The written information procedure

Prisons and Courts Bill – in a Public Bill Committee at 4:30 pm on 18th April 2017.

Alert me about debates like this

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General 4:30 pm, 18th April 2017

I beg to move amendment 92, in clause 23, page 20, line 40, at end insert—

‘(c) provision ensuring that persons charged with offences have available to them information on the suitability of the written information procedure, taking into account their particular circumstances.’

This amendment ensures the Criminal Procedure Rules include a provision requiring defendants have adequate information about the written information procedure provided to them.

With this it will be convenient to discuss amendment 91, in clause 23, page 21, line 13, at end insert—

‘(4A) Criminal Procedure Rules must include provision for a person charged with an offence, or a parent or guardian of that person, to be given in writing—

(a) notification of a defendant’s right to legal assistance;

(b) notification of plea procedures available, not limited to the written information procedure;

(c) an explanation of the consequences of indicating their plea in writing.

(4B) Information provided under subsection (4A) must be presented in an accessible format using clear language.’

This amendment ensures defendants receive adequate information and notification about the written information procedure, including alternative plea procedures and the consequences of indicating their plea in writing.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

It is a pleasure to serve under your chairmanship again, Mr Stringer.

On the first day the Committee sat, I mentioned in a declaration of interest that I thought that, in the aged debt that I still bear as a barrister, fees might be owing from insurers. I was not immediately able to do the sums—I was away the next day because my baby son was having an operation—but, having checked, I know now that no fees come specifically from insurers, although some of those I represent had the benefit of after-the-event insurance. I wanted to make that clarification before I began my remarks.

I will press the Committee to Divisions only on amendments 91, 94 and 32 in the first group. My remarks will mainly be on amendments 91 and 92, but I will touch on the other amendments.

Amendment 92 deals with something we are very concerned about—I will return to it in a moment—and amendment 91 is also about adequate information and notification. Amendment 94, on which I intend to divide the Committee, is about an independent evaluation of the operation of the expanded written procedures. Amendment 32 also relates to independent evaluation and has been grouped on that basis.

Order. May I make it clear that we are dealing with amendments 92 and 91 to clause 23? We will have separate debates as listed on the selection list: on amendment 93 on its own, and on amendments 94 and 32 and new clause 15. I am grateful to the hon. Gentleman for telling us which amendments he wants the Committee to divide on, but at the moment we are debating amendments 92 and 91.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

I am grateful, Mr Stringer. I will confine my remarks to those two amendments. I was trying to be helpful; it is a slight curiosity that although amendment 32 relates to clause 34, it is grouped with the others because it relates to independent evaluation. That is the point I wanted to clarify.

The Opposition very much appreciate the need for greater efficiencies throughout the justice system, but to ensure that our justice system is just, proportionate and accessible, it is of the utmost importance that there be access to justice—access for the most vulnerable citizens in our communities, whether they are witnesses, victims or, indeed, the accused. It is well established that high numbers of people who come into contact with our criminal justice services have multiple needs, many of which are directly related to their ability to interact with Her Majesty’s Courts Service in a meaningful and effective manner using technology. To ensure that all defendants—especially the vulnerable, including children and those who suffer from mental health issues and may have addictions or learning difficulties—do not fall prey simply to the exigencies of swift and efficient resolution, robust safeguards have to be in place to ensure informed decision making and a comprehensive understanding of the nature of the decisions.

Clause 23 includes the ability of the defendant to give a written indication of their intention to plead guilty or not guilty. The aim is to save time and money. In subsection (4) there is already a provision for defendants to be given information about the written information procedure, how it works and the consequences, but we believe, in accordance with representations we have had from a variety of stakeholders, including the Bar Council, the Law Society, Justice, and the Magistrates Association, that the wording is not as explicit as we would like it to be. In addition, we wish to ensure that there is a user-friendly way in which the language is expressed. It is vital that people clearly understand their right to legal assistance before making a decision, to understand their options before they follow the online process; and, critically, that the defendant is aware of the consequences of indicating a plea in writing.

There is an additional concern that written procedures will lead to more unrepresented defendants in our system. Research by Transform Justice suggests that entering the plea is one of the points in the system where those without a lawyer are at their most disadvantaged. Unrepresented defendants did not understand when they had a viable defence and should plead not guilty, but that works in reverse as well: people can plead not guilty when the evidence against them is overwhelming, thus losing credit for an early guilty plea.

Furthermore, there are concerns that under the new written procedures defendants will no longer have access to the informal support network in courts, which includes clerks and ushers in addition to legal counsel. It is vital that we at least seek to replicate such support in the written procedures with an option to stop and seek legal advice at each stage. We need to prevent a situation where the defendant could reach the sentencing stage of their case before even seeing a judge or magistrate and for there to be a risk that a conviction should not have been entered. Of course, that could ultimately lead to an outcome that is in nobody’s interest: a miscarriage of justice.

In subsection (5) there is provision for how and by whom written information may be given to the defendant, but, again, concern has been raised by Transform Justice about the minimum levels of training that individuals will receive to ensure that they are appropriately qualified to offer advice on such complex issues. It is sometimes hard to imagine a situation in which representatives would not be in that position. We all have to try to ensure that they are in a position where we can serve the interests of justice.

Clearly, there are concerns. I refer specifically to amendment 92. Justice and the Prison Reform Trust are concerned in relation to persons who are unable to follow written procedures because of their particular needs. Many people in the justice system can lead chaotic lives for a variety of reasons and have complex needs, including mental health needs and/or learning difficulties. Others may be partially or wholly unable to read or write. There is also a concern that defendants and witnesses are reluctant to declare, or may not even be aware of, a disability, and online and virtual processes can exacerbate that assessment challenge. We are concerned about the risk that a vulnerability will be missed, and we certainly want to ensure that those who have to deal with it are able to do so. There is also a concern about the incentivisation of guilty pleas owing to the ease of simply responding to written options. I hope I have set out some of the concerns in relation to clause 23.

We suggest that the two amendments in this group—the first, amendment 92, is about adequate information; the second, amendment 91, is more specific, on the notification of the right to legal assistance, consequences of a plea and notification of plea procedures available—would deal with some of the concerns that I have outlined and would be sensible for the Government to adopt.

Photo of Oliver Heald Oliver Heald The Minister of State, Ministry of Justice

It is a great pleasure to serve under your chairmanship again on such a momentous day, Mr Stringer. I put on the record my gratitude to the Ministry of Justice officials who have put so much work into briefing me and helping me with this Bill. I thank them all very much indeed.

I commend the hon. Member for Torfaen and his hon. Friends for seeking to ensure, in proposing amendments 92 and 91, that our planned reforms to pre-trial criminal procedures are fair, transparent and as straightforward as possible. I share the concerns about protecting the principles of justice. I hope that I can reassure them that the safeguards they seek are to be provided and are catered for by the Bill.

The first thing to say is that engaging with the written information procedure will always be entirely optional: defendants will always be free to opt out for a court hearing if that is their wish. The court will always retain the discretion to hold a hearing if it thinks that is necessary. Every defendant will be given a hearing date at the same time as they are invited to engage online. They will be provided with enough information to make an informed choice. If they choose not to engage online, they can simply attend the hearing that they have been notified about.

Clause 23(4), mentioned by the hon. Gentleman, states that the criminal procedure rules may specify what information is to be given to defendants about the nature of the written information procedure and the consequences of following it as well as about seeking legal representation. It states that this information can also be given to a parent or guardian where a defendant is under 18.

The Criminal Procedure Rule Committee, independent of the Government, is chaired by the Lord Chief Justice and is full of expertise, given that it has representation from other judges, magistrates, justices’ clerks, barristers, people from voluntary organisations and so on. It will have the power to stipulate the information that it considers to be pertinent to the defendant’s ability to make an informed choice. We believe that it is appropriate to give that committee the power because it has that expertise, and also because it will be able to refine the rules once it sees how the written information procedure works in practice. Section 69(4) of the Courts Act 2003 already requires that the rules be accessible, fair, simple and efficient. Those rules, of course, come before Parliament as secondary legislation.

In terms of accessibility, Her Majesty’s Courts and Tribunals Service is determined that the written information procedure shall be straightforward and comply with government digital service accessibility standards. User research has been at the heart of developing the technology. There will also be assisted digital provision for those, mentioned by the hon. Gentleman, who are unable to use digital services; they will be able to get help either over the phone or in person if they need it. I commend the hon. Gentleman for seeking reassurance and hope that I have provided it. On that basis, I ask him to withdraw the amendment.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

I beg to move amendment 93, in clause 23, page 21, line 6, at end insert—

“(3A) Where a person is unrepresented the written information procedure will only apply if the person is charged with a summary, non-imprisonable offence.”

This amendment ensures the written information procedure can only be used in limited circumstances in cases where the defendant is unrepresented.

I will be brief in my remarks on this amendment, having set out some of my concerns in my previous remarks. Amendment 93 states specifically that the written information procedure can be used only in limited circumstances in cases when the defendant is unrepresented. It deals with the Opposition’s long-standing concern about the increasing number of unrepresented people in our courts system and the increasing number of unrepresented people coming into contact with these new procedures. The restriction is a sensible measure to enact at this stage, and I commend it to the Minister.

Photo of Oliver Heald Oliver Heald The Minister of State, Ministry of Justice 4:45 pm, 18th April 2017

Again, I commend the hon. Gentleman on putting forward a protection, but I hope to be able to satisfy him that the Bill tackles the issue.

I start by saying that I agree it is desirable for defendants to seek legal representation in the case of serious crimes. Engaging with the court online at pre-trial stages will be voluntary, and if a defendant wants to speak to a lawyer at a hearing before indicating a plea, he will be perfectly entitled to do that. Similarly, if he wants to obtain legal advice before indicating a plea online, he can do that. The measure does not fundamentally undermine the current system. In fact, it is probably better.

It is also relevant that, save when specific procedures apply in respect of summary offences—those are very limited—the defendant will have to enter a plea at the court hearing rather than simply indicating what their plea is online. So before trial or sentencing, a plea will have been entered at court.

If a defendant withdrew a previously indicated guilty plea, the previous admission of guilt could not be admitted as evidence in the proceedings, and no defendant who attended a court hearing rather than engaging online would be disadvantaged for the purposes of the early guilty plea discount.

Amendment 93 is undesirable to some extent because it would restrict the defendant’s right to self-representation, which has always been there, and I ask the hon. Gentleman to withdraw the amendment.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 91, in clause 23, page 21, line 13, at end insert—

“(4A) Criminal Procedure Rules must include provision for a person charged with an offence, or a parent or guardian of that person, to be given in writing—

(a) notification of a defendant’s right to legal assistance;

(b) notification of plea procedures available, not limited to the written information procedure;

(c) an explanation of the consequences of indicating their plea in writing.

(4B) Information provided under subsection (4A) must be presented in an accessible format using clear language.” —(

This amendment ensures defendants receive adequate information and notification about the written information procedure, including alternative plea procedures and the consequences of indicating their plea in writing.

Question put, That the amendment be made.

The Committee divided:

Ayes 4, Noes 7.

Question accordingly negatived.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

I beg to move amendment 94, in clause 23, page 22, line 13, at end insert—

“(11) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the operation of the expanded written procedure made under this section and shall lay the report of the evaluation before each House of Parliament.”

This amendment ensures the expanded use of the written procedure is reviewed within two years.

With this it will be convenient to discuss the following:

Amendment 32, in clause 34, page 33, line 22, at end insert—

“(1A) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of matters under section 34 and shall lay the report of the evaluation before each House of Parliament.”

This amendment ensures the Secretary of State will undertake a review within two years of the Bill’s provisions relating to public participation in proceedings conducted by video and audio.

New clause 15—Review of expansion of availability of live links—

“( ) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the expansion of availability of live links in—

(a) criminal proceedings under section 32, and

(b) other criminal hearings under section 33,

and shall lay the report of the evaluation before each House of Parliament.”

This new clause ensures the Secretary of State will undertake a review within two years of the Bill’s provisions to expand the availability of live links in criminal proceedings and other criminal hearings.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

The amendments and new clause deal with independent evaluation. Amendment 94 is about independent evaluation of the operation of the expanded written procedure, and it would require the Government to lay the report of the evaluation before each House of Parliament within two years. I referred previously to amendment 32; it relates to the independent evaluation of the matters in clause 34, which deals with public participation in proceedings conducted by video and audio. New clause 15 also concerns the principle of review. It is about the expansion of the availability of live links. Again, there would be an independent review within two years of the coming into force of the Act, and that would have to be laid before both Houses of Parliament.

The amendments are sensible, and the Government should not be afraid of them. We are all united in our wish that there should be access to justice. We are of course aware of, and embrace, the new technology that is available. However, two arguments arise. First, we should ensure that there are proper safeguards to protect people, and secondly we should evaluate how the system works as we take it forward.

We heard substantial evidence on the first day of the Committee, and there was also substantial written evidence, much of which highlighted various worries. A two-year review would not in any way impede the Government’s progress on the central aspects of the Bill, but it would ensure that the Government were held to account properly for whether the measures work as we want them to and do not impede access to justice. It would also be a useful reference point for the Government to look again at where the system was not working as well as it should.

Photo of Oliver Heald Oliver Heald The Minister of State, Ministry of Justice

Again, I acknowledge the concerns that have been expressed. I support the idea of reviewing and monitoring measures put in place in legislation. However, the proposals have all been developed alongside extensive user research, and we already intend to review and monitor the new processes on a continuing basis to make sure that they are used properly. We consider that that iterative approach is better than conducting a one-off evaluation of the matters that we are discussing.

We also have plans to monitor performance data and gather feedback on all our new systems. Both Her Majesty’s Courts and Tribunals Service and the Ministry of Justice publish annual reports and accounts, reviewing performance against the year’s priorities and objectives, which are available to Parliament and the public. Defendants engaging online will be given the same information and warnings that they would receive in court, and will have access to the same legal advice. Of course, the court has discretion to conduct its proceedings at a hearing whenever it wishes.

The measures concerning audio and video technology in the criminal courts are very specific about the circumstances in which live links and virtual hearings may and may not be used, so sentencing hearings may not take place wholly as audio hearings. We have also invited the Criminal Procedure Rule Committee, which I mentioned before—an independent body chaired by the Lord Chief Justice—to consider the new powers and whether the current rules should be amended to set out additional factors that the court should consider when deciding the appropriate mode of hearing. The court will always have the final say on that, and assisted digital provision will be in place to support users to interact with Her Majesty’s Courts and Tribunals Service using digital channels, and to support access to the necessary technology and digital skills, so that it can be easily used.

I turn to public participation. Open justice is a fundamental principle of our justice system. It is vital that we maintain transparency, which is why we propose to enable access to fully virtual hearings that do not take place in a physical courtroom, using terminals, which will be located in court buildings across England and Wales. We have conducted extensive research with stakeholders to help develop our proposals, and we will be testing the provision with court users.

As we make virtual hearings available, HMCTS will carefully monitor observer demand to ensure that we are providing the appropriate levels of access. We anticipate that observer numbers for virtual hearings will generally be low but we will ensure, as far as we can, that provisions are flexible in order to accommodate interested observers of a virtual hearing.

I hope I have been able to reassure hon. Members that the appropriate arrangements and safeguards are in place, and that the written information procedure of virtual hearings will be used effectively and appropriately and to enable access to fully virtual hearings.

Question put, That the amendment be made.

The Committee divided:

Ayes 4, Noes 7.

Question accordingly negatived.

Thomas-Symonds: I beg to move amendment 95, in clause 23, page 22, line 13, at end insert—

“(11) Persons under the age of 18, when charged with the relevant offence, are exempt from this section.”

This amendment removes children from provisions allowing defendants to engage with a court in writing.

With this it will be convenient to discuss Government amendments 51 and 50.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

I will not unduly delay the Committee on this amendment, because I intend to speak in a little more detail on clause 30, which relates to the same matter. None the less, we appreciate the opportunity to remark on amendment 95, which I do not intend to push to a vote. It is about removing children from the provisions allowing defendants to engage with a court in writing.

There are a number of concerns about those provisions, which I hope the Minister will acknowledge and be able to deal with to an extent. For example, there is nothing in the Bill to ensure that children’s parents or guardians will be informed about the written procedure before a child indicates their plea. Evidence seems to suggest that children are more likely than adults to enter guilty pleas for offences that they have not committed. Our concern is that indicating pleas online will make that significantly worse.

We worry about peer pressure to indicate a guilty plea, for example, in cases in which an offence is committed by a group of children and a particular child is being bullied. We are also concerned by something that came through in both the Taylor and Carlile reviews, with which the Minister will be familiar—the fact that children do not necessarily understand court proceedings and their implications.

Our real worry is about children participating in court proceedings in writing, without any real understanding of them. It is not clear how written proceedings will be intelligible to children who may be as young as 10. That is before we even consider children who offend who may have difficulties in communication, and of course one in three children in custody have special educational needs. We worry that there is a problem in children’s engagement in the criminal justice system in any event, which will be exacerbated by their involvement in written procedures. I will not go any further at this stage, because I will come back to this point on clause 30, but that is the outline of my concerns and why I commend amendment 95 to the Committee.

Photo of Oliver Heald Oliver Heald The Minister of State, Ministry of Justice 5:00 pm, 18th April 2017

I will speak to Government amendments 51 and 50, but amendment 95 raises the important issue of whether the written information procedure in the Bill should apply to young defendants. Government amendment 51 clarifies how the court might proceed if a youth is on the cusp of turning 18, and Government amendment 50 looks at how the expanded power to remit cases from the youth court should apply when a defendant turns 18.

The written information procedure means that a person charged with offences may choose to give specified information to the court, including an indication of a guilty or not guilty plea. The plan is that that will usually occur online through the Government’s digital channel, which is a unified digital case management system that is currently being developed by HMCTS. Although young defendants may therefore indicate a plea earlier than now, amendment 51 makes sure that the court will retain discretion in relation to those on the cusp of turning 18 so that it can still treat them as youths, because they will no longer have to wait until the first courtroom hearing. Therefore when a defendant turns 18 having previously indicated a plea online, the youth court may still treat them as a youth and deal with them using the powers under the Children and Young Persons Act 1963.

Amendment 50 clarifies how the expanded power to remit cases from the youth court to another criminal court will apply when a defendant turns 18 between charge and trial. If a defendant turns 18 post-charge and the youth court decides pre-trial to remit the youth to the mainstream magistrate’s court, the receiving court will not be able to continue to treat them as a youth, and for example use the more extensive custodial powers of a youth court. As a result, defendants will have greater certainty about what will happen as a result of the youth court’s decision to remit. They will therefore be in a better position to decide whether at the time of remittal they want to elect for jury trial. From time to time the age of a defendant may be unclear, and there are young defendants who, for example, are also victims of human trafficking. In some such cases, fresh information may arise later on that allows the court to more accurately determine age. Amendment 50 caters for those scenarios and allows a case to be remitted back to the youth court.

Turning to Opposition amendment 95, the purpose of clause 23, combined with clause 30 and schedule 3, is to reduce the number of times young defendants and their parents or guardians need to travel to court. That is part of the distinct service model that is being developed for young persons. For example, when a case must be sent to the Crown court because it can be tried only with an indictment, young defendants will no longer have to travel to a youth court to allow that simple process to occur.

That is important, because there has been a 70% decline in the number of proceedings against young people in the criminal courts since 2006-07. Although that reduction is welcome, its scale does pose logistical challenges. In some areas, sittings of the youth court are in fewer locations and are already occurring less frequently, causing delays. Allowing case management at the pre-trial stages of cases to take place outside the courtroom means that young defendants ought only have to travel to court for a trial or for a sentencing hearing. Through its six-year reform programme, HMCTS is developing a specific service model for young defendants, including those who provide information in writing. It is a distinct youth justice system for children and young persons. Young defendants will therefore continue to be subject to procedures and processes that are different from those for adults.

The Bill provides a number of safeguards applicable to young defendants who choose to provide information in writing. I will not say more about those at this stage, as we have clause 30 to come. In the light of those safeguards and the distinct service model that is being developed, I ask the hon. Gentleman to withdraw amendment 95.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24