Lord Marks of Henley-on-Thames:

Moved by Lord Marks of Henley-on-Thames

24: 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 option 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.”Member’s explanatory statementThis Amendment would require a review of the potential impact of Clause 3 before it can come into force.

My Lords, Clause 3 of the Bill sets out a new code, which is to become new Sections 16G to 16M of the Magistrates’ Courts Act 1980, which provides for a new procedure. I will summarise it relatively briefly. First, it enables those accused of certain summary non-imprisonable offences to be offered an automatic online conviction option; secondly, it enables such an accused to plead guilty online; thirdly, it provides for such an accused to be convicted as a result of such an online plea; fourthly, it provides for the penalty for such a conviction to be determined at a figure to be specified in regulations; fifthly, it provides for the endorsement of a driving licence with points, as appropriate; sixthly, it provides for compensation to be payable up to a maximum specified figure, the amount to be determined by the prosecutor; and finally, it provides for the payment of prosecution costs and a surcharge of the amount specified for the offence. That is not defined but is to be specified in regulations and could vary for different offences and circumstances. As to the question of appeal, it is intended by new Section 16M that a magistrates’ court may set aside a conviction or penalty under the procedure if it is unjust.

My Amendment 24 calls for an independent review of the potential impact, efficacy and operational issues on defendants and on the criminal justice system of these provisions. That is not prompted by unqualified hostility to the idea of a simple, streamlined online option to deal with low-level offences that are voluntarily admitted by offenders. On the contrary, if that is properly introduced, with suitable safeguards, I see considerable benefits to these provisions.

Rather, my amendment is an expression of concern that the full personal consequences for people likely to be convicted and penalised by these new means have not been sufficiently considered. They need to be fully considered before the new procedures come into operation.

There have been several impact assessments on the Bill, one of which was targeted on its criminal procedure measures, including these—but it is limited in scope. That is not a criticism of the MoJ; it is in the nature of such impact assessments that they explain what the measures proposed will do and consider what they call the “monetised” and “non-monetised” costs and benefits of the measures proposed. But the assessment is, if I may so describe it, extremely clinical.

The non-monetised costs of measures in Clause 3 are described in the impact assessment in fairly stark terms. The first part of the measures, the online pleas, are described as having the following non-monetised costs for legal aid agencies:

“There is a cost for the LAA associated with changing their service design to ensure that legal representation is available for defendants indicating a written/online plea, where duty solicitors will no longer be engaging with defendants at the first magistrates’ court hearing. Currently this cost is not monetised, as the LAA are exploring a number of different change options.”

For the CPS:

“There may be additional administrative costs … as the new processes will mean more activities are moved online. However, until the future service design model for the CPS has been finalised, these costs cannot be quantified.”

On the online conviction and sentence provisions, the assessment states:

“There will be IT costs to HMCTS for the development, operation and maintenance of the online system. However, as it is not possible to isolate these costs from the wider costs of digitisation and modernisation under the HMCTS Reform programme, they cannot be monetised … There may also be a perceived lack of fairness in the new system insofar as it is no longer means-tested, allowing those with higher incomes to reduce the imposition they receive.”

That last paragraph is the only real mention of the personal non-monetised costs of these provisions.

Right at the outset, I accept that a great deal of the impact will depend on the regulations and the way in which the system operates in relation to offenders. The amendments from the noble Lord, Lord Ponsonby, pick out some of the possible pitfalls. He addresses the difficulties faced by disabled and unwell defendants; those with vulnerabilities or disabilities. He addresses the need for legal representation, which might of course mitigate many of the difficulties for defendants involved in this procedure. But will simple legal representation and its availability address not just the question of cost but the difficulty in accessing legal aid? There is also the rather more nebulous question of whether defendants will take the trouble to get representation or land themselves in difficulties by proceeding without it until it is too late. They may decide not to get representation because the new procedures are online and relatively simple.

There are also wider problems of the defendant’s understanding of not just the process but its consequences. How will digitally excluded offenders deal with the process? Later, we will come to the question of digital assistance in civil proceedings, but those who are unable to access online proceedings easily will find this extremely hard. How many people will be accused and plead guilty for convenience only, because they are faced with an online procedure, when they might not plead guilty were they better informed? How far will defendants understand the consequences of the online conviction that will follow a plea of guilty, and how far will they be aware of the financial consequences? At the moment, it is entirely unclear how far defendants pleading guilty will do so without knowing the financial implications of conviction. It would be helpful if the Minister could indicate whether the regulations will require that all the financial consequences of conviction will be spelled out when the option of online conviction is offered, given that penalty, prosecution costs, compensation and surcharge are likely to be determined only after the plea.

There are other consequences that need consideration, which online processes may make more difficult. The court will lose the opportunity, which I regard as valuable, to identify and address problems for the defendants it penalises. In personal proceedings, justices can see the defendant and can consider for themselves any difficulties and consequences. How do we address that?

There will also be problems with how fines, compensation and costs will be paid. How far have the consequences for families been considered? The impact on defendants and their families of having to pay even relatively small sums can sometimes be underestimated. Another issue that arises is the effects on families of enforcement measures when fines have been levied and compensation and costs have been ordered to be paid. These can amount to quite significant sums which, for people in want of means, are very difficult to raise. Enforcement measures can be far more severe than the financial penalties originally imposed.

How far will the convictions, penalties and consequences reduce or eliminate the opportunity for defendants to get assistance from local authorities and other agencies for them and their families? Perhaps the Ministry of Justice has in mind to ensure that these issues are thoroughly addressed before the regulations come into force, but I fear that they may not be addressed at this stage or even then, and this work needs to be done. I invite the Minister to address these issues not just in his response now but over the period pending Report.

Turning to another subject, my Amendment 25 draws attention to a particular issue; I have raised it with the Minister, who kindly said he would consider it. It arises out of new Section 16G(3), which provides that a notification “purporting” to be given by a person, or the person’s legal representative, is to be treated for the purposes of subsection (2) as a notification given by that person. In other words, if the court gets a notification that appears to come from the accused person, it is to be treated as coming from that person. There is at the moment no provision for an unjust conviction or penalty to be overturned before it is in place—so, although the magistrates can overturn an unjust conviction and can do so presumably on the basis that the wrong person was penalised, that does not happen until the conviction has already happened and the penalty has been imposed.

The subsection to which my amendment is addressed would allow a forged or fraudulent notification given by, for example, a vengeful neighbour or anyone who is hostile to the intended accused, to take effect as an intended plea of guilty, exposing the wrong person to conviction and penalty on the strength of it, and to the stress, worry, problems at work and everything else that that can involve. My amendment would permit a person who denies making what appears to be a notification in his name to give notice to the court of that denial, whereupon the court would have an obligation to determine whether the notification was genuine. I would be grateful to hear whether the Minister has had a chance to consider how we might give effect to that purpose.

Perhaps I might raise a point with the Minister. As I understand the scheme of Clause 3, this automatic online conviction procedure is going to apply only to those offences which are set out in regulations made by the Lord Chancellor, as in new Section 16H(3). The Lord Chancellor has a discretion as to which offences are here relevant. That is by contrast with the provisions set out in Chapter 2 for online procedures generally in relation to civil proceedings, where under Clause 21 the Lord Chancellor may make regulations determining which proceedings the online procedure applies to. But under Clause 21(6) he or she may make regulations only with the concurrence of the Lord Chief Justice, or the Senior President of Tribunals.

Noble Lords in this Committee may recall—certainly the noble Lord, Lord Beith, will recall—that this was the consequence of amendments which we tabled as a result of a report from the Constitution Committee which stated that it was appropriate for the Lord Chancellor, in the civil context only, to provide for particular matters to be subject to the online procedure if there was the concurrence of the Lord Chief Justice. My question to the Minister is whether it would not be more appropriate in this criminal context, in order to provide added protection for individuals for the sorts of reasons indicated by the noble Lord, Lord Marks, if the Lord Chancellor was required to have the concurrence of the Lord Chief Justice before specifying the appropriate criminal offences. I say that with the understanding that we are talking only about summary offences, as in new Section 16H(4). Nevertheless, it may be more appropriate to require the concurrence of the Lord Chief Justice.

I am struggling to remember as far back as Second Reading of this Bill, but I did say at the time that Clause 3 was designed to save money in the courts system, and that the main savings would arise from people who pleaded guilty but who should have pleaded not guilty. The risk is so obvious that I am surprised that there are no safeguards or legal protections included in Clause 3. People need to have legal advice; they need to know whether they have a valid legal defence prior to deciding whether to plead guilty or not guilty. Whether someone has a legal defence is not obvious or straightforward; if it were, we would not have lawyers and judges—including lawyers of the huge talent that we have here in your Lordships’ House. The mishandling of all those Covid prosecutions shows how badly the system can get it wrong when things are not clear: there were thousands of wrongly issued fines and wrongful convictions by magistrates.

Defendants need independent, quality legal advice prior to deciding their plea, and the lack of any such safeguards in Clause 3 makes me wonder how it has got so far without this problem being exposed by the Minister, because the risks are even greater for vulnerable groups, such as those with learning disabilities. The pressure of avoiding going to court might make pleading guilty online feel like the safer option, and the cost of getting a lawyer might make the online guilty plea seem like the best option. There is nothing in these proposals to ensure that vulnerable people are supported in making informed decisions. So the potential for disaster is huge, and there should at the very least be signposting by the Government to independent legal advice, screening for vulnerabilities, and checking whether people are eligible for legal aid. I ask the Minister whether the Government are going to bring amendments along these lines on Report. It is potentially a sensible idea, but I would like to see it work well for defendants, and for that there will have to be some changes.

My Lords, I agree with the final sentence of the noble Baroness, Lady Jones. We all want to see this system work well, and we all want to see adequate safeguards. It seems to me that the safeguards may be built into the regulations, but of course we can build in further regulations and safeguards through the process we are going through now. We are not hostile to these procedures as such; we are just concerned that proper safeguards are built in, either through primary legislation or the regulations.

The noble Lord, Lord Marks, set out fully the broad gamut of issues relating to these types of online convictions, where people plead guilty and receive a computer-generated sentence based on certain summary, non-imprisonable and relatively minor offences. All noble Lords who have spoken raised the point about the ramifications of people making guilty pleas because it seems easier to just get it out of the way, and that the possible consequences of having that criminal conviction, even though it is a non-recordable conviction, are not readily known.

I spoke about this point when I had a meeting with the Minister last week. The wording in the Bill is “recordable offences” and I made the point that there are plenty of offences which are recorded, but they are not recordable in the sense of going on the Police National Computer. For example, when I sit in court as a magistrate and deal with people who have non-recordable offences such as evading train fares, the information is available to me that they have previous convictions for avoiding train fares. I am aware of that information, even though it is not a recordable offence, and that will obviously have an impact on the sentence I give to the person who has not paid their train fare for a second or third time. So there is a distinction between offences which are recorded and offences which are recordable.

I will briefly run through the amendments in my name. As the noble Lord, Lord Marks, said, they are trying to mitigate the possible problems with this approach, to which all noble Lords have spoken. Amendment 26 would require all accused persons considered for automatic online convictions to be 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. Under Amendment 27, the automatic online conviction option would be available only if the prosecutor is satisfied that the accused has engaged a legal representative. Amendment 28 would exclude any recordable offences from the automatic online conviction option. Amendment 29 would raise the age of eligibility for written procedures for entering guilty pleas from 16 to 18 years old.

As the noble Lord, Lord Marks, said, those four amendments in my name attempt at this point to probe the Government’s response to the potential pitfalls of this approach, to put in adequate safeguards for vulnerable people and children and to make sure that people do not plead guilty out of a sense of convenience. I was particularly taken by the argument used by the noble Lord about ensuring that, when people plead guilty, they know the full ramifications of the possible costs of their guilty plea. As he said, there is the cost of the fine itself, the cost of the prosecution and the cost of the victim surcharge, and all those numbers add up. When one sits as a magistrate, one has discretion over the fine and the costs but no discretion over the victim surcharge, so it is not a straightforward calculation. Depending on the means of the person one is dealing with, one would make a suitable adjustment.

After one has put the fine in place, one puts in place a collection order. This is where you give a specific and direct warning to the person you have just fined that, if they do not pay the money, there is a power for debt collectors or bailiffs to come to their house to collect goods to the same value. I go on and warn them that that makes things more expensive because the bailiffs also charge their costs. So there is quite a bit of procedure that one can adjust when one is sentencing, according to the nature and means of the person in front of you. The noble Lord, Lord Marks, asked a good question: how will this online procedure have the flexibility that the in-court procedure has to make sure that a fair disposal is reached?

My Lords, I will first deal with the general argument for Clause 3, not least because the noble Baroness, Lady Chakrabarti, gave notice that she would oppose the Question that Clause 3 stand part of the Bill.

As we have heard, Clause 3 creates an alternative new automatic online conviction and standard statutory penalty procedure for some single justice procedure cases. I should say at the outset that it comes with a number of safeguards. I assure the noble Baroness, Lady Jones of Moulsecoomb, that, as the noble Lord, Lord Ponsonby, fairly said, we all want to see the system work well. This is about putting in place a system that is appropriate and fair.

The procedure would provide defendants aged over 18 and companies that wish to plead guilty to specified offences the additional option of accepting a conviction and pre-agreed standard penalty online without the involvement of the court. Importantly, prosecutors will offer this to defendants only in cases that they consider can be dealt with appropriately through this procedure. It is unlikely even to be offered in cases where, for example, there are aggravating factors or the defendant is a habitual offender.

The procedure is entirely optional on the part of the defendant. Defendants can choose to have their case heard in court at any time before they accept a conviction. Defendants who opt in to using this procedure will be guided through the process and provided with all the information they need to make an informed decision, including—the noble Lord, Lord Marks, made this point—the consequences of accepting a conviction and the full details of the prospective fine. I will say a little more about that in a moment.

Finally, the Criminal Procedure Rules will make provisions for a short cooling-off period to allow defendants to withdraw their conviction if they later change their minds. Separately, the court will have power to set aside a conviction or penalty if it is unjust, for example, in the event that the defendant plainly did not understand the consequences of their decision to accept the conviction.

With that background, let me turn to the amendments. First, I will pick up the points made by the noble Lord, Lord Marks. He raised a number of aspects and asked whether these measures have been properly considered. I assure him that they have. I will try to respond to his points now, but I am conscious that we have had some engagement on these matters before today and I am happy to continue with that if specific questions remain after today, but I will try to deal with them.

The noble Lord asked whether the defendant will receive information about the consequences of a conviction. The answer is yes. Defendants will be provided with all the information they need to make an informed decision, including details of the evidence against them, the potential consequences of choosing this route and the full details of the prospective fine and additional elements, such as the surcharge, costs, compensation and, if appropriate, penalty points. As the noble Lord, Lord Ponsonby, mentioned, they will also receive the details of the enforcement regime, which is part of the decision-making process.

Amendment 24 would require the Secretary of State to commission an independent review of the potential impact of the new automatic online conviction and standard statutory penalty process on defendants and the criminal justice system. Although I recognise people’s concerns about making sure that this works properly, I suggest that we need to see the process work before we can assess its impacts. We are proceeding with caution. As the noble Lord, Lord Pannick, said, only three offences will initially be selected for Clause 3: failure to produce a ticket for travel on a train; failure to produce a ticket for travel on a tram; and fishing with an unlicensed rod and line. These offences have been carefully selected because they are relatively straight- forward and simple to prove, with no complex grounds and a high degree of consistency in sentencing. Against the background of those offences, this enables us to monitor the way the procedure works and look at it carefully before we consider applying it to any other offences. I will come to the point made by the noble Lord, Lord Pannick, a little later but I have it.

Amendment 25 aims to provide for an additional safeguard against fraud for convictions accepted under the new automatic online conviction and standard statutory penalty procedure. It has always been the case that someone could submit a guilty plea while claiming to be the defendant; in fact, there are examples of this even under the current procedures. Defendants who are offered the option of having their cases resolved through this new online procedure will receive a notice that is similar to the existing single justice procedure notice. That will include a unique case number that defendants will be asked to provide when logging on to the online system alongside various personal details, such as their postcode and date of birth. Whenever any of those details are subsequently altered, the case will be flagged for an HMCTS adviser to check. Turning to the point made by the noble Lord, Lord Marks, in the event that a malicious third party managed to obtain a defendant’s case number and personal information, pled guilty and accepted the conviction all without the defendant’s knowledge, the court would have a statutory power to set aside that conviction.

With respect to the amendment, I mentioned earlier there is also the cooling-off period. That will give defendants who have either pleaded guilty or find out that somebody else has done so in their name, the opportunity to withdraw their agreement to accept a conviction. That, plus the general power of the court to set aside a conviction where it is unjust, is a sufficient response to and protection for that scenario.

Amendment 26 would require all defendants considered eligible for this new automatic online procedure to undertake a physical and mental health assessment. Prosecutors will offer defendants this option only once they have considered all the facts of a case and the circumstances of the defendant. As I said, the court also has the power to set aside a conviction if a defendant did not understand the consequences of their decision to accept it.

This amendment would be completely at odds with current practice. There is no obligation or requirement for a physical and mental health assessment under the single justice procedure or for a traditional hearing in court. One thing that we know about mental health in particular is that a person can seem perfectly okay between 10 am and 11 am but they are actually suffering from a significant mental health issue. We therefore do not have that built into our procedures in every case at the moment. The unintended consequence of this amendment would be to make it more difficult to access what is meant to be a simpler and more straightforward way of resolving a case.

Amendment 27 would require all defendants to have engaged a legal representative. Our intention here is that the procedure should be sufficiently simple for people to use without legal assistance. I suggest that the amendment is unnecessary. It would contradict current practice. Generally, cases of this type do not qualify for or attract legal aid and the vast Majority of defendants in these cases already represent themselves, whether under the single justice procedure or in court.

I can assure the noble Lord, Lord Ponsonby, that defendants will be advised of their right to obtain legal advice under this procedure and will be entitled to request a full trial and obtain legal representation—usually at their own expense if there is no legal aid—at any time during the process.

Amendment 28 would restrict the application of this procedure to non-recordable offences, as the noble Lord, Lord Ponsonby, said. In this context, “recordable offences” means an offence for which the police are required to keep a record on the police national computer. We have already specified in legislation that for an offence to be eligible under this new procedure it will have to be summary-only and non-imprisonable. It would also have to be relatively straightforward and simple to prove, with no complex grounds and a high degree of consistency in sentencing.

We have no intention of extending this procedure to any recordable offences, which are inherently unlikely to be suitable to meet these criteria in any event. The three offences initially proposed are all non-recordable offences. The appropriate place for specifying further eligible offences is secondary legislation, which would need to be debated and approved in Parliament.

This might be a convenient moment to respond to the point from the noble Lord, Lord Pannick, about concurrence with the Lord Chief Justice. The short answer to that point is that, as with the single justice procedure, it is for the Government and not the judiciary to determine which offences are included under the new procedure. However, when it comes to implementation, we will continue to work with the judiciary on this and many other matters in the Bill. I respectfully do not accept that it would be right to pass the pen either on a concurrence or any other basis to the Lord Chief Justice when deciding which offences to include.

I am grateful to the Minister. That was the point that I was seeking to make. The last time the online procedure Bill came before Parliament, in 2019, this Committee debated very carefully whether it was appropriate to allow the Lord Chancellor to determine which civil matters should be dealt with online. Your Lordships’ Constitution Committee recommended that it was inappropriate for the Lord Chancellor to decide such matters. This House debated and the Government gave way. The Minister’s predecessor —not quite his predecessor—the noble and learned Lord, Lord Keen, who was speaking on behalf of the Government, accepted that it was appropriate for the concurrence of the Lord Chief Justice to be required. Why does the Minister think it is different in the criminal context? I suggest that there is even greater sensitivity in the criminal context than in the civil context and that the concurrence of the head of the judiciary is required.

My Lords, I am grateful for that further explanation of the point and will happily reflect on it. At the moment, I stand by the point I made a moment ago, which is that it is right in principle for the Government to be able to decide which offences are included under the new procedure. Of course, we discuss with the Lord Chief Justice and other elements of the judiciary how these offences will be managed in practice. As the noble Lord, Lord Pannick, knows, the operation of the courts is run essentially under a concordat agreement between the Lord Chancellor and the judiciary. I will look again at Hansard and go back to the discussion which somebody who was not quite my predecessor was involved in. For present purposes, that is my answer to the noble Lord.

Just on that—and by the way, I did not speak earlier because the case was made so well by the noble Lord, Lord Marks, and I think it is a kindness to the Committee at this stage not to duplicate concerns and comments—to develop the point from the noble Lord, Lord Pannick, and to comment on his conversation with the Minister, it is not for the Government to decide, is it? It is not actually the Government’s position that it is for them to decide which offences are covered by the new procedure, because mercifully the Government have said that there will be parliamentary procedure and regulations. It is for Parliament to decide.

Is not the point that when Parliament looks at these regulations that are made in the future, by a future Lord Chancellor who may not take such a measured approach as the Minister is taking now in relation to which offences are to be included, Parliament would benefit from regulations that come with the advice and endorsement not just of the Government of the day but of the senior judiciary?

I should say, first, that when I mentioned the noble Baroness in my speech, I was not making the point that she had not risen. I wanted her to appreciate that I had taken on board that she was opposing the Clause. When I say “the Government”, of course I mean “the Government with the authority of Parliament”. We are looking at a Bill and that is taken as read. Ultimately, the question is: is it necessarily right for Parliament to say that we cannot proceed unless we know that the LCJ is on board? I suggest that it is quite proper in this case for Parliament and the Bill to say, “This is a power which can be exercised by the Lord Chancellor and no concurrence is necessary.” As I said to the noble Lord, Lord Pannick, I am happy to look at this point, but that is the current position which I adopt.

I was going to make one more point on Clause 4 and Amendment 29, which seeks to raise the age of eligibility for the Section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18. This procedure has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. I am not aware of any issues of concern being raised in relation to under-18s during the whole of that time.

The purpose of Clause 4 is to ensure that prosecutors can also offer this long-established procedure for suitable cases initiated by charge in person at a police station. It maintains the age criterion that already exists. That comes with an array of safeguards for children, which I will not read into the record because I apprehend that members of the Committee will be well aware of them. I suggest that the amendment would therefore create confusion by applying different rules to a well-established procedure since 1957 simply because the defendant is being charged in a different way. I do not think that that is a distinction with a difference, if I can use that legal phrase. It also fails to take into account the special safeguards in place to ensure that the rights of children are protected.

For those reasons, I urge noble Lords not to press the various amendments.

Before I consider our position, can I just ask when the cooling-off period is likely to kick in. In other words, does it start immediately upon the indication of a plea of guilty or will it be following the conviction that is a consequence of the online plea?

My Lords, I will give an answer, but I will check it and if I get it wrong I will write to the noble Lord. I think the way it works is that it will be immediately after conviction. The conviction is almost instantaneous with submitting the online form because it is an online procedure. Therefore, the cooling-off procedure would start immediately after conviction and would run from that time. Indeed, I have just received a message to say that that is correct.

I am grateful to the noble Lord for that clarification; I will consider it.

I will of course withdraw the Amendment at this stage, but I see the process that we have had today as calling for continuing discussion. Although it is helpful to know from the Minister that the financial consequences will be spelled out precisely in the offer, he did not address the non-financial consequences—the personal consequences—in enough detail. Of course I take his point that, at this stage, this procedure will apply only to travelling on trains without a ticket, what used to be called riding on trams without a ticket or unlicensed fishing. In those circumstances, limited to those three offences, the consequences might not be as serious as they otherwise might be, but since the statute refers to all summary-only, non-imprisonable offences, it potentially goes very much wider. It would be very helpful if, during continuing discussions, we were assured about the criteria that would be applied in much more detail for its application to future offences because one can see the distinction simply from the offences that he mentioned and we cannot be sure what will happen.

The amendment tabled by the noble Lord, Lord Pannick, seems to have a great deal to commend it. He raised it as a query to the Minister. If there were an amendment to that effect on Report I rather expect that it would have a lot of support in the House. Having said that, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendments 25 to 28 not moved.

Clause 3 agreed.

Clause 4: Guilty plea in writing: extension to proceedings following police charge

Amendment 29 not moved.

Clause 4 agreed.

Clause 5 agreed.