The ninth day of line-by-line consideration of the Legal Aid, Sentencing and Punishment bill at Committee stage in the House of Lords last week, which was midwife to the birth of Jane’s Law, might also lead to Clare’s Law.

Baroness Gale moved an amendment to the bill which would insert a new clause providing for ‘disclosure of information about convictions etc. of violent abusers to members of the public’. As with Jane’s Law, the amendment results from shocking events. Baroness Gale said that in 2007 Clare Wood began a relationship with George Appleton, a man she had met through Facebook. She ended the relationship after a year, but then became the target of a sustained campaign of violence and harassment. Over the next six months Appleton stalked Clare, sexually assaulted her and threatened to kill her. In February 2009 he strangled her, killing her before setting her body on fire. After a six-day manhunt he fled to an abandoned pub and hanged himself.

Baroness Gale went on to say: “Appleton had a long background of violence against women, including repeated allegations and convictions of harassment, threats to kill, and kidnapping one of his ex-girlfriends at knifepoint. Clare had no way of knowing this. Had she had that information, it could have saved her life.” She said that, at the inquest into Clare’s death, the coroner recommended that “consideration should be given to the disclosure of such convictions and their circumstances to potential victims in order that they can make informed choices about matters affecting their safety and that of their children”.”

Baroness Gale outlined some horrific statistics. In 2009-10 in England and Wales, 21 men and 94 women were killed by a partner or ex-partner. Over the past 10 years, an average of between 111 and 146 people a year have been murdered by their partner or ex-partner. ACPO estimates that there are 25,000 serial perpetrators of domestic violence in the country.

In response, minister of state Lord McNally expressed great sympathy with the proposal, and said that the government are committed to ending violence against women and girls. He went on to say: “However, disclosing information raises serious and complex questions about the appropriate circumstances in which information could be disclosed, particularly for the continued safety of a potential victim.” The Home Secretary has launched a consultation so that everyone with an interest or concern could express their views. He added: “The Government want to consider the wide range of views on this important and sensitive issue before taking matters further. However, I hope that she will accept my reassurance that we intend to take the matter further.”

Baroness Gale responded by withdrawing the amendment, saying: “I am sure that we will eventually get to Clare’s law.”

There was rare consensus between the government and the opposition at the start of the ninth day of line-by-line consideration of the Legal Aid, Sentencing and Punishment bill at Committee stage in the House of Lords last week.

The occasion was an amendment to the bill, proposed by Lord Beecham, to insert a clause allowing the ‘right to appeal bail decisions’. The government had also put down a similar amendment. Lord Beecham said: “This amendment and the government amendment arise from the brutal murder of Jane Clough, a 26 year- old nurse and mother of a baby daughter, by the partner with whom she was living who had been charged with very grave sexual offences. The partner was granted bail in the magistrates’ court and the brutal murder occurred shortly thereafter.”

He went on to say that there will never be any guarantee that a person granted bail will not commit an offence. “These amendments seek to ensure that in the appropriate cases the prosecution, knowing of the circumstances which gave rise to the charges in the first place, can at the very least take the matter to a higher court for determination, and offer a perhaps better prospect of avoiding a repetition of this dreadful incident or any incident like it” he said.

Jane’s parents, Penny and John, were present in the Lords, and in his response, minister of state Lord McNally gently chided Lord Beecham for ‘outraging’ the protocol of the House by recognising people present beyond the Bar. But he added “It is good that Members of the House are aware that Jane’s parents are present to see us in action…It is such an important matter for them, their family and the wider public that we have this debate today. I sincerely hope that within a few minutes they will see Jane’s law passed by this House.”

Lord Beecham withdrew his amendment in favour of the government’s amendment, which differs because it does not permit an appeal against a decision by the Crown Court to grant bail where it was itself made on appeal from the grant of bail by a magistrates’ court. Lord McNally explained that if a defendant was granted bail by the magistrates, the prosecution appealed and the Crown Court granted bail, the prosecution would not be able to appeal further. “This is to stop a continuing series of appeals on a matter that by then would have been considered by two courts” he said.

Lord McNally concluded: “However, I can assure the House that what the Government are doing, supported by Her Majesty’s Opposition and, as the noble Lord, Lord Beecham, made clear, supported firmly by the other place, is approving Jane’s law.”

Home Secretary Theresa May has announced a new initiative aimed at ending gang and youth violence. She said: “Gangs and youth violence have been a serious problem in some of our cities for several years now. This fact is widely known, but we need to accept that over the years not enough was done to deal with the underlying drivers of the violence.”

In the immediate aftermath of the August riots the Prime Minister called for a report into Britain’s street gangs, even though only one in five of those arrested in connection with the riots were known gang members. Since then senior ministers, led by the Home Secretary together with the Secretary of State for Work and Pensions, have undertaken a review of the problem. ‘Ending Gang and Youth Violence: a Cross-Government Report’ is the outcome.

The report includes plans to prevent young people becoming involved in violence in the first place, to provide pathways out of violence and the gang culture for young people wanting to make a break with the past, and to reinforce punishment and enforcement. The report also sets out detailed plans for providing support to local areas to tackle their gang or youth violence problem. Over 20 areas in London, Liverpool, Manchester and the West Midlands are to receive funding of up to a total of £10m.

£400,000 per annum for three years will be provided to improve services to support children and young people under 18 suffering sexual violence and exploitation, including from gangs. Organisations are invited to bid for funding to recruit up to 13 new young people’s advocates who will provide direct and dedicated support to young people who are victims or at risk of sexual violence and exploitation, with a new focus on the girls and young women caught up in gang-related rape and abuse. They will work in areas most affected by gangs.

As reported in the ‘Guardian’, minister for equality Lynne Featherstone, speaking at Lilian Baylis technology school in Kennington last Thursday, said violence against girls in gangs had remained hidden for too long. “I think people would be shocked if they could see the level of violence and abuse against girls in gangs,” she said. She added: “Our first priority is to protect girls who can see themselves as worthless objects to be used in unacceptable ways.”

The full text of ‘Ending Gang and Youth Violence: a Cross-Government Report’ can be found at:

www.homeoffice.gov.uk/publications/crime/ending-gang-violence/gang-violence-detailreport

A fortnight ago the Government signalled that it was abandoning controversial clause 12 of the Legal Aid bill that would have introduced means testing for initial advice and assistance at the police station. Now it looks as if further concessions could be on the way.

Having suffered heavy defeats in the Lords over the welfare reform and health service bills, the government appears eager to avoid further embarrassing reversals. As reported in the ‘Guardian’, justice minister Jonathan Djanogly, addressing a Westminster Legal Policy Forum meeting, said that the government continues to listen as the bill goes through the house and is also actively considering other amendments in the Lords. At the same time he made the startling admission that he was uncertain about the precise costs and benefits of the reforms. This has been the thrust of much of the opposition in the Commons and the Lords.

Two areas seem likely for a change of heart. Lord Tebbit has put his name down to two, linked, amendments that would ensure children, or parents on their behalf, will be entitled to legal aid if they need to pursue medical negligence claims. Djanogly said: “There are various things we are looking at in the margins coming out of the Lords debate. There’s a very small proportion of personal injury cases that attract legal aid, namely for clinical negligence … that makes up less than 1% of personal injury cases.” The second area is the definition of domestic violence that would entitle victims to claim legal aid, which has been the subject of much passionate debate in the Lords.

Concern is growing over the fate of advice centres. During the second reading of the bill in the Commons last year, a U-turn safeguarded the position of Citizen’s Advice Bureaux, but the future still looks bleak for the myriad of small, specialist advice groups. AdviceUK is the UK’s largest support network for free, independent advice centres. They have just under 900 organisations in membership, ranging from small volunteer only services run from makeshift premises, through to large national advice organisations. These agencies, which provide a lifeline to people in debt, or facing problems with their benefits or housing, are under financial pressure as never before.

Massive public sector job losses and welfare benefit cuts and proposed reforms will see demand for advice on benefits, debt and housing soar. At the same time, cuts in local authority spending, plus proposals for legal aid cuts, mean far less funding for advice centres. The London Advice Watch reported the findings of a research project on provision of social welfare law advice in London. It came to the conclusion that, in London alone, 77,000 will lose out on housing, employment, debt, welfare benefits and immigration advice. If the legal aid cuts are implemented Londoners will lose £9.33m in funding for housing, employment, debt, and welfare benefits law cases. The report estimated that this will cost the government £55m in other expenditure.

Meanwhile the Lords continue their line-by-line examination of the bill. Committee stage days 6, 7 and 8 produced the same mixture as before. Debate moved away from legal aid matters and addressed topics such as conditional fee agreements, recovery of insurance premiums, third party litigation funding, curfew requirements and youth rehabilitation orders, among others. Some technical government amendments were agreed, and for the rest, all the many amendments under consideration were either withdrawn after debate or not proposed at all. It is becoming more likely that the main event is going to be Report Stage.

Whenever that may be.

Last Monday Justice Secretary Ken Clarke went to the Commons to announce a consultation exercise on plans to improve the way the criminal justice system deals with victims of crime. He said: “Proper protection and support for those who have suffered at the hands of criminals is a fundamental part of a civilised justice system, yet ours is falling short in some respects.”

The planned shake-up will see the ending of payments for minor injuries. Some estimates are that more than 17,000 violent crime victims each year will be excluded entirely from the criminal injuries compensation scheme under the proposals, and many crime victims who suffer more serious injuries will face reductions of up to 25% in their awards. Mr Clarke announced a clampdown on convicted criminals being able to claim compensation for injuries and psychological damage, saying it was “perverse” they were able to do so. Over the past decade, 20,000 people with criminal records have been paid more than £75m, while more than 3,000 prisoners and ex-prisoners have made claims in the last year alone.

The Government will also, for the first time, compensate British victims of terrorist atrocities abroad on the same basis as victims of terrorism in Britain. Those with ongoing disabilities from attacks after 2002 will also receive financial support. Other proposals include greater funding for victims’ support services, a new statutory Victims’ Code and a simpler route of complaint and redress for victims. More voluntary victims’ organisations will have access to long-term funding.
There will be a three point scheme to raise £50m from offenders towards victims. Fines for motoring offences will be increased. All offenders will pay a victim surcharge, extended to cover those who receive prison terms or community orders. And there will be deductions from prisoners’ pay from work in prison and on day release. Clarke said: “I believe that the proposals that we are setting out today will ensure that victims’ services are on a more sensible and sustainable footing, and will go a long way to putting right the failings of the past.”

For Labour, Sadiq Khan said: “This Government’s policy on law and order is all over the place. The way they treat victims of crime is a prime example. Over the past 20 months, their policies on bail, sentencing, the chief coroner, domestic violence and rape have shown them to be out of touch with victims of crime in this country.”

Commenting on the proposals, Enid Rowlands, Chair of Victim Support, said: “A civilised society looks after those who have been preyed on by criminals. Victims deserve affordable and high quality services no matter where they are and these proposals could make that harder to achieve…These proposals could leave us with victim services that are more expensive and of lower quality. Even worse, they could leave victims in some parts of the country with little or no support at all.” And Jean Taylor, from the Merseyside based Families Fighting for Justice said: “If you have been attacked, no matter why you have been attacked you should be compensated in some way.”

If you wish to read the consultation paper ‘Getting it right for victims and witnesses’ and contribute to the consultation, go to:

https://consult.justice.gov.uk/digital-communications/victims-witnesses

and follow the links.

Tuesday was the fifth day of the line-by-line scrutiny of the Legal Aid bill in the Lords and it produced the first positive result for the opponents of the bill. The government announced that one of the most controversial elements of the bill – the means testing of suspects held in police stations – has been abandoned.

Former director of public prosecutions Lord Macdonald had just risen to propose an amendment to the much criticised clause 12 when, for the government, Lord McNally intervened. He said: “My Lords, if I may interrupt, this may ruin a few speeches but I think it will help if I say that the Government intend to table an amendment to Clause 12 on Report that will remove the power to introduce means testing for initial advice and assistance at the police station.” He went on to confirm that: “For an individual in custody at a police station, or other premises, legal aid will be provided under Clause 12.” At Report stage in the Commons last November, justice minister Djanogly had said: “I appreciate that there are many deeply held concerns across the House and more widely on both the principle and the practicality of means-testing for advice and assistance for those in police custody and in relation to the concept of contingent legislation…I can confirm that we will, therefore, carefully review our approach to these clause issues as the Bill goes through its stages in another place.” The promised review has borne fruit.

This was a welcome relief from the shadow boxing that has occupied the first five days of the Committee stage in the Lords. Over 100 amendments have so far been considered. The government have proposed several textual amendments which have all been agreed, and many other amendments were not moved. The majority of amendments have been debated but all have been withdrawn without being put to the vote. There have been over 30 hours of rhetoric, almost entirely hostile to the provisions of the bill, but the opponents have not laid a glove on the government.

Already many contentious matters have been raised. On Committee days 4 and 5 these included: young people; domestic violence; the definition of abuse; public funding for judicial review claims; those unlawfully deprived of their liberty; the victims of people trafficking; family reunion cases; debt issues; legal aid for employment matters and support for victims of unlawful practice; exceptional cases; and citizens advice bureaux, law centres and other not-for-profit advice and support agencies. Many amendments have been withdrawn on the vaguest government promise “to look again” at the particular matter before Report stage. But, as has been said before, government promises are like pie crusts – made to be broken.

Committee day 6 is listed for next Monday, 30 January. It is to be hoped that some of the teeth shown by their lordships in consideration of the Welfare Reform and the National Health Service bills can be brought to bear on the legal aid proposals. As it is, a great deal seems to be being left to Report stage.

Barristers are renewing their efforts to capture the territory that has traditionally been the preserve of solicitors. To this end two initiatives have been launched.

The public access scheme was first established in 2004 and allows a barrister to be instructed directly by a lay client without the need for a solicitor. In order to take on public access work a barrister must have more than three years’ practising experience, must be properly trained and must have registered with the Bar Council as a public access practitioner. One stumbling block has been payment of barristers by clients.

In his inaugural speech to the Bar Council on Monday, Michael Todd QC, Chairman-Elect, confirmed that he is “chairing a Working Group, essentially led again by the Member Services Team, to look at the feasibility of a service which would provide BSB-regulated entities and Public Access barristers with an escrow account facility in which can be placed ‘client monies’ and which will be administered centrally from one location by a third party.” He said: “Already considerable interest has been displayed by a number of potential providers of this service.”

He told the Bar Council: “We have no entitlement to work. We must compete for it. We must invest better to adapt, to change, and to flourish. The returns on such investment are, in my view, undeniable.” He went on to say: “Of a Bar of about 15,000 members, nearly 5,000 are now ‘Public Access’ trained. They have made an investment in their future.” In his CrimeLine twitter

Andrew Keogh confirms that: “My police rep courses are mainly filled with barristers at the moment.”

Then on Wednesday last week the Bar Standards Board (BSB), the regulatory body for barristers in England and Wales, announced that it is consulting on amendments to its Code of Conduct for barristers following a review of its public access rules. The BSB said: “Public access rules do not allow a client who may be eligible for public funding to instruct a public access barrister. This is one of the rules the BSB seeks to change. The consultation also suggests that barristers should have a duty to ensure that, before accepting public access instructions, the client is able to make an informed decision about whether to apply for legal aid or to proceed with public access representation.” The lifting of the ban on barristers with under three years’ practising experience from accepting public access instructions is also proposed.

The BSB claim that the change would improve client choice and provide greater access to justice for clients who find themselves without access to legal aid solicitors. Removing the three-year rule and allowing barristers to do direct access work from the time they qualify would expand consumer choice, create greater competition and increase the supply of high quality and competitively priced advocacy services.

According to the Law Gazette, the consultation paper states: “The purpose of allowing lay clients to instruct barristers directly is to remove unnecessary barriers to the provision of barristers’ services and to save costs by cutting out superfluous intermediaries.”

The consultation will close at 5pm on 9 March 2012, and the consultation paper can be found at:
http://www.barstandardsboard.org.uk/assets/documents/Public%20access%20consultation%20paper%20new.pdf
PS: “Escrow generally refers to the placing of property which is the subject of a commercial transaction (money, title deeds, software source code, etc.,) into the hands of a trusted third party for safekeeping until some specified event occurs which will trigger the release of the property to one party to the initial transaction.” (Out-Law.com)

Last Wednesday Secretary of State for Justice, Ken Clarke, made a written statement to the Commons on Competitive Tendering. The proposed timetable has yet again slipped back.
He told the Commons: “The Government believe that tendering criminal defence work for competition, alongside regulatory changes, has the potential to significantly modernise legal aid provision, improve the service provided to legal aid clients, streamline the procurement process and deliver value for money for the taxpayer.” In a thinly veiled threat he said: “Pressure on legal aid expenditure is likely to continue, increasing the need for further reform of the current arrangements for administratively set remuneration rates in the absence of competition.”
He added: “Clearly the development of a competition strategy will be likely to have a substantial impact on the market for legally aided services, as will a number of other current developments. These changes will require significant levels of engagement between the Government and the profession. We plan to begin these discussions in early 2013 once the key components of our legal aid reform package, the regulatory changes allowing alternative business structures, and the introduction of the quality assurance scheme for advocates have had time to bed down. We will publish a full formal consultation document on the competition strategy towards the end of that year.”

The revised timetable will be:

Consultation paper published: Autumn 2013

Response to consultation paper: Spring 2014

Tender opens in first competition areas: Autumn 2014

First contracts go live: Summer 2015

In an almost throw-away last paragraph of this statement he went on to say: “I would also like to inform the House that we intend, subject to parliamentary approval of the Legal Aid, Sentencing and Punishment of Offenders Bill, to implement all of the legal aid reforms in April 2013. This will include the abolition of the Legal Services Commission under the Bill and the creation of the new agency in its place.” This amounts to a six-month delay to the programme.

The ‘Guardian’ reports that Labour’s shadow justice secretary, Sadiq Khan, said: “This six-month stay of execution due to government incompetence will do little to reassure the millions of people who rely of social welfare legal aid to gain access to justice. Rather than delaying the implementation of their disastrous reforms to social welfare legal aid, which supports some of the most vulnerable people in our society, this government should abandon them completely.”

The bill goes to the committee stage in the House of Lords on 20 December. At its second reading in the chamber last month, the proposed legal aid cuts were savaged by the overwhelming majority of speakers in the debate. Since then Lord Wilson, the newest appointment to the supreme court, and Sir Nicholas Wall, president of the family division, have added their voices to the opposition. Three other supreme justices – Lord Hope, Lady Hale and Lord Dyson – have also expressed concern about the effect of government proposals to save £350m a year by reducing the availability of legal aid.

The Government showed with the Public Bodies bill last month that they are prepared to jettison proposals to ensure the passage of a bill. It will be interesting to see how they react to the Lords’ amendments and what, if anything, is thrown off the sledge to escape the chasing pack.

The government has abandoned plans to scrap the Youth Justice Board (YJB). The decision came shortly after another U-turn over plans to axe the post of chief coroner. Both issues had threatened to derail the passage of the Public Bodies Bill through the Lords last Wednesday.

In October 2010 it was announced that the YJB would cease to function as a public body, and the leadership of youth justice and functions of the YJB would move into the Ministry of Justice. Justice minister Jonathan Djanogly said at that time: “This organisation has helped to transform the delivery of youth justice and has fulfilled an important role in reducing offending and re-offending by young people. Now is the right time to look more radically at the arrangement of youth justice, including the role of the YJB, ensuring that a dedicated focus on rehabilitation needs of young people is driven forward in the future.”

Both the YJB and the office of the chief coroner were to have been scrapped as part of a so-called ‘bonfire of the quangos’. But the government was defeated in the House of Lords on both decisions earlier this year, and further defeat was expected at the latest stage of the bill. The Ministry of Justice said the youth justice system still needed reform to make it more efficient and directly accountable to ministers, but, “following careful consideration”, the board would be saved. So both burning brands were plucked from the fire at the last moment.

Crossbench peer and former chief inspector of prisons Lord Ramsbotham, whose amendment reprieving the board was accepted by the government, welcomed the decision. He said: “I would like to thank and congratulate the Government on the decision that they have come to. By deciding to retain the Youth Justice Board, they have provided a service to two separate organisations and bodies: first, the youth justice system as a whole, which has benefited from the leadership and direction of the Youth Justice Board since 1999; and, secondly, the Ministry of Justice itself, because it has retained an independent body capable of directing and overseeing the youth justice system on its behalf that is accountable and responsible to Ministers.

“This is particularly important in the light of the riots in the summer, because during that period the Youth Justice Board played an enormously important part both in liaising with, overseeing and helping the youth offending teams out in the community and in overseeing the introduction and reception into custody of people who required a great deal of help.”

In a BBC report, Juliet Lyon, director of the Prison Reform Trust, is reported as saying that the government had shown that it is prepared to listen to reason. “By holding on to the Youth Justice Board it can build on an impressive drop in youth crime and continue to reduce the numbers of children and young people getting into trouble,” she said.

So what’s next for U-turning?

There is much talk of strikes in the air at the moment, with wide and varied organisations planning to take industrial action on 30 November. In a different context it now looks as if they could be emulated by barristers.

As reported in the ‘Law Gazette’, the new chair of the Criminal Bar Association, Max Hill, has warned that criminal barristers will take direct action, including withdrawing their services, if the government presses ahead with its plans for price-competitive tendering. He told the Bar Council’s recent annual conference that “price competition is anathema to an independent, high-quality bar”, and would mark an end to a quality service and equality. He said that the introduction of price competition and the retention of an independent bar are mutually exclusive, and that the government is in ‘cloud cuckoo land’ if it thinks the system would present a level playing field on which the bar can compete. “Price competition is nothing short of an order that the bar disband and go into business with solicitors. Call it fusion, call it partnership, call it what you like. It is the end of the bar,” he said. He added that barristers are prepared to “act on principle, to safeguard the public interest which is served by an independent bar of specialist advocates….We can and must stand up and act.”

On taking office as chairman of the Criminal Bar Association in September, Max Hill stressed that criminal barristers play a vital role, both prosecuting and representing people charged with criminal offences, to ensure the criminal justice system works efficiently and fairly. He warned that, in this context, legal aid cuts could cripple the criminal bar. In addition, in an interview with ‘The Times’, he said that in the view of the Criminal Bar the imminent cuts to barristers’ fees, on top of serial reductions in preceding years, amounts to a very real threat to a fully functional criminal justice system.

Also reported in the ‘Law Gazette’ is that plans to introduce the Quality Assurance Scheme for Advocates (QASA) have run into serious difficulties. The Criminal Bar Association has been told by Max Hill that, amid a dispute about linking payment to accreditation level, progress on QASA has been halted so far as the CBA is concerned. He said that the scheme as proposed would lead to “a world in which the word barrister would have no meaning, and no place within the fee structure.” He added: “Proper reflection from all sides may produce a solution. It is in everyone’s interest to allow that solution to emerge.”

So it looks as if his year of office could be interesting. Urging his colleagues to remain united in the face of the challenges that lie ahead he said: “Tough times are undoubtedly ahead for the criminal Bar. But rather than allowing these issues to divide and depress us all, my mission must be to raise our chins from the floor. I have one key message for anyone who will listen: you can destroy the publicly funded Bar if you want, but you will want it back when it is too late to recover what you have lost.”