In this issue:- New bills in the Queen’s Speech, impact of changes to legal aid, the implications of opting out of EU police and criminal justice measures, important information on Family Visit Visas and change in custody rights for 17 year olds.
The Queen’s Speech contained a number of significant announcements in relation to policing and criminal justice. In all, there were four Bills that fall under the responsibility of the Home Office or the Ministry of Justice. Much of what is contained within them has already been trailed before. Below is an overview of what has been announced. Not all of these Bills will be considered by the House of Commons immediately. The first to receive detailed analysis will be the Anti-Social Behaviour Crime and Policing Bill, which was debated on June 10th. Future newsletters will contain updates of the progress of each Bill and key points of interest.
The Offender Rehabilitation Bill contains proposals that the Government has already consulted on. It plans to provide rehabilitation for all offenders, including those who have been sentenced to less than 12 months (this category has the highest reoffending rate). However, there is no new money for this. Services will be provided by the private sector and voluntary bodies using a system of payment by results. On paper, the Probation Service will retain responsibility for the most serious offenders and have a role in assessing risk of all offenders, but it remains to be seen how workable these plans will be and whether public safety can be guaranteed. This Bill is being considered by the House of Lords; you can follow its progress through this link http://services.parliament.uk/bills/2013-14/offenderrehabilitation.html.
Anti-Social Behaviour Crime and Policing Bill contains a collection of unrelated issues which include making forced marriage a criminal offence, increasing penalties for the illegal importation of firearms, dangerous dogs and professional standards for the police One of its main aims appears to be an overhaul of anti-social behaviour legislation; proposing to give more powers to councils, landlords and the police to deal with anti-social behaviour and what has been called a Community Trigger, where complaints from five households would require action from the authorities. Its progress can be followed through this link http://services.parliament.uk/bills/2013-14/antisocialbehaviourcrimeandpolicingbill.html.
Separately, the Government plans to introduce a bill on the investigation of crime in cyberspace. Very few details exist as to what this will entail, but it may be a watered-down version of the much criticised Draft Communications Bill. That Bill intended to give the police powers to monitor electronic communications. To date no Bill has been published, but in the light of recent events in Woolwich and revelations surrounding the Prism programme in the US, the question of what powers the police should have to monitor an individual’s online activity and their scope i.e. whether they would only be permitted to see who a person has contacted or the content of the communications will remain the subject of debate.
The Immigration Bill seeks to address issues the Government has previously identified; most notably so-called health tourism, access to benefits for immigrants and rules on deportation. Doctors and landlords have already expressed concern that they will be required to act as immigration officers and there are doubts about the scale of health tourism. For example, the NHS already has powers to reclaim money owed for treatment and only 0.06% of the NHS budget is owed by foreign nationals who have received treatment in the UK. To date, a bill has not been published. If you would like to test your knowledge of immigration in the UK, there is an interactive quiz available on my website through this link http://tinyurl.com/cnpsq76.
A Justice Gap?
Since the last newsletter, the changes to legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have begun to be felt.
The changes aimed to cut £320million from the legal aid budget and ended access to aid in a number of different areas including welfare, debt, benefits, employment, housing and clinical negligence.
During the progress of the Bill in Parliament and since it has been passed into law, considerable concern has been raised about its impact, particularly in its potential to deny people access to justice or force them to represent themselves. This may have a knock-in effect of cases taking longer to be heard and be more expensive as a result.
According to Gillian Guy, Chief Executive of the Citizens Advice Bureau, the cuts could open up a: “Justice gap between those who can afford to pay for legal advice and those who can't.”
"Much of the rhetoric from the government is all about high paid lawyers and very complex human rights cases but what they are cutting from legal aid is the straightforward cases that are important to ordinary people. Early advice is being taken out of the system." [Steve Hynes, director of the Legal Action Group]
A further repercussion of the cuts is the closure of many free advice centres. Shelter, a national housing charity which provides advice to people facing homelessness and other housing problems has been forced to close 9 of its advice centres, while Citizens Advice Bureau has had to issue redundancy notices to some staff.
This may not be the end of the story, it is expected that there may be a number of challenges to the Act via judicial review, which will seek to test who qualifies for legal aid. It is also possible that the Government may provide additional funding for advice services. In the meantime, organisations like the Bar Council have sought to plug the gap by publishing a free guide to representing yourself in court. The guide is available via this link Representing Yourself in Court.
Criminal legal aid
Following these reforms, the focus has now switched to criminal legal aid. The Ministry of Justice has recently published plans to change access to legal aid in criminal cases.
A public consultation on the proposals ran until June 4th. More information is available at Transforming Legal Aid: Delivering a more credible and efficient system. The plan would see the creation of 42 procurement areas across England and Wales. Law firms would then go through a tendering process for the right to provide criminal legal aid services within their area.
The Government envisages awarding 400 contracts. Currently, there are 1600 providers, so it seems inevitable that many law firms will close as a result. Tenders will have to be at least 17.5% below current rates.
Considerable concern has been expressed about the implications of these proposals; individuals will no longer have a choice of who represents them, (something regarded as a fundamental principal of a fair legal system) and the drive to reduce costs will impact upon the quality of representation. Fees for each case will be fixed, regardless of outcome, leading to a fear that there will be an incentive for lawyers to recommend that their clients plead guilty.
These changes are likely to be introduced without requiring a new bill to be considered by Parliament; rather it will be done using changes to already existing regulations. The Government aims to establish the procurement areas and have the new system in place by the autumn of 2014.
An interesting take on the importance to retaining criminal legal aid is available through this link - http://www.newstatesman.com/politics/2013/05/exhibits-d-four-reasons-why-legal-aid-reforms-need-be-stopped
An underlying theme of many recent political debates has been the UK’s membership of the European Union and whether this still serves our best interests. While a referendum on membership may be some way off, the Government is planning for the UK to opt out of more than 130 police and criminal justice measures. A decision on what to opt-into and what to opt-out of has to be made by 2014 under the terms of the Lisbon Treaty. Opting out of everything and then choosing what to opt into may present difficulties; there is no guarantee that the UK will be able to opt back into what it wants.
While this idea may play well, particularly in the face of UKIP’s recent electoral success, what would be the impact of withdrawing from these measures? Would this help or hinder the police’s ability to deal with cross-border crime such as terrorism and drug trafficking?
The proposals were debated in the House of Commons last October (the full debate can be viewed here European Justice and Policing Powers) and have since been the subject of an Inquiry by a Committee in the House of Lords
In the debate, the Home Secretary explained her position
"Under the terms of the treaty, however, the UK cannot pick and choose the measures from which we wish to opt out; we can opt out only en masse and then seek to rejoin individual measures. So I can announce today that the Government’s current thinking is that we will opt out of all pre-Lisbon police and criminal justice measures and then negotiate with the Commission and other member states to opt back into those individual measures that it is in our national interest to rejoin."
The concern is that in the Government’s rush to prove its Eurosceptic credentials, the police may lose vital powers and opportunities to work with other police forces. One measure that could be lost is the European arrest warrant.
The Shadow Home Secretary, Yvette Cooper, made this contribution;
"From what the Home Secretary has said today, she may well be opting out of the European arrest warrant, which prevents that from happening.
"Another area is the sharing of criminal and DNA records. If a known sex offender travels to Britain from France or Spain, does the Home Secretary think that we need full access to their DNA and their criminal records or not?
"What about minimum standards of counter-terror co-operation, participating in Europol and exchanging information to stop passport fraud and Europe-wide money laundering, and to trace and freeze criminal assets? The Home Secretary has not told us her position on any of those important measures. She has not said whether she thinks we should opt out, opt out and then opt back in again, whether she thinks that we should renegotiate the provisions, or what will be put in their place in the meantime.
"The Home Secretary knows that there is no guarantee that the European Commission and other European countries will support our opting back in again. For example, Denmark, which has opted out from the justice and home affairs provisions, has had about 50% of its requests turned down. One of the Home Secretary’s junior Ministers has admitted that there will be a financial penalty for opting out and then opting back in. Does she have any idea what that financial penalty will be and whether it is worth the price?"
In evidence to a joint inquiry by two House of Lords’ Committees (all the evidence and final report can be viewed here), the Association of Chief Police Officers highlighted 13 measures that they feel should not be lost; their loss would hinder the work of the police and may result in the UK becoming a safe-haven for criminals, out of reach of the European arrest warrant;
“There is a real risk that opting out of the European Arrest Warrant and relying on less effective extradition arrangements could have the effect of turning the UK into a safe haven for Europe’s criminals.”
The Committee concluded that a convincing case had not been made in favour of an opt-out. More news on this will undoubtedly follow ahead of 2014.
Important information about Family visit Visas
Immigration is high on the political agenda at the moment, but away from the often heated debate, changes are due to be made to Family Visit Visas towards the end of June which are likely to affect many people.
As a result of the Crime and Courts Act 2013, there will no longer be the right of appeal in the event that a Family Visit Visa is refused, unless the appeal is on human rights or race discrimination grounds.
This change means it is essential that anyone applying for a Family Visit Visa provides all the evidence required when they make their application. There will be no right of appeal if an application is refused as a result of some supporting evidence not being included. The only option will be to make a fresh application and pay the fee again.
Many of the cases relating to visas I deal with are trying to resolve problems with Family Visit Visas. It is vital that anyone applying for one of these visas ensures that they provide all the necessary information to avoid unnecessary delays, cost and inevitable disappointment when applications fail.
Often the visas are for family occasions such as weddings, visits to new born family members. Getting the application wrong will mean the visit cannot go ahead and I urge families to ensure their relatives understand the importance of making sure the application contains all of the required information.
More information is available on the UK Border Agency website http://www.ukba.homeoffice.gov.uk/visas-immigration/visiting/family/.
Victory for common sense - Status of 17 year olds clarified
A recent successful legal challenge will mean that 17 year olds will no longer be treated as adults while they are in police custody. In all other areas of law, 17 year olds are treated as children, but until this successful challenge, a 17 year old could be arrested and detained without there being any requirement to inform their parents or a legal guardian.
The challenge was brought in the wake of several cases; one in particular involved a 17 year old being arrested and held without his parents knowledge. Tragically, he later took his own life. His parents have long campaigned for a change in the law, arguing that had they been informed, they could have offered their son vital support. A large public petition supported the campaign.
The High Court ruled on April 25th that current rules were incompatible with human rights law. It is now expected that the Home Office will revise guidelines to reflect the finding of the Court. This will be done following a consultation.