Introduction: On 21st June, the Secretary of State for Justice and Lord Chancellor (Kenneth Clarke QC MP) introduced into Parliament his Legal Aid, Sentencing and Punishment of Offenders Bill. Along with the Bill, explanatory notes are also available. The Bill has 119 clauses and 16 Schedules.
Parts 1 and 2 of the Bill deal, respectively, with Legal Aid and Litigation Funding and Costs. Part 3 - which divides into 7 Chapters - deals with Sentencing and Punishment of Offenders. Part 4 includes some "Final Provisions." There are then 16 schedules.
The 7 Chapters in Part 3 are entitled: (1) Sentencing; (2) Bail; (3) remands of children otherwise than on bail; (4) Release on Licence; (5) Prisoners etc; (6) out of Court Disposals; (7) Knives and Offensive Weapons.
Prior consultations: At this stage, it should be noted that the Bill builds on three consultations:
- Proposals for the reform of Legal Aid in England and Wales - November 2010
- Proposals for the reform of civil litigation funding and costs in England and Wales - November 2010 - (based on Lord Justice Jackson's Report)
- Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders
It will become possible for Penalty Notices for Disorder to have an "education condition" attached requiring the person to attend a
course aimed at reduction of offending. (Similar arrangements already exist for fixed penalty notices relating to speeding). Much more controversially, the requirement that a conditional caution may not be issued without reference to a Crown Prosecutor will be abolished. Currently, the Crown prosecutor has to decide if there is sufficient evidence. This will enable the Police to judge for themselves whether there is sufficient evidence. However, before a conditional caution may be issued, the person will still have to admit the offence and consent to the caution.
Some ideas - such as the 50% discount for guilty pleas - do not appear on the face of the Bill. Given the potential of this to save money, one wonders whether it might re-appear in another guise. However, the appearance given by government is that this is one idea which the Prime Minister was not prepared to go along with for political reasons - The Guardian 8th June.
This clause contain Henry VIII powers enabling Ministers to alter the maximum sentences available for certain offences. See the clause. The clause is hidden away in Part 4 "Final Provisions." This will have significant impact on the powers of Magistrates' Courts.
A further "Henry VIII" power is Clause 8(2) which will enable the Lord Chancellor to alter the scope of civil legal aid by omitting services.
Other comments: The Defence Brief - Are further restrictions on your rights coming? This is an excellent look at Clause 12 of the Bill relating to initial advice and assistance at Police Stations. There seems to be little doubt that Clause 12(2) brings in an "interests of justice" test of some sort. Currently, there is entitlement to free advice in the police station for those arrested. For minor cases this may be telephone advice and, for more serious matters, a lawyer at the police station for any interview.
See also UK Human Rights Blog - Adam Wagner - with additional links to blogs making further comment.
Solicitor's Journal 21st June 2011
Justice - "Legal Aid Reform: danger of 'economic cleansing' of the civil courts"
The Guardian 22nd June - "Kenneth Clarke is buying time for prison sentencing reform"
The Guardian 23rd June - "Dismay at response to legal aid consultation" - Young barrister's committee
The New Statesman - David Allen Green - "Legal Aid and Civil Justice"