‘(1) In section 224 of the Sentencing Code (general limit on magistrates’ court’s power to impose custodial sentence)—
(a) in subsection (1), for the words after paragraph (b) substitute “for a term exceeding the applicable limit in respect of any one offence”;
(b) after subsection (1) insert—
“(1A) The applicable limit is—
(a) 6 months in the case of a summary offence, or
(b) 12 months in the case of an offence triable either way.”;
(c) in subsection (2), for the words from “more than” to the end substitute “a term exceeding the applicable limit”.
(2) In Part 8 of Schedule 23 to the Sentencing Act 2020 (powers to amend the Sentencing Code in relation to custodial sentences), before paragraph 15 insert—
“General limit on magistrates’ court’s power to impose custodial sentence—
14A (1) The Secretary of State may by regulations amend section 224(1A)(b) (general limit on custodial sentence for either-way offence in magistrates’ court)—
(a) if for the time being it refers to 12 months, to substitute a reference to 6 months for the reference to 12 months, or
(b) if for the time being it refers to 6 months, to substitute a reference to 12 months for the reference to 6 months.
(2) An amendment under sub-paragraph (1) has effect only in relation to an offence for which a person is convicted on or after the day on which the amendment comes into force.
(3) Regulations under sub-paragraph (1) are subject to the negative resolution procedure.”
(3) In Schedule 1 to the Interpretation Act 1978, after the entry requiring the definitions relating to offences to be construed without regard to section 22 of the Magistrates’ Courts Act 1980 insert—
“In relation to a term of imprisonment in respect of an offence triable either way under the law of England and Wales, “general limit in a magistrates’ court” means the limit laid down by section 224(1A)(b) of the Sentencing Code (as it has effect from time to time).”
(4) In section 32(1) of the Magistrates’ Courts Act 1980 (maximum penalty on summary conviction for certain either-way offences), for “12 months” substitute “the general limit in a magistrates’ court”.
(5) In section 282(3) of the Criminal Justice Act 2003 (maximum custodial term on summary conviction for certain either-way offences)—
(a) omit “maximum”;
(b) for “12 months” substitute “a term not exceeding the general limit in a magistrates’ court”.
(6) Subsection (7) applies to relevant legislation—
(a) which provides for a maximum term of imprisonment of 12 months on summary conviction for an offence triable either way, and
(b) in relation to which section 282(3) of the Criminal Justice Act 2003 does not apply.
(7) Relevant legislation to which this subsection applies is to be read as providing for a term of imprisonment not exceeding the general limit in a magistrates’ court (in place of the term referred to in subsection (6)(a)).
(8) Subsection (9) applies to relevant primary legislation that confers a power (in whatever terms) to make subordinate legislation providing for a maximum term of imprisonment, on summary conviction for an offence triable either way, of—
(a) 6 months, in the case of an enactment contained in an Act passed on or before
(b) 12 months, in the case of any other relevant primary legislation.
(9) Relevant primary legislation to which this subsection applies is to be read as conferring a power to provide for a term of imprisonment not exceeding the general limit in a magistrates’ court (in place of the term referred to in subsection (8)(a) or (b)).
(10) The Secretary of State may by regulations—
(a) amend relevant legislation in relation to which section 282(3) of the Criminal Justice Act 2003 applies, to spell out the effect of that provision (as amended by subsection (5));
(b) amend relevant legislation to which subsection (7) applies, to spell out the effect of that subsection;
(c) amend relevant primary legislation to which subsection (9) applies, to spell out the effect of that subsection;
(d) amend relevant legislation in consequence of an amendment under any of the preceding paragraphs.
(11) In this section—
“relevant legislation” means an enactment contained in—
(a) an Act passed before or in the same Session as this Act,
(b) an Act or Measure of Senedd Cymru enacted before the passing of this Act,
(c) subordinate legislation made before the passing of this Act, or
(d) retained direct EU legislation, not falling within the preceding paragraphs, made before the passing of this Act;
“relevant primary legislation” means an enactment falling within paragraph (a) or (b) of the definition of “relevant legislation”;
“subordinate legislation” means subordinate legislation within the meaning of the Interpretation Act 1978 (see section 21(1) of that Act) or any equivalent instrument made or to be made under an Act or Measure of Senedd Cymru.”’—(James Cartlidge.)
This new clause enables the maximum custodial term that a magistrates’ court may impose for an either-way offence to be reduced to 6 months, and subsequently restored to 12 months, by regulations.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 2—Online Procedural Assistance—
‘(1) Online Procedural Assistance, must be made available and accessible to any party or potential party to proceedings governed by Online Procedure Rules that requires it. In delivering this duty, the Lord Chancellor must have due regard to the intersection of digital exclusion with other factors, such as age, poverty, disability and geography and deliver support services accordingly.
(2) It must include assistance to enable such a party or potential party to have a reasonable understanding of the nature of the proceedings, the procedure applicable under Online Procedure Rules and of how to access and navigate such procedure. To this effect, it will provide both advice and technical hardware, as appropriate, and will provide assistance to such individuals throughout the course of their proceedings.
(3) Anyone who requires Online Procedural Assistance must have the option of receiving it either via remote appointments or in-person appointments at a site local to them.
(4) Online Procedural Assistance must include, for a party or potential party whose first language is not English, assistance, by interpretation or translation as appropriate, in a language that is familiar to the party or potential party.
(5) The delivery of Online Procedural Assistance must be evaluated at yearly intervals by an independent evaluation team. To assist in these evaluations, data must be routinely collected relating to the protected characteristics of those using the service, outcomes of cases that used Online Procedural Assistance and the frequency and location of the appointments provided. This must also be made publicly available.’
This new clause clarifies the nature of online procedural assistance.
New clause 3—Review of the single justice procedure—
‘(1) Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review of and publish a report on the effectiveness of the single justice procedure.
(2) A review under subsection (1) must consider—
(a) the transparency of the single justice procedure in line with the principle of open justice,
(b) the suitability of the use of the single justice procedure for Covid-19 offences, and
(c) prosecution errors for Covid-19 offences under the single justice procedure and what redress victims of errors have.
(3) The Secretary of State must lay a copy of the report before Parliament.’
‘(1) This Act must be construed in accordance with Article 6 of the European Convention on Human Rights.
(2) If a court or tribunal has found a provision of this Act to be incompatible with Article 6 of the European Convention on Human Rights, it may, on application, make an order to that effect and that provision shall cease to have effect.’
This new clause would ensure the compatibility of the Act with Article 6 of the ECHR (right to a fair trial).
Amendment 36, clause 3, page 4, line 28, at end insert—
‘(1) Before this section may come into force, the Secretary of State must—
(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction and penalty for certain summary offences;
(b) lay before Parliament the report and findings of this independent review; and
(c) provide a response explaining whether and how such issues which have been identified will be mitigated.’
This amendment would require a review of clause 3 before it can come into force.
Amendment 20, page 5, line 34, at end insert—
‘(e) the prosecutor is satisfied that the accused does not have any vulnerabilities and disabilities that impede the ability of the accused to understand or effectively participate in proceedings, having undertaken a physical and mental health assessment.’
This amendment would require that all accused persons considered for automatic online convictions are subject to a health assessment, and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online.
Amendment 21, page 5, leave out lines 35 to 37 and insert—
‘(4) An offence may not be specified in regulations under subsection (3)(a) unless it is—
(a) a summary offence that is not punishable with imprisonment; and
(b) a non-recordable offence, which excludes any offence set out in the Schedule to the National Police Records (Recordable Offences) Regulations 2000/1139 (as amended).’
This amendment would exclude any offences which are recordable from the automatic online conviction option.
Amendment 22, clause 9, page 26, line 1, leave out subsection (5).
This amendment would remove cases involving children and young people from the provisions of clause 9.
Amendment 40, clause 21, page 39, line 13, leave out “(3) and (4)” and insert “(3), (4) and (4A)”.
This amendment is consequential on Amendment 41.
Amendment 41, page 39, line 30, at end insert—
‘(4A) The Lord President of the Court of Session is to appoint one person with experience in and knowledge of the Scottish legal system.’
This amendment would require the Online Procedure Committee to include a person with experience in and knowledge of the Scottish legal system, appointed by the Lord President of the Court of Session.
Government amendments 7 to 19.
The Government’s new clause 1 will provide powers to vary the maximum prison sentence that magistrates courts can give for a single offence. Court recovery remains a top priority for the Government. We have considered all options to support recovery in the criminal courts and have already taken several steps, such as investing £250 million in court recovery in the last financial year. The most recent spending review settlement provides £477 million to improve waiting times for victims and to reduce Crown court backlogs caused by the pandemic.
I have spent 16 years of my professional life trying to keep people out of prison. I have also worked within the current sentencing guidelines of six months. I support the Minister. Although I appreciate that this is a technical amendment, the magistrate should have increased sentencing powers—it is in the interests of justice. All my constituents welcome this, and we should be imposing deterrent sentences rather than the incredibly lenient sentences that are often handed out by magistrates because they do not feel that they have sufficient powers or length of sentence to replicate the seriousness of the offences that they are facing.
My hon. Friend has put his point on record, not least as someone who speaks with huge experience as a criminal solicitor—a voice of which we do need to hear more in these debates. It is an excellent point.
Magistrates play a vital role in our justice system. I would like to put on record, as I have done previously, my immense gratitude to our magistrates, our volunteer judiciary, for their work in tackling the backlog. They put in a herculean shift to bring down the backlog and make extra capacity, which we can now utilise.
I seek reassurance from my hon. Friend that this measure will speed up the process, so that we will see more people being brought to justice, and also more people getting their cases heard, so that justice is done.
I will explain very shortly what impact we expect this to have on the delays, which my hon. Friend is quite right to raise.
Just to be clear, in the coming months, we will be extending magistrates court’s sentencing powers from a maximum of six months to 12 months imprisonment for a single triable either-way offence by commencing existing provisions in the Sentencing Act 2020 and the Criminal Justice Act 2003.
Extended sentencing powers will allow for more cases to be retained in magistrates courts, allowing these cases to be heard more quickly and with the intended effect of reducing the backlog of outstanding cases in the Crown court. Just to be clear, we estimate that this will save nearly 2,000 Crown court sitting days per year. Magistrates are also fully capable of hearing these cases. They make sound legal decisions, which is supported by the fact that there is very low appeal rate of only 0.7%, 50% of which are dismissed or abandoned.
I, too, support this amendment. My hon. Friend will remember, or will perhaps know, that the Justice Committee has raised this in the past when we did an inquiry in relation to magistrates. A concern was raised by his predecessor that this might have an impact on the levels of those going into custody, but we were never able to find any evidence to support that. It seemed, essentially, anecdotal. Has any hard evidence been found to suggest one way or another?
The short answer is no. That is certainly my impression. The reason that we are making this change is that we have faith in our magistracy. I have spoken about the huge shift that they put in during the pandemic to get the backlog down in the magistrates courts. When it comes to trying to make guesses about what impact this will have, the key thing is to simply trust our magistrates to look at the case before them, to take into account sentencing guidelines, to take the advice of their legal advisers, and to make their sentence according to the circumstances of the case before them, which is how they always behave.
We want to make this change as quickly as possible, so that we can ensure maximum benefit for court recovery. That is why we will be implementing the policy on a national basis from the outset, rather than first running a pilot in select courts. This clause supplements the provisions to extend the sentencing powers of magistrates courts by introducing a power to vary the limit on the length of sentence that the magistrates courts may give to either six months or 12 months in the future. This will ensure that there is the ability to return to the current position in the event that any unsustainable adverse impacts materialise—of course, we sincerely hope they will not.
Taken together, this amendment and the magistrates’ recruitment campaign launched this week shows that this Government are committed to our magistracy and understand how important they are for court recovery.
I also support this amendment and the efforts being made by my hon. Friend’s Department and across Government to increase the ability of magistrates to hear and deliver justice. Can he confirm that, through this Bill, the raising of the magistrates’ retirement age from 70 to 75 will include those who have already been forced to retire at 70, so that, where there is local demand, they can come back and serve some of the justice that we now want to see being brought forward?
My hon. Friend makes an excellent point, because, of course, we do want to achieve precisely that. Just to be clear, it is not in this Bill. It is in the Public Service Pensions and Judicial Offices Bill that is going through at the same time—I spoke on its Second Reading. The key point, as my hon. Friend has said, is that it raises the mandatory retirement age to 75, and we think that that will have a significant impact. In fact, we have estimated that it could lead to 400 additional magistrates coming in at a time when we really need that resource because of the backlog.[This section has been corrected on
We have tabled other amendments on employment tribunals. Amendments 7 to 19 to schedule 5 are minor and technical, and ensure that terminology used in employment tribunal procedure is up to date, and that it correctly reflects terms used in employment tribunal procedure regulations. There are of course a number of non-Government amendments in this group, and I will respond to them once we have heard from the Members who tabled them, towards the end of the debate.
Let me first thank the Minister and other colleagues on the Bill Committee for their kind comments on the last day. Sadly, I was unable to join them because I had tested positive for covid Double vaccinations protected me well, and I got off lightly. I am also grateful to the Minister for his helpful engagement with many of our concerns in Committee.
The Opposition understand the need to modernise our court and tribunal proceedings, and we appreciate the potential of online and digital procedures to increase the efficiency of our courts for those who use them and work in them. However, we also recognise that alongside any innovative changes, appropriate safeguards must be introduced to ensure that access to justice and engagement in our justice system are not inadvertently hampered for anyone. I am concerned that the criminal procedure and online rules procedure sections of the Bill as drafted do not sufficiently safeguard access to justice, particularly for young people and children and people with vulnerabilities.
“Physical hearings will always be available for those who need and want to use them, so that those who are uncomfortable or cannot access the digital and online applications will not be prejudiced.”—[Official Report,
While I welcome that commitment from the Lord Chancellor, I do wonder why the Government would not go so far as putting such safeguards in the primary legislation, instead choosing to vote down every Labour amendment that tried to secure the rights of young and vulnerable individuals to engage with the justice system in the way most suitable for them. Today we are giving the Government a second chance, and I hope that the Minister uses it well and supports the amendments we have tabled.
Before I come on to the Opposition amendments, I will address new clause 1 and its consequential amendments, as we were not able to scrutinise these proposals in Committee. At this stage, I join the Minister in praising the work of our magistrates up and down the country. They do a grand job, often in very difficult circumstances. However, I do not understand why we did not have the opportunity of full legislative scrutiny of these proposals in Committee, rather than their being tabled at this late stage. Indeed, in response to an intervention from Andy Carter on Second Reading, the Lord Chancellor confirmed that the proposals were already being considered at that time.
Ministers have explained that new clause 1 is intended to provide additional capacity to help decrease the burgeoning backlog of cases in the Crown court. In the Ministry of Justice’s own statistics, released just last week, it has been revealed that delays in the criminal justice system have hit a record high. It takes an average of 708 days from the commission of an offence to the completion of a criminal case in the Crown court, so we need action. The Opposition want to see dramatic decreases in these numbers, and will support the Government in measures that will genuinely contribute to a reduction in the backlog. However, I seriously doubt that increasing sentencing powers of magistrates will have the measurable impact that all those involved in the criminal justice system are crying out for.
According to the Government, the measures could
“save 1,700 sitting days in the Crown Courts by enabling 500 jury trials to be switched to magistrates”.
It appears, however, that that estimate presumes that defendants will not exercise their right to opt for a jury trial. Will the Minister tell the House on what basis the Government have made this presumption? It strikes me that one of the primary reasons for not electing for a trial in the Crown court is in fact the lesser sentencing powers of magistrates, but as this cap is increased, I imagine that a trial by jury may seem a more appropriate option for more defendants and so they will still end up in the Crown court. Even if all defendants did choose not to exercise their right, the Government’s plan would represent a tiny saving overall.
I see that Jo Sidhu QC, chairman of the Criminal Bar Association, has also suggested that the increase in magistrates’ sentencing powers will not have the effect that the Lord Chancellor hopes, as it will lead to more cases being appealed in the Crown court, thereby potentially increasing rather than reducing the workload.
That assessment is completely at odds with my 16 years of working in this field. When a case is committed to the Crown court, it is on the basis of the maximum sentence that could be imposed in the circumstances. The increase in sentencing powers will bring many more cases—burglary, affray, first-time offenders—back into the magistrates courts and avoid the ridiculous situation whereby straightforward cases that can be dealt with in a magistrates court are committed to the Crown court for no reason.
I am not saying that we oppose the proposal—Labour legislation first put it on the statute book—but people in the magistrates courts will get higher sentences and may well feel the necessity to appeal, so we will potentially have more appeals.
Following on from my hon. Friend James Daly, one of the main reasons for cases going to the Crown court is that magistrates refuse jurisdiction and send them there. There is no certainty that higher sentences will be given to individuals who are found guilty. They may well get exactly the same sentence in a magistrates court as they would get in a Crown court. Alex Cunningham is confusing the issue. The fact that magistrates can now keep a case in their court without having to refer up to a higher court will reduce the backlog in Crown courts.
We believe the potential is there, but we want to understand the statistics on which the Government have based the proposal. However, I will move on now.
Have the Government taken into account the potential increase in appeals? I imagine that could quickly offset the 1.6% saving in sitting days. The increase in sentencing powers is interesting in the context of existing provisions in the Bill, particularly in relation to the new allocation procedure.
As Justice points out, there is a risk that more serious cases
“could proceed without defendants being physically present for a hearing, and as such without the defendant’s informed input as to whether the case should be heard in the Magistrates’ or Crown Court.”
It is also important to consider the proposal in the light of clause 9, which will allow hearings to take place in the absence of the defendant in many circumstances. Can the Minister share any assessment that the Department has made of the potential impact on appeals to the Crown court of introducing the increase in sentencing powers at the same time as the new allocation procedure and clause 9?
As the Minister outlined, new clause 1 will enable the Government to switch off and back on the maximum custodial term that a magistrates court may impose for an either-way offence—in other words, he is taking the power to reverse these new sentences when it suits the Lord Chancellor. I am interested to hear in what circumstances the Minister would want to reduce magistrates’ sentencing powers in future. Will that be triggered by the backlog reaching a certain level, or does he think there is a high risk that there will be unintended consequences, such as those that the CBA, Justice and I have described?
The whole approach suggests that the Government are not too confident that the proposal will be the success that they hope. Until Ministers address the shortages in judges, criminal practitioners and appropriate court space, victims and defendants will continue to suffer excessive waits until their cases are concluded.
I will now move on to the Opposition’s amendments and new clauses, which, as I explained earlier, aim to introduce a number of safeguards into the Bill to ensure that access to justice is not hampered in the drive towards efficiency that online and remote processes can offer.
Clause 3 creates an automatic online conviction and standard statutory penalty procedure, which will provide automatic online convictions as an alternative to the single justice procedure. Through this process, a defendant could opt to plead guilty online, which would result in an automatic conviction without the need for a hearing.
The process rightly already has some limitations. For example, the defendant must consent to use of the process, so they retain the right to opt for an in-person hearing instead. Furthermore, the procedure is only available in respect of non-imprisonable summary offences where the accused was aged 18 or over when charged. The Opposition agree with those limitations, but we think they need to go further. Amendment 20 would require that all accused persons considered for automatic online convictions, as introduced by clause 3, are subject to a health assessment, and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online.
The Equality and Human Rights Commission has recognised that remote justice is unsuitable for disabled people, such as those with learning difficulties, cognitive impairments or mental health conditions. The commission identified that remote proceedings reduced chances to identify a court user’s additional needs and make the appropriate adjustments. I know the Minister will share my anxiety that further roll-out of remote processes without the right safeguards may compound those inequalities even further. A recent criminal justice joint inspectorates report emphasised the need for default screening of all criminal suspects and defendants for disability, including neuro-disability. That proposal was supported by the former Lord Chancellor, who promised action on this issue. I sincerely hope his successors will uphold his promise by supporting this amendment.
I am aware that it is the Government’s intention for online pleas to be entered via the common platform, which potentially provides at least one instance where a court user’s needs can be identified so that adjustments can be made. However, the ongoing chaos with the common platform demonstrates why that would not be a sufficient safeguard in this regard. The pilot and early adopter sites have established that in its present form, at least, the common platform is not fit for purpose. The experience of the pilot courts has been widely reported to the Public and Commercial Services Union as disastrous. Their members have been working late into the evenings in an attempt to record case outcomes, with work often disappearing into thin air. Case outcomes that took a matter of seconds to record in a paper file are now taking in excess of an hour to record, provided the system is even working. Although Her Majesty’s Courts and Tribunals Service has taken steps to address slowness and instability since the intervention of the senior presiding judge in pausing the roll-out last year, PCS does not accept that those steps have addressed the fundamental design flaws. Results still routinely disappear from the court record.
I am told that confidence in the common platform at the Crown Prosecution Service—the common platform was initially a joint CPS and HMCTS venture—is so low that the CPS has retained its case management system and is using that in preference to the platform. Given the low level of confidence in the system among the professionals who use it, I am sure the Minister can recognise why I do not believe it should be relied on as a safeguard as more remote justice procedures are introduced and rolled out. Instead, he should listen carefully to the EHRC’s findings and introduce meaningful screening measures.
I turn to amendment 21, which would introduce a further safeguard to the automatic online conviction and standard statutory penalty procedure by excluding recordable offences from its purview. When I raised my concerns in Committee about the application of the AOCSSP to recordable offences, the Minister confirmed:
“There is currently no intention to extend the procedure to any recordable offences.”––[Official Report, Judicial Review and Courts Public Bill Committee,
The Opposition welcome the Minister’s words, but we would prefer to see that confirmed in primary legislation. The Bill already limits the use of the procedure to summary and non-imprisonable offences, but the consequences of a recordable conviction, even for such an offence, can still be serious. Many people will not understand the impact that a conviction can have on their lives. For example, it can have a detrimental impact on employment prospects in certain sectors.
In its current format, it seems as though the AOCSSP will incentivise people to plead guilty out of convenience, regardless of whether they have an arguable case. I am sure the Minister will agree that it is vital that no one is adversely impacted by pleading guilty without recognising the full impact. If the Government agree with that point, I hope the Minister will confirm that support by limiting the procedure in primary legislation to non-recordable offences.
I now consider amendment 22, which would remove children from the provisions of clause 9. Again, in Committee the Minister provided me with additional briefing on this point, for which we were very grateful. It was not, however, enough to quell my concerns about the fact that courts will be able to proceed if a child defendant is absent from a plea and allocation hearing. In Committee, the Minister confirmed that he recognises that
“in the majority of cases, the courts may not deem it appropriate to proceed”––[Official Report, Judicial Review and Courts Public Bill Committee,
in the absence of the child. Given that, I do not know understand why the Government insist on keeping the provision in the Bill. I have spent much time in this role trying to unpick Government proposals that treat children more and more like adults in the justice system, in both this Bill and the Police, Crime, Sentencing and Courts Bill. It is extremely worrying to me that here we have yet another example of the Government failing to treat children in an appropriately distinct way. It is the position of the Opposition that they should be removed from the scope of the clause entirely.
I now turn to the Opposition’s new clauses and, first, to new clause 2, which clarifies the nature of online procedural assistance. We discussed the Bill’s proposals on online procedure at length in Committee, but again the discussions did not completely allay my concerns, which is why the Opposition have tabled this new clause. Some 16% of the UK population lack basic digital skills and are unable to participate in a digital society. There need to be clear assurances that those individuals will not be left out of the justice system by the Bill. As it stands, there is only a vague duty for the Lord Chancellor to provide digital support
“for those who require it”.
Labour believes that a specific commitment to assist digitally excluded individuals would offer better protection to that 16% of society, and the new clause adds the details that the Bill lacks on who exactly needs to be covered by the Lord Chancellor’s duty.
Finally, Labour’s new clause 3 would mandate the Lord Chancellor to undertake a review of the single justice procedure and, in particular, its appropriateness for use in prosecuting covid-19 offences. I am grateful again for the Minister’s engagement on the issue, which is one I have been particularly interested in over the past year. We have met to discuss some of my concerns about the single justice procedure, and I can confirm that he can expect a follow-up letter very soon. However, Labour felt it was important to bring the clause back for discussion on the Floor of the House, given the topicality of the issues it deals with. There are a number of allegations that members of the Government and those who work with them may have broken covid rules, having met for parties during lockdowns. The allegations are well known and numerous, and I do not intend to go over them again at this time, as we are now aware that there is an ongoing police investigation into some of them.
The allegations have, however, certainly been detrimental to public trust in not only the Government, but the justice system’s handling of covid-19 breaches more generally. Members may have seen the reports from Evening Standard court reporter Tristan Kirk on those cases. Last Wednesday, he tweeted:
“In the latest batch of Covid-19 prosecutions, a magistrate considered 68 cases on a single day, behind closed doors, and within just five and a half hours...The court recorded receiving a plea in just 11 of those cases. Defendants denying the breach were adjourned for trial, guilty parties were sentenced, the rest went through a mini-trial. In all, the magistrate imposed more than £15k in fines.
All these cases were dealt with behind-closed-doors, in the Single Justice Procedure. Details of the allegations are, as yet, sparse. There was no open court hearing, so it’s impossible to say how much care was taken over each case.”
The allegations of Government parties have pushed those prosecutions back up the agenda, as it appears that the rules have not been applied equally. I am not questioning the legality of convictions in individual cases or trying to impugn the decisions of the magistrates, who were applying the law, but I think it will assist in the consideration of the new clause if I share what some of the defendants wrote.
A 66-year-old man from Brockley wrote:
“I am a sick person with heart failure and other problems. I went to the allotment to get some greens as I don’t eat meat. I am a pensioner struggling to pay my way and in debt already. I did not wish to break the law and if you check I have no criminal record since school over 50 years ago”.
He was given a £100 fine. A woman was fined £250 for accidentally breaking the rules when trying to drop off a birthday card at the house of a friend, with whom she was in a bubble. She said:
“I did not realise there would be other people present. I did not enter the property.”
The review mandated by new clause 3 will assess how compatible the single justice procedure is with the principle of open justice. The review would also consider the appropriateness of the SJP for the prosecution of covid offences. The Joint Committee on Human Rights has stated:
“We are concerned that the single justice procedure is an inadequate tool to provide the necessary fair trial protections for people accused of offences that are so poorly understood and lacking in clarity and where so many mistakes have been made by enforcement authorities.”
It is not just members of the public who have a poor understanding of the offences. The Prime Minister himself does not understand them—and he made them up. He does not seem to know when he is at his own birthday party.
I certainly share the concerns of Big Brother Watch, which has pointed out that, in an unprecedented step that acknowledged the complexities of the new offences, the Crown Prosecution Service committed to reviewing all charges made under the Health Protection (Coronavirus) Regulations 2020 and the Coronavirus Act 2020. Those monthly reviews have overturned hundreds of unlawful charges—18% under the regulations and 100% under the Act.
However, the majority of charges made under the regulations and the Act have not been reviewed as they have been brought using the single justice procedure. As we know already, some are incorrect. For instance, 37 people have been prosecuted under schedule 22 to the Act through the single justice procedure. Given that the offences were in relation to a schedule dealing with events and gatherings that has never been activated in England, those prosecutions simply cannot be lawful.
There are errors in about 10% of prosecutions brought under the SJP generally, and I imagine that that number is much higher for covid-19 offences. How we handle the criminalisation of certain behaviours in the pandemic will inform future emergency responses, so it is important that we reflect fully on how the criminal law was used and what lessons there are to be learned. I am sure that many Members will agree with me that the action of the Government on covid rules demonstrates that there is much for them to learn.
To finish, I emphasise again that Labour supports measures that will streamline and build efficiency into the justice system; it is vital that we do so to bring the backlog down. But we cannot compromise access to justice in the name of efficiency, so I hope that the Government will accept the new clause.
All in all, this is a valuable Bill and I welcome the Government amendments. I practised criminal law for the better part of 30 years before I came into the House—in both magistrates courts as a younger barrister and then predominantly in the Crown court, both prosecuting and defending. It never seemed logical that the legislative provision introduced by the Labour Government in 2003 had not actually been brought into force.
Much has changed since that time in the way magistrates operate—and for the better, frankly. It seems to me that there have been real efforts to make the bench more diverse, and those recruitment activities are continuing. As a Select Committee in the previous Parliament, we wrote a report about the magistracy—the first for a number of years—that recognised the value of the work that magistrates do. Since 2003, the sentencing guidelines have been developed to a high degree and they are available now to all benches as well.
My hon. Friend mentioned a diverse bench. Does he agree that it is vital that employers think about the value of having employees on the bench? They should be considering that step in personal development for employees.
I salute my hon. Friend’s work as a magistrate over many years. What he says is absolutely true, and the Justice Committee report picked the point up at the time. When I practised in parts of east and central London, magistrates benches used to have a very high number of what we would now term blue collar workers—frequently trade union officials and public sector workers. They were given time off. Some of the major employers—Ford at Dagenham in the old days, for example—used to allow employees time off to serve as magistrates. The courts were much the better for that. I hope that that can be encouraged and we should make it easier to achieve.
We should also look at magistrates’ expenses, which have not been updated for very many years. We do not need legislation to do that, but we should make it worth people’s while to serve and not leave them out of pocket. That is important.
When the Committee published the report and considered why the provisions in the Criminal Justice Act 2003 had not been brought into force, we questioned the evidential basis. At that time, the Ministry of Justice’s line was that there was a risk of an adverse impact on the prison population, but we were never able to find any evidence to establish that. I think there is a bit of an urban myth that magistrates are heavier handed in sentencing than the Crown court would be. In fairness, when I first started, there might have been a bit of anecdotal evidence that I came across to support that view, but things have moved on over the years. The benches have a more sophisticated approach to sentencing and the guidelines have developed to such a degree that that dimension has changed.
I truly wish that my hon. Friend had come to Bury magistrates court, then he would know a bench of magistrates who were willing to impose the stiffest possible sentences. My hon. Friend the Minister referred to the backlog, on which this debate is framed. I am a member of the Justice Committee, under the excellent chairmanship of my hon. Friend Sir Robert Neill. We should be considering the measures in terms not just of the backlog, but of the new offending that comes into the system. I believe the measures will give confidence to the police and to other partners in the criminal justice system that, instead of creating more backlog, by releasing more people under custody we can get them before the magistrates, sentenced and dealt with at the earliest opportunity.
I agree with my hon. Friend and recognise his experience in the field. I do not think this needs to be framed as a backlog-reducing measure. There is merit in the measure in its own right, as there was in 2003 when the Labour Government introduced it. With all due respect to the Minister, it does a bit of disservice to the measure to say it is done to reduce the backlog, and that it can be reversed. I would hope it would not be reversed; it is desirable in terms of a better allocation of case time, and it is a better use of court arrangements to keep lower level cases in the magistrates court.
A powerful point was made about the reduction in the number of committals for sentence and those cases when the magistrates refuse jurisdiction in relation to either-way offences. I do not think that will be eaten away by people electing that course of action needlessly, particularly if they have good and sound early legal advice.
That is where I think we can improve the system. Doing so does not require our legislating in this Bill, but we should make sure that when we revise the legal aid system, we front-load it so that there is proper legal advice available from solicitors at a very early opportunity to get informed pleas and early disclosure into the system. That will of itself be likely to keep more cases down at the magistrates court level, and would get more pleas. When they are confronted with the reality of the evidence, and with sound advice, more people will accept that they should enter a guilty plea when they have committed an offence.
That is the right way to deal with the issue, which is why I think the amendment is entirely justified in any event. Of course, it has to be applied on a national basis. The idea of a pilot never seemed realistic and would be against the principle of natural justice. It could not be right if there was a postcode lottery and someone could get a higher sentence in Bury than they could in Bromley because one was in the pilot. We either do it nationally or not at all, and the Government have made the right call.
I hope we will continue to invest in training and professional support for the magistracy, which again our Committee report called for.
We have to remember that magistrates sit not only in the criminal courts, but in the family proceedings courts. Support and advice, and the recruitment of magistrates, will be really important in making sure that children and families are also getting justice through the family court system.
That is entirely true. We know that there is sometimes a struggle to get sufficient magistrates to sit in the family jurisdiction. They are absolutely crucial. There is a separate piece of work that needs to be done, so that, as with early legal advice, informed decisions and choices are made. That applies in the magistrates court in the criminal jurisdiction and also to decisions that have to be taken in family court proceedings. I am a great believer that the lawyer is the best route into mediation in many family law cases. Having the magistrates end of the family jurisdiction treated seriously is really important for doing justice and for the early resolution of issues for the benefit of the parties and the children involved.
The Chairman of the Justice Committee, as always, talks very clear sense. If we are going to have all these training programmes, attract people to the magistracy and everything else, we will need resources, so will he join me in encouraging the Lord Chancellor to go banging on the door of the Treasury to say that it is time that we took this matter seriously?
I understand the spirit in which the shadow Minister makes that point. He will know that the Justice Committee has said on a number of occasions that we cannot get justice on the cheap. I accept that we cannot write blank cheques, but the fact is that the proportion of total public spending that goes on the court system is a fraction of a fraction. We get justice for a very small amount of overall public spending in this country and a modest increase in that could be entirely justified, even within the existing budgets. With the increase in the Department’s allocation in the last spending, there is scope to do that. However, in terms of a greater reprioritisation of Government spending, more weight ought to be given to the importance of an effective justice system. It is a fundamental part of a democratic society and of the rule of law, and the magistracy are a key part of that.
I understand the spirit in which the shadow Minister spoke to a number of his amendments. I have sympathy with a lot of the thrust behind them and I hope that the Government will take them on board. I do not think that they need to be written in legislation, but there are issues relating to the way in which the single justice procedure operates. I am not against this—I think we have all seen what happens in magistrates courts when a bench sits in an entirely empty court going through a whole list of TV licence defaults or road traffic offences where nobody has attended. That is not a good use of time.
A fair point was raised with the Justice Committee about this issue in relation to open justice. More needs to be done to improve, for example, publication of the lists online so that people can be aware of what is happening and what can be done in relation to the publication of the results. That does not require legislation, but it should be invested in. Again, it is a small amount in the overall scheme of things.
I also share some of the concerns about the operation of the Common Platform. We have to accept that that is not necessarily a silver bullet; virtually no public sector IT system ever is. We have to continue to invest in it, but we cannot ultimately get around the fact that criminal justice—in fact, all justice systems—ultimately depends on the quality of the individuals in it. The technology is there to help, but ultimately, it is the good-quality lawyers, good-quality judges and good-quality probation professionals who help.
My hon. Friend is making an excellent speech. On the justice system and quality individuals, does he, like me, welcome Sir Christopher Bellamy’s report and recommendations, and would he encourage Front Benchers to take a very favourable view of them?
I know we are straying towards the edge of the topic, Madam Deputy Speaker, but I think this is germane, because to make these reforms to the court system work, we have to invest in the professionals who operate in it. I welcome Sir Christopher’s report; it is immensely well researched and immensely well written. The truth is that within the uplift in the Department’s funding, there is scope, I say to the Minister, to implement Bellamy over the period of the spending round. I know that he has had constructive engagement already with Sir Christopher, and I urge him and his colleagues to continue to do so. We should thank Sir Christopher for his work.
I hope, therefore, that we will support the Government amendments. I hope that the Opposition will not press their amendments to a vote, but they raise legitimate issues that the Government should take on board. We all want to co-operate on having a court system that works. Efficiency should not be a matter of partisan debate, because justice must continue to be there, and the more settled arrangements we have across the House, the better confidence will be.
Finally, I express my thanks to magistrates. I have many friends who have served as magistrates. They do a very great public service, but the more magistrates we can get who are younger, the better. We have done pretty well on gender diversity, but we need to do more about recruiting magistrates from ethnic minority communities. That must continue to be a priority. I hope that that will be done by valuing the job; by giving them the resources, and that includes the physical resources and the buildings they sit in, many of which are pretty woeful; by a more imaginative approach to local justice—to where custody cases, for example, are not necessary and to listing cases nearer to people’s homes—by making it easier for witnesses to get to courts, because that was a concern that we raised in our report on access to justice some years ago; and by encouraging the best-quality people to go into the work that is done at the sharp end. That work, actually, is largely in the solicitors’ profession—I say that as a member of the Bar—because they are the people who do the police station call-outs, the early advice and the first appearances in front of magistrates. That is why Sir Christopher’s report, in that regard, is very important.
You will be pleased to know, Madam Deputy Speaker, that most of the SNP’s objections are around judicial review, so I have only two amendments that I want to speak to and I can do that within a couple of minutes to give other people time to speak.
The online procedure rule committee will potentially cover wide areas of law and will sometimes make rules applicable in completely distinct legal jurisdictions. The SNP is concerned about the lack of representation on the committee from Scotland. Amendments 40 and 41 would therefore ensure that someone with knowledge and experience of the Scottish legal system will be appointed to the committee and that appointment should be made by the Lord President of the Court of Session in Scotland. I cannot see any reason to say no to that. That would address the imbalance in the representation of the Scottish legal system and allow the Government to keep up their pretence about respect for Scotland ahead of an independence referendum.
I say to Labour colleagues—I do so gently because the Labour Members present were on the Committee and we very much enjoyed working collaboratively with them—that I was a little disappointed that, with one notable exception, they abstained on amendments that would in effect have allowed Cart judicial reviews, or Eba judicial reviews as we call them, to remain in Scotland. I ask them to consider voting for this simple little measure so that we would have someone with experience and knowledge of the Scottish legal system to represent our system on the committee.
New clause 7 in my name would ensure the Bill’s compatibility with article 6 of the European convention on human rights: the right to a fair trial. To return to the example I gave earlier about the employment tribunal fees judgment in 2017, if the Bill had been in place when that landmark ruling was handed down, no one would have had fees refunded, everyone would have continued to pay the unlawful fees and, going forward, the Government could have simply changed the unlawful so that it was lawful: in other words, there would be no point whatsoever in taking the Government or other public bodies to court. The chilling effect would be widespread. That is surely a breach of article 6, which gives people the right to a fair trial and an effective judicial remedy. The new clause would allow judges a way to disapply the Bill if they considered there was a breach.
Let me give one more example of a group of people who may be refused their rights to a fair trial if the Bill passes: those who require legal aid. To secure legal aid, applicants must be able to demonstrate a tangible benefit if their case is successful. As I and others have demonstrated, if the Bill is enacted, there will regularly be no tangible benefit. If the Government are trying to keep people on average and low incomes away from being able to bring judicial reviews and access justice, they are doing a very effective job, but they should at least be honest about that. They have said and will keep saying that the Bill is compatible with article 6, but surely that begs the question: why do they continue to resist any amendment to ensure compatibility?
It is a pleasure to speak in the debate in support of the Government’s new clause. The Minister and hon. Members will know that I continue to sit in magistrates courts; I am on the Merseyside bench at courthouses in Sefton in north Liverpool, in Liverpool city centre, in Birkenhead and occasionally in Chester and Crewe. I decided to do so because I felt that, as a Member of Parliament, it would be incredibly helpful and informative to continue to go into courts to understand the issues that magistrates and members of the legal profession face, as well as to hear and see those experiencing the criminal justice system from the other side.
In the last 10 years, I have seen tremendous change in the operation of the courts, which my hon. Friend Sir Robert Neill mentioned, all of which has been designed to make the system more efficient. I think it is fair to say that some of the changes—closing court buildings in particular—have been pretty unpopular with members of the judiciary and members of the legal profession. After Dale Street magistrates court in the centre of Liverpool closed—a wonderful old building that had proper courts—and magistrates moved into the Queen Elizabeth II law courts where the Crown court is held, I wondered for a time what that would do to our magistrates courts. On reflection, knowing that four other buildings contained courthouses in Liverpool, I could completely understand why those decisions were taken. The waste that we were seeing within the system was unjustifiable. Our ability to reduce the amount of buildings and focus on developing technology and investing in courthouses to improve the facilities is critical. The ability to invest in the number of professional judges sitting as district judges has enabled a swifter and more effective process in the magistrates courts.
Many members of the magistracy have seen the number of magistrates in the courts continue to fall, which is one of the concerns. and I am pleased that the Government are taking steps to address that. Another area of concern was the centralisation of certain types of cases in certain courthouses. Let me give the House an example. On Merseyside, all motoring offences are now dealt with in Birkenhead, so if a magistrate regularly sits only in Liverpool city centre, they will never come across a motoring case. It can sometimes be a bit of an issue for magistrates to get their head around such issues if they are faced with an appeal, or an issue that has been referred back to their court, and they have not dealt with a motoring offence for some time. I say to the Minister that the ability for all magistrates to deal with all issues is really pertinent in the criminal court.
As the Minister said, magistrates play a fundamental role in our society, covering the overwhelming majority of criminal cases that appear in our courts. I want to join hon. and right hon. Friends in paying tribute to the 13,000 magistrates in courthouses across England and Wales, and to recognise and put on record the sacrifices that they have made throughout the covid pandemic. The overwhelming majority of courthouses stayed open. The magistrates, who were all volunteers, turned up to do their public duty. We should recognise the value that that has given to local society up and down the country. They have ensured that speedy justice has been delivered. I saw magistrates adapting and moving into Nightingale courts in Liverpool, in the historic St George’s Hall, where they continued to provide an outstanding service to the people of Merseyside and Cheshire.
The news this week that the Government are promoting a recruitment drive for 4,000 new magistrates is very welcome. They truly are the unsung heroes in our justice system. We need to ensure that people from every part of our society are represented in their ranks. I urge the Government to look at the recruitment process and the length of time it takes from applying to becoming a magistrate to actually sitting. I know many people who have applied to become a magistrate but who have fallen off during the process because it seems to be endless. The local advisory councils have historically been responsible for selecting magistrates. The Government need to consider that process carefully. The regular meeting of those advisory panels needs to be focused on.
I welcome the news that magistrates’ sentencing powers will be increased from six months to 12 months to help drive down waiting times and bring the criminal justice process to a speedier resolution. As the Minister and the Opposition spokesman mentioned, I have raised this in the House on numerous occasions, and I am delighted to see that it is now moving forward. I thank the Minister for taking this forward and making it happen. Ministry of Justice figures show that victims are waiting more than 600 days for justice after crimes are committed to the Crown court, a rise of more than 50% in the past year. Such delays increase the pressure on defendants, witnesses and victims of crime. The increase in sentencing powers will mean that less serious crimes can be heard much more speedily in magistrates courts, freeing up around 2,000 extra days in Crown courts.
Based on his long experience in the magistracy, does my hon. Friend agree that the increase in sentencing powers is not going to have a great impact on the magistrates? They are not suddenly going to decide to send to prison everybody they previously would not have sent to prison because of that increase; it simply expands the sentencing range open to the court. I join my hon. Friend in praising our magistrates, who are experienced, common-sense people from their own communities who make decisions in the interests of justice.
My experience is that the overwhelming majority of magistrates will do everything they can to avoid passing a custodial sentence, and if a custodial sentence is required, a primary consideration is to look to suspend that sentence. Of course, all magistrates, no matter their length of service, sit with an experienced legal adviser who guides them through every step of the process from a legal perspective, so I absolutely agree with my hon. Friend that it will not make a significant difference in that respect.
I know that the idea of changing magistrates’ sentencing powers has polarised opinions, with some saying that lay members of the judiciary should have no powers at all to impose custodial sentences. I am afraid I do not agree: magistrates play an important part in the sentencing process and the role of legal advisers in the courts ensures that the right sentence is given in the overwhelming majority of cases. The Minister mentioned that less than 1% of cases that go into magistrates courts appear in the Crown court for an appeal. I serve on a Crown court appeals panel and there are very few occasions on which I feel that something is wrong and the sentence given should be overturned.
The Minister mentioned that the increase in the retirement age for magistrates is covered in another Bill, but it is important that all these steps are taken together. My hon. Friend Edward Timpson introduced an excellent private Member’s Bill to address the issue, which the Magistrates Association has looked at carefully. Many good, experienced magistrates —presiding justices who chair the benches—are approaching 70 or have gone over that age but can contribute significantly to the work of the courts.
I am delighted that the Government have addressed the issue and look forward to welcoming back colleagues with whom I have served who can bring their experience back into the courthouse. We must remember that when new magistrates are recruited they can sit as wingers for the first five years of their time in the court, and it is important that they sit with experienced magistrates. If we did not address that issue and all the magistrates were reaching retirement age, we would have a serious problem in respect of experienced presiding justices in the magistrates courts, so I am pleased that that increase is to happen.
I wish to touch for a moment on the proposal to make changes to local justice areas. I recognise the importance of local justice and defendants, victims and witnesses not having to travel too far to attend a courthouse, but from a magistrate’s perspective there are some perverse issues with local justice areas. Let me give the House a couple of examples. I live on the border of Greater Manchester but operate in the Cheshire and Merseyside area. The courthouse in Greater Manchester is closer for me to get to, but because I am not in the Greater Manchester local justice area, I cannot sit in that court. That makes no sense at all, so I urge the Minister to look into new ways of thinking about local justice areas for magistrates so that they can sit in whichever courthouse is closest to them, no matter what local justice area might apply.
I was recently given another example by a magistrate who sits in Highbury but lives in Hertfordshire. His court in Highbury does not sit at the weekend—it has no operation at the weekend at all—so he is a working magistrate who is available to sit in the courthouse on Saturdays but, because he does not operate in the Hertfordshire local justice area, he is not able to sit at the weekend, when he is most available. It would be really valuable to create the flexibility for magistrates to sit in areas that are convenient for them and where they understand the pertinent local issues.
As I said, it is important that we recognise that defendants, victims and witnesses should not have to travel long distances and rack up travel costs. It is really important that justice is done locally and I would not want to see trials and cases listed for courts many miles away from the local area.
I want to talk briefly about technology. I have seen a number of different technologies used in courtrooms, and a number of different systems trialled—Common Platform has been mentioned—and one thing I have seen is that, whatever system is put in place, the legal advisers are brilliant at adapting how they operate, particularly in magistrates courts. I know that magistrates courts have had to make some changes recently and that some things are not quite as quick as they used to be, as legal advisers are recording cases at the same time. I think the Opposition spokesman talked about paper files. Any suggestion that we want to go back to using paper files in courthouses is really not the way forward. When I first started as a magistrate, we all had a big book containing all the sentencing guidelines. Everything is computerised now, and the ability to look up sentencing guidelines or to calculate fines on a laptop is really valuable. I think that all magistrates would recognise that, despite some early hesitancy, we now have a far better system.
My final comments on the changes in magistrates courts reflect the point I made earlier to my hon. Friend the Member for Bromley and Chislehurst about younger magistrates. The Young Magistrates Network has made some really good inroads into understanding the perspective of being a JP while holding down a full-time job. I welcome the extension of the retirement age, but we also need to think about how we have as wide a talent pool as possible. We should have on the bench hard-working members of society who are in employment. If we are getting to a situation where only retired people have the time to sit on the bench and are selected, that is really dangerous.
Importantly, I also think that parents should be encouraged to sit on the bench, particularly in youth courts, because the knowledge and experience of being a mum or dad can be so very valuable when talking to a young person appearing before a youth court.
My hon. Friend makes an important point about the youth courts. Does he agree that it is often not appreciated that the youth courts deal with very serious matters which, if they involved adult offenders, would undoubtedly go to the Crown court, and that requires not only the best possible lawyers, but the most experienced and diverse magistracy available to deal with those important cases, just as we would expect for a jury, with the same level of experience of the world that is brought to bear across the piece?
My hon. Friend is absolutely correct. The sentencing powers of youth courts are already far greater than those in magistrates courts for criminal offences. I do not sit in youth courts, but I have observed them and I know that the conversation and dialogue that takes places between the bench and the young person who finds themselves in court is very different. We do need a really broad, balanced bench in the youth court. I encourage the Minister to look at what support he can give to encourage employed people and young people to come into the magistracy.
The Young Magistrates Network—it is co-ordinated by a young magistrate, Luke Rigg, who has done a marvellous job of looking at this area—has made some very good recommendations, which I think HMCTS is now considering as part of its review. We need to ensure that any recruitment campaign is targeted, using social media, in the right places. I encourage the Minister to look at the school governors’ network, which has done a really good job of talking to employers about the value that somebody who is a school governor can bring to their business. I think that magistrates can also bring a tremendous amount to a business.
Since coming to this House, I have pushed for a number of things to happen in relation to the magistracy. I have raised three or four issues many times, so it is absolutely brilliant that the Minister is putting them all in the Bill. It is like all my birthdays coming at once: everything is happening on the right day. I am very supportive of the Bill. I thank the Minister for engaging with the magistracy and the Magistrates Association, for listening to JP colleagues and for the progress that we are making.
It is always a pleasure to speak under your chairmanship, Mr Deputy Speaker. I fully support the Opposition amendments and the safeguards that my hon. Friend Alex Cunningham outlined so eloquently, especially new clause 2 on online procedural assistance and new clause 3 on the review of the single justice procedure.
I will speak mainly about case backlogs and the online procedure rules in the Bill, but may I first say a few words in response to my constituency neighbour Sir Robert Neill, the Chair of the Justice Committee? I was on the Justice Committee when it was looking at magistrates, and I remember many magistrates coming to meet us on the estate before covid.
I agree that we need to continue to appreciate our magistrates and make sure that they have the support they need to do their job extremely well. We also need to recognise that they have been vital during lockdown as key workers, in situations made extremely difficult by the backlogs that they have had to endure. I agree that we need younger magistrates and magistrates from more diverse backgrounds; as hon. Members may or may not know, there are also many judges from diverse backgrounds who want to be promoted up the ranks. We need to be mindful of ensuring a diverse bench of judges.
Mr Deputy Speaker, our
“criminal justice system is at breaking point.”
Those are not my words, but the words of Derek Sweeting QC, the then chair of the Bar Council. The backlog of criminal cases had pushed past 60,000 by June 2021 and is still increasing. To address it, we need to modernise our court systems. New technology can bring efficiency and help to address the backlog, but our drive to improve the court system should never come at the cost of safety or justice. For example, the online procedure rules set out in the Bill will enable more work to be completed remotely via the internet; one can see the immediate time-saving benefit, but the new rules risk excluding those without internet access or those who are less digitally literate. It is also vital that the online procedure rule committee that will shape the digital rules should reflect the diversity of Britain, which will help to protect the criminal justice system from further bias or any discrimination.
To ensure that all adequate safeguards are put in place, will the Minister commit to an independent pilot of the new technology before its general application? People in poverty do not necessarily have access to new technology, so we cannot take that access for granted or even assume that they are able to use the systems.
While it is important to explore modern solutions, we must not let that task distract us from the reality that our legal system simply needs more funding. There is no silver bullet to solve the crisis in our courts, and no magical technology will appear over the horizon to wipe away the vast number of backed-up cases. New technology and increased funding must go hand in hand. The National Audit Office recommended that £500 million of extra funding would be required between 2021 and 2024 to keep the backlog below 50,000. The Minister should follow that advice and promise that extra funding for our overburdened court systems.
It is a pleasure to follow Janet Daby, who makes a very good point about diversity. The new recruitment campaign that we have launched for magistrates this week is very clearly focused on attracting a more diverse audience of potential participants to consider joining the bench.
In fact, the Chair of the Justice Committee, my hon. Friend Sir Robert Neill, said that the increase in sentencing powers must not just be a backlog measure—and it is not. I will give a good example of that: on the day that we announced the change, I am reliably informed that “How do you become a magistrate?” was one of the trending searches on Google. The serious point is that the very fact of raising those powers shows our commitment to the magistracy and, in my view, will help to attract more people, because it shows how seriously the Government are taking it.
I wish my hon. Friend Andy Carter many happy returns. I am delighted that, for his birthday present, he had the chance to talk about the realisation of one of the main measures that he has been calling for, which is the extension of sentencing powers. I have very much appreciated my engagement with him and other MPs who are or have been magistrates, and with the Magistrates Association. I will continue to engage on the many aspects that he talked about in terms of recruitment and how we work with employers. They were all excellent points.
To turn to the specific amendments that have been tabled, I will begin with the new clauses and amendments to the online procedure rule committee. New clause 2 relates to those who are digitally excluded and sets out duties to provide assistance to litigants or prospective litigants. We recognise that some users may have problems accessing digital services and may need help in starting or progressing their case online. I am committed to ensuring that access to justice remains available to all.
The measures in the Bill aim to direct most users through digital channels in the first instance, but I recognise that some users may experience challenges with accessing and using digital services. Paper forms and offline routes will therefore remain available and HMCTS is undertaking work to review those routes.
Support will be provided through We Are Digital’s network of partners, through a range of channels, to provide digital support. Users can even attend in-person appointments, as well as receive in-home face-to-face support where a trainer in the relevant region can attend the applicant’s home with any relevant equipment. Support is also available over the phone, as well as remote video support. There are also one-to-one video appointments to give support with navigating services to those who already have online access to them. I appreciate the point about safeguards when bringing in new measures online. I have taken that to heart and we discussed it at length in Committee. I hope that that assures hon. Members that significant support is in place.
Amendments 41 and 42 are related to the membership of the online procedure rule committee and seek to require the appointment of a dedicated member of the committee with specific knowledge of the Scottish legal system to be appointed by the Lord President of the Court of Session. To be clear, in the event of it being deemed necessary to have a dedicated member of the committee who is experienced in Scots law, the power in clause 23 enables the Lord Chancellor to amend clause 21 to change the specified membership of the committee. That makes more sense than requiring a member who is experienced in Scots law from the beginning as, under current plans to devolve employment tribunals in Scotland, the OPRC may never actually need to make any rules that cover Scottish tribunals before they become devolved.
On the amendments to the measures on criminal courts, new clause 3 would require the Government to commission a review and publish a report on the effectiveness of the single justice procedure within two months of the Bill being passed. The hon. Member for Stockton North (Alex Cunningham) has taken a great interest in that and I enjoyed meeting him to talk in detail about it.
The single justice procedure is a more proportionate way of dealing with straightforward uncontested summary-only non-imprisonable offences, which almost exclusively result in a financial penalty. It is a matter for prosecutors to decide whether it is appropriate to prosecute a defendant under this procedure and magistrates will have the option to refer a case to open court if they consider that it would be inappropriate to deal with it in this way.
The procedure is entirely optional: defendants can choose at any point prior to their case being considered by a magistrate to have their case heard in court instead. Defendants have an automatic right of appeal to the Crown court against conviction and sentence. We are consistently working to improve the service provided under the procedure. Following consultation with users, we recently revised the single justice procedure notice to better identify vulnerable users and make the process even clearer.
We also work with the media to ensure that the process is accessible and open. One could argue that there is greater transparency for cases dealt with under the SJP, because while the criminal procedure rules oblige courts to give certain additional information on cases on request from the media and other interested third parties, courts are obliged to give more information on SJP cases to the media. Given the safeguards in place and our ongoing commitment to continually review and improve the single justice procedure process, I believe that a formal review of its effectiveness is unnecessary.
Amendments 36, 20 and 21 all deal with the new automatic online procedure and standard statutory penalty, which I will call the automatic online procedure. I do appreciate that this is a very new type of procedure for dealing with certain minor offences, and I recognise that hon. Members are concerned that it should be used appropriately. We all agree on that, and this is why, as I have said before, we have built a number of safeguards into clause 3. For instance, it is an entirely optional procedure, and it will remain the defendant’s choice as to whether they wish to proceed with an automatic online conviction or opt for a traditional hearing in court, and they will be guided through the process so that they can make an informed decision.
Amendment 36 would require the Secretary of State to commission an independent review on the operation of clause 3 before it can be commenced. This report would need to address the potential impact, efficacy and operational issues of the new automatic procedure. As this is a new procedure, we cannot be certain of its impacts at this stage. That is why we are proceeding with caution and limiting its scope to three offences initially that clearly meet the criteria for eligibility.
Amendment 20 would require all defendants charged with an eligible offence, and considered appropriate to be offered the option to proceed with this new automatic online procedure, to first submit to an assessment of their physical and mental health. Only those defendants who do not have any vulnerabilities and disabilities would then be given the option of using this new procedure. It is worth mentioning that there is no requirement for a mental or health assessment under existing criminal court procedures such as the single justice procedure. As a result, the effect of this amendment would be to considerably diminish the impact of this new procedure, which is intended to provide defendants with the option of having their case dealt with quickly online. There would be little or no reason for defendants to opt for this new procedure if the resolution of their case would be swifter under existing procedures.
Clause 3 already provides that only summary-only, non-imprisonable offences will be eligible under this new procedure. Amendment 21 would further restrict the use of this new procedure to non-recordable offences. Recordable offences are those for which the police are required to keep a record on their system. However, the vast majority of eligible offences in scope of this new procedure are non-recordable. Indeed, there are only two summary-only, non-imprisonable offences prosecuted under the single justice procedure that are recordable. As I have said, for an offence to be deemed eligible under this new procedure, it will have to be relatively straightforward and simple to prove, with no complex grounds and a high degree of consistency in sentencing.
I do recognise, however, that this is a novel approach for dealing with certain minor offences, which is why we are proceeding with caution and why we are committed to reviewing the operation of clause 3 before extending it any further to other similar non-recordable offences. Any such extension in the future would have to be done by regulations and would have to be debated and approved by Parliament.
Finally, amendment 22 seeks to prevent clause 9 from applying to criminal prosecutions against children. Subsection (5) has been specifically drafted for children in a way that recognises their increased vulnerability in the criminal justice system and provides additional safeguards for them. The clause creates one additional clearly defined set of circumstances in which it would be possible for the court to allocate a child’s case in their absence. The conditions that will need to be met will be more stringent than those prescribed for adults, even though children do not share the same right as adults to elect for a jury trial.
As an addition to the pre-existing power to proceed in a child’s absence due to their disorderly conduct in court, the clause will provide that the court can decide to proceed to allocate in absence where a child has been invited, but failed, to provide an online indication of plea, and either the court is satisfied they were served with a notice of the hearing or the child has already previously appeared at court to answer the charge. The court must then consider whether there is an acceptable reason for the child’s absence, and it must be satisfied that it would not be contrary to the interests of justice for the hearing to proceed in the child’s absence.
This provision must be viewed in the context of other existing safeguards in primary legislation that seek to ensure that child defendants and their parents have prior engagement with proceedings. We recognise that, in the majority of cases, the courts may not deem it appropriate to proceed with an allocation hearing in a child’s absence—that will be an informed decision for the court—but where a court does consider it appropriate and in the interests of justice, this clause provides an important means of progressing cases and avoiding unnecessary delays.
On the European convention on human rights, new clause 7 would require the Act to be compatible with article 6 of the ECHR, and if a court finds a provision of the Act is not compatible, then the court can make an order to prevent that provision from having any effect. As I said in Committee, I assure all hon. Members that none of the measures in the Bill contravenes article 6. When the Bill was introduced, the previous Lord Chancellor signed a statement under section 19(1)(a) of the Human Rights Act 1998 to confirm his view that the provisions in the Bill are compatible with the convention rights.
On all these measures, I hope I have reassured hon. Members that other than those tabled by the Government, the amendments in this group are not necessary and I urge hon. Members not to press them.
Question put and agreed to.
New clause 1 accordingly read a Second time and added to the Bill.