Courts and Tribunals Bill
(1 day, 7 hours ago)
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Baroness Chakrabarti
“(4A) In section 19 (decision as to allocation), after subsection (3), insert—“(3A) If the accused would likely receive a sentence of imprisonment of more than 12 months but not more than three years, is of good character, and has not previously been convicted of an offence, the court must give greater weight to the representations made by the accused under subsection (2)(b) above.””Member’s explanatory statement
This amendment seeks to ensure that defendants of good character, without previous convictions, have their representations as to allocation given greater weight, so they are not denied the Crown Court trial a defendant of poorer character with previous convictions would receive.
Baroness Chakrabarti (CB)
My Lords, after such a thoughtful Second Reading debate, as I hope noble Lords agree, and a great deal of engagement between Ministers and noble Lords between then and now, I have the privilege of welcoming the Committee to their places. At Second Reading, many of us were grateful to the Government for some considerable movement since the first iteration of the Bill, but, equally, many of us were concerned that somewhat more movement is required if crucial clauses of the Bill are to inspire the public trust and confidence that are so important for the criminal justice system in this jurisdiction.
The context is, of course, a backlog that Governments of both stripes have struggled with and that many of us on all sides of the House principally attribute to decades of underinvestment. The context is an understanding that the right to jury trial has not been and is not absolute, and that many cases—the bulk of criminal cases—are not dealt with in the Crown Court. However, the context is also that the right to elect for a jury trial, and to have jury trials in many serious cases, is important to many people in our country. Both truths can hold at the same time. That is why this Committee is so incredibly important, and I come to it with slight anxiety, and occasionally a heavy heart, given the responsibility that we have.
Alongside the point about basic legitimacy, trust and confidence, many noble Lords have expressed concerns about exposing judges, and indeed magistrates, to opprobrium in high-profile serious cases, and about the important safeguard that juries provide against the abuse of power in our current system. The first group of amendments, on mode of trial, is therefore incredibly important. It addresses the removal of the right to elect for jury trial in “either way” cases. It is unsurprising that the group contains not one but two clause stand part debates, and it is equally unsurprising that a rather exquisite quartet of noble and learned Lords will be exploring allocation guidelines, given that magistrates are to be given a new and awesome responsibility in “either way” cases.
I have Amendments 1 and 3 in this group, supported by the noble Viscount, Lord Hailsham, and my noble friend Lady Goudie, who apologises for not being able to be here because of sad and urgent matters elsewhere. Taking the amendments in reverse order, Amendment 3 seeks to provide a right of appeal against a mode of trial decision. The noble Baroness, Lady Hamwee, has tabled Amendment 7, which takes a more detailed approach to providing such a right of appeal against a magistrate’s decision that a case will not be heard in the Crown Court, given the proposed end of the right of election. I think both of our amendments, if I may say this to the noble Baroness, Lady Hamwee, follow the principle that important first-instance judicial decisions ought to be subject to appeal.
Amendment 1, which I share with the noble Viscount, Lord Hailsham, deals with an important and serious but unintended consequence of abolishing the right of election for jury trial. It relates, in particular, to persons of good character. A consequence of abolishing the right of election to jury trial, and of magistrates being more likely to suggest jury trial, as will be their prerogative now—they are more likely to do that if they feel that their own sentencing powers are inadequate and that the likely sentence in a case would be a longer one—is that a person with many previous convictions who would face perhaps a longer sentence for a particular offence is more likely to be allowed a jury trial than a person of hitherto untainted character with no previous convictions.
Take two defendants facing the same offence—one of good character and the other with many previous convictions, perhaps serious ones and similar ones. The Bill in its current form would, in this regard, favour the person of bad character with many previous convictions and not the person of good character. That, I suggest to the Committee, must be an unintended, perverse consequence of the regime as currently drafted in the Bill. That cannot be right and fair. There are differing consequences for people of previous good character from people with many previous convictions—even though the latter may have a longer sentence, the consequences for their life, reputation and so on are perhaps different.
Amendment 1 proposes not a veto for the person of previous good character but a requirement that it should at least be taken into account. Under the circumstances, it is a fairly modest request of the Government. This fairly modest amendment, which I share with the noble Viscount, Lord Hailsham, suggests that, in such a scenario, the magistrates’ court should give particular weight to submissions by a defendant of hitherto untainted character and no previous convictions, and that that should go into the mix when considering whether they might be allowed a jury trial. That has, as noble Lords discussed at Second Reading, been our way for such a long time, and one that was cherished by so many of our people who have trust and confidence in that system.
As we have discussed, so many ordinary people—not lawyers, judges or otherwise professional people—have greater trust in juries than they do in not just other parts of the criminal justice system but other parts of our institutional democracy. That is why this group is so very important. I beg to move.
Lord Hain (Lab)
Can I ask my noble friend to confirm that it was a jury that convicted Russell Brand? The right to jury trial is fundamental and many of the points she is making are extremely telling.
Baroness Chakrabarti (Lab)
I am grateful to my noble friend for that rhetorical question, to which I feel the Committee knows the answer. I understand all the points about the backlog, the costs and our concern to speed up justice, which victims are crying out for, but, at the same time, a vindication for someone wrongfully accused or for victims who have been denied that vindication of their rights means that juries really matter to ordinary people in this country. I know that noble Lords in this Committee understand that, because a brief conversation with any number of their friends, neighbours and family members who have nothing to do with the legal profession, or perhaps any other profession, will indicate as much.
Viscount Hailsham (Con)
My Lords, it is always a pleasure to follow the noble Baroness; we agree very often on matters of this kind, and I particularly agree with the two amendments that she has tabled and to which I have put my name. I will make two brief preliminary points before I come to the substance. First, I apologise that I was not able to participate at Second Reading. I am sorry about that, but I had long-standing commitments which would have been very difficult to break. Secondly, and quite differently, although I have practised at the Criminal Bar off and on for around 40 years, I have to admit that I have not been in a criminal court since 2010—although I still practise as a legal assessor to regulatory panels connected with healthcare professionals—so I do not have a professional or technical interest to declare.
At the heart of this matter, which I think my noble and learned friend Lord Keen will address at some length, is the stand part debate on Clause 1. I shall support my noble and learned friend if he moves a Division on Report, because my view is that it should not stand part. He will argue the reasons, which he set out very fully at Second Reading, and I will therefore summarise them only with the greatest of brevity.
The right to jury trial in “either way” offences enjoys widespread professional and public support. There is very little appetite for change. To change it therefore requires the most compelling of reasons, and I suggest that they do not exist. There is a backlog, but jury trials are not the principal, primary or, perhaps, only significant cause of it. As my noble and learned friend said at Second Reading, when he posed a number of questions, the backlog was caused by a number of factors which have now passed: Covid, for example, or, I regret very much to say, the industrial action among junior members of my profession, of which I deeply disapproved. But there were other considerations: the failure of Governments, who I supported, to provide adequate funding for judicial time and appropriate courts. Administrative action could be taken to remedy this backlog, but we are taking measures to remedy it to which the backlog is not related. In any event, it is not self-evidently sensible to displace a backlog in a Crown Court to one in a magistrates’ court. That seems to me rather surprising. So I am against Clause 1, but I have to recognise the possibility that this Government will seek to ram it through Parliament. Therefore, it is the Committee’s business to try to remedy the faults in Clause 1 or to correct its omissions.
I come first to Amendment 1, so clearly moved by the noble Baroness, Lady Chakrabarti. It cannot be right for a disparity to exist between a defendant with a long string of previous convictions, who is likely to get a lengthy sentence, and a defendant without convictions who is a person of good character. The former is likely to get a jury trial; the person of good character is likely to be denied it. That cannot be right. The noble Baroness has put down a very clear amendment to address precisely that point, and I was pleased to support it.
Amendment 3, to which the noble Baroness also referred, concerns the right of appeal. I know the noble Baroness, Lady Hamwee, shares her views on this. I would like to think that, on Report, we could make common cause together and put it to a Division. However, if the noble Baroness, Lady Hamwee, will forgive me one point, her amendment on appeal is somewhat narrowly drawn. I would prefer to incorporate the concept of fairness and the principles of natural justice, but that is a matter for subsequent discussion.
I am a great supporter of Amendment 2 from the noble and learned Lords. It would be very sensible to introduce the concept of guidelines, because otherwise we are likely to see a judicial postcode lottery. We all know from our experience in politics that a postcode lottery will become deeply unpopular, so the concept of guidelines is a very good one, subject to this proviso: I do not read in the amendment, or in anything naturally associated with it, the suggestion of judicial input. I would like to see judicial input into the guidelines. I shall support all these amendments should they be pressed to a Division on Report.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will speak to Amendment 2, which stands in my name and those of the noble and learned Lords, Lord Phillips, Lord Burnett of Maldon and Lord Bellamy, who very much regrets his inability to be here today.
As its explanatory statement makes clear, this is a probing amendment. It is made in circumstances where the time has come for some further structural change to the cases that go to the Crown Court and those that go to the magistrates’ court. The backlog in the Crown Court has the effect of denying justice, particularly to victims. I do not believe there is any alternative to dealing with the backlog. When I have encountered it in the past, I have found that it gets worse if it is not dealt with, because it has a spiralling effect as people game the system. There is nothing new in making an adjustment, and it is a question of detail as to how this adjustment is best made. I am very grateful to the Minister for his engagement with us to discuss the various amendments put forward in our names.
The purpose of Amendment 2 is to probe two areas. The first is to work out the way of getting the greatest possible consistency across the country on which cases are retained in the magistrates’ courts and which go to the Crown Court. The second is an issue that has not much been debated so far: are the cases that are retained in the magistrates’ courts to be decided by three magistrates or by judge alone—that is, by a district judge or deputy district judges? Before I turn to that in a little more detail, it is important to explain the background. Because these reforms have been put forward without the very detailed and careful analysis that the noble and learned Lord, Lord Leveson, put to his recommendations, at present it is not possible to work out the best way to proceed.
I will briefly explain the present position. The position as to allocation is set out in Section 19 of the Magistrates’ Courts Act, which simply requires the court to decide whether it is more suitable for trial on indictment or summary trial on the allocations issued by the Sentencing Council. Those allocation guidelines are drafted against the current sentencing powers of the magistrates. In essence, they say that cases should be tried summarily unless the outcome would clearly be a sentence in excess of the court’s powers, after taking into account personal mitigation and potential reduction for guilty pleas. The guidelines go on to say that cases of unusual factual complexity should be tried in the Crown Court. Those are exceptions—the rest are to be tried in the magistrates’ court, if they are within its sentencing powers —and such exceptions are likely to be narrow and rare. So at the moment the guidelines are structured so that the potential sentence is determinative of the way the case should be tried. The question is: is that the appropriate way to continue?
The second issue is the distribution of work in the magistrates’ courts. The way in which work is distributed in the magistrates’ court is governed by the listing practice direction issued by the Lady Chief Justice last month. That direction followed what was, in essence, the product of work done in 2012 by a group chaired by Lord Justice Gross, with representatives of the magistrates present and the senior district judge in HMCTS. It sets out the presumptions for trial by district judges, including long cases. It also provides for a share of routine business and for the occasional sitting of mixed Benches.
The question that arises is: should we say that these are matters for the Sentencing Council and for the practice direction issued by the Lady Chief Justice, or should Parliament prepare guidelines and issue those through the Secretary of State or the Lord Chancellor? At the moment it is not possible to be more specific about the way in which the guidelines might operate. We do not know at present the basis of the figures that have been used to calculate the savings in time. Is it assumed that magistrates will operate the existing guidelines, primarily determined by the sentencing powers that they have? Secondly, the distribution of work between the magistrates and the district judges and deputy district judges is not clear, because although large numbers of magistrates are being recruited, there is a substantial recruitment of deputy district judges and district judges. Both those issues are important. We need to decide whether guidelines should be made.
In her Amendment 1, the noble Baroness, Lady Chakrabarti, supported by the noble Viscount, Lord Hailsham, has proposed that matters such as good character should be taken into account, but there may be other matters that need to be looked at. For example, one needs to bear in mind that, as the noble and learned Lord, Lord Leveson, recorded at paragraph 38 of chapter 5 of his report, there were concerns about how ethnic minorities would view changes of this kind. That would be a very difficult matter, if it was a matter to be taken into account, to be dealt with other than by Parliament.
Baroness Jones of Moulsecoomb (GP)
My Lords, I said at Second Reading that I was going to oppose a lot of the clauses in the Bill, and I will be standing up several times today to do exactly that. The first clause I oppose is Clause 1, and I find myself signing up to do so with some unusual colleagues—which is obviously a pleasure. I am against this clause because the Government, in order to make the court system easier to manage, are taking away an important protection from people accused of criminal offences. If we cannot get rid of the first clause, I support the other amendments in this group.
The right to elect trial by jury is an important safeguard. This clause removes that choice and hands the decision to magistrates. I have great respect for magistrates—I know quite a few and I appreciate the work they do—but that is not the issue here. The issue is whether a defendant should lose the choice of having their case heard by a jury. The Government argue that this is necessary to tackle the Crown Court backlog, but as we have already heard, removing rights is not a substitute for properly resourcing our courts. It is not going to work; that is fairly obvious from the debates we have had already.
The Bar Council strongly opposes this provision. It warns that the changes will result in more serious and complex cases being heard in magistrates’ courts, which is fairly obvious. But that concern becomes even greater when we consider Clause 5, which I will also be opposing and which increases magistrates’ sentencing powers. Taken together, these provisions mean that more serious cases can be dealt with in magistrates’ courts, with greater powers to deprive defendants of their liberty.
There is also the equality consideration, which I am disappointed that the Government have refused to address so far. Their own equality statement acknowledges that Black defendants, older defendants and women are more likely to elect for a Crown Court trial. In 2022, 26% of Black defendants elected for a Crown Court trial, compared with 15% of white defendants. The Lammy Review found that many people from ethnic-minority backgrounds had
“more confidence in the fairness of juries than … in the fairness of Magistrates’ Courts”.
So removing this choice risks further undermining confidence in a justice system where trust is already quite fragile.
There are consequences for witnesses and complainants too. Section 28 special measures, which allow eligible witnesses to have their cross-examination pre-recorded, is not available in magistrates’ courts. This is particularly important for children, people with certain disabilities, and complainants of sexual offences. With the current spotlight in our country on sexual offences and the fact that women find it incredibly difficult to get justice, this is quite an important component.
The Government acknowledge that there is insufficient data to establish how many vulnerable witnesses could be affected. How can we press ahead with something when we do not even have the data to see whether it is going to be good or bad? I do not understand. The organisation Justice also supports removing the clause.
A fair trial should not depend on whether the Government want to move one backlog to another. The right to a jury trial should not be treated as expendable and Greens such as me will always defend it.
Baroness Bi (Lab)
My Lords, I declare my interest as a partner of Norton Rose Fulbright, a law firm. I start by apologising for missing Second Reading as I was travelling overseas on firm business that could not be avoided. I have, however, read the debate in full in Hansard. I was struck particularly by the important contribution of the noble and learned Lord, Lord Leveson, with its cri de coeur at the end of
“if not this, then what? If not now, then when?”.—[Official Report, 27/10/26; col. 1099.]
As a corporate lawyer with no expertise in criminal law, unlike many noble Lords who will contribute today and have done in the past, I want to make the point that the reputation of our criminal courts is important to all of us, as it drives the reputation of our legal system as a whole, and that forms the basis of our success as a leading economy. That reputation is now suffering, and in some cases international clients are choosing to take their commercial cases to our competitor jurisdictions, such as Singapore and Dubai, where they believe they will receive faster judgments. It is therefore not just a matter of justice that we address the crisis in our courts but an economic imperative.
It was generally agreed by your Lordships at Second Reading that the courts are in crisis and that we need not only more money and efficiency but a principled, structural reform of how trials are run. My concern about the amendments proposed to Clause 1 is that they are based on the assumption that the better form of justice is trial by jury and that requiring a case to be heard in the magistrates’ court by removing the right to elect is a denial of a fundamental right.
This assumption is made even though only a small minority of criminal cases are heard by a jury and over 90% of criminal cases are dealt with entirely in the magistrates’ courts. The number of “each way” offences comprised 18% of the cases that were before the magistrates in July 2026, only a minority of which elected for trial by jury. Are we really saying that those whose lives are permanently affected by a criminal conviction, irrespective of the length of the sentence handed down by the magistrates’ court, have had an inferior form of justice, and the only trial worthy of the name has to involve a jury?
Am I the only person to be shocked to read in the impact assessment that the size of the magistracy reduced from over 29,000 magistrates in 2010 to 12,500 by 2022? That was under successive Governments claiming to be tough on law and order. It is not a surprise that we have the backlogs that we are talking about. Very importantly, the Government and the Lady Chief Justice are seeking to widen the diversity of the magistracy and the judiciary, because it is vital that defendants believe they have been judged by their peers, which has been the main argument for a jury trial until now. I take seriously the comment that has just been made about Black and other minority defendants, and I am glad that the Government will commission an independent review of the changes to ensure that they do not disadvantage any groups in particular.
This Bill, including Clause 1, is only one of a number of measures that are needed to ensure that our legal system remains the gold standard internationally, on which our reputation as a good place to invest and do business rests. The Government are bringing into place not just the changes that this Bill represents but a broad programme of hiring further magistrates, judges and court officials to make sure that courts are properly staffed and able to deal with the broad range of the backlog. They are also increasing the number of court days and ensuring that criminal legal aid in the magistrates’ court is increased, which is important to make sure that defendants are fairly treated. For that reason, I reject the amendments suggested to Clause 1, and I hope the Bill continues as it is currently drafted.
Baroness Mallalieu (Lab)
My Lords, I agree with every word that the noble Viscount, Lord Hailsham, uttered earlier. I, too, dislike Clause 1. Like him, if it is pushed unamended, I shall have great difficulty in supporting it later.
I have to take issue with the noble Baroness who has just spoken, because there is a big difference when you are facing a trial as to which you would opt for. Which one of us would opt for the magistrates rather than a jury trial? It is a different standard of justice. I say that without in any way being insulting to magistrates, who are now fully trained—much more than they were in the days when I was still practising, about 20 years ago. They are much better equipped to deal with matters, but the reality is that a Crown Court trial usually has a senior lawyer looking at the file. They may well see the flaws, which may well change the trial’s whole course and indeed lead it to be dropped. I remember—and I do not believe it has changed in view of the number of people on the waiting list at the moment in the magistrates’ court, which is 380,000—CPS representatives doing the prosecuting coming in carrying a huge number of files of different cases, without the time to devote to looking at each one properly. That is what happens.
Also, when appeals from trials in the magistrates’ court go to the Crown Court—there are not a great many of them, so it will not save a lot of time—56% succeed. Something has gone wrong. It may be that the law was not properly presented, or that there is some further evidence, or that it was just wrong on the facts, but that is an indication that things go wrong. They often go wrong because people do not have legal aid and are representing themselves. Sometimes—I say it of my own former profession—they are represented by very junior people, as is often the case in the magistrates’ court, or are not represented at all because no criminal solicitor will take the case on.
I accept that there has to be a look at which cases are entitled to go to jury trial. Some minor matters clog up the courts and could be dealt with in other ways, and I know that comes into later parts of the Bill. We all want to see a solution to this dreadful waiting time which means that people are waiting in custody for a considerable time or are waiting to give evidence in trials. That has to be tackled, but I cannot see the provisions in Clause 1 having the desired effect of reducing them.
If any one of us would choose a jury trial, so would, I suspect, the majority of defendants. To take away a right of appeal about allocation seems a denial of justice. I do not believe that that is something that my Government, the Government who in 1945 brought in the legal aid system, want to see. I hope the Minister will look again at this, because, frankly, it is not right and it is not going to do the job. There are other ways that have been mentioned already, and there are probably a great deal more that we can come up with which will help to cut that dreadful backlog.
Lord Macdonald of River Glaven (CB)
My Lords, the backlogs are now so great, and the delays in trials taking place so vast, that we are talking about cases being listed two or three years in the future, which is a hopeless situation for witnesses, victims, complainants and, of course, defendants. Some sort of structural change is necessary, but the question is what form it should take.
As I made clear at Second Reading, I do not have a difficulty with courts making the decision about where cases should be allocated, rather than defendants. In fact, granting defendants that right is comparatively unusual across the common-law world and does not even exist universally across the United Kingdom. It is not the system that pertains in Scotland, and I imagine your Lordships would all agree that Scotland has a civilised, decent and fair legal system—that is certainly my view, as someone whose parents were natives of Scotland.
My concern, however, as I expressed at Second Reading, is whether the magistrates’ courts can cope with the new levels of work that they are going to receive. I entirely agree with the noble and learned Lord, Lord Leveson of Liverpool, that it is not simply a lack of funding or the Covid pandemic that have caused the backlogs—although lack of funding has been a very significant contributor, and Governments of all persuasions have deliberately starved the justice system of cash because it was an easy target, and it is obviously true that Covid played its part. As the noble and learned Lord said, the increasing complexity of criminal trials and the bulk of evidence—CCTV evidence, DNA evidence, scientific evidence and all the rest of it—have made trials longer and contributed to the backlog.
The obvious flaw in that argument, however, when it comes to the Government’s proposed reform, is this: why would those cases be any less complicated in the magistrates’ court? How is the magistrates’ court to cope with the increasing complexity? There is no doubt at all that most of our magistrates’ courts in greater urban areas are presently in a state of chaos: the backlogs are enormous and growing; we are failing to recruit sufficient magistrates; and we do not have enough district judges. Unless we significantly increase the number of magistrates and district judges, magistrates’ courts will simply be unable to cope with the increased volume and complexity of work that is destined for those courts because of this legislation. The Government are going to have to devote significant funding to this change if it is to work.
All these issues make even more important Amendment 2, in the names of the noble and learned Lord, Lord Thomas, and other noble Lords, on the question of allocation. It is going to be critical that magistrates’ courts have some allocation guidelines in this area. If not, there is an obvious risk—I speak as someone who knows a number of magistrates—that magistrates simply continue to send everything up to the Crown Court because their courts cannot cope. That will happen if there is not some form of allocation and increased funding for the magistrates’ courts. I do not say any of this with great pleasure. Funding has played a major part in the situation in which we find ourselves, and the lack of funding on the part of many Governments has been reprehensible.
Finally, I cannot support Amendment 1. Why should people of good character have more rights in our justice system than people of bad character? I practised in the criminal courts regularly for almost 40 years. I do not any more; I last did a trial in 2012. Why should defendants of bad character have fewer rights when it comes to allocation? I say this frankly and with due respect to them, but most of the defendants who I represented over my 30 or 40 years at the criminal Bar were people of bad character. I never felt that they should have fewer rights in the criminal justice system than people of good character, but that is what Amendment 1 proposes, and I am surprised that it does so. Allocation should apply according to fair and rational guidelines, regardless of the character of the individual who is being allocated.
Baroness Levitt (Lab)
My Lords, I speak in support of Clause 1. At its heart, this clause raises a simple question: do we trust magistrates? Throughout my professional life, I have regarded magistrates as one of the great strengths of our criminal justice system. Every single day, magistrates determine guilt. They pass sentence and make decisions that affect liberty, livelihoods and futures. If they can be trusted to do that, why can they not be trusted to decide where a case should be tried? That is the question I have yet to hear satisfactorily answered by the opponents of Clause 1.
Some argue that magistrates may underestimate the seriousness of a case. My experience suggests the opposite; magistrates frequently err on the side of caution. Indeed, many cases sent to the Crown Court ultimately result in sentences that magistrates themselves could have imposed. If there is a tendency, it broadly appears to be towards caution, not recklessness. With respect to my noble friend Lady Chakrabarti—with whom I agree on almost everything, but not on this occasion—I am slightly mystified by the suggestion that magistrates are going to keep the person of good character in a magistrates’ court but send a serial shoplifter to the Crown Court. My instinct is that rather the opposite is likely to happen. I could not agree more with the noble Lord, Lord Macdonald, that all those who appear before the courts must be treated in exactly the same way.
I am a strong supporter of jury trial; it is one of the strengths of our constitution. However, it does not follow that every case capable of being tried by a jury must be tried by a jury. If that were the principle, the vast majority of criminal cases presently heard by magistrates would need to be transferred back to the Crown Court, and nobody is sensibly arguing for that. Magistrates’ courts do not provide some lesser form of justice, and lay magistrates, like jurors, are members of the public performing a public duty; both reflect the principle that justice should not be administered exclusively by professionals.
As has been frequently said at Second Reading and during this debate, more than 90% of criminal cases are dealt with in the magistrates’ court, and without lay magistrates the system simply would not function. Throughout my career, I have seen magistrates approach difficult cases conscientiously, thoughtfully and fairly. They have earned the confidence of judges, practitioners and the communities which they serve, and they have earned the confidence of Parliament as well. Clause 1 does not ask the magistrates to undertake some radical new judicial function. It asks Parliament to trust them with a decision that is modest when compared with the responsibilities they already discharge every day. The real question is not whether magistrates are ready for this responsibility; it is whether we are prepared to recognise the responsibility they already shoulder.
Lord Young of Acton (Con)
My Lords, in supporting Amendment 5, in my name, I declare my interest as the director of the Free Speech Union.
I agree with all those noble Lords who have spoken already and expressed reservations about Clause 1, but, if we are going to have to live with Clause 1, I want to suggest ways in which it could be improved by exempting certain classes of offences from it. My amendment would exempt from Clause 1 the removal of the right to trial by jury for those accused of speech offences that are currently triable either way.
The argument for doing this is that whether someone is guilty of one of these offences depends on where the line is drawn, and that question hinges on the meaning of words such as insulting, threatening, abusive, harassment, alarm, distress and grossly offensive, or whether something has a tendency to deprave and corrupt. There are often no hard and fast rules when it comes to understanding or interpreting the meaning of those words, and no unambiguous statutes or precedents that a judge can refer to. Instead, it comes down to a moral judgment about what is and is not socially acceptable. When it comes to making those kinds of decisions, that is properly a matter for a jury, not a judge.
That is not just my view. In Brutus v Cozens, a case heard before the House of Lords in 1973, the Lords held that the meaning of an ordinary word such as “insulting” is not a question of law. It is a question about ordinary language and ordinary standards and where the line should be drawn, and such matters are best left to juries composed of ordinary people, not experts in law.
There is another reason for maintaining the “either way” status of the particular speech offences listed in my amendment. According to research carried out by the Free Speech Union, people charged with speech offences are twice as likely to be acquitted in the Crown Court as they are in the magistrates’ court. That is to say, juries are more tolerant when it comes to what speech is or is not socially acceptable.
I will give an example. In 2024, shortly after the Southport attack, an ex-Royal Marine called Jamie Michael, who was under the false impression that the attack had been carried out by an undocumented migrant, put out a video on Facebook urging his followers to protest outside the offices of elected politicians against illegal immigration. He did not use any racial epithets and he made a point of stressing that such protests should be peaceful. A complaint was made to the police by a member of staff of a Member of the Welsh Parliament, and he was charged with stirring up racial hatred, the maximum sentence for which is seven years in prison. The Free Speech Union found him a good solicitor and barrister, he pleaded not guilty and it took a jury a grand total of 17 minutes to acquit him. Would a magistrate have acquitted him in the same way? I doubt it.
When it comes to our fundamental right to freedom of speech, which is, after all, the most important right, because without it we would not be able to defend any of the others, I urge noble Lords to continue to entrust it to 12 ordinary Britons, who have proven to be a reliable guide to where to draw the line, as they did in the Lady Chatterley trial and have done so often since.
Baroness Hamwee (LD)
One answer to the noble Lord is that even good cases sometimes make bad law.
I should apologise, like the noble Viscount and the noble Baroness, that I could not be here for Second Reading. I was able to watch it. My explanation or personal reference does not follow theirs, because my legal practice is very different from both of theirs. I do not know what the collective noun is for a group of those who encompass nobility, learning and a thoughtful approach. If they know what it is, perhaps they can tell me, so I can use it at a later stage. It is really helpful to have their contribution, not just on this issue but later in the Bill. The notion of guidelines is something we must rightly explore.
I am not proprietorial about my Amendment 7. I simply felt that the issue of appeals to allocation must be explored. As the Law Society put it, speed should not be the only criterion where a person
“may be convicted and sentenced to a lengthy period of custody or suffer life-changing reputational damage”.
To me, the issue of reputation is hugely important. We tend to focus on the length of a sentence, but I think any sentence carries a reputational factor. Following a short summary trial, there is a serious risk that efficiency will be perceived to have come at the expense of fairness. Magistrates, as has been said, are very used to deciding whether to send up a case, but the context and their powers will change considerably. What I am suggesting should be addressed is a mechanism for appeal.
While I remember, I will follow a couple of the speakers opposite. I do not like to say “opposite”, particularly in the case of the two noble Lords who have made points. I find it difficult to distinguish between defendants on the basis of character. It is rather like human rights. Somebody can be a really unpleasant person whom you would rather not have to help. However, their human rights are the same as everybody else’s. The amendment seeks to provide for either side, the prosecutor or the accused, with the permission of the Crown Court, to appeal against the decision, a time limit for the appeal to have, in the court’s view, a reasonable prospect of success, and for there to be criminal procedure rules. I know that the issue of the permission of the Crown Court is contentious in some people’s eyes.
Lord John of Southwark (Lab)
My Lords, while I have sympathy for Amendments 7 and 3, my concern is that this simply adds another layer of backlog or chaos to the Crown Court system, which we are trying to eliminate. Appeals going from the magistrates’ court to the Crown Court are bound to take some time, delay the decision on where that case should sit and therefore delay justice again in that case. How does the noble Baroness propose that those additional delays are avoided?
Baroness Hamwee (LD)
I am not seeking to instil chaos—at least, no more chaos than there may be at the moment. It is a question of the balance between speed and fairness, appropriateness—any of those nouns. I do not think that everything should be subsumed to speed.
Lord Marks of Henley-on-Thames (LD)
My Lords, I start from the position that we on these Benches support the right to jury trial in serious cases. I expect fully that we will support the noble and learned Lord, Lord Keen, the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Jones, in opposing this clause, should they put it to a vote, as I certainly expect them to on Report.
I agree with every word of the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Mallalieu, and so many others in respect of jury trial. I agree with all those, in this Chamber and in the country at large, who believe that jury trial is one of the cornerstones of our liberty, and that the right to trial by one’s peers is trusted and relied on as a protection against arbitrary abuse of power. I entirely accept that the public trust juries. By and large, they believe that the secret deliberations of 12 jurors in the privacy of the jury room are more likely to produce a fair and unbiased result than the decision-making of one judge. Judges differ, to our knowledge and experience, in background, influences, prejudices and therefore conclusions, from other judges hearing the same evidence and determining the same case.
I also believe that the jury system democratises our justice by bringing the public into the process of making findings of guilt or innocence. My experience of how seriously jurors take their duty when sitting on juries—although it is a distant experience, because I have not practised criminal law for a long time—reinforces that belief in how seriously they take their duties, as does the experience of talking to members of the public who have served on juries.
I agree with all those who see it as a strange and unjustified position that we should take a step as radical as removing the right of election for an ephemeral reason, such as reducing the Crown Court backlog, when there are other ways of reducing the Crown Court backlog. I accept it is dreadfully serious but it is already being tackled in other ways, and quite successfully. In any event, the evidence that removing the right to elect will have the effect of reducing the backlog is painfully thin.
For there to be a right to jury trial, there has to be a right of election in cases that are serious enough to be indictable only or triable either way. But that is not to say that the classification of which offences should be triable either way or, indeed, indictable only cannot change. Of course it can. The noble Baroness, Lady Chakrabarti, conceded that point, along with others; the noble and learned Lord, Lord Thomas Cwmgiedd, made the point as well. However, I suggest that we would lose a democratic right of great value if we were to abolish the defendant’s right of election.
I turn to Amendment 1, on the importance of good character in the determination of the appropriate allocation for trial, which is in the names of the noble Baroness, Lady Chakrabarti, who explained it fully and eloquently, the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Goudie. I argued in the King’s Speech debate, at a stage when the likely length of sentence was going to be the determinant of a right to jury trial—now, thankfully, gone from the Bill—that defendants of good character were at risk only of a low sentence and therefore were much more likely to be denied a trial by jury than defendants with serious criminal records.
Of course I accept that justice needs to be equal for everyone and that everyone has the same human rights, as my noble friend Lady Hamwee explained. Nevertheless, I am forced to disagree with the noble Lord, Lord Macdonald of River Glaven, on that point. No one is arguing that not all defendants deserve justice. However, the fact is that defendants of good character are at serious reputational risk from a conviction, as my noble friend Lady Hamwee explained. They face not only the risk of the sentence but risks to their careers and to their relationships, to which one can add risks to their mental health and well-being. For defendants with many previous convictions, the likely sentence would be much higher. The effect, therefore, of taking into account only sentence and treating sentence as the determinant is that the defendants of bad character, or with previous convictions, are much more likely to get a jury trial.
It is idle to suggest that the chances of acquittal in the magistrates’ court are the same as the chances of acquittal in the Crown Court. The noble Lord, Lord Young of Acton, explained the difference in connection with speech offences, but the experience of the public at large and of the legal profession is that defendants of good character, at least, have a better chance of acquittal before a jury than they do before magistrates. It is therefore of great importance that good character is taken into account at the allocation stage, otherwise we would not be treating all defendants equally. We would be according a jury trial to defendants with previous convictions but not to those of previously unblemished character. We ignore that at our peril. Those who say that it is an equal playing field between magistrates’ courts and Crown Courts are drawing the wool over their own eyes.
My understanding, though, is that it is intended in the Bill that magistrates will be guided by the seriousness of the alleged offence and will be expected to leave out of account considerations of character and history. I would be grateful if the Minister would elucidate that, and explain and justify—without reference necessarily to the amendment from the noble and learned Lord, Lord Thomas of Cwmgiedd, and others—the guidance that is expected to be given to magistrates on the criteria for allocation between Crown Courts and magistrates’ courts in contested cases.
I turn to the right of appeal against allocation by the magistrates’ court, which my noble friend Lady Hamwee’s Amendment 7 would provide and which we support. Why should a decision of such fundamental importance be treated as no more than a case management decision for the magistrates alone? Magistrates do not, as a matter of course, have experience of jury trials. They do not know or need to know how jury trials work. The people most qualified to determine whether a case warrants a jury trial are the Crown Court judges who hear jury trials day in, day out. There should plainly be a right of appeal against the refusal of a jury trial. I argue that such an appeal should lie with the Crown Court, with the judge having the right to reverse the magistrate’s allocation decision simply if he or she took the view that it was the wrong decision.
I turn finally to the Clause 2 stand part notice in my name. I have notified the Government that that is not to be pursued. I ask the Minister to treat it as probing and ask him merely to explain how the mechanism in Clause 2 would work. By removing the right to object to the venue for a trial when the case comes before the magistrates, it is proposed that the decision on allocation is for the magistrate alone, but Clause 2 introduces a right to make representations.
I am not objecting to the right to make representations; it is a question of how that right is to be exercised and what the representations can cover. Is a representation to be only on the question of whether the sentencing powers of the magistrates’ court would be adequate to sentence the defendant for the offence? What would the criteria be? How far would they be confined to the nature and seriousness of the offence before the court? To come back to the amendment from the noble Baroness, Lady Chakrabarti, would factors relating to character be considered? Would factors relating to the defendant’s circumstances—for example, family ties, housing, children, employment, mental health, addiction and treatment needs, the effect of delaying a trial on sentencing, and the effect of delaying sentence—be permissible subjects for such representations? Would there be a judgment, giving reasons as to why the magistrate’s sentencing powers would be adequate—or why not, as the case may be?
These are important issues as to how this new provision might work. All I seek on Clause 2 is clarity as to what the Government propose and how they envisage that the allocation might work.
Lord John of Southwark (Lab)
The noble Lord spoke about the almost inadequacy of trials in the magistrates’ courts, but it is my understanding that about 90% of all criminal trials occur in magistrates’ courts at this time. Is he saying that those trials are unfair or inadequate in some way?
Lord Marks of Henley-on-Thames (LD)
I never talked about the inadequacy of magistrates’ courts. The 90% figure is used a great deal. All motoring cases, almost without exception apart from causing death or serious injury, are tried in the magistrates’ courts, as are massive numbers of low-level shoplifting cases, very low-level violence cases and low-level cases of dishonesty. Thankfully, those comprise well over 90% of criminal cases. The Crown Court cases are the serious cases, and it is about the Crown Court that we are concerned. It is simply not an answer to say that magistrates try the vast majority of cases. People do not necessarily get the same quality of justice, for exactly the reasons that the noble Baroness, Lady Mallalieu, explained. Serious cases deserve serious effort and attention. They also deserve everything that the jury gives: the privacy of the jury room, the care taken to the evidence, the guidance of a Crown Court judge and the lack of differential between one judge and another. The reason that people trust juries is, I believe, largely to do with the bald fact that 12 heads are better than one.
Lord Keen of Elie (Con)
My Lords, I acknowledge the Minister’s willingness to engage with Members across the House to explain the Government’s intentions with regard to this legislation. I express the hope that he will exhibit an equal willingness in answering the very particular questions that noble Lords have now posed with respect to the provisions of the Bill.
I propose that Clause 1 not stand part of the Bill. That clause will remove the right of a defendant to elect for a jury trial in the Crown Court in the case of “either way” offences. I must observe that I was concerned by the remarks made by the Minister for Courts and Legal Services in the other place. She said that
“we need a better system, one in which courts, not criminals, triage cases”.—[Official Report, Commons, 7/1/26; col. 284.]
Her characterisation of all defendants as criminals is concerning in itself. It suggests, I hope inadvertently, that Ministers have lost sight of the essential principle that a defendant is presumed innocent unless and until they are found guilty. That principle cannot be lost sight of simply because of a backlog in the Crown Court. I hope the Minister will be able to clarify the remarks made by the Minister in the other place and to reassure us that the principle of presumption of innocence is not being pushed aside just for the benefit of convenience and timing.
On these Benches we will always stand up for the ancient right to trial by jury. It has been a fundamental protection against arbitrary justice for hundreds of years, and it has stood the test of time. More generally, the Bill seems to be driven more by ideology than by evidence, and that is a point to which we will return. Throughout the 2000s, the then Labour Government brought forward a number of Bills that sought to undermine the right to trial by jury. This House opposed such measures then, and we on these Benches oppose such measures today.
The Government have failed to justify their proposals with clear evidence. Indeed, I noted the observations of the noble Baroness, Lady Jones of Moulsecoomb, that the Government are pressing ahead without evidence. The noble Lord, Lord Marks of Henley-on-Thames, noted that the evidence in support of these proposals is “painfully thin”.
We have tabled this stand part notice because we need to hear from the Government what evidence there is that these proposals will reduce the backlog in the Crown Court system and are the only necessary route to achieving such a goal. In the absence of that evidence, we remain sceptical about the impact of these proposals. If the Minister could point us to the relevant evidence in his closing remarks, I would be grateful.
Is there evidence that these proposed reforms will reduce the Crown Court backlog in one year, in five years, in 10 years or, more likely, never? If the backlog is cleared, does the Minister accept that the Bill should be repealed? If the size of the backlog is the sole reason the Government are seeking this legislation, surely the absence of a backlog will render it unnecessary. Will the Minister answer that point?
In addition, it seems likely to us that these measures will simply move the backlog from the Crown Court to the magistrates’ court, as other noble Lords have observed. Clearly, other groups in Committee will address the issue of the magistrates’ courts, so I will not linger or expand on that point at this time. However, how much do the Government expect these measures to impact the magistrates’ system and what measures are being taken to avoid that system being overwhelmed by these measures?
Amendment 1 in the name of the noble Baroness, Lady Chakrabarti, signed by the noble Baroness, Lady Goudie, alongside my noble friend Lord Hailsham, probes whether the representations of defendants with good character who have not previously been convicted of a crime could be given greater weight. We acknowledge that this is an interesting point, and the noble Baroness is right to question how the treatment of defendants will differ based on their criminal history. It is important to consider whether a defendant with previous criminal history is more likely to receive a jury trial, so I look forward to hearing the Minister’s response.
Amendment 2, in the names of the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Burnett and Lord Phillips of Worth Matravers, and my noble and learned friend Lord Bellamy, seeks to question what guidelines will be provided as to the allocation of “either way” offences. Clearly, Clause 1 contains a substantial change to the way in which such offences may be tried and there has to be a consideration, if Clause 1 stands, as to how such guidelines would operate.
Amendment 3 in the name of the noble Baroness, Lady Chakrabarti, again signed by my noble friend Lord Hailsham, and Amendment 7 in the name of the noble Baroness, Lady Hamwee, seek to question the appeals process. I hope that the Minister will again consider those points and the concerns that have been expressed regarding the appeals system.
Finally, Amendment 5 in the name of my noble friend Lord Young of Acton seeks to exempt offences relating to contested speech from the provisions of this clause, so that a defendant’s right to elect for a trial by jury can be maintained. My noble friend makes compelling arguments defending the importance of freedom of speech, and today was no exception. Although I acknowledge his concerns, it might be unusual to make an exception for only one type of offence, but he raises an important point in recognising the value and importance of the jury. I hope again that the Minister will respond to the points made.
The Advocate-General for Scotland (Baroness Smith of Cluny) (Lab)
My Lords, this has been an important and informative debate about a fundamental part of the Bill. Given that there is opposition to Clauses 1 and 2 standing part, I will take a moment to set out the principal reasons for them and deal with some general points that have been brought up in the debate, and then I will deal with the specific amendments.
Clause 1 will remove the defendant’s ability to choose to elect for a Crown Court trial for all triable “either way” offences so that venue decisions are made solely by the courts. In doing so, it redresses the balance between victims and defendants by ensuring that they are based on the seriousness and complexity of the case and not the defendant’s preferences. Clause 2 is consequential on Clause 1 and ensures that the written plea procedure will operate consistently with the wider reforms once commenced.
We have heard contributions about confidence in the justice system, particularly in the context of jury trials. My noble friend Lady Chakrabarti and the noble Baroness, Lady Jones, have raised these issues, while the learned and noble Lord, Lord Keen, raised the presumption of innocence, another foundational principle. The Government are concerned about public confidence, and that is a reason why we are bringing forward the Bill. Those clauses will ensure that Crown Court time is prioritised for the most serious and complex cases, ensuring a more proportionate use of limited court resources and sparing victims unnecessary delays.
Magistrates’ courts are fair, robust and independent, and these clauses recognise that. Safeguards remain: both prosecution and defence can make representations on venue, and defendants retain full rights of appeal to the Crown and High Courts. Fundamentally, the Government do not believe that a defendant should be able to override the court’s judgment and secure lengthy delays in the hope that victims and witnesses walk away and the case falls apart before it is heard.
Some general points that have been raised include concerns about magistrates, particularly the complement of magistrates. This was raised by my noble friend Lady Bi, the noble Lord, Lord Macdonald, the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Keen. We are increasing the numbers: we have a target to nearly double the complement of magistrates from a historic low in 2022 by 2028-29. Noble Lords will hear more detail about this from my noble friend Lord Lemos during this Committee, so I will not spend time on it just now.
I wish to address the request for evidence from the noble and learned Lord, Lord Keen—indeed, it was raised by more than one person. Again, my noble friend Lord Lemos will deal with this subject in more detail, but detailed modelling has been published by the Ministry of Justice showing the impact on the backlog of the measures. I am happy to point the noble and learned Lord in its direction and share it with him.
Before I turn to specific amendments, I want to address the question from the noble Baroness, Lady Hamwee: what is the collective term for noble Lords of nobility and learning? I wonder if I might suggest “a wisdom” of noble Lords, or indeed “a wisdom” of noble Baronesses —but perhaps others can suggest different terms as the debate goes on.
Amendment 2, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, would require the Secretary of State to issue statutory guidance on the allocation of “either way” offences. He acknowledged that this is a probing amendment. I will address the points that he has raised, and indeed I hope to continue the conversation with him beyond this. The noble and learned Lord raised the question of judicial input. The Sentencing Council is currently the body that issues the guidance that is used. That council is chaired by judges; it has judicial membership and indeed it consults judges. It is of course an independent organisation, which is an important safeguard.
The further question that was raised was: should the sentence be determinative of the factors taken into account? Sentencing is not the only factor, but I acknowledge that it is significant. The noble and learned Lord raised important points that were raised also by the noble Lords, Lord Macdonald and Lord Marks. This debate is a good opportunity for us to consider these issues, and I would be happy to continue the conversation after today’s Committee.
Lord Marks of Henley-on-Thames (LD)
I am just concerned to question whether the noble and learned Baroness is right in her argument that allocation decisions regularly made by the magistrates are the end of the matter, because, of course, in cases triable either way, the defendant has the right of election. The magistrates may say, “Well, we take the view that this case can be tried by the magistrates”. The right of election then supersedes that to give the defendant the right to choose jury trial, so it is wrong to say that the final allocation decision is taken by magistrates. I do not know whether that does not make a difference. I suggest that it does make a difference to the question of whether there ought to be a right of appeal.
Baroness Smith of Cluny (Lab)
I wonder if it is simply a question of how you analyse the sequence of the events that take place in court, but I would argue that the allocation decision is made by the magistrates. The fact that it can be displaced by the right to elect does not in any way take away from the steps and the process that those magistrates have to undertake to make the allocation in the first place. The right to elect does not suggest that the allocation decision was wrong; it is simply a right to access the Crown Court. It is not implicit in a defendant exercising that right that the allocation decision was wrong. In my view, the magistrates are already undertaking the task that they will and are doing it very ably.
Magistrates also already make important venue decisions in other contexts, including youth cases, without a bespoke right of appeal against those decisions. Defendants will retain the right to appeal against any conviction or sentence in line with the reform process established by the Bill. The Government therefore do not consider a new appeal mechanism to be necessary or proportionate.
Amendment 1, tabled by my noble friend Lady Chakrabarti, seeks to give greater weight to the representations of defendants of good character, and where they are likely to receive a sentence of between one and three years if convicted. The Government do not consider there to be a principled basis for this. The court must apply the statutory allocation criteria as set out by the independent Sentencing Council in every case and, as I have mentioned, provide reasons. Our view is that the allocation should be determined by the seriousness of the alleged offending, not by the personal characteristics of the defendant. Previous convictions are an established aggravating factor and it is therefore right that they are relevant to the assessment of likely sentence and case seriousness. There is also no statutory or straightforward definition of good character. This amendment would create different allocation outcomes for defendants based on their personal characteristics, departing from the principle that defendants should be treated equally before the law. I note the remarks of the noble Lord, Lord Macdonald, and my noble friend Lady Levitt in that regard and align the Government with them.
Finally, on Amendment 5, tabled by the noble Lord, Lord Young of Acton, we are absolutely committed to upholding freedom of speech. It is a fundamental right and a defining value of our open and diverse society, and our legislation reflects this. The Sentencing Council’s allocation guidelines already take account of the seriousness and complexity of cases, and creating offence-specific exemptions would introduce a different allocation framework for a particular class of offences. This would undermine the principle that the venue should be determined by the court on the facts of the case rather than by the nature of the offence. A key safeguard is a fair trial before an independent court, not a defendant’s ability to choose the venue. Defendants charged with these offences will continue to receive fair and impartial justice, regardless of where the case is heard. This amendment would not support the aim of the Bill, which is to ensure that cases are heard in the most appropriate venue, based on their seriousness and complexity, preserving Crown Court capacity for the most serious and complex cases.
This is a Bill to deal with the acute crisis in our justice system in England and Wales, which the Committee is well cognisant of, but it is also a Bill based on principle. The findings of the review from the noble Lord, Lord Leveson, are much more than a set of practical fixes; they are principled proposals that make sense quite separately from any crisis. Removing the right to elect is the correct thing to do in principle, and I say that as someone who has conducted many criminal trials in a system that has no such right but none the less manages the important rights of defendants as well.
I thank all Members for these amendments. They are an important part of this debate, and I hope the explanations I have given of the Government’s position will allow your Lordships to support these clauses standing part of the Bill.
Lord Keen of Elie (Con)
Before the noble and learned Baroness sits down, might I raise one point with her? Alluding to the right to elect for jury trial, she described it as the means to “secure lengthy delays”. Are the Government seriously contending that the right to jury trial should be removed because they perceive that it is being abused at the present time?
Baroness Smith of Cluny (Lab)
I am not sure that that is what I did say; if I did, let me correct the record. The purpose of these clauses is to ensure that Crown Court time is prioritised for the most serious and complex cases, ensuring a more proportionate use of limited court resources and sparing victims unnecessary delays.
Baroness Chakrabarti (Lab)
My Lords, I am so grateful to the Committee and to all who spoke on such important matters so thoughtfully and temperately. In particular, I am grateful to the noble, learned and distinguished silks from north of the border, who echoed that tone on both Front Benches. I am grateful to the noble Viscount, Lord Hailsham, for his support, and to the noble and learned Lord, Lord Thomas of Cwmgiedd, for reminding us of the importance of consistency and of a potential role for guidance, and for his gentle wake-up call to those who celebrate not having judges sitting alone via the front door that that it is a possibility via the back door with the Bill in its current form.
I am very grateful to the noble Lord, Lord Marks of Henley-on-Thames—another distinguished silk—for his riposte to the suggestion from a few noble Lords that character does not matter, and that I have launched an affront to universal human rights by suggesting that it does. Forgive me, but character does matter. Nobody said that character should not matter in sentencing; it is a crucial factor. As long as sentencing is important, decisive or determinative in mode-of-trial decisions, I am afraid that character will matter. At the moment, it will matter to the detriment of people facing a potential first-time conviction. That is the logic of the Bill in its current form. To say that character is just a characteristic, such as hair colour or even race or sex, is a mistake that will warrant further discussion and thought from all noble Lords and my noble friends in government. With that, for today at least, I beg leave to withdraw the amendment.
Lord Thomas of Cwmgiedd
“(7A) After section 22A (low-value shoplifting to be a summary offence), insert—“22B Reclassification of summary offences(1) Within six months of the day on which the Courts and Tribunals Act 2026 is passed, the Secretary of State must carry out a reclassification of summary offences and in doing so must have regard to—(a) whether the offence carries a maximum sentence of two years or less, and (b) the indicative list of offences contained in Annex G to the Independent Review of the Criminal Courts by Lord Leveson, dated 18 June 2025.(2) The Secretary of State must, by regulations to be made by statutory instrument, specify the offences which are triable as summary only offences following the reclassification exercise in subsection (1).(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
Lord Thomas of Cwmgiedd (CB)
My Lords, I have introduced—at some length, I regret to say—the problems that have arisen because we do not have enough information to decide the best way of dealing with the current crisis in the courts. This is another alternative put forward to your Lordships for consideration. I intended to give an explanation, but it was left out of the printed paper. The amendment would provide parliamentary authority for the transfer of a greater range of specific offences, as well as greater certainty, while reducing the pressure on the Crown Court.
The amendment envisages the reclassification of summary offences. The origins of this lay in a submission made to the noble and learned Lord, Lord Leveson, by the Bar Council, which supported the increase of sentencing powers to two years—although, given its confidence in district and deputy district judges, only if such cases were heard by them. The Bar Council also identified a series of offences that it said should be reclassified as summary-only. The noble and learned Lord, Lord Leveson, carefully looked at that and came up with his own view, which is set out in chapter 5 of part 1 of his report.
In essence, he suggested the restriction of the right to elect by removing it from “either way” offences that carried a maximum sentence of two years. In addition, he identified a pool of additional offences based on the average custodial sentence length that they typically received, with other factors pointing to the magistrates’ courts being a proportionate forum. The list of those is set out in annex G and includes possession of controlled drugs up to a certain value, making off without payment—for example, the theft of a pedal cycle—breach of an ASBO, and various other matters. The number of offences is very large and I do not want to take up time by reading them all out.
There is, plainly, a block of offences that could sensibly be reclassified. We urge the Government to consider this, for a number of different reasons. The way in which this proposal is put forward rests on the ways it could be done, but there can be no doubt that the limits in the current summary-only system are out of date and that there is a good case for putting into it a value—for example, in relation to drugs or quantity—which could be used in a number of different ways.
Lord Marks of Henley-on-Thames (LD)
My Lords, having listened to the noble and learned Lord, Lord Thomas of Cwmgiedd, I have very little to say on reclassification. I said on the last group that I see no argument that can be mounted to suggest that the borderline between summary-only offences and “either way” offences is unchanging. Of course, everybody sensibly accepts that there are some “either way” offences that could be summary-only. That brings about a need to consider reclassification, as the noble and learned Lord described.
I will speak to my Amendment 51 on out-of-court resolutions. At Second Reading, I pointed out that the noble and learned Lord, Lord Leveson, had devoted his first substantive chapter and the first 10 recommendations in his first report to the importance of reaching out-of-court resolutions. His aim was to take low-level criminal offences that could properly be addressed with therapeutic and cautionary responses, aimed at diverting those offences out of the criminal justice system altogether, and address the issues that caused people to commit such offences in the first place. Indeed, he entitled that chapter “Diversions”. That is the issue I seek to address.
At Second Reading, I took as an example the prosecution of parents in unauthorised absence offences under the Education Act 1996, by which parents can be—and are frequently—prosecuted for not ensuring that their children attend school. Very often, the background is that those children are traumatised or unwell and refusing to go to school, however hard the parents, who are the ones ultimately prosecuted, try to get them there. That process and the discord in the home cause real trauma. The prosecutions that result end up in fines that are often unpaid and, in extreme cases, they can result in prison sentences. Often, parents and whole families are dreadfully affected by the process. Many are driven entirely out of the school system and find themselves relying, often unsuitably, on home schooling, or attempts at home schooling, to replace that dreadful cycle. In those cases, what is needed is a constructive and therapeutic approach that helps families with the causes of the non-attendance and addresses the health and social issues causing the damage. So it is with a vast number and range of cases of low-level crime.
In answer to the intervention in the last group, I talked about the cases of low-level crime that went before the magistrates. Many of those cases are suitable not for the criminal justice system at all but for diversions and out-of-court resolution. Many cases of minor dishonesty, including low-level shoplifting, now often do not even get to court because there are not the resources for the prosecution to proceed. A lot of cases of low-level violence, criminal damage and drug and alcohol offences can be dealt with by way of diversion, partly because they originate not in real criminality but in inadequacy or social and personal difficulties.
The noble and learned Lord, Lord Leveson, looked at and discussed rehabilitation programmes for drug and alcohol abuse. I hesitate to address your Lordships in his presence, when he wrote the report on which I am relying, but the point is that he looked at other health intervention programmes to prevent people being brought into a life of criminality. At the centre of his thinking in this part of his report—he will correct me if I am wrong—was the view, widely accepted by experts in the field and by those in this House who are expert in these areas, that if we can divert people away from low-level crime by addressing the issues that cause them to commit offences then we can encourage rehabilitation and avoid future crime by providing early help. That, of itself, has a huge societal benefit.
The noble and learned Lord’s report and recommendations were addressed chiefly to encouraging the police and the Crown Prosecution Service to divert cases to out-of-court resolutions before they ever get to court, even before charges are laid. We fully support that. Yet there is nothing in the Bill on that. I am grateful to the noble Lord, Lord Lemos, for engaging with me and others in discussing this, and for addressing the issue sympathetically at Second Reading, when he said that these are matters that we can discuss. It is very important that we do so.
My Amendment 51 is proposed on the basis that it is not only before charges are laid that out-of-court resolution should be considered but that, even when the criminal process has been commenced, diversion and out-of-court resolution should be explored. If it were not the case that we were going to say, in a defeatist way, that it is too late, we would not then see so many cases in our courts when an intelligent observer feels bound to ask, “Why is this defendant here?” And not only an intelligent observer—the same question is routinely asked even by police officers, as well as by probation officers, families, friends and social workers.
My amendment therefore bites on the first time that a person charged with an offence is required to indicate a plea. Indeed, it would impose a duty on those responsible for prosecutions to consider those prosecutions before the first time the defendant is asked to plead. Clearly, of course, many cases will not be suitable for out-of-court resolution, but the report of the noble and learned Lord, Lord Leveson, and my amendment are based on the proposition that many are, and that greater resort to out-of-court resolutions has the potential to save many from continuing criminality.
The report of the noble and learned Lord, Lord Leveson, was concerned with reducing the case load in the courts and reducing the backlogs. That was his original target. However, his report needs to be read much more widely than that. Initially, the reduction in the case load would come in the magistrates’ courts because we would be talking about low-level crime, but it would filter up to the Crown Court, as all experience tells us that a life of crime starts with minor offences that are charged, tried and sentenced in the magistrates’ court but continued offending gets worse. We hear about prisons being academies of crime. Whether or not that is the case, the fact is that lives of crime tend to get worse as they go on, and it is the failure to adopt out-of-court resolutions for those cases where early help and early intervention could divert people out of the criminal justice system that is responsible for part of that.
In this amendment our ambition is large: we are trying to stimulate a crime reduction programme born of a rethink of the way that we resort to the criminal justice system—a rethink that is radical and potentially of great social benefit. This amendment is a modest step on that road. It is inspired by the concentration of the noble and learned Lord, Lord Leveson, on this aspect. It has the prospect of reducing case loads, but also of reducing crime, focusing our attention on the causes of crime and preventing lives being wasted.
Lord Macdonald of River Glaven (CB)
My Lords, the noble Lord—wrongly, in my view—disagreed with part of my earlier speech so I want to say how much I agree with his Amendment 51 and with what he has been saying for the last 10 minutes or so.
This is important for all the reasons that the noble Lord has outlined, particularly in breaking a pattern of crime and offending that starts with that first court appearance, and in freeing up space in the magistrates’ courts, which we are told are going to be taking on more serious and more complex cases. He is absolutely right. We all know there are far too many people with addiction issues and mental health issues within the criminal justice system, which is ill suited to deal with them. Much the same could be said about our prison system.
I put in one further plea. A few years ago, in about 2012, I was a member of something called the Independent Commission on Youth Crime and Antisocial Behaviour. We recommended and proposed to the then Government that a programme of restorative justice be implemented across the country. We called and heard a lot of evidence, and went to a number of jurisdictions where restorative justice programmes were in effect. These were wonderfully successful in stopping crime, satisfying the victims of crime and saving the criminal justice system the trouble of trying cases which did not really need to be tried. The noble Lord and this amendment have my full support.
Lord Keen of Elie (Con)
My Lords, I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for raising this issue in Amendment 4. As is the case with a number of his amendments, I note he has the support of other noble and learned Lords—the noble and learned Lords, Lord Burnett of Maldon and Lord Phillips of Worth Matravers, as well as my noble and learned friend Lord Bellamy. It appears to us that the Bill will necessarily require some reassessment of summary offences, so we welcome the point that the noble and learned Lord has raised with the Government.
Should this Bill become law as it stands, even without the original clauses that the Government have already removed, we will be making a significant, indeed fundamental, change to the way many offences are tried. Indeed, should the regulation-making power under Clause 5(1)—that is, the power to increase the magistrates’ maximum sentence—be implemented, we will see a great many more cases, some relating to serious offences, being tried in the magistrates’ courts on a summary-only basis. If the Government are going to proceed with these plans—and we sincerely hope that your Lordships’ Committee is able to demonstrate to the Government how flawed some of them are—Ministers must, as an absolute minimum, undertake a reassessment of the offences that may be tried as summary-only offences.
That said, we have some concerns about subsection (2) of the proposed new Section 22B of the Magistrates’ Court Act 1980. That subsection would require the Secretary of State to specify those offences that are triable as summary-only offences. As noble Lords across the Committee will appreciate, whether an offence is triable as a summary-only offence is defined in primary legislation, and it would be concerning to establish a regulation-making power for the same purpose, unless, of course, the regulations made under subsection (2) were merely intended to be descriptive of existing laws set out in primary legislation. Perhaps the Minister can clarify that point.
On Amendment 51, in the name of the noble Lord, Lord Marks of Henley-on-Thames, with regard to out-of-court settlement, where such settlements are appropriate then they should be considered, and they might well help to reduce the backlog that already exists in both the Crown Court and the magistrates’ court. That said, an additional requirement placed on the courts through primary legislation may not be the best way to promote appropriate out-of-court settlements. I suggest that that is a matter for further and more detailed consideration going forward.
We are a little curious about the proposal that courts be permitted to adjourn a case for a period of up to 28 days to enable an out-of-court settlement to be considered. It appears to us that there is room for that to be abused by more cynical defendants who may find themselves in court. We would have to consider what impact that might have on further delays in both the Crown Court and the magistrates’ court; as all lawyers will know, an adjournment for a period of up to 28 days can transmogrify into something materially different.
Having said that, we understand the force of the point being made by the noble Lord, Lord Marks, and, while it may not be a matter for primary legislation, it is surely a matter for further detailed consideration.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Lemos) (Lab)
My Lords, as this is the first time I have got to my feet, I thank all noble Lords for meeting me and for the various discussions we have had. In relation to this amendment, I thank the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Burnett, Lord Phillips and Lord Bellamy, for meeting me yesterday specifically to talk about their amendments. I hope we can continue that conversation.
Amendment 4, from the noble and learned Lord, Lord Thomas of Cwmgiedd, seeks to reclassify certain triable “either way” offences to summary-only, in line with the recommendations, as he said, of the noble and learned Lord, Lord Leveson, in his independent review. The Government considered the recommendations of the noble and learned Lord, Lord Leveson, but concluded that they would not result in significant sitting day savings and would carry risks for the wider justice system and public protection. I know noble Lords will say in response to that that the Government are obsessed by backlogs and sitting days, and I shall address that point in my remarks in a moment.
Offences that are triable either way are, by definition, treated as sufficiently serious to warrant the possibility of longer sentences and broader police and prosecution powers, including longer investigatory time limits. None of the noble Lords who have spoken to this amendment has addressed this specific point and it is one that we will need to return to in the discussion of reclassification.
Reclassifying offences as summary-only—as I said, the Government have considered this—would restrict important operational powers and reduce maximum sentences for those offences to six months. This would be particularly concerning in domestic abuse cases, including breaches of protective orders. We do not believe that it would be right to constrain the justice system by restricting the investigative period when the protection of the public and victims is at stake. Tackling violence against women and girls remains a top priority for the Government, of course.
Nevertheless, we recognise the benefits of retaining more cases in magistrates’ courts because of their efficiency, which is why, as we discussed on the first group, we are bringing forward measures to remove the right to elect and to increase magistrates’ court sentencing powers, which we will return to later today. This will deliver many of the same benefits as reclassification without undermining the protections and powers attached to offences that are triable either way.
I want to address comments made by several noble Lords, on this group and the previous one, that the Government’s only concern is the backlog. I want to be completely clear, as my noble and learned friend Lady Smith was: of course the Government are committed to fair trials. That principle is completely intact and inviolate in the Government’s thinking on this. Our concern with the backlog is perhaps better expressed as being about waiting times and their impact on victims’ experiences. The backlog is a problem for administrative reasons, but it is much more important for victims of crime.
We do not think, as a matter of principle, that defendants should choose their own mode of trial. However, I am happy to continue the discussion with the noble and learned Lords, Lord Thomas and Lord Leveson, and others, on the suggestion for reclassification.
On Amendment 51, I recognise that the intention of the noble Lord, Lord Marks, is to increase use of out-of-court resolutions, which can provide an effective and robust alternative to prosecution. I do not think the phrase “out-of-court resolution”—or, with respect to the noble and learned Lord, Lord Leveson, the word “diversion”—will travel very well on the streets. We want to ensure that, in the circumstances described by the noble Lord, Lord Marks, justice is done rapidly for the vulnerable people he spoke about, including vulnerable parents. My preferred description, for further revision if necessary, is “rapid justice” that addresses the root causes, which was the point the noble Lord made. I agree entirely with his comments about parents.
The Government are not suggesting, and would not support any suggestion, that the use of out-of-court resolutions amounts to decriminalisation or making those offences irrelevant. That is not our view. Keeping your children from school is an offence but we think it can perhaps be addressed in the way that the noble Lord, Lord Marks, suggested.
The noble Lord, Lord Macdonald, referred to youth justice. The Minister in the other place, Jake Richards, is concerned about addressing root causes in his work on youth justice. I thank the noble Lord and the noble and learned Lord, Lord Leveson, for their reference to restorative justice, which is an important area where much could be done.
Let me set the position out clearly for the noble Lord, Lord Marks. The Government are committed to strengthening the use of out-of-court resolutions and diverting low-level offenders away from court with conditions that address the underlying causes of crime and therefore reduce the risk of future reoffending. However, the police are already required to assess whether the public interest can be served by an out-of-court resolution instead of prosecution. Prosecutors also make this assessment when making prosecution decisions. Courts also already have the power to inquire about an out-of-court resolution and CPS guidance provides that, where the prosecutor in court concludes that such a resolution is appropriate, the matter should be referred to the police and an adjournment sought.
An additional duty on the court would therefore duplicate these processes—I think this is the point that the noble and learned Lord, Lord Keen, was making—and may add unnecessary delay. However, as outlined in the Government’s response to the recommendations from the noble and learned Lord, Lord Leveson, we are urgently examining the legislative and delivery framework for out-of-court resolutions to ensure that it supports our ambitions and that such resolutions are considered whenever appropriate.
Although I cannot at this stage support the amendments in this group, I was grateful for the opportunity to meet the noble and learned Lord, Lord Thomas, and others to have a constructive discussion on these issues. Although the Government have, for the moment, reached a different conclusion on these proposals, I look forward to continuing those discussions and to further discussing the question of out-of-court resolution with the noble Lord, Lord Marks. With these reassurances, I therefore ask the noble and learned Lord, Lord Thomas, to withdraw his amendment.
Lord Thomas of Cwmgiedd (CB)
My Lords, I thank all who have participated in this short debate. There are no easy answers to dealing with the backlog. There have to be compromises along the way, which we have discussed in the previous debate and in this one. We appreciate the problems that arise by classifying as summary-only, as regards the way that the police should be required to act with greater expedition, but we did not intend by this reclassification to suggest a reduction in the maximum sentence, which would be below two years if the Government take those powers under the Bill or one year if they do not. However, I am very grateful to all who have spoken about it and I hope we can look at this again.
I am most grateful to the Minister for our discussions yesterday and our continuing discussions in relation to finding an answer, because what is critical is that we end up with something certain, so that we produce the same result in every postcode, and that we do not get appeals. We cannot have appeals on the question of allocation.
Also, on the suggestion by the noble Lord, Lord Marks, on out-of-court resolution, I think I can recall this subject going back at least 20 years. One of the problems has been in getting some system to bring together the magistrates, the police and the prosecution service. One suggestion—this was probably 15 or 20 years ago —was that magistrates should play a role in looking at the way in which local police forces dealt with out-of-court disposal. That was never proceeded with. There are lots of other ideas, but it is plainly part of the system of justice that we get out-of-court disposals correct. It is not decriminalisation; it is finding a means of an effective deterrent for future criminality, rather than sending people into the criminal justice system. I welcome the proposal raised by the noble Lord, Lord Marks, and hope we can carry it further. With those observations, I beg leave to withdraw my amendment.
Lord Thomas of Cwmgiedd
“Legal aidUnder powers contained in the Legal Aid, Sentencing, and Punishment of Offenders Act 2012, regulations made by the Lord Chancellor must provide, no later than the day on which this Act is passed, that—(a) a defendant’s eligibility for legal aid, and(b) the remuneration paid to providers of legal aid services,is calculated on the basis applicable in the Crown Court, irrespective of whether the matter is heard in the magistrates’ court or the Crown Court.”Member’s explanatory statement
This amendment is intended to harmonise legal aid eligibility, and the remuneration of the providers of legal services, irrespective of whether an either way offence is retained in the magistrates’ court or sent to the Crown Court, thus reducing the risk of unrepresented defendants in the magistrates’ court.
Lord Thomas of Cwmgiedd (CB)
My Lords, I had hoped that the noble and learned Lord, Lord Bellamy, would have been able to be present today, but unfortunately circumstances have made that impossible, so I am afraid noble Lords are going to have to hear from me again.
Lord Macdonald of River Glaven (CB)
My Lords, first, I agree with the noble and learned Lord that this is a critical amendment. In my limited experience of sitting as a recorder, there is nothing a judge hates more, or fears more, than a litigant in person, because it makes the case longer, more difficult and more complex to manage. I commend to your Lordships a recent paper published by the Nuffield Family Justice Observatory on the impact of litigants in person in the family courts relying on AI for their pleadings and arguments and refusing to accept the rulings and judgments of judges on the basis that Claude says something different. I would foresee a quite chaotic situation in the magistrates’ court were there to be an absence of lawyers to represent defendants facing terms of imprisonment.
The noble and learned Lord is quite right that, if there is a disparity in payment between the magistrates’ court and the Crown Court, those who currently have mixed practices will stop going to the magistrates’ court and people will stop practising in the magistrates’ court. I suggest strongly to the Government that the sort of equalisation of fees that this amendment speaks to is absolutely essential if their reforms are to work.
Lord Shamash (Lab)
My Lords, I declare an interest as a founding partner of Edwards Duthie Shamash. We are principally a legal aid firm with a substantial commercial aspect. I have been in the legal aid business for a very long time: more decades than I care to remember. The problem we have now is that we are operating under a graduated-fee system and a fixed-fee system. Under a fixed-fee system, you can find yourself doing an awful lot more work, and you are stuck. Just before this debate started, I spoke to one of the partners, who said that you can get down, sometimes, as low as £10 an hour. The average rate, and the fixed rate, is about £60 an hour in the magistrates’ court. It is a bit higher in the Crown Court. It was mentioned that, being a lawyer, you sometimes make advocate because you want a bit more money. In this case, I would certainly welcome this amendment.
One of the other points that has been touched on is recruitment. Recruitment of young lawyers to do crime is incredibly difficult. I speak from personal experience. I hope it does not reflect on my firm, but we have had adverts out for a very long time for young criminal lawyers. You are competing with the salaries that you can earn in the City: over £100,000 for a newly qualified lawyer. We cannot even begin to think about paying that sort of rate. It is very difficult, because somebody who comes to do this work has to be politically, with a small ‘p’, very committed to the work they are doing. It is extremely difficult to find the right sort of person to do that. Not least of which, these days, most students who have gone through the education process have ended up with enormous debts. Many noble Lords will be aware of this, having grandchildren or whoever who are at university ending up with considerable debts to be paid at the end of their training. So this is incredibly serious.
The noble and learned Lord, Lord Thomas, asked: what are we doing with this? We are going to find ourselves very short of young criminal lawyers. We can see that ourselves. What is going to happen then? Coming back to the debate we had earlier about the number of people waiting to come to trial in a magistrates’ court, sometimes, even at the current time, the wait is two years. In the Crown Court, we have cases that are waiting to be heard in three years’ time. It is complete madness. What is going to happen? I am genuinely very concerned at the situation that we are now confronted with.
Baroness Jones of Moulsecoomb (GP)
My Lords, I rise to speak to the remaining amendments in this group. Amendments 8, 67 and 75 essentially agree with the points made by the noble and learned Lord, Lord Thomas of Cwmgiedd. I draw the Government’s attention to their own equalities statement. It says that
“if more cases are dealt with in the magistrates’ courts, it is likely that an increased proportion of these defendants may be ineligible for legal aid when they would otherwise have been eligible if their case had been heard at the Crown Court”.
That is a pretty big admission, and I think it is something that we have to take into account. I hope that the Government will remember their own words, because it means that they are well aware that their reforms will mean more people going through the courts without a lawyer.
Many of us raised this at Second Reading. The income threshold for criminal legal aid in the magistrates’ court is much lower than in the Crown Court. As Justice points out, someone working full time on the minimum wage will not qualify for legal aid in the magistrates’ court. So the Government are moving more cases into a court where fewer people qualify for legal aid. They know this will happen. It says so in their own assessment.
Justice also points to research by Transform Justice, showing what happens when defendants have to represent themselves. They may not understand the charges, they enter the wrong plea, they struggle to question witnesses or fail to put forward information that could reduce their sentence. The consequences become even more serious when the Bill increases magistrates’ sentencing powers to two years in prison. Someone could face a substantial prison sentence without having had access to a publicly funded lawyer.
Victims can also be affected. In some cases, including assault cases, defendants are allowed to cross-examine witnesses themselves. More unrepresented defendants could mean more victims having to face questioning by the person accused of the offence. The Institute for Government has warned that unrepresented defendants can make hearings longer and more complicated. That does not sound like any sort of efficiency saving that the Government are hoping to achieve.
At Second Reading, the Minister acknowledged these concerns, and the Government’s answer was that they would look at the new income thresholds after the reforms had been implemented, depending on funding and operational considerations. I want to make sure that they are addressed before these huge changes come into effect. The Government know there is a problem; they know that more defendants will be in the magistrates’ courts, where the legal aid threshold is much lower, but they want to press ahead with the court reforms and leave the question of whether people can afford legal representation until afterwards.
The noble and learned Lord, Lord Leveson, and the Justice Committee have recommended increasing the income thresholds. My amendment, supported by Justice, would make sure that the financial eligibility criteria in the magistrates’ courts are brought into line with those in the Crown Court before the relevant provisions come into force. People should not lose access to legal representation simply because their case is now being heard in a different court. The Government should get this right before they bring in the reforms and not wait until people have already suffered the consequences.
Lord Jabbar (Lab)
My Lords, this is an area in which I am particularly informed by my own professional experience assisting defendants and appellants in court matters. I declared my interest at Second Reading as the executive director of the Death Penalty Project.
I want to make a small comment. Effective defence representation is not peripheral to an efficient criminal justice system; it is one of the things that makes the system efficient and possible. At Second Reading, I distinguished between access to court and access to justice. Getting someone to a courtroom more quickly is of limited value if, once they are there, they cannot obtain proper legal advice, understand the proceedings or participate effectively. There is also a practical point. A properly prepared lawyer can identify real issues early, deal with evidential problems, narrow what is evidently in dispute and help ensure that a case is ready to proceed. That benefits the defendant as well as victims, witnesses and the courts. When a hearing is ineffective, everybody loses: court time is wasted, victims and witnesses may have attended unnecessarily, and practitioners have to return, and another case then goes back to an already overcrowded list. This is why I have considerable sympathy with the amendments.
Criminal legal aid is not simply about remuneration; it is part of the infrastructure of the criminal justice system. If we want cases to be resolved earlier, we need effective advice early. If we want trials to proceed when listed, we need advocates who are available and properly prepared, and, as my noble friend Lord Shamash said, they must be sufficiently remunerated so as to attract lawyers to the work. We need the next generation of lawyers and practitioners who want to be involved in these kinds of cases. If more serious work moves into the magistrates’ courts, as discussed earlier, that work does not become less serious or less complex just because the venue has changed.
I support the Government’s objective in reducing delay. It is precisely because I want these reforms to succeed that I regard sustainable legal aid and effective representation as part of the reform programme.
Lord Marks of Henley-on-Thames (LD)
My Lords, these amendments are all designed to address a painful reality: that the proposals in this Bill will send more cases and more difficult cases into the magistrates’ court which would otherwise have been heard in the Crown Court. The fact is that the legal aid entitlement in the magistrates’ court is presently far more restricted than it is in the Crown Court. The rates are so low as to deter solicitors and counsel from undertaking work in the magistrates’ court, as we have heard from the noble Lords, Lord Shamash and Lord Jabbar.
It follows that defendants are at a serious disadvantage in the magistrates’ courts, and are consequently often unrepresented, which makes the cases more difficult and less likely to achieve just outcomes, making the disadvantage worse. That threatens in turn to stimulate a vicious circle of injustice flowing from this Bill. These amendments are entirely justified. The Government must address properly the issues of legal aid that they raise before this Bill comes into force.
Lord Keen of Elie (Con)
My Lords, these amendments address what has been universally acknowledged in this Committee to be a critical issue for the magistrates’ court and the implementation and possible success of these proposed changes to the law. The noble and learned Lord, Lord Thomas of Cwmgiedd, has therefore put forward an amendment which poses a simple and unambiguous question for the Government. I hope that we will hear from the Government a simple and unambiguous answer.
Lord Lemos (Lab)
My Lords, my answers are always unambiguous.
Amendment 6, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, would apply Crown Court legal aid financial eligibility rules and pay Crown Court-level fees to providers for triable “either way” offences, even if that case takes place in the magistrates’ court. Amendments 8, 67 and 75, from the noble Baroness, Lady Jones of Moulsecoomb, would extend the same financial eligibility criteria which were applied at the Crown Court to proceedings heard at the magistrates’ court, and provide for these changes to come into force before implementation of the Bill’s wider provisions. The noble Baroness laid some emphasis on that, as did the noble Lord, Lord Marks, and I heard the strength of feeling on this subject at Second Reading.
These four amendments are not limited to triable “either way” offences impacted by the removal of the right to elect a Crown Court trial. The effect would therefore be to apply Crown Court rules on legal aid financial eligibility to all defendants and cases in the magistrates’ court, including all summary-only cases. Under current financial eligibility rules, the majority of defendants—something that the noble Baroness, Lady Jones, referred to—charged with triable “either way” offences would be eligible for legal aid at the magistrates’ court. That tells you something about the social make-up of who appears in our magistrates’ courts.
For individuals who do not financially qualify for legal aid, there are already measures in place in the magistrates’ court to provide support. The hardship review mechanism can provide legal aid to some individuals who fail the means test but face higher than usual outgoings. In addition, unrepresented defendants may access the free magistrates’ court duty solicitor scheme, which may provide legal representation at the first hearing for those charged with an imprisonable offence.
None the less, we have been listening carefully to the concerns raised at Second Reading around eligibility and the potential impacts of reform on litigants in person, as mentioned by the noble Lord, Lord Macdonald. We have accepted in principle the recommendation of the noble and learned Lord, Lord Leveson, to increase the legal aid income thresholds at the magistrates’ court. In so doing, we recognise the importance of ensuring that legal aid is available for those who need it most, and the financial eligibility thresholds reflect this. I think that is fairly unambiguous. Once court reforms introduced by the Bill have been fully implemented, we will be better placed to take final decisions on income threshold levels, subject to future funding decisions and operational considerations. I have no doubt at all that the noble Baroness, Lady Jones, the noble Lord, Lord Marks, and others will press us on that point, but I am repeating the formulation that I used at Second Reading. We are also examining the measures that are currently in place for litigants in person and considering additional options for support.
I think noble Lords would acknowledge that amendments to align Crown Court and magistrates’ court eligibility would add complexity to the magistrates’ test through the introduction of a contributory system which assesses income and capital. This may negatively impact efficiency in the magistrates’ court and create additional administrative burdens. I spent some time this morning reading about how this works, and it was interesting.
In relation to remuneration for legal aid lawyers in Amendment 6, I am afraid that, with regard to the point made by my noble friend Lord Shamash, I do not think that we will be paying legal aid lawyers the same rates as lawyers in the City are paid—but then the job is much more interesting. I say that as someone who worked in the City for quite a long time.
Fee schemes are specific to the court where the case is heard and are designed to reflect the differing processes and nature of work in the magistrates’ court and Crown Court. The magistrates’ court fee scheme is designed to be simple to administer and for providers to use, reflecting the greater speed and case volumes through that court. There is also a non-standard fee route for cases in the magistrates’ court, which ensures that work on complex cases is appropriately remunerated. I hope I have set out where the Government stand on that and demonstrated that the Government have listened. With that, I would ask the noble and learned Lord, Lord Thomas, to withdraw his amendment.
Lord Thomas of Cwmgiedd (CB)
My Lords, I am grateful to all noble Lords who have spoken of the importance of this point—the noble Lords, Lord Macdonald, Lord Shamash, Lord Jabbar, and Lord Marks of Henley-on-Thames, the noble Baroness, Lady Jones of Moulsecoomb, and the noble and learned Lord, Lord Keen. Although we welcome what the Minister has said, we all regard it as imperative that, if the more serious work is being transferred, that should be done simultaneously with a change to legal aid. That is critical. We cannot wait, because it will cause problems in the magistrates’ courts and with magistrates’ courts recruitment—a point particularly made by the noble Lord, Lord Shamash. It is getting very much more difficult to find people prepared to do magistrates’ courts solicitors’ work. Of course, the Government could not afford to pay City rates; that is out of the question. But at least pay a decent rate for the hard job people do, to encourage them to come into that part of the profession. I agree with the Minister: much of the work is far more interesting than working on infinitely uninteresting schemes in the City.
I wish also to thank the noble Baroness, Lady Jones of Moulsecoomb, for her amendments and also for pressing the point about getting eligibility brought into line. Maybe the answer is to look at the complexity and see whether that can be simplified as well. With those remarks, I thank noble Lords and beg leave to withdraw the amendment.
Viscount Hailsham
Member’s explanatory statement
This amendment would limit judge-only trials to situations where all of the defendants are to be tried on indictment for one or more offences listed in Schedule 3ZA.
Viscount Hailsham (Con)
My Lords, in moving Amendment 9, I shall also speak to a number of the other amendments I have tabled in this group. I apologise for the fact that there are 14 such other amendments. I will therefore, I am sure, be forgiven if many of my arguments are summarised very briefly and if I rely on the explanatory notes that appear on the Order Paper.
Behind this set of amendments, of course, is one’s anxiety about “judge only” trials. That is indeed a very important issue that we are going to address, I think, in group 6. I share the very serious reservations about “judge only” trials, but the arguments will be deployed in group 6. I shall not deploy them now. But it would be prudent, against the possibility that the Government will press ahead with “judge only” trials in certain circumstances, for this Committee to consider how faults and omissions within the present Bill can be remedied. That is what my raft of amendments is designed to achieve.
I will start with Amendment 9, which is the lead amendment in this group. It is designed to ensure that “judge only” trials can be ordered only when all the defendants on the indictment are charged with the relevant offences. It seems to me to be rather hard that a defendant who is not himself or herself charged with a relevant offence should be swept up into a “judge only” trial, because other defendants are. That seems to me to be bad news and I would like to see it addressed by my amendment.
I turn to Amendments 14 and 15. I am deeply concerned with the proposition that a “judge only” trial can be ordered when a court is satisfied that, because of the length or complexity of the trial, it is more appropriate for the trial to be conducted without a jury. As a Minister of very long standing—I was a Minister for 13 years—I know that the word “appropriate” is a weasel word. It is used by Ministers, the Executive, civil servants and, no doubt on occasion, the judiciary to cover anything they want it to cover. It is a bad word to use and it is not, in my view, a judicial word.
What I have tried to do in Amendment 14 is ask myself what one is trying to address. I suggest what one is trying to address is when the length or the complexity of the case is such that it cannot reasonably or fairly be tried. That is different from “appropriate”. It is a judicial concept, a concept of justice, which I very much hope would commend itself to your Lordships’ Committee.
Rather similar observations arise in the context of my Amendment 15. Looking at the substantive bit of the Bill, we see that judges are required to determine whether it is not in the public interest to hold a jury trial. But, again, the “public interest” is not really a judicial concept. What we should be doing is determining in this context whether it is fair to a defendant to have a jury trial. That is what Amendments 15 and 16 are designed to do. I hope that that might commend itself to the Committee.
I am conscious that I am standing on a raft of many amendments, and I do not want to weary the Committee. So, I will just summarise in brief the other amendments in my name, pointing to the explanatory note wherever possible. Amendment 18 is a procedural amendment designed to ensure that a defendant can make full representations, oral and written—a hearing if required—when this issue has to be determined. That seems to me to be wholly fair: very difficult to argue against, I would think.
Amendment 19 concerns the filter of the Lord Chief Justice or a nominated judge; this, again, is a very useful protection. Amendments 20 and 28 concern rights of appeal—I know the noble Lord, Lord Marks, is at one with this. Amendments 23 and 24 deal with the circumstances in which an order can be revoked. Again, we should be considering questions of fairness and justice; that is what my amendments are designed to do.
I come to Amendments 26 and 27. These, though procedural, are very important. The purpose is to ensure that a defendant has an early statement of the outcome of the proceedings. In the general run of cases, the defendant is entitled to know the outcome within not more than seven days of the conclusion of the proceedings, and they are entitled to a full and proper written judgement. These procedural requirements are not apparent on the face of the Bill.
Having gone through my amendments at a bit of a scamper—it was a broad raft and I am conscious that 14 amendments is an awful lot—I conclude by expressing the hope that some at least might find favour in the eyes of this Committee. I beg to move Amendment 9.
Baroness Chakrabarti (Lab)
My Lords, I support the noble Viscount, Lord Hailsham, on his raft—if that is what it is—and thank him for the succinct and self-deprecating way that he spoke to all his amendments. I have signed some and not others, but that should not be indicative; I support him generally.
The public interest is a much broader and more amorphous concept than the interests of justice. This Committee is in the justice business. The public interest is about the economic well-being of the nation, national security, et cetera. Given the Government’s arguments for this Bill, and given what the noble and learned Lord, Lord Thomas of Cwmgiedd, said about “judge alone” trials, the front door and the back door, let us be mindful that this is not the magistrates’ courts, which have the lay element; this is the “judge alone” trial. It should at least be about the interests of justice rather than some broad, rather vague, very difficult to probe—let alone review or litigate—concept of the public interest.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group I have Amendments 17, 21 and 25. All these amendments are against the background that “judge alone” trials in the Crown Court are intended by the Bill as drawn, subject to a later debate, to be as per the list of offences in part 1 of the new schedule in Schedule 1. This is restricted to cases of financial crime that are genuinely of real complexity or inordinate length.
I say at the outset that there are many cases of serious and complex trials, some of substantial length, which in the end turn out to involve what I would characterise as jury issues. These are cases where the shape of the fraud or the scheme involved, usually to get substantial sums of money, may be difficult but not so difficult that a competent prosecution team could not present and explain it using sensible presentational aids and technology—not Claude, I hasten to add—to a jury. It is dangerous of us to underestimate the collective understanding of juries. Certainly, 12 heads, which I said are better than one, involve a collective decision-making and mutual information-giving exercise. They discuss the case in the jury room as it is going along. In the end, I do not believe that they miss much.
My point is that, once the nature of the fraud is understood, questions of the guilt or innocence of individual defendants, on individual counts on the indictment, even usually boil down to very human questions of fact. These are essentially jury questions: did he sign that document? Did she tell him that she knew what he was doing? Did she know what he was doing? What did he know or believe? Was he or she dishonest in what they did? At Second Reading, I heard those who said that dishonesty is essentially a matter for a judge, but I believe that questions of dishonesty in serious cases are generally better tried by juries. Then there is the weighing-up exercise: what is it in the evidence that drives the conclusion on any given point?
Frankly, I do not believe that there are many cases that cannot fairly and comprehensively be presented to a jury. If any are to be tried by judge alone, they should be genuinely of such complexity and length that they are unlikely to be comprehensible to a jury. I say that those cases are rare; it is indeed possible that they exist.
We believe that the decision to try a case with a judge alone should be appealable. Although there seems to have been some antipathy to appeals from magistrates’ allocation decisions, this is a decision of a different quality altogether. It is a decision on whether a trial of huge complexity and length should be tried by a jury or a judge alone. That ought to be reviewable. It is of the essence of our system that wrong decisions in serious cases, on serious questions of substance, should be reversible on appeal. Whatever the criteria for “judge alone” trials—if they happen—are ultimately to be, these are serious decisions of substance. A wrong decision should not, in justice, be allowed to stand. I support the noble Viscount on the basis that decisions should be appealable. That is my Amendment 21.
Furthermore, if a defendant is convicted, and then if, following that conviction, when the judgment is available—let us remember that there is bound to be a written judgment in “judge alone” trials—it is apparent that the decision on the trial being by a judge alone is found to be wrong, then that decision on the mode of trial should be appealable at that stage. That is the aim of my Amendment 25. Those amendments are sensible and certainly necessary in the interests of justice.
Baroness Chakrabarti (Lab)
I am interested in probing the noble Lord’s remarks about judge points and jury points on questions of dishonesty. I wonder whether he shares my concern, if there were to be a perception that white-collar crime is for the judge alone while other people’s crimes of dishonesty are not, about trust and confidence in the system and equality before the law?
Lord Marks of Henley-on-Thames (LD)
Yes, I share that concern. Actually, it goes further. I do not believe that issues of dishonesty divide neatly into white-collar issues and other issues. Just as juries are told that dishonesty is a matter for them, that they know the ordinary meaning of dishonesty and they recognise it when they see it, I believe that is true of juries at any level. Ultimately, when questions of dishonesty are tried in relation to white-collar crimes that may be complex, ordinary citizens, and a jury of ordinary citizens, can nevertheless tell whether that individual defendant is being dishonest just as well as a judge can. That is certainly so when the wisdom of 12 is combined.
Baroness Hamwee (LD)
My Lords, I support the noble Viscount and the noble Baroness, Lady Chakrabarti, on the distinction between the public interest and the interests of justice. The public interest is a matter of political judgment while the interests of justice are what we are here to serve. I thank both noble Lords—the noble Baroness being a noble Lord for this purpose—for raising this.
I also agree with the noble Viscount about the term “appropriate”. This term has seemed to me, over many years, to have been often used by social workers. I do not intend to disrespect them for this; it is often useful when they use it. I do not regard it so much as a weasel word but rather as one that is appropriate to certain contexts, but not this one.
Lord Keen of Elie (Con)
My Lords, I have lent my name to Amendment 10, but I recognise that my noble friend Lord Hailsham has provided what he describes as a raft of amendments which are intended together to establish a bulwark that will give a stronger safeguard against the removal of jury trial. In that sense, they are a secondary defence to the provisions in this Bill. We would rely on the primary defence, which is the retention of jury trial as it presently exists, but I acknowledge the reasoning behind my noble friend’s amendments—I just hope they will not be required because the Government will see sense with regard to the primary position.
We will come on to discuss related issues in the next three groups, and in particular whether we should see these fundamental changes to the justice system coupled with Henry VIII powers as reflected in Schedule 1 to the Bill. This is an ecosystem. All these elements are interconnected and if you interfere with one, you have an impact on the other.
Finally, I agree with the noble Baroness, Lady Hamwee, about the important distinction between public interest and the interests of justice. I would add only that the interests of justice can be seen as being orientated towards the interests of the defendant in a way that the public interest will not necessarily be, and therefore that distinction is important.
Lord Lemos (Lab)
My Lords, first, I thank the noble Viscount, Lord Hailsham, for meeting me beforehand and setting out his views in trenchant form, not just on this set of amendments but on the Bill as a whole. All these amendments seek to add new safeguards to Clause 3: “judge alone” trials for complex or lengthy fraud and financial cases. That clause already contains robust and careful safeguards, and it is important that I go through them. Cases can qualify for the policy only if they involve a scheduled fraud or financial offence and do not involve excluded homicide or indictable-only sexual offences. That is a very important exclusion. A preparatory hearing must have been ordered for the case, something that can happen only to manage exceptional seriousness, complexity or length—to the point that the noble Lord, Lord Marks, made. The case must be sufficiently complex or lengthy that jury trial cannot be in the public interest, and judges can decline to make an order for any other reason where jury trial is more appropriate. It is Crown Court judges who will be making these decisions and the Government’s view is that we trust them to apply the test set out by this policy properly.
Amendment 9 would allow an order to be made only when all co-defendants in a multi-defendant case were charged with an eligible fraud or financial offence. Amendment 10 would mean that every defendant would have to be charged only with fraud or financial offences. Ancillary offences, such as theft, would make a case ineligible—the link with theft is important. Defendants involved in the same alleged criminal schemes are often tried together, even though they are charged with different offences. Defendants in large-scale fraud and financial cases often face related charges, such as theft, that should, rightly, not be scheduled offences on their own. Severing charges, as these amendments suggest, or defendants, would not in the Government’s view be an efficient use of court time by requiring another separate trial. These amendments could encourage artificial charging decisions or unnecessary changes to the indictments to circumvent the statutory test.
Lord Marks of Henley-on-Thames (LD)
My Lords, before the Minister sits down, and certainly before the noble Viscount, Lord Hailsham, stands up, I would just question the Minister’s assertion that, because there is an appeal against a conviction that would continue, Amendment 25 is otiose or not needed. Under new Section 42A(5) on page 6 of the Bill, there is no right of appeal against a decision to make or not to make an order. If it is intended that a decision to make or not to make an order under this section could be raised as a ground of appeal in the Court of Appeal following conviction, how is that clear in view of the bar on appeals under new subsection (5)?
Lord Lemos (Lab)
The noble Lord makes an interesting and important point, and we can certainly discuss it. However, as I have said, the Government’s view is that the designation of these trials is protected very carefully and thoroughly, and that should be sufficient.
Viscount Hailsham (Con)
My Lords, after 40 years in Parliament, I have come to revere the guidance given by St Brevita and the wise words of Father Concision, both of whom are doubtless known to the present occupants of the episcopal Bench, so I shall confine myself to three points. First, I thank the noble Baroness, Lady Chakrabarti, for her support. I always welcome it; we very frequently think along the same lines. Secondly, I am glad that Members of your Lordships’ Committee focused on the words “appropriate” and “public interest”. That is a matter of some concern and perhaps one that we should refer to later. Lastly, these amendments—all the occupants of the raft—raise a number of serious issues which we may well revert to on Report. That said, I beg leave to withdraw the amendment.
“(2A) The court may make an order under this section only on the application of all of the defendants, and may not make such an order of its own motion or on the application of the prosecution.”Member’s explanatory statement
This amendment would provide that an order for trial without a jury could be made only on the application of all of the defendants, and not of the court’s own motion or on the prosecution’s application.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group is primarily concerned with one central proposition which was raised at Second Reading, not really opposed and notably supported by the noble Lord, Lord Carlile of Berriew—that it should be open to a defendant to opt for a “judge alone” trial in the Crown Court where the trial would otherwise be a trial by jury.
Amendments 12 and 13 are alternatives. Amendment 12 would prevent an order for a “judge alone” trial being made on the application of the prosecution or by the court of its own motion. We all spoke at length on that in the previous group. Amendment 13 is different: it would permit a defendant to apply for a “judge alone” trial in a case which comes within Clause 3, even if otherwise the trial might have been tried by a jury.
There may be cases—we can all think of some—where a defendant might think that a trial by judge alone might be more objective than a jury trial, notably where there has been extensive pre-trial publicity and the defendant might feel prejudiced by its effects. Amendment 32 in the name of the noble Lord, Lord Carlile, mentions other factors that might affect the interests of justice. Exceptional complexity is one, although in a sense that is tautologous because within Clause 3 exceptional complexity ought to be a given. Another factor is the risk of jury intimidation. National security considerations may appear far-fetched but, in view of some of the things going on at the moment in the national security field, they may be important. In such a case it is argued, and I think not seriously gainsaid, that it would be illogical to deny the defendant the right to seek a trial by judge alone even where the case would otherwise come under Clause 3. I beg to move.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will speak briefly to the amendment in my name, supported by the noble and learned Lords, Lord Phillips of Worth Matravers, Lord Burnett of Maldon and Lord Bellamy. Ours is a much simpler amendment: it seeks to enable a defendant, where the conditions are met, to apply for trial by judge alone. If the judge is satisfied that it is in the interests of justice, the defendant should be accorded that right.
There are parts of the Commonwealth, in particular Canada, where defendants like trial by judge alone. If a defendant wants a trial by judge alone, why should he not be entitled to it, if the judge thinks that it is in the interests of justice? The protection of a jury trial is for the defendant’s protection, by and large; the public interest, if the judge were to give accord to trial by judge alone, would be satisfied by detailed reasons being given. There may be many reasons why a person would like a trial by judge alone.
It seems to us that this amendment should at least be considered, if a defendant wants it and if it is in the interests of justice. The reason for the latter restriction is to counter the point made by the Government that it is for the court to decide the mode of trial. If the court is entitled to decide it by reference to the interests of justice, then it is the court’s decision.
There is a second reason for that. It would be possible, as the amendment from the noble Lord, Lord Carlile, sets out, to specify a number of circumstances. Generally, in my experience, if we are embarking down a route such as this, it is better not to lay down tramlines or even fairly tight guidelines but to allow the law to be developed by the courts. However, there are cases where someone may properly decide that this is the case they would like heard by a judge and it is not a case where it would not be in the interests of justice for that request to be acceded to. I find it difficult to see why, if someone wants a trial by judge alone and the judge, in accordance with principles that have developed, decides that that is right, he should not be entitled to that if it is in the interests of justice.
Lord Phillips of Worth Matravers (CB)
My Lords, perhaps I may add a word in support of this amendment. Most who support the right to trial by jury do so with regard to the interests of the defendant. That is implicit in the term “right to jury trial”. The right protects the defendant from the politically motivated prosecution or the judge who favours the prosecution.
The Bill proposes removing the right to jury trial in the case of fraud trials and other trials that are going to be lengthy and complex. It does so because of the procedural disadvantages that flow from having to present to the jury a case that involves complex financial transactions that may well fall wholly outside their experience. Those disadvantages are also felt by the defendant. A trial that goes on month after month is a nightmare for them.
There is a further point: a jury trial ends with a simple verdict, guilty or not guilty, but a “judge alone” trial ends with a reasoned judgment. When I was a judge, I asked a number of my colleagues whether, if they were wrongly charged with serious fraud, they would prefer trial by judge or trial by jury. Unanimously, they opted for trial by judge. That choice reflected in part a concern that a jury might not be able to understand the facts relating to the alleged offence, but it was also motivated by a desire for a reasoned judgment: if they were going to be convicted, they wanted to know why. Why should a defendant not have an option to choose trial by judge alone if, as our amendment proposes, trial by judge alone is in the interests of justice?
Lord Carlile of Berriew (CB)
My Lords, I am grateful to my two noble and learned friends who have just spoken and to the noble Lord, Lord Marks, for their comments in support of the principles behind these amendments. I should say that my Amendment 32 goes further than the other amendments because it is intended to allow such applications to be made by a defendant for trial by judge alone, and not just in lengthy and complex cases.
My amendment asks for a new right to apply for—not to select but to apply for—trial by judge alone. Many noble Lords who have spoken in the debates today and at Second Reading strongly support the right to elect trial by jury. If we have such enthusiasm for the right to elect trial by jury, why not allow defendants to elect trial by judge? That would set out a level playing field. It seems entirely logical and something that we have overlooked. Speaking only for myself to this extent, I have been waiting a long time to find a Bill in which the proposal in Amendment 32 is in scope. It is not entirely dependent—it is not dependent at all—on the rest of the Bill, but here we have the vehicle to create this new right that would save time and money and give a greater sense of justice.
In a very dusty basement in my inn of court, Gray’s Inn, there were two shelves full of the manuscript notes of every single case that I ever did from 1971, when I started practising at the Bar. Later, they were reduced to computerised form, which really put me in my place, because the expert who reduced them, every word of them, managed to put them on a single stick, which I have in a drawer at home. I am able to access this very personal library of all the cases that I have done. I do not do criminal trials any more, but one thing that I always used to do was to make a note at the end of my notes about what I as an individual—not just as a barrister but as a person—thought was the right or wrong result of the trial. On a number of occasions, only a few cases but significant ones, I placed words like, “Wish we’d been able to have judge alone”. In a number of others, I placed the words, “Made a mistake —we did not apply for trial in the magistrate’s court and should have done”.
There are many cases where trial by judge alone, or indeed trial not by jury but in the magistrate’s court, is not only in the best interests of the defendant—and probably of the witnesses and victims, because of the reduced machinery required in presenting the evidence in court—but is actually in the interests of justice. In one of those cases, an appeal took place, in 1988—16 years after I was junior counsel in a murder case in which our client was convicted. There were no court records whatever, but I was able to provide from my library of notebooks the only record that the Court of Appeal could use. I had to redact a limerick that I had written about a rather pesky judge, but otherwise it was the record of the case. It was not a case in which I would have advised asking for trial by judge alone, but I had written at the end, “Maybe without the jury he would have been acquitted”. It took 16 years for him to be acquitted by the Court of Appeal, and there are such cases.
I have great respect for jury trials. As a prosecutor or as a defender, if you like that sort of thing, there is nothing like making your story the one that the jury hear, enjoy and adopt. An advocate in jury trials is working with a jury; it is quite a different discipline from working with a judge. When you have a trial in front of a judge alone, you have a much more mechanical process—that is not to criticise judges for being mechanistic, but it is just a fact—in which the judge looks at the issues and tables them on one side of the page, as it were, and on the other side of the page tables the issues that have to be determined by the court. I am looking at the noble Baroness, Lady Morris of Bolton, opposite, whose husband is an experienced and highly respected judge in the north-west of England.
I have great respect for jury trials, but for some cases there are disadvantages about them. There is the potential lengthening of the case in front of a jury. I once did a case in London in which my client, a respected chartered accountant, was accused of fiddling the VAT in relation to some somewhat dubious services provided in a basement club somewhere near Soho. He had to wait a very long time to be acquitted in a case in which the judge quite plainly, if trying the case alone, would have said, “There just isn’t the evidence here. Why have we wasted all this time?”
As well as potential length and complexity, there are issues that have already been mentioned such as the publicity, the unforeseen consequences of publicity and, above all, the absence of written reasons for a verdict. As I mentioned at Second Reading, in Northern Ireland there are courts that deal with cases—admittedly, a special kind of case, cases involving terrorism issues and matters arising from the Troubles—that are heard by judges. I reviewed them for the Government during the time that I was Independent Reviewer of Terrorism Legislation. The acquittal rate in those courts in Northern Ireland is higher than the acquittal rate in front of juries in so far as you can describe comparable cases. With a judge in an appropriate case, you have a reasoned judgment explaining why the judge has reached a particular decision. That is applicable especially in historic sex cases and in accountancy-heavy cases, and, as Northern Ireland has shown, it can often leave a defendant more satisfied that he or she has had a fair hearing.
I suggest that this is a simple amendment which would probably save some time, which would ensure that the right to jury trial was extended or removed in a proper way and which would add something creditable to our system which is replicated in some Commonwealth countries that have almost exactly our systems of trial.
Viscount Hailsham (Con)
My Lords, I want to make only two brief points. First, I find the arguments made by the noble Lord, Lord Carlile, very compelling. I would like to associate myself with them, and I very much hope that the Minister will give them serious consideration. Secondly, and differently—I hope it will not be thought by the Committee that I am making an unfair point—I revert back to group 4, where we discussed the meaning of the words “appropriate” and “public interest”. I am sure the Minister will note that, in Amendment 32, tabled by the noble Lord, Lord Carlile, he used the phrase “interests of justice”, and in Amendment 22, the same phrase was used by the noble and learned Lord, Lord Thomas. Neither used the word “appropriate” and neither used the words “public interest”. I wonder why.
Baroness Chakrabarti (Lab)
My Lords, I find myself in the quite awkward and unhappy position of having serious reservations about amendments proposed by noble Lords and noble and learned Lords who I so respect.
In the context of the proposed scheme, whereby there will be no right of election in “either way” cases for jury trial any more, it is proposed that there should be a right not to elect for a “judge alone” trial but to apply for one. The arguments have, of course, been put eloquently. However, I ask the Committee to think about how this might be received. I do not need to pepper my brief comments with references to particular high-profile cases, recent or historic, but how might it be received if, for example, in a high-profile case of misconduct in public office, a sex-offence case, or another case involving people of significant standing, around which there perhaps has been some publicity, they apply for a “judge alone” trial rather than face 12 members of the public? How might that be received in such a high-profile case, in the light of what I suggest is a current crisis of trust in democratic and rule-of-law institutions in this country? I ask the Committee to reflect for a moment on how it might go down.
Further, in the interest of protecting the judiciary, how might it be if, in response to one of these applications in a high-profile case—it could be fraud, misconduct in public office, sex offences, et cetera—it is decided to welcome that application and agree that the case be heard by a judge alone? In the case of a high-profile acquittal, with which no doubt the defendant would be very happy, what protection will there be for the judge alone, and for the judiciary in general, given the context of how the public have been feeling in recent years about the institutions of our state? I ask the Committee to pause and reflect on that. That is my concern.
Lord Leveson of Liverpool (CB)
My Lords, I had not intended to speak at all in this debate. My views, for what they are worth, are set out in 1,000 pages, all available to your Lordships to consider to such extent as they wish. However, I must deal with the comment made by my friend the noble Baroness, Lady Chakrabarti, in relation to high-profile cases. The judge is not bound to accept a decision to try a case alone, and I could well understand circumstances in which a judge would feel that it was not appropriate—for all the reasons that the noble Baroness identifies—to try a case alone.
This is a system which is well tried in Canada, where there is a right of trial by jury, and overwhelmingly defendants choose to be tried by judge alone. It is available in Australia and New Zealand—other common-law countries that have developed their jurisprudence based on ours. I am afraid it is all set out in the report and so I will say no more. It is a matter, of course, for the Government to consider how they proceed, as they have decided how to proceed with the other recommendations I made in my report. However, I offer that view on the basis that, at the end this week, I will leave the country and will not be back until Christmas.
Lord Keen of Elie (Con)
My Lords, the temptation to leave the country is there, but I shall seek to resist it.
The amendments in this group—in particular, Amendments 12, 13 and 22—appear to us to be intended to try to find a halfway house that would give some protection to the right of jury trial, while giving the Government some opportunity to reduce the number of cases that are tried by a jury. We disagree in principle with the Government’s overall approach, and so it would be difficult, and indeed inappropriate, for us to support the ideas that underpin these proposed amendments. It is in these circumstances that we express no particular support.
I note the point made by the noble Lord, Lord Carlile of Berriew. It is an issue that has been raised before and that might be subject to further consideration in the light of the evidence from other common-law jurisdictions, but it is not one that immediately arises in the context of this group.
Lord Lemos (Lab)
My Lords, Amendments 12, 13, 22 and 32 all relate to allowing defendants to apply for trial by judge alone in the Crown Court. Amendments 12, 13 and 22 would introduce a role for defendant applications into Clause 3, which provides for “judge alone” trials in certain complex or lengthy fraud or financial cases. Amendment 32, from the noble Lord, Lord Carlile, would allow any defendant in the Crown Court to apply for trial by judge alone, so that goes significantly further, and he set out the case very eloquently.
Amendment 22 would allow defendants to apply for the court to make an order under Clause 3. The court would have to apply an “interests of justice” test —the noble and learned Lord, Lord Thomas, made that clear—before accepting an application. All co-defendants in a multi-defendant trial would have to apply, and the prosecution could not apply. Amendments 12 and 13 would make defendant application a mandatory condition of “judge alone” trials for complex or lengthy financial cases. The court could not move on its own to make an order, and neither could the prosecution apply.
Any defendant in the Crown Court would be able to apply for “judge alone” trial under Amendment 32. It is not limited to fraud and financial offences. The exact process would be set out in Criminal Procedure Rules. The court would determine the application by applying an “interests of justice” test, but must have regard to various matters including exceptional complexity, prejudicial publicity, national security considerations and other named criteria. I recognise that it is similar, as he has just said, to a recommendation made by the noble and learned Lord, Lord Leveson, himself.
However, the Government are unable to accept this proposal. The Government agree with the conclusion of the noble and learned Lord, Lord Leveson, that court choice, rather than defendant choice, should determine the appropriate mode of trial. This central principle runs through the Bill and we wish to maintain it, so I am making almost exactly the converse of the case made by the noble and learned Lord, Lord Keen, with the same sense of consistency.
The Government’s view is that we must redress the balance between defendant and victim. We have heard from victims that they feel the balance is currently tilted in favour of defendants, who get too much control over questions of venue or mode of trial, when victims have no say in this. Our reforms would achieve the right balance by placing the decisions on mode of trial squarely in the hands of the court. Decisions should be based on whether a case meets the statutory test, not the preference of a defendant.
Let me be clear that this is not to say that the views of the defendant would be absent entirely under Clause 3. Parties must be given the opportunity to make representations on a potential order and the court must take those views into account when determining whether to make an order.
I thank all noble Lords for a fascinating debate. I am sorry to hear that the noble and learned Lord, Lord Leveson, is leaving the country, but I hope we will hear from him again before he does; surely, it is not that bad. Given this position, I hope that the noble Lord, Lord Marks, will consider withdrawing his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to those who have spoken in this short debate. I am bound to say that, at the moment, I am disappointed by the position taken by the Minister. I can see his reasoning, but I am not sure that there is a great deal of understanding of the position of defendants or the arguments put particularly by the noble and learned Lord, Lord Phillips of Worth Matravers, and in relation to Crown Court trials generally by the noble Lord, Lord Carlile. I appreciate that goes much further than my amendments do. Nevertheless, that may be something we can continue to discuss. I would envisage further thought on whether jury waiver by defendants would not be appropriate in the Clause 3 cases. Meanwhile, I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment, and others in the name of Lord Marks, would ensure that only trials that would be both of sufficient complexity and length, with an agreed estimated length of at least 5 months, would qualify for trial without a jury.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group I have Amendments 13A, 13B and 15A. I have spoken on the principles associated with complexity and length in previous groups, and indeed my amendments echo my Amendment 17 in group 4, on which I have already spoken. The amendments would require, before a “judge alone” trial were ordered, that the case would genuinely be of sufficient complexity to warrant a trial by judge alone and would have a potential length of at least five months.
A great deal has been said about complexity, but I would just like to make some points about length. I do not accept that the likely length of a trial is itself any reason for abandoning a jury trial. First, it is the universal practice of judges to ask potential jurors when the jury is empanelled whether a very long trial would cause them serious difficulties. In the event of an affirmative answer from particular jurors, they are generally not required to serve for that trial. Indeed, I have never heard of a judge forcing a juror to attend who has serious difficulties on the ground of length and not accepting that reasoning.
Secondly, I suggest that jury expenses could be increased to permit jurors after a set number of weeks to serve on longer trials without significant financial disadvantage. If there were significant financial disadvantage, that would bring into play the judge forgiving the juror the right to attend that I mentioned earlier. Thirdly, I do not accept that length of trial, of itself, makes a trial unworkable in the absence of other factors. The very fact that we have had so many very long trials over recent years successfully tried and concluded with juries bears that out.
Finally, the length of trials can be, and I think often should be, better controlled by ensuring that charging decisions are made with a view to ensuring that unnecessary charges are not brought or pursued to trial, particularly when they would not lead to longer sentences, and evidence and the presentation of evidence are planned, contained and carefully organised with a view to keeping the length of trial under control. It is a relatively new idea that length of trial, of itself, should be a reason for dispensing with a jury and, frankly, without a great deal more evidence, I would reject that notion.
In view of our position generally on “judge alone” trials being ordered and, in particular, in view of what is going to be debated in forthcoming groups about the type of offences being added to, at this stage we will certainly be supporting the stand part propositions from the noble and learned Lord, Lord Keen, the noble Lord, Lord Wolfson, and the noble Baroness, Lady Jones, in this group. I beg to move.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, I should advise the Committee that, if this amendment is agreed, I cannot call Amendment 14 by reason of pre-emption.
Lord Carlile of Berriew (CB)
My Lords, I wonder whether at this point I might make a general point about the issues we are discussing. If ever I have seen a case of having your cake and eating it, this is it. Having listened to the Minister’s response to my Amendment 32, it is breathtaking to see the Government’s response to that compared with Clause 3. The amendment of Section 42A in Clause 3—on page 6 in subsection (4) —allows the prosecution and the defendant an opportunity to make representations. So the Government want to allow the defence, if they feel like it, to make representations that there should be a trial by judge alone. As it happens, I am with the Government on this; I agree with them on Clause 3 in broad terms. But I suggest that calling on principle as the justification for what they are doing in relation to these sorts of cases and the broader range of cases I referred to in my Amendment 32 is pretty hypocritical.
Viscount Hailsham (Con)
My Lords, I will say a very brief word or two on the Clause 3 stand part debate. I know that my noble and learned friend will advance the arguments very fully, so I will say only some very brief words. I am very concerned about the concept of a “judge only” case. I have practised off and on at the Bar for 50 years. I am bound to say that I was only ever a jobbing barrister; I do not claim to have the legal distinction of many noble and learned Lords in this Chamber. But, when I started at the Bar, and it truly was 50 years ago, there were many judges whom one did not want to appear in front of. One went to great effort, if one could, to move the case from judge A to judge B, because one knew perfectly well that judge A was likely to convict. That may well have improved a great deal, and I will accept that it has, but judges, even in an ideal world, become case-hardened, and one needs to keep that in mind.
I have one further point, if I may. I still practise as a legal assessor to regulatory panels connected with the healthcare profession. Those panels comprise three panellists. It is very much in my mind that frequently it is the collective decision of three that leads to a fair decision. Had there been just one panellist, I am conscious of many cases where I think I would conclude that the judgment was unfair—so I am very much in favour of collective decision-making. That is what a jury is about and not, of course, what the single judge is about.
Lord Sentamu (CB)
My Lords, like the noble and learned Lord, Lord Leveson, I had not intended to speak. Commonwealth countries have been referred to. I originally come from Uganda, and I did a bit of law there. Although Uganda follows the British system to the letter, it chose not to have jury trials. All the trials are done by judges, and in more serious cases the judge sits with two assessors. I have not seen any failure to deliver justice properly. The amendment from the noble Lord, Lord Carlile, is a halfway house, in which trial by jury is still affirmed but, in some cases, “judge alone” would be the order of the day. The same would be true for some senior magistrates’ cases.
Baroness Jones of Moulsecoomb (GP)
The noble and right reverend Lord has uttered what amounts to blasphemy in this Chamber. He said that tradition must be renewed. Had your Lordships’ Chamber been full, he would have been booed soundly. I think that tradition has to be renewed, but sadly this House tends to resist.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will briefly speak to Amendment 31 standing in my name and those of other noble and learned Lords. It seeks to add to the category of case that could be tried by judge alone, and we put it forward for consideration. There are offences that take a long time to try in the Crown Court: health and safety at work is one example, and environmental protection is another. We would have added trading standards had the legislation not been so complicated that the amendment would have taken a lot of paper to put all the bits of legislation down. We therefore put forward these two examples as illustrative only.
We restricted this amendment to cases where the defendant is a corporation. These are offences that, in effect, turn on issues of fact and expert evidence. If one is concerned only with a corporate defendant, the concerns about removing trial by jury are much less. As the whole Bill is directed at trying to improve our system of justice, can we look at this as another means of reducing pressure on the Crown Court? It is something that we ought to consider. We put this forward as one of the ideas that ought to be put into the melting pot, because we are surely in a melting pot situation. I will say no more about this amendment, but may return to it at a later stage.
Baroness Jones of Moulsecoomb (GP)
My Lords, I oppose Clause 3. I am particularly concerned that the Government are presenting it as a practical measure to tackle delays when the evidence suggests that it will make very little difference. The Government’s own impact assessment estimates that these provisions will save just 200 Crown Court sitting days a year—around 0.18% of current Crown Court capacity. That is a tiny return for such a huge change to the way that criminal justice is delivered.
There is also no good reason to assume that removing juries will necessarily make these trials shorter. Judges sitting alone will still have to consider the evidence and, in complex fraud cases, they may have to produce lengthy reasoned arguments. Juries also provide an incentive to keep trials properly focused and evidence clearly presented. Fraud cases often turn on questions of fact, including whether someone acted dishonestly, and juries are well placed to judge dishonesty. The independent review by Jonathan Fisher KC found that juries can deal with complex fraud cases when trials are properly managed and presented. He warned that removing juries from serious fraud trials would send the wrong message about the seriousness of fraudulent misconduct.
There is something else in this clause that really concerns me, which is the power of the Secretary of State to add further offences to the list. In your Lordships’ House we get a little fed up with statutory instruments that bring in more and more power to a Bill that we have already passed. Although these initial provisions cover financial crime and related offences, the scope can be widened through secondary legislation. It is a very real risk that restrictions on jury trial will extend beyond the cases the Government are currently talking about. Jury trial is not an obstacle to be removed whenever a case becomes difficult or lengthy. It is an important protection against the concentration of judicial power and a vital part of public participation in the justice system.
Lord Keen of Elie (Con)
My Lords, these amendments relate to issues we have already discussed at some length this evening, so I will try to keep my remarks relatively brief.
Clauses 3 and 4 would initially—I emphasise the word “initially”—apply to cases of fraud, meaning that those cases would be determined by a judge alone. As the noble Lord, Lord Marks of Henley-on-Thames, has already articulated, there are problems that the clause presents when one addresses exactly what is meant by “lengthy”, for example, or “complex”. Indeed, we believe that just because a case may be lengthy or just because there may be some element of complexity, that is not an appropriate basis for excluding a jury. I note that these provisions are not supported by the Bar Council, for example, or, perhaps more significantly, the independent reviewer of fraud, Jonathan Fisher KC, who has concluded that there is no justification for removing juries from fraud cases.
I began by referring to the fact that these clauses would “initially” apply to cases of fraud because, of course, there is no guarantee that the provisions would stop with fraud cases. We will be addressing that in the next group of amendments when we come to look at the Henry VIII powers and the issue of using statutory instruments, which was touched upon a moment ago by the noble Baroness, Lady Jones of Moulsecoomb.
We recognise that there is a backlog in the Crown Court. We recognise that there is also a backlog of cases in the magistrates’ court. However, we do not consider that this provision—which, as the noble Baroness, Lady Jones of Moulsecoomb, pointed out, would have a miniscule effect upon Crown Court sitting times—is the way forward in order to resolve those backlogs.
Lord Lemos (Lab)
My Lords, this measure is about reducing the ask we make of members of the public. I think we can all agree that being required to serve on a jury, not for the typical two weeks but for months, could have significant consequences for someone’s personal and professional life, and the impact is likely to be worse for someone self-employed or with caring responsibilities.
Clause 3 follows a long line of similar recommendations made by distinguished judges and independent reviewers, including Lord Justice Auld, in 2001, and Lord Roskill, as far back as the 1980s. Fraud and financial crime have continued to evolve since then, becoming enormously more complicated and with vast volumes of digital evidence, which are still dramatically increasing. That means that, for a very small number of cases, we need a new model that is fit for the modern age.
In relation to the comments made by the noble Baroness, Lady Jones, I want to make it clear that we are not suggesting this is going to save an enormous number of court days or reduce the backlog. This is about the jury experience, as I said in relation to the last group; it is not about jury competence. We do not think that there will be many of these cases. This is not about who can understand dishonesty better but about reducing the burden on ordinary people’s lives from sitting on long trials, with which I am sure the noble Baroness, Lady Jones, would agree, at least in principle.
I agree that disclosure and the case management of fraud cases must improve, and this Government have agreed in principle to many of Fisher’s part 1 recommendations and others made by the noble and learned Lord, Lord Leveson. However, even after effective case management, some trials are likely to remain highly complex or lengthy. This is for those exceptional cases—and I stress the word “exceptional”.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful for that comprehensive reply. I do not suggest that my amendments are the last word on this, nor do I accept that the absolutist position taken by the Minister is the last word. It may be, therefore, that, between now and Report, we can come to an accommodation. In that hope, I beg leave to withdraw my amendment.