Administration of justice update
Administration of justice update: the Prisons and Courts Bill
The new bill covers prison safety and reform; court reform; the judiciary; and whiplash compensation. The most significant proposals are summarised in this article.
The Prisons and Courts Bill was introduced in the House of Commons in February 2017. The publication of the bill was accompanied by 17 fact sheets, published on the Ministry of Justice’s website, setting out, for each area covered by the bill, the current position and proposed changes.* (See also pp4, 6–7 and 44 of this issue.)
Tariff of predictable damages
The bill’s provisions will bring forward a tariff of predictable damages for all whiplash claims with an injury duration of between 0 and 24 months. The tariff will provide a single figure, setting out the value of the claim, based on injury duration. Claimants will be able to identify the amount of compensation due based on the prognosis period data contained within their medical report.
Medical reports will continue to be sourced through MedCo to ensure the reports are provided by accredited, independent experts and meet minimum standards. In addition, in exceptional circumstances and upon application by the claimant, the judiciary will be able to apply a discretionary uplift of up to 20% to the amount set out in the tariff.
Banning offers to settle without medical evidence
The proposed changes introduce a prohibition on the ability to offer, solicit or accept offers to settle road-traffic-accident related soft tissue injury claims without medical evidence. This does not provide any exemption from the ban. There will also be a provision for enforcement of this ban through the relevant regulators.
The Tribunal Procedure Committee (TPC) will be able to determine how cases are managed in employment tribunals (ETs) and the Employment Appeal Tribunal more flexibly and responsively. As with the First-tier Tribunal and the Upper Tribunal, the power to make procedural rules will be conferred on the independent, judicial-led TCP, the membership of which will be expanded to reflect the committee’s wider remit. This will enable any necessary new rules to be scoped, developed and implemented promptly based on user feedback.
The Lord Chancellor will be responsible for determining panel composition and will be able to delegate this to the senior president of tribunals to carry this out as a judicial function. This will provide necessary flexibility to make sure that decisions on panel composition can be determined objectively, taking account of the future needs of tribunal users based on the requirements of the case and the way that cases are resolved in a reformed tribunal system.
The TPC is modelled on the separate rule committees which make rules of court and it already makes Procedure Rules for the First-tier Tribunal and Upper Tribunal established under the Tribunals, Courts and Enforcement Act (TCEA) 2007. The revised powers in respect of procedure rules and panel composition for the ET system are modelled on those contained in the TCEA which apply to the First-tier Tribunal and Upper Tribunal.
These measures will not directly change the way the ETs operate, but rather will provide more flexible and responsive rule-making powers. While specific decisions relating to the operation of the tribunals will rest with the TPC and the senior judiciary, examples of how these powers might be used would include the delegation of routine judicial tasks to caseworkers, and greater flexibility to adapt panel composition according to the needs of the case.
The online procedure will be an entirely new digital procedure governed by a new set of rules entirely separate to current processes. It will use a mix of technology to utilise online processes, more mediation, and judicial resolution to provide more focus on the real issues in dispute and enable simple and quick dispute resolution which will benefit court users.
In order to maximise the use of technology, the provisions will establish a new online procedure which may apply to civil, family and tribunal proceedings. In addition, the provisions will establish an online procedure rule committee. The new rule committee will have expertise in the law and the provision of lay advice and other relevant experience which will enable it to produce straightforward, easily understood court rules which will support the online procedure and which are, as far as possible, embedded in the online software.
The online procedure provisions will allow the government to launch new, straightforward digital services that allow everyone to access and understand the system. Those using the online procedure will be able to resolve their cases entirely online and will be provided with clear information about what is happening and what to do next to guide them through the process. For businesses, this will mean that they are able to recover money much more easily, with digital services that allow them quickly to issue and pursue their cases. An example of the type of cases that will benefit from the new procedure are low-value money claims below £25,000.
The proposed provisions will allow courts to put an end to the face-to-face cross-examination of vulnerable witnesses in the family courts, so that people who need to be heard are not afraid of speaking out.
For example, a party to family proceedings who has been convicted of committing an assault against the witness will not be allowed to put questions to that witness directly. The court must consider if there is a satisfactory alternative way of obtaining the evidence. If the court concludes that there is not, then it may appoint a publicly-funded legal representative to undertake the cross-examination .
The provisions will have the practical effect of:
a. introducing a blanket ban on cross-examination in person in certain specified circumstances –for example, where the would-be questioner has been convicted of committing a violent or sexual offence against the witness;
b. giving the court a discretion to prohibit such cross-examination in other specified circumstances – for example, where the court is satisfied that such cross-examination would cause significant distress to the witness;
c. requiring the court to consider alternatives to cross-examination where a prohibition on cross-examination in person applies;
d. giving the court a power in specified circumstances to appoint a funded legal representative to ask questions on behalf of a party who is prohibited from cross-examining in person; and
e. making provision for the public funding of such legal representatives.
The court may use its inherent powers to direct for basic administrative decisions (such as an uncontested variation of bail terms) to be made without a hearing ‘on the papers’ (preferably using the digital platform). Where a hearing is deemed necessary by the court, this may not always require all parties to be present in the physical court room. The court may direct for the use of live audio or video link, or a fully virtual hearing, if the court is satisfied that it is in the interests of justice to do so, having considered any representations from the parties (and youth-o ffending teams where a young defendant is concerned). For example, in the past the defendant, their representative and the prosecution may have had to travel long distances to take part in a straightforward case management hearing, in the future they may be able to participate in a video or telephone conference from a more convenient location such as their offices .
The bill sets out limits as to when video or telephone technology can be used. For example, save for the existing single justice procedure, trials and sentencing must be decided at a hearing and cannot be heard by wholly audio hearing or with attendance through live audio link. Disputed bail applications must be determined at a hearing. This cannot be heard by wholly audio hearing or with attendance through live audio link where there is a dispute as to whether to grant bail.
There will also be safeguards in place to ensure that virtual hearings and other electronic channels are only used under appropriate circumstances and that the defendant is afforded a fair hearing. The court will always have the final say on whether it is appropriate to conduct a hearing in a certain way, and must be satisfied that it is in the interests of justice to do so. Factors which might render it contrary to the interests of justice for a matter to be determined by a certain means will be set out in Criminal Procedure Rules and Criminal Practice Directions as appropriate.
The key provisions in the bill will have the following effect:
- The court being permitted to deal with pre-trial and enforcement issues via wholly audio or wholly video hearing or with the use of live audio or video link, regardless of whether the defendant is in custody.
- Where the grant of bail is in dispute, the court will be able to make its decision in a wholly video hearing or will be able to make use of live video link. Where the conditions of bail are in dispute, the court will in addition be able to make its decision in a wholly audio hearing or will be able to make use of live audio link.
- In suitable cases, the court will be able to direct that the hearing at which a defendant is convicted and sentenced be conducted by a wholly video hearing or enabled using a live video link (because young defendants are not eligible for the SJP, they are also not eligible for sentencing by wholly video hearing in such circumstances).
- Trials in the magistrates’ court for summary only, nonimprisonable offences (such as TV licence evasion and speeding) may be conducted by wholly video hearing or using live video link. This would be where a trial by a single justice on the papers was proposed but could not take place, and the parties agree to the trial being conducted wholly as video proceedings. All other trials, including youth cases, will be conducted in the physical courtroom.
- In all trials, there will be additional provision for witnesses (including the accused) to attend and give evidence by live video link. There will also be provision for witnesses to give evidence by live audio link, where there are no suitable live video-link facilities and the parties agree.
The key provisions in the bill will:
- enable the court to direct that a video or telephone hearing should be live streamed to enable observers to see or hear criminal proceedings;
- make it an offence for a person to make, or attempt to make, an unauthorised recording or transmission of a virtual hearing live stream;
- make it an offence for a person to make, or attempt to make, an unauthorised recording or transmission of a person observing a virtual hearing live stream; and
- make it an offence for a person to make, or attempt to make, an unauthorised recording or transmission of a person participating in court proceedings via live audio or video link.
The provisions introduce a clear statutory purpose for prisons. The provisions recognise that prisons give effect to sentences or orders imposed by courts for imprisonment or detention and, in doing this, prisons must concentrate on four aims:
- protect the public;
- reform and rehabilitate offenders;
- prepare prisoners for life outside prison; and
- maintain an environment that is safe and secure.
These provisions will be supported by new standards for governors, introduced from April 2017, with league tables measuring prisons on key areas linked to these aims, such as reducing assaults on prison staff and prisoners and the number of incidents of self-harm .
The legislation modernises the secretary of state’s overarching responsibility for prisons, to help make clear the distinction between her role in managing the prison system as a whole and the operational running of individual prisons that is rightly for governors and their staff, such as the governor’s responsibility for progress made in substance misuse and health.
It will also require the secretary of state to report on the extent to which prisons are meeting their purposes, such as success in reforming and rehabilitating offenders, so enabling the secretary of state to be held to account against them by parliament and more broadly.
*Prisons and Courts Bill: fact sheets, available at: http://tinyurl.com/zmsbe6c