Monday, 28 September 2009

Risk and release

Daniel Sonnex, who had been released on parole licence after a conviction for a violent robbery, killed two French students last year after torturing them to obtain their pin numbers. The case illustrated the tragic consequences of failures in the system to monitor and assess an offender when s/he has been released. How, though, does the criminal justice system assess the risk of prisoners convicted of serious crimes reoffending if released? This was the question the lawyers, psychiatrists and psychologists grappled with at last week's Association of Prison Lawyers conference.

All agreed that the psychological testing methods developed for identifying whether a prisoner is likely to reoffend if released could never be guaranteed. What the psychiatrists and psychologists did seem reasonably confident about was their success in identifying risk factors that made reoffending more likely in certain groups of prisoners. For sex offenders these included the number of previous sexual convictions, age and whether they had never had an intimate relationship. Actuarial calculations can be made from such factors and these can be extrapolated to a group, but they cannot be used directly to predict an individual's behaviour.

Polygraph or lie detectors are being trialled to assess the truth of an offender’s assertions regarding his/her rehabilitation, but opinion on the reliability of these seemed mixed among the experts at the conference. Psychological tests remain the main tool for assessing individual prisoners’ rehabilitation. Factors such as personality, attitudes and emotional control are assessed. The tests need to be applied correctly and are dependent on well-trained and qualified people to do this.

A question submitted in writing from a prisoner asked why he was always seen by a trainee when he was undergoing a psychological assessment. All the participants on the panel the question was put to agreed that there is a shortage of fully qualified forensic psychologists who carry out the assessments in prisons. Opinion was divided, though, on whether the trainees who are widely used are competent to undertake the work. The representative from the Ministry of Justice argued that most trainees do have the experience and skills to do this work, with their trainee status being attributable to changes in qualification requirements. The independent experts were less convinced and one argued that many were not sufficiently skilled and that 'their supervision was sporadic'.

A sceptical lawyer in the audience questioned if the methods used to assess prisoners’ likelihood of reoffending were too subjective. Another lawyer argued that one client had had two results in a test - one finding a medium risk and one finding a high risk. In reply the psychologists said that as long as the tests were applied correctly they were reliable and that the tests and clinical assessments still allowed room for professional judgments. Other than never releasing any prisoner convicted of a serious crime there seems little alternative to the current system, but the system needs to be properly resourced to optimise the chances of reaching the correct decisions, as the consequences of not doing so can be tragic.

See LAG's new book: Prisoners: law and practice by Simon Creighton and Hamish Arnott.

Monday, 21 September 2009

Employment law

LAG published the eighth edition of Employment law: an adviser's handbook by Tamara Lewis last week. The book is a comprehensive guide to employment law and it deals with recent changes in the law such as the definition of an employee, developing case-law on equal pay and the repeal of the short-lived statutory dispute resolution procedures introduced by the current government.

Over the years, organisations from both sides of industry have usually reacted to legislative changes in employment law introduced by governments with either condemnation or praise depending on how they perceive the changes will impact on their interests. Especially in the early days of the current government, Tony Blair’s 'third way' philosophy purported to break away from the old certainties of the class-based politics which employment law reflected.

The Employment Act 2002 was the vehicle supposed to bring about a New Labour nirvana in the world of employment relations, free from class and other vested interests. The Act tried to appease the interests of employers continually peeved at the ever-spiralling number of Employment Tribunal (ET) claims by introducing statutory minimum disputes and disciplinary procedures that had to be followed in the workplace. The aim of the procedures was to reduce ET claims and, most importantly, keep employees in work by resolving disputes while they were still in employment. The procedures became mired in legal controversy though as employers focused on getting the procedure right rather than on their original aim of resolving disputes.

ET numbers are again rising due to the impact of the recession. The most disturbing statistic for ET claims has remained constant over the years, less than one in 20 applicants who are dismissed return to their job. The repealed procedures were flawed, but early advice and representation for employees remains the most effective way of avoiding injustice and keeping people in employment. Tamara Lewis’s book will continue to play an important part in equipping advisers to do this.

Monday, 14 September 2009

Criminal delay

On 11 September, the Legal Services Commission (LSC) announced that it will defer the start of tenders for the new criminal contract for at least two months. Included in this is the best value tendering process for the two pilot areas in Greater Manchester and Avon and Somerset. Good move we say. However, the Ministry of Justice (MoJ) announced its consultation on the proposed cuts for criminal work on 20 August. Why then did it take the LSC three weeks to decide to delay the bidding process?

Surely it had worked out that you cannot invite firms to bid for work if they don’t know how much they will be paid? Perhaps not. It seems more likely that LAG, the Law Society and others pointing out to the LSC the unfairness of what it was proposing, combined with mutterings about a possible judicial review, made it change its mind. Any strategy the MoJ and LSC had for criminal legal aid appears to be in tatters.

The MoJ’s paper on the proposed cuts is inadequate. It fails to state how much it is seeking to save or outline in detail the Crown Prosecution Service fees it is arguing that defence counsel should have parity with. The government also wants to shave five per cent off the budget for very high cost criminal cases (VHCC), but the options to do this have not been announced yet. They will only be outlined in a further consultation paper. A cross-subsidy operates between Crown Court work, VHCCs and the less profitable police station and magistrates' court work. Surely it should be obvious to the LSC that without all the proposed prices on the table firms cannot make any decisions about their future bids?

Friday, 4 September 2009

No time to pull your punches!

Citizens Advice published a report in July, No time to retire – legal aid at 60, which warns that more people are being denied access to civil legal aid despite a huge increase in demand fuelled by the recession. It argues that fewer people are getting civil legal aid due to barriers such as patchy geographical provision, long waiting times and complex qualifying criteria.

Two surveys carried out by Citizens Advice Bureaux (CAB) in 2008 and 2009 discovered that CAB across England and Wales regularly find it almost impossible to locate a Community Legal Service (CLS) lawyer for court and tribunal proceedings, or a legal aid lawyer to deal with specialist issues. Seventy-six per cent of CAB had problems finding a CLS lawyer to deal with urgent employment cases, while 75 per cent could not find a CLS lawyer to deal with urgent housing matters, and 68 per cent said they had problems finding a CLS lawyer to take on urgent family cases.

These are damning statistics and they confirm what LAG, legal aid providers and other commentators are saying about the availability of legal aid, but the report has received little coverage in the media. This is a great shame because it also challenges the commonly-held view in government circles that voters are not concerned about legal aid. Independent research commissioned by Citizens Advice for the report showed great public support for legal aid. Two thousand people were questioned in March this year - 92 per cent thought it was either very important (68 per cent) or quite important (24 per cent) for people on low incomes to get legal aid for problems such as debt, benefits, family law, housing and employment. LAG would argue that a similar opinion poll needs to be conducted on criminal legal aid to gauge public support for legal aid and its importance in ensuring a fair trial for people accused of a crime.

Hopefully, the support for civil legal aid reflected in the survey results and the concerns expressed in the report will be given greater prominence in the run-up to the general election. A higher profile for legal aid in the election campaign is needed to head-off any belief that legal aid is a 'soft option' for cuts and, most importantly, to convince the public that their money is being wisely spent on providing access to justice.