Judicial Review and Courts Bill (Sixth sitting)

Janet Daby Excerpts

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 45, in clause 3, page 4, line 29, at beginning insert—

“(1) Before this section may be commenced, the Secretary of State must—

(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction and penalty for certain summary offences as set out in Clause 3 of this Act;

(b) lay before Parliament the report and findings of such independent review; and

(c) provide a response explaining whether and how such issues which have been identified would be mitigated”.

This amendment would require a review of Clause 3 of this Bill before it is introduced.

Good afternoon, Sir Mark. It is, as ever, a pleasure to serve under your chairmanship. I would like to take this opportunity to welcome my hon. Friend the Member for Hammersmith back to his place on the shadow Justice Front Bench. It was my privilege to serve as Parliamentary Private Secretary to our wonderful Mayor of London, Sadiq Khan, when he was shadow Lord Chancellor and my hon. Friend was a shadow Minister. I was pleased to learn from him then, and continue to do so today. It is also good to welcome the Minister to his place as we face each other across the room formally for the first time. I hope that this will be the first of many such opportunities.

I do not underestimate the job that the Minister has taken on, given the crisis in our courts, the record backlog in the Crown court and elsewhere, and a Justice Department stripped of resources over the last decade. Just in case he tries to rely again on the covid pandemic as an excuse, let me point out that it was all in a terrible mess long before covid and long before he arrived in his post. Just one of the facts that I have picked up is that in 2010 there were 152,791 Crown court cases, which took an average of 391 days to complete; in 2019, there were 107,913 Crown court cases, which took an average of 511 days to complete. Clearly, the Minister has his work cut out. We wish him well with it and will be happy to offer our contributions and advice along the way.

I also pay tribute to the Committee Clerks for their, as ever, first-class professionalism and support as we prepared for this Committee stage.

My final thanks go to stakeholders outside the House, including Justice, Fair Trials and Transform Justice, among others, for their energetic and constructive scrutiny and input, which have been of great assistance in identifying potential concerns about the Bill’s practical implications.

Given the amendments we have tabled—the first of which I shall speak to in detail shortly—it will be no surprise to the Minister that the Opposition have reservations about clause 3. However, we do very much recognise the need for, and indeed the benefit of, potentially moving some court processes online, so I will share our concerns in the hope that the Minister can provide reassurances to quell them.

The clause will create an automatic online conviction and standard statutory penalty procedure, which will provide automatic online convictions as an alternative to the single justice procedure. Through this process, a defendant could opt to plead guilty online, which would result in an automatic conviction without the need for a hearing. The Bill’s explanatory notes state that, to begin with, the procedure will apply only to offences involving

“travelling on a train or tram without a ticket and fishing with an unlicensed rod.”

It is critical to note that secondary legislation approved by the affirmative procedure may make additional offences eligible.

As currently drafted, the clause has limitations. For instance, the defendant must consent to use of the process, so they retain the right to opt for an in-person hearing instead. Furthermore, the procedure is only available in respect of non-imprisonable summary offences where the accused was aged 18 or over when charged. Although we agree that these limitations, such as they are, are appropriate, there are a number of areas in which we think the safeguards built into the procedure need to go further.

The proposal to introduce online pleas was first made in the Prisons and Courts Bill in 2017. Transform Justice noted:

“It had not been subject to any public consultation then and still hasn’t.”

The assumption behind the clause, as with the expansion of written pleas, which we will come to in a later debate, is that a plea hearing is a straightforward and purely administrative hearing. It assumes that people will straightforwardly know whether they are guilty and will need no direction, assistance or support in pleading guilty to a criminal offence. I said earlier that this procedure is an online alternative to the single justice procedure, but there is an important difference. The single justice procedure allows defendants to choose to enter a plea in writing or online for the same types of offences that the automatic online conviction and standard statutory penalty will apply to—that is to say, summary or non-imprisonable offences.

Those who plead guilty and do not request a hearing under the single justice procedure are convicted and sentenced by a single magistrate on the papers before them, and the defendant has the chance to submit mitigating factors to inform the magistrate in writing. If a defendant fails to respond to the letter setting out the charge within the 21-day time limit, the single magistrate will hear the case without any input from the defendant or prosecutor. However, the Bill’s explanatory notes make clear that under the AOCSSP—is there a way of pronouncing that? I do not know—cases could take place entirely online and without the involvement of a magistrate.

Under the single justice procedure, the magistrate can decide that a case is not appropriate to convict under said procedure, which provides at least a minimal level of safeguarding within the process. However, under the AOCSSP, as Justice notes, there is

“no independent judicial (or indeed, human) oversight whatsoever. Moreover, defendants who use the AOCSSP procedure will face a binary choice, with no opportunity to submit mitigating factors if they plead guilty, unless they choose to decline”

the procedure and take the single justice procedure route instead.

The complete lack of human involvement in the process worries me. As a consequence, the Opposition have tabled amendments that seek to build into the process at least some level of safeguards. Although we agree completely with the Government that any online procedure should be optional, I also share Transform Justice’s scepticism, in that the defendant may not feel that they have much of a choice at all. How does the Minister think those pitfalls can best be communicated to the defendant?

The current introductory letter to the single justice procedure notice does not mention the option of pleading in court at all; it is only on page 3 of the following document that it comes up. To be honest, if I received one of these notices, even as the shadow Minister for such matters, I am not sure I would understand from the document that I had a genuine option to make my plea in a physical court hearing, rather than online or by post. Even when defendants understand that such a choice is available to them, I do not think that the information accompanying the note enables them confidently to make the best decision in their case. Some legal expertise is clearly required to know the benefits of pleading in court as opposed to pleading online. Again, I admit that even as the shadow Minister—I do not have any legal training at all; I am a journalist by profession—I would not be able appropriately to weigh the benefits of one course of action against the other. I hope the Minister understands what I mean. I am not trying to be obstructive or frivolous, but I think that the lay person receiving such a notice is currently not particularly well equipped to make a decision about their plea.

Transform Justice’s briefing calls on the Government to

“conduct and publish research on defendants’ understanding of the concept of viable defence and of mitigation, and of the factors to be taken into account in waiving the right to a ‘fair and public hearing’.”

That is an important point. The briefing also notes:

“The European Convention on Human Rights requires that in the determination of a criminal charge ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. It also guarantees specific minimum rights for those charged with a criminal offence, including the right to be informed of the nature and cause of the accusation, to defend yourself in person, and to have the assistance of an interpreter. The right to a fair and public hearing can be waived by the defendant, but only if they fully understand the charge and the implications of waiving their entitlement.”

Experiences of the single justice procedure suggest that many defendants will not fully understand the charges and the implications of waiving their entitlement to a public hearing. Research into such experiences could be an interesting and productive piece of work for the Department. I would welcome his thoughts on it, or, if his Department has considered the matter already, I would be grateful for more information about its work.

Another concern that has been raised about the expansion of the use of online pleas is that it may inadvertently drive an increase in the number of defendants without legal representation.

[Janet Daby (Lewisham East) (Lab)]

Given the significant changes that are taking place in how people plead—online, by post and so forth—does my hon. Friend think that the Government should conduct a public consultation? From what I have read, that is not happening.

[Alex Cunningham]

I am grateful to my hon. Friend for her intervention. She is correct, and she makes exactly the point that many of the people working in the sector are saying to the Government: we need better data and more examination of the data to drive the best legal system that we can possibly have.

There is a possibility that the expansion of online pleas may inadvertently drive an increase in the number of defendants without legal representation and, importantly, and as a consequence, worse outcomes for defendants. That concern was specifically raised by Transform Justice, which worries that encouraging defendants to plead online

“will lead to more defendants representing themselves … since the process of ‘doing it yourself’ may appear easy.”

I note that the current single justice procedure notice encourages the option of pleading online over the postal option. Pleading online, the defendant is told, is “quick and easy”. They are informed that they will receive a confirmation email, so that they know their plea has gone through—just like buying something from Amazon. The notice warns:

“You need to pay correct postage and allow enough time for delivery”.

That is helpful advice, but I worry that we are already seeing a push towards online pleas marketed as justice made easy for the defendant when that is not necessarily going to be the case. It may be easy, but it may deny them proper justice.

In fact, entering a plea can be a very complex decision. Transform Justice’s research on unrepresented defendants in the criminal courts found that entering a plea was one of the times when defendants without legal representation were most disadvantaged. As they note in their briefing,

“Unrepresented defendants did not understand when they had a viable defence and should plead not guilty, but also pleaded not guilty when the evidence against them was overwhelming, thus losing credit for an early guilty plea if convicted.”

I am aware that the explanatory notes to the Bill suggest that online pleas will be able to be entered only if the defendant has legal advice, and I understand that it is the Government’s intention that that would be done through the common platform. That would mean that the defendant would need to engage the services of a legal professional. However, I am concerned that that safeguard has not been put into the primary legislation. I will speak about that more fully in the debate on amendment 48 later this afternoon.

Even more worrying is the fact that paragraph 59 of the Bill’s impact assessment seems to suggest that that safeguard will be available only to those accused of more serious offences. As the Minister knows, the implications of a guilty plea, even for minor offences, can be significant, including a criminal record for life that can detrimentally impact employment prospects, among other things. I would be grateful for reassurances from the Minister that the online system will include information that ensures that the defendant is aware of all the possible impacts of choosing to enter a guilty plea. Again, I will speak to that point more fully in the debate on amendment 50.

--- Later in debate ---

[Alex Cunningham]

That depends how much beer a journalist drinks these days; I think we used to put away many more pints than desk-bound journalists tend to now.

The process makes it easier for offenders to escape notice. [Interruption.] I hear the Minister acknowledge that that is the case and I look forward to hearing his proposals to ensure that we have the open justice we all strive for. He has said that he takes issues of transparency and open justice seriously, and I do not think this is an intentional consequence of the Government’s proposals, but it is potentially serious. Will he confirm that some measure of external scrutiny will still be possible under the AOCSSP? Will listings for all cases and their outcomes at least be made available to all? If not, it will be a serious blow to open justice.

I would be grateful for the Minister’s thoughts on the suggestion that the AOCSSP could form a barrier to effective participation in the justice system. As Transform Justice notes,

“All online conviction processes will start with a postal charge. These charges are sent through ordinary mail and there is no proof of their receipt”—

no proof whatsoever. It continues:

“The fact that two thirds of defendants do not respond by submitting a plea indicates that any criminal process which relies on defendants responding to a postal charge seems to present significant barriers to effective participation.”

[Janet Daby]

The postal charge raises significant concerns. I know of constituency cases where people have changed address and their benefit letter has gone elsewhere, so they have ended up with frozen benefits. There will be huge problems ahead if things are sent by post and end up in somebody else’s postbox, or if people move and do not receive letters. I am particularly concerned about people with mental health issues and vulnerable people who, even if they do receive a letter, may not be able to interpret it.

[Alex Cunningham]

My hon. Friend is correct and gives excellent examples. I had an example a few weeks ago of a constituent who found out that he was likely to be locked up because he had not paid his television licence. He had not received the letter because he was no longer at that address. I know that he had a responsibility to inform people that he had moved on, but the fact that nobody tried to find him before it got to the point of court bailiffs turning up at the previous property to take goods away to pay his fines and court costs is a nonsense. Clearly, that can happen.

[Alex Cunningham]

Almost certainly. Our hon. Friend the Member for Lewisham East talked about people with mental health problems or disabilities who are all disadvantaged by these proposals, because no adequate system seems to be in place to ensure that they properly understand what they are doing and what is happening to them. If they do not understand, they may choose to ignore it and end up with a conviction and a criminal record, which has terrible ramifications for employment and all manner of other things, including even entering another country. If they have a criminal charge against them, they may not be able to go on holiday to some countries.

[Janet Daby]

I find all this deeply concerning. I wonder whether the Government actually want the postal charge system to work.

[Alex Cunningham]

The last thing I expect from my hon. Friend is cynicism. I am sure the Government want the justice system to work correctly, so it is time they looked carefully at this. As I develop my arguments, I will talk about the need for research and data, which is absent. We have asked for it in the past, but no specific data exists on why people choose to ignore or do not even respond in any shape or form to postal charges.

We do not know why so few people respond to postal charges. It does not seem sensible to expand the use of postal charges until we have more data on the issue. One reason that has been suggested is that many defendants do not even receive the letter. I have already talked about that; it might be sent to an old address, for example. Perhaps the person does not even understand the letter that they have received. The defendant, as we have discussed, might have a mental health condition or a neurodivergent condition that presents a barrier to understanding.

Although phone calls for someone on benefits are now on a freephone number, the initial calls to the HMCTS assisted digital advice on how to fill in a physical online form are charged at local rates. Yesterday I received from the Minister the answer to a written question on support for some vulnerable defendants. I asked what training prosecuting authorities who use the single justice procedure, and who are not the CPS, receive on disability and neurodivergent conditions. The response stated:

“The Ministry of Justice is not responsible for training prosecuting authorities and thus cannot speak to whether they receive training on disability or neurodivergent conditions. In response to the Neurodiversity in the Criminal Justice System: A review of the evidence report, the Ministry of Justice is taking a whole system approach and are working with HM Courts and Tribunal Service, HM Prison and Probation Service, Home Office, Department for Health and Social Care and the Welsh Government to”—

here is the key word for me—

“consider neurodiversity training for all frontline staff within the Criminal Justice System.”

Surely, Minister, it should not be “considered”. It should be a case of deciding how we ensure that it happens and that people across the criminal justice system are fully equipped and trained to deal with people in these circumstances.

For people on low incomes, I worry that the proposals present a significant and unnecessary barrier to engaging with the process. Does the Minister have any thoughts on remedying that? Earlier I looked at the AOCSSP, which seems to disproportionately affect those on low incomes. In a normal court hearing and under the single justice procedure, defendants sanctioned with a fine are asked to state their means, to enable the judge to adjust the fine if necessary. Under the online conviction procedure, everyone would be made to pay the same fine, because there would not be any information on which to base a different decision.

I understand that the equality impact assessment suggests that defendants on low incomes will be made aware of the option to opt for an in-person hearing instead, so that their financial position can be taken into account. I have already spoken about my concern that defendants would not understand that there is a real choice to opt into an in-person hearing, so I am not sure that this is a sufficient safeguard for those on low incomes. Does the Minister have any thoughts on any additional safeguards to protect those on low incomes from being further disadvantaged, since that is identified in the Government’s own impact assessment? Under the AOCSSP, could it be made much clearer that it would be preferable for someone who needs their financial situation to be taken into consideration to opt for an in-person hearing? Is the Minister aware of any existing data relating to whether those who have pleaded under the single justice procedure and the automatic online conviction process have been the recipients of heftier fines than those who attended in-person hearings?

Another possible barrier to effective engagement could surface for defendants with disabilities. The Equality Act 2010 requires public bodies to make reasonable adjustments for people with disabilities. I struggle to see how the AOCSSP will be able to support the use of reasonable adjustments. The Bill makes no provision for screening to see whether defendants will need reasonable adjustments to be made. I will speak to that point more fully in the debate on amendment 57, but it is important to consider the issue briefly at this point. Under the current process for a single justice procedure, defendants are asked to tick on the form if they have a disability. What if their disability has prevented them from opening the letter or understanding the form? How does the Minister think we can address that barrier to participation?