The Ministry of Justice have announced plans to close 157 magistrates and county courts in England and Wales, at a saving of £36.8m.

In a written statement to the Commons on 23 June, Secretary of State Kenneth Clarke said that Her Majesty’s Courts Service (HMCS) currently operates out of 530 courts, some of which do not fit the needs of modern communities. Their number and location do not reflect recent changes in population, workload or transport and communication links over the years since they were originally opened. Consultation papers have been published setting out proposals to close 103 magistrates courts and 54 county courts and inviting views on how best to provide local justice services in communities across England and Wales. He said: “In reaching decisions on closures I will ensure that we keep courts in the most strategically important locations, communities continue to have access to courts within a reasonable travelling distance, that cases are heard in courts with suitable facilities and that there is an overall reduction in cost.” Closure of the courts covered in the consultation would achieve running cost savings of around £15.3 million per year. These courts also have backlog maintenance of around £21.5 million, costs that can be avoided if the closures go ahead. “I believe that as well as savings to HMCS there will also be savings for other criminal justice agencies by focusing their attendance at a single accessible location within a community.”
 
The Secretary of State added that current arrangements are historical and now need to be reassessed to see if they meet the needs of today’s society. Modern communications and greater transport facilities mean that providing access to justice does not require a courthouse in every town or city. He said that, across the civil and criminal courts, there are great opportunities to harness technology more effectively so people do not necessarily have to physically attend court when they give evidence or access court services. Not all disputes need to be resolved in court. “I will also examine ways of enabling more people to resolve their disputes in a way that leads to faster and more satisfactory solutions. We will continue to develop proposals for introducing alternatives that deliver a better service for less money.”

Courts Minister Jonathan Djanogly said: ‘The Lord Chancellor and I are keen to hear the views of everyone with an interest in local justice arrangements. He will take all views into account before making any decision on which courts ought to be closed and when. As well as consulting on the courts we need today I want to begin a conversation about how the courts service could be modernised to improve the justice system as well as reduce its costs.”
The closing date for consultation responses is 15 September 2010. The full list of courts threatened with closure, together with links to the consultation documents, can be found at:

http://www.justice.gov.uk/news/announcement230610a.htm

Law Society research has found a growing divide in the PII market with smaller firms and black and minority ethnic (BME) firms finding renewal tougher than the wider profession.

The survey found more BME firms (16%) than wider profession firms (6%) were not offered cover by their previous insurer. BME firms were notified of a decision by insurers later than the wider profession (56 days compared to 44 for the wider profession). The survey said: “It may be that the set of criteria being applied by insurance firms when deciding whether to provide insurance and at what price is in some circumstances having a disproportionately adverse affect on BME firms.” But according to Afua Hirsch, writing in the ‘Guardian’, BME lawyers are claiming racial discrimination in being refused compulsory insurance. “Some minority ethnic lawyers have seen their professional indemnity insurance rise by 800%, despite having no complaints or claims against them.”

The survey states that “it is difficult to explain these differences given the diverse risk profiles of these firms, the small sample sizes and a lack of understanding of the actuarial models used by insurers to assess firms’ insurance risk.” It finds that BME firms are more likely to undertake work in immigration and crime than the wider profession, and less likely to undertake work in probate, wills and trusts. Immigration work made up a higher proportion of BME firms’ total gross fee income (21%), than the wider profession (3%). BME firms are more likely to identify themselves as High Street firms (68%, compared to 53% of the wider profession) and based in Greater London (50%, compared to 18% of the wider profession). “BME firms were also more likely to have a foreign sounding name (42%, compared to 3% of the wider profession).”

Law Society chief executive Desmond Hudson says: “We are particularly concerned by indications of different treatment of BME-owned firms. This is an issue where we are taking urgent steps to clarify and resolve the matter.” Accordingly an action plan has been drawn up with five key stages. Firstly, solicitors will be asked to send information about their experience of the PII renewal round if they believe they have been discriminated against in some way. Secondly, there will be urgent discussions with the Association of British Insurers about the ways in which BME solicitors appear to have been disadvantaged during the 2009 renewal round with a view to erasing that disadvantage this year. Then the formal advice of the Equality and Human Rights Commission will be sought further to earlier informal discussions, followed by a review of the way that insurers assess risk. Finally there will be discussions with the SRA about steps it can take with Qualifying Insurers to eradicate discrimination.

The full text of “Professional indemnity insurance survey; 2009-10 renewal” can be found at:-

http://www.lawsociety.org.uk/new/documents/2010/pii_survey_april2010.pdf

The Ministry of Justice has announced a further analysis of expert witness fees paid in legal aid work. It is seeking the support of civil and criminal legal aid solicitors in a data collection exercise being conducted on their behalf by the Legal Services Commission.

This follows a consultation exercise carried out last year on legal aid funding reforms. A response to the main consultation was published in December last year, but this did not include the proposals relating to experts’ fees. A further analysis, published in March this year, showed that 270 responses were received to the part of the consultation paper on experts’ fees. The majority of respondents were against imposing either fixed fees or the suggested hourly rates on the basis of current knowledge. There was a strong message from all categories of professional expert witness that if inadequate remuneration rates are imposed, this would lead to more experienced practitioners refusing to undertake the work, potentially leading to access and quality problems across England and Wales. It was accepted that something should be done to regulate rates charged as they were often variable and too high.

MoJ felt that several expert groups would be keen to assist them in gaining a better understanding of their work and better control over both price and quality. They therefore proposed a data gathering exercise to increase their understanding of the type of work experts undertake and what current rates are paid for this. Undoubtedly this is in response to the National Audit Office’s highly critical report to Parliament on the procurement of criminal legal aid in England and Wales and the Public Accounts Committee’s savaging of the Legal Services Commission. The PAC said: “Because the Commission is the sole buyer of legal aid, it is important that it knows it is paying the right price for this and the effects its policies are having on the sustainability of providers. But it does not know enough about the costs and profitability of firms to know if it has set its fees at an appropriate level”. To help analyse and validate the findings of this exercise, and work towards establishing fixed fees and hourly rates, where appropriate, MoJ also propose to set up a working group including expert witness representative bodies and other interested stakeholders.

The LSC has issued a request for participants in a file review of  experts costs in legal aid work to ensure that the information collected is as comprehensive and representative as possible. The Commission has asked that practitioners send any recently closed legal aid case files that include invoices for expenditure on one or multiple expert witnesses, for inclusion in the review. They need to receive a representative sample across Family (certificated); Clinical Negligence (certificated) and Crime, for a list of specified matter types. The exercise will not include an examination of the costs of instructing interpreters. Practitioners willing to contribute to the file review should contact the LSC’s Chester office as soon as possible. The data collection exercise will be taking place over 7 or 8 weeks from the beginning of May.

For the text of the letter of invitation go to:

http://www.justice.gov.uk/consultations/docs/legal-aid-expert-witness-fees-letter.pdf

For the full text of “Legal Aid: Funding Reforms Part Three: Experts’ Fees” see:

http://www.justice.gov.uk/consultations/docs/legal-aid-funding-experts-response.pdf

“The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which…cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries”. So said the court of appeal in their concluding remarks when they dismissed an attempt by MI5 and MI6 to suppress evidence of complicity in torture in respect of British residents held at Guantanamo Bay.

Binyam Mohamed and five former prisoners are claiming damages against the Government for alleged complicity in torture and extraordinary rendition. The Government and security services wanted to use confidential information in their defence at the High Court, which in effect would have meant the case being held in secret. They filed an “Open Defence”, in which, while admitting that each of the claimants was detained and transferred, the defendants put in issue any mistreatment which the claimants allege, and, in any event, denied any liability in respect of any of the claimants’ detention or alleged mistreatment. “The issue on this appeal is whether Silber J was right to conclude, as the defendants contend, that it is open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty”.

The men’s lawyers argued that use of the “closed material” procedure, normally confined to criminal cases, would undermine the basic concepts of a fair and open trial. The court of appeal agreed with them, stating: “We have concluded that we should allow this appeal, and that we should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of statutory power to do so or (arguably) agreement between the parties that the action should proceed on such a basis, to order a closed material procedure in relation to the trial of an ordinary civil claim, such as a claim for damages for tort or breach of statutory duty”. They gave as their primary reason for their conclusion that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles. Under common law a party to litigation should know the reasons why he won or lost, and trials should be conducted, and judgments should be given, in public. “In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. It will fall to the new government to decide whether or not to appeal, but, according to the ‘Guardian’, the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements, that being preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

The full text of the judgement by the Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Sullivan in Neutral Citation Number: [2010] EWCA Civ 482 can be found at:

http://www.bailii.org/ew/cases/EWCA/Civ/2010/482.html

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

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

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

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

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

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

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

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

Now is the time for manifestos. Not to be outdone, the Law Society has issued its own. Strictly non-party political of course, but nevertheless aimed fairly and squarely at the current hustings. The Society recognises that: “The party in government following the general election will face a hostile and difficult environment. In facing that challenge, it must not forget the basic needs for justice and the rule of law. The Law Society calls on all political parties to publicly support…four principles in their campaigning, policy development and – if elected – their actions over the next Parliament”.

The four principles are that Government will: uphold the rule of law by ensuring meaningful access to justice for all; will properly defend the rights of the people; will work for good governance and better law-making; and will support and encourage a strong and independent legal services sector for the benefit of all. There is no shortage of specifics. The Law Society calls on all parties to commit to maintaining legal aid eligibility at current levels; supporting the principles enshrined in the Human Rights Act; and the maintenance of the right to trial by jury. Among other matters it calls for support of the pivotal role of the defence solicitor in protecting the rights of the defendant and ensuring that the criminal justice process actually works on the ground; a review of the current focus on ‘out of court disposals’; and support for an open coroners system in which all inquests are held in public. In related matters the Law Society calls for the tax year to operate on a calendar basis (1 January – 31 December), with a self-assessment deadline of 30 September; applying fixed dates for the Pre-Budget Report and the Budget; and a debate about the future of Home Information Packs.

The manifesto states that: “In recent years, the UK criminal justice system has been subject to a constant barrage of new legislation and offences. A more cautious and structured approach to extending and reforming criminal law is required to prevent the criminal justice system being overwhelmed and police forces becoming overstretched by a constantly changing criminal code”. Such laws and initiatives have included limiting the costs recovered by acquitted defendants to the equivalent legal aid rates; means testing for legal aid funding in the crown court; the growth in the use of control orders in terrorism cases; and virtual courts, where defendants may not have face to face access to a defence lawyer.

In their joint introduction to the manifesto, Robert Heslett, President, and Desmond Hudson, Chief Executive, state that: “It is important that, in the rough and tumble of an election campaign, such principles are not forgotten. The Law Society, as the voice of the largest part of the legal sector, has a unique perspective on the issues affecting justice and the fabric of society. The Society presents this manifesto as its contribution to the public policy debate in the lead up to the general election of 2010”. The full text of the manifesto can be found at:

 http://www.lawsociety.org.uk/new/documents/2010/manifesto2010.pdf

A key role of the UK Commission for Employment and Skills, a government sponsored think tank, is to provide expert, evidence-based advice on skills and employment issues. In this capacity they were asked by Government in 2009 to produce an annual national strategic skills audit for England, involving a comprehensive analysis of England’s current and future skill needs. The first such report has now been published.

Among the welter of statistics contained in the report, one line stands out in the table of the fastest growing occupations in England 2001 to 2009. The number of legal associate professionals in England has increased from 24,509 in 2001 to 51,250 in 2009 – a rise of 109%. The report predicts that demand for paralegals will continue to grow, given the nature of much transactional work and greater competition in the legal services market following the introduction of alternative business structures. To this end the report  states, in an unlovely phrase,  that: “In the legal services sub-sector there will be a need to up-skill para-legals in transactional work along with enhanced procurement and tendering skills required in response to the introduction of market-based Legal Aid procurement”. The report also identifies a growing need in the legal services sector for business, change and risk management skills, and greater commercial acumen.

Enter Skills for Justice, the sector skills council and standards setting body for the justice sector, who claim that across the UK they help justice and community safety employers to identify their skills and workforce development needs, and provide high quality solutions. They have announced that they are expanding to add legal services into their remit, a move which they recognise comes at a time of considerable change in the legal world, following the Legal Services Act, the globalisation of legal services, consideration of new routes to professional occupations, and the growing use of paralegals by firms of solicitors. In their words: “In this period of change it is important that there is a strong focus on skills to ensure that standards are maintained and that the 450,000 people in the legal sector have the right skills at the right time to deliver world class legal services and preserve the UK’s position as a recognised international centre of legal excellence”. They aim to work closely with employers and key stakeholders across legal services “to understand their key skills and workforce development challenges”.

Desmond Hudson, Chief Executive of the Law Society, welcomed the involvement of Skills for Justice. He said: “We are confident that those of our members who are employers will benefit from the inclusion of legal services in the Skills for Justice portfolio. The move will also benefit staff involved at all levels of the profession. This is a very positive step and will open up opportunities in terms of developing skills and sharing expert knowledge throughout the workforce, for the benefit of the public and the profession.”

The UKCES report, ‘Skills for Jobs: Today and Tomorrow; The National Strategic Skills Audit for England 2010, Volume 1: Key Findings’ can be found at:

http://www.ukces.org.uk/upload/pdf/NSSA_Volume%201_FINAL_BOOKMARKED_110310.pdf

One of my mother’s sayings was “cold hands, warm heart”. Now it looks as if that is in doubt, as American academics have set out to prove my mother wrong by testing the impact of warmth on the perceptions of adults.

A high powered team, led by John Bargh, Professor of Social Psychology at Yale University, in cooperation with Assistant Professor Lawrence Williams at Boulder University of Colarado, have been addressing the theory that our judgment of a person’s character can be influenced by something as simple as the warmth of the drink we hold in our hand. They set about testing whether hot and iced drinks influenced perceptions of others after noting how frequently “warm” and “cold” are used to describe personalities.

The methodology consisted of two separate experiments. For the first experiment, 41 undergraduate students were casually asked to hold a hot or cold cup of coffee for a moment. The students weren’t aware that holding the cup was part of the experiment. They were then given a brief fictional description of a person and asked to rate 10 personality traits based on this summary. Those who held hot cups were more likely to assign positive “warmer” traits to the fictional person than those who held the cold cups. The second experiment was presented as a product evaluation study, in which 53 participants were asked to hold hot or cold therapeutic pads for a moment and then judge the quality of the product. At the end of the test, as a reward for their participation, they could choose either a reward for themselves or a voucher to give to a friend. Among those who handled a hot therapeutic pad, 54% chose the voucher for a friend, compared with 25% of those who held the cold pad.

Reporting the experiments in a recent edition of “Science”, Professor Bargh writes “It appears that the effect of physical temperature is not just on how we see others, it affects our own behavior as well. Physical warmth can make us see others as warmer people, but also cause us to be warmer – more generous and trusting – as well.” Let Assistant Professor Williams have the last word. “In a point-of-service or communications interaction, paying attention to the fact that customers are tied to the physical world in which buying behavior occurs is important. If you are running a promotion outdoors on a cold day, maybe giving away a warm cookie will help you make connections with consumers. It gives marketers and managers more tools to work with.”

So now you know. My mother would have taken some convincing about all this.

It will come as no surprise that the results of yet another new survey have burst upon an expectant world. According to the Learning and Skills Council, we Brits live up to our reputation as the world’s greatest faffers. The shock revelation is that an average of 40 days a year is wasted as the vast majority of Brits (80 per cent) admit to wasting time everyday and just under half estimate they ‘faff around’ for as much as 2-3 hours a day. High on the list of time wasting occupations are gossiping, shopping for unessential bits and pieces, waiting for other people and waiting for the bathroom. I’m just surprised that staring out of the window, bending paper clips, doodling, listening to the test match, plotting fantasy football, playing solitaire on the computer and a whole host of other pleasurable activities don’t make the list. Apparently nearly a third of respondents were annoyed at the amount of time they wasted in a day, which in my book means that over two thirds weren’t.

The Learning and Skills Council take a dim view of all this and, grinding their own axe, state that we should “use the time (wasted) learning a new skill”. A time management guru is wheeled out for a spot of nannyish scolding to the effect that he is “committed to making people understand the benefits of making the most of their own time. We live in a busy world. We’re working harder and juggling more than we used to – and, clearly, the nation is also spending more time ‘faffing’ than they should!” You can read all this stuff at http://readingroom.lsc.gov.uk/lsc/National/nat-555britswasteday-aug08.pdf.

I disagree. Precisely because we are working harder, faffing is an important safety mechanism. Human beings are not made for constant toil. Faffing is harmless, which cannot always be said of relentless purposeful activity. Indeed life is real and life is earnest, but there is something to be said for the Welsh poet William Henry Davies who, in several years living as a vagrant, took faffing to a whole new level. The Learning and Skills Council would definitely not have approved. But he wrote an acclaimed memoir ‘Autobiography of a Super-Tramp’ and penned the oft quoted lines:

What is this life if, full of care,
We have no time to stand and stare.