Wednesday, 22 June 2011

The "Legal Aid, Sentencing and Punishment of Offenders Bill" - A Quick Glance - a lot to look at and much unhappiness

With additions

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:
A quick glance at some of the clauses:  Some of the instantly striking features of the Bill are:

The Bill will enact an entirely new scheme for legal aid.  Present arrangements under the Access to Justice Act 1999 will be replaced.  The Legal Services Commission will be abolished and administration of legal aid transferred to an executive agency within the Ministry of Justice.  There is to be an official known as the Director of Legal Aid Casework who will be responsible for the decision-making about legal aid in individual cases.  This will raise concerns about the executive agency's actual degree of independence from government.

Ideas - which were not implemented - in the Criminal Justice Act 2003 will be repealed.  These include "Custody Plus", "Intermittent Custody" (only briefly trialled) and the increase in Magistrates' Courts sentencing powers.  

Part 3 Chapter 6 contains amendments to the legislation under which police constables may issue a penalty notice for disorder and authorised persons may give conditional cautions. This includes the introduction of a penalty notice with an education option and provision for conditional cautions to be given without the need to refer the case to the relevant prosecutor. The amendments also allow new types of conditions to be attached to a conditional caution given to a foreign national offender without leave to enter or stay in the United Kingdom. The Chapter creates a new kind of youth caution. It also makes amendments to youth conditional cautions by making them more flexible.

Part 3 Chapter 7 creates new offences relating to threatening with weapons in public and threatening with a blade or point of offensive weapon.   There will be a minimum sentence of 6 months imprisonment for persons over 18 found guilty of these new offences (unless this would be unjust in all the circumstances).

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

: Clause 114 - Henry VIII is alive and kicking :   

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.

Conclusion:  This Bill is likely to take quite some time to pass through Parliament.  There will be significant amendments and the inevitable additions.   A more detailed look will follow.  In particular, the civil legal aid provisions are harsh.  There is a lot to look at and much unhappiness!

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"


    1. During yesterday's mamouth statement by Kenneth Clarke, Sadiq Khan raied the issue of the title of the Bill having been changed.

      I agree with your statement: "This Bill is likely to take quite some time to pass through Parliament".

      Perhaps, this Bill should instead have been 3 separate Bills?

      In any event, I feel that given the vague wording of Part 3, Chapter 5, that this section should be a separate Bill dealing with real work for prisoners for real wages. I don't suppose prison governors will like the idea of becoming tax collectors for the government.

    2. It's no surprise that the extra sentencing powers will be repealed - at the 'Breaking the Cycle' open consultation meeting I attended the MoJ policy-makers specifically said that unactivated clauses in CJA 2003 were on the hit-list, and it didn't take much imagination to put two and two together. Whatever the politicians say, the MoJ policy chiefs intensely dislike the lay bench and any increase in its powers would be anathema to them.

      On an associated point: 'Henry VIII' powers seem to me to circumvent the will of Parliament for political expediency. The extra sentencing powers for magistrates are a case in point in reverse, if you will - Parliament voted for them, but the Secretary of State sat on them. How can that be right?

    3. The present Lord Chief Justice is on record as asking Ministers not to enact more "Henry VIII powers." They are not listening to him. Ministers love these powers. More power to their elbow. The Guardian 15th July 2010 and see also UK Human Rights Blog.

      The fact remains that the executive has excessive control over Parliamentary business and these clauses, tucked away in the smaller print of a Bill, frequently get enacted.

      The other point relates to commencement orders. Parliament enacts something but leaves it to Ministers to actually bring it into force using a commencement order. This device certainly enables Ministers to avoid implementing things which either they or their officials dislike. It is up to Parliament to press Ministers as to why they did not implement things. However, I don't suppose for a moment that much will be said about abandoning the increase in magistrates' courts powers. Without a serious revisting of legal aid provision in the magistrates courts, the proposals ought not, in my view, to have been implemented anyway.

    4. I agree that clause 114 reflects a dangerous trend in the way government acts to override legislation passed by parliament.

      I am not so sure that it will "have significant impact on the powers of Magistrates' Courts". What in particular, and in practice, do you think might happen in this respect ?

    5. The drafting of Clause 114 is not the clearest I have ever seen. It looks as if Cl 114(3) enables Ministers to make offences imprisonable on summary conviction and also to make the maximum sentence under 6 months.

      In fact, Cl 114 is similar (but not identical to) CJA 2003 s.283 (which has not been implemented and will be repealed).

      The Lord Chancellor will - by Cl 116 - have almost full control of when this Act comes into force. Thus, Cl 71 will be implemented at his discretion. As he makes each change, he will be able to use Cl 114(3) to alter the sentencing powers.