Weekly Notes: legal news from ICLR — 26 November 2018

This week’s roundup catches up with the current legal conference season, plus developments in legal aid, sentencing, restorative justice, data protection and domestic abuse.

Legal profession

A number of senior figures graced the annual Bar and Young Bar Conference in London over the weekend. Among them was David Gauke, Lord Chancellor and Secretary of State for Justice, whose speech has been published. It’s mainly about change — in the legal profession, and the legal system — and what the government is doing about it. He spoke about promoting diversity and about the extra funding for the courts and for legal aid, and about how technology was being harnessed to help the UK become a world-leading supplier of legal services.

Other speakers at the conference included Geoffrey Cox QC, Attorney General, Baroness Chakrabarti, Shadow Attorney General, Lord Sumption, Justice of the Supreme Court, Lord Justice Hickinbottom, Her Honour Judge Molyneux, and Susan Ackland-Hood, CEO of Her Majesty’s Courts and Tribunals Service.

According to the Law Society Gazette, Baroness Chakrabarti called for the Inns of Court to take back control of bar training, criticising ‘profiteering’ private sector providers. Geoffrey Cox issued a call for more barristers to take an interest in politics and holding high office.

Lord Sumption caused a bit of a stir on Twitter by suggesting that much of civil legal aid budget is ‘discretionary’ and not fundamental when compared to criminal defence:

“Supporting the cost of civil litigation may be desirable in cases where people are too poor to fund it themselves. But it is not fundamental in the way that criminal legal aid is fundamental.”

But he began by talking about his own career and how he came to the bar, having decided to abandon an academic teaching career.

I wanted to be self-employed. I am constitutionally unfit to be an employee. I resent hierarchy. I am bad at taking instructions. And I talk too much. The Bar is a good profession for people like that.

Much had changed since he began, notably the relationship between the barristers and solicitors (which had become one of mutual respect) and that between barristers and the state (which was one of mutual suspicion). It was in the context of the latter that he made his remarks about legal aid, and about how the bar had doubled in size during the ‘golden age’ of the 1970s and 1980s, and was now shrinking again in response to legal aid cuts. His point about criminal legal aid being fundamental included a point, not widely reported, about the scandalous ‘innocence tax’. Lord Sumption said:

A court system which leaves criminal defendants to face the state’s prosecutors with no, or no adequate representation, is not a functioning court system. A court system which leaves defendants to foot the bill for their defence when the state has failed to prove its case against them, is not a functioning court system.

Lord Sumption also regretted the declining attractiveness of the judicial career to the high-flying barristers who had traditionally been drawn to it, which he blamed on lack of public and government respect for the judiciary. This was bad for the profession as its senior members remained at the Bar, blocking the advancement of more junior members, which depriving the bench of the brightest and best recruits. (His own appointment to the bench was hardly typical, but perhaps it did allow for one or two younger barristers to work for the rich commercial clients he formerly represented.)

His speech has now been published in full.

Legal Aid

Well, supposedly. Timed no doubt conveniently to go with (or against) the simultaneous Bar Conference and Criminal Bar Association winter conference, the Ministry of Justice announced on Saturday morning that “The government will spend an additional £23 million on fees for criminal defence advocates following consultation with the Bar.”

In fact, as the Secret Barrister explained in a thread of tweets now recast as a blog post, this was only £8m more than the earlier, conveniently forgotten promise of £15m over the summer, and still didn’t represent more than a drop in the ocean of what had been cut from budgets for criminal legal aid. That earlier figure was widely regarded as inadequate, so it appears that the MoJ went back for another rummage down the back of the sofa and came up with some more loose change. Or as they put it:

“ We have acted on the views we have heard during our engagement with the Bar and will increase spending on criminal advocates’ fees by £8 million, bringing the total increase to £23 million.”

The Secret Barrister was not impressed:

The Advocates Graduated Fee Scheme, which pays defence advocates in legal aid cases, has been cut relentlessly over recent years. As has the overall criminal legal aid budget. As has the overall legal aid budget. As has the overall MoJ budget. Approx 40% across the board.

The extra cash for the AGFS would “help smooth some of the rough edges in the scheme” but could not compensate for a decade of cuts.

Junior criminal barristers will still be covering all-day hearings for senior colleagues and taking home less than £40 for the privilege. We will still have trials that we’ve spent days preparing randomly refixed by the court for dates we can’t do, and will be paid £0. We will still be paid not a penny to read through thousands of pages of disclosure — the vital material that could hold the key to saving an innocent person from years in prison.

Crime

Tying in with the Europe-wide marking of Restorative Justice Week 2018 (18 to 25 November) the Parole Board released two guides about Restorative Justice (RJ), produced in collaboration with the victim’s charity, Why me?

In his fourth monthly post on the Parole Board blog, its CEO Martin Jones, explained the thinking behind the two guides:

“The initiative for this work came from two very brave women, who were the victims of serious offences. Through RJ, they had both met the men who had been convicted of the offences, and had found the process helpful. They wanted to meet me because they were keen to discuss whether Parole Board members understood RJ and how it works, so that members could make well-informed decisions about the potential relevance RJ may have on parole decisions.”

The blog discusses a number of other recent developments relating to victims and their involvement in the punitive and rehabilitative process. The RJ leaflets are:

Restorative Justice Information Sheet for Parole Board Panel Members

Parole Board processes Information Sheet for Restorative Justice Facilitators

An example of restorative justice at the determination stage, i.e. in place of a traditional adversarial trial, was discussed on Law in Action last week. The Red Hook Community Justice Centre in Brooklyn uses a procedure derived from a Native American form of dispute resolution, in which antagonists, witnesses, family members and mediators sit in a circle and only speak when in possession of the ‘talking stick’. (This symbolic item, which suggests an alternative use for the risibly misunderstood gavel, is also reminiscent of the conch shell in the Lord of the Flies. Perhaps not the best example of even-handed deliberation.)

Law reform

The Law Commission has released a report on its proposal for a Sentencing Code to replace the myriad provisions dotted about the statute book setting sentences for particular offences. According to the report,

“the law governing sentencing procedure is complex, difficult to locate, and difficult to understand, even for experienced judges and practitioners. This means that errors are frequently made when the courts impose a sentence.”

“The problems do not merely increase the risk of error, however. The difficulty faced by those who need to locate, interpret and apply the law places an unnecessary burden on the criminal justice system.”

“The introduction of the Sentencing Code will, for the first time, provide a clear and coherent structure to the law governing sentencing procedure, as well as re-stating the law in a more certain and accessible manner. It will simplify the task of a sentencing judge, making it easier to locate and apply their sentencing powers and duties.”

It is important to note that the Code would not change the severity of existing sentences, nor would it replace sentencing guidelines on how sentencing for particular types of offences should be conducted. It would simply collect together in one place all the separate sentencing provisions, which would henceforth be found in the Code instead. Changes to sentences for particular offences would be enacted by amending the code, not the statutes that created the offence.

The Lord Chief Justice is, apparently, a fan of the idea:

If it goes ahead, it would certainly provide a superb opportunity for an adventurous publisher to create an annotated edition of the code.

Read the full report PDF (Law Com No 382).

Data Protection

The Privacy and Electronic Communications (Amendment) Regulations 2018 (SI 2018/1189), which come into force on 17 December, will give the Information Commissioner’s Office (ICO) the ability to fine directors, and other senior people within corporate bodies, if it has also served a fine on their company, and if the contravention happened either with the “consent or connivance of” or was “attributable to any neglect on the part of” the director.

Jon Baines of Mishcon de Reya reports that this closes a loophole which enabled directors of companies that infringe the relevant provisions of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), to escape personal liability for any fines imposed on the company, and in many cases to close down the company and set up a similar (‘phoenix’) entity carrying on in its place. Now, even if the companies don’t pay up before they are folded down, their directors could face similar penalties enforced against them personally. Welcoming the amendment to the Rules, Baines says:

“The potential fines for directors will be to the same maximum of £500,000 as they are for the companies themselves. As the ICO has long lobbied for this extension to its regulatory powers, it is to be expected that we will soon see examples made. So those directors who knowingly or negligently allow their companies to send unlawful electronic marketing should be looking over their shoulders.”

According to the explanatory note to the Rules,

“These amendments are intended to ensure that the penalty regime for breaches is “effective, proportionate and dissuasive” as required by Article 15a of Directive 2002/58/EC, as amended by Directive 2009/136/EC.”

Courts

The government agency responsible for running the courts has announced, proudly, this week that its Professional Entry Scheme, “designed to reduce queues and grant legal professionals easier access to court buildings”, is to be tested at five new courts, namely:

  • Chester Crown Court
  • Nottingham Crown Court
  • Portsmouth Combined Court
  • St Albans Crown Court
  • Swansea Crown Court

The development of the court pass scheme, which must be a relatively straightforward business, appears to be taking an awful long time to roll out. The pilot was first announced back in August and has been running since September. It appears to be confined to barristers, since it depends on an app developed by the Bar Council that gives its members a digital ‘id card’, which can be scanned by Court Security Officers. According to HMCTS:

When the pilot completes in December, we will evaluate it. If successful, the scheme will be extended nationally and could be extended to other professional groups.

Presumably that would mean a separate app from the Law Society and another from Cilex, though there has been talk of ‘mere’ ID cards for solicitors. (Discrimination! the cry went up.) Court staff already have their own passes, as do the judiciary. But what about other professionals, who routinely have to appear — the police, social workers, phycologists and probation officers? What about media representatives who routinely attend court? Are they all going to have an app, or will a bog standard photo-ID pass be enough? And what if the pilot is not successful? (Is it really a pilot, or just a delaying tactic?)

Meanwhile, complaints continue to circulate about the treatment of lawyers attempting to gain entry to courts around the country in order to present cases on behalf of their clients. First, a man was asked to undo his belt and roll down his trousers; then a woman was asked to “spread [her] legs” to assist a security search.

You wonder how far these indignities will go (from sip test to strip search?), and what sort of training the security staff are getting. However it is worth bearing in mind what HMCTS is up against in managing court security and why it might need to be so heavy handed. According to the CEO of HMCTS, Susan Ackland-Hood, speaking at the Bar Conference over the weekend, “Thousands of knives are removed every year from people entering court buildings”. Her address to the conference is faithfully reported by Catherine Baksi on Legal Futures:

“8,000 knives had been confiscated in 2017 and that 5,000 had already been removed this year. [Ackland-Hood] accepted that barristers had not been carrying weapons, but said she could not ask security staff to work on the basis that ‘people look OK’ and to check only members of the public.”

Perhaps the idea of “knives” being brought into court needs some context. For example, my own knife was confiscated by the UK Supreme Court security on a recent visit. I had forgotten that I had in my bag a Swiss Army penknife whose biggest blade was 4 cm long and which I use mainly for the scissors attachment, the small screwdriver blade, and the tweezers. (It was returned to me on my leaving the building.)

HMCTS have also announced that, as part of the grand refurbishment of Liverpool’s Civil and Family Court centre, an extra £5m will be lavished on the Personal Support Unit there. Actually, that’s not quite what it says, and it just shows how carefully one needs to read these announcements. Under the heading “Vulnerable court users to benefit from £5m government investment” it states

“Liverpool court users in need of support will be able to access greater guidance and help at the city’s Civil and Family Court following £5m of government funding. The investment will allow for more people to be supported in a safer, more comfortable environment and is part of HMCTS’ commitment to improving the condition of court buildings and access to justice for all users.”

The announcement goes on to list the better, more spacious facilities that will be provided for the PSU, but says nothing about funding of its work. So it’s just the better facilities, and £5m seems a lot for that. Could it be that £5m has been spent on the court as a whole (as part of the wider court modernisation programme — see below), but the better facilities for the PSU was the most eye-catching way of flagging that up?

And why, incidentally, describe all litigants in person (LIPs) who seek support from the PSU as “vulnerable”? Some of them may be, but others are just needing a bit of help following the confusing rules of the court procedure game. And while the PSU cannot give legal advice, only practical support, the main problem facing LIPs is the fact that legal aid has been cut to such an extent, that in many cases (particularly private law family disputes) they cannot get advice from properly qualified lawyers.

The state of the courts (many seriously dilapidated) was one of the topics of the Lord Chief Justice’s evidence to the Commons Justice Committee on 20 November 2018:

“We have a lot of very poor buildings indeed. The condition of the estate feeds into difficulties at every level. First, and importantly, it seems to me completely unreasonable to expect members of the public who have to visit courts for all sorts of reasons to have to put up with dilapidated and uncomfortable buildings, and buildings that are, frankly, an embarrassment, as I have put it before. Secondly, it is not reasonable to expect the staff of HMCTS and other public servants who have to work in the courts to endure those conditions. Neither is it reasonable to expect the judges to do so.”

He discussed efforts to remedy the situation, as well as the more ambitious plans and interim achievements of the current massive £1bn+ courts modernisation programme, HMCTS Reform.

Part of this involves developing online courts. Lord Burnett observed:

“There is another aspect, which I very much hope we will see come along before too long, which is that which deals with the online rules committee. One of the aims of the modernisation programme is to have common rules covering all online processes. To achieve that efficiently, we need an online rules committee. Work is being done in the background to think around the sorts of rules we would need. We have three different rules committees — civil, family and tribunals — all of them, of course, fiercely independent, as they must be. Inevitably, getting the same result from three different rules committees will be much more difficult than having just one rules committee. That is one aspect of it that I very much hope the business managers — subject to all the pressures that we all know Parliament is under at the moment — and we will see come back.”

It’s not immediately obvious why the different rule committees, whose aim is to achieve common rules, should be ‘fiercely independent’, but perhaps that does result in better scrutiny of new rules and practice directions.

You can also watch Lord Burnett’s evidence on video:

Family

This panel discussion, at Gresham College in London on 22 November, was hosted by the Transparency Project to mark the launch of their new guidance note, How do Family Courts deal with cases about children where there might be domestic abuse? The event was chaired by journalist Louise Tickle and the panel comprised Mr Justice Keehan, Sarah Parsons of CAFCASS, family barrister Sam King QC, psychologist Dr Freda Gardner, Olive Craig from Rights of Women and Bob Greig from Only Dads / Only Mums.

After a brief introduction from each of the panellists, they responded to questions from the floor and some posted in advance. The main topic of domestic abuse was considered in relation to coercive control, alienation, expert evidence, preventative measures, support for perpetrators, the voice of the child, the differences between public and private law proceedings, Family Drug and Alcohol Courts, and the availability of legal aid following cuts. Despite the subject matter, the discussion was polite and respectful.

The event was live tweeted under the hashtag #TPtalksDA and filmed on video. It will be more fully written up on the Transparency Project website, where you can also find the new guidance note. It is intended to help parents and those who support them to navigate the family court system in domestic abuse cases, and in particular to understand the particular processes and expectations in cases where issues of domestic abuse are raised.

Meanwhile, in Bristol, the Association of Lawyers for Children were holding their 29th annual conference under the title Crisis; What Crisis?

The title was a reference to the Care Crisis Review published by the Family Rights Group (FRG) into the massive growth in the number of application by local authorities for care or supervision orders in relation to children across England and Wales. However, in his keynote speech the new President of the Family Division, Sir Andrew McFarlane, preferred to avoid the word ‘crisis’ and to discuss, instead, what he saw as a ‘workload challenge’. He duly set out his stall:

“For my part, as the new President, my Number One priority is plainly to understand not only this unprecedented rise in the number of care cases, but also, the current high volume of private law children cases where parents, many of them now acting as litigants in person, seek orders from the court as to the arrangements for their children. I have, therefore, embarked upon a tour of visits to every single Designated Family Judge court centre in England and Wales.”

He also discussed the increase in incidence of domestic abuse in the context of this rise in volume. But, he said, the increase might have more to do with an increased readiness by some local authorities to treat cases as requiring the court’s involvement, rather than an underlying rise in the cases themselves. Whatever, the reason, “the system … is attempting to work at, and often well beyond, capacity”. He discussed a number of proposal including the idea of ante-natal court process in relation to those babies who are, often, sadly, removed shortly after birth, often from mothers whose previous children had already been removed. There was also a need to address the sometimes unrealistic expectations of what the court could achieve in private family law conflicts over children, which were also on the rise, and usually involved unrepresented litigants (LIPs) whose cases, consequentially, took longer.

ICLR Knowledge

The latest article to be added to ICLR’s growing Knowledge section is a guide to all the various series published at various times by ICLR, alongside the abbreviations used as their publication references in citations. The article also explains how cases are conventionally cited in common law jurisdictions.

Check out the Knowledge section for reference materials on the legal system, case law and legislation. Suggestions for articles or glossary items always welcome, either via our social media accounts (Twitter, Facebook and LinkedIn) or by emailing us at enquiries@iclr.co.uk.

Dates and deadlines

Leeds, 3rd December 2018, 5pm to 7pm

The topic for this year’s debate is the use of covert recordings in family law. The motion reads: ‘Nothing to hide — what’s wrong with covert recordings?’

The event will be chaired by Lord Justice Baker, Lord Justice of Appeal and Deputy Chair of the Family Justice Council. Speakers will include Lucy Reed, barrister and Chair of the Transparency Project; Hannah Markham QC; Judge Mary Lazarus; and Debbie Singleton, Director of Legal Services, National Youth Advocacy Service (NYAS) and Treasurer, Association of Lawyers for Children (ALC).

For further details and to apply, click here.

Institute of Advanced Legal Studies , Council Chamber— 4 Dec 2018, 18:00 to 19:30
The mark the republication of Women and the Law by Susan Atkins and Brenda Hoggett (now Lady Hale, President of the Supreme Court) as an open access edition in the IALS Open Book Service for Law, the Institute is holding an event with the authors. The conversation will be hosted by Professor Fiona Cownie, followed by a panel discussion chaired by Professor Diamond Ashiagbor (University of Kent and IALS) with speakers discussing the lasting impact of the original work on their own thinking, careers and lives.

The event is free but advanced booking is essential.

Tweet of the Week

Baby Barristers on parade: wigged, gowned, called…

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.

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.