Government Blunders its way into Possible Judicial Review

neck-braceThe government could be facing a judicial review over a recent set of blunders with reform proposals. The government has been criticised for a number of missteps in recent personal injury reform proposals, some of which have led to the possibility of review.

The government recently unveiled a whole raft of proposals for consultation, which could see significant change to the personal injury sector. Primarily, these would target whiplash claims following traffic accidents, but some of the key measures proposed would also apply to other areas of personal injury law such as workplace accident claims. The proposals are quite varied in their nature, but are largely aimed at curbing what the government perceives to be an excessive claim numbers.

The most prominent blunder that has been revealed is the use of outdated figures in the creation of the consultation document and the setting of proposed levels of financial compensation for minor injuries. The data used for this aspect of the document makes use of old judicial guidelines and therefore fails to to account for an increase made in the Autumn of last year.

The September 2015 revision which the paper overlooks saw a 3.4% increase in financial figures to account for inflation. Perhaps more significant, however, is the fact that there was a much more significant increase in those figures relating to the lowest band of claims for injuries to soft tissue. This group of injuries saw an increase of 20%.

Kerry Underwood, a solicitor, blogger and contributor to a number of major legal publications, suggests that the increase to the lowest soft tissue injury band represents a problem that goes beyond the significant size of the change itself. The kind of injuries that fall into this band, she points out, “are precisely those now under attack by the MoJ as disproportionately high. So the figures that the MoJ think are too high, were thought too low by the top judicial and other experts.”

These blunders, she says, make the consultation paper “misleading and now open to judicial review.”

Separately, the government as a whole has also attracted criticism for its left hand apparently not knowing what its right is doing. Much was made of the proposed reforms to curb whiplash claims being designed to result in a reduction in insurance premiums, said to equate to £40 a year for the average motorist. Law-abiding motorists bearing the cost of excessive, frivolous, or fake injury claims was stated as a justification for the need to introduce such reforms, and it was said that insurers had already promised to pass on their savings. However, within days of the Ministry of Justice beginning consultations, the Autumn statement saw the Treasury an increase to insurance premium tax, which many took to be a measure running counter to personal injury reforms and likely to soften or eliminate the promised reduction in premiums.

Top Fraud Barristers Rent Premises From Money-Launderer

One of the top groups of fraud barristers in London has recently been revealed to be renting its premises from a landlord who has laundered millions in bribe money. It should be emphasised, however, that the barristers in question had no way of knowing about this ironic arrangement until a recent document leak, thanks to much-hated landlord privacy laws.

9-12 Bell Yard Chambers is based in premises formerly owned by Scottish Widows, but purchased by another company, PDB Properties Ltd, in 2015. A set of privacy laws, which have been not infrequently criticised meant that the owner of this shell company, which is incorporated in the British Virgin Islands, was under no obligation to reveal his identity. 9-12 Bell Yard Chambers’ landlord chose to exercise this right to anonymity, letting out the property only under the name of his company.

The reason he chose to remain anonymous is not hard to understand now that leaked documentation has revealed him to be a major money launderer. The barristers’ landlord, it turns out, is Expedito Machado, the son of Brazilian former senator Sergio Machado. The senior Machado was part of a major corruption scandal, accepting hefty bribes from contractors who were submitting bids for work. Machado junior was also implicated in the scandal, as he laundered this bribe money, totalling millions of dollars, in order to help his father carry out his profitable corruption in secret. When the scandal broke, the two cooperated with the authorities after managing to strike plea bargains.

It would certainly not be fair to call this a blunder by 9-12 Bell Yard Chambers. They had no idea, and no way of finding out, that they were renting their property from a figure like Sergio Machado and, perhaps ironically, this is because his privacy was protected by law. Even so, the fact that major fraud barristers were paying thousands in rent to a criminal of the kind they would normally deal with in a very different capacity. At best, this is ironic and at worst it is a blunder of the wider legal system in continuing, despite criticism, to allow landlords with criminal pasts to keep their identities secret when operating through shell companies.

The barristers will not be occupying Machado’s property much longer. This is not because they are leaving on principle but rather because they were already being forced out. Last year, plans were approved to convert the premises into luxury apartments. This must be all the more inconvenient for the barristers in question, considering their operation is named after the address which they will now no longer occupy.

Written Rebukes for Judges who Watched Porn on the Job

ComputerTwo judges were recently issued with written rebukes by the Solicitors Regulation Authority (SRA). These rebukes were earned through some rather questionable blunders in judgement; they were caught using judicial computers to look at pornography when they were supposed to be working.

The two judges in question are Andrew Richard Matthew Maw and Peter Edward Bullock. Maw was appointed a district judge in 1994, having been a deputy district judge since 1983. In 1996 he became an assistant recorder, and in 2000 a full recorder. He resigned from this role in late September 2014, before the conclusion of the disciplinary investigation.

In a statement, the SRA confirmed that he had indeed used judicial IT equipment to view inappropriate material. Had he not resigned before disciplinary proceedings had reached their conclusion, the statement said, he would have been removed from his role by the Lord Chancellor and Lord Chief Justice.

Bullock, meanwhile, was removed from office for his misconduct. This took place in March 2015, after the investigation concluded that he had indeed used his working hours and judicial IT equipment to watch porn. Bullock had been a recorder from 1996 to 2014, and a deputy district judge from 2011 to 2014.

According to the decision issued after the investigation into Maw, three judges were removed from office as a result of investigations into claims they had viewed pornography on Ministry of Justice computers. The same process, it said, would have been followed with Maw had he not already removed himself from office through resignation.

The decision reached following the investigation into Bullock, meanwhile, stated that the Lord Chief Justice and Lord Chancellor were were “satisfied that the material did not include images of children or any other illegal content” but that viewing erotic material at work was still “an inexcusable misuse of his judicial IT account and wholly unacceptable conduct for a judicial office-holder.”

The two judges admitted that they had viewed adult content using Ministry of Justice equipment and time, and that by doing so they had failed to comply with SRA principles. Specifically, the admitted that their offences ran contrary to principles 2 and 6 of the SRA Principles 2011, which respectively require that solicitors and judges act with integrity and behave in ways that maintain public trust.

Bullock claimed that his offences were mitigated by the fact that the pornography “was accessed only in private chambers… for a limited amount of time” and that doing so “did not impinge on his judicial work.” He also agreed to pay a £600 contribution to the costs of the investigation. Maw, meanwhile, agreed to contribute £1,350 to the investigation costs.

The SRA, however, described the judges’ conduct as “deliberate or reckless and was neither trivial nor justifiably inadvertent.”

MOJ Wastes £411,000 on Legal Aid U-Turn

The amount of money wasted on the government’s controversial and ultimately abandoned attempts to introduce legal aid contract reforms has been revealed. In total, the government wasted more than £411,000 on the endeavour.

The proposed measures, which would have introduced two-tier contracts and competitive tendering to the criminal legal aid system, where originally announced by Gove’s predecessor as Justice Secretary Chris Grayling. Grayling, who has been described as one of the most controversial and unpopular Justice Secretaries of recent times, introduced a number of poorly-received measures which have later been scrapped by his successor. The abandonment of the legal aid contract reforms represented the fifth time that Gove had gone back on one of Grayling’s plans.

Under the scheme, 527 duty contracts were to be made available for firms who wished to provide criminal legal aid services, and firms across the country would have been required to bid competitively for the right to hold one of these contracts. Those that lost out could have faced a significant drop in incoming workload and income.

Whilst a number of recent reforms, particularly in relation to legal aid, have proved unpopular, the response to the proposed contracting system from the legal sector was particularly strong. Some top lawyers said that criminal law was set to become a “futureless profession” under the new regime, there were multiple claims of bad practice, and a number of formal legal challenges were launched against the government in an attempt to stop the reforms. In January, 14 months into the procurement process for the new contracts, Gove announced that the new system would not be put into operation after all. At the time of this announcement, the government was fighting a judicial challenge over the changes from the Fair Crime Contracts Alliance, as well as roughly 100 separate claims from law firms across the country.

Some of the costs associated with the attempt to bring about these reforms have been revealed under the Freedom of Information Act, and total more than £411,000. This includes £271,574 spend on agency staff in association with the reforms, £125,933 on legal support regarding the procurement process, and £13,565 in external legal assistance with the drafting of the contracts. This makes for a total cost of £411,072.

This figure does not include the amount spent on defending the proposals from the wave of legal challenges that were made. This information was included in the Freedom of Information Request made by the press to the government, but the Ministry of Justice said that, while it does have the information, “we believe that releasing the information would be likely to prejudice both the administration of justice as well as the department’s commercial interests.”

Senior Judges Speak out Against Government Court Fee Mistakes

Court FeesSenior members of the judiciary have harshly criticised the government with regard to increases in court fees. These increases, the judges feel along with many other parties, represent a serious mistake and are having a profound negative impact on the UK’s justice system.

Lord Dyson, Master of the Rolls, led the verbal attach and was supported by Sir Ernest Ryder and Sir James Munby. Appearing before the House of Commons’ justice committee, Dyson said that the increased fees were impeding the ability of many parties to receive justice under UK law.

“Ordinary people,” Dyson said, were being put off of taking their cases to court by the fees and this left them unable to uphold their rights under the law. Furthermore, it is not just individuals affected in this way, Dyson said, but also small and medium-sized businesses. These are exactly the kind of businesses, he pointed out, that “this government says time and time again they want to encourage.” In light of this, the introduction of a measure that keeps these businesses from upholding their legal rights seems like an especially momentous blunder.

Dyson was then asked about government claims that requiring lawyers and insurers to pay such fees up front would provide an effective safeguard. He responded: “They say that, but what is the research upon which that is based? I have not seen any.”

Lord Dyson also criticised the view taken by the Ministry of Justice ahead of the implementation of the fee increases with regards to demand. The Ministry believed that an increase in fees would not significantly harm demand, which Dyson called “an assumption [with a] very limited evidential base.” He went on to say that he had been “extremely sceptical” about this opinion.

The research carried out before the fee increases were implemented was something Dyson criticised especially harshly, describing it as “hopeless.” There was very little done, he said, beyond the making of 31 phone calls to various parties with an interest in the issue, and the judiciary had warned the government about the “real dangers” of putting up fees in the civil courts but had gone unheeded.

Sir Ernest Ryder added that, following the introduction of the reforms, employment tribunal cases had fallen by 70%. Sir James Munby, meanwhile, was critical of the increases in fees for divorce cases, which he said hit were hitting women disproportionately hard and effectively made for “another poll tax on wheels.”

The Blunder of Recent Civil Law Reforms

Recent reforms in the UK civil justice system have regrettably limited access to justice for many. Reforms to court structure and procedure, although well intentioned, have in many cases made court proceedings more onerous and complex, despite being intended to produce the opposite effect. As such, many are deterred from seeking a legal remedy. Further, the former Coalition government oversaw a slow but subtle increase in court fees- a programme which is set to continue under the current Conservative government.

Other legal reforms have seen a greater emphasis on seeking arbitration, or seeking pre- trial settlements, agreements and resolutions. Although designed to free up court time, and to reduce the caseload on courts and the legal system, such an emphasis has actually been welcomed by many legal practitioners, and has seen justice been achieved in many cases without recourse to the courts. However, increasing arbitration can be seen to have the effect of denying people access to a court to obtain a legal hearing.

The reform that has given rise to the most outrage and concern has been the infamous Legal Aid, Sentencing and Punishment of Offenders Act (2012) (LASPO). Under LASPO, legal aid was all but cut in most sectors of the law. With no legal aid, the cost of going to court had to be carried by the parties involved. Together with rising courts fees, and all the incidental expenses of the law, the price of getting justice rose to a level that is well beyond the means of the average household in the UK- and there is now no legal aid to pick up the costs. Overnight, access to justice became the privilege of the rich, and not the right of the people. Additionally, law centres and law firms have had to close or merge over recent years. Alternatively, lawyers and the courts have had to be creative as regards fees and funding legal cases.

One such example is the sector of personal injury (PI). Although much derided and often mocked, the PI sector was able to weather the legal reforms and LASPO. As regards funding, many PI cases have been funded since 1998 under Conditional Fee Agreements (CFA). Under a CFA, litigants only pay for their legal representation and work on the understanding that your case will be won, and compensation awarded. You do not pay if your case is unsuccessful. Although 2013 saw the regulations and details regarding CFA’s change to take into account changes on the law and legal system, the essential elements of such funding arrangements remains the same.

Consequently, those seeking justice for a personal injury, regardless of the legal reforms of recent years, are still able to get access to justice due to CFA’s. Such personal injuries could arise from anything, such as an accident at home, on the road, or even being injured at work.

Indeed, in 2014/5, the HSE saw nearly 80,000 cases of workspace injuries reported via RIDDOR in the UK, of varying severity, with a Labour Force Survey seeing 629,000 injuries at work. Although litigation may well be the last thing on an employee’s mind following a workplace injury – PI cases, funded by CFA’s, are still very much affordable for the average household, PI is one sector were people can still very much obtain access to justice, an apology, and compensation. Despite legal reforms, it is still very possible to obtain justice following a personal injury, arising from a workplace injury, or elsewhere.

Indeed, the relevant legislation concerning accident at work places great burdens and responsibility on employers regarding workplace accidents and injuries. Further, it is the injured parties legal right to seek justice and compensation they so desire- a course of action which many in the legal sector recommend. Also, the law affords you rights and protections from employers while you make such legal claims.

Other areas of the law have similarly had to adapt in the face of such reforms to the justice system – with mixed results. Amidst public funding cuts, access to justice has been increasingly limited. However, the legal sector is evolving to tackle that, and continues to fight the damaging reforms.

Government Blundered With Rushed Surveillance Laws

When the government introduced the Data Retention and Investigatory Powers Act last year, it was nothing if not controversial. A lot of people were concerned about the fact it gave the government the power to collect communications data from suspects (who could and in many cases presumably would still prove to be innocent). The fact that an act allowing the government to intrude deeper into people’s private lives was rushed through parliament in just a few days – an absurdly short timescale compared to most other pieces of legislation – didn’t do much to endear it to the public or to civil rights organisations such as Liberty.

Now, one year on, a possibly unprecedented legal challenge has left the act itself and the rushed nature of its introduction looking like one big blunder on the part of the government. Not just the controversy of the act but concerns about its actual legality gave rise to a legal challenge from within the government’s own ranks, with two MPs taking the case against it to the High Court. A court challenge to government legislation from MPs is certainly very unusual, and some believe this is the first time it has happened at all.

Deputy Labour leader candidate Tom Watson and Tory David Davis challenged the act on the basis that the government had failed to comply with laws protecting the human rights of its subjects. It had the support of the human rights group Liberty, which criticised the way the act was “was privately agreed following discussions between the then three main party leaders” and then “became law within just three days.” This, Liberty said, “[denied] time for proper parliamentary scrutiny, amendment or even debate.”

The High Court has now decided that the challenge was perfectly well-founded; in its hurry, the government failed to comply with not one but two pieces of EU legislation designed to protect the rights of ordinary people. Both the Human Rights Act and the European Union Charter of Fundamental Rights contain provisions designed to protect the right of a government’s subjects to privacy which the UK government has infringed. The ruling (against which the government says it will appeal) has basically cancelled out the offending parts of the act – though this will not take effect until next March, giving the government time to come up with a new, better thought-out plan that will be more compliant with international law.

The timing of the ruling is also unfortunate for the government. It coincides with wider discussions about government surveillance and individual privacy as the government seeks to introduce yet more legislation designed to help it monitor people’s private communications. David Cameron is championing a ban of popular messaging services like WhatsApp, based on a reluctance to “allow a means of communication between people which… we cannot read.” This particularly well-publicised measure forms part of a wider raft of unpopular proposals dubbed “the snoopers’ charter.”

Blunders Land Police with £20,000 Compensation Payout

20,000 seems to be something of a magic number for that section of the police force which couldn’t quite be described as its “best and brightest.” A few months ago, 20,000 crime records were lost to a blunder in the IT department. Now, £20,000 have been lost in a compensation payout to a rape victim after their handling of her case was filled with blunders.

The victim in question suffered a great deal as a result of the police’s mishandling of her report. She was reportedly driven to self-harm and even attempted suicide as a result of this mistreatment by police on top of the trauma of the attack itself.

The police force in question was Hampshire Constabulary, and the victim has exercised her right to remain anonymous. She had been on a night out with a group of friends when the attack occurred, and a portion of the party had headed back to one of their homes. The victim was part of this group, and so was the attacker.

It was at this house that the attack took place, and the woman later appeared at the police station to report that she had been raped. If there was one bright side, it was that she was pretty sure the attacker had left forensic evidence on her T-shirt which should make it much easier to link him to the assault and bring him to justice. She promptly told this to police.

This was when the blunders began. The police didn’t bother to test for the forensic evidence on her T-shirt, despite the fact she had specifically told them about it. Neither did they rush to try and apprehend the culprit. Instead, they at first ignored the report and then later decided to arrest the victim. They told her she was lying, and threatened to charge her.

According to the mother of the victim, she “couldn’t cope.” Over the course of this ordeal, she twice attempted to end her own life. It was only months after the original report that the police finally tested her T-shirt thoroughly for the evidence that she had told them about, after the Crown Prosecution Service asked them to do so. The evidence was indeed present and the attacker was finally arrested and last year was jailed for five years.

Now, the police have issued an apologetic statement and agreed to pay the victim compensation of £20,000 for the ordeal they put her through in an out-of-court settlement. Hampshire Constabulary also investigated officers who were involved in the blunder-filled handling of her case. Three such officers have been allowed to resign or retire while the investigation was still ongoing – a move the victim’s mother harshly criticised.

While she said she was glad the officers in question had admitted their wrongdoing, she felt that “if you’re in the middle of an investigation and you’ve been named, they shouldn’t let you resign or retire, because you are answerable to that.”

Police Blunders in Rotherham Highlighted by NCA

The National Crime Agency (NCA) has listed the blunders and failings of South Yorkshire Police in the much-publicised Rotherham sex abuse scandal. The NCA’s report highlights a 16-year period of intensive blundering on the part of the police between 1997 and 2013, resulting in 48 recommended areas of improvement for the force.

More than 1,400 children, some as young as 11, were sexually abused in the Rotherham area during this period by men who were free because of South Yorkshire Police’s failings, the NCA has said. The NCA, which has been called Britain’s answer to the FBI, recommended nearly 50 ways in which the police force should overhaul its investigations of child sexual abuse.

When the scandal broke, it led to public outcry. The extent of the abuse taking place in the Rotherham area was revealed in August 2014 following the publication of a report from Professor Alexis Jay. A number of prominent figures in the region’s police force resigned following the revelations, including the police and crime commissioner for South Yorkshire Shaun Wright. The NCA’s investigation into the matter began in December, and the recent report is the result of this investigation.

Among the blunders highlighted by the NCA in South Yorkshire Police’s child sexual exploitation investigations are a failure to work properly with local authorities and not making use of evidence-gathering methods that were available to them. Furthermore, the police overlooked or failed to make use of ways in which they could have protected victims from further exploitation.

“Over the years,” the NCA’s report said, “intelligence and investigative opportunities in relation to child sexual exploitation have been overlooked by South Yorkshire police.”

However, the report did recognise that South Yorkshire Police has already begun the process of improving and moving away from past failings when investigating this kind of crime. According to deputy director of the NCA Andre Baker, who led the review, there might be new opportunities to pursue criminals who were previously identified in investigations but against whom no action was previously taken.

NCA director Trevor Pearce echoed these sentiments, saying: “South Yorkshire Police has already made a number of arrests in relation to these matters and other offenders who believe that their past actions will never catch up with them should think again.”

However, it seems South Yorkshire Police are not quite done blundering yet. The NCA looked into South Yorkshire Police’s current investigations into the scandal and found “improvements that need to be made at both strategic and operational level.” One of these investigations, Operation Mark, is to be picked up by NCA and integrated into their own Operation Stovewood as it lagged behind the other two in terms of standards.

Police Blunder Loses Over 20,000 Records

Police Scotland has confessed to the loss of more than 20,000 stop and search records in an embarrassing blunder. The records reportedly went missing after a careless computer programmer “pressed the wrong button.”

Senior officers made the admission while appearing at the Scottish Parliament before a committee of MSPs. Chief Constable Sir Stephen House, who had to apologise for giving incorrect stop and search information to watchdog the Scottish Police Authority, said that the records had been lost through simple human error.

According to Assistant Chief Constable Wayne Mawson, also present before the committee, 20,086 records were lost in total. The important data disappeared when a “computer programmer pressed the wrong button between May and July last year.”

Mawson emphasised that the records “had been properly put on the system by the officers as a result of stopping and searching people,” but information regarding to the outcome of those stop and search incidents had been lost as a result of the blunder.

He went on to say that Police Scotland had been “working really hard” in their efforts to recover the data which was lost as a result of the blunder. These efforts included follow-up audits, and thousands of emails being sent out to officers that had been involved in the stop and search operations in question. As a result, he insisted, “the vast majority of that data, those results, are now back on the system.”

Nonetheless, the fact that such important data was so quickly and easily lost in the first place and through such a simple blunder, has cast a shadow over the Scottish police force. Chief Constable Sir Stephen acknowledged the mistake, but insisted that this had not eroded the trust that the public has in Police Scotland. Nonetheless, he recognised that as a result of the missing records stop-and-search statistics that were recently released by Police Scotland had not been “100% accurate” and were “not fit for public consumption.”

Sir Stephen also insisted that he had only released the data because he had been forced to by the Information Commissioner. However, this claim was thrown into doubt by emails that took place between the Information Commissioner and Police Scotland, which seemed to show that the latter had released its stop and search figures willingly and voluntarily.

Alison McInnes, a Liberal Democrat MSP and member of the justice subcommittee, was critical of the way Sir Stephen and Police Scotland responded to the issue. She described the response as “incoherent” and said that some of the claims made were “barely credible.”

Speaking to Sir Stephen, she asked: “is it incompetence or do you have a disregard for the authority of the Scottish Police Authority?”