The year ahead

Trying to keep the courts open

Next year will be a hugely important one for the criminal justice system of England and Wales. The government has asked for advice on tackling the current crisis. That’s expected by the spring. We should know by the summer whether the prime minister is bold enough to accept it.

Judges, too, will face challenges — some of them entirely unexpected. The common law is renowned for its flexibility. In the coming months we shall see how ingenious the judges can be.

Criminal justice

The justice secretary Shabana Mahmood has appointed two independent public figures to advise her on reforming criminal justice. Both are excellent choices. David Gauke, one of her more thoughtful Conservative predecessors, is conducting a review of sentencing. Sir Brian Leveson, who has more experience in this area than any other retired judge, is reviewing the criminal courts.

Gauke’s call for evidence closes next week. He has encouraged those responding to be ambitious. “I welcome any ideas which challenge current thinking, are innovative or which spotlight best practice and how it can be extended,” the former justice secretary said last month.

One of his ideas, floated in The Times last week, was to make greater use of open prisons. But space is limited. And, as Gauke accepted, moving inmates into low-security accommodation “is not one of those things [where] you can just press a switch [and] transfer far more people here. You need to properly risk-assess people.”

Sir Brian Leveson

Leveson will also be looking at ways of moving offenders, but not just from one prison to another. “The extent to which we can divert people from the criminal justice system is a live one and that’s one of the areas which I'm going to be looking at,” he told Radio 4’s Today programme on 14 December.

The former judge did not shy away from describing delays in the courts as a “crisis”. More people were being prosecuted than the courts could cope with, leading to a backlog that was increasing and therefore unsustainable. “Cases in the Crown Court are now being listed into 2027,” he said. “And that isn’t acceptable.”

I shall have more to say in the coming weeks on the options for reform.

Supreme Court

Judgment is awaited from the Supreme Court on a couple of cases that caught my attention in the autumn.

The first will decide whether a father whose children were taken into care by Worcestershire County Council is entitled to challenge the care order by applying for habeas corpus. The Supreme Court may consider whether this ancient writ needs to be constrained in some way.

Justices in the second case have been asked whether people who have full certificates recognising their gender as female are “women” for the purposes of the Equality Act 2010.

In March, the Supreme Court will hear rare criminal appeals by Tom Hayes and Carlo Palombo, two City of London traders who were convicted of fraudulently manipulating Libor, a key interest rate, and its European equivalent, Euribor. The case raises a number of important legal issues.

The Judicial Committee of the Privy Council, with miniature flags representing countries that have accepted the court’s jurisdiction

But perhaps the most unusual case the justices will be considering is one that will receive no publicity at all. They will be sitting in January as the Judicial Committee of the Privy Council, which hears appeals from Commonwealth countries and other overseas territories.

The case involves arbitration. One of the parties is seeking an injunction. We know that the application was made ex parte, which means without notice to the other side. That can happen, for example, when a court is asked to freeze another party’s assets so that they cannot be transferred while matters remain in dispute.

We are told that the injunction was refused, presumably by the national court. We know that this is an appeal against that refusal. What we don’t know is which country the appeal is from.

“The appeal must be heard in private,” says the Judicial Committee of the Privy Council, “so as to avoid the risk of the anticipated respondents having notice of the proceedings, which would enable them to defeat the purpose of the proceedings.”

Still, at least we know that the appeal will be heard by Lords Reed, Hodge, Sales, Leggatt and Richards. And that’s more than can be said about the family judges who dealt some years ago with the case of the murdered schoolgirl Sara Sharif. Next month, the Court of Appeal will be deciding whether their anonymity can be justified.

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