Sentencing Council Guidelines
Lord Carlile of Berriew Excerpts(3 weeks, 6 days ago)
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Lord Carlile of Berriew
To ask His Majesty’s Government what steps they are taking in response to the guidelines recently issued by the Sentencing Council.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
The Lord Chancellor has been clear about her concerns since the guidelines were published: that they risk differential treatment before the law. We asked the Sentencing Council to revise them and were disappointed by its refusal to do so. As a result, yesterday, we introduced legislation to address the very specific issue with this guideline. The Sentencing Council has put the guideline on pause while Parliament, rightly, has its say.
Lord Carlile of Berriew (CB)
My Lords, will the Minister please tell the House, first, how can the proposed Bill justifiably be regarded as emergency legislation when, plainly, a non-statutory resolution is available? Secondly, will he tell us whether consideration was given to referring the issues to the Gauke sentencing review—which will report shortly—and, if not, why not? Finally, will he tell the House whether the Government have consulted the Women’s Justice Board, which the Minister himself chairs? Have they realised that the proposed definition of “personal characteristics” in the Bill is a recipe for repeated legal challenges; for example, as to whether “pregnant” or “postnatal” are proscribed definitions? I thank Joshua Rozenberg for those examples.
Lord Timpson (Lab)
We believe that the guidelines represent a differential treatment before the law and that is why we oppose them. We asked the Sentencing Council to revise them and, as I said, it did not. The Lord Chancellor has introduced legislation to address this specific issue. The Sentencing Council’s guidelines were due to come into effect on 1 April, so it is right that we moved quickly on this and have introduced legislation to address the matter at hand.
I am grateful to the Sentencing Council for the constructive conversations it has had with the Lord Chancellor. It paused the in-force date of the guideline until the legislation, which was introduced yesterday, takes effect. The Independent Sentencing Review that David Gauke is chairing is a much wider review of sentencing that is due to report in the coming months. We look forward to considering its recommendations carefully when they come out.
On the Women’s Justice Board, which I proudly chair, I have spoken to several members about this and I am grateful to them for sharing their views. To be clear, judges will continue to be able to request pre-sentence reports in cases where they already would; for example, those involving pregnant women, young people or domestic abuse.
Crown Court Criminal Case Backlog
Lord Carlile of Berriew Excerpts(1 month, 1 week ago)
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Lord Carlile of Berriew
That this House takes note of the Crown Court criminal case backlog, and the impact of delays on reliability of evidence, experience of victims and fairness of proceedings for defendants.
Lord Carlile of Berriew (CB)
My Lords, it is an honour to introduce this debate on the troubling issue of the backlog in the Crown Courts. I am grateful to those who have indicated that they wish to speak in this debate, many with extensive knowledge of the subject. I am especially looking forward to the maiden speech of the noble Baroness, Lady Longfield. Her experience, skill and reputation concerning issues affecting children, including those who have in some way come into contact with the criminal justice system, go before her. I know that she will have very important contributions to make in your Lordships’ House, today and in the future.
In recent days the Government have made a welcome announcement, which was repeated in your Lordships’ House. They indicated that their attention is focused on the subject of this debate and that they intend to take appropriate steps to reduce delays in the Crown Court—and without diluting justice.
They have appointed the distinguished retired judge Sir Brian Leveson to prepare recommendations on this difficult subject. Like Sir Brian, I was there when the Crown Court started in 1971, often appearing in cases alongside him. So was the noble Lord, Lord Thomas of Gresford. We may have been in the very same courtroom on the first day of the Crown Court. He and I, with the late Lord Hooson, were in a set of provincial chambers that produced as many Peers as Blackpool. Sir Brian’s many years in the Court of Appeal, as well as his practical experience in the Crown Court in the past, will have given him a view, as it were, from the bridge of the criminal justice system. I know that he will be paying close attention to the advice and help offered to him by those ratings who have spent the recent post-Covid years on the deck in the Crown Court, watching the delays accumulate.
I have some statistics. In September 2024 there were 73,105 open criminal cases, nearly double the figure for 2019. Seriously delayed cases included 21% for violence and 18% for sexual offences. Public funding for justice declined by 22.4% in real per person terms between 2010 and 2023. This is an unacceptable situation.
As it happens, last Friday I attended the valediction of a judge at the Maidstone Crown Court. His honour, Judge Philip Statman, is not a famous judge, but he has been an exceptionally good one, admired over 20 years in two Crown Courts. Those who were there took the trouble of attending because we knew that he was an outstanding member of the judiciary who should be listened to.
In a courtroom with standing room only, we congregated to say a reluctant farewell to someone who has been the very model of a modern circuit judge. He has tried everything—for example, murders—but, like all circuit judges, he has tried cases small as well as great. He has dealt with many of the short hearings that unreasonably and unnecessarily interrupt almost every judge’s working day and increase the backlog, but more of that later. He told us of how in his last three weeks as a circuit judge in what he described jocularly as “the bits and pieces court”, he dealt with 10 cases each day, 150 in his last three weeks—one judge, 150 cases. He commented that too much judge time is spent filling the roles of case progression officers and that:
“Every hour spent on administration is an hour away from judge craft, from getting it right for all those coming before the court to seek justice”.
Judge Statman was not grumbling, but he was giving a gentle plea for change to enable judges to judge in accordance with their oaths to do right to all manner of people. He described the effect of delay on victims as he had seen it, on survivors, on defendants and on those who conduct cases. As he said, we need more judges, more and competent criminal advocates and more sitting days. Otherwise, how does one explain inordinate delay to grieving families in cases of murder, death by dangerous driving or sexual abuse?
I adopt for this debate his reference to the case of R v ZA of 2023 in the Court of Appeal. Two experienced appellate judges commented:
“All too often judges’ lists allow too little time to prepare for a sentencing hearing, for the hearing itself and then for the judge to take time to reflect and to weigh up all relevant, often conflicting, considerations in arriving at the appropriate sentence”.
Today I received through an email a message from a judge who will remain anonymous, who described how they had done 30 hours of unpaid preparation for a case they were about to see in the Crown Court. In ZA, the Court of Appeal said:
“Court listing should ensure that there is sufficient time for the judge, even if that judge heard the trial and knows the case well, to read and consider all reports and to prepare sentencing remarks”
in age and intelligence-appropriate language. Judges must have time to think—wise and correct words.
Again, I reflect the views expressed by Judge Statman when I say, without any risk of serious contradiction, something about juries. The jury trial is the jewel in the crown of the Crown Court. As Statman reminded us:
“Rights took centuries to earn but they can be brushed away at a stroke”.
That we should remove the right of jury trial from some triable either-way cases to save time and cost is easily said but, in my view, neither proved nor justified. There is no need to replace jury trial for smaller cases. In any event, what is a small case? A small case to some is a huge case to others. A small case for some means the end of their working life, their reputation, their marriage or their family. If a police officer in a case of assault that is triable either way is accused of behaviour that would end his career, should that attract a lesser tribunal than asking for a trial by his peers? If a teacher, a doctor or one of us is accused of a relatively minor offence of dishonesty, conviction will likely end our professional lives and destroy our reputations. Should we deny such people trial by their peers? Having been there in the courtroom conducting such cases for the defence and the prosecution on numerous occasions in over half a century of my legal career, I challenge in principle the removal of jury trial, especially because it is completely unnecessary.
What are the time savings that it is asserted would take place if jury trial was removed from some potentially significant cases? If a judge were sitting either alone or with magistrates, unlike a jury’s verdict the judgment would have to be reasoned. We could not simply have “guilty” or “not guilty” without any explanation. That reasoning would be very similar to the legal directions and summary of the evidence given by the judge in jury trials and would take just as much time. There might be a very small net saving in court time dealing with a jury after it is retired, but, generally, that represents only a tiny slice of time taken up in court.
Indeed, it is very likely that decisions from such intermediate courts—as I think they are called—would give rise to a significant increase in appeals and thus more use of court time. It would be difficult fairly to exclude appeals on questions of fact which are not appealable from jury verdicts, save in the event of important new evidence arising after the jury verdict. I know that subsequent speakers will address alternative ways to use judges more effectively.
In addition, time can be saved by the use of amended Crown Court rules. Prosecution and defence advocates should be required to provide short skeleton arguments well ahead of the hearing date for all cases, including guilty-plea cases not requiring a jury. The prosecution should be required to indicate in advance any sentencing guidelines that are relevant. The defence should be required to indicate the nub of their mitigation submissions, including an indication of what they submit should be an appropriate sentence in the case. Advocates should be paid for the work they do on such intermediate documents. Currently, almost the entire fee payment in a criminal case is loaded into the final trial or plea hearing. I welcome the presence in this debate of the noble and learned Lord, Lord Bellamy, who has done valuable work in relation to legal aid, and look forward to hearing what he says about payment of advocates.
Advocates should be required to adhere tightly to the time-saving rules and remunerated for that currently unpaid work they do on pre-hearing documentation. I have no doubt that there would be a favourable cost-benefit evaluation of such work. I am sure from my experience that that sort of exchange of information would mean that many cases would be over in minutes with such a system. There should be a target of no more than two hearings in every ordinary case—you would not believe how many hearings there are sometimes in small cases in the Crown Court.
In an excellent House of Lords Library briefing, produced on 13 March this year, one of the three causes of the current situation was described as “more ineffective trials”, saying that 27% of trials do not go ahead on the day scheduled—almost a doubling since 2017. Key reasons included witness and defendant unavailability and the late arrival or non-arrival of prisoner transport. This shocking figure calls for severe contractual financial penalties for such failures.
Another cause of the backlog is the decline in the number of criminal law barristers available for publicly paid criminal work. Declaring my interest as a member of a chambers conducting predominantly criminal work, I suggest that remunerating criminal advocates proportionately to comparable activities elsewhere in their profession would produce sharper, quicker, better prepared cases.
Sitting days need to be increased, which, in my view, would show a cost-benefit gain. Part of the cost-benefit analyses should factor in the paraphernalia of problems for everyone involved, including witnesses and victims facing worsening mental health until the case is determined, and 20% of defendants being retained in custody but acquitted later, with considerable financial loss.
We have to recognise that sometimes the work can be done better. Doing cases a little faster can improve the quality of a trial, and that should be subject to judicial directions, particularly where there is interminable documentary evidence that could be summarised more effectively and which juries struggle with.
A major area for further possible change is in relation to very complex fraud cases—those expected to last more than 20 days. I have done a number that have lasted months and months, far more than 20 days. In cases where it can be agreed between prosecution and defence that a non-jury trial would be satisfactory, subject to specific provisions that would be acceptable, we could speed up the courts. Such provisions might include a maximum sentence of, say, seven years’ imprisonment; a judge sitting with two experts, along the lines of the Competition Appeal Tribunal, which was presided over by the noble and learned Lord, Lord Bellamy, when I became a chair of that tribunal; and a full written judgment on Competition Appeal Tribunal lines. These courts could be separated from the general Crown Court.
In addition, there should be more and earlier diversion orders in suitable cases, to ensure that young defendants especially can be diverted from crime; more efficient listing schemes, such as the trial blitz at Manchester Crown Court; and increasing the credit for guilty pleas where the case has not yet reached trial.
Unfortunately, we have a crisis in the Crown Court, but we should not waste that crisis. I suggest that careful, moderate modernisation of the Crown Court system, including more efficient management at every level, from the courtroom to the Lord Chancellor’s Department, can solve current problems without damaging the fundamentals of our trusted justice standards and principles.
Lord Carlile of Berriew (CB)
My Lords, I shall say just a few short points in closing. First, I thank the noble Lord, Lord Ponsonby, for his considered reply. May I gently urge him to look at the research of Professor Cheryl Thomas of University College into rape cases where the victim does not give evidence in the presence of the court? The results of that research are very unfavourable to the procedure. It is just not working well.
Secondly, I thank the noble Baroness, Lady Longfield, for her maiden speech. I will simply say that she did not disappoint.
I noted the right reverend Prelate’s comment about creative thinking. There should be some creative thinking that does not immediately assume that we must get rid of jury trials in a large number of cases because we are so pessimistic about the future. We can be optimistic, and indeed, surely, as one noble Lord said, it is time to get on with what can be done now, without waiting for Sir Brian Leveson’s report. Some of it is staring us in the face.
For example, my noble kinswoman and others’ suggestion of the introduction of criminal masters or procedural judges could be started tomorrow. It would make a huge difference in courts such as Snaresbrook, which has been much mentioned. I would also urge upon the Government that my noble friend Lord Meston’s reference to allowing criminal and family courts to work much more closely together could also be used with civil courts and major fraud trials. There is a great deal of work that can be done that would shorten lists and delays.
The noble Lord, Lord Hacking, in his interesting historical analysis—it was before my time but, like the noble Lord, Lord Thomas, I had heard all about it when I started at the Bar—urged that there should be ushers in every court. It is such a simple thing. If there is an usher and a clerk in the court, the work gets done. If they are not there, the witnesses cannot be brought in, the charges cannot be read out properly and there are unreasonable burdens placed on the judges. Those are simple things we can do immediately.
We have a difference about juries. I say both to my noble friend Lord Faulks and to the noble and learned Lord, Lord Keen, that in my view they are wrong about juries. First, the reference to civil juries is irrelevant to this discussion. Civil juries did not send people to prison for a long time, in effect, and judges have to send people to prison if they have been convicted by a jury of a serious offence.
In relation to the Diplock courts, I say with enormous respect to the noble and learned Lord, whom I admire greatly, that it is a poor analogy. The Diplock courts deal only with the most serious cases and were created in an atmosphere that did not want to get rid of a single jury trial, but it was because you could not get a fair trial in Northern Ireland at that time for special reasons. I do not think that Diplock courts take us anywhere.
I hope I will be forgiven for not referring to everyone who has spoken, but in closing, I simply want to thank all noble Lords who have taken part and say that the Government have a very big task on their hands.
Courts and Tribunals: Sitting Days
Lord Carlile of Berriew Excerpts(1 month, 2 weeks ago)
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Lord Carlile of Berriew (CB)
My Lords, before abolishing any element of trial by jury, does the Minister accept that the Government should prioritise improving the effectiveness of the Crown Court by swift progress of cases and by appointing a cadre of procedure judges to ensure that the number of hearings per case is reduced dramatically, thereby saving a great deal of time?
Lord Ponsonby of Shulbrede (Lab)
I thank the noble Lord for giving me notice of that question. I absolutely recognise the point on the importance of cases coming on in time. One hears far too many stories of cases having to be abandoned, often because of poor administration of the case. We have a number of pilot courts—I think it is about 10—where we are introducing case co-ordinators. They are people whose only job is to go over the cases to make sure that all the different elements are in place and to make sure that the case gets on. I realise that that is not exactly the point that the noble Lord made, but it is acknowledging the importance of making sure that these cases get on and are not abandoned for any reason.
Drones: High-security Prisons
Lord Carlile of Berriew Excerpts(3 months, 2 weeks ago)
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Lord Timpson (Lab)
Like the noble Lord, I visited some years ago, so I do not have an exact picture in my mind of the layout of the exercise yards. I can assure him that every male closed prison now has X-ray scanners. In 2003, there were over 1,000 drone sightings. They were up 770% between 2019 and 2023. We have a serious problem but if I know any more details, I will let him know.
Lord Carlile of Berriew (CB)
My Lords, does the noble Lord agree that the focus for prisoners should be on not taking drugs when they come out of prison? Does he agree that there is still a gap in making sure that prisoners know what will be done to help them to stop taking drugs on their release and that, if there was greater co-operation in that regard, we might not have quite as big a problem with drones as we have today?
Lord Timpson (Lab)
The noble Lord is completely right. There are far too many people in prison who arrive addicted and stay addicted. They need an incentive and support not to take drugs. That is why I am a big fan of substance-free living wings and engaging with probation early so that, when people are released, we have a seamless link whereby probation picks up with all the drug workers on release.
Prisoners: Early Release Scheme
Lord Carlile of Berriew Excerpts(6 months, 1 week ago)
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Lord Timpson (Lab)
We do not yet have all the exact figures but, when they are verified, we will publish them in the normal way. However, the noble Lord is correct that we have inherited a system that is very difficult, in which far too many people are recalled. For the second SDS40 stage, we are as ready as we can be. Victim contact data is very reassuring but, as in a lot of areas that we are dealing with in respect of full prisons, it is not as straightforward as I would like.
Lord Carlile of Berriew (CB)
My Lords, given the number of prisoners who become dependent on drugs before, during or after leaving prison, what steps will the Government take to ensure that better treatment, and psychological treatment in particular, is available to them, whether they are released early or at the normal time?
Prison Capacities
Lord Carlile of Berriew Excerpts(7 months, 2 weeks ago)
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Lord Carlile of Berriew (CB)
Many years ago, when I was a Member of another place, I was one of many who were horrified that the prison population had reached 45,000. We do not see a more law-abiding country today, with double that number in prison. I will offer a short urgent shopping list.
First, we must deal with sentence inflation. Then we must give young offenders the opportunity to graduate out of their juvenile criminal records, which can cause them trouble with employment. We need a vast improvement in prison education facilities. We need to provide release accommodation for those who are released and have nowhere else to go. We need to provide opportunities for prisoners to leave prison for the day to be able to work their way into the normal economy. We need to enable much earlier release, maybe 25% of the sentence where it is justified; for example, by a prisoner having been to work or undergone education courses which will lead them to a better life outside. As already has been said, we must reduce the number of women in prison. It is far too high and much too damaging. Finally on my list, which I could increase, mental health provision has to be much better in person, including a greater possibility of transferring prisoners from prison mental health supervision to supervision in hospitals or in the community.
I welcome the appointment of the Minister. He comes here with very great and relevant experience and a background as a prison and punishment reformer. I hope that the promise of his appointment will reap a reward with results.