Grayling on Making the Supreme Court supreme.

09:06 0 Comments

Updated 30th September:

In an article in The Spectator, the present Secretary of State for Justice and Lord Chancellor (Chris Grayling MP) has set out his vision of the future relationship between the United Kingdom and 'Europe' - The Spectator Chris Grayling: 'I want to see our Supreme Court supreme again'

It is plain that Grayling, along with a number of other British politicians, dislikes the European Convention on Human Rights and, in particular, the European Court of Human Rights.  He intends to publish draft legislation containing his ideas for reform.  This will be published, very possibly, in 2014.  The Spectator article states that - Grayling would not be drawn on the specifics of what will be in this bill. He wants to see what the working group he has set up with former Tory leader Michael Howard on it suggests. But he’s clear that: ‘We have to curtail the role of the European Court of Human Rights in the UK, get rid of and replace Labour’s Human Rights Act. We have to make sure that there is a proper balance between rights and responsibilities in law.’  Crucially, he adds, ‘I want to see our Supreme Court being supreme again. I think people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg.’



Clearly, here is a strong indication that the Conservative Party plans to leave the jurisdiction of the European Court of Human Rights.  This may well become clearer at their forthcoming Party Conference in Manchester.  Grayling sees sorting out Britain’s relationship with the Strasbourg court as being as important as renegotiating the terms of Britain’s membership of the European Union (EU).

So we have a glimpse of the green pastures to which Grayling plans to lead us.  Clearly, as a political matter, the present United Kingdom (or whatever it becomes following the Scottish Independence referendum), does not have to be a member of international organisations such as either the Council of Europe or the EU but it would be surprising if any British government chose to minimise its international influence by withdrawing from such bodies.  The current talk in relation to the EU is along the lines of a re-negotiation of membership terms rather than withdrawal.

Council of Europe:

The Council of Europe (COE) is an international organisation of 47 member States.  The Council came into existence in 1949 under the Terms of The Statute of the Council of Europe.  It is under the aegis of the COE that the European Convention on Human Rights exists and the European Court of Human Rights operates and it is Part 2 (Articles 19-51) of the Convention which sets up the court and defines its powers.

European Court of Human Rights

Members of the COE are, according to the Statute Article 3, required to 'accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms ......'   The reference here to human rights and fundamental freedoms would be almost meaningless unless there was a document defining those rights and freedoms.  They are not defined in the COE statute but are defined in the separate European Convention on Human Rights.  Hence, the Statute and the Convention seem to be inextricably linked such that a State which sought to avoid the Convention would have to leave the COE.    Withdrawal is permitted in accordance with the Statute Article 7.

European Union:

The European Union has developed from the original European Communities created by the Treaty of Rome 1957.  Since then there have been numerous further Treaties and further States have acceded so that, at the present time, there are 28 members with 5 on the road to membership and a further 3 possible candidates.  Article 50 of the Consolidated Treaty on European Union permits a member to withdraw. 

Court of Justice of the EU

The EU has not ignored the COE.  Up to now, the Court of Justice of the EU has recognised and applied principles of the European Convention on Human Rights.  In this way, the convention has influenced, and been absorbed into, the court's jurisprudence.   Under Article 6 of the Consolidated Treaty on European Union, the EU itself will accede to the convention.  This will embed convention rights even further into the law of the EU and, indirectly, into national legal systems.  Hence, if the UK remains an EU member, human rights will continue to exercise their influence.

The UK Supreme Court:

The Supreme Court of the United Kingdom (UKSC) is a creature of the Constitutional Reform Act 2005 (Part 3) and it replaced the Appellate Committee of the House of Lords.  Although the title 'Supreme Court' was chosen it is not supreme in everything since it is not empowered to hear criminal appeals from Scotland though this statement must be qualified to some degree because the court has 'devolution jurisdiction' and this has enable some matters related to Scots criminal law to come before the court.

Supreme Court of the UK

Unlike some Supreme Courts - such as the Supreme Court of the United States of America - the UKSC does not have power to strike down Acts duly enacted by the legislature.  This is an important limitation on the power of the UKSC.  It must accept and apply Acts of Parliament.  Under the UK's constitutional arrangements, the true legal supremacy lies with Parliament.

Until Grayling's ideas are published, it is not clear whether there is any plan to alter these arrangements.  At the moment, under the Human Rights Act 1998, the UKSC may issue a 'declaration of incompatibility' if it finds that a provision in legislation is incompatible with convention rights.  This puts Ministers on notice and it is then possible for them to bring forward amending legislation so as to address the incompatibility.  However, they do not have to do so and unless amending legislation is passed the law remains unaltered.    It seems unlikely that any proposals from Grayling will go much further than these or similar arrangements since Ministers generally wish to maintain the legislative supremacy of Parliament.  That enables Ministers to wield huge power given the usual dominance of the executive over Parliamentary business.

What if the European Convention on Human Rights no longer applied to the UK?

IF the UK is able to escape the clutches of the European Convention on Human Rights and the European Court of Human Rights then what would be the source, if any, of rights in the UK with its various internal legal systems (law of England and Wales, Scots Law etc)?

One option would be to have a British Bill of Rights.  This option was considered by a Commission on a British Bill of Rights which reported on 18th December 2012.  Such a Bill could be modelled on the European Convention.  After all, one might well expect a British Bill of Rights to offer to British citizens at least the same level of protection as the European Convention.  Of course, it might offer more rights (perhaps doubtful?) or fewer rights or may offer the same rights but include different ways of restricting those rights.  A majority of the Commission on a British Bill of Rights said that there was a strong argument in favour of a UK Bill of Rights which would have at its core the rights currently in the European Convention on Human Rights including those protocols which the UK has accepted.

Whatever the form of any such British Bill of Rights, the Supreme Court would be the ultimate authority on its interpretation though it seems unlikely that the court would be granted power to strike down legislation which did not meet the Bill.  Perhaps there would be a declaration of incompatibility process similarly to that in the Human Rights Act 1998.

In the absence of a British Bill of Rights, there would be a return to the pre-Human Rights Act position but without the right to take the case to Strasbourg.  The doors of the UKSC would be the final stop.  The rights of the British citizen would rest on common law and statute.  Parliament would be fully free to do whatever it wished as, in strict law, it is at the moment.  For some, that is a worrying prospect, given the enactment of much illiberal legislation in recent years.  It is worrying because the important human rights check on such legislation would have been removed.

Nothing in the Grayling view seems to acknowledge the enormous and, on the whole, beneficial impact which the Convention has had on our domestic law.  It is to this tricky, politically charged and fascinating topic that we shall undoubtedly return when the Grayling vision of the 'broad, sunlit uplands' (per Churchill) is revealed.

Some other posts:

EU Accession to the European Convention on Human Rights - 11th April 2013

Domestic Law and the European Convention on Human Rights - 18th May 2013 - (series of posts - earlier posts in the series at Part 1, Part 2 and Part 3.)

The European Convention on Human Rights is 60 today - 3rd September 2013

Five posts on why we shouldn't leave the European Convention on  Human Rights - UK Human Rights blog 29th September 2013.

Roger Masterman: A tale of competing supremacies - UK Constitutional Law blog

Addendum:

Speech by Chris Grayling to the Conservative Party Conference - Manchester 30th September 2013

What is Litter? An interesting question.

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Litter is a menace.  Many places are littered with discarded materials.  It is unsightly; can result in unhygienic conditions and costs are incurred in cleaning it up.  The Environmental Protection Act 1990 section 87 provides for an offence of leaving litter.

Section 87(1) states - A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

The offence may be committed in any place in the area of a principal litter authority which is open to the air.   The offence may also be committed in certain covered places provided the place is open to the air on at least one side AND the public has access to it, with or without payment.  A further point is that it is immaterial whether the litter is deposited on land or in water.

There are some situations where an offence would not be committed.  On this, see section 87(4A).

The offence is triable summarily (i.e. in the Magistrates' Court) and, upon conviction, the maximum punishment is a level 4 fine (£2500).  The surcharge would be added to that and, possibly, costs.

The Daily Mail 25th September - published the story of two men who have been convicted at Thames Magistrates Court of the offence for spitting in a public place. 



The Daily Mail commences by saying:  'Yobs who spit in public can now be prosecuted for littering after a council won a landmark legal ruling.  In a test case, two men failed in their challenge of a local authority policy to impose £80 on-the-spot fines on them.  Magistrates upheld the council’s decision that spitting could be prosecuted under anti-litter legislation – giving a green light for other councils to follow suit.'

The decision of a Magistrates' Court is NOT a landmark legal ruling.  In fact, it is very arguable that the challenge to the local authority policy ought to have succeeded on the basis that 'spit' should not have been held to be 'litter.'

The Act does not exhaustively define the word 'litter' which is an ordinary word of the English language.  There is nothing in the Act to suggest that 'litter' is to be given some other special meaning - Brutus v Cozens [1973] AC  854,  [1972] UKHL 6.   However, there is a partial definition in section 98(5A) -

(5A)  “Litter” includes - (a) the discarded ends of cigarettes, cigars and like products, and (b) discarded chewing-gum and the discarded remains of other products designed for chewing.

The items listed in 5A would appear to be within the ordinary meaning of 'litter'.  The partial definition is, of course, aimed at removing any doubt which there might have been as to those items of commonplace litter.   5A was inserted into the Environmental Protection Act 1990 by section 27 of the Clean Neighbourhoods and Environment Act 2005 and the explanatory notes to the 2005 Act state that 5A was inserted to clarify the meaning of litter for practitioners.  .

The government's view as to what constitutes litter is in the Code of Practice on Litter and Refuse  at Part 1 Para 5.0. 

The meaning of 'litter' was considered by the High Court in Westminster City Council v Riding (1995) 94 LGR 489 - a case under the Environmental Protection Act 1976 - where it was held that commercial waste bagged for collection can be litter but is not necessarily so.


The Mail's article gives a further indication that the law does not extend to spitting.
 
Moves to tackle spitting have won support from ministers. Local Government minister Brandon Lewis said: ‘Spitting is a deeply anti-social and unpleasant practice.  ‘Spitting on Britain’s streets should be as socially unacceptable as dropping litter.’

Communities Secretary Eric Pickles has backed Enfield Council who want to pass a byelaw banning the habit, saying: ‘Spitting on Britain’s streets is not socially acceptable.’

Most right thinking people would probably support a byelaw specifically aimed at spitting.  However, criminal convictions should be based on conduct which is clearly prohibited.  Section 87 is not so clear.

Mens rea?

Is section 87 is a strict liability offence or is mens rea (guilty mind) required.   If it was strict liability then even accidental dropping of something might be within the offence.  'Strict liability' is an extensive topic covering many pages in the legal textbooks and the application of the law can be difficult.  'Throwing down' (section 87) is a deliberate act.  'Dropping or otherwise depositing' might be done deliberately, negligently or even accidentally.

It may be of relevance to this question that the Act makes provision for fixed penalties (section 88).   Fixed penalty notices can be issued where an authorised officer of a litter authority finds a person who he has reason to believe has on that occasion committed an offence under section 87.

As far as I am aware, the point is undecided.  Views on this are particularly welcome.

Links:

Information on Fixed Penalty Notices  - Criminal Law Blog

The Niqab in court ~ Ruling of HH Judge Peter Murphy

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On 24th April 2007, the Judicial Studies Board issued guidance to the judiciary as to the wearing of the niqab in court proceedings - see HERE.    The guidance was eventually incorporated into the Equal Treatment Benchbook at Chapter 3.3 (Religious Dress).

The latest situation regarding a defendant claiming a right to wear the niqab in court arose in the Crown Court sitting at Blackfriars.  The Presiding Judge - His Honour Judge Murphy - heard legal argument and then issued his reasoned decision -Judgment of HH Judge Peter Murphy in relation to wearing of niqab by defendant during proceedings in Crown Court.

Judge Murphy's decision amounts
to requiring the defendant to reveal her face to the jury whilst giving her own evidence but, at other times, she may remain covered.  The decision has attracted an immense amount of comment.  Some see it as a sensible and pragmatic compromise whereas others disagree and feel that defendants should not be permitted to keep their faces covered in court.  The latter opinion places considerable emphasis on the view that the jury may pay attention to the facial reactions of the defendant as others give their evidence and use what they observe in some way when reaching their decision on the case.

Demeanour as a guide to reliability:

Much has been said and written about the demeanour of witnesses (and here I include defendants) in the artificial environment of the criminal court.  In a Canadian case - R v Lifchus 1997, Cory J said:

... there may be something about a person's demeanour in the witness box which will lead a juror to conclude that the witness is not credible. It may be that the juror is unable to point to the precise aspect of the witness's demeanour which was found to be suspicious, and as a result cannot articulate either to himself or others exactly why the witness should not be believed. A juror should not be made to feel that the overall, perhaps intangible, effect of a witness's demeanour cannot be taken into consideration in the assessment of credibility.

In an earlier Canadian case- Laurentide Motels v. Beauport (City), [1989] - L'Heureux-Dubé J. asked triers of fact to consider "the movements, glances, hesitations, trembling, blushing, surprise or bravado" of witnesses."

These views reflect the generally held opinion that jurors take into account matters such as HOW a witness gives evidence as well as WHAT they actually say and also how the defendant reacts to the evidence of others.  This point of view is in accordance with how we, in everyday life, react to our encounters with other people where, often, the HOW carries considerable influence.  And yet, our impressions can be wrong and, perhaps, are wrong more often than we usually care to admit.

There have been contrary views.  In his book The Judge (1979) the late Lord Devlin wrote:

“The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think this is overrated….I doubt my own ability…to discern from a witness’s demeanour, or the tone of his voice whether he is telling the truth……..For my part I rely on those considerations as little as I can help.  It is the tableau that constitutes the big advantage, the text with illustrations, rather than the demeanour of the particular witness” 

Such comment from a judge of Devlin's undoubted calibre is important.  The much more recent views of the late Lord Bingham of Cornhill are also highly relevant and are set out in The Business of Judging: Selected Essays and Speeches (Oxford, 2000).   To attempt to summarise his powerfully reasoned views in a blogpost would scarcely even begin to do justice to them but it is clear that Bingham found himself among those who doubt reliance in the courtroom on the demeanour of witnesses though Bingham did not rule out taking it account.  His Lordship made three very powerful points:

1. The ability to tell a coherent, plausible and assured story is the hallmark of the confidence trickster down the ages.

2. The unnverving experience of a person giving evidence who has never done it before must not be overlooked.  It is rarely safe to draw inference from the fact that a witness seems nervous and ill at ease.

3.  Nationality (and one could add ethnic background) plays a part.  However little insight a judge may gain from the demeanour of a witness of his own nationality when giving evidence, he must gain even less when the witness belongs to some other nationality and is giving evidence either in English as his second or third language or through an interpreter.

Thus, in the courtroom situation, it is vital to consider carefully WHAT a witness says and how that evidence relates to the other evidence in the case.  It is from such analysis that good decisions result. 

Is there a problem?

The learned judge has sought to approach the problem with good sense and care and appears to have reached a reasonable compromise in the particular case.  However, I just wonder whether there may be a difficult problem.  He ruled:

'If the defendant gives evidence, she must remove the niqaab throughout her evidence. The Court may use its inherent powers to do what it can to alleviate any discomfort, for example by allowing the use of screens or allowing her to give evidence by live link. Again, the judge should, in the absence of the jury, advise the defendant of the possible consequences of refusing to remove the niqaab. She should be invited to remove the niqaab and given time to reflect and take advice if she wishes to do so. If she refuses, the judge should not allow her to give evidence, and must give the jury a clear direction in the terms suggested in the Bench Book, with appropriate modifications, about the defendant’s failure to give evidence.'
 
At common law, a defendant could choose to remain silent and it was not permissible to draw any inferences from this.  (Whether or not juries did so in practice is a moot point).  The law was modified by the Criminal Justice and Public Order Act 1994 section 35 which brought into English Law some legislation which had previously been applied in Northern Ireland in the context of the violence and terrorism of the time.  Section 35 permits the drawing of 'such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.'  However, the section is triggered by a refusal to give evidence. Would the section be triggered if the judge refuses to allow a defendant to give evidence because she insists that she will not remove her niqab as opposed to saying that she did not wish to give evidence?  Even if the answer to that is YES (which I doubt), just what inferences could properly be drawn?  I would submit that none could be properly drawn.

Furthermore, since the enactment of the Criminal Evidence Act 1898 which first permitted defendants to give evidence, it must also be seriously doubted whether the judge has the power to refuse to allow a defendant to give evidence when the defendant is willing to do so but only if she is permitted to wear a niqab.  A refusal would seem to amount to denying a fair trial.

The adversarial criminal trial system is a system of open justice which depends for the most part on lay decision-makers (jurors and magistrates).  It seems to be time for Parliament to consider the issues raised by those who wish to keep their faces covered in the courtroom and this question has to be considered in relation to all types of court and tribunal proceedings.  Judge Murphy was careful to confine his judgment to trial in the Crown Court and he also confined it to defendants.  His judgment does not bind other judges in the technical law of precedent sense but it will be persuasive given that it contains a lengthy look at the relevant law.

Other views:

UK Human Rights Blog - Adam Wagner The Niqaab issue is too important to be left to liberal instinct  and Alasdair Henderson Veils and ignorance: defendant not allowed to wear niqaab when giving evidence.

Joshua Rozenberg - The Guardian 17th September - Veils in court: this compromise ruling struck the wrong balance.

Halsbury Law Exchange - Simon Hetherington - Niqabs in court: Should full face veils be banned? 

Halsbury Law Exchange - Felicity Gerry - Niqaab court ruling: A classic exercise in reasonableness

Head of Legal blog - Carl Gardner - Even in a Niqab, the defendant must be heard ... where the learned author says that 'the judge’s reasoning is inadequate, mistaken and contradictory' ... The Niqab ruling: My detailed comments 

For a succinct view that this should be a matter of choice for the defendant see Nothing but the Sun - blog of Francis Fitzgibbon QC.

On this interesting subject, I also recommend a reading of the cogent but entertaining - Evidence of Demeanour: Some Instruction Found in the Early Works of Georges Simenon

References:

R. v. Lifchus [1997] 3 SCR 320

Laurentide Motels v. Beauport (City), [1989]  1 S.C.R. 705, at p. 799

Family Law - additional catch up notes

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Daniel Pelka

A Serious Case Review was conducted following the death, in March 2012, of Daniel Pelka (aged 4) -  BBC Coventry and Warwickshire 17th September 2013 .  The Review Report has been published by the Coventry Safeguarding Children Board -  REPORT.  At the Crown Court in Birmingham - before Mrs Justice Cox and a jury - Mariusz Krezolek and Magdalena Luczak were sentenced to life imprisonment for Daniel's murder with a minimum terms of 30 years.  The excellent sentencing remarks of Cox J graphically describe the appallingly brutal treatment meted out to Daniel.  Local Safeguarding Children Boards were created in England by the Children Act 2004 s.13 and, in Wales, by section 31.

Adoption:

The Court of Appeal (Civil Division) has given judgment
in B-S (Children) [2013] EWCA Civ 1146 - a case which concerned the consent of a mother to adoption.   Parker J refused a mother's application under section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of adoption orders in relation to her two children. At the conclusion of the argument the Court of Appeal was satisfied that the appeal had to be dismissed and informed the parties accordingly. Time was then taken to put the reasons in writing because the appeal not merely required a decision on an important question of law as to the proper application of section 47(5); but it also raised some very significant matters of more wide-reaching importance.

At para 30, the Court of Appeal expressed concerns:

1. We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt. 


2. In the last ten days of July 2013 very experienced family judges in the Court of Appeal had occasion to express concerns about this in no fewer than four cases: Re V (Children) [2013] EWCA Civ 913 (judgment of Black LJ), Re S, K v The London Borough of Brent [2013] EWCA Civ 926 (Ryder LJ), Re P (A Child) [2013] EWCA Civ 963 (Black LJ) and Re G (A Child) [2013] EWCA Civ 965 (McFarlane LJ). In the last of these, McFarlane LJ was explicit (para 43):



"The concerns that I have about the process in this case are concerns which have also been evident to a greater or lesser extent in a significant number of other cases; they are concerns which are now given sharper focus following the very clear wake-up call given by the Supreme Court in Re B."

3. It is time to draw the threads together and to spell out what good practice, the 2002 Act and the Convention all demand.

The court then proceeded to state:

1. Two things are essential – we use that word deliberately and advisedly – both when the court is being asked to approve a care plan for adoption and when it is being asked to make a non-consensual placement order or adoption order.

Adoption – essentials: (i) proper evidence  First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. Too often such analysis was absent. 

Adoption – essentials: (ii) adequately reasoned judgment  
The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge.

These 'essentials' are amplified in the judgment and therefore this case is essential reading for all family law practitioners.

DNA testing:

A further case - M (A Child) [2013] EWCA Civ 1131 concerned DNA paternity testing as an element of Hague Convention proceedings.  Longmore LJ delivering the court's judgment noted:

1. It is a serious step for any court to take and should not, in my view, be ordered unless it is necessary for it to be done before a conclusion can be reached. It may not be a physical invasion of privacy since samples can be obtained without any substantial physical bodily interference but it is on any view a psychological invasion of a litigant's rights to a personal life. There are also inherent welfare considerations. Is it to be explained to Lina (now aged 5) that a bodily sample is required from her or is it to be taken surreptitiously? If it is to be explained, who is to furnish that explanation; if it not to be explained now, is she ever to be told that it has happened and what the result is? These are troubling questions to which there is no obvious answer.


2. It seems to me, therefore, that DNA testing as ordered by the judge, if it is to be done at all, should only be done as a last resort. 

The Hague Convention is scheduled to the Child Abduction and Custody Act 1985

Further cases:

A (A Child) [2013] EWCA Civ 1104 (06 September 2013)
The CA allowed a Father's appeal against final orders providing for no direct contact and a s.91(14) order in a case characterised by systemic failure of the Family Justice system over the 11 years the case had been consistently before the court. The CA found that the Article 8 rights of the Father and child had been violated and that while the judgment appealed was not of itself wrong and thus necessary to set aside the concerns about the process was so strong that per CPR r 52 (11) (3) the outcome was unjust because of a serious procedural or other irregularity. The matter would be restored for an effective full rehearing, first being listed before Mr Justice Moylan to allocate the case to one senior Family Judge.

IA (A Child) (Fact finding; Welfare; Single hearing; Experts reports) [2013] EWHC 2499 (Fam)
The Court gave judgment following a fact finding at which a Father was found responsible for non-accidental injuries to a child KA who had died of unknown causes. The welfare hearing was in respect of IA the parties second child. The court entirely exonerated the Mother of any failure to protect and made important points about the unrealistic expectations of professionals in respect of innocent and ignorant parents. The social worker and local authority involved were heavily criticised. 

Article:

On Family Law Week there is a good article about the Supreme Court's decision In the Matter of A (Children) [2013] UKSC 60 - Judgment here. 

Family Law ~ Catch up notes

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The Family Justice system is working toward the implementation of the new Family Court for England and Wales.  On this see post of 12th May 2012 and the Crime and Courts Act 2013 Part 2 (along with Schedules 9 to 11).

The President of the Family Division has said - 'It is some forty years since such a court was recommended by Sir Morris Finer and he, alas, did not live to see his recommendations bear fruit – such is the snail-like pace of so much legal reform in this country. When it opens its doors, the Family Court will include, wherever possible sitting under the same roof, judges from every tier of the judiciary: High Courts Judges, Circuit Judges, District Judges and Magistrates. And it will benefit from unified systems of administration and listing.'   ‘The Single Family Court: A Joint Statement by the President of the Family Division and the HMCTS Family Business Authority’ issued in April 2013.

Views from the President's Chambers:

The President of the Family Division has issued the sixth in his series of Views from the President's Chambers - HERE.   Earlier 'Views' are available.  The Sixth view offers a succinct catch-up on a number of developments.  For instance, the praises of the 'Triborough Pilot' are sung loud and clear.  The pilot scheme, which covered three London Boroughs, sought to reduce delays in care proceedings.  The evaluation of the pilot scheme is HERE.


There is clearly considerable pressure to secure the completion of care proceedings within a 26 week timetable and the 6th View looks at the revised Public Law Outline which aims to achieve the 26 week objective in all but exceptional cases. 

One aspect of transparency in the Family Courts is the Publication of Judgments and this has been the subject of draft guidance which was issued in July 2013 - Guidance (pdf).  The finalised version of the guidance will be issued by the end of 2013.  The draft guidance begins:

This Guidance is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection. In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form). 

The draft (para 14) applied the guidance to family court (and court of protection) judgments delivered by Circuit Judges, High Court Judges and persons sitting as Judges of the High Court.   The impact should be that most judgments in public law proceedings are published unless there are compelling reasons not to do so (see para 16).  However, there are some judgments which may be published but do not necessarily have to be (para 17).

At the time of writing, it is not clear to me where the many judgments are being published.  (Update: On this see the comments below).  Obviously, judgments involving questions of law will often reach the law reports (including Bailii) but many judgments in children cases are applications of the law rather than decisions as to the law itself.  Without readily available public access to some source for such judgments, the transparency initiative seems unlikely to succeed as well as it should.

The Family Lore blog publishes interesting roundups of family law news - e.g. Family Lore 13th September.

A look at the Michael Turner case (aka Michael Le Vell - aka soap star name Kevin Webster)

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At the Crown Court sitting in Manchester, the case of R v Michael Turner was heard by His Honour Judge Henshall and a jury.  Turner, probably better known as the actor who plays the Coronation Street character Kevin Webster, was charged with sexual offences.  He was acquitted by a unanimous jury on all counts - BBC NEWS Manchester 10th September. 

The events prior to the trial are of some of interest.  Turner was originally arrested in September 2011. By December 2011 the Crown Prosecution Service had concluded that there was insufficient evidence to proceed to trial and no charges were brought at that time.  In February 2012, the victim’s mother made a formal complaint about the Crown Prosecution Service (CPS) decision not to charge him and the victim gave further information to the police in March 2012.  However, it was not until February 2013 that the CPS had reviewed the case and concluded that charges should be preferred.  It was in October 2012 that the revelations about the activities of the late Jimmy Savile came to public notice.


Charging suspects:

It is for the CPS to determine whether charges should be preferred.  In reaching 'charging decisions' the prosecutors apply the Code for Crown Prosecutors  with its evidential and public interest stages.  The prosecutor must also consider other relevant material such as the Director's Guidance on Charging 2013 and any guidance relating to specific types of case.

CPS - Recent developments:

It is interesting to note two developments dating from June 2013. 

A)   The CPS has been consulting on the Interim Guidelines on Prosecuting Cases of Child Sexual Abuse: Public Consultation.  See the video of the present Director of Public Prosecutions talking about the interim guidelines.

B)   A further CPS consultation on the Interim Guidance on the Victims' Right to Review Scheme: Public Consultation closed on 5th September.  This guidance will now be reviewed in light of the responses received and final guidance will then be published.  The scheme gives effect to the principles laid down in Killick and in Article 10 of the European Union Directive establishing minimum standards on the rights, support and protection of victims of crime.

Of course, it remains to be seen how frequently the Review scheme is used.  The review process is part and parcel of greater recognition that victims have rights but reviews will extend the stress and anxiety of the criminal justice process from the suspect's perspective.  The time from arrest to the CPS decision relating to charge can, on occasions, be lengthy - as in Turner's case.  

The decision to charge Turner:

Turner's acquittal has been followed by a considerable amount of comment - (see the selection of links below).  The decision to charge him was reached after applying a perfectly proper process which permitted complaints.  Also, the complainant gave the Police further information in March 2012.  Even though the final decision to charge was taken after the Savile revelations, there seems to be no reasonable basis to conclude that those revelations had anything to do with the decision to charge Turner.

If the CPS decision-maker concludes that the evidential and public interest tests are met then a charge should follow.   When allegations of serious sexual misconduct are made, they have to be properly investigated and brought to court (subject to the charging tests already referred to).  Fairness to victims demands no less. 

Fair trial - involves testing the evidence:

When the matter is before the court, the defendant is entitled to a fair trial and this requires robust testing of the prosecution evidence.  Cross-examination of the accuser has been the subject of adverse criticism in recent times but it is a necessary part of the fair trial process.  If, as an example, the defence is that complainant is lying, then this has to be tested - a process which requires skilled counsel. See the post by Nigel Poole QC - What are Barristers for?  Cross examination is subject to legal and ethical limits and the judge should ensure that the limits are applied.  Special measures can also be applied to assist in the reception of evidence.

The future:

Where does Mr Turner now stand?  He is not guilty of the charges.  His character was revealed publicly as part of his defence.  He has drunk heavily and had extra-marital affairs - referred to as 'one night stands.'   These may be seen as undesirable things to do but they are not criminal.  It is to be hoped that he can pick up his life to the full and not suffer from the abysmal mentality of 'there's no smoke without fire.'  Let us remember that our law starts with a presumption of innocence (innocent until proven guilty) and so, if guilt is not proved, the person remains innocent.

Anonymity:

Should defendants in this type of case be given anonymity in the way that victims of sexual offences are offered anonymity?  Discussion of this can be found on Carl Gardner's Head of Legal blog 24th May 2010 - We must see justice done (more on rape and anonymity).  Those who argue for anonymity for those charged are motivated by the undoubted damage which can be done to an individual merely by being charged and, in particular circumstances, teachers are granted anonymity - see post of 29th September 2012. Nevertheless, in February 2013, Maura McGowan QC argued for anonymity for rape defendants.

Links:

Manchester Evening News 11th September - Top CPS prosecutor denies 'celebrity witch-hunt' after Michael Le Vell acquitted of child sex charges

The Guardian 11th September - Michael Le Vell: the CPS had no choice but to prosecute


Telegraph 11th September - Michael Le Vell - CPS defends prosecution of Coronation Stree actor

Independent 11th September - The Michael Le Vell verdict is in, but all the lessons are still to learn

Other comment:

The [Justice] Gap - Felicity Gerry - Dark Secrets and Allegations

Parliamentary Briefing Paper on Anonymity  - contains extensive analysis of the anonymity question in relation to suspects / defendants in sexual cases

Chris Jefferies: Criminal suspects should not be named 

BBC News UK - Michael Le Vell cleared: should rape suspects get anonymity?

Tuesday Roundup

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Black Holes

Here is my roundup of legal news at a time when the political world is circling toward an 'event horizon' in relation to Syria.*  The future of legal aid, judicial review and the legal profession are other topics which seem to be getting close to some other 'event horizon' as the government's far-reaching proposals are out for consultation.  Let's begin though with some recent decisions in the family law area.

Family Law:

The President of the Family Division (Sir James Munby) delivered a robust judgment in Re J (A Child) where a local authority sought a wide ranging reporting restriction on child care proceedings relating to child J (born April 2013).  The child's father had posted material on the internet including a photograph of a social worker.  A feature of the postings was the use by the father of language which on occasions was abusive, insulting, threatening and, indeed, highly offensive. Munby LJ referred to 'automatic restraints' on the publication of information relating to proceedings under the Children Act 1989.  However, there is a pressing need for more transparency in the family justice system.  A robust view
had to be taken of what is rightly allowed to pass a s criticism.  The outcome was that Munby LJ granted a contra mundum injunction (i.e. against the whole world) which would last until J was 18 but only for the purpose of restraining publication of the child's name.  This would enable any public debate about family justice to continue.  There is much more in this case and, for practitioners, it is essential reading.

Readers may also be interested in the following links provided by Family Law Week:

• Care applications in August 2013 fall year-on-year by 17% (09/09/2013)
• Private law children applications still running at over 4,000 per month 

The Family Lore blog has good material on this important area of law including the recent Supreme Court decision in In the matter of A (Children)  where the issue was whether the wardship jurisdiction (or inherent jurisdiction) of the Family Division of the High Court can ever be exercised in respect of an infant child who has never been physically present in England and Wales.  The court held that there was inherent jurisdiction to make the orders in this case on the basis of the child’s British nationality. The case was however remitted to the judge to consider whether, as a matter of urgency, it is appropriate to exercise this exceptional jurisdiction.  A press summary of the judgment is available here, and the full judgment here.

Two further decisions, this time in the Court of Appeal (Civil Division), are:

• R (A Child) [2013] EWCA Civ 1115 (06 September 2013)
• A (A Child) [2013] EWCA Civ 1104 (06 September 2013)

The Inforrm blog takes a look at new DRAFT rules about greater transparency in the family courts. Proposed new guidance [pdf] recommends that decisions of the family courts should always be published, unless there are compelling reasons against publication. Sir James Munby, President of the Family Division of the High Court, has issued the proposed guidance to facilitate the “need for greater transparency” in the family courts.

The President's View No. 6 has also been issued - see Family Law Bar Association.

Attorney General on the role of the prosecutor:

Dominic Grieve has made an interesting speech in Moscow on the role of the prosecutor - HERE.  Grieve was addressing the 18th Annual Conference and General Meeting of the International Association of Prosecutors and he emphasised the prosecutor's role in ensuring that trials are fair, politically neutral and that human rights are defended.

The Judiciary:

Parliament is looking at the constitutional role of the judiciary - see Political and Constitutional Reform Committee - To complement the Committee’s ongoing work on Mapping the path to codifying—or not codifying—the UK’s constitution, the Committee is to undertake an inquiry to explore how the role of the judiciary would change were the UK to move towards a codified constitution, and the challenges that this changed role would present.

Is it time for the Judges themselves to be subject to assessment?  This question is put by Lord Carlile QC.  Litigation Futures  The time has arrived to create a “small” inspectorate – led by a High Court judge – that will evaluate judges’ courtroom performance, Lord Carlile QC has argued.


Juries:

It was recently announced that age 75 is to be the maximum age for jury service.  Needless to say, this raised eyebrows given that judges - usually with years of legal experience - have to retire at age 70.

The Shadow of the Noose blog puts the case for jury trial.   The Lawyer looks juries and the internet -  Juries are tangled in the web  and asks - is it realistic, in the digital media age, to expect juries to remain oblivious to how a case is being discussed in the wider world? Has the time come for juries to be sealed off, US-style?   Clearly this is a serious debate but perhaps a rather more trusting approach may have to become necessary unless we expect our jurors to be selected from those who pay little to not interest in what is going on in the world around them?

Scotland:

Just to pop north of the border, here is an interesting piece on Scottish Children's Hearings. 

European Arrest Warrant:

Alternative Law Journal considers whether the European Arrest Warrant system is sleepwalking into dangerous territory.   Is the EAW a failure from a human rights perspective?

Wills:

The thorny (and expensive) subject of contesting a will is discussed in Youblawg - 4 valid reasons to contest a will.

The case of Feltham v Bouskell 2013 is of importance to practitioners.   The case is discussed more fully in the Law Society Gazette 9th September. 

Legal services and regulation:

The legal profession and its diverse branches has a highly complex regulatory system.   For a view that there should be a single regulator see Law Society Gazette - Tear up the Legal Services Act and start again.

Consultations on Legal Aid and Judicial Review:

Numerous contributions to the debate about the government's legal aid and judicial review proposals have been appearing.

The views of a City of Bradford solicitor are that firms will have to close.   Ray Singh, a partner with Bradford-based firm Pether-bridge Bassra, said plans by Justice Secretary Chris Grayling to slash solicitor’s fees by 17½ per cent would turn Bradford into a “desert” for criminal legal aid.

Public Law for everyone has an excellent analysis of the judicial review proposals.  Mark Elliott wrote: The tone of the consultation paper is predictable: judicial review is once again castigated as an obstacle to economic growth and a tool that is cynically exploited to place expense and delay in the way of progress. Of course, the present system is not perfect. It is, however, hard to avoid the conclusion that those who are driving the policy agenda within government in this area are instinctively opposed to judicial review.

The Lawyer argues that Training: Criminal Justice  states that legal aid changes could have a serious impact on junior barristers.  I think that there is no doubt that it will have a devastating result on the junior criminal bar and that will have serious long term consequences for criminal justice and the future of the judiciary.  The government's proposals seem to have little to no regard for anything beyond the immediate need to slash the legal aid budget.

In an article entitled Judicial activism, Francis Fitzgibbon QC looks at Judicial Review. 

Eurorights - Chris Grayling and Judicial Review - An odd thought or two

Criminal Defence Barrister - Chapter 4: Number One gets serious  here is a great piece - assisted by James Bond - The Criminal Bar awoke to find itself strapped at the wrists and ankles to a black plinth in the centre of a vast empty room. Its legs were splayed open. It was helpless and, to be honest, a little nervous as to its immediate future.

Virtual Lawyer (Steve Cornforth) Judicial Review - Public Protection or Left Wing Propoganda?

Save UK Justice - The blogs a great collection of links to the numerous comments about 'Transforming legal aid' on the blogs

Forensic Science:

Crimeline - Robbing Peter to pay Paul - looks at the problems of the defence in obtaining access to forensic science. 

Civil legal aid:

Law Society Gazette - looks at Disturbing reduction in take up of civil legal aid - The Legal Action Group (LAG) has called on the government to increase the profile of civil legal aid services, accusing it of presiding over a ‘secret’ legal service after figures show a huge shortfall in take-up this year.
The charity has also called for an urgent review of the exceptional funding mechanism, claiming that it is failing to provide a ‘human rights safety net’ as intended.

Quality assurance for advocates:

As much as the government seems to dislike judicial review, it is to be judicially reviewed on the legality of the Quality Assurance Scheme for Advocates (QASA) - Solicitors Journal 9th September. 
The Criminal Bar Association has launched a judicial review against the quality assurance scheme for advocates (QASA).  Announcing the move, the CBA's chairman, Nigel Lithman QC, said: "As the Criminal Bar all wear the badge that says 'No to QASA' on their lapels or in their hearts, this is an inevitable step, albeit of course success is not guaranteed."


Slavery:

In 1833, Parliament abolished slavery - Act of 1833.  The Act was interesting in that a sum of £20m was applied to compensation of former slave owners.   This was hardly a recognition that slavery was an abomination.  In modern terms: against the idea of human rights.  The Independent 24th February 2013 had an interesting article as to where the money went.

* Wednesday 11th September 2013 - Military action against Syria receded to some extent - at least for the time - The Guardian Obama veers to diplomatic path ... 

Judicial Review ~ Further proposals ~ Sir Stephen Sedley

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The Judicial Review Consultation:

In addition to its further consultation on Transforming Legal Aid (previous post), the Ministry of Justice is consulting on proposals for further reform of judicial review - Consultation Description and Proposals. 


These proposals follow those in the consultation Judicial Review – Proposals for Reform, which ran from December 2012 to January 2013 and set out some of the background and the Government’s concerns about the use of judicial review.  The foreword to that document said:

“we are considering whether these proposals need to be supported by a programme of more wide ranging reforms.”

The present consultation follows on from the reforms implemented as a result of that consultation, setting out further proposals and areas in which action might be taken, on which the Government seeks views.

This consultation runs for 8 weeks; the deadline for responses is midnight on the 1 November 2013.  



The Judicial Review consultation opens by stating:

'Judicial review is a critical check on the power of the State, providing an effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful. The Government will ensure that judicial review continues to retain its crucial role. The Government is though concerned about the use of unmeritorious judicial reviews to cause delay, generate publicity and frustrate proper decision making. This is bad for the economy and bad for the taxpayer.'

'In December 2012 the Government launched a consultation, Judicial Review: proposals for reform, which sought views on a series of proposals to reform judicial review.  On 23 April 2013 the Government published its response to the consultation setting out the reforms it intended to take forward.  They were: shortening the time limit for bringing a judicial review from three months to six weeks in certain planning cases and to thirty days in certain procurement cases, bringing them into line with the time limits for statutory appeals;  removing the right to an oral renewal where the case is assessed by a judge as totally without merit on the papers; and introducing a fee for an oral renewal hearing, where permission has already been refused by a judge on the papers but the claimant asks for the decision to be reconsidered at a hearing.

The first two of these reforms were given effect on 1 July 2013 by an amendment to the Civil Procedure Rules.  The Government will seek to implement the fee change as soon as practicable. The Government will also revisit whether judicial review fees are set at the appropriate level as part of a wider review of fees across the civil courts. These procedural measures are targeted at unmeritorious cases, the aim being to filter them out quickly and at an early stage, while ensuring that arguable claims can proceed to a conclusion without delay.

Work has recently been completed to transfer immigration and asylum judicial reviews from the Administrative Court to the Upper Tribunal. This should significantly reduce the workload of the High Court and bring about major efficiencies to the system.

These measures are an important step forward. However the Government considers that more needs to be done to prevent abuse of judicial review.   The Government is concerned that there has been significant growth in the use of judicial review, and that this is sometimes used as a delaying tactic in cases which have little prospect of success. There are more than twice as many applications for judicial review as there were ten years ago. Whilst much of the growth has been in immigration and asylum cases, those cases take up court and judicial resources with consequences for the handling of other cases. Unmeritorious cases in other areas can delay wider government reforms and the progress of major infrastructure projects which are intended to stimulate growth and promote economic recovery. The Government is also concerned that legal aid resources should be properly targeted at those judicial review cases where they are needed most, if the legal aid system is to command public confidence and credibility.'

The consultation paper may be directly accessed via  Judicial Review: proposals for further reform consultation, 392.6 kB (PDF document.

Grayling's political views published:

The Secretary of State for Justice chose to reveal to the public his political attitude to judicial review - Daily Mail 6th September - The judicial review system is not a promotional tool for countless Left-wing campaigners, says Chris Grayling - where Grayling wrote:

'Of course, the judicial review system is an important way to right wrongs, but it is not a promotional tool for countless Left-wing campaigners. So that is why we are publishing our proposals for change.
We will protect the parts of judicial review that are essential to justice, but stop the abuse.

Britain cannot afford to allow a culture of Left-wing-dominated, single-issue activism to hold back our country from investing in infrastructure and new sources of energy and from bringing down the cost of our welfare state.

We need to make decisions quicker and respond to issues more quickly in what is a true global race.

The Left does not understand this, and believes that our society can do everything for everyone, and that those who work hard to get on in life should pick up the tab.

They want more money for public services, but at the same time to be able to halt the investments which can deliver the wealth that pays for those services.

In proposing these changes, I will no doubt be accused of killing justice and destroying Magna Carta. Although as the great old lady of British law is approaching her 800th birthday, and the judicial review system is barely 40, I’m not sure that argument stacks up. But in proposing these changes, I know we will be doing the right thing for Britain.'

Numerous criticisms could be levelled at the article including whether it is appropriate for an individual who holds the office of Lord Chancellor to be writing such politically-biased material.  Judicial review is open to all provided they have sufficient interest in the subject matter to bring the case.  Judicial review is not about whether the decision is economically right or wrong or politically right or wrong and it is certainly not about where the applicant stands on the political left to right spectrum.  It is about legality: ensuring that decision-makers act within the law.  Judicial review is the term which has been used since some reforms of the 1970s but the jurisdiction of the High Court in these matters goes back for many centuries.  Nevertheless, it cannot be denied that there has been a massive growth in 'administrative law' since the 1960s and 70s but that is very much due to the enormous increase, over that period, in the involvement of the State in almost every area of human activity. 

See also Nearly Legal blog - The Lord Chancellor must resign

Sir Stephen Sedley:

It is therefore appropriate to turn to comments made by Sir Stephen Sedley, a retired Lord Justice of Appeal writing in the London Review of Books - Beware Kite-Flyers.  This article is also worth reading for Sir Stephen's views about the reforms (in the Constitutional Reform Act 2005) to the Lord Chancellor's role about which Sedley, in common with many lawyers, is critical.

' ..... making the Lord Chancellorship a secondary occupation of the new secretary of state for justice was more than a simple consolidation of tasks: by depriving the judiciary of a voice in cabinet, it exposed the legal system to the vagaries of politics and policy, with profound implications for the rule of law. We are now seeing the consequences.'


The superficially attractive reason is that it will inhibit the making of long-shot or speculative claims at public expense, but it is supported by no evidence, and the argument advanced in support of it – that the claimant’s lawyer ‘is in the best position to know the strength of their client’s case’ – displays a depressing degree of ignorance about how judicial review works. 

More often than not, it is the defendant authority which holds most of the relevant cards, and in many cases it holds on to them for longer than it is supposed to, either because there is too little time for proper disclosure of documents or because sitting tight affords the best hope that the claim will go away. The departmental calculation is that indigent claimants’ lawyers will be deterred from taking on all but sure-fire claims. In proposing that other claimants can be left to their own devices without injustice, the paper makes no attempt to confront the consequences: a plethora of claims made by litigants in person, clogging up the courts as judges try to discern arguable points in the chaos of paper, and costing public authorities large sums in irrecoverable costs as they attempt to respond to such claims.

As for the growth in judicial review, Sedley points out that in 2011, there were 11,359 applications for judicial review but only 356 got to a full hearing and only 144 succeeded.  This alone shows that no sensible lawyer will advise judicial review unless he feels that there is a very good case to do so.

Sedley further states - 'Grayling’s consultation paper appears not to comprehend that of the 11,000-odd judicial review claims which were initiated in 2011 but never came to trial, a substantial proportion will have been partly or wholly successful without need of adjudication. We know from the ministry’s own statistics that something approaching half of the legally aided claims were withdrawn or settled before a judge was asked for permission to proceed, ....'

Sedley concluded - 'In the round, judicial review is an economic and effective branch of litigation, performing a constitutionally critical role in keeping the exercise of public power within the law, and legal aid for it is for the most part money well spent.'

Other links:

Well worth reading is Francis Fitzgibbon QC's article - Judicial Activism

Transforming legal aid ~ Reaction ~ A few of the Tweets

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In no particular order, just a brief sample of the tweets which have appeared regarding the government's revised legal aid proposals.

Transforming legal aid - previous post

The revised proposals may be read HERE and are open for consultation but only until 18th October 2013.

If the majority of Criminal Legal Aid Firms have a profit margin of 6% at best it doesn't take a genius to work out that 17.5% cut =curtains
— Tim Thomas (@TimothyThomas79) September 6, 2013

Task for today - consultation response no.2. Proposals for duty work are devastating, PCT thinly veiled. Cuts are a joke. #SaveUKJustice
— Rachel Broughton (@MicroPP) September 6, 2013

Open letter to the Bar Standards Board http://t.co/z5W4v8STxO
— Paul Prior (@PaulSPrior) September 5, 2013

The abolition of legal aid for children in prison will give a blanket of secrecy to child abuse, says @francescrook: http://t.co/oMEwGhBEUZ
— CaoilfhionnGallagher (@caoilfhionnanna) September 5, 2013

@Queenofjustice Grayling lives off public money & he's having a handsome rise. The cuts are an affront & no one should contemplate accepting
— Michael Auty QC (@MichaelAutyQC) September 5, 2013

"Arbitrary, unfair residency test remains ... & most prison law cases remain excluded": @libertyhq on legal aid cuts. http://t.co/46d0dqFEsD
— Shoaib M Khan (@UK_HumanRights) September 5, 2013

Now had a look at #FailedGrayling 's new deal; 17.5% off already unprofitable work & 30% off the bit that kept us solvent. #SaveUKJustice
— Trevor Francis (@TopFraudLawyer) September 5, 2013

Grayling has listened on legal aid reform http://t.co/TRFgnpAOup >anyone else feel nauseous at rancid aroma of ego-trip? #saveukjustice
— Just Counsel (@JustCounsel) September 5, 2013

What we think about Govt response on #legalaid: key message: we won't give up the fight, this campaign is not over http://t.co/eeaUJ8mV0j
— YoungLegalAidLawyers (@YLALawyers) September 5, 2013

Transforming legal aid: what the government now propose http://t.co/2Y9hpfgbN6 via @legalaidhbk v useful summary and terrible civil cuts
— Ruth Hayes (@ruthilc) September 6, 2013

Legal aid cuts will still shut out torture victims http://t.co/mQ3mzr9mwJ

— LegalAidLink (@LegalAidLink) September 5, 2013

Transforming legal aid: Next steps ~ A new consultation ~ the fight for fairness is not over

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As mentioned in the previous post, the government has published revised proposals for transforming legal aid - Ministry of Justice - Law Society and MoJ agree new proposals for criminal legal aid.   The revised proposals may be read HERE and are open for consultation but only until  1st November (extended from 18th October 2013).

The estimable Crimeline has published a very helpful summary of the proposals, together with links to the various documents - details here.  Whilst there is much detail, some key features are that Price Competitive Tendering (PCT) has been dropped and, in its place, there will be two forms of contract: Own Client Contracts and Duty Client Contracts.  There will be no limit on new entrants / existing firms wanting Own Client Contracts.  Duty client contracts will be awarded on the basis of quality and capacity rather than on price.  There is to be a phased cut of 17.5% in fees with 8.5% in 2014 and the remainder in 2015.  For Very High Cost Criminal Cases there is a 30% cut in fees and also action is to be taken to reduce the use of multiple advocates in such cases (see consultation para 1.26).


There is much more - e.g. the consultation looks at two alternative graduated fee proposals for criminal advocacy (para 1.20).  There are some modifications to the earlier proposals relating to prison law (para. 1.23).  Further consultation is to take place regarding payment for the permission stages in judicial review (1.25).  There will be reduced representation fees for solicitors in family cases covered by the Care Proceedings Graduated Fee Scheme (1.26).  Further consultation will also take place regarding the impact of the roll out of 'Universal Credit' and also the introduction of the new Family Court from 1st April 2014 - (see para. 1.28).

The Law Society Gazette 5th September - This is best deal possible - reaction to amended legal aid plan

Legal Aid Handbook - Transforming legal aid: what the government now propose

'Explaining the Law Society’s approach to talks with the MoJ over the summer, president Nicholas Fluck said the two parties shared key objectives - to ensure the continued provision of high-quality legal services for those accused of a crime and to secure long-term sustainability in the criminal legal aid sector.   It is with these objectives in mind that we have agreed to the modified proposals,’ he said.  He accepted that criminal legal aid lawyers will still face a ‘challenging’ future, but said the revised plans offer ‘genuine opportunities’ for those firms who wish to continue to work in legal aid and pledged that the Society will work to support them through the changes.  Though challenging, today’s proposals represent the opportunity of a long-term sustainable future for many of our members working in criminal legal aid,’ he said.  No change is not, and has never been, a realistic option. The current market is ill-equipped to deal with the challenges of the future.’

Maura McGowan QC - Chair of the Bar Council - reacted by saying: 

"We were relieved to see that the Ministry of Justice has listened to the public and to the profession about the importance of retaining client choice. It is deeply regrettable that the Ministry does not appear to have moved on many other areas of justified and evidenced concern.

It remains the case that cuts to legal aid are the harshest in the public sector. The amount of money which the Ministry of Justice is seeking to save does not justify the consequences of these cuts. It is inevitable that this will impact heavily on the quality of both criminal and civil legal aid. The people who lose out the most are the public who rely on a justice system which operates efficiently in the public interest.

We shall study the paper carefully. Our response will aim to preserve the heart of the legal aid scheme that has played such a vital role in providing access to justice for all."


Liberty asked - Legal Aid: Is the tide turning?   They see the new proposals as an improvement but argue that 'the fight for fairness goes on.'  That must be so given that the revised proposals will operate very harshly in some areas such as prison law.

There is much to consider.  Whilst the demise of PCT is to be welcomed, the severe cuts to fees seem set to drive many criminal legal aid practitioners out of the market and the future of the independent criminal bar looks very bleak indeed.  The proposals are bound to result in further consolidation of the market in legal aid services provided by solicitor's firms.  The revised proposals are presented as an agreement between the Law Society and the MoJ and that leaves the Bar very isolated.  (Divide and rule comes to mind).

For now, I will leave the last word to the chairman of the Society of Asian Lawyers Sailesh Mehta who said that instead of an ‘instant and unfair culling’ firms will face a ‘slower and more lingering death’ for which they are ‘expected to give humble thanks’.  He warned that the reform package risked ‘irreparable damage to the justice system and a result’ that will result in miscarriages of justice.  The Society of Asian Lawyers reports that a loss of 2400 firms has occurred just in London over the last 4 years.  The proposals will reduce this further - (Footnote 1).

Footnote:

From the Society of Asian Lawyers website:

Four years ago, there were about 4,000 firms of solicitors who were entitled to offer legal assistance to those involved in the criminal justice system.  In London, a surprising 40% of such firms were owned or controlled by Asian and Black lawyers.  As a result of changes to the system over the last four years, the number has gone down from 4,000 to 1,600 firms.  A disproportionate number of those firms that have closed have been owned by Black and Asian lawyers.  The Grayling plan is to allow only 400 firms to continue.  We fear that of the 75% of firms who will lose the right to practice in criminal legal aid cases, a disproportionate number will be Black and Asian owned or controlled.  Such a plan will inevitably result in a diminution of competition, choice and quality of service.