’s Criminal Legal Aid Committee, said that these cuts are unnecessary and ill-timed, given the long term project to reform the litigator fee scheme, which will ultimately remove reliance on the pages of evidence which are creating this problem. As the Society will be working with the MoJ on this longer term project “it is unwise to impose short-term cuts on the scheme before that project has even started.”

“The Ministry has extensive independent evidence from consultants that demonstrates that solicitors’ businesses cannot afford to absorb further cuts, and there is a substantial risk that these cuts will drive a significant number of firms into insolvency,” said Parry.

“We recognise that the MoJ has concerns about the use of paper as a proxy for determining fees in the Crown Court,” he said. “With so much evidence now being video or data evidence, we have long shared those concerns. This is why we lobbied the Legal Aid Agency to start discussions about revisions to the LGFS to reflect the reality of Crown Court cases today. It is deeply disappointing that the MoJ is making ill-considered ad hoc changes to the scheme when those discussions are ongoing and making good progress.”

Parry concluded: “This is not a rational approach. The Government needs to tackle the problem at source. It cannot keep responding to every change in the criminal justice system by slashing the fees paid to lawyers.”

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Reforming the Advocates’ Graduated Fee Scheme

The MoJ has published a consultation paper on a modernised advocates’ graduated fee scheme (AGFS). The scheme, which was last reformed in 2007, pays criminal defence advocates legal aid for representing those accused of crimes in the Crown court.

Introducing the new proposals, justice minister Sir Oliver Heald said: “Our current payment system does not focus enough on the skilled advocacy that barristers and solicitor advocates demonstrate in the Crown Court. I want to change that. The measures in this consultation package, developed with the assistance of representatives from across the legal profession, set out a simpler, fairer and more modern alternative.” Read the full story

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Stalking prevention orders

Home secretary Amber Rudd has announced that she is to introduce new stalking prevention orders that will give the courts fresh powers to order offenders at an early stage not to go anywhere near someone they have been compulsively pursuing but whom the police do not have enough evidence to charge. In future they will face asbo-style bans.

Police will be able to apply to the courts for an order before a stalking suspect has been convicted or even arrested. Breaching an order’s conditions will be a criminal offence with a maximum sentence of five years in jail.

Rudd called it “a practical solution to a crime taking place now.” The orders in England and Wales will help those who are targeted by strangers, giving them similar protection to domestic abuse victims.

She said: “Stalking can have devastating consequences, and I am determined that we do all we can to protect victims from these prolonged and terrifying campaigns of abuse that can last years, leaving many people too afraid to leave their homes and unable to get on with their lives.”

One in five women and one in ten men will be affected by stalking in their lifetime. According to the Crime Survey for England and Wales 4.6% of women and 2.7% of men aged 16-59 were victims in 2015/16 alone.

The protection orders will enable the courts to impose restrictions on suspected stalkers, including staying away from their target, restricting their internet use, attending a rehabilitation programme or seeking treatment for mental health issues.

The Home Office said the new orders would offer additional protection at an early stage for anyone who has not been in an intimate relationship with their stalker, helping those targeted by strangers, acquaintances or colleagues, as well as professionals such as doctors who may be targeted by patients.

The requirements of the order will vary according to the nature of the case. The suspect could be banned from going near the victim and contacting them online. They might also be ordered to attend a rehabilitation programme, or undergo treatment if they have a mental health problem.

As reported in the ‘Guardian’ Garry Shewan, Greater Manchester police’s assistant chief constable and the National Police Chiefs’ Council lead for stalking and harassment, said: “We want to stop stalkers in their tracks. In the last year, police have recorded 32% more stalking offences and more perpetrators are now being prosecuted. The launch of stalking protection orders will help us intervene earlier and place controls on perpetrators to prevent their behaviour escalating while the crime is investigated.”

But critics fear that the orders will be used as a substitute for pursuing criminal prosecutions by poorly trained police and prosecutors unable to gather evidence. They also voiced concerns that breaches would not be rigorously enforced.

Stalking protection orders form part of a package of government action to coincide with 16 days of action following the 25 November International Day for Elimination of Violence Against Women. Introducing the new orders will require legislation which ministers said they will table as soon as possible.

Photo by Government of UK – https://www.gov.uk/government/people/amber-rudd, OGL 3, Link

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Poisonous prisons

The chair of the parole board and former chief inspector of prisons, Prof Nick Hardwick, said last month that violence inside jails was now at its worst ever level. He described the recent murder in Pentonville prison as “the most extreme example of the decline in safety”

The latest prison safety figures show that assaults on staff and inmates had risen 40% in the past year to 65 a day, while there are record levels of prison suicides and self-harm. Prisons are so overcrowded and cells so filthy that many have become places of “violence, squalor and idleness.” Read the full story

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