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Archive for the ‘Legal Reform’ Category

Online Criminal Court Plans Spark Controversy

March 15, 2017 by Kelly No Comments »

The government’s plans for an inline criminal court have provoked controversy and criticism. The harshest critic is justice charity Transform Justice, which has attached many aspects of the government’s proposals in a statement released today.

Among the key concerns that Transform Justice has expressed is that “very few measures in the whole bill have been subject to formal consultation,” which runs counter to accepted best practices in the creation of government policy. In its briefing, the charity also criticises the proposals for being poorly-costed and for having used weak evidence as its basis.

The charity also questioned the governments claims that the proposals, which are contained in the Prisons and Courts Bill, would improve access to justice and the quality of justice. “It is asserted,” the briefing says, “that they will make the system more just, proportionate and accessible, but without any supporting research or data, and without citing research which may suggest the contrary.” Transform Justice went on to say that the results of a pilot scheme showed none of the advantages the government has claimed its proposals would bring. Rather, the use of a virtual court in the pilot scheme made it more difficult for lawyers and clients to communicate effectively, and increased the cost of justice processes compared to a traditional courtroom.

Furthermore, the pilot suggested that the digital court might increase the number of guilty pleas and result in longer sentences being issued. Transform Justice was particularly concerned about the suggestion of allowing people charged with offences that do not carry a prison sentence to enter a guilty plea and accept a penalty online. The charity was concerned this might encourage more people to plead guilty without properly understanding the implications of doing so, such as the fact they would be left with a formal criminal record.

The charity stressed that its criticisms of the online courts were not intended as an attempt to stand in the way of progress. In its briefing, it agrees emphatically that the UK’s court system is in need of being “brought into the digital age,” and suggests a number of measures that could help achieve this. For example, it suggests that information and documents should be made available digitally, and that email and text reminders could be sent to defendants ahead of court appearances.

However, the charity was sceptical not just about the government’s specific proposals, but about the entire concept of digital hearings. Specifically, it questioned whether they were actually necessary, insisting that appearing in person at a physical court would be preferable for many witnesses and defendants and that, even following waves of closures, there would be no shortage of courtrooms.

 

Court Reviews Income Barrier for Foreign Spouses

February 21, 2017 by Kelly No Comments »

A controversial income threshold, which serves as a barrier preventing people from bringing their foreign-born spouses to the UK, is under review by the Supreme Court. It is now up to the court to rule on whether or not this financial obstacle is legally tenable.

The barrier affects couples where one partner is a UK national and the other originates from outside the European Economic Area (EEA). A minimum income threshold must be met before the UK partner can bring their foreign spouse into the country. Unless they qualify on other grounds, the foreign partner can only come to the UK if they are married to a British citizen who earns at least £18,600 a year, a figure which has been in effect since 2012. If there is a child involved and that child does not hold British citizenship, the threshold is increased to a minimum of £22,400. For any additional children, a further £2,400 per child is added to the minimum income required.

There have been a number of criticisms levelled against this rule. Campaigners claim that it unfairly prevents thousands of couples from living together and having a normal family life, and has separated around 15,000 children from their parents. Critics also say that it is a law that unfairly targets poorer people by making the right to bring the person they love and have married to the UK a privilege reserved for people who earn a certain amount of money. The fact that some kinds of income are also excluded from the calculation has also attracted controversy, with some couples who do meet the income threshold still being unable to live together in the UK.

The rule was brought in by the Conservative-Liberal Democrat coalition government that preceded the current, Conservative government. At the time of the threshold’s introduction, the government claimed that it was to prevent foreign-born spouses of British people from becoming dependant on UK taxpayer money. Before the introduction of a firm minimum income threshold, there was a vaguer requirement that the couple demonstrate they would be able to reasonably support themselves.

Yet further criticism has stemmed from the fact that the threshold takes into account only the UK-born partner’s earnings. While the rules are ostensibly to prevent foreign nationals from becoming a drain on UK resources after marrying British nationals, the right to settle will be refused to high-qualified individuals who already earn well above the minimum themselves if their UK partner’s income does not meet the threshold in isolation.

A challenge against these rules was initially upheld at the High Court, which described the system as “onerous and unjustified” in a 2013 ruling. However, this decision was later overturned by the Court of Appeal, leading the matter to come to the Supreme Court which is now set to make a final decision.

 

App Considered as Way to Improve Justice Access

June 15, 2016 by Kelly No Comments »

AppA downloadable app is being considered as a possible way to improve public access to justice. A recent report from Hackney Community Law Centre proposes a number of possible solutions to make justice more accessible, including the possibility of an app.

The report, Finding Better Problems for Better Solutions, was revealed at Hackney Town Hall. The release of the report formed part of a “digital summit” held at that venue recently. The Law Centre’s suggestion of an app follows a number of other recent suggestions to improve access to justice through the use of digital solutions, including online advice platforms and even fully-online courts.

Mark Brown, development director at Social Spider CIC and co-author of the report, said that such an app could help solve problems with the accessibility of justice. In particular, Brown said that those who have legal problems are often reluctant to seek professional advice in person, and consider a legal professional “the last person” they would like to speak to about the issues they are facing.

According to the report, “push” information would be used to keep the app updated with the latest and most accurate legal advice. It would also have the advantage, the report says, of being available at any time when somebody wishes to seek advice.

Hackney Law Centre has some familiarity with digital legal solutions, as the area has had a fair amount of involvement with digital law initiatives that have taken place in the past. For example, Hackney participated in a digital pilot which provided a direct and easily-accessible route through which members of the public could contact and get advice from barristers. Furthermore, in partnership with Legal Geek, Hackney helped bring about the “Hackathon” – an initiative which sees developers and legal professionals working intensively to develop innovative technology solutions for the legal sector. The second such event is due to take place later in 2016, and will specifically focus on the matter of providing access to justice.

The report also suggested that a better process should be developed for the provision of advice by email. The report also states that the working processes involved in this need to be better coordinated in order to more effectively make use of the time given by volunteers.

The report said: “Currently, while there may be people willing to volunteer their time to assist in delivering advice services in the borough, their ability to contribute their time is limited by a mismatch between the times they are available and the times that advice services providers are available to enable them.”

 

Findings Published From Biggest Ever Legal Needs Survey

May 25, 2016 by Kelly No Comments »

SurveyFindings have been published from an Ipsos MORI survey conducted for the Law Society and the Legal Services Board. Gathering information about nearly 17,000 legal issues from over 8,000 individuals across England and Wales, it has been described as the largest legal needs survey ever carried out in the UK.

One of the key findings of the survey was the number of cases in which the people concerned sought formal, professional legal advice. This was done in less than a third of cases, with people seeking but failing to successfully access legal advice in a further 5%. The issues in which people were most likely to feel the need to seek legal support were divorce, wills and probate, and conveyancing. The areas in which people were least likely to seek support from a legal professional, on the other hand, were problems with neighbours and issues relating to mental health.

Almost half of all legal issues faced by the survey’s respondents, on the other hand, were handled either alone or with the help of family members or friends. In almost a tenth of cases, it was the “fear that doing otherwise would cost too much” that led people to eschew legal advice and go it alone. This stemmed from concerns about court fees as well as the costs of professional legal support.

Younger people – specifically those under 35 – were the least likely to seek legal assistance, according to the survey. 161 individuals in the 11-15 age bracket were also surveyed. 70% of these young people said they had experienced at least one legal issue that fell within the scope of the survey, of which more than two thirds said they would be comfortable to seek legal advice from a teacher. Only 27% would be comfortable accessing legal help from a solicitor, and 32% from the police.

The survey also showed the number of people who had checked whether the professional legal adviser they were dealing with was regulated or not. This was done by less than half of respondents who sought professional legal advice, with those in the over-55 age bracket being the most likely to check. More than 50% of those who did not check whether their primary legal adviser was regulated simply assumed this was the case. 8% reported that they did not know how to find out about regulation, and the same number claimed to not even know what regulation meant in the context of legal services.

Jonathan Smithers, president of the Law Society, expressed concerns about the survey’s findings. Smithers said: “The most trained and qualified providers are the most regulated while those who may have no formal legal training may be unregulated. This can be confusing and can result in people not making informed decisions about the legal services they buy.”

 

Proceeds of Crime not Being Reclaimed Effectively

March 15, 2016 by Kelly No Comments »

A recent review by the National Audit Office (NAO) has said that the government is failing to reclaim much of the money that it could confiscate from offenders as proceeds of crime. According to the report, the system for reclaiming money that has been earned through criminal activities has “fundamental weaknesses,” which has led offenders now owing the government around £1.6 billion in unreclaimed assets.

Previously, in December 2013, the NAO reported that the government was only reclaiming 26p out of every £100 of assets that had been identified as being earned through criminal activity, or 0.26% of the total. While the watchdog recognises in its more recent report that there have been improvements to the system in the intervening period, it says that these simply “have not been enough” to reduce the debt owed to the state by offenders. On the contrary, the debt in question has increased since late 2013 by a total of £158 million, largely as a result of interest on existing debts, which accrues at an annual rate of 8% as long as that debt remains unpaid.

2014 saw the establishment of the Criminal Finances Improvement Plan, designed to facilitate the reclamation of assets from criminals. However, while the NAO’s recent progress report recognises that this has played some role in encouraging the improvement of enforcement orders, it also remains limited in its achievements. This is partly, the NAO says, down to the plan’s failure to provide clear goals or to set out specific metrics for success. Furthermore, enforcement and prosecution agencies have failed to increase their usage of early-action measures. Usage of orders to freeze criminal assets (restraint orders) has actually decreased, as has the number of professional financial investigators.

The NAO’s recent progress report did recognise some positives, however. It said that on an “operational” level, joint working between agencies and organisations had been improved. Information-sharing and the use of expertise from multiple departments has been improved, partly due to the decision that certain key teams should be based in the same location. The report also praised the government’s efforts to improve the recovery of criminal assets that have been earned in the UK through illegal activities and then transferred abroad.

Furthermore, the watchdog recognised improvements in the way that confiscation orders are administered, but said that the impact of this was limited. Justice agencies need to “address the deeper systemic problems” in this area, the report said, as well as “show more determination and urgency.”

 

Personal Injury Funding in a Post Jackson Era: CFA vs DBA

September 10, 2015 by Kelly No Comments »

Recent years have seen the question of legal funding very much under consideration, and under public and government consideration.

2013 saw the Jackson Reforms. Under Lord Jackson’s changes, in many areas of law, legal aid all but disappeared. Many in the legal sector were concerned regarding the cut in funding, as that limited access to justice to those that could afford it. Further, many lawyers and firms working in areas of law that relied upon legal aid funding suddenly found themselves struggling as a business, with fewer clients and less government funding.

Aside from that, 2013 also saw a change to another aspect of funding- the humble Conditional Fee Arrangement (CFA). In existence since 1998, more colloquially referred to as the ‘no win, no fee’ avenue of legal funding, the CFA all but disappeared in 2013.

Since the beginning, a CFA has been a particular favourite way of funding personal injury claims, and accident claims, be they at home, out and about, or in the workplace. Despite increasing efforts and care taken regarding health and safety in the workplace, and stringent health and safety requirements and obligations imposed upon employers, accidents at work still happen on a regular basis. According to HSE figures, 2014 saw an estimated 629 000 in the UK workplace suffering from a workplace accident of whatever nature. Of that, 203,000 injured employees needed over three days of work to recover, with an additional 138,000 requiring more than seven days off work.

According to UK law, those that have a workplace accident, and suffer a personal injury from that, are entitled to make a claim against their employer for the negligence or breach of health and safety that caused the accident to happen. However going to court is often expensive; that is where the CFA funding structure came into its own.

Under a CFA, litigants did not pay their lawyers for their representation, or the work done on their case. Instead, the lawyers will only be paid by the litigant if their case is successful. If unsuccessful, the litigant will not pay the lawyer’s fees. If successful, then the lawyers will also get a ‘success fee’ from any compensation awarded. As such, lawyers undertaking personal injury cases (such as accidents at work) have to ensure that the case will be successful if brought to court.

With that funding structure, many thousands of litigants have been able to seek justice following an event that resulted in a personal injury, be it at work or elsewhere. However, to bring such funding arrangements in line with modern law, the CFA was altered in 2013.

In its place a practically identical method of funding personal injury cases was established- the Damages Based Agreement (DBA). DBA’s have been in existence for a long time, and in 2013 they were allowed to be used to fund personal injury cases. Under a DBA, the rules are more complex, and different. Putting the terms of a DBA in very simplistic terms, lawyer and client agree prior to any work being done that a pre-arranged percentage of any compensation awarded will be paid to the lawyers. This will cover the lawyer’s fees, costs, and ‘success fee.’ This is a fixed, pre-arranged percentage, payable from any compensation awarded, and is capped at 25% of the total awarded to the client.

The structure of the CFA was altered slightly along with the introduction of DBA’s for personal injury cases. However, from the litigant’s perspective, the CFA remains virtually the same. Amongst the subtle changes, many personal injury firms will require the litigants to pay a pre agreed sum to their lawyers at successful resolution of the case, taking into consideration the work and billable hours put in by the lawyers. Such a payment would come out of any compensation awarded, and is again capped at 25% of any financial award made. Further, compensation payments were increased by 10% to reflect this extra payment. As such, the CFA remains virtually the same.

Many personal injury lawyers are unsure regarding DBA’s. Although the DBA is ‘safer’ financially for the lawyer and more guaranteed than a CFA, many feel that it is slightly more complex for the client, and slightly unfair to them. As such, many personal injury firms, such as CompensationClaims.co, taking on an accident at work claim or similar, prefer to use a CFA- but also offer and explain the terms of a DBA additionally.

Amidst the Jackson reforms making getting access to justice harder and more costly, the introduction of DBA’s to personal injury cases was welcomed. Along with the restructuring of CFA’s, personal injury litigants suffering from the effects of accidents in the workplace or elsewhere can still get access to justice, at little or no financial risk to themselves, and with more methods of paying their lawyers now available to them.

 

Better Training of Magistrates Could Prevent “Venue Shopping”

August 19, 2015 by Kelly No Comments »

According to the Law Society, magistrates should be better-trained when it comes to understanding their own powers and accurately apply sentencing guidelines. This, the Society said, could help put an end to a current practice of “venue shopping” among defendants for courts where they are likely to receive a more lenient sentence.

These statements were made in response to a consultation by the Sentencing Council, which set out to examine the matter of whether certain cases should fall to magistrates’ courts or the Crown courts. Better-training magistrates in these areas would, the Society suggested, reduce the risk of cases falling to the Crown courts “inappropriately.”

The reasoning behind this is based on what the Law Society describes as “a common perception of defence practitioners” about the ways in which certain cases are handled. Specifically, it relates to those cases which fall outside of definite Crown court or magistrates’ court territory, and therefore could fall to a court of either type depending on the individual circumstances of the case. Because of the different types of case that the two court types handle, the Society said, it is widely believed that many of these offences are seen as being “very much at the lower end of the seriousness spectrum” by judges in the Crown courts but are seen as much more serious by magistrates.

The result of this is that defendants stand to benefit from being sent to a Crown court in order to have their case heard rather than appearing before a magistrate, as they are likely to receive a more lenient sentence. Knowing this, defendants and their professional counsel may employ a number of methods in order to try and sway the decision of where the case will be heard towards the crown courts.

For this reason, the Law Society said: “There is a need for training for magistrates in the correct application of the sentencing guidelines aimed at eliminating or reducing disproportionate sentencing so that defendants do not ‘venue shop’.”

Alongside the call for improvements in the training magistrates receive with regards to sentencing guidelines, the Society also called for a number of other improvements to practice when it comes to deciding where cases will be heard and sentenced. The Society said that it is “preferable” that sentencing is handled by the same court that hears the case, as “the defendant’s demeanour during the trial may have a significant impact on the sentencing decision.” Furthermore, the Society revealed proposed new guidelines to ensure young offenders are only sent to Crown courts “where it is essential to the interests of justice, irrespective of adult co-defendants.”

 

Legal Aid Agency Denies Putting Pressure on Solicitors

June 30, 2015 by Kelly No Comments »

The Legal Aid Agency (LAA) has denied claims that it put pressure on solicitors who were considering direct action in protest against legal aid cuts. Many solicitors around the country were considering taking a form of strike action by temporarily ceasing legal aid work starting tomorrow, but a number have claimed the LAA has put pressure on them to abandon the protest.

Legal Aid has already been on the receiving end of significant and controversial cuts, which many solicitors and legal professionals have criticised for limiting access to legal representation and ultimately to justice. Further cuts are due to come into force this week, prompting solicitors in various parts of the country to warn that they would take direct action. Most recently, East Yorkshire solicitors have agreed to take part in the protest. At a meeting held on Friday for lawyers in the area, the majority of attendees voted to refuse legal aid work when the new cuts come into effect.

The London Criminal Courts Solicitors’ Association (LCCSA) has received reports from a number of solicitors saying that they been called by the LAA which warned them against taking protest action. According to one solicitor, who was scheduled to work with the Legal Aid Agency tomorrow in Blackpool, was warned that refusing to work out of protest would lead the LAA to take action.

Claims of pressuring solicitors to abandon their protest were denied by the LAA. The organisation did, however, acknowledge that lawyers working with the agency frequently find themselves in conversation with contract managers who may remind them of the arrangements that have been made and their responsibilities “if appropriate.”

As well as those in East Yorkshire, legal professionals in areas such as Birmingham, Cardiff and Merseyside have already agreed to take part in direct action. A number of further meetings are planned so that solicitors and barristers in places like the West Midlands, Manchester, Leicester and Leeds can decide whether they intend to join the protest or not.

The LCCSA and the Criminal Law Solicitors’ Association also held a ballot on the matter of Direct Action, which closed at 10.00pm yesterday evening. An indication of the direction this ballot seemed to be going was given on Friday by LCCSA chair Jonathan Black who said that, so far as it had progressed up to that point, the ballot seemed to show that the legal profession was “overwhelmingly in support of action.”

 

“Blanket Ban” on Legal Highs

May 29, 2015 by Kelly No Comments »

The government has announced a “blanket ban” on substances known as legal highs, with offences carrying potential jail terms of up to seven years. Draft laws, announced in the recent Queen’s Speech, are to be published soon and have been described by ministers as a “landmark.”

Legal highs are more properly called “new psychoactive substances.” They are, as their nickname suggests, not illegal under current laws and are therefore commonly sold online and even in brick-and-mortar shops in town and city centres. Some of these are recently-discovered substances not covered under current laws, and many are substances originally intended for purposes other than human consumption but which have been discovered to be able to produce drug-like effects. Many provide effects similar to substances such as cannabis, ecstasy and cocaine, and they have therefore been used by predominantly young people as a legal, more easily-obtainable way to experience these effects.

Many legal highs are dangerous when used in this manner, and they have been linked to a number of deaths. According to ministers, those who make use of such substances are “taking exceptional risks with their health.” A ban on legal highs was previously included by the Conservative party in their election manifesto. The Labour party also promised a ban on these substances in their own manifesto.

The psychoactive substance bill will, the government says, prohibit “any substance intended for human consumption that is capable of producing a psychoactive effect.” There will be exceptions for caffeine, alcohol and tobacco as well as for medical products and certain foods. Drugs that are already legally controlled will also be excluded from the new bill and instead will continue to be covered by the laws that already prohibit their use.

Nitrous oxide, commonly known as laughing gas, will also be prohibited under the new bill when sold for casual human use. It will, however, still be legally obtainable for medical use, food processing, and use in industrial purposes.

The format of the new bill as a “blanket ban” is a response to the considerable difficulty that has come with policing these substances. The category is a very broad one, and new substances have been appearing on the market faster than they can be identified and outlawed by the government. A broad, general ban on psychoactive substances intended for human consumption has, therefore, come to be considered the only practical way to keep up.

The bill is intended to apply to the whole of the UK. It will provide police with search powers, relating to people, vehicles and premises, and with the ability to seize and destroy any such substances that they find.

 

Legal Aid Agency Gains Claim to Criminal Assets

March 20, 2015 by Kelly No Comments »

Recent years have seen the introduction of a number of unpopular new legal aid reforms. However, the most recent reform to be announced has proved rather more popular within the legal industry than any of the recent funding cuts and restrictions of access. Under changes outlined by the Ministry of Justice recently, the Legal Aid Agency would gain power over the assets of convicted criminals in order to recoup legal aid costs associated with providing their defence.

Under the new rules, which must gain parliamentary approval before they come into force, “restrained” assets belonging to those who are convicted of the charges against them.  This is designed to offset the cost of providing legal aid to individuals who are, according to the verdict of the court, guilty. Other outstanding defence costs could also be paid by the seizure of such “restrained” assets. Usually, these are profits or items of value gained or believed to be gained as a result criminal activities.

Currently such assets are restrained under 2002’s Proceeds of Crime Act. While restrained, the assets cannot be spent, moved or otherwise utilised by the defendant. If the defendant is subsequently convicted, the court may confiscate these assets.

Other considerations would continue to take priority over the reclamation of legal costs, the Ministry of Justice said. First, compensation and confiscation orders benefitting the victims of the crime will be fulfilled. If any assets are left over when the victims have, as far as possible, had their property returned and/or received all compensation due, the Legal Aid Agency will then have a claim to those remaining assets in order to recoup costs.

The move is designed to relieve strain on the legal aid budget by reclaiming a portion of the money spent on defending the guilty. According to the Ministry of Justice, estimates suggest that this could result in savings of up to £2 million in legal aid costs every year.

Chris Grayling, the Justice Secretary, welcomed the move. He said: “For too long people convicted of crimes have avoided paying what they owe. Legal aid is taxpayers’ money and we have a duty to make sure it is not being spent on those we believe can afford to pay towards their legal costs.”

Grayling also described the changes as a “vital further step in making the legal aid system fair and credible.”

If they gain parliamentary approval, these changes could take effect as soon as the 1st of June this year.