Alex Cunningham
Main Page: Alex Cunningham (Labour - Stockton North)(2 years, 9 months ago)
Public Bill CommitteesQ
Richard Leiper: I could not agree with that more. I think it is exactly the right concept to have. It will help litigants. There is provision so that those who do not have the means of doing things online would have the alternative of doing so through more traditional mechanisms, but I completely agree with the process because it should simplify the system to enable people to access justice more freely.
I could not agree more with the underlying concept. It is more a matter of ensuring that the infrastructure is in place to carry that through, so that it can become effective. That has two parts. First, it means having a properly composed committee with the expertise that can be brought to it and, secondly, having the infrastructure behind it so that it is not just a rule committee setting what needs to happen on high, but it gets the buy-in of everyone who will implement it and of how it will operate.
Q
Richard Leiper: I am not one for large committees, which can be counterproductive, but we are talking about an enormous amount of work that will need to be undertaken across a wide range of practice areas. I suggest that the composition was akin to that of the civil procedure rule committee and of family law, so having more judges and more practitioners. The committee has only one person who can bring the knowledge of the lay-advice sector, whereas I think both the civil procedure rule committee and the family procedure rule committee each have two lay members. It needs a wider composition akin to those of the existing rule committees—which seem to operate perfectly successfully—where people are able to bring together the knowledge and direction of what they want to achieve through the online rule committee, but also bring particular practice or individual knowledge to the development of those rules.
Q
Richard Leiper: I guess that the biggest risk is of technological failure of some kind, because this is wholly dependent on having the underlying technology operating successfully. If there is a failure, then it could lead to disaster. It is about ensuring that there is the funding and knowledge behind it to be able to support a process that would need to be implemented in a small area at first—I would think—ensuring that it was successful, and then gradually broadening it so that one could have confidence in its effectiveness. It is about having the comfort that there is going to be the technological and financial support behind it to ensure that it works.
Q
Richard Leiper: I suppose there are two answers to that. One is yes. The other, which is my personal view, is that it seems to reflect the processes that are already in place into the existing procedure rule committee. This appears to have been the accepted approach since about 2005, and it seems to be replicating that. It does seem to give a substantial power to the Lord Chancellor in this regard, which I personally find surprising. However, it seems to be the way that things have operated for some time.
Q
André Rebello: Perhaps I misspoke. When a coroner sits alone, the coroner still hears evidence, and witnesses still come to court. It is just that there is no representation for any of the interested persons; the coroner hears evidence and makes finding and determinations. There is a real issue, though, with remote hearings in that, although many people have found advantages with them, the coronavirus easements did not apply to coroners’ courts. Coroners’ courts have only been able to work through remote hearings by using rule 17 to receive video evidence.
The provisions in this Bill are to bring coroners’ courts in line with other courts. However, there is a real issue in regard to the Equality Act 2010; not everyone can participate in the rule of law and in open justice through remote hearings. Any judge presiding has to be very careful to make sure that everyone can participate. I suspect there are more disadvantages in remote hearings than in having everyone in court, where you can fully appreciate how people are following the proceedings. In the 95% of cases where there is no representation, the coroner still hears evidence. It is not as if the coroner is just reading statements; evidence is still heard.
Three questioners wish to be called a second time. I will call them in the order in which they indicated.
Q
Richard Leiper: I should not. I sit as a recorder in the Crown court, but I would not hold myself up as having the necessary expertise.
Q
Richard Leiper: Again, that is an issue for the Crown court section of your discussion, rather than the civil side of things.
Q
André Rebello: Actually, there are many. With the easements in the Coronavirus Act, we are just about keeping our heads above water in the coroner service. Under the Coronavirus Act, any doctor could have treated the patient—it does not have to be the doctor who certifies the death, provided that the other doctor sees the body after death—and we have been able to get medical examiners and other doctors to issue death certificates. These are all deaths from natural causes, which should not ordinarily be reported to the coroner. Hopefully, the statutory medical examiner service will alleviate quite a lot of the deaths that come the coroner’s way, which cause a lot of concern for bereaved families. Unfortunately, a lot of deaths are reported to the coroner unnecessarily. At the moment—gosh—probably 20% or 30% of deaths being reported now do not need to be reported. Doctors could issue, but for whatever reason, the deaths are being reported—I suspect that doctors are busy trying to get back to normal and see patients.
I have concerns about the coronavirus easements lapsing before we bring in the new death certification and medical examiner provisions. I raise this on the record to flag that I can see a storm brewing in, probably, April of next year.
Q
Stephanie Needleman: There are two provisions in the Bill that we are concerned about in terms of safeguards. There is the new allocation procedure for online pleas, for adults in clause 6 and for children in clause 8. While the Government have said that this will be accessible only through the common platform, which as I understand can currently only be used by legal professionals, there is nothing in the Bill that would guarantee that a defendant would only be able to enter an indicator plea or trial venue with access to legal advice. We would like to see something in the Bill that guarantees that.
We oppose the use of the procedure by children. We do not think that even with a safeguard of access to legal advice that it is an appropriate procedure for use by children. The criminal justice system considers children to be inherently vulnerable, and there is a whole process in place in the youth criminal justice system that recognises their rights and works to guarantee them, and this system would allow that whole system to be bypassed.
Q
“has attained the age of 16”
rather than the usual age of 18? Could that be covered?
Stephanie Needleman: Clause 4 is not something that we have looked at in particular detail. As I understand it, the automatic online conviction process in the Bill is only available to 18-year-olds. The single justice procedure that it builds on is also only available to 18-year-olds, and the section 12 procedure in clause 4 is available to 16-year-olds, and that does appear to be an inconsistency that is unjustifiable.
Q
Stephanie Needleman: The same concerns as we have with using the new online allocation procedure for children. There is a whole system set up to protect vulnerable children within the criminal justice system, and those safeguards are being bypassed.
Q
Stephanie Needleman: That is not a clause we have looked at in particular detail, unfortunately.
Q
Stephanie Needleman: Yes, we are very concerned about the disproportionate impact of the AOCSSP—a catchy acronym. That builds on the single justice procedure, and there are clear issues with that that have not been addressed by the Government. There has been some research by Appeal, which shows that the vast majority of those being prosecuted under the single justice procedure are women for non-payment of television licences.
We are concerned about the impact on ethnic minorities. Racial disparities permeate the criminal justice system, and we are concerned that a disproportionate number of ethnic minority individuals will also be unduly criminalised through the automatic online conviction process, as well as those with mental health conditions or neurodivergent conditions who may have particular difficulties understanding the process or the implications of going through the process, pleading guilty and receiving a conviction.
As it stands, there is nothing within the process that would screen for any vulnerabilities, and there has also been no assessment by the Government, as far as we can see, of the equalities impact of the Bill. Back in 2017, these measures were originally floated in the Prisons and Courts Bill, and there was an equalities statement which recognised the potential adverse impact on people with protected characteristics. There has not been an update to that equalities statement as far as I have seen. As it stands and given the issues with the single justice procedure that it builds on, we think that the procedure should not be in the Bill. However, it definitely should not proceed without a review of the current evidence available in terms of what impacts it might have on those groups with protected characteristics and vulnerabilities.
Q
Stephanie Needleman: Absolutely. That is also a concern of ours in terms of people understanding what the process involves and, importantly, what the outcome of that process is going to be. Obviously, with the automatic online conviction, that outcome is a criminal conviction. We are worried that the process encourages people to go through it and plead guilty without properly understanding what impacts that can have later in life. I know it is currently only for summary and non-imprisonable offences, but those can still have serious implications—a criminal record, increased insurance costs, loss of employment and educational opportunities. This is not just for trivial offences that will not have an impact on people’s lives. Similarly, with the online plea, understanding the implications of where a case is heard—and the seriousness of going to the Crown Court and having the greater sentencing powers available there—is incredibly important. There should be provisions built in to ensure that defendants understand those. Having legal representation in the context of the allocation procedure goes some way to dealing with that.
You have anticipated the rest of my questions. I do not know if either of your colleagues wish to comment. No.
Q
“challenges to legislation on the grounds of discrimination are becoming increasingly common in the UK, usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.”
They are assisted in that, are they not, by the principle of proportionality, which confers on courts a broad discretionary power that risks undue interference of the courts in the sphere of political choices. That is very bad, is it not, both for a democratic society and for the role and reputation of courts, because the separation of powers—well, I do not need to lecture witnesses on the separation of powers. They know what it means. We have a problem that needs to be solved by legislative means. The Bill is a welcome start in that respect, is it not?