Judicial review: family legal aid tendering

Legal Aid in family cases - judicial review

Given the complexity of family law and practice, the provision of legal representation is crucial.  The Law Society has applied for a judicial review of the tender process used by the Legal Services Commission for provision of legally aided family law services.  The Law Society's skeleton argument may be read here. 

The Law Society point out that the outcome of the tender process is a reduction in law firms permitted to provide family legal aid services from around 2400 to 1345.  A large number of experienced family lawyers in England and Wales will be precluded from providing essential family legal aid services from 14 November 2010 onwards.  This outcome will have serious adverse consequences for effective access to justice for family law clients .... , including some of the most vulnerable groups in society, such as women and young girls who are victims of domestic violence and forced marriage, and children caught up in domestic abuse and care proceedings."

This situation is a disgrace to justice in England and Wales and it is to be hoped that the Law Society are successful in this review and that a more reasonable outcome eventually results.  Families simply cannot be expected to represent themselves in serious matters such as care proceedings which could result in children being removed from the family.

See also Solicitors Journal - the judicial review is to be heard by Moses LJ and Beatson J.

Review of family law - The government are conducting a review of family law - see here.  Person wishing to contribute to the consultation must do so by 30th September.

Speech by Lord Justice Wall - President of the Family Division - "Is the family justice system in need of review?"

Maximum sentence for dangerous driving is 2 years imprisonment ...

The maximum sentence of imprisonment for dangerous driving is 2 years.  It is not enough as this case shows - Daily Mail 23rd September 2010.

Prisoners and the right to vote

Voting for prisoners has now moved up the government's reform agenda.  The idea is unpopular in some quarters because there is a view that those serving sentences of imprisonment have lost the moral right to participate in the government of the country.  However, the government must act because of the stance adopted by the European Court of Human Rights and the concern expressed by the Council of Ministers that the U.K. has delayed implementation of the court's rulings.  A useful document produced by Parliament looks at this issue in depth - see here.  A previous post on this blog may be read here

The U.K. is bound, as a matter of international law, to implement decisions of the European Court of Human Rights.  In recent times compliance has sometimes been avoided by various methods such as putting the matter out to consultation etc.  [There have been two consultations on prisoner voting].  In other cases, compliance is to the minimum level which Ministers think they can get away with.

Further information is available on the Prison Reform Trust website.

A unified judiciary ... and why not use the local town hall ...

The government is planning to bring the tribunal judiciary in England and Wales under the overall leadership of the Lord Chief Justice.  This will be in addition to the planned merger (by 1st April 2011) of Her Majesty' Court Service and the Tribunals Service.  The aim is to have a unified judiciary encompassing the courts and tribunals.  The powers of the existing Senior President of Tribunals will transfer to the LCJ and a new office of Head of Tribunals Service will be created.  Primary legislation is required and a bill will be introduced as soon as parliamentary time is available.  See Ministry of Justice.

The Local Government Association is suggesting that town halls be hired out for use as courts.  It is claimed that this will increase the speed of justice.  See LGA and also  The Independent 18th September 2010. 

Cllr Mehboob Khan, chair of the LGA’s Safer and Stronger Communities Board, said:


”Councils already own a number of buildings, available for community activity.  Many town hall chambers would provide the perfect setting for court hearings, with some having existing courtroom facilities.  Local authorities are well aware of the sensitivities of keeping victims and witnesses safe.  Although specialist courts are needed in some cases, in the vast majority of court cases, council buildings would be more than adequate.  It would certainly overcome the problem for rural communities and could maybe provide a boost for council budgets if hire costs were considered.”

Hardly a surprising move from cash-strapped local councils but will government pay to hire a building when the whole objective of closing down local magistrates' courts is to save money?  Historically, many magistrates' courts used to be located in town halls - e.g. Bradford, Yorkshire, Huddersfield etc. - but those courts were closed down and replaced by purpose-built magistrates' courts.

Magistrates Powers

The Magistrates' Association represents over 28,000 Justices of the Peace who serve in the Magistrates' Courts in England and Wales.  The U.K. is very unique in the extent to which non-lawyers participate in the criminal justice system and the late Lord Bingham of Cornhill referred to the magistracy as"a democratic jewel beyond price".  The Association has recently expressed views on a number of topics: 

Making sure community orders work - on this, the association is absolutely right.  They argue that community orders can be a very effective alternative to a short term custodial sentence if they are robust, effectively planned, properly managed and supervised.   Unpaid work provides visible evidence that an offender is making retribution and affording benefit to the local community for their offending behaviour.  The bold and underlined words are my emphasis but, unless those conditions are met then there can be no public confidence in this form of sentencing.  In particular, this form of sentencing is "labour intensive" in the sense that offenders have to be managed by people who are appropriately skilled and trained.  (Interestingly, a new blog looks at Probation work - see here).  On 16th September, ITV's Tonight programme took a seriously critical look at what actually happens on some community sentences and the findings are disturbing.

Magistrates Association astonished at unpaid fines total - In July 2010, the Audit Commission reported that £1.3 billion was owing in unpaid court orders for confiscation, compensation, fines and costs.  As the association points out - "Criminals will rejoice that they can retain the proceeds of their offending behaviour despite court orders".  Yet again, we see government pressuring the courts to use the fine as a sentence but there is a serious need to consider how the various powers to enforce fines actually operate.  Magistrates' Courts are unable to commit a defaulter to prison unless (a) there is "wilful refusal or culpable neglect" to pay and (b) all other methods of enforcement have been considered.  

Cases sent to Crown Court - The Association is pressing government to implement Criminal Justice Act 2003 s.154 which would increase the maximum sentence available in a Magistrates' Court to 12 months imprisonment.  This echoes concerns expressed by Lord Justice Leveson (Chairman of the Sentencing Council) that some 18-20,000 cases a year are sentenced in the Crown Court but the offender receives no more than could have been handed down by the magistrates.  In part, this statistic arises from the fact that legal aid has been more readily available in the Crown Court than in magistrates though Crown Court Means Testing has now been introduced. 

The Association goes on to make a number of "recommendations" including one that the government should examine the rights of defendants to elect jury trial for either-way offences.  This is a controversial topic and, in making the suggestion, the association does not appear to consider the basic and highly important rights of the citizen which include a right to trial by jury for certain cases.  In the past, there have been various attempts by Ministers to whittle down the right to trial by jury and they have been rejected - usually in the House of Lords.   Do either the economic climate or sectional interests such as those of magistrates trump the democratic rights of the citizen to jury trial in those cases where a person's good name is at stake?

On the topic of greater sentencing powers see Solicitor's Journal.

Addendum - 19th September: "Former soldiers could make community service tougher for offenders" - The Guardian.  It appears that 3 private companies have been approved by the Ministry of Justice to tender for "community service" programmes.  Also, it appears that "privatisation" of some 10 prisons is being considered.

Addendum - 23rd September: "Magistrates in doubt as summary justice rises" - Telegraph 21st September.

Rehabilitation of Offenders - (1) Overview

Probably most people would agree that offenders ought to be given the opportunity to rehabilitate themselves into society.  Nevertheless, a balance has to be achieved between the rehabilitation of the offender and public protection from those who have offended and might re-offend if placed in certain situations.  In passing the Rehabilitation of Offenders Act 1974, an attempt was made to achieve such a balance.

It is a complex scheme in which the length of the rehabilitation period depends on the length of sentence imposed and not on the offence for which it was imposed.  Those offenders sentenced to more than two and half years imprisonment will never have that conviction "spent".  Those sentenced to two and half years or less may have their conviction "spent" once a rehabilitation period has been successfully completed (i.e. usually without further conviction in the period).  For some purposes, set out in an "Exceptions order", convictions which attracted even those shorter convictions never become spent.  There are also differences between the scheme applicable to adult offenders and that for young persons who have offended.

Convictions for recordable offences are put on to the Police National Computer and will usually remain there long after they have become "spent" under the 1974 Act.  The Association of Chief Police Officers (ACPO) has issued "guidelines" about the retention of records.

In 2001, Jack Straw announced a review of the 1974 Act .  In 2010, the workings of the Act are again being questioned and NACRO has launched a campaign aimed at persuading MPs that the law is in need of reform.  In particular, the rehabilitation periods are considered to be too onerous and operate to prevent people getting employment.

The workings of the 1974 Act scheme must also be considered in relation to the various types of CRB checks and the various forms of "disclosure" are explained in the CRB Code of Practice   See also the Vetting and Barring Scheme.

Further information about the Act may be read at Your Rights , at Prison Reform Trust and at Criminal Records Bureau.

This makes for a very complex situation and several aspects of it require more detailed consideration which I hope to do in some future posts. 

Is this scheme as unfair on former offenders as NACRO are suggesting?  I suspect that they are right.  The considered views of readers will be more than welcome.

Parliamentary expenses and privilege: Supreme Court hearing expected

An appeal by the three former MPs charged with offences relating to parliamentary expenses is likely to be heard by the Supreme Court.  It appears that the point of law to be determined is - "Does the crown court have the jurisdiction to try an MP in relation to allegations of dishonest claims for parliamentary expenses or allowances, or is the court deprived of jurisdiction by article nine of the bill of rights 1688 or the exclusive jurisdiction of parliament?"  Law and Lawyers previously reported on this case here, here, here and here.  See The Guardian 14th September 2010.

Addendum 15th September: - CharonQC takes a brief look at "what if" the Supreme Court rules in favour of the MPs.

Addendum 16th September: - "MPs' expenses case hinges on limits of parliamentary privilege" - Joshua Rozenberg - The Guardian 16th September.  A nine judge court is to sit.

Addendum 20th September: - "Secret Deals still being offered to MPs" - Rosa Prince in The Telegraph 20th September.