Weekly Notes: legal news from ICLR — 14 January 2019

In this first roundup of the Hilary Term, we cover prisons, legal aid, immigration, courts and the legal profession.

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Photo: El Sol huye de esta prisión by Contando Estrelas via Flickr

Prisons

The government is proposing to abolish prison sentences of less than six months, on the basis that short jail terms are less effective at cutting reoffending than community penalties. The justice minister responsible for prisons, Rory Stewart MP, has told the Daily Telegraph that such sentences are “long enough to damage you and not long enough to heal you”. According to the BBC:

“If such jail sentences were to be scrapped, it is thought it could free up thousands of prison places. Some 30,000 criminals, including burglars and most shoplifters, could be spared jail every year under the proposals.”

This is not the first recent suggestion of such a change of policy. When appointed Lord Chancellor in 2010, during the more optimistic “honeymoon” period of the Coalition Government, Ken Clarke QC proposed reducing the use of prison for low level offending and boosting community sentences instead, but that policy was soon reversed by his successor, Chris Grayling MP. Since then, the prisons have lurched from crisis to crisis, with privatisation, overcrowding, riots and disturbances, fluctuations of policy and rotation of policy-makers all playing their part.

The belief that short sentences are a waste of time can lead to different and opposite policies. One solution, often supported by the press and by some who claim to represent victims’ interests, is just to make all sentences longer; the other (more or less opposite) solution is to seek imaginative alternative regimes that combine punishment with rehabilitation without risking turning an occasional low level offender into a hardened criminal. This assumes that both society and victims within it are confident not just of being reparated but also reassured that the risk of recidivism is reduced.

For more on this, see Penelope Gibbs, writing on her Transform Justice blog last April, Everyone admits short prison sentences are ineffective, so why do the courts still use them? Plus recent tweets by Danny Shaw, Matthew Ryder QC, and Andrew Adonis, and the responses thereto, among others.

There have been a couple of other recent developments in prison policy. One has been a project to install landline telephones in prison cells, which is designed to reduce reoffending by allowing prisoners to maintain relationships with their family. The MoJ have set aside a further £10m to extend this on-going project. According to a report in Public Technology:

“The landline devices will allow inmates to make calls to “a small number of pre-approved numbers”. Conversations will be recorded and, if officers suspect the phones are being used in criminal activities, can be monitored. Phones can be taken away in the event of misuse.”

The announcement by the Lord Chancellor David Gauke came in that interval between Christmas and the New Year when everyone’s thoughts are focused on the traditional ideal of family life, if they have it. He said, on 28 December 2018:

“At this time of year more than any other we’re reminded of the importance of family, and there can be few groups that this applies to more than prisoners. In-cell telephones provide a crucial means of allowing prisoners to build and maintain family relationships, something we know is fundamental to their rehabilitation. Introducing them to more prisons is a recognition of the contribution I believe in-cell telephones make to turning prisons into places of decency where offenders have a real chance to transform their lives.”

The development is part of the increasing use of digital technology in prisons, another example of which has been the provision of secure digital tablets using Socrates software developed to improve learning and rehabilitation without the risk of abusing the devices, eg to watch pornography or post images on social media. For more on this, see Russell Webster, Prisons go digital.

The other recent development related to the cell windows through which prisoners see a patch of sky and perhaps some other image of the outside world. Traditional bars are being banished in favour of toughened glass. According to the BBC:

Traditional prison window bars are to be phased out in England and Wales, under Ministry of Justice (MoJ) plans. New jails will instead be fitted with toughened glass and air vents. Ministers said the windows would be hard to break and better for stopping prisoners “accessing contraband”.

These developments are part of a generally revitalised prisons policy introduced last summer, in the hope of resolving problems in the prison service which have mounted steadily (or perhaps unsteadily) over the last decade or so. See, for example, the MoJ’s press release on 4 January, 10 prisons project gathers pace

Legal Aid

As criminal barrister Joanna Hardy pointed out on Twitter, the New Year saw a return of “the official season of trashing Legal Aid. Like clockwork.” Her thread goes on to explain the value of criminal legal aid in ensuring the justice system is fair. But the point about the seasonal trashing is also well made.

Shortly before the Christmas vacation, when tales of Scrooge and his Dickensian redemption from miserliness swarm the public consciousness, certain top legal personages made a point of complaining publicly about the miserliness of the MoJ and the gruelling cuts in its legal aid provision. A report in The Guardian revealed how both a former Lord Chief Justice, Lord Thomas of Cwmgiedd, and a former justice minister, Tom McNally, thought the draconian cuts had gone too far. Lord Thomas said:

“We have to restore advice and representation, otherwise we are undermining the rule of law. Without legal aid, people are being deprived of access to justice.”

According to the same report, the Ministry of Justice had the largest budget cuts of any government department between 2010–11 and 2019–20, and the number of litigants accessing legal aid has fallen by 82% over the last eight years. The report followed an earlier warning given by Lord Wilson, a Justice of the UK Supreme Court, that Access to justice under threat in UK by reason of the dismantling of legal aid, and a similar warning issued by the Bar Council at its annual conference, that Legal aid cuts are ‘huge threat’ to access to justice in UK. In another article in the Guardian, former Commons deputy speaker Nigel Evans, who spent his life savings defending himself against false accusations of rape and sexual abuse, said he would now vote against the legal aid cuts brought in by the Conservative-led coalition.

Also in December, as we reported in the last edition of Weekly Notes on this blog, BBC Shared Data Unit found that “Cuts to legal aid have created ‘deserts’ of provision across England and Wales”.

Meanwhile, a ‘post-implementation’ review of the effects of the ‘devastating’ cuts imposed six years ago by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has been promised and promised over the years but postponed and postponed by the MOJ. It was to have been delivered by the end of 2018 but now they are talking about sometime early in 2019.

In anticipation of which, you might expect a certain amount of ‘softening up’ of public views in anticipation of disappointment. Or do I mean hardening up?

Christmas comes and goes, the familiar Scrooge stories are reshelved, and lo-and-behold, the good old tabloid press start reporting stories about the widespread abuse of legal aid.

  • On 3 January the Daily Mail reported that Top lawyers slam legal system after speedboat killer gets £100,000 in legal aid to appeal his manslaughter conviction — despite being on the run
  • On 4 January the Sun joined in with Parents’ fury as their daughter’s killer uses legal loophole to challenge his conviction with taxpayer money — while on the run
  • On 5 January the Daily Mail reported how Supercar-driving director of one of Britain’s biggest legal aid law firms is ordered to repay £22 MILLION made from ‘thousands of FAKE claims’ — as three-year police probe is still ongoing
  • On 8 January the Sun reported about Killer handed £13,000 legal aid to pay for lawyers while victim’s family ‘beg for cash online’ and denied help
  • On the same day a Scottish newspaper, The Press and Journal, rang the same cracked bell north of the border, declaring Men who carried out Fraserburgh armed robbery given £30,000 in legal aid

All these stories repeat the same old memes about legal aid being syphoned out of the wallets of hardworking taxpayers to be ‘given’ directly into the hands of undeserving criminals or their crooked lawyers. Angry commentators on Twitter issue threads of debunking explanation, but these always seem to engage responses from persons of limited intellect and negligible following, who parrot even more extreme views than the tabloids about how lawyers are only in if for the money and anyone charged must be guilty and don’t deserve the luxury of a fair trial. It’s the predictability of the whole process that is so wearying.

So much for the tabloids. One might have expected better from the Spectator. But no, apparently not. All the old myths recycled yet again. The Secret Barrister tears into the ‘dishonest guff’ in a thread that can also be read here.

Rather more surprising was the reaction of the MoJ to attempts by a diligent reporter to research the effect of the legal aid cuts, as reported in Buzzfeed News.

Correspondence released following a Subject Access Request (SAR) revealed just what MoJ staff thought about Dugan, who (along with others, such as Penelope Gibbs of Transform Justice) had been pestering them with Freedom of Information (FOI) requests about the impact on the justice system of the rising number of unrepresented people in criminal court. After the MoJ released a 6-page summary report, claiming it to be all there was, the full version was leaked to Buzzfeed, revealing “explosive testimony from judges and prosecutors” about the devastating effect of the cuts.

“The subsequent [Buzzfeed] article included conversations and an email with an MoJ press officer who had insisted the previous week that this substantive report did not exist.”

Though much of the material released under the SAR was heavily redacted, the exchanges that remain are shocking, both as to the animus against Dugan (who was doing her job) and as to the priority towards covering up the research and briefing against further coverage or inquiry. “It’s shitty of her to quote the emails” … “Yeah she’s a real bitch” … “And a but crazy reallt [sic]” are among the comments made.

One wonders what they may have said about other FOI requesters, such as Penelope Gibbs, who had also been pursuing the leaked full report and who admitted in a post on Transform Justice: “I must be the bane of the Ministry of Justice with my endless FOIs (freedom of information requests). But asking nicely doesn’t always work.”

The cover-up of the full report was initially to have been subject to a criminal investigation but the ICO closed that in September for what it said was lack of evidence. Following the latest episode, the MoJ apologised and said it was conducting an internal investigation. It’s hard to be particularly confident about this, however, for obvious reasons.

In unrelated news, but interesting for comparison, a solicitor has been fined £5,000 and made to pay £8,000 costs by the Solicitors Regulation Authority (SRA) after calling a would-be client an “asshole”, “crazy” and “a certifiable nutcase” in correspondence with the man, his partner and the Society of Trust and Estate Practitioners (STEP). There is a full report of the case on Legal Futures.

Immigration

Over the festive lull or ‘chilly silly season’, with newsrooms rummaging for something to get excited about, the Home Secretary was ‘volunteered’ to cut short a holiday in sunny South Africa and fly home to declare a “major incident”. Because what? A few migrants were making it across the English Channel in inflatable dinghies.

One of those most in the know must be immigration lawyer Colin Yeo, of Free Movement, who had this to thread:

Conor James McKinney tweeted: “It’s sometimes said that asylum seekers flee France for the UK because the benefits here are more generous. @SAshworthHayes and I ran the actual numbers once and found that they are not.” As they noted in the linked article, “in fact the UK is the least generous of the countries we looked at.” See Full Fact: UK asylum support doesn’t go as far as France

See also:

Courts

Though reported as a major hiccup, the leaked decision of HM Courts and Tribunals Service to abandon the development, as part of its Common Platform, of a criminal case management tool and to retain, instead, the upgraded one already in use, may in the end be a sensible avoidance of what is idiomatically referred to as “reinventing the wheel”. Or not, as the case may be.

The story has emerged from leaked correspondence, reported by Gareth Corfield in The Register, and we await clarification as to exactly what bits of the existing system are to be retained. According to the Corfield’s report, the Common Platform Programme (CPP) was intended to replace “the existing HMCTS and CPS case management systems with a single system”. Instead, it appears that HMCTS have decided to retain the CPS case management system (CMS). That is not to be confused with the Crown Court Digital Case System (DCS), which is a separate system for judges, and which again might ultimately be either replaced or incorporated into the CPP. That would make sense, given that the overall ambition of the CPP was to have a single continuous system, like a conveyor belt, from the police and CPS through the courts to the prisons and probations services at the other end.

In any event, it’s rare for HMCTS to report or admit to things not going absolutely swimmingly in its massive (and massively hyped) £1bn+ Reform programme, though a number of commentators and parliamentary committees have kept up the scrutiny. Among them is Joshua Rozenberg, who will be giving his annual Gresham College lecture on the project on 21 February 2019: Justice Online: Are we there yet?

Meanwhile, the House of Commons Justice Committee has launched an inquiry into the access to justice implications of the Reform programme, including the increasing use of digital and video technology and the closures of courts and tribunal hearing centres. The deadline is 11th March.

A report of the first International Online Courts Forum (chaired by Susan Acland-Hood, Chief Executive of HMCTS (the court service) and Professor Richard Susskind, President of Society for Computers and Law) which took place in London last month, has now appeared on the Transparency Project website: see International Online Courts Forum: what we learned. This examines the HMCTS Reform in the context of similar developments in other jurisdictions around the globe, and finds that our own programme is both more advanced and more ambitious than in almost any other country. However, there are a number of aspects that require, if anything, even closer scrutiny, including the ethical and policy considerations of using artificial intelligence tools, the balance of fairness and convenience in digital justice, and the transparency implications of online and virtual court hearings.

Legislation

The Homes (Fitness for Human Habitation) Act 2018 was passed on 20 December 2018 and comes into effect on 20 March 2019. There is a useful summary of its provisions on the Nearly Legal blog: Fitness for Habitation — a thumbnail guide

On the same date, the Ministry of Justice announced that a “Trio of justice bills become law”. These are:

Prisons (Interference with Wireless Telegraphy) Act 2018

Civil Liability Act 2018

Courts and Tribunals (Judiciary and Functions of Staff) 2018

Legal profession

Lady Justice Rafferty recently took appellate counsel to task for what she called “long, rambling, waffling, warbling” grounds of appeal and a preference for archaisms and the passive voice (“it is submitted” etc). She was giving a speech at the Criminal Law Review conference in December about the development and editing of the Criminal Procedure Rules, which by statute must be “simple and simply expressed”.

The same requirement applies to the Family Procedure Rules, but as David Burrows recently pointed out, via the Bloomsbury Professional Law blog, they are certainly not clear enough to enable a Gillick-competent teenager to understand the rules and be in a position to insist on and instruct separate representation in a family court matter.

Perhaps the rule committee would benefit from a book, Clarity for Lawyers, by Mark Adler and Daphne Perry (The Law Society) recently reviewed on this blog.

They might also make a point of listening to family barrister Lucy Reed, chair of the Transparency Project and author of a guide for litigants in person, The Family Court Without a Lawyer, who is discussing The language of the courtroom with author Michael Rosen on BBC Radio 4’s Word of Mouth at 4pm on 22 January.

Case law

This is one of the Frequently Asked Questions that we answer in a new entry in the Knowledge section of ICLR.3. Find out when and where a case can be cited as an authority if it hasn’t been reported. Read the article.

ICLR News

Lady Hale PSC and other Justices of the Supreme Court joined the staff and reporters of ICLR for a reception at the UK Supreme Court on 18 December 2018 to mark the retirement of two of our longest-serving reporters, Celia Fox and Diana Procter, and to celebrate another successful year for ICLR.

The Editor, Clive Scowen, reported that for the first time the Weekly Law Reports had topped 10,000 printed pages in volumes 1 to 3, with over 420 cases, to which must be added another 160 cases in the online-only volume 4. Thanking all who had contributed to that success, he said:

“Without reporters we would have nothing to sell; without marketing we would not sell it; and without administration nothing would happen at all. So whatever your role in our success, thank you so much.”

Scowen gives up the editor’s chair (once occupied by Sir Frederick Pollock) at the end of 2019, to be succeeded by the current deputy editor of WLR, Brendan Wright. In rather sadder news, we have also lost the deputy editor of The Law Reports, Bernard Agyeman, who died suddenly towards the end of last year.

There have been some new appointments to fill the vacancies, and ICLR continues to recruit fresh talent. Law reporting is not for everyone: the encapsulation of the ratio decidendi of a case in a succinct headnote is a skill that seems to require a certain cast of mind and habit of thought, in addition to being qualified as a barrister or solicitor. We advertise from time to time, but if anyone is interested they should get in touch, eg by writing to the editor.

Dates and Deadlines

29 January 2019 5.30pm, Gresham College, London

In light of the Legal Blogging Pilot implemented through PD36J, The Transparency Project are running a CPD workshop for lawyers interested in brushing up their ‘transparency’ knowledge — whether with a view to taking part in the scheme themselves, or so they feel better prepared for responding to attendances by legal bloggers or journalists in cases where they are instructed. Click here for more information.

Recruitment opened on 14th December 2018 and closes on 1st February 2019.

Every year, the Law Commission recruits a number of research assistants to help make the law simple, modern and fair. Find out more about the work at one of their call-in sessions on Thursday 10 January (10:00–12:00) and Friday 11 January (14:00–16:00). More information about being a Research Assistant and a timetable of key events can be found in a Guide for Applicants.

To apply for one of the posts, click here.

Bristol Magistrates’ Court, 5:30pm 24 Jan 2019

Are you a legal professional working in the Bristol area? Come and find out how HM Courts and Tribunals Service are planning to improve the criminal justice system as part of their £1bn #CourtReform programme. According to the Eventbrite booking form:

“You’ll have the opportunity to learn more and ask questions about the progress and ambitions of the reform programme. Doors will open from 5.00pm and refreshments will be provided.

At this point we are inviting expressions of interest in attending the event in person. Please note that expressing interest in attending in person does not guarantee your place.”

Deadline: 4pm 22 February 2019

The WCWF has launched its 1500 word International Women’s Day Essay Competition ‘100 years on from the Sex Disqualification (Removal) Act 1919: What is the point of diversity within the legal profession?’ All entries will be read by an experienced panel including senior judges and barristers. Winner receives an Apple i-Pad sponsored by Albion Chambers, plus publication in ‘Counsel Magazine’ and on the Western Circuit website and an exclusive invitation to the WCWF Conference dinner on 8 March 2019.

For more info, see WCWF website.

Tweet of the Week

is from Jane Fae with an idea for legislation to solve the Brexit deadlock:

That’s it for this week! Thanks for reading. Watch this space for updates.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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