Criminal Justice and Courts Bill

Written evidence submitted by the Criminal Bar Association of England and Wales (CJC 40)

Introduction

1. The Criminal Bar Association (CBA) represents about 5,000 employed and self-employed members of the Bar who prosecute and defend in the most serious criminal cases across England and Wales. It is the largest Specialist bar association. The high international reputation enjoyed by our criminal justice system owes a great deal to the professionalism, commitment and ethical standards of our practitioners. Their technical knowledge, skill and quality of advocacy guarantee the delivery of justice in our courts, ensuring on our part that all persons enjoy a fair trial and that the adversarial system, which is at the heart of criminal justice, is maintained.

Part 1: Criminal Justice

Clauses 1-3: additional schedule 15B offences

2. A mandatory life sentence should be reserved for the most serious offences and most dangerous offenders only. The two strike mandatory life sentence under s.224A CJA 2003 has already significantly widened the circumstances in which a life sentences must be imposed.

3. The Bill seeks to include further "serious terrorism and terrorist-related offences". We have particular concern for the inclusion of s.2-4 of the Explosive Substances Act 1883 within schedule 15B. These offences do not require the activity to relate to terrorism or terrorist acts. There are many different ways in which these offences may be committed without having any connection to terrorist activity. The impact of the inclusion of these offences will be much wider reaching than the Bill seeks to achieve.

4. We also do not agree to the inclusion of offences which at present hold a maximum sentence of 10 years. For s.224A to operate, the index offence must be serious enough to justify a sentence of 10 years or more i.e. a term which was previously the maximum sentence. If the other criteria are met, the judge will then be required to impose a mandatory life term for an offence which previously carried a maximum sentence of 10 years. We therefore take the view that it is not appropriate for those offences to be included within schedule 15B.

Clause 4: release for Extended Determinate Sentence (EDS)

5. The CBA is opposed to sentences where there is uncertainty as to the sentence length. Before an EDS may be imposed, a court must make a finding of dangerousness. The automatic release date under an EDS will be two thirds of the way through the custodial term rather than after one half, as with other determinate sentences. In addition, the offender is subject to an extended licence period which provides further protection to the public upon release. Further, the release date for the most serious offenders subject to an EDS is at the discretion of the Parole Board.

6. The EDS will be the sentence most commonly imposed for those offenders who are determined as dangerous due to the abolition of IPPs. One of the critical problems with IPP sentences, resulting in an adverse ruling from the ECHR (James & Others v UK [2013] 56 EHRR 12), was the inability for offenders to demonstrate to the Parole Board that they were no longer a risk to the public, e.g. by not being able to access courses.

7. We have significant concerns that the removal of the automatic release provisions will lead to the same serious problems that occurred with the IPP regime. In many cases this problem will be felt more acutely by those serving an EDS as the length of the custodial term will be shorter than with IPPs. The issue will be exacerbated further if release dates for some determinate sentences fall to be determined by the Parole Board as well, as proposed in clause 5.

8. In addition taking account of the additional protection that an EDS provides we do not consider the amendments contained within clause 4 to be necessary.

Clause 5 and schedule 1: Release for certain determinate sentences

9. All of these offences (except s.4 of the Explosive Substances Act 1883) are listed in Schedule 15 of the CJA 2003. Therefore when someone falls to be sentenced for any of those offences, it is open to the court to conclude they are dangerous and sentence accordingly.

10. We do not consider that the proposals of clause 5 are necessary as if the court considers that the offender is dangerous, the EDS is available to the sentencer.

11. If the offender is not dangerous (as with those targeted in clause 5), then an offender should be released automatically and not when the Parole Board "is satisfied that it is not necessary for the protection of the public that P should be confined" (schedule 1, para.6(4)(b) of the Bill).

12. We hold the same concerns set out above in relation to clause 4, in relation to this clause.

Clause 6 and schedule 2: Electronic monitoring

13. We agree that in some cases this technology may be useful in the prevention of re-offending and ensuring compliance with licence conditions, if the technology is deemed safe and reliable.

14. In the vast majority of cases the imposition of electronic monitoring conditions and the collection and storage of location data obtained by it would interfere with an offender’s Article 8 rights.

15. We take the view that amending the use of such technology to make it a compulsory licence condition is extremely likely to result in cases where it is not necessary or proportionate, and thereby lead to cases in which there is a breach of the offender’s Article 8 rights.

16. We acknowledge that the order allows for exceptions to be made where necessary. However we do not deem this caveat sufficient to avoid violations of Article 8 rights. Given the serious impact that such technology will have on individual’s lives (in particular tracking), we consider that it should remain a discretionary tool, to be imposed only where necessary considering the individual case and all the relevant circumstances.

Clause 7-9: Re-release of recalled offenders

17. We are concerned about the effect of the clause on those who do not comply with their licence conditions because of circumstances beyond their control. It is likely to have a disproportionate effect upon those from chaotic backgrounds, those with addictions and/or mental health issues, who are not deemed a risk to the public but breach their licence conditions because of issues such as loss of accommodation.

18. A standard recall for what might be viewed as minor breaches of licence can in some cases lead to a wholly disproportionate overall sentence being served. We suggest consideration is given to increasing the fixed term recall period to 56 days to mark repeated minor infringements of licence.

Clause 10

19. We agree.

Clause 11

20. We agree.

Clause 14-15: Cautions

21. We agree with the provisions for indictable only offences. We consider that making the specified either way drug offences subject to the exceptional circumstances test is too prescriptive, taking account the wide variety of seriousness encompassed within these type of offences. Equally we are concerned that the imposition of the exceptionality test upon the commission of an either-way and summary only offence, within a two-year period of having been convicted or cautioned for a similar offence, is too prescriptive and does not provide sufficient flexibility.

Clause 16

22. We agree.

Part 2: Young Offenders

Clauses 17-19, schedule 3 and 4: Detention of young offenders and secure colleges

23. We recognise the success in reducing the number of children in prison. It is crucial that the good work continues to further reduce this number. We agree that there should be a greater focus upon the provision of effective education in STCs, SCH and YOIs and the current average hours of education are completely inadequate.

24. However it is also important to ensure that focus is also placed on the need for specialist intervention for individual needs (e.g. mental health, self harm, learning disabilities, behavioural disorders, previous neglect and abuse, unstable and inadequate housing). Such needs are best met by institutions such as SCHs where there are specialist staff and a very high staff to young person ratio.

25. We consider that the money could be better spent on intensive rehabilitation and responding to specific needs of individual rather than effectively replacing the YOI.

26. We also agree that there should be improvement to the policies and processes in place to manage each young offender’s transition from custody into stable accommodation and education, training or employment, in the community

Clause 20: Appropriate adults

27. We agree with this clause and agree with the importance of 17 year olds having the benefit of an appropriate adult as per the High Court decision of HC vs. (1) Secretary of State for the Home Department and (2) Commissioner of Police for the Metropolis [2013] EWHC 982 (Admin) (date April 2013).

28. This would create an anomaly in that a 17 year old is not entitled to an appropriate adult during a police interview under code C. If this measure is to be introduced the decision as to who the appropriate adult is, ought to be entirely the choice of the 17 year old.

Clause 21-23: Referral orders

29. We agree.

Part 3: Courts and Tribunals

Clauses 24-28: Trial by single judge on the papers

30. In principle, we have no real concerns about these clauses, because these regulatory offences are non-imprisonable [per Clause 16A(1)(a) to (7)]. However, we do wish to raise two discrete points:

i. Clause 16A(1)(d) should affirm – and specifically iterate – the principle of the overarching objective of the CPR – that the courts must deal justly between the parties, so as to emphasise that CPR-prescribed time limits and forms of service are guidance, rather than definitive – or otherwise having the effect barring challenges to prosecutions. Related to this is that this should prompt revision of 16A(6), which – we think inexplicably and without merit – provides, "The court may try the charge in the absence of the parties and, if a party appears, must proceed as if the party were absent ";

ii. Clause 16A(3)(b) should include provision for an accused to make available written submissions relevant to commission of the offence – whether denied or, if accepted, material to seriousness;

iii. Clause 16A(5) provides that the court is not required to conduct any part of the proceedings in open court – we consider that openness of court proceedings is an essential safeguard, in the absence of a defendant and/or where a defendant is a litigant in person. We think this clause should be revised such that proceedings are required to be conducted in open court, to ensure that the judge and clerk are together acting fairly.

Clauses 29 to 36: Costs of criminal cases (order and collection of costs)

31. We recognise that exemption from payment of costs of persons under eighteen years [per Clause 21A(2)] is intended as a safeguard. Consistently with this, however, we are strongly of the view that the courts must – whenever exercising a discretionary power, which award of costs involves – conduct a summary means assessment. There will remain a significant number of cases in which any order as to costs is inappropriate (for example, where to do so would risk setting up a defendant to fail, because there already exist a number of court-ordered fines or costs outstanding which should first be discharged - or where compensation to a victim, which should take priority, must be assessed and ordered according to means).

Clauses 32 to 35: Appeals in civil proceedings

32. We are neutral on proposal of a new test applicable to leave from various courts and tribunals to the UKSC – that there is "a sufficient case for an appeal".

Clauses 37 to 48: Contempt of court, juries, and the Court Martial

33. We affirm the view espoused in the response of the Criminal Bar Association to the Law Commission’s consultation paper 209, published in March 2013 [https://www.criminalbar.com/resources/cba-responses/]

Part 4: Judicial Review

Clauses 50 to 56: Judicial review in the High Court & Upper Tribunal

34. We have grave misgivings about the newly conceived test – in Clause 50(1) – for striking out claims for relief, whereby the courts are obliged to refuse such claims where it "appears [...] to be highly likely that the outcome [...] would not have been substantially different". This imports a materially new – and high – hurdle for claimants to clear in their claim for relief, notwithstanding that a claimant has (by definition, at this stage of proceedings) satisfied the Court of the merits of a claim:

(2A) The High Court-

(a) must refuse to grant relief on an application for judicial review,
and

(b) may not make an award under subsection (4) on such an application,

if it appears to the court to be highly likely that the outcome for the applicant would not have been substant ially different if the conduct complained of had not occurred.

35. We see no justifiable or defensible reason for inclusion of this new check on – and bar to – relief. Relief has always been, and will remain, within the discretion of the Court. This provision is plainly designed to do nothing more than insulate unsuccessful government respondents from accountability and expenditure. This represents a sea-change in the relationship between parties to judicial review. Necessity, the availability and recovery of relief is bound up with award and recovery of the costs of litigation by those representing a successful claimant.

36. We are unequivocal and firm in our view that this new test re: relief should not be legislated.

37. Moreover, we are firmly against the radical changes proposed in clauses 53 (re: interveners and costs) and 54 and 55 (re: capping of costs). We see no sound reason – other than to limit accountability of government respondents, which is no justification – for the limitation which clause 55(2) imposes on recovery of claimant costs:

A costs capping order that limits or removes the liability of the applicant for judicial review to pay the costs of another party to the proceedings if relief is not granted to the applicant for judicial review must also limit or remove the liability of the other party to pay the applicant’s costs if it is.

38. A driving purpose and aim of the Bill is – unabashedly – to drastically restrict the ambit of cases which are amenable to judicial review. This much is readily apparent in clause 54(7) (re: capping of costs), which adds to the relevant test two further, hitherto unseen, limbs (b) and (c), below, designed to bar the number of cases which are deemed to be brought as "public interest proceedings":

The proceedings are "public interest proceedings" only if-

(a) an issue that is the subject of the proceedings is of general public
importance,

(b) the public interest requires the issue to be resolved, and

(c) the proceedings are likely to provide an appropriate means of resolving
it.

39. We think it is quite wrong that further, similar, devices are proposed by this Bill, restricting claims which will be considered as "public interest proceedings". Clause 55(8) (a) to (c) demonstrates these further conceived restrictions:

The matters to which the court must have regard when determining whether
proceedings are public interest proceedings include-

(a) the number of people likely to be directly affected if relief is granted to
the applicant for judicial review,

(b) how significant the effect on those people is likely to be, and

(c) whether the proceedings involve consideration of a point of law of
general public importance.

40. We are troubled by the Clause 53(2) (re: the proposed absolute bar on payment of costs of an intervener to judicial review proceedings):

A relevant party to the proceedings may not be ordered by the High Court or the Court of Appeal to pay the intervener’s costs in connection with the
proceedings.

41. This clause proposes to do exactly what Lord Pannick warned should not be done [see his opening address, given in October 2013, at the Annual General Bar Council conference]. Lord Pannick argued, "this Government does not understand or appreciate the importance of advocacy to the rule of law". Specifically:

My third example is [the proposal that] the rules of standing for judicial review should be restricted so that claims could be brought be persons with a direct interest and not by public interest groups such as NGOs, charities and pressure groups. [...] [This Government] does not understand, or appreciate, the importance of judicial review advocacy as a check on abuse of the power of public bodies, and an important inducement to them to adopt higher standards of legality, fairness and proportionality.

42. Lord Pannick finds company with other distinguished commentators. Professor Dawn Oliver, Emeritus Professor of Public Law at the Faculty of Laws, University College, London, in an article published on 19th March 2014, by the Constitutional Law Blog, has voiced indistinguishable concerns [http://ukconstitutionallaw.org/2014/03/19/dawn-oliver-does-treating-the-system-of-justice-as-a-public-service-have-implications-for-the-rule-of-law-and-judicial-independence/]. Her central thesis is that the courts are – and the justice system generally is – fundamentally different to other public services. Differently, judicial constitutional independence is, as Professor Oliver reminds readers, "an important constitutional role on with much of the system of government depends". Professor Oliver continues:

This ‘public service’ perspective puts some proposals for changes to the system of justice in a new light. The availability to critics of government of recourse to the courts and the independence of the judiciary can be a nuisance. What might a government do if it wanted to avoid litigation and embarrassment and enable it to get away with illegality? Just as, when developing policy in relation to the NHS, it can seek to limit access to the service (e.g. to drugs) and costs (e.g. by cutting staff, closing hospitals), so to it can do this in relation to the system of justice – but with startling consequences for the rule of law.  It could limit access to justice and deprive the courts of jurisdiction over unwelcome cases by reducing the limitation period for claiming judicial review and limiting the standing of charitable or voluntary sector bodies; it could find ways of weakening the ability of unpopular individuals (e.g. illegal immigrants, asylum seekers, convicted criminals) to pursue their claims in court by limiting their access to legal advice and representation; it could secure that unpopular parties (especially defendants in criminal cases) are less likely to win their cases [...]

I do not allege that any of these are the conscious intentions of the government. But the overall effect of such changes, based in part on assumptions that the system of justice is just another public service, may be to undermine the independence of the judiciary, broadly understood, and the rule of law. Thinking of the system as a service obscures its special constitutional importance.

April 2014 

Prepared 2nd April 2014