One of the more surprising pledges in the Coalition programme for government was to extend anonymity in rape cases to defendants. Such a move would turn the clock back to 1976, when the Sexual Offences Act introduced anonymity for those accused of rape. That provision was repealed in 1988. Shortly after the Coalition pledge, which provoked a storm of adverse publicity, deputy prime minister Nick Clegg signalled a willingness to drop the government’s plans when he told Parliament: “I want to make it clear that, although the Government have proposed the idea, we want to listen to everybody who has a stake or expertise in or insight into the matter. If our idea does not withstand sincere scrutiny, we will of course be prepared to change it.”

Now it would seem that the government has abandoned these plans. When asked in the Commons last week if he will conduct a public consultation on whether to grant anonymity to defendants in rape cases, justice minister Crispin Blunt said: “The Government are minded to strengthen anonymity before charge. We want to hear the views of those who may have any new evidence to assist our deliberations, and we will bring our conclusions to Parliament in the autumn.” However, he went on to say: “Since the principal points of judgment around the issue are clear and very narrow…the Government do not propose to manage a full, formal public consultation.” Crucially he added: “We want in the first instance to try to find a non-statutory solution, and given that we had 21 Criminal Justice Acts passed over the 13 years of the last Administration, I am sure that Labour Members will understand why we are loath to find even more statutes to put on the statute book.”

Instead the government will negotiate with the Press Complaints Commission to persuade newspapers and websites to grant anonymity to suspects. “It was agreed on both sides of the House when the Sexual Offences Act 2003 went through Parliament that all people charged with offences ought to have their identity protected until the point of charge. That is the guidance that the Press Complaints Commission put into effect in 2004.” He added that there is an issue around the strength of that guidance which required attention. According to the ‘Guardian’, Government sources said the minister had not performed a U-turn because ministers had not committed themselves to changing the law. Ministers are still committed to granting anonymity to suspects between arrest and charge and believe that a change in the PCC code is the best way of achieving this.

Yesterday Home Secretary Theresa May told Parliament that a rapid review of key counter-terrorism and security powers is underway. The review, a commitment in the coalition agreement, published on 20 May 2010, will look at what counter-terrorism powers and measures could be rolled back in order to restore the balance of civil liberties and counter-terrorism powers “and, in so doing, restore the ancient civil liberties that should be synonymous with the name of our country.”

She said: “The review will consider six key powers: control orders; section 44 stop-and-search powers and the use of terrorism legislation in relation to photography; the use of the Regulation of Investigatory Powers Act 2000 by local authorities and access to communications data more generally; extending the use of deportations with assurances in a manner that is consistent with our legal and human rights obligations; measures to deal with organisations that promote hatred or violence; and the detention of terrorist suspects before charge.” She believes that these are the most controversial and sensitive powers. “In particular, the issue of pre-charge detention has been the subject of considerable debate in the House, and tomorrow we will consider whether to renew the current detention limit for a further six months.” That would provide sufficient time to look carefully at pre-charge detention and to explore how the period of detention below 28 days can be reduced. She added: “Personally, I was always in favour of 14 days, but the whole point of a review is to look at what the appropriate period should be, and I do not wish to pre-empt the review’s decision or the information with which it will come forward.”

The review will be conducted by the Home Office with the full involvement of the police, security and intelligence agencies and other Government Departments, including those in Scotland and Northern Ireland, and with oversight from Lord Ken Macdonald QC, former Director of Public Prosecutions. The proposals made by Lord Carlile, in his statutory role as independent reviewer of terrorism legislation, will be fully considered as part of the review. The Home Secretary concluded: “I want the review to be conducted as openly and transparently as possible. I have asked Liberty to contribute to the review, and it has said that it would be delighted to do so. I am keen to involve other civil liberty and community organisations and, as with other reviews, I would urge anyone with an interest to submit their views to the Home Office.” On timing, she said: “I have ordered that the review should be completed as quickly as possible, because it is important that the police and the security and intelligence agencies are able to do their vital work with certainty and confidence. I will report back to Parliament on the outcome of the review after the summer recess.”

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 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, doodling,  bending paper clips, listening to the test match, agonising over World Cup competitions, 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. True enough, 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.

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

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

Female jurors are tougher on defendants at the start of jury deliberations than male jurors but more open to persuasion to change their vote during deliberations. That was one of the findings of the University College London team, led by Professor Cheryl Thomas, which recently published its report “Are Juries Fair?” for the Ministry of Justice.

All jurors who took part in the case simulation carried out by the team also completed personal profile forms providing information on gender, age, employment status, profession, income, religion and language. According to the team, case simulation is designed specifically to examine causal links between case factors and jury decisions. In a case simulation, a trial is filmed and edited so that only a specific factor (such as the race of the defendant) is altered in different versions of the case. Each version of the case is then shown to a large number of juries to decide. The claim is that this  creates a systematic and controlled study of jury decision-making. By combining the votes of all 797 jurors (both White and BME) who took part in the case simulations at the three courts studied – Winchester, Nottingham and Blackfriars Crown Courts – it was possible to see if any other personal characteristics of jurors (beyond ethnicity) were related to their decision-making in the case. Gender emerged as the only juror characteristic where there were significant differences.

Female jurors appeared tougher on defendants than male jurors before jury deliberations started but more open to persuasion to acquit in deliberations. Female jurors were significantly more likely than male jurors to vote to convict at the start of deliberations (41% guilty votes compared to 35%). But deliberation had the greatest impact on female jurors. After deliberations this gender difference in conviction rates disappears. On final votes after deliberations, female jurors actually had a lower conviction rate than male jurors (33% compared to 34%). Male jurors rarely changed their view; 64% of all jurors that changed their votes during deliberations were women. This pattern of decision-making occurred for all defendants, regardless of race, and at all courts.

The full text of the report ‘Are Juries Fair?’ can be found at:

http://www.justice.gov.uk/about/docs/are-juries-fair-research.pdf

The National Audit Office’s latest report to Parliament on the procurement of Criminal Legal Aid in England and Wales will make uncomfortable reading for the Legal Services Commission.

In 2008-09 the Commission spent more than £1.1 billion on criminal legal aid, £112 million of which was spent on 432 Very High Cost Criminal Cases.  871,000 acts of assistance at police stations and 125,000 acts of assistance at the Crown Court were funded. The LSC spent £22 per capita on criminal legal aid, more than any other comparable developed nation except Northern Ireland. At the other end of the scale France spent £0.9 per capita, though differences are partly attributable to the greater defence costs inherent in an adversarial legal system, in contrast to jurisdictions where judges play a greater investigative role.

The NAO found that the data used by the LSC to make payments for criminal legal aid services is inaccurate and incomplete. The existing controls over the quality of data and the accuracy of payments made to firms are not effective, and the impact of reforms has not been evaluated consistently. At present, gaps in the LSC’s knowledge about its supplier base mean that it has not developed a good understanding of the market, such as the cost structures of different types of firms and their profit margins. The NAO concluded  that “there are significant weaknesses in the way criminal legal aid has been administered…New schemes have not always been piloted…(and) the Commission’s ability to make payments to criminal legal aid suppliers is undermined by poor administration”.

An NAO survey of 369 firms delivering criminal legal aid found that it accounted for almost 60 per cent of turnover. Firms reported an average profit margin of 18.4 per cent in the last financial year, a fall from 21.6 per cent three years ago. They reported a wide range of profits, with 16 per cent of firms reporting no profit in the last financial year. Almost 80 per cent of firms which also conducted private legal work reported that criminal legal aid was less profitable, and firms which had withdrawn from contracts reported the main reason was that remuneration compared unfavourably with other types of legal work.  In their survey, 28 per cent of firms reported it unlikely they would be conducting criminal legal aid work in five years’ time, due mainly to lack of profitability and the prospect of tendering. The survey also revealed tensions in the relationship between the profession and the LSC. Of those who responded to the survey, 36 per cent of solicitors perceived the LSC as ‘unhelpful’, 29 per cent believed the LSC did not fully understand the legal system and 18 per cent cited the Commission’s “constant change of the system, processes and rules.”

The Law Society has welcomed the report. Legal aid manager Richard Miller said:

“This report goes a long way in dispelling the belief that legal aid lawyers are profiteering from the system. Many of them are not even earning any income from the work they do at all. This is a picture of a supplier base on the point of crumbling into insolvency. It is those requiring access to justice who will lose out in the long run if there are not enough solicitors providing legal aid criminal defence services.” He called for a major overhaul of the system to simplify criminal defence contracts so that they are easier and less expensive for the legal aid solicitors and LSC to administer.

For the full text of the NAO report ‘The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission’ go to: http://www.nao.org.uk/publications/0910/procurement_of_legal_aid.aspx 

and follow the links.

In the eight years since her daughter Sarah was abducted and murdered by a paedophile, Sara Payne has become a familiar figure in British public life. In January she was appointed to the post of Victims’ Champion, a new independent public voice for victims of and witnesses to crime.

This summer Home Secretary Alan Johnson invited her “to undertake a short piece of work on rape as part of the consultation exercise on Violence Against Women and Girls (VAWG)”. This is in conjunction with Baroness Stern’s independent review, due to be completed by next February, into the way rape complaints are handled by public authorities in England and Wales. Baroness Stern is examining the whole process of a rape complaint from the moment a rape is first disclosed until the court has reached a verdict.

The Victims’ Champion has now published her report. Specifically she was asked to consider the factors that influence a rape victim to report to the police, what factors influence a rape victim to withdraw from the criminal justice system post report, and what could be done to improve the overall satisfaction of victims with the service they receive from the criminal justice system. Her report, which is based on focus groups with adult women rape victims as well as expert groups of police, prosecutors and specialists in sexual violence, highlights the inconsistent treatment of rape victims by different criminal justice agencies. The evidence shows that most victims are attacked in private, by someone known to them, and injuries are not common. But victims face a culture of disbelief from the police, who are still refusing to take complaints of rape seriously if the victims come from “the wrong part of town”, if they have been drinking or if they have made previous allegations.

Victims want to be believed when they disclose they have been raped. They commonly asked themselves whether they were to blame, whether they would be believed if they reported, and felt that a trial was effectively an assessment by a jury of whether they were lying or not. “I have not heard these views expressed about any other offence and certainly cannot imagine similar thoughts or feelings entering the head of a victim of burglary, for example”. The women she spoke to were clear that if they are not treated with dignity when first reporting rape, it is unlikely they would continue to support a prosecution. “Victims frequently expressed anger that their place in the criminal justice system is effectively as a witness in their own case. Many were disappointed that the prosecution represents the Crown, rather than the victim, in contrast to the defendant who has his own legal representation”. She makes a number of recommendations in her report, including better training for police and the Crown Prosecution Service, improvements to the quantity and quality of Sexual Assault Referral Centres and Independent Sexual Violence Advisers, improved information to victims when the prosecution decides a case will not proceed, and an awareness campaign to challenge public attitudes to rape and other forms of sexual violence.

And action already. The ‘Guardian’ this week reports that the country’s first dedicated rape intelligence unit has been set up within the Metropolitan police, promising to identify and track down serial attackers. A unit of officers trained in techniques usually used to tackle organised crime and terrorism, with an additional budget of £1.4m, will become part of what Scotland Yard says is now the biggest rape investigation squad in the world. Responding to widespread criticism earlier this year when shocking failings in investigating serial rapists were exposed, the Met says it has revolutionised and raised the status of its rape inquiry unit.

The full text of Sara Payne’s report ‘Rape: The Victim Experience Review’ is at:

http://www.homeoffice.gov.uk/documents/vawg-rape-review/rape-victim-experience.pdf?view=Binary