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The Changing Role of Lawyers in Compensation Claims

Those who have been injured through the fault of another are entitled to claim compensation. This can be done with the help of a lawyer – and traditionally this would almost certainly be how it would be done. For better or worse, however, the role of professional lawyers in personal injury compensation claims is changing. While there is no doubt they still have a place, the nature of that place has undergone a shift.

Grabbing headlines last month were a whole raft of proposed reforms, currently still under discussion, to the way whiplash claims are handled after a traffic accident. Among other changes, these reforms could see it become possible – even compulsory – for personal injury claims worth up to £5000 to be handled through the Small Claims Court. Barring further disputes and complications, this is a track that does not involve professional legal representation.

The result of this would be essentially the removal of lawyers from lower-value compensation claims and, while the main focus of the proposals is whiplash claims, this would not be limited to the arena of traffic claims. This particular proposal refers to all personal injury claims worth up to £5,000, and as such lawyers would be also be effectively removed in the same way from a workplace injury compensation claim, a medical negligence claim, or indeed any other personal injury case, so long as the value of the claim is £5,000 or less.

This prospect has been greeted with at best mixed reception; some lawyers feel that a route to allow lower-value claims to be handled without their involvement represents the lifting of a burden. Many others, however, fear that the lack of professional legal assistance in these cases will hinder justice, and could lead to more frivolous claims being brought into action without lawyers to nip them in the bud.

Another thing changing the role that lawyers play in injury compensation claims is a new initiative from the NHS which could potentially see medical negligence claims handled through mediation. The new mediation scheme from the NHS Litigation Authority launched this month, and was originally piloted in 2014.

One of the things that is interesting about this scheme is the fact that mediation is a concept that is broadly supported by lawyers for the resolution of many disputes. It is generally faster, cheaper, and more amicable than the courts for all involved. However, a medical negligence claim is quite a different matter from most disputes that would be handled through mediation, and some are uncertain as to whether it is suitable. Yet it is important to note that this scheme does not necessarily exclude lawyers; claimants are entitled to have a lawyer present to advise and represent them if they wish. For cases where the financial settlement is a priority, for example where patients have been left out-of-pocket or facing additional financial needs, this may well be the preferred option.

Fresh Legal Concerns Over “Snoopers’ Charter”

SurveillanceFresh concerns have been raised over the proposals that have come to be known as the “snoopers’ charter” and the impact they may have on the legal industry. The House of Lords has become the latest body to voice fears that the passing of such legislation could endanger professional privilege.

The investigatory powers bill came before the House of Lords for its second reading earlier this week. Although the bill passed its second reading, key legal figures from the Lords condemned it and the threat it could potentially pose to matters of professional privilege and client confidentiality.

The bill, which has been under discussion for a few years and generating controversy all the while, proposes giving law enforcement agencies additional powers of surveillance. It would clarify certain aspects of the laws already in place regarding the interception of communications, and also introduce new laws. These would require that records of online communications and internet activity from members of the public be retained for potential access by law enforcement.

Concerns about the impact this could have on the legal profession have previously been raised by bodies such as the Law Society. When the bill was subjected to debate by the House of Lords during its second reading, many peers directly referred to those concerns or expressed similar sentiments.

The main fear about the potential ramifications of the bill for the legal sector relate to professional privilege, the principle that keeps communications between lawyers and their clients confidential. This is important in order for legal counsel to maintain an open, honest, and trusting relationship with clients and to represent them properly. The “snoopers’ charter” could allow law enforcement access to those communications, compromising confidentiality principles and the ability of clients to talk openly and honestly with their legal representatives.

Lord Pannick QC said that protections for legal professionals in the bill were “piecemeal” and suggested that the government may wish for authorities to gain access to communications that are protected by professional privilege.

Pannick said: “To allow the authorities access to genuinely privileged information would inevitably mean that clients could no longer be guaranteed confidentiality by their lawyers. This would inevitably deter clients from speaking frankly to their lawyers and therefore undermine the rule of law.”

Pannick called for better protections for legal communication to be written into the bill. He also said that the bar for accessing privileged information under the powers proposed in the bill should be set high, allowing this only in “exceptional and compelling circumstances.”

Pop-Up Courts Proposed

Justice, a prominent legal industry thinktank, has proposed the establishment of “pop-up courts” in a new report titled What is a Court?. This would, the thinktank suggests, improve affordability, accessibility, and flexibility in the UK’s justice system.

It has been suggested that this solution would help tackle many of the problems currently facing the justice system. Austerity measures have led to a large number of court closures, raising concerns about access to justice for those in the areas where closures are taking place. Furthermore, the number of people appearing as litigants in person is on the rise following significant cuts to legal aid. This has emphasised the need for an accessible and user-friendly process that individuals will be able to properly navigate when representing themselves in courts.

The pop-up courts would be equipped with internet access and remote video screens so that not all parties would have to be physically present. The main “body” of the court would be a judicial stage designed to be easy to dismantle, transport, and assemble at the pop-up location.

The Justice report claims that some current court buildings are “trapped in a time warp, intimidating and deeply unwelcoming to court users.” However, the report also suggests that there is considerable scope to improve, in particular through embracing new technologies.

“Through innovation,” the thinktank writes in the report, “the justice system could be made more affordable and accessible to ordinary people, with appropriate and proportionate modes of dispute resolution available to all.”

The Ministry of Justice has already recognised the need for improvement and modernisation. £700 million of investment has been promised, designed to bring the operations of the UK’s courts up to date and, in particular, to drive digitisation. There has, however, been a recent setback in this drive for modernisation, in the form of the unexpected resignation of Natalie Ceeney who was tasked with overseeing these efforts.

In its report, Justice paints a picture of a new structure for the justice system. Serious criminal cases would be held in “flagship justice centres,” and many other cases would find a place in local centres. Pop-up courts, meanwhile, could be established in community centres, libraries, council premises and schools, the thinktank suggests. As an example of what can be achieved, the report points to the portable set used by the BBC for filming Question Time in locations around the country. Online facilities and remote access tools could also have a place, the report says, in providing accessible, affordable, and effective justice.

Crown Courts to Pilot Presence of TV Cameras

TV CameraCrown courts in England and Wales are to run a pilot scheme which will allow television cameras to be present for the first time. Cameras have previously been allowed into Supreme Court and Court of Appeal hearings, but never before into the crown courts.

The pilot scheme, announced recently by Justice Minister Shailesh Vara, will allow cameras to enter crown courts and record senior judges comments on sentencing defendants, but will not allow any other individuals or events in the court to be recorded. The footage from the pilot scheme, which is planned to begin within the next few weeks, is not intended for broadcast. However, if the outcome of the scheme is judged positively, it could lead onto further and more extensive presence of cameras within crown courts. Potentially, it could ultimately lead to some cases receiving live broadcast coverage.

Removing the ban on TV cameras in the UK’s courtroom has previously been suggested as a way to increase transparency and accountability in the legal system. Crown courts are open to both the public and to the press, but no recording of proceedings is allowed to take place. The Criminal Justice Act 1925 prohibits this, as does the Contempt of Court Act. As such, only those members of the public who attend proceedings in person have direct access to the opportunity to observe what takes place during a trial, with other members of the public having to rely on second hand press accounts. Some have that allowing cases to be witnessed by the public on a wide scale through broadcast would be desirable as a way of providing a more open and accessible system.

These sentiments were echoed by the Justice Minister in announcing the new pilot. Vara said: “My hope is that this will lead to more openness and transparency as to what happens in our courts. Broadcasting sentencing remarks would allow the public to see and hear the judge’s decision in their own words.”

The pilot scheme will take place over the course of three months, and involve eight different courts from various locations across England and Wales. These include the Old Bailey and its fellow London courts in Southwark, along with locations in Birmingham, Cardiff, Manchester, Liverpool, Leeds and Bristol.

According to a spokesperson for the Ministry of Justice, safeguards will be put in place throughout the pilot period to ensure that justice is not impeded and that the needs of victims are not compromised. Cameras will not be permitted to record anybody in the court – including victims, defendants witnesses, legal professionals, and court staff – except the judge.

Newcastle Cracking Down on Legal Highs

NewcastleThe city of Newcastle is taking new steps to tackle the problem of “legal highs.” The city’s police have set up a new task force dedicated to cracking down on this issue.

Legal highs are substances sold legally, but which can be ingested to produce effects similar to those of illegal drugs. Some of these substances produce effects similar to ecstasy or cocaine. Some are available for purposes other than narcotic use, while others are created with the specific intention of mimicking illegal drugs while being sufficiently different in chemical structure to escape the law. Even the latter group, however, are usually sold as non-narcotic substances such as plant feed. Selling these substances specifically for human consumption would still be illegal even though they are not among the substances specifically outlawed in the UK, but labelling them as other kinds of chemical product bypasses this law.

Police officers in Newcastle reportedly dealt with almost a hundred incidents involving legal highs in a two month period. Between 15th November and 16th January, the city’s police responded to 98 such incidents. Some of the individuals involved in these incidents were as young as 14. Legal highs can be dangerous, and in a number of the incidents to which Newcastle’s police individuals have been experiencing potentially life-threatening side-effects.

According to Northumbria Police, use of legal highs in Newcastle has risen dramatically over the past six months. The force said that there had been an “alarming” rate of increase in incidents involving these substances in recent months, particularly in the west of the city.

According to Supt Richard Jackson, “it’s almost every day now that officers are having to deal with the consequences of someone who has taken legal highs.”

He went on to say that “Residents, especially in the west end and the city centre are becoming extremely concerned about the impact legal highs are having on their communities and enough is enough.”

Newcastle is not the first city to take steps to crack down on the use of legal highs. In late 2014, Sheffield cracked down on the use of such substances after experiencing a similarly rapid rise in the number of incidents police were dealing with. Police forces in parts of Scotland and in Hertfordshire have also previously introduced dedicated task forces, similar to that which has now been set up in Newcastle.

The new task force will comprise roughly a dozen police officers. They will be supported by staff from a number of other organisations and agencies, including Newcastle City Council and local health services.

Prisons Opened Confidential Legal Letters in “Human Error”

A number of prisons have been opening private and confidential legal correspondence between prisoners and lawyers, and it has now been found that the primary cause of this was simply human error. 32 complaints have been received and investigated by the Prisons and Probation Ombudsman as a result of staff opening this kind of correspondence when they had no right to.

The incidents to which these complaints relate took place between April 2014 and June this year. Roughly half of these 32 complaints have been upheld by the Ombudsman. The findings of the Ombudsman’s investigation, along with relevant facts and figures, have been published through the release of a special bulletin.

Nigel Newcomen, Ombudsman, said that he is “in no way complacent” about the matter of private correspondence being opened by prison staff outside of their rights. However, he also said that “it is perhaps reassuring that, of the complaints I have upheld, most appear to be isolated incidents of human error.” He went on to say that he had “found little evidence of deliberate or sinister tampering or of repeated failures at a prison.”

Newcomen described the “detailed rules” that surround the way prisons deal with confidential postal correspondence between legal professionals and prisoners. These rules are, he said, “designed to ensure that prisoners are able to communicate with their legal advisers without fear of disclosure or interference, and that they are able confidentially to communicate with independent scrutiny bodies without fear of reprisals from staff.”

Under the Prison Rules, Rule 39 – which deals with the matter of prisoners’ private legal correspondence – names just a few, very specific circumstances in which prison staff are allowed to open post for prisoners from legal professionals or firms. Staff may intercept, open, or read such post only if they have reason to suspect that the post in question is not in fact from a legal professional or organisation. They can also open such post if they have reason to suspect it may contain illicit items, being smuggled into the prison under the pretence of being legal correspondence in order to evade examination from prison staff.

Over the course of the investigation, the Ombudsman looked for any evidence of deliberate wrongdoing or of a wider problem within the prison system. This evidence was not found. Regarding the incidents that did take place, the Ombudsman said that it was not easy to establish exactly who had opened a letter and when, but nonetheless the root cause seemed to be simple human error in the majority of cases.

However, it was also noted that “the seriousness of the breach should not be underestimated and leaves open the possibility of legal challenge.”

Knife Crime Up for First Time in Four Years

knife crimeFor the first time in four years, the amount of knife crime taking place in England and Wales has risen. According to recent official figures, 2014/2015 saw 26,370 offences involving a knife recorded by police compared to just 25,974 the previous year.

Previously, knife crime had been falling since 2010/2011 – a trend which the latest figures have broken. The increase is perhaps surprising, as overall crime has fallen by 7% according to the Crime Survey for England and Wales, which is separate from the figures used to identify the increase in knife crime. The Crime Survey operates by interviewing people about their experiences with crime, regardless of whether they have gone to the police, and so aims to generate a more accurate picture of crime taking place than could be gleaned from police figures. The 7% drop identified by the most recent survey brought crime in 2014/2015 to its lowest level since 1981, with 6.8 million individual incidents taking place.

Sometimes, an increase in the number of incidents recorded in a given crime category does not represent an actual increase in crime. Instead, factors like changes in the way crimes are recorded by police, a crackdown on a particular category of crime, or an increase in the number of victims coming forward can lead to a crimes being recorded in greater numbers without a real increase in the number of crimes actually taken place. However, the Office for National Statistics (ONS) has said that it believes this kind of factor is unlikely to account for the increase in knife crime. Rather, the ONS is of the opinion that it represents a “real” increase.

While the Crime Survey data suggests a decrease in overall crime, a different picture is painted by the data most recently released by the ONS, which is based on those crimes that are recorded and from which the data regarding the increase in knife crime was taken. It suggests that crime increased by 3% in the year leading up to March 2015. The ONS’ data has around 3.8 million offences recorded in this period. However, unlike the increase in knife crime specifically, the ONS believes that the increase in overall crime is down to changes in the way crimes are recorded by police rather than an actual rise in the number of people committing offences. In particular, the 3% increase was largely driven by an increase of 23% in violent crimes against the person, which the ONS holds to be a result of different recording practices.

Increase in Special Guardianship Orders Over Adoptions

AdoptionOver the past two years, the number of English babies made subject to special guardianship orders has increased threefold. The number of adoptions has been falling over the same period.

Special guardianship orders are often seen as an alternative to adoption and foster care. It is a measure which sees a child placed in the legal guardianship of extended family or even friends until the age of 18, rather than placed into foster care or being adopted. Such orders can also be used to expand the rights of a child’s existing foster parents and place the child in their guardianship on a more long-term basis. The measure is mostly used for children under the age of 4, and such orders are usually made by local authorities. Most often, they are used to provide a safer home for children in cases of abuse or neglect by their birth parents.

In 2012, 160 babies in England were made the subject of special guardianship orders. In 2014, the number increased to 520.

The Department of Education has recognised the increase in the usage of special guardianship orders in cases concerning child care arrangements, and says it is reviewing the situation. Responses to the increase in the use of these measures over adoption have been positive in some quarters and negative in others.

A number of family groups have praised the increase in the use of special guardianship orders by local authorities, as it means more children are being placed safely in the care of relatives and friends, instead of being taken away in cases where this might have been possible and then going through the more complex and costly adoption system. Andy Elvin, chief executive of TACT, a fostering and adoption charity, described the placing of children with members of their extended family as “a good thing.”

However, Elvin also questioned whether the assessments made in some cases before issuing special guardianship orders were as detailed as they should be. He expressed concerns that some children may be placed with relatives who may not have been close to the child beforehand, and also pointed out that the child’s new guardians did not receive the same level of support after placement as adoptive parents would. Others have also expressed concerns about whether such orders are being issued in cases where adoption may provide a safer and more stable home for a child.

According to the British Association for Adoption and Fostering, recent court rulings have indeed shown the need for local authorities needed to consider the full range of options before turning to adoption. This includes, they say, the possibility of placing a child with birth relatives.

Bar Standards Board Calls for QC Re-Accreditation

The Bar Standards Board (BSB), the regulating body for barristers, has called for a re-accreditation process for criminal silks to be developed. The regulator asked Queen’s Counsel Appointments (QCA), the body which is responsible for awarding QC status to barristers, to consider creating such as system.

BSB put this formal request to QCA, feeling that the development of such a process would be conducive to current and ongoing efforts of quality assurance. The BSB is currently tasked with finding new ways to ensure that advocacy in the British legal system maintains the highest possible standards, and re-accreditation of criminal barristers could, the BSB believes, form an important step in achieving this.

The BSB’s efforts aim to find an alternative to the Quality Assurance Scheme for Advocates (QASA). This was itself supposed to help attain and ensure high standards of advocacy, but has found significant opposition among practitioners. The QASA, which was first proposed in 2013, is currently on hold, awaiting the outcome of an appeal to the Supreme Court from those who are opposed to the implementation of the scheme.

Queen’s Counsel Appointments was first set up in 2004, and its aim was to introduce a clearer and more transparent process for appointing Queen’s Counsels. It is responsible for the assessment of QC applications, which is usually achieved through the convening of independent selection panels, but there is currently no re-accreditation system for QCs in place.

Oliver Hanmer, the BSB’s director of supervision, was quick to explain both the importance of re-accreditation and the reasons for the BSB’s backing of such a scheme for QCs as part of ongoing quality assurance processes. “As the barristers’ regulator,” Hanmer said, “it is our job to set up systems that safeguard clients from those advocates who are simply not as good as they should be, no matter their level of experience. We are resolutely committed to achieving this aim.”

Those who hold QC status, Hanmer continued, should not in the BSB’s opinion be subject to quality assurance processes that are any less rigorous than those undergone by other professionals. The QCA, he said, would be “better placed” than the BSB itself to operate such a scheme.

The QCA must now decide whether it accepts this request. Should it do so, it will be able to exercise its own discretion in developing the process. Once the scheme had been outlined in detail, the BSB would then assess the impact that this process would have on the QASA.

MPs to Vote on Cigarette Law Before General Election

Plain Cigarette PackagingMPs will be asked to vote on a potential law regarding cigarette sales before the arrival of the general election in May. This could see the law, requiring cigarettes sold in England to be contained in plain, standard packaging, introduced by 2016.

The vote follows a number of public consultations aimed at assessing the possibility of introducing plain packaging – a concept already used by some jurisdictions. For example, in Australia all words and images aside from health warnings have been banned from cigarette packages since 2012. Labour has previously promised that it will introduce a ban on cigarette packaging imagery should it win power, but this may have been superseded now that it has been announced MPs will vote on the possibility before the election arrives.

A number of doctors have supported the move, saying that thousands of lives could potentially be saved. Minister for public health, Jane Ellison, has also claimed that banning branded imagery on cigarette packets would have a positive effect on public health, particularly where children are concerned.

Ellison claims that the idea of this move impacting positively on public health is supported by all the available evidence, and said that “we cannot be complacent” in an age where everybody is aware of the health implications of smoking. She also said that the current government is “completely committed to protecting children from the harm that tobacco causes.” She also warned, however, that the cigarette industry may launch a legal challenge in opposition of such a move.

In claiming that the idea was supported by evidence, Ellison may have been referring to a review carried out by Sir Cyril Chantler last year. Following his review, Sir Cyril concluded that if plain packaging for cigarettes were introduced, it was highly likely that the number of smokers and the rate at which people took up smoking would see a small but significant reduction.

The prospect was also welcomed by chief medical officer for England Professor Dame Sally Davies, who said “We need to keep up our efforts on tobacco control and standardised packaging is an important part of that.”

The vote will take place before the dissolution of Parliament for the start of the general election campaign in April. It is expected that MPs will be given a free cote on the matter. The law, if passed, would only apply to England. Ellison has expressed hopes that Wales, Scotland and Northern Ireland would then introduce similar measures. The Welsh government has previously voted in favour of accepting any decision from Westminster on this issue, making it likely that Wales would indeed follow suit.