Election pivotal moment for British justice warns Law Society

Solicitors’ leaders today threw the gauntlet down to the political parties, challenging them to put the rule of law and access to justice at the heart of their plans for government.

“This election is a pivotal moment for the country and not just because of Brexit,” said Law Society of England and Wales president Simon Davis, as he launched the organisation’s manifesto.

“Successive governments have stripped back provision of legal aid and left our justice system in a dangerously under-funded state.

“Our legal system has long been seen as the global benchmark and our members fight the corner of some of the most vulnerable in society, including those struggling with mental health issues or personal hardship.
“But there is a crisis, and there are things that urgently need fixing in our justice system. The party that wins this election needs to focus on this or we will lose something fundamental.”

The Law Society is calling on the parties to implement a series of measures if they win power:
Conduct an independent economic review of the long-term viability of criminal legal aid; raise criminal legal aid fees in real terms and guarantee no future real terms cuts.
Reinstate legal aid for early advice from solicitors in housing and family law. This will help prevent cases from escalating unnecessarily and allow earlier resolution.
Increase the civil legal aid means test thresholds so more people can access legal aid. Remove the capital test for those on income-related benefits.
Secure a future relationship with the EU that allows lawyers to continue to practise and base themselves in the EU.

We believe the best way this can be achieved is through an Association Agreement.

Simon Davis said: “UK legal services contributed more than £27.9 billion to the economy in 2018. We contribute £4 billion to net exports. We directly employ more than 380,000 people and support many thousands more jobs in our local communities. We underpin business deals around the globe.
“After the UK leaves the European Union, the law of England and Wales will retain many of the advantages that make it attractive to international businesses, including its predictability, transparency and stability.
“However, preserving the legal sector’s strong economic contribution to UK plc will require close co-operation with the EU and the continued ability of UK lawyers to practise, establish and provide temporary services on the continent.”

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RUI review not a moment too soon – Law Society

News the controversial practice of releasing suspects under investigation is to be reviewed was today hailed by the Law Society of England and Wales, which has been campaigning for a rethink.

A high-profile investigation by the Law Society revealed tens of thousands of suspects are being released under investigation (RUI) – an open-ended arrangement which lacks the conditions, balances and checks afforded by bail.

“Our evidence showed how RUI is being used for a wide range of crimes including indictable offences such as rape and murder,” said Law Society president Simon Davis.

“There are concerns that alleged victims and witnesses to crimes are at risk as suspects are not made subject to bail conditions.

“Under RUI, innocent suspects can be left in limbo for months or even years and victims can face an open-ended wait for justice.

“The Law Society has been calling for time limits on the period of time people are left facing criminal investigation so they are dealt with on a reasonable timeframe with consideration for the safety of the public.

On areas of focus for the review, Simon Davis said: “In the interests of transparency, there should be a centrally-held register of numbers of people released under investigation, broken down by police authority area and offence. Current data collection is inconsistent at best. We look to contribute further to the review process moving forward.”

He warned that, although welcome, more efficient investigations must be supported with balanced investment in the wider criminal justice system: “The Law Society has consistently called for investment is needed across the board – particularly to the courts and the defence.
Greater efficiency at the investigative stage is needed, though without wider investment we risk bottleneck effect. Rather than reducing crime, more could fall through the cracks of investigation and prosecution.”

5 November 2019

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Victims and suspects left in limbo after changes to police bail – new research

Tens of thousands of suspects are being released without bail conditions for unlimited periods, according to new research by the Law Society of England and Wales. Suspects, victims and witnesses are left waiting for months or even years for justice. With no fixed time limit, cases can drag on for unlimited lengths of time. There’s no requirement to update the suspect if or when the case will progress. Unlike bail, neither are conditions applied – such as requiring the suspect to live at a particular address, avoid certain areas/people or report to a police station. RUI is being used for a full range of crimes; including indictable offences such as murder. There is not a standardised process for assessing risk to the public.

Figures for 17/18 from 31 police authorities show that many are releasing a majority of suspects under investigation.
Law Society of England and Wales president, Simon Davis, said: “Thousands of suspects are being released under police investigation. With no fixed time limit, cases can take months or even years to go to court.
“Suspects are left with uncertainty; victims of crime often live in fear of being confronted by the accused.”

Key findings:
The use of release under investigation (RUI) has increased dramatically since changes were placed on the use of bail in 2017.
The number of suspects released on bail has decreased dramatically – appearing to have been replaced almost entirely by RUI in some police authorities. In Thames Valley, the number released on bail between 2016 and 2017 was 13,768. But in 2017-2018 this fell to 379, as the number released under investigation rose to 11053.
The average length of investigation is much longer than police bail. In Surrey, there is an average of 228 days. There’s no limit on how long investigations can last – and no requirement to give updates if or when the case will progress. This can cause much anxiety and distress for those involved – including victims.
Davis continued: “Decades of cuts have left the system at breaking point. Officers are struggling to investigate cases expeditiously because of staff reductions.
“They may have trouble keeping pace with the level of arrests and interviews, and the process for acquiring witness statements and forensics – both digital and standard – can be very time consuming.
The under-pressure Crown Prosecution Service (CPS) insist on cases being trial ready before making charging decisions. As a result, police are using this procedure to buy investigative time.
“Prosecution figures are at their lowest in a decade.”

Case study 1:
A solicitor had a client who was released under investigation for two separate knife crime murders. This individual has also been released under investigation for two separate knife robbery offences. During the time he has been subject to RUI he was also charged with a separate S18 GBH knife crime and has undergone a Crown Court trial.
“In the interests of both justice and public safety, release under investigation must be used appropriately,” said Davis.
“This means the introduction of strict time limits, a consistent application of risk assessment processes, and centrally-held data for all suspects under investigation.”
He warned: “Although investment in police and prosecutors is welcome, it cannot be in and of itself the solution.
“Investment is needed across the board – particularly to the courts and the defence. The Ministry of Justice has lost a quarter of its budget since 2010.
“Simply pushing more suspects through the system risks creating a bottleneck effect. Rather than reducing crime, this allow more to fall through the cracks of investigation and prosecution.”

Case study 2:
A young woman was arrested for cannabis possession in a prison visiting area and was later found to have 10 tablets of MDMA at her home address. As this was a simple case with the evidence quickly available, it could have been resolved quickly in court. However, the individual was released under investigation and the case did not come to court until 22 months later. In this time the individual had assumed the case would go nowhere and had started a family. By the point of the trial, the judge felt that, given the circumstances, there was little he could do other than impose a Community Order.

The Policing and Crime Act 2017 introduced an initial maximum period of 28 days for police bail. This can then be extended up to a period of 3 months on the authority of a police officer at Superintendent level or above. In exceptional circumstances this can be extended yet further by a Magistrates’ Court.
The following Freedom of Information requests were submitted to all police authorities in England and Wales by Hickman & Rose Solicitors:
a. How many people did your force release on pre-charge police bail between 3rd April 2016 and 2nd April 2017? How many people did your force release on pre-charge police bail between 3rd April 2017 and 2nd April 2018? 31 authorities responded to this request.

b. How many people did your force release on pre-charge police bail between 3rd April 2016 and 2nd April 2017? How many people did your force release on pre-charge police bail between 3rd April 2017 and 2nd April 2018? 13 authorities responded to this request.

The full data from all respondents can be found here: https://www.lawsociety.org.uk/policy-campaigns/campaigns/criminal-justice/release-under-investigation/

Our paper ‘Release Under Investigation: August 2019’ can be also be found here: https://www.lawsociety.org.uk/policy-campaigns/campaigns/criminal-justice/release-under-investigation/
Full recommendations:

a. Ensure release under investigation is used appropriately: The police need to ensure decisions around whether to place someone under bail or RUI are necessary and proportionate.

b. Time limits on release under investigation: Strict time limits must be introduced to RUI, with senior approval required to extend those time limits, mirroring the bail requirements.

c. Better ways to update the accused: Police forces should use additional methods to contact the accused, such as email and/or a text message in case the individual has moved or is away from home.

d. Better data collection: There should be a central register of the numbers of people released under investigation, broken down by police authority area, by the crime the individual has been accused of, and the date of when the individual is placed under RUI.

e. Fairer remuneration for defence solicitors: The Law Society has long been calling for an increase in legal aid rates paid to criminal defence practitioners.

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Queen’s Speech response from the Law Society – “victims need a system capable of delivering justice”

The Queen’s Speech announced 26 pieces of legislation for the next UK parliamentary session, with crime emerging as a key domestic priority for the government.
Seven bills on the theme of law and order were unveiled including: tougher sentencing and new measures to target offenders who are foreign nationals.
The Private International Law (Implementation of Agreements) Bill was announced to provide “certainty, stability and new opportunities” for the sector.
The Domestic Abuse Bill and Divorce, Dissolution and Separation Bill have returned and will be part of the next legislative agenda.
No announcements were made as to the future of the courts modernisation programme.

Responding to the law and order proposals, Simon Davis, president of the Law Society of England and Wales, said: “This recognition of the importance of our criminal justice system is welcome, but victims of crime need to have confidence that it is capable of delivering justice. Due to years of neglect, it is a system at breaking point. Tens of thousands of suspects are being released under investigation with neither conditions nor limits. Crucial evidence is not disclosed in court until the last minute, often leading to adjournments. In England and Wales more than half of courts have closed. Defence solicitors have not received an increase in fees since the 1990s and are at risk of becoming an endangered species. As a result, justice is delayed for months or even years. Introducing tougher sentencing is unlikely to lead to any serious reduction in crime, nor encourage those in prison to rehabilitate. Only by investing across the board can the government reignite confidence in our ailing criminal justice system – or risk more crime falling through the cracks of investigation and prosecution.”

On the introduction of the Private International Law (Implementation of Agreements) Bill, Simon Davis said: “England and Wales continues to be a global legal centre – contributing more than £25 billion a year to the UK economy. With the announcement of this bill, we are pleased to see the UK seeking to maintain its role as a world leader in private international law.”

Commenting on of the return of the Domestic Abuse Bill and Divorce, Dissolution and Separation Bill, Simon Davis said: “Together the bills have the potential to change millions of lives across England and Wales and we look forward to working with the government on these vital pieces of legislation. We welcome the news that these important issues will be dealt with in the next parliamentary session.”

On the absence of legislation for the court modernisation programme, Simon Davis warned: “The absence of any legislation aimed at modernising our court and tribunals system puts into doubt the future of the HM Courts & Tribunals Service court modernisation programme.”

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U-turn on probate fees hike welcomed

The government’s u-turn on a probate fees increase was today welcomed by the Law Society of England and Wales, which ran a campaign to stop the fee hike.

Under the government’s proposals, probate fees would have risen from the current fixed fee of £215 – or £155 with a solicitor – to a sliding scale of up to £6,000 depending on the size of the estate.

“A hike in probate fees would have been a tax on grief,” said Law Society president Simon Davis.

“We campaigned vigorously against the increase on behalf of bereaved families and are relieved the government has listened to reason.

“It is inherently unfair to expect the bereaved to fund other parts of the courts and tribunal service when they have no other option but to apply for probate.

“In its review of court fees government should bear in mind that it is a false economy to impose charges that go beyond cost recovery. Equal access to justice is a fundamental part of the rule of law.”

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New leasehold information rules a big victory for consumers – Law Society

The endorsement by ministers of proposals to give consumers significantly more information early in the home buying process was today given a partial welcome by the Law Society of England and Wales.

“It is encouraging to see government has recognised just how much easier it will be for consumers to make informed decisions if full information is provided at the very beginning of the home buying process,” said Law Society president Simon Davis.

“Conveyancing solicitors are usually involved at a much later stage, by which time clients may have already emotionally committed to the purchase – and may be less open to hearing advice about onerous conditions. This can make it much more difficult to advise. A time limit of 15 working days for developers and estate agents to provide the necessary information is therefore entirely appropriate and to be welcomed.

“It is particularly pleasing that alongside the government-proposed key features document for new build homes, there will also be some provision for the second-hand market. This will help consumers to make comparisons between properties they wish to view.

“We are keen to see a satisfactory resolution to all of the issues currently facing affected owners and prospective purchasers of leasehold properties. Although these proposals appear to be a step in the right direction, we look forward to seeing further details of how the proposed legislation will work in practice.”

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Haphazard embrace of AI puts justice at risk

The ad hoc use of complex algorithms in the justice system needs urgent oversight, the Law Society of England and Wales said as it released the results of a year-long investigation.

The Law Society Technology and Law Policy Commission publishes its report on algorithms in criminal justice alongside an interactive map that allows the public to see for the first time the beginnings of an overview of where algorithms are being used to assist decision-making across the justice system across England and Wales.

“Police, prisons and border forces are innovating in silos to help them manage and use the vast quantities of data they hold about people, places and events,” said Law Society president Christina Blacklaws.

“Complex algorithms are crunching data to help officials make judgement calls about all sorts of things – from where to send a bobby on the beat to who is at risk of being a victim or perpetrator of domestic violence; who to pick out of a crowd, let out on parole or which visa application to scrutinise.

“While there are obvious efficiency wins, there is a worrying lack of oversight or framework to mitigate some hefty risks – of unlawful deployment, of discrimination or bias that may be unwittingly built in by an operator.

“These dangers are exacerbated by the absence of transparency, centralised coordination or systematic knowledge-sharing between public bodies. Although some forces are open about their use of algorithms, this is by no means uniform.”

The Law Society’s key recommendations:

Oversight: A legal framework for the use of complex algorithms in the justice system. The lawful basis for the use of any algorithmic systems must be clear and explicitly declared
Transparency: A national register of algorithmic systems used by public bodies
Equality: The public sector equality duty is applied to the use of algorithms in the justice system
Human rights: Public bodies must be able to explain what human rights are affected by any complex algorithm they use
Human judgement: There must always be human management of complex algorithmic systems
Accountability: Public bodies must be able to explain how specific algorithms reach specific decisions
Ownership: Public bodies should own software rather than renting it from tech companies and should manage all political design decisions

Christina Blacklaws added: “Within the right framework algorithmic systems – whether facial recognition technology, predictive policing or individual risk assessment tools – can deliver a range of benefits in the justice system, from efficiency and efficacy to accountability and consistency.

“We need to build a consensus rooted in the rule of law, which preserves human rights and equality, to deliver a trusted and reliable justice system now and for the future.

“The Law Society is grateful to professors Sofia Olhede and Sylvie Delacroix, whose expertise helped the Technology and Law Policy Commission formulate practical, specific recommendations for government and public bodies to minimise the risks and maximise the benefits of complex algorithms in the justice system.”

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Legal profession must tackle bullying and harassment head on

The legal profession must tackle bullying and harassment in the sector head on, the Law Society of England and Wales reiterated today, following a report by the International Bar Association (IBA) on the high reported incidence in the global profession.

“We will not tolerate sexual harassment or bullying in the legal sector,” Law Society president Christina Blacklaws said.

“Just as anyone is protected by the law, they should also be protected by employers – law firms included – which have a duty of care to their employees, contractors, clients and visitors.

“Working environments should be safe for all, with clear policies to prevent harassment as well as accessible, safe procedures to deal with any complaints.

“Anyone who has experienced sexual harassment should be able to feel they can report it safely and with the confidence they will be taken seriously.

“Solicitors have professional and ethical obligations that mean anyone found guilty of harassment is likely to face disciplinary action by the regulator as well as any civil or criminal proceedings.

“A Women in Law Pledge – the result of widespread collaboration across the legal profession – will launch next month. It commits signatories to tackle sex discrimination, bullying and sexual harassment wherever it occurs in the workplace.

“It is incumbent on all of us to work to end bullying and harassment of any kind.”

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Weinstein whistleblower calls on lawyers to consider ethical boundaries

Non-disclosure agreements (NDA) must strike a balance between the rights of the client and the wider public interest, the chair of the Law Society of England and Wales employment law committee warned.

Max Winthrop was debating the subject with Zelda Perkins, a whistleblower involved in the Harvey Weinstein case.

The event was organised by the Law Society as a contribution to the recent debate on the role of solicitors in the use NDAs and confidentiality clauses – and what role ethical considerations should have.

“Solicitors have a responsibility to stay on the right side of ethics when drafting confidentiality clauses,”said Zelda Perkins.

“We must remember that there is disparity of power between a claimant and their employer. Even if well-advised, claimants are automatically in a position of weakness.

“There can be enormous pressure upon claimants to sign non-disclosure agreements without fully understanding the long-term implications.”

Recent high-profile cases have proven a cause for concern, and the Law Society has been working with government to protect those who may be vulnerable. We have submitted written evidence on the law relating to the use of confidentiality clauses where harassment is alleged and made suggestions for possible improvements. 

“There will be situations in which confidentiality clauses are entirely appropriate – and in some instances, in the interests of the claimant and employer,” said Max Winthrop, chair of the Law Society employment law committee.

“However, the boundaries of these agreements must be made clear to clients and to claimants – in particular, they cannot prevent the reporting of criminal behaviour.

“With the enormous public scrutiny on this issue, it’s right that solicitors consider where responsibilities lie – to their client, but also to the public interest.”

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Stringent protections are paramount when justice is delivered through technology, cautions Law Society

Legislation intended to pave the way for online justice – including in criminal trials – will be carefully scrutinised by the Law Society of England and Wales to ensure the most stringent protections are put in place.
Responding to the publication of the Courts and Tribunals (Judiciary and Functions of Staff) Bill, Law Society president Joe Egan said: “Putting technology to work to help deliver justice is reasonable so long as there are appropriate safeguards.
“We are likely to press for safety measures to be included within some areas of the legislation.
“In particular, we believe online indications of a plea in criminal cases should only be permissible where the defendant is represented.
“It’s one thing to be able to enter a plea and be convicted online in very minor cases, as you currently can by post. But we will want to see the most stringent protections against ‘mission creep’ so that online justice is not used for more serious criminal offences.
“This bill includes a number of measures which will be significant in advancing Her Majesty’s Courts and Tribunals Service’s (HMCTS) reform programme, and will give Parliament its first opportunity to engage in detail with the programme.
“A modernised court service and efficient use of technology could benefit all court users, and will hopefully allow for court staff to deal with ‘routine matters’ and free up judges’ time to concentrate on other matters.
“Technology has an important role to play, but it is not the silver bullet. A recent National Audit Office report has highlighted that this programme has significant funding gaps. We are aware that facilities are not yet in place across all courts.
“We hope that, with this bill, more funding can be injected into the court modernisation programme to ensure it is sustainable.”

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