This week’s roundup of legal news and comment focuses on prison reform, court closures, legal aid and employment law, with a trip back in time and a couple overseas.

Prisons

Gauke talk

On 6 March the Justice Secretary delivered his first major speech on prison reform at the Royal Society of Arts in London.

This is a topic on which all new justice secretaries are expected to express a view; it’s the top of the to-do list, as soon as they’ve been shown their new desk. But six of them have passed through that metaphorical revolving door of the justice ministry in the last six years, and their views have swung back and forth like that metaphorical pendulum, though all of them claim to put rehabilitation at the heart of prison policy.

Ken Clarke was in favour of shorter sentences and bigger discounts for guilty pleas, the latter to avoid the trauma for victims giving evidence, and the former by preferring community sentences. His replacement, Chris Grayling, talked of a ‘rehabilitation revolution’, but that seemed to involve depriving prisoners of books unless and until they behaved, and a tougher stance on sentencing. He gave way to Michael Gove, who spoke more tenderly of the ‘treasure in the heart of man’ (quoted from Winston Churchill) and ‘making prisons work’. His successor, Liz Truss apparently thought guard dogs could help deter drones from delivering contraband items to prisoners simply by barking at them (the drones, that is, not the prisoners). But she also initiated a recruitment drive (after numbers had been cut by her predecessors.) When she was replaced by David Lidington, he promised more recruitment and more refurbishment of the prison estate.

So what has Gauke got to say that hasn’t been said already? What new angle could he possibly be going to try? One interesting fact that emerged is that (as well as being a solicitor, and therefore the first lawyer to be Lord Chancellor since Ken Clarke) he is the son of a police officer. So he may be thought to have more of an affinity for front line crime and punishment. A point in his favour.

He began by setting out the threefold purpose of prison – to protect the public, to punish and deter crime, and to rehabilitate the offender. All three are important, but ‘It is only by prioritising rehabilitation that we can reduce reoffending and, in turn, the numbers of future victims of crime.’

Prisons need to be secure (keeping prisoners in, contraband out) and safe. Prison reports, which do not always make happy reading, need to be acted on. Prison staff need to be recruited but also better deployed. The problem of drugs (especially the cheaper new psychoactive substances) needs to be addressed. This was where the speech got interesting (for a non specialist, at any rate), when Gauke said:

‘Many of you will be aware of the kind of things I’m talking about….

  • Spice, and other drugs, ordered with a ‘Deliveroo-style’ responsiveness on tiny mobile phones from prison cells and delivered by drones direct to cell windows…..
  • the paint used in supposed children’s drawings sent to their parents in prison laced with liquid psychoactive drugs, or the pages of fake legal letters purporting to be from a prisoner’s solicitor soaked in drugs….
  • gangs engineering situations where a prisoner, who has been released from prison, deliberately breaches their license conditions so they are sent back to smuggle in more drugs….
  • gangs enforcing control by using threats and violence towards prisoners, extorting their families and attempting to corrupt prison staff….

From the conventional to the cunning, by design or device, through fear or intimidation … these criminal gangs will stop at nothing to maintain their access to such a lucrative market.

We need to make prison less congenial for the modern-day Harry Grouts.’

Who was Harry Grout, then? (Consults search engine.) Ah. A character in the much-loved British TV sitcom, Porridge, set in a prison. And no doubt as popular among prison officers (or screws) as Yes Minister among civil servants (or mandarins), or Rumpole of the Bailey among barristers (or criminal hacks). You see how the British establishment was both satirised and glorified in the sitcoms of the Seventies. Don’t deny it, now. It’s true, and goes a long was towards explaining Brexit. (Now, what was that one set in the war with all the foreigners having funny accents? Listen very carefully, I will say this only once. For you, the EU is over…)

Rather less funny, unfortunately, is the bit of Gauke’s speech where he describes the effects of Spice on some of the prisoners who fall prey to the latterday Grouts in the system. It demonstrates the extent to which prisons are not just full of wicked ne’er-do-wells who deserve as good as they get; they are also  full of vulnerable people of low self esteem, with mental and physical health issues, who are as much victims of crime as its perpetrators. No doubt some of the politicians who have been to Eton think prison is basically a rather spartan boarding school filled with chaps one wouldn’t necessarily want to introduce to the mater and pater, but Gauke’s speech pulls no punches in describing some of its hellish excesses. And yet it has probably been sanitised for public consumption.

So what can be done? In the speech, Gauke announced a number of specific measures:

  • investing £14 million to tackle the threat of serious and organised crime against prisons, using specialist teams working with the National Crime Agency
  • installing technology at 30 prisons that will allow officers to quickly download data from illicit phones seized from prisoners
  • reconsidering the way prisoners are categorised, to avoid spreading prisoners with links to organised crime across the prison estate, looking again at who goes to high security prisons, and cutting off ringleaders from their networks
  • reinvigorating the system of incentives to ensure they work better in favour of prisoners who play by the rules and want to improve.
  • launching an Education and Employment Strategy to help offenders get the skills they need to find a job and avoid the activities that landed them in prison in the first place
  • adopting a cross-government approach to reoffending, to ensure ex-offenders get the help they need with housing, health and employment to support their reintegration into society.

This all looks very impressive, even if it may be boiled down to a reshuffling of those two dear old trump cards, the Carrot and the Stick. There is a commitment to spending money: even if £14m doesn’t sound that much in the context of the ‘£15 billion cost of reoffending to society as a whole’ mentioned by Gauke, of which it presumably forms a part, along with the costs of the prison system as a whole. What is perhaps missing is a more imaginative approach to sentencing in general.

See, also,

Frances Crook, Prison Prison reform is long overdue. Let’s invest in communities instead

France (below).

Courts

Closure woes and online hiccups

Earlier this year, HM Courts and Tribunals Service launched a consultation on ‘proposals to shape future decisions on the court and tribunal estate’ as part of the HMCTS Reform programme. Announcing the consultation, HMCTS said:

‘The consultation asks for opinions on how to best make decisions about courts across the country – focusing on ensuring access to justice, delivering value for money and enabling efficiency in the longer term.’

It also said:

‘The changes introduced through digital reforms will mean there are many more ways to access justice without the need to travel or physically attend court. For those that do need to go to court, there will be more modern and well-connected courtrooms.’

In fact there were several consultations. There is a general one, entitled Fit for the future: transforming the court and tribunal estate, on the overall strategic approach; plus several individual court closure proposal surveys. The consultations close on 29 March.

The problem with the overall strategy is that the aim of ensuring ‘access to justice’ doesn’t always sit well with the competing aims of ‘value for money’ and ‘efficiency’. Sometimes justice can be delivered efficiently, but perhaps not if it means having to travel much farther to reach a physical court.

At the end of last month, the Commons Justice Committee wrote a letter to justice minister Lucy Frazer QC MP, expressing its concern over court closure plans and the knock-on effects in terms of travel times, capacity of remaining courts to cope with the reassigned cases, and the increasing reliance on virtual and online justice. It does not pull punches:

‘No convincing policy justification has been offered for the current proposal, which appears to favour the principle of value for money over the principle of access to justice.’

One of the original justification for selling off old courts and reallocating business to fewer, modernised justice centres was to exploit the land value of less needed buildings. But sadly the gains have not been spectacular, as Penelope Gibbs notes on the Transform Justice blog: Court closures – are they selling the family silver?

She wonders whether some of the £30m being spent on management consultants might be better utilised in keeping open courts that serve their local communities, citing as an example Cambridge magistrates’ court – which is also the subject of an academic campaign, reported in Cambridge Independent.

Meanwhile, as the Law, Technology and Access to Justice blog observed earlier this month, there are signs that Labour shadow ministers are getting interested in the problems.

‘One of the most visible indications of this interest comes from Parliamentary Questions about the court closures necessary to fund the online programme. […] MPs are getting restive about closures in their and neighbouring constituencies.’

The blog suggests ‘six proposals to see off a gathering storm’, including ‘full public review of the principles involved’, calling in the contract for digital advice, publicly stated key performance indicators for ‘every element of the court reform programme’ and ‘increased judicial supervision’ of the project.

The extent of judicial involvement in the project is one of the factors that is supposed to have marked it out as different from, and more likely to succeed than, previous attempts to introduce IT into the justice system. But in discussing the role of the judiciary in his speech to the Max Planck Institute on 1 February, Sir Ernest Ryder, Senior President of Tribunals, said he thought policy decisions should be informed more by robust evidence gathering and research, and less on the views of a handful of judges. (See Securing Open Justice; also discussed in Weekly Notes – 5 February 2018.)

And some judges are now getting cold feet, it seems. Legal Futures reported recently that judges at a meeting last month of the Civil Procedure Rule Committee (CPRC) ‘threatened to withdraw from the Online Court pilot … if there are “any further false claims or data” about the project’ from HMCTS.

‘Mr Justice Birss, chair of the CPRC’s Online Court subcommittee, was quoted as saying that the public beta “may have been oversold, in that the idea the online court would be implemented on 26 March 2018 is completely incorrect”.

The Online Court was “not close to being finished”, and “A number of issues were identified during [a recent] demonstration, for example the defendant when completing their statement of truth certifying the facts in the defence are true, is asked to certify that the facts of the ‘claim’ are true.”’

Mr Justice Coulson, chair of the CPRC, ‘made the point that any further false claims or data may lead to the removal of judicial co-operation from the project.’

NB. Excellent as the Legal Futures report of this meeting is, we are attempting to get hold of the published minutes of the CPRC on which it is based. However, it appears that these can only be accessed via a commercial publisher’s website, Practical Law. Again, that is an excellent resource, for those who can afford to pay for it. But in an age of open data and increased transparency, we think the judiciary should be publishing these minutes in a publicly accessible way. The PLC website says: ‘Papers from the Civil Procedure Rule Committee (CPRC) meeting on 2 February 2018 became publicly available on 6 March 2018.’ But it’s hard to see how they can be ‘publicly available’ if you need a subscription to access them.

Birss J pictured in front of some solidly non-virtual Weekly Law Reports published by ICLR. (But we do a lot more online now!)

 

Legal Aid

Laspo review pushed back – yet again

At his first appearance before the Commons Justice Committee, on 7 March 2018, the Lord Chancellor and Justice Secretary David Gauke admitted that the long-awaited government review of the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which Gauke’s predecessor David Lidington had promised would be out by this summer, would not now be delivered any time soon. He did not give any estimate of when, exactly, the work would be done, but said he did not want it “slipping into next year”.

See:

Lidington’s promise was made soon after laying before Parliament his department’s post-legislative memorandum for LASPO (Cm 9486) on 30 October 2017. One of the starkest facts to emerge from that memorandum, apart from the massive increase in litigants in person, was the woeful take-up of publicly funded mediation as an alternative to litigation: indeed, the numbers dropped sharply (more than 60% by one measure), as Emily Dugan reported in BuzzFeed News (Cutting Legal Aid To Families Has Had The Entirely Opposite Effect To The One The Government Intended, 31 October 2017).

The  Post-Implementation Review Evidence Gathering Exercise Terms of Reference have now been published.

The fifth anniversary of LASPO coming into force falls appropriately enough, one might think, on April Fool’s Day. (Here’s what we said last year about The Legacy of LASPO )

 

Employment

Tribunal claims almost double

Figures released last week show that in the last quarter of 2017 employment tribunal claims involving individuals rose by 90% compared with the same period in the previous year, while claims involving multiple litigants increased by 467%.

The surge followed the Supreme Court’s decision on 26 July 2017 in R (Unison) v Lord Chancellor [2017] UKSC 51; [2017] 3 WLR 409;  [2017] ICR 1037, which ruled that an order imposing unaffordable court fees on claimants was unlawful as it hindered the constitutional right of access to justice. The consequent abolition of the high fees enabled many more claimants to pursue cases.

The tribunal fees were abolished in July 2017 and in October 2017 a scheme was introduced to provide Employment Tribunal fee refunds for those who had already paid them while the fees order was in place. As at 31 December 2017, 3,337 refund payments to a total value of £2,758,316 had been made.

These figures were published by the MOJ on 8 March 2018 in Tribunals and Gender Recognition Statistics – Quarterly, October to December 2017 (Provisional)

 

Legal profession

Day in life of a 15th century barrister

For a refreshing break from the technoppression of contemporary legal practice, why not step back into history via the Order of the Coif portal, to re-live A Day in the Life of a 15th Century Barrister?

Imagine being a serjeant-at-law, with exclusive rights of audience in the Court of Common Pleas, sharing digs in the Temple during termtime, while your wife stays at your ancestral manor in the country. Not surprisingly,

‘… it is common enough for members to sneak a lady friend into their room, and to pay a fine if caught. In fact, the records of the Inns register countless fines paid out for infractions; fornicating, blaspheming, gambling with dice, stabbing each other with daggers. In spite of the rambunctious nature of medieval barristers, the Inns are characterised by a great sense of camaraderie.’

A boatman conveys you upriver to Westminster Hall, where the courts sit variously in the same space – King’s Bench, Common Pleas, and Chancery, with the Court of Exchequer and the (appellate) Exchequer Chamber next door. The account of the cases in some of these courts, the arguments and the decisions, is fascinating, especially for anyone with any familiarity with older law reports. As to which:

‘The judges sat on a raised platform with their backs to the wall. At their feet were the clerks of the court; they would record the pleas for the plea rolls and legal argument for the Year Books (medieval law reports).’

The ‘clerks’ who write the Law Reports are now qualified barristers and solicitors employed by ICLR and other publishers to produce the modern equivalent of the Year Books, while the word BAILII would sound in our medieval serjeant’s ear like an architectural term for part of a fortified structure. But as with the common law itself, ‘the medieval is mother to the modern’.

 

Dates & Deadlines

Bloomsbury Professional family law conference

16 May 2018 at Gray’s Inn, London. ‘Filling a gap left in the conference calendar that used to be occupied by Jordan Publishing’s Family Law Conference, the inaugural Bloomsbury Professional Family Law Conference is sure to prove a worthy replacement,’ says their website. And one of the star attractions is Lucy Reed, family law barrister from St John’s chambers in Bristol, who is interviewed in this short video by ICLR’s Paul Magrath on the topic of Transparency in the Family Court:

As you will see when you get towards the end, they are co-authors, with Dr Julie Doughty of Cardiff University, of a new book, to be published by Bloomsbury Professional, entitled Transparency in the Family Courts: Publicity and Privacy in Practice (Published on 10 May. But you can pre-order.)

Book tickets for the conference via Eventbrite.

Law (and injustice) from around the world

America

Oregon adds gun law safety legislation

Oregon became the first state to actually pass new legislation restricting gun ownership following the recent mass killings at a high school in Parkland, Florida. The state’s governor, Kate Brown (a Democrat) signed new legislation expanding restrictions preventing intimate partners who have a domestic violence or stalking conviction from buying and keeping guns. Previously it only applied to married partners (somewhat illogically).

Meanwhile, according to HuffPost, ‘Florida state legislators voted [narrowly, after appearing initially to vote for a ban] to keep AR-15s legal. These military-style rifles have been used in a number of mass shootings around the country ― including in the Parkland massacre that left 17 dead.’ The report adds, to be fair, that ‘Oregon, too, still allows the sale of military-style rifles.’

See also: The Florida Senate Approved An AR-15 Ban. Then They Didn’t.

France

Macron prison plan

The French President, Emmanuel Macron has a plan for France’s overcrowded prisons: to increase the number of cells, reduce the number of inmates, and promote alternative sentences for lesser offenders. According to Reuters,

‘Prison sentences of less than a month will be banned, the 40-year-old president, elected in May last year, said. Those between one and six months will be mostly served at home with electronic tagging, thus shrinking jail capacity needs. Drug use will be punished with fines rather than prison time, he added.’

A revision of sentencing policy was one thing that David Gauke, the minister responsible both for criminal justice and the prison system in the UK, does not yet appear to have considered (see lead story).

 

And finally… Tweet of the week

is from Young Legal Aid Lawyers, keen to show off their newly redesigned logo:

That’s it for now. Thanks for all your retweets and suggestions. We’ll have more content next week.

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.