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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.


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.”


How to Budget for a Court Case

September 18, 2013 by admin No Comments »

“Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC (Case Management Conference ) even at relatively short notice if proper planning has been done…….The court must now, as part of dealing with cases justly, ensure that cases are dealt with at proportionate cost and so as to ensure compliance with rules, orders and practice direction……The stricter approach under the Jackson reforms have been central to this judgment…..”

These words (delivered on 1 August 2013) of High Court judge Master McCloud take us straight to where budgeting is in cases of civil litigation at the current moment. At the very heart of litigation of course, following the implementation of the new rules governing civil procedures as recommended by Lord Justice Jackson and which became law 1 April 2013. Central to these new procedures are new rules on costs budgets and costs management. Essentially these are that:

  1. Each party must prepare a costs budget in a standard form, setting out details of the costs incurred to date and the estimated future costs of the litigation.
  2. The court will consider and approve the costs budget. This is set to be done relatively early in the proceedings, usually the first case management conference.
  3. The court then oversees the case to ensure it complies with the agreed costs budget.

So five months on, it is hardly surprising that Master McCloud adopted such a robust attitude to endorsing the reforms. Most lawyers have known of their coming since 2010. No excuses were allowed from the seemingly feckless lawyers for former chief whip Andrew Mitchell M.P. His libel case against The Sun publishers New Group Newspapers now looked pear-shaped, all because they had failed to comply with an order to file their costs budget, prior to the case hearing in June. That failure to comply with the now much more stringent regulations meant the Mitchell claim would be limited to a budget consisting of the applicable court fees for his claim. However,  leave to appeal was granted so this test case is not finished. What it does make clear is that strict budgeting and tight costs management is now the guiding ethos of the court system. The new regime has already been piloted in defamation cases and in the Mercantile Courts and Technology and Construction Court. Several have reached the Court of Appeal. The new rules now apply to most civil cases: although high value commercial cases remain exempt at present it is expected that the tighter costs management will extend there soon.

Certainly a major objective of the Jackson reforms was to curb ever growing costs of legislation and their uncertainty. Part of the new rules emphasised that costs of the case must be proportionate to the claim. For would-be litigants uncertainties over costs, especially for losing parties open to paying the winning side’s costs, have always been the hardest thing to budget for. The reforms have certainly attempted to address this difficulty; from now costs recoverable by the winning party will be linked to the court-approved budget. That this must be done early in the proceedings (each side submitting its first six weeks before the first case management conference) will make for greater confidence of litigants on both sides. That  budgets are reached through the collaboration of both parties and of the judge, should aid transparency in costs awards at the end of the case. A ruling of the Court of Appeal earlier this year helps set out the new ethos:

“The management of costs is the responsibility of all parties to the litigation, and ultimately, of the court as well. The court has a responsibility to manage the proceedings, so it also has a responsibility for managing the costs of those proceedings.

The starting point must be that an approved costs budget is intended to provide “the financial limits within which the proceedings are to be conducted’. They are intended to provide some constraint”.

Although there is much uncertainty ahead as with any new system, the ethos seems secure. Costs budgeting and costs management will be the driving forces in civil litigation. The rules are there for all lawyers to follow and to advise their clients accordingly.  Master McCloud’s strict interpretation of the rules suggests any one failing to do so can expect little leniency. Now that the rules are in place for budgeting, how to do that budget is much easier and clearer.

This post was written by Anne Evans at Vannin Capital. A UK company offering litigation funding for insolvency. For more information, visit the site.