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

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

Party manifestos are really little more than wish lists. But the unprecedented Tory and Liberal coalition agreement, produced at breakneck speed, and to be followed in due course by a final and fully comprehensive agreement, is something else. It is little short of a Queen’s speech for a whole parliament. Section 10 of the agreement is about civil liberties. The preamble states: “The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.” There follow 12 specific pledges.

 Britain leads the world in the use of CCTV. As a result, surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy. The agreement pledges further regulation of CCTV, the ending of storage of internet and email records without good reason and the adoption of the protections of the Scottish model for the DNA database. The presumption of innocence and the principle that every defendant has the right to be tried by a jury were weakened by the Domestic Violence, Crime and Victims Act 2004 and the right to silence was further eroded by the Counter-Terrorism Act 2008. Under the same Act an individual and his lawyers may be barred from court proceedings. Freedom to communicate in private has been effectively extinguished by the Regulation of Investigatory Powers Act 2000. The rights to freedom of assembly and demonstration were eroded by the Anti-Social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005. The coalition agreement promises the protection of historic freedoms through the defence of trial by jury and the restoration of rights to non-violent protest.

In June last year, the law lords dealt a major blow to the controversial use of control orders on terror suspects, saying that reliance on secret evidence denies them a fair trial. The then Liberal Democrat home affairs spokesman, Chris Huhne, and Chris Grayling, the then shadow home secretary, went on record to welcome the law lords’ decision and to demand an end to “cruel and counter-productive punishments without trial”. Under section 44 Terrorism Act 2000 police can stop and search anyone in a designated area without suspicion that an offence has occurred. Last year a total of 117,278 people were stopped and searched. The coalition agreement promises safeguards against the misuse of anti-terrorism legislation.

Kenneth Clarke, the new Justice secretary, and his team, including Lord McNally, Lib Dem leader in the Lords, will immediately commence work on the promised ‘Freedom or Great Repeal Bill.’ Other major provisions include the scrapping of the ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database; the outlawing of finger-printing of children at school without parental permission; and the extension of the scope of the Freedom of Information Act to provide greater transparency. There will be a review of libel laws to protect freedom of speech and a new mechanism to prevent the proliferation of unnecessary new criminal offences.

The full text of the Conservative Liberal Democrat coalition Agreement can be found at:-

http://www.conservatives.com/News/News_stories/2010/05/Coalition_Agreement_published.aspx

“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

A judge should not continue to try a case alone, after discharging the jury because of jury tampering, where an ‘informed objective bystander’ might legitimately conclude that there was a real possibility of bias by the judge. So held the Court of Appeal (Criminal Division) in a judgement given on 17 November, allowing an appeal by a defendant known only as KS under section 47 of the Criminal Justice Act 2003. The appeal was against an order made by a crown court judge, during the appellant’s trial for money-laundering offences, to discharge the jury under section 46 of that Act because of jury tampering, and continue as a judge-alone trial.

The defendant was alleged to have been involved in a very substantial VAT “carousel” fraud and the arrangements made for laundering the proceeds. His was the tenth trial in which different aspects of the fraud, and the roles of numerous different individuals, were examined. Many of them were convicted. Following conviction, sentences were imposed, and confiscation proceedings conducted. Judge A presided over all these trials and post trial hearings. In the first of this group of trials the Crown alleged that the appellant was one of those directly involved in the conspiracy to defraud with particular responsibility for laundering the proceeds. He was acquitted of conspiracy to cheat the Revenue and of one count of money laundering and the jury was unable to agree verdicts on two counts of money laundering. The Crown proceeded to a fresh trial of the appellant on substantive counts, adding two further similar counts to the indictment. After the jury had retired, the judge concluded that tampering had taken place and ordered the jury to be discharged. He found that it would be fair to the defendant for the trial to continue without a jury, and ordered accordingly.

Delivering the judgment of the court, the Lord Chief Justice, Lord Judge, said that it was an unusual and indeed an extreme case. By the time this tenth trial was coming to an end Judge A was inevitably aware of a vast body of information affecting their client of which the defence would have been ignorant and which therefore would not have been addressed in the present trial. “Everyone of those identified in the counts in the present indictment were said to have been jointly involved with the appellant. Each of them was convicted in trials over which Judge A had presided. Some of his observations about the appellant himself in the course of his sentencing remarks were specific to and critical of the appellant. None of these considerations, even taken together, prevented him acting as the trial judge when the jury was vested with the responsibility for the verdict. However taking them together, and examining them in their overall context, we have concluded that the objective bystander, considering the question which arose when the judge himself became responsible for the verdict, would be left with precisely the same concerns articulated by the judge in the course of the argument and which, in the result, he was persuaded with some hesitation to set aside…For these reasons this appeal will be allowed.”.

In an interesting postscript, the judgement concluded that “the layout of X Crown Court, and the opportunities for smoking available for those who wish to smoke, are unsatisfactory. They must be reconsidered, at any rate in relation to trials lasting more than a day or two, so as to avoid the inevitable risk of jury contamination where jurors and members of the public congregate together to have a smoke”. The full text of the judgement can be found at:

http://www.bailii.org/ew/cases/EWCA/Crim/2009/2377.html

The Debbie Purdy judgement was significant not only in its content but also in its timing. It came as one of the final appeal hearings and judgments of the House of Lords on 30 July 2009. The judicial role of the House of Lords as the highest appeal court in the UK has ended. From 1 October 2009, the United Kingdom Supreme Court assumes jurisdiction on points of law for all civil law cases in the UK and all criminal cases in England and Wales and Northern Ireland.

The Law Lords of the House of Lords (as at July 2009), will be the first justices of the 12-member Supreme Court. The Court will be a statutory body in its own right, which will be headed by a Chief Executive. Middlesex Guildhall is the location for the Court and the Ministry of Justice claim that “locating the UK Supreme Court on Parliament Square, opposite the Houses of Parliament and alongside Westminster Abbey and the Treasury Building, will symbolise the Supreme Court as a cornerstone of our constitutional rights in this country”. Of particular significance is that, for the first time in its 1,000-year history, the judiciary is fully and officially independent of the government. The Law Lords, as members of the House of Lords, not only sat judicially, but were also able to become involved in the debate and subsequent enactment of Government legislation. Creating a new Supreme Court will mean that the most senior judges will be entirely separate from the Parliamentary process. The first justices of the 12-member Supreme Court are disqualified from sitting or voting in the House of Lords. When they retire from the Supreme Court they can return to the House of Lords as full Members but newly-appointed Justices of the Supreme Court will not have seats in the House of Lords.

The same can not be said about the role of the Attorney General. Plans to make this role independent of government have been abandoned by ministers despite efforts by constitutional reformers to depoliticise it. The vehicle for change was to have been the Constitutional Reform and Governance Bill, but when Jack Straw introduced it last month it was specifically excluded. In a written statement he said that “in the event, the significant, necessary reforms to the role of Attorney-General are being achieved without the need for legislation”, adding that “the government have concluded that it is not necessary to include legislative changes in respect of the Attorney-General”. This means that the Attorney General will retain the right to decide on prosecutions in important cases involving national security, as well as the power to challenge lenient sentences, and will not be required by statute to publish advice. She will retain her seat in the cabinet. This decision cost Gordon Brown his constitutional affairs adviser, Lord Lester, who resigned in frustration at the government’s failure to take a more radical stance on the independence of the Attorney General.

The ‘Times’ is justifiably proud of its law report coverage, but it is not every day that it figures in one of the reported cases. That happened this week when two High Court judges fined it for contempt of court in revealing how the jurors in a manslaughter trial reached their verdict.

Michael Seckerson, the jury foreman, was one of two jurors who dissented from the verdict in the case of Keran Henderson, a childminder, who was convicted for the manslaughter of 11 month old Maeve Sheppard while in her care, and jailed for three years. Their comments were published by the ‘Times’ in an article headlined “Jurors break silence to insist childminder did not kill baby”. In the article, the jurors, who were not named, expressed the belief that Henderson was wrongly convicted of killing the child by shaking her so violently that she was left blind and brain damaged. The contempt case was brought by the Attorney-General under Section 8 of the Contempt of Court Act 1981. The ‘Times’ and Mr Seckerson argued that contempt proceedings could not be justified in the light of Article 10 of the European Convention on Human Rights, which guarantees the right to freedom of expression, subject to exceptions such as the need to maintain the authority and impartiality of the judiciary. They said that there had been no damage to the administration of justice, no individual juror was identified, no individual’s opinions were disclosed and the articles were written in good faith, after taking legal advice. The heavy reliance placed on expert medical evidence in “shaken baby” cases made it a matter of public importance.

Section 8 of the Contempt of Court Act 1981 states that:

“(1) Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.”

The judges said that it was not suggested that sub-section (2) had any bearing on this particular case. They explained the traditional arguments in favour of the total secrecy of the jury system. “Its strength and value depend on the open and frank expression of views between twelve people in the secrecy of the jury room. Confidence to express views in that way depends on juror’s knowledge that the views will not be revealed outside the jury room. Jurors should not be constrained by fears a juror would legitimately have if his friends and neighbours, and the general public, may come to know of his views, which could be unpopular views. If views were expressed in the hope of their being disclosed, or with an intention to disclose, that would also have a deleterious effect on the quality of deliberations”. Lord Justice Pill said that the court acknowledged the mitigating factors but had to impose penalties “sufficient to mark the seriousness of breaches of Section 8 and to deter others from following the example of this juror and this newspaper”. The ‘Times’ was fined £15,000 and Mr Seckerson £500. The Attorney-General was awarded £27,426 costs.

The full text of the judgement in Her Majesty’s Attorney General and Michael Alexander Seckerson and Times Newspapers Limited in the High Court of Justice, Administrative Division, (Case No: CO/12411/2008) can be found at:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2009/1023.html

The Council of Circuit Judges (COCJ) is effectively the trade union representing the 652 Crown Court judges in England and Wales. The Council has become a body with a very public profile, responding to the many consultations put out by government. It accepts that judges should not make political statements, nor comment on individual cases, but can and do contribute to better understanding of how the law operates and should operate. So when the Council condemn government plans for new sentencing guidelines as “unnecessary, costly and unwelcome” and likely to lead to injustice it comes as a fresh blow to the controversial and embattled Coroners and Justice Bill which is now passing through Parliament.

Jack Straw’s catch-all bill has made these columns twice before (see “Civil Liberties” and “Partial defences to murder”). This point of attack is aimed at Chapter 1, clause 100 et seq, which, according to the COCJ, would mean that the discretion of the sentencing judge would be severely limited by “mandatory guidelines which the court must follow or apply in reaching the sentencing decision”. The Sentencing Guidelines Council and the Sentencing Advisory Panel are to be abolished, to be replaced by the Sentencing Council for England and Wales, a body of 14 appointed jointly by the Lord Chancellor and the Lord Chief Justice. This Council must prepare sentencing guidelines which every court must follow in sentencing an offender. The bill has passed through the Commons but has yet to go through the Lords.

In a hard hitting statement issued last week, the COCJ said that “We do not believe that the introduction of mandatory Guidelines will facilitate the just and proper sentencing of offenders. We consider that the imposition of mandatory Guidelines may result in injustice to both offenders and victims in individual cases”. The judges accuse the Government of departing from recommendations made by a working group set up under Lord Justice Gage in 2007 to consider a mandatory sentencing framework. Its report called the idea “unsuitable and unacceptable in England and Wales”. Jack Straw, the Justice Secretary, has sought to defuse the issue, insisting that he was not introducing mandatory sentencing guidelines. He said that he had moved a series of amendments to underpin judicial discretion. The bill was intended to ensure greater consistency in sentencing, which would be in the interests of justice and, primarily, of the public.

The COCJ is unimpressed “even taking account of the government amendments”. It concludes damningly “We do not consider these sentencing proposals to have any benefit. The proposals are not sought by the judiciary or any other criminal justice group”. The full text of the COCJ statement can be found at

http://www.judiciary.gov.uk/about_judiciary/governance_judiciary/cocj/statements.htm

Soon the new English Premiership season will be under way. The vast majority of players will have come from abroad to play for mainly foreign owned clubs. The national team has looked abroad not only for its manager but also for most of his assistants. Sometimes it seems that the major English contribution to the whole circus is to pay through the nose at the turnstiles.

Even the England cricket team now has a South African skipper. Michael Vaughan may have made a lachrymose departure but the last time England had a South African skipper it also ended in tears when Tony Greig fell for Kerry Packer’s wealth and took half the test side with him to World Cricket. Kevin Pieterson has made no secret of his determination to dip his bread in the IPL 20/20 riches, so perhaps history will repeat itself.

And so to the Judiciary. The appropriately named Sir Igor Judge will become Lord Chief Justice when Lord Phillips stands down in October. Sir Igor was born in Malta. Truly Britain is a land of opportunity.

A new bare-headed look will prevail from October 1 when judges hearing civil and family cases in England and Wales consign their 300-year-old horsehair headgear to history. From the autumn, most judges will adopt a simple continental-style black gown. The new robe has coloured bands to indicate seniority, with heads of the high court’s four divisions and appeal court judges wearing gold bands and high court judges wearing red. Judges will no longer wear wing collars and bands for civil and family proceedings.

According to Clare Dyer, legal editor of the “Guardian”, the move has been pushed through by the lord chief justice, Lord Phillips, “who has long believed that judges’ fusty headgear and antiquated garments should be consigned to the dressing-up box. He and his recent predecessors have argued that the outdated apparel contributes to public attitudes that the judges are out of touch with ordinary life. But he failed to convince judges hearing criminal cases, who claim that wigs add to the dignity of proceedings and confer an anonymity which stops villains recognising them out of court.” Wigs will continue to be worn by high court judges and circuit judges presiding over criminal cases. Circuit judges will lose their wigs for civil cases but will retain their current gown and tippet rather than moving to the new robe.

When he decided to simplify judges’ garb, the lord chief justice expected barristers to follow suit. But the profession has been fighting to retain its traditional wig and gown. The Bar Council has twice consulted with its grassroots and has still not announced whether it intends to come into line with the judges. The consultation has revealed that well over half want to keep their traditional dress for cases in the House of Lords, court of appeal and high court.

Judges in the House of Lords may adopt a simple black gown when it becomes the supreme court in October 2009.