Automatic online conviction and standard statutory penalty

Prisons and Courts Bill – in a Public Bill Committee at 6:00 pm on 18th April 2017.

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Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General 6:00 pm, 18th April 2017

I beg to move amendment 101, in clause 36, page 35, line 6, leave out subsection (2) and insert—

‘(2) The person is convicted of the offence by virtue of—

(a) accepting the automatic online conviction; and

(b) not revoking this acceptance during the period of 14 days following, but not including the day of, acceptance.”

This amendment would enable a person convicted of an offence and who accepts the automatic online conviction to revoke that decision within a period of 14 days.

With this it will be convenient to discuss amendment 102, in clause 36, page 35, line 13, at end insert—

“(ba) the accused has been made aware of their right to seek legal advice;

(bb) the consequences of a guilty plea have been clearly explained;

This amendment ensures individuals are made aware of their rights before they accept an online conviction.

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

This pair of amendments relates to the theme of safeguards, which the Opposition are attempting to push throughout the Bill’s passage.

Amendment 101 would enable a person convicted of an offence who accepts the automatic online conviction to revoke that decision within a period of 14 days. Amendment 102 would insert a provision to ensure that individuals are made aware of their rights before they accept an online conviction.

In the evidence we have had, stakeholders have expressed concerns about the creation of a new automatic online conviction process where a defendant who pleads guilty and agrees to be dealt with under the process would be convicted automatically and sentenced automatically. The Bar Council referred to concerns about a lack of provisions for ensuring the defendant’s knowledge of their right to legal advice; the range of offences in the scope of this scheme; and the Secretary of State’s power to put new offences in scope.

Under clause 36, the online conviction would be applicable to summary-only, non-imprisonable offences specified in a positive statutory instrument by the Secretary of State that would need to be approved by both Houses. Fines, compensation, costs, surcharges and, where relevant, driving endorsements could be included. Those would be fixed by order of different classes of offence and, potentially, different circumstances for the same offence. They would be specified in a statutory instrument under the negative resolution procedure.

Clause 36 inserts six new sections into the Magistrates’ Courts Act 1980. It is clear that the definition of offences in the “Transforming our Justice System” consultation has been shortened to summary, non-imprisonable offences. The definition no longer excludes offences where there is an identifiable victim, which removes an important safeguard for victims and should be remedied.

Adequate safeguards are also lacking to ensure that defendants are aware of the consequences of entering an online plea. That is vital if an offence results in a criminal record, which can have serious and long-term implications, such as restrictions on employment, travel and the ability to obtain insurance. The Opposition say that offences under the scope of the clause should be restricted to non-recordable offences only.

Of course, individuals may mistakenly plead guilty through lack of adequate or any legal advice, which is a concern. We therefore say that defendants must be made explicitly aware of their right to seek legal advice and of the implications of pleading guilty. Not providing such information could have very serious consequences for the defendant’s right to a fair trial and the quality of justice that they receive. For example, many defendants will not know that an offence such as fare evasion, which we believe will be under the scope of the online process, is significantly more serious than a minor motoring offence because of the intention to evade payment.

We are also concerned that the Bill gives the Secretary of State the authority to specify that any summary offence not punishable by imprisonment can be eligible for online conviction. That leaves the door open for an alarming expansion of the scope of offences included without proper scrutiny. Any extension of the range of offences beyond those that attract fixed penalty notices should be made the subject of consultation, at which stage a full evaluation of the existing scheme should be provided. Further concerns have also been raised by stakeholders—including Liberty, for example—that the clause would transfer to the Government the power to sentence individuals convicted, as opposed to the independent judiciary. Looking at the clause in the round, I suggest that the amendments are sensible safeguards.

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

I welcome the hon. Gentleman’s objective to protect defendants who may choose the new procedure as a way of dealing with their case. The amendments raise important issues, but they are issues that I am satisfied we are conscious of and will be addressing in the design of the process and the system.

Amendment 101 seeks to provide that the person to be convicted must accept the online conviction, and it then provides for a cooling-off period. The prospect of being able to accept a conviction and its associated penalty, and then undoing it two weeks later, undermines an element of certainty in the judicial process. However, I believe I can point to protections that the hon. Gentleman will find compelling. Amendment 102 proposes to make it a qualifying condition of an automatic online conviction that the accused has been made aware of their right to seek legal advice. In our view, that is not necessary; it may help if I set out the process a bit more fully.

A defendant charged with an offence that may proceed either by way of the single justice procedure—where a magistrate deals with a case on the basis of a guilty plea—or the automatic online conviction procedure will be sent a notice that formally commences proceedings and sets out the procedures available for dealing with their charge. That notice will advise defendants that they have a set period of time to respond to the charge; we expect something like 21 days, as it is with the single justice procedure notice. That notice will advise defendants, as requested by the hon. Gentleman, to use that time to obtain legal advice should they wish to—again, as the current single justice procedure notice does. The details of the timing and what is contained in the notice will be set out in criminal procedure rules.

Amendment 102 also seeks to make it a qualifying condition of an automatic online conviction that the consequences have been clearly explained to the defendant. For the sake of clarity, I note that it is not only a guilty plea that will lead to a conviction, but that plea combined with an agreement to be convicted and penalised in accordance with proposed new sections 16H and 16I to the Magistrates’ Courts Act 1980. Defendants will be presented with all the information that they will need to make an informed decision, and they will also be given details of the range of sentences available to the court. That will all be set out in clear and simple terms. They will be able to opt out of the procedure at any time, up until the point that they accept the conviction. I mentioned the other protections.

Secondly, we believe that the level and clarity of information provided to users will enable them to make an informed decision. Clause 36 grants the court a new power to set aside a conviction in the event that it appears to the court that the conviction is unjust—for example, if the defendant had clearly not understood the consequences of accepting an automatic online conviction. That application to set aside a conviction can be made by the defendant, the prosecutor or the court, of its own motion.

Having provided that overview of the process and additional details of the safeguards, I ask the hon. Gentleman to withdraw his amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 100, in clause 36, page 35, line 18, leave out

“a summary offence that is not punishable with imprisonment” and insert

“a non-recordable offence, and where there is no identifiable victim”

This amendment ensures the automatic online conviction option includes only offences which are non-recordable offences and where there is no identifiable victim, providing an important safeguard for victims.

With this it will be convenient to discuss amendment 103, in clause 36, page 35, line 19, at end insert—

‘(4A) Prior to making any order under subsection (3)(a), the Secretary of State must commission an independent evaluation of any changes to the offences for which automatic online conviction may be offered and shall lay the report before each House of Parliament.”

This amendment requires the Secretary of State to consult and seek independent advice prior to extending the range of offences for which the automatic online conviction option may be offered.

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

Again, the amendments relate to the safeguards that we are pressing upon the Minister.

Amendment 100 would ensure that the automatic online conviction option includes only offences that are non-recordable offences for which there is no identifiable victim, which would provide an important safeguard for victims. Amendment 103 would require the Secretary of State to consult and seek independent advice prior to extending the range of offences for which the automatic online conviction option may be offered.

Those two safeguards are important. Amendment 100 is very important in terms of how we treat victims in our criminal justice system. Amendment 103 would deal with the concern about mission creep and the idea that the range of offences will keep being extended. The requirement to consult and seek independent advice would provide reassurance to many who are worried about that aspect of the Bill.

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

Amendment 100 seeks to define differently the features of offences in scope of the new procedure. As hon. Members will know, we propose to test this procedure with just three offences. Those are non-recordable and will be in the initial phase of introduction. This procedure will be used to prosecute, in any event, only the most straightforward summary offences in our criminal justice system.

We have stipulated that the offences for which the automatic online conviction procedure can be offered will only be summary-only, non-imprisonable offences. That means automatic online conviction can never apply to indictable either way offences, and a sentence of imprisonment will never be imposed by this procedure. Those are important safeguards.

To address the hon. Gentleman’s particular request that the Bill exclude offences where there is no identifiable victim, I should say that we have taken a policy decision that cases involving identifiable victims will not be specified for prosecution by way of the automatic online conviction procedure, just as such offences are not prosecuted by way of the single justice procedure. We are referring here to individual victims, rather than corporate victims.

Likewise, on the matter of non-recordable offences, the majority of offences intended to be in scope are non-recordable, including the first three that I mentioned—failing to produce a ticket for travel on a train, failing to produce a ticket for travel on a tram and fishing with an unlicensed rod and line.

Amendment 103 would commit the Government to commission an independent evaluation of any changes to the offences in scope of the procedure and to lay the report before Parliament. We have been clear from the start that we propose to test the automatic online conviction procedure with a small number of offences in the initial phase, so that we can review how well it works. We have already committed to reviewing the procedure 24 months following its implementation. If that initial phase is successful, we will consider widening the scope to other offences. Any decision to extend to other offences would, of course, also be based on the assessment of what impact any changes to the offences and scope would have.

Finally, the Committee will be aware that the clause provides that future offences need to be specified in secondary legislation made by the Secretary of State, which has to be agreed by Parliament through the affirmative procedure. It is the Government’s view that the amendments are not necessary, and on that basis I ask the hon. Gentleman to withdraw them.

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

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 33, in clause 36, page 38, line 35, at end insert—

“(4) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the implementation of the automatic online conviction option made under subsection (1) and shall lay the report of the evaluation before each House of Parliament.”

This amendment ensures the Secretary of State will review automatic online conviction within two years of its implementation.

I will be extremely brief. We will push the amendment to a vote. It concerns an independent review of the automatic online conviction process within two years of the Act coming into effect, on exactly the same principle as we have suggested for other independent reviews: to facilitate good governance and the opportunity to look at how well these new procedures are working.

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

I have just given a commitment to review this 24 months following its implementation. On that basis, I invite the hon. Gentleman to withdraw the amendment.

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

We are in favour of an independent evaluation within two years of the Act coming into effect. I will put the amendment to a vote.

Question put, That the amendment be made.

The Committee divided:

Ayes 3, Noes 6.

Question accordingly negatived.

Ordered,

That the Order of the Committee of 28 March be amended as follows: in paragraph (1)(c), leave out ‘and 7.30 pm’.—(Guy Opperman.)

Ordered, That further consideration be now adjourned. —(Guy Opperman.)

Adjourned till Thursday 20 April at half-past Eleven o’clock.

Written evidence reported to the House

PCB 13 Magistrates’ Association

PCB 14 DWF

PCB 15 Professors Erika Rackley, Rosemary Hunter and Kate Malleson

PCB 16 Zurich Insurance

PCB 17 DAC Beachcroft Claims Ltd

PCB 18 British Medical Association (BMA)

PCB 19 Lord Chief Justice of England and Wales and Senior President of Tribunals, Courts and Tribunals Judiciary

PCB 20 Association of British Insurers (ABI)

PCB 21 Family Justice Council

PCB 22 British Humanist Association