Friday, 4 September 2015

A Zealous Roundup: Bail Offences, the Criminal Charge, & Legal Aid Forensics

After a hiatus of some 18 months, I'd like to return blogging on a semi-regular basis. The approach with which I will be experimenting will be a sort of 'weekly round up' structure; thoughts on a few issues that have caught my eye recently, rather than extended discussion on single topics. That being said, this first one is longer than initially planned ! Comments/retweets welcome.



Some interesting figures have been released in relation to offending on bail. In mid-August 2015, the Ministry of Justice (MoJ) revealed that offences committed on bail dropped substantially during the last Parliament. The figures were released in response to a Freedom of Information request, although it is unclear who made the request. The headline figure states that between 2010 and 2014 'the number of offenders convicted of committing an offence of any kind while on bail has fallen 48% from 69,348 to 36,053'. The response provides data on the various types of offences committed on bail. It is not clear whether the headline figure relates to ALL types of bail (i.e. police and court bail). A footnote for Table 2 of the response suggests that the figures relate to all types of bail; however, this table does not cover all offences on bail. It is not confirmed elsewhere which types of bail the figures cover.

The MoJ states that 'the overwhelming majority of people bailed do not reoffend' and adds that the figures demonstrate 'substantial progress since 2010 in reducing the number of offences committed on bail'. The first statement is fairly uncontroversial. The second should perhaps be questioned. In infers that some proactive strategy on the part of the Government has reduced offending on bail. What this might be is not specified. The reduction could be explained in a number of ways. For example, bail may be being granted less; the police may be detecting offences on bail more infrequently (perhaps due to cuts in police numbers); as the response admits, the recording process does not necessarily capture all those suspects/defendants who offend on bail.

The figures will provide useful context for a research project I am currently working on with Professor Ed Cape and Fair Trials International, entitled the 'Practice of Pre-trial Detention'. The project has involved a desk based and empirical examination of the use of court bail and remands in custody in England and Wales, alongside 9 other EU jurisdictions. The figures on offending on bail may help provide explanations for trends in the use of bail/custody at the pre-trial stage. For example, lower offending on bail may encourage courts to make greater use of unconditonal/conditional release. Of course, such conclusions must be treated cautiously, be the release of the figures helps create a more complete picture of the practice of pre-trial detention and release in England and Wales.


Blogger @jackofkent recently highlighted the rather shaky rationale offered by under-secretary for Justice, Shailesh Vara, for the non-discretionary nature of the widely criticised Criminal Courts Charge. Way back in March 2014, in a Parliamentary debate about the proposed charge, Mr Vara said:

'The UK justice system is one of the finest in the world, and our courts must remain independent and impartial. Providing the court with discretion over whether to impose the charge would risk creating a perception that our judges and magistrates were being given the ability directly to influence the funding of the criminal courts—a system of which they are an integral part and the success of which they have a vested interest in. We cannot permit the risk of such a perception.'

This statement essentially says the following: 
  • Judges/magistrates want the court system to succeed 
  • If judges/magistrates can choose to impose the charge, this might give the impression that they can make money for a system from which they benefit 
  • This implies judges/magistrates may be tempted to abuse this power for their own gain
The conclusion is therefore that the judiciary cannot be given any discretion lest persons unknown believe the above to be true. As such, the court charge should be compulsory. This is fairly ludicrous for several reasons.

First, the uproar amongst the judiciary (including the resignation of magistrates) since the charge was introduced in April 2015 makes it very clear that they DO NOT want to order the charge in many cases. As such, the suggestion that judges/magistrates might want to over-use and inappropriately apply the charge is nonsensical.

Second, the statement implies that a) the MoJ believe the judiciary cannot be trusted to make fair and independent decisions because they may be tempted to abuse that power and b) that some other group of persons (the public maybe?) also believe this. There is no evidence to support this and it makes a mockery of centuries of judicial independence in decision-making. It undermines the judiciary. It also seems to contradict the statement that we have 'one of the finest' justice systems in the world if our judges can be so easily tempted into corruption.

Third, it is not clear that the Criminal Courts Charge directly benefits the court system or the judiciary. In a tweet on the 28th August 2015, @jackofkent reported asking the MoJ whether revenue from the charge would be fed directly back into the system - they refused to answer (although I cannot find any official/alternative source for this). Beyond the vague statement that the charge will go towards the cost of 'running the courts', the MoJ have provided no detail. Where the revenue generated will end up is at present a mystery. Additionally, there is no suggestion that it will personally benefit the judiciary (e.g. by contributing to salaries - and let's not forget that magistrates are unpaid volunteers).

Fourth, the MoJ's solution is wildly over-the-top. It imposes a blanket charge that is inflexible, frequently unfair, and punishes those without means. The charge can be grossly disproportionate to the offence in question (see the Howard League's campaign on this). To compensate for some vague impression that the judiciary would 'abuse' their discretion, the MoJ have chosen to remove it entirely rather than temper it. More rational responses would include:

a) Giving authority to a non-judicial figure for imposing the charge
b) Providing a set of strict guidelines on imposing the charge
c) Introducing some kind of gradation based on means
d) Not introducing the policy at all

Finally, it is faintly surreal that the MoJ wanted to avoid the perception that judges would be making money for the court system, so are obligating them to impose it. The charge is clearly designed generate revenue. The MoJ have said that the charge exists to recoup costs and is not a 'punishment' (although this is unconvincing in practice). By this logic, it must thus exist simply for the financial benefit of the court system - and judges are compelled to help with this. This seems equivalent to saying:

'We don't want you to choose to steal that old lady's handbag - so we're going to force you to do it.'

This is, quite simpy, irrational.



In late August 2015, forensic science specialist Contact Traces announced that it would no longer be providing its services in criminal proceedings in England and Wales. In its departing statement, it expressed its dismay at the disappointing state of criminal legal aid and the impact that budget cuts were having on the legitimacy and effectiveness of the system. Chief Scientist Tiernan Coyle said:

‘I’d like to pay tribute to all our clients from the criminal defence sector... Over the years they have faced a daily struggle to get the necessary funds from a decimated legal aid budget; just so they can provide their clients an understanding of the strength of the scientific evidence against them – which is a fundamental human right.’

Clearly, Coyle saw the role of organisations like Contact Traces as playing an essential part in upholding ther right to a fair trial and equality of arms. It is difficult to dispute this. Not only do forensic services help question a prosecution effectively; they also assist clients to engage with the justice process - they can 'understand' what they are facing and why. This may help them make a more appropriate decision as to plea, etc. Equally, the same arguments apply for foresnic services provided to the police and prosecution.

As Coyle suggests, the ability of defence lawyers to access such services - and thus do their job - is diminishing with the criminal legal aid budget. For those who can, Contact Traces no longer be available to assist. Whilst alternative providers exist, one wonders how many are considering the viability of continued practice in criminal proceedings. If access to such services disappears (for both defence and prosecution), the integrity of criminal proceedings will be damaged. This should be seen as warning sign.

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