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Monday Message 14.03.16

Chairman’s Update: 
Mark Fenhalls QC


Failings in Confiscation System:
On Friday the National Audit Office published “Confiscation Orders: Progress Review.”  This is a follow up report to earlier work.  In December 2013 the NAO reported in “Criminal Justice System: Confiscation Orders” on the government’s administration of confiscation orders and concluded “that the process was not working well enough and did not provide value for money.”

The Public Accounts Committee then published a critical report of its own in March 2014.  It also concluded “that the various bodies involved in confiscation orders had failed to put an effective system in place, that not enough confiscation orders were being imposed, and that not enough was being done to enforce orders once they had been imposed.”

The NAO says that “Our vision is to help the nation spend wisely. Our public audit perspective helps Parliament hold government to account and improve public services.” 

The report shows that a huge amount more could be done to improve the system and recover a lot of money that could be fed back into the public purse and the CJS. 

Some headline figures for you:
£155m collected by enforcement agencies from confiscation orders in 2014-15 (£133 million in 2012-13).   This sounds promising – up 16% – until you discover that the total debt outstanding from confiscation orders has risen 10% (£1.46 billion at September 2013 to £1.61bn at September 2015.  And that HM Courts & Tribunals Service estimate of “realistically collectable debt” in its 2014-15 Trust Statement is only £203 million (up from £177 million in 2012-13).

Those charged with explaining this report to the politicians and public have a harder job than me because I do not need to weary you with how the system does (not) work.  But this surely raises some pretty fundamental questions about (i) the quality of financial investigations, (ii) what happens during the court process and (iii) what happens afterwards. 

In a time when the CJS is being bled dry and treated as the poorest of poor cousins this is (or should be) a matter of huge public concern. 
Few disagree with the laudable ambitions of successive governments to deprive convicted criminals of “criminal property”, but the obvious shortcomings of the current system suggest that it is not working and some fresh thinking is required.

We all know “benefit figures” are often ridiculously high.  Whether the fault lies with the terms of the POCA or there is a cultural problem with report writers overinflating figures may be a debate worth having.  But for current purposes I am going to ignore this and think about “realisable asset values.”  After all, if investigators, lawyers and courts are doing their jobs properly, why is there this huge gulf between orders made and what is estimated to be collectable?  Is part of it because we are allowing courts to conclude that there are hidden assets when later analysis suggests otherwise?  Unrealistic orders which will never be collected are bringing the whole system into disrepute.

The Report reminds us that the web of those bodies charged with investigation and enforcement is complex.  It suggests the Home Office has been resistant to suggested changes to overall governance and supervision of the processes.  It notes that only one of the six recommendations had been addressed.  You may grin wryly when you realise this was the one about strengthening sanctions – the lowest of hanging fruit.

The following appears at paragraph 22:  “…the Committee of Public Accounts expected the confiscation order system as a whole to have been transformed by the end of 2015, and this has not happened. The criminal justice bodies have not met five of the Committee’s six recommendations, despite agreeing to do so by the end of 2015, and they have not met their ambitious targets for implementing the Criminal Finances Improvement Plan. As a result, many of the fundamental weaknesses in the system identified two years ago remain. The number of orders imposed has fallen by 7% and remains a tiny fraction of total crimes. There are also fewer financial investigators and fewer restraint orders used, both crucial to successful enforcement.”

I am under no illusion that my opinion in this area matters, but I am going to indulge myself and tell you anyway.

Most of us probably think that the greatest risk to Better Case Management is the failure of the Crown to provide sufficient evidence within the papers served in enough time before a PTPH.  Many of you will scoff at the possibility that the financial aspects could also be investigated in time.  But for example in those cases where suspects have been (repeatedly) bailed before charge why not?  Why should the Crown not be required to have investigated sufficiently so that, if appropriate, the parties can agree a Confiscation Order (subject to Judicial approval) at PTPH?  
All those financial investigators who too often start work after conviction should be making full statements that deal with bank accounts, assets held and so on at the outset.  They should be part of the initial investigation and not bolted on afterwards.  Of course most defendants will only agree what they have to, but I am willing to wager that overall recovery rates would improve enormously and the benefit to the public purse would be considerable.   

Access to Clients – despair and frustration in equal measure:
Over the weekend I was sent a picture taken on Friday at Blackfriars Crown Court.  It showed a notice that read as follows:
“HMCTS: THERE WILL BE NO LEGAL VISITS TODAY IN THE CELLS FRIDAY 11/03/2016.  This is due to low staffing levels.  We sincerely apologise for any inconvenience.”

I have written to MoJ and NOMS over the weekend raising this issue and will let you know what I learn.

Centre Forum Report: Transforming Rehabilitation:
The education think tank Centre Forum published this report on Thursday.  You may not be surprised with these conclusions.

“To analyse the performance of prison education since 2010, CentreForum developed a scorecard which assessed three key performance measures: 1. Access to and participation in education 2. Learning outcomes achieved 3. Quality of education. (They) found that overall performance for all three measures has declined or stagnated in recent years. For certain indicators, including the achievement of higher level qualifications and the quality of education provision, performance had deteriorated substantially. There is no sign of a “rehabilitation revolution” if access to and quality of education is measured.”

BPTC Reform:
Last week the BSB announced HERE that the pass mark required for the competence test required before undertaking the BPTC was to be raised.  Before you raise two cheers, note that the change is only from 37 to 45.  At the lower mark, perhaps unsurprisingly, 99.4%of candidates passed in 2012/13.  The BSB says that “the impact of setting the pass mark at 38, 39, 40, 43 or 46 for the 2013/14 BPTC cohort was examined. The analysis identified 45 as the most effective pass mark, as it would have provided a marked reduction in the number of students progressing onto the BPTC who subsequently failed it, without creating a significant barrier for students who would have done well on the BPTC.”

The Bar Council is unimpressed, suggesting that the change is an ‘inadequate measure’ to filter out those who have no hope of practising as a barrister.  “Inadequate measure” is a very polite way of describing the situation.  The consistent message reaching us is that the filter before the BPTC has to be far more rigorous than this.  Otherwise we condemn hundreds of students who have no hope of securing pupillage to vast extra debts.  Why is it that the commercial interests of the providers are permitted to prevail by the LSB and the BSB?

IT and CJSM confusion:
Last week we all received confusing emails about the poor state of health of the cjsm network.  The first alarming email on Wednesday night did not really explain what the authors actually meant or what the actual problem was meant to be.  So I was very grateful to all those at the MoJ who read my correspondence and took steps to explain on Thursday night that “the current performance issues with CJSM only impact users accessing the service via the CJSM website.  SMTP users who have a server connection to CJSM or POP3 users are not affected and can ignore this email.”  I hope that they sort out whatever the problem is as swiftly as possible.  Do let us know if you have problems.

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