Lord Ponsonby of Shulbrede:

Moved by Lord Ponsonby of Shulbrede

31: Clause 6, page 11, line 13, at end insert—“and has received the advice of a legal representative prior to submitting a plea.”

My Lords, in this group of amendments we are dealing with offences triable either way and determining the mode of trial. I will go through all the amendments one by one and then make some rounding-up comments at the end.

In Amendment 31, the provisions in Clause 6 would apply only to persons charged with an offence who had received the advice of a legal representative prior to submitting a plea. In Amendment 32, the provisions in Clause 6 would apply only if the court had been provided with a physical and mental health of the accused, confirming that the written procedure would not impede the ability of the accused to understand or effectively participate in proceedings.

Amendment 33 would ensure that an accused person was informed about not only the consequences of giving or failing to give a written indication of a plea but the potential legal and practical consequences of pleading guilty. Amendment 34 would remove cases involving children and young people from the provisions of Clause 9. In Amendment 35, Clauses 6 to 9 would expire two years from when the Bill was passed, unless Parliament passed a resolution to retain those clauses.

Amendment 36 is in the name of my noble friend Lady Chakrabarti, and I will leave her to speak to it. Amendment 36A would ensure that the new increased magistrates’ sentencing powers were subject to regular reporting on their impact, including with respect to those with protected characteristics, every four months.

Clause 8 stand part would delete Clause 8, removing from the Bill the written procedure for children for indicating a plea and determining the mode of trial. Clause 14 stand part would delete Clause 14. That would be consequential to opposing the question that Clause 8 stand part of the Bill and would remove from the Bill the involvement of a parent or guardian from the proceedings conducted in writing. These are all probing amendments.

What I shall say in the round is that allocation decisions are often quite technical. It is often the case that defendants do not particularly follow the niceties of the argument when one is making allocation procedures. That is true with both adults and youths. Nevertheless, it is certainly my experience that a contested allocation procedure really focuses the mind of the court and of the defendant on the severity of the matter that you are dealing with. So, while one could argue that it is a procedural matter that does not require someone to be present in person in certain cases, that is true sometimes, but in my experience there are some closely contested allocation procedures where the full engagement of the defendant is vital in order to make a decision appropriately.

Particularly when it comes to people with mental health problems or vulnerabilities and the like, I have certainly been in court when, if I may use the expression, “the light goes on” and they understand the seriousness of the position that they are in, and it is because of the allocation procedure. So we ought to be very careful about doing a lot of these procedures administratively or online, without the defendants present or without them being fully involved in the process. If you do that, you lose an opportunity to fully engage the defendant in the process that is happening in court. My experience, in both adult and youth courts, is that one of the greatest problems is making sure that defendants fully engage in the process. In my experience, allocation decisions are an example of where people sometimes fully engage and, as I said, the light goes on and they understand the seriousness of their position. I beg to move.

My Lords, I shall speak to Amendment 36 in my name. I also support Amendment 36A in the name of my noble friend Lord Ponsonby. I declare an interest as a member of the council of JUSTICE, the all-party law reform organisation, and a British agent of the International Council of Jurists, along with many other Members of the Committee and your Lordships’ House.

Notwithstanding the praise that we all rightly heaped on my noble friend and his fellow magistrates in the earlier group, I am a passionate believer in the right to jury trial. I suspect I am not alone in that in this Committee. Juries are not perfect; however, I have defended jury trial, sometimes against Governments of both stripes, for at least 20 years. I hope I do not need to rehearse for too long why it is such an important right. It is not just because people believe in it. People want to be tried for serious matters that will send them to prison for a long time and destroy their reputations, and lives in many cases, not just because they want to be convicted by their peers; it is also important for trust and confidence in the justice system that it is not always seen as primarily about more-deprived and working people in the dock being adjudicated over by middle-class professionals like this Committee. As a third point, my experience of people who have served on juries is that it is a really important part of public service and engagement that people from a broad range of communities can ideally participate in. It is a very important glue for our country and the rule of law. I hope that did not need rehearsing, and I will stop on it there.

I note that in more controversial debates, for example around the Human Rights Act and its survival or not, some of the Minister’s colleagues—and indeed the current Justice Secretary—have said that one of the ways in which the Human Rights Act might be improved on would be with greater entrenchment of the right to jury trial. That is said on the one hand yet, on the other hand, provisions are taken to extend the sentencing powers of magistrates, which is ultimately a significantly broad back door to undermining jury trial.

I understand that the Government are concerned about the backlog. I certainly understand that the backlog in the system has been exacerbated by the pandemic. But if the Government did not share some of my concerns, they would not have added the so-called off switch in the other place that is now to be found in Clause 13. I am concerned not just in principle because of my belief in jury trial, but in practice as to whether the measures in the Bill will actually do what the Government are hoping. First, will these measures really save 1,700 sitting days in Crown Courts by enabling 500 jury trials to be switched to magistrates? Is that really a credible figure? Even if it is, we think that it would represent a saving of only 1.6% according to recent courts service estimates. Secondly, there is a presumption that defendants will not exercise their right to opt for a jury trial, which they are more likely to do if the benefit of a lesser sentence is not a temptation to take the magistrates’ court option. Thirdly, I am really concerned about whether there will be sufficient and appropriate training for magistrates if we are to double their sentencing powers. That is the rationale behind Amendment 36 and, quite possibly—I will not speak for my noble friend Lord Ponsonby—part of the rationale for Amendment 36A as well.

My Lords, I express my support for Amendment 36A. When I was a member of your Lordships’ Constitution Committee we looked into the impact of the pandemic on the criminal courts. What was striking about our activity was the difficulty we had in extracting from the Ministry of Justice any valuable, reliable statistics on what was happening in the criminal justice system. To have a specific statutory obligation to produce data on this important subject is essential if Parliament is to know what the impact of these new provisions will be.

My Lords, I support all the amendments in this group. My support comes from my experience as a magistrate, and I appreciate the endorsements of the role of the magistrate from all around the Committee. As those who frequent magistrates’ courts will know, they are places where invariably vulnerable and some other defendants are simply not able to understand or cope with the requirements of the legal system, as my noble friend Lord Ponsonby described, so effectively they do not have a fair trial. With regard to increasing the powers of magistrates in Clause 13, magistrates too are not experts, and that is partly the point of them. In my view, the safeguards in Amendments 35 and 36 would be very useful against inadvertent injustice.

My Lords, I have very considerable concerns, which have also been expressed by the Delegated Powers Committee, about the Secretary of State being able in effect to double the length of time that a prison sentence can last in relation to both summary offences and either-way offences. How long a person goes to prison for as a result of a magistrates’ court sentence is a considerably important factor in determining which cases are tried by a jury and which are tried by the magistrates’ court. If there is to be a change in the powers of the magistrates’ court of this dimension, it should always be done by primary legislation and not by regulatory powers. I oppose the proposal that the Secretary of State could in effect double the sentencing power of the magistrates’ court and think that should be left to primary legislation. For that reason, I support the Amendment tabled by the noble Baroness, Lady Chakrabarti.

My Lords, as a non-lawyer, I have listened to much of this debate before and today and I think this Government are going too far in taking into ministerial powers decisions which should come before Parliament. This is another example of that. I do not want the Secretary of State to be able to do this without Parliament discussing seriously what it means. Parliament ought to be much tougher about its powers being taken into the Executive.

I was first elected to the other place in 1970. Since then, Parliament has become increasingly less powerful and increasingly the Executive have increased their power. I do not believe that the Secretary of State should have this power. I believe it should be Parliament. What is more, I believe that the public think it should be Parliament. Only with the consent of the public does the legal system work.

I usually come here to ensure that lawyers do not do things a bit on their own in legal matters, and I think I am the only non-lawyer here, but I wish to say—I apologise to the noble Lord, Lord Ponsonby, a fellow recalcitrant individual. It seems to me that we have to be much tougher about things that look small because, in aggregate, they become very dangerous, because the public will lose their belief in the fact that the legal system is independent except that it is dependent on the good sense of the elected Parliament and the House of Lords in ensuring that the Executive do not overstep the mark. I do not want this Government to overstep the mark in this or any of the other things they seem to wish to take unto themselves.

My Lords, the first two amendments in this group, Amendments 31 and 32 from the noble Lord, Lord Ponsonby, would add requirements that an adult accused should have received legal representation and had a physical and mental health assessment confirming their capacity to understand the meaning and consequences of a guilty plea in order to participate in proceedings before the court seeks an indication of a guilty plea in writing. Amendment 33, also from the noble Lord, Lord Ponsonby, would require information to be given to the accused as to the consequences of a guilty plea. These are similar to some of the issues we have canvassed before this afternoon. But, again, I support the principle of these amendments. They are directed at the proposition that before a court proceeds to accept a guilty plea, it must be satisfied that the accused has full capacity and understands the consequences.

These are complex proposals, and the consequences of a guilty plea are challenging to understand. They may, for example, include the consequence of being committed to the Crown Court for sentencing under new Section 17ZB of the Magistrates’ Court Act 1980. It is important to understand how these points are going to be addressed in practice, and I hope the Minister will help us with that.

As for the next amendment from the noble Lord, Lord Ponsonby, I agree with him that taking a guilty plea from children, as proposed by Clause 8, is unacceptable, and I support him in opposing that clause and, consequently, in opposing Clause 14, which would, independently as well as consequently, water down the involvement of parents and guardians in child cases. That involvement is, I suggest, extremely important. There are two principal reasons for my Opposition. First, it is extremely difficult to guarantee that a child of whatever age under 18 will fully understand the proceedings or consequences before giving an indication of a guilty plea. Secondly, a criminal charge often brings matters, risks and difficulties that are faced by particular children to the attention of the court when they attend court. That gives the court and other agencies an opportunity to address those difficulties, and that opportunity ought to be available and taken as soon as possible and before any question of indicating a guilty plea arises. For the same reasons, I support Amendment 34 in relation to Clause 9, which would permit allocation hearings in respect of children or young people to proceed in the absence of the accused. That does not seem appropriate.

These are difficult provisions for indicating a guilty plea in writing, and as I have said, it is difficult to see how they will work in practice. While they may prove to be inoffensive if introduced, the sunsetting provisions in Amendment 35 are surely sensible. If our concerns turn out to be groundless, Parliament can revisit the procedures on the basis of evidence of how they have worked out in practice and make them permanent or extend them. Otherwise, they ought to lapse after two years, as is suggested in the amendment.

I turn next to Clause 13, permitting the extension of a magistrate’s sentencing powers. I cannot, at the moment, for the life of me see why the noble Lord, Lord Deben, and the noble and learned Lord, Lord Falconer, are not right to say this is a matter that ought to be considered discretely and independently by Parliament, rather than having delegated powers enable the Secretary of State to increase magistrates’ sentencing powers at a later date by executive action. That does not seem appropriate, and no good reason has been advanced for why that should be right.

As to the threat to jury trial considered by the noble Baroness, Lady Chakrabarti, I share her belief that increasing sentencing powers is likely to lead to more, rather than fewer, defendants opting for jury trial. The greater sentencing powers of magistrates would lead only to defendants taking their chances with a jury trial rather than staying in a magistrates’ court, and forfeiting what has been traditionally the incentive to stick with the magistrates—that they are likely to impose a shorter sentence and unlikely to commit for sentence.

As a matter of principle, I am instinctively opposed to increasing the sentencing powers of magistrates. At the same time, along with many who have considered the evidence, we are strongly opposed to short prison sentences. Against that, there is a serious risk that a move to permit 12-month sentences, when previously six-month sentences were the maximum that could have been imposed, will increase the use of custodial sentences of a longer period where community sentences would be more appropriate. I find that a difficult issue to face. We should be concentrating on increasing the use of community sentences; and increasing magistrates’ powers to 12 months for a single offence is entirely wrong. But I wait to see how the Minister approaches this change and justifies it.

My Lords, I am grateful to all noble Lords who have taken part in this debate. It covers a number of different points, but, essentially, it focuses on the procedure for triable either-way cases and the recent announcement that the Government intend to extend magistrates’ courts’ sentencing powers from six months to 12.

Let me start with amendments to Clause 6 —Amendments 31, 32 and 33. They all seek to add further safeguards to Clause 6, but I hope to explain why the Government consider them to be unnecessary. I share the concern of the noble Lord, Lord Ponsonby, to ensure that defendants are able to seek legal representation in criminal proceedings at the earliest opportunity. The central point here is that a defendant is unable to proceed with the new online procedures without the support of a legal representative. That is because the online procedures we are dealing with here are made possible through the common platform, which is currently not accessible by individual defendants. So, as currently, legal representatives would be needed to access the platform, and they will then be able to help identify whether a defendant has particular vulnerabilities or does not understand the process even after explanation.

Defendants, as in a previous group, will be under no obligation to accept an invitation to proceed online. They can choose to discuss these matters at a traditional court hearing if they should so wish. Where a defendant fails to take up the offer of engaging online, the proceedings will simply default back to a normal court-based procedure. Furthermore, the court itself will be able to stop an online proceeding and call an in-court hearing if it has any concern or would like the defendant, for whatever reason, to attend court in a contested case. That would include cases where, for example, the court had concern about a defendant’s mental health or mental capacity, or where, for any other reason, the court considered online proceedings inappropriate.

Amendment 33 would require that defendants are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. Of course, getting a criminal record is not something that should ever be taken lightly, but Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea.

Where a defendant does decide to proceed with the online procedure, all the communication that would take place between the parties and the court to facilitate effective case management, which would otherwise take place in court, can take place online. A defendant will, for example, still be able to seek an indication of whether a custodial sentence would be likely if they were to plead guilty and were dealt with at the magistrates’ court. Further, any online indication of plea—and that is what we are dealing with, an indication of plea—will remain just that, an indication. A defendant is able to withdraw it at any time before their first appearance at a hearing in court. They will still need to enter a binding formal plea before the court at that hearing and any online indication of plea cannot be admitted as evidence in later proceedings. So I suggest that we have enough safeguards in place to ensure that defendants are appropriately supported.

Given that there has been some recent press coverage of the online procedure, I reiterate the important point I made earlier: the principle of open justice will be maintained for cases dealt with under this new online procedure. Magistrates’ courts will publish the result of these proceedings in the usual way and, and I said earlier, various measures in the Bill will actually mean that the press get more material here than they would from a traditional format.

Amendment 34 to Clause 9 would prevent the courts having a power to proceed with trial allocation decisions for children who fail to appear at their hearing without an acceptable reason and where it would have been in the interests of justice to progress the case. It is important that all cases, but particularly cases involving children, are progressed as expeditiously as possible, so that interventions to tackle offending are not delayed. This provision recognises that with the increased vulnerability of child defendants there will need to be additional safeguards.

Clause 9(5) creates a new, but clearly defined, set of circumstances that would enable a court to allocate a child’s case in their absence. A point to underline is that these conditions are far more stringent than those prescribed for adults, even though children cannot elect for jury trial.

There are essentially five conditions. The first is that the child has been invited, but failed, to provide an online indication of plea and that, in accordance with Clause 14, the court should, where appropriate, have made sure that the child’s parent or guardian was aware of the written proceedings. The second condition is that the child has then also failed to appear at the subsequent allocation hearing. The third is that the court must be satisfied that the child was served with adequate notice of the hearing or had previously appeared at a hearing and was therefore aware of the proceedings. The fourth condition is that the court does not consider that there is an acceptable reason for the child’s failure to appear. The fifth is that the court must be satisfied that it would not be contrary to the interests of justice to proceed to allocate the case in the child’s absence. There are a number of other existing safeguards—I will not go through them all—for example, when a child is arrested, the law requires that a parent or guardian must be notified as soon as possible. For prosecutions initiated by summons or postal requisition, the notice is also sent to the child’s parents or guardian.

Amendment 35 would add a Sunset clause, which would essentially switch off the provisions in Clauses 6 to 9 two years after Royal Assent, unless Parliament passed a resolution to prevent it. I understand that the intention is to ensure that defendants are not disadvantaged, but I suggest it is unnecessary for three reasons.

First, as the Committee will appreciate, magistrates’ courts already have powers to allocate in the defendant’s absence. The online procedures are already used effectively in magistrates’ courts; we are simply extending the circumstances in which these powers can be used. Secondly, these measures do not replace current tried and tested procedures; they offer more options to defendants to save time and reduce the number of unnecessary appearances at court. If a defendant does not want to go online, the proceedings simply default to the usual court-based proceedings on their allotted hearing date. Thirdly, as I have said, there are safeguards to protect defendants who need protection, particularly children but also others, recognising that we have a distinct youth justice system.

Like all procedures, these measures will be closely monitored and subject to regular review by the Criminal Procedure Rule Committee. I agree with the noble Lord, Lord Ponsonby, that it is essential that the defendant is fully engaged with all stages of the criminal justice process, and we think these procedures will enable that still to happen.

The noble Baroness, Lady Chakrabarti, spoke to Amendment 36 on magistrates’ court sentencing powers. I have read the briefing from Justice on this and the other measures in the Bill. Amendment 36 would remove Clause 13, which provides a power to vary the limit on the length of sentence that a magistrates’ court may give in the future to either six months’ or 12 months’ imprisonment. This amendment seeks to prevent the extension of magistrates’ court sentencing powers through existing provisions in the Criminal Justice Act 2003 and the Sentencing Act 2020.

The extension of magistrates’ court sentencing powers will enable more cases to be retained in magistrates’ courts, enabling those cases to be heard more quickly. We estimate that this will free up around 1,700 sitting days in the Crown Court each year. Since I was asked, I will say a little more about that. First, we estimate it will move up to 8,000 sentencing hearings from the Crown Court to the magistrates’ court, resulting in a reduction in the Crown Court backlog of about 1,700 cases. Secondly, because those 8,000 cases no longer have to be heard in the Crown Court, it would free up for other work over 1,700 sitting days a year, which, if used for trial work, would provide for an extra 500 jury trials a year. I am conscious that I used the number 1,700 twice in different contexts, but I have checked and that is deliberate and correct. The modelling is based on the number of sentencing hearings that would now be retained in magistrates’ courts, estimated at about an hour each, which amounts to about 1,700 sitting days. That is based on current election and appeal rates. Further detail will be published in the impact assessment when the extension is switched on.

I assure the noble Baroness, Lady Chakrabarti, that nothing here undermines jury trial. We had a separate discussion in the human rights context about the importance of jury trial, and I have made my and the Government’s position clear. Just as I thanked the magistracy, I should also thank all those people who turned up during the pandemic to sit as jurors and the court staff who enabled those trials to take place. They went above and beyond. This jurisdiction was one of the first—perhaps the first—in the world to reinstitute jury trials during the pandemic. We should be proud of that in our criminal justice system, and a lot of people put a lot of work into that to make it happen—court staff, judiciary, jurors and legal professionals.

Clause 13 allows the flexibility to reduce the maximum sentence that may be given by the magistrates’ court back to six months, if it looks like there are adverse impacts. We are not pressing ahead regardless. I listened carefully to the points made by the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Deben, but let us put this in context. As outlined in the allocation to Crown Court guidance and good practice, magistrates, subject to issues of complexity, can already keep the cases affected by these measures for trial. The extension of sentencing powers will therefore serve primarily to increase the number of cases the magistrates’ court can sentence. Because we are increasing magistrates’ powers only in relation to individual triable either-way offences, tried summarily, there is no change to the maximum penalty available for these offences, just to which court can give sentences between six and 12 months in length.

As to the Secretary of State’s powers to switch it on and off, we believe that it is necessary to take this power to ensure flexibility in the future should significant unsustainable pressures arise as a direct result of extending the sentencing powers of magistrates’ courts. We set out in the delegated powers memorandum that we think it is appropriate to take a power to increase the limit back to 12 months again to allow the benefits of the policy to be maintained if solutions can be found to address any pressures.

The noble Baroness, Lady Chakrabarti, asked about training for the new powers. I assure her that we will revise sentencing guidelines for magistrates’ courts, and magistrates, district judges and legal advisers will also receive additional training. That is, of course, designed by the Judicial College, not by government Ministers, and is rolled out by HMCTS. On the point made by the noble Lord, Lord Marks, about short sentences, the sentencing guidelines continue to apply. We all know what that means: you cannot give a custodial sentence unless there is no other proper option and, even when you give a custodial sentence, you have to suspend it unless an immediate custodial sentence is the only option. Those are the protections built in.

Amendment 36A seeks to require reporting to Parliament every four months on the operation of the increased sentencing powers, including data on the impact on sentencing outcomes and a breakdown of outcomes for those with protected characteristics. There is a drafting point here. Clause 13 does not actually commence the sentencing powers, but provides the power to reduce the limit down to six months or increase it back to 12 again in the future, but that is a drafting point. The two main points here are, first, that the increase in sentencing powers does not change the maximum penalty available for each offence: it is only which court can give a sentence of up to 12 months’ imprisonment. Defendants will also retain the right to elect for trial in the Crown Court. Secondly, we will monitor the impact of the extension. That will be ongoing and regular. So far as data is concerned, and on the point made by the noble Lord, Lord Pannick, we publish quarterly data on custodial sentences and average sentence length in criminal courts and will continue to do so. There is now further relevant data in the public domain, which he may not have had time to pick up yet. In particular, I refer to the cross-criminal justice system scorecards, which are now published each quarter, and criminal justice outcomes data, which is also released quarterly. With that additional data, therefore, on top of the data that we published historically, we believe it would be disproportionately burdensome to publish the additional data suggested by this amendment.

Finally and briefly, I turn to the proposal that Clauses 8 and 14 should be removed from the Bill. Clause 8 would provide a defendant under 18 years of age with the option of indicating a plea and determining mode of trial in writing online. Clause 14 would require the involvement of a parent or guardian. I have already set out the various safeguards for children, and, where a child chooses to provide an indication of plea online, courts will have to make sure at the first hearing that the child has understood the decision and confirms a written indication of plea before proceeding any further with that case. That is an important safeguard at the very first court hearing. I hope that I have set out why the Government believe the amendments are unnecessary, and I invite noble Lords not to press them.

My Lords, I find myself in a somewhat invidious situation regarding Amendment 36. I thank the Minister for defending the position of the Government and I speak against my noble friends who questioned the increase in magistrates’ sentencing powers. Having said that, I accept the more general point—or more principled point, if I can put it like that—of the noble Lords, Lord Deben and Lord Marks, and my noble and learned friend Lord Falconer, that the changes should be done by primary legislation rather than in the way in which the Government are proposing to do it here.

I shall just make a couple of points regarding magistrates’ sentencing powers. Magistrates in youth courts sentence up to two years. I have done that once in 12 years as a youth magistrate. Magistrates in adult courts, for more than one either-way offence, can currently sentence up to 12 months. The difference is that it is on multiple offences that you get to the 12-month maximum, rather than on the single offence, which is the proposed amendment. I do that very infrequently: I could probably count on the fingers of one hand in 14 years as a magistrate when I have sentenced 12 months on multiple charges. It really does not happen that often. Nevertheless, the Minister made a fair point when he said that the Government will monitor the impact of this proposed change. I am sure that people will keep a very close eye on whether these sentencing powers are being used in any inappropriate way, but I really cannot see it happening. Nevertheless, I am happy for the Government to monitor the change. I beg leave to withdraw Amendment 31.

Amendment 31 withdrawn.

Amendments 32 and 33 not moved.

Clause 6 agreed.

Clauses 7 and 8 agreed.

Clause 9: Powers to proceed if accused absent from allocation hearing

Amendment 34 not moved.

Clause 9 agreed.

Amendment 35 not moved.

Clauses 10 to 12 agreed.

Clause 13: Maximum term of imprisonment on summary conviction for either-way offence

Amendment 36 not moved.

Clause 13 agreed.

Amendment 36A not moved.

Clause 14 agreed.

Amendment 37 not moved.

Clauses 15 and 16 agreed.

Schedule 1 agreed.

Clauses 17 and 18 agreed.

Schedule 2 agreed.

Clause 19 agreed.

Schedule 3 agreed.

Clauses 20 to 23 agreed.