Courts and Tribunals Bill (Third sitting) Debate
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Kieran Mullan
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Courts and Tribunals Bill (Third sitting)
Kieran Mullan Excerpts(1 day, 11 hours ago)
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The Chair
We are now sitting in public and the proceedings are being broadcast. Before we begin, I remind Members to switch electronic devices to silent, and that tea and coffee are not allowed during sittings.
We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room and on the parliamentary website. It shows how the clauses, schedules and selected amendments have been grouped together for debate. A Member who has put their name to the lead amendment in a group is called to speak first. For debates on clause stand part, the Minister will be called first. Other Members are then free to indicate that they wish to speak in the debate by bobbing. Please bob on each occasion on which you wish to speak during proceedings.
At the end of a debate on a group of amendments and new clauses, I shall call the Member who moved the lead amendment or new clause again. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or new clause, or to seek a decision. If any Member wishes to press to a vote any other amendment in the group, including grouped new clauses, that is at the Chair’s discretion. My fellow Chairs and I shall use our discretion to decide whether to allow a separate stand part debate on individual clauses following the debates on relevant amendments.
I remind Members that decisions take place in the order the provisions appear in the Bill. This means that some amendments may be divided on considerably later than the point at which they are debated. I hope that explanation is helpful.
Clause 1
Removal of right to elect trial on indictment
Dr Kieran Mullan (Bexhill and Battle) (Con)
I beg to move amendment 38, in clause 1, page 3, lines 20, at end insert—
“, but see subsection (10).
(10) Notwithstanding the preceding subsections, the accused may elect to be tried on indictment if he demonstrates to the court that the circumstances of his case are such that to be tried on summary would amount to a breach of the principles of natural justice.”
Dr Mullan
It is a pleasure to have you with us, Ms Jardine, and I look forward to this first of many Committee sittings. I am pleased to begin line-by-line scrutiny of the Bill, beginning with clause 1 and the Opposition amendment tabled in my name.
The clause is a helpful place to start our considerations because it cuts straight to the core of our concerns and criticisms, many of which are similar and run through our opposition to many of the other clauses. The clause will amend subsections (2) and (9) of section 20 of the Magistrates’ Courts Act 1980 to remove the requirement for the defendant to consent to their case remaining in the magistrates court for summary trial. In effect, that will remove the ability of a defendant charged with an either-way offence to elect trial by jury in the Crown court.
This is one of the key changes that add up to reforms that represent an unprecedented erosion of our right to trial by jury, which is, without doubt, one of our oldest and most important traditions. It has been with us for hundreds and hundreds of years, bordering on the amount of time one might typically consider to make it an ancient right, as some people refer to it.
No wonder that right has become so valuable when we compare it to what went before. For about 500 years before the beginnings of what became the jury trial system, we had trial by ordeal. Guilt was determined by God through his unseen hand in the outcome of events, unrelated to considering in any way what happened or what we might consider evidence. The two main forms this took were trial by fire and trial by water. For trial by fire, the accused had to carry a red-hot iron bar and walk 9 feet. If the wound healed within three days, they were innocent, but if it festered, they were guilty.
For trial by water, the accused was plunged into a pool of water on a rope with a knot tied in it a long hair’s length away from the defendant. If they sank to the depth of that knot, the water was deemed to have been accepting of them and their innocence, but if they floated, the water was rejecting them, rendering them guilty. There was of course also trial by combat, or wager of battle, a fight between the accused and the accuser, which was introduced by the Normans in 1066.
Although they were invested in the wisdom of God and the Church, it was actually the gradual withdrawal and ultimate banning of the participation of the Church that brought an end to such practices. But that is not to say that even within those practices there was not some sense of allowing the views of others to play a role. Dr Will Eves, a research fellow at the University of St Andrews’ school of history, said that the key to the ordeal was the interpretation of the result. The community would probably have had some idea whether someone had actually committed the crime and would interpret accordingly. He said:
“In trial by hot iron, the issue wasn’t if the iron had caused a wound but rather how it had healed. So that’s a much more nuanced issue, much more open to interpretation. Whether the wound was festering was a judgment which could be influenced by the community’s knowledge of the individual involved and their awareness of the broader circumstances of the case.”
The wider involvement of the community then took the form of testaments to character, rather than a careful examination of the facts, as a basis for determining guilt.
On 26 January 1219, King Henry III issued an edict, and trial by petty jury was born in England, but it was its precursor that introduced the idea of 12 individuals that is still with us today. In 997, King Æthelred issued the Wantage code, which determined that 12 noblemen—of course, it was just men—be tasked with the investigation of a crime. It is an extraordinary testament to the legacy and enduring nature of such proposals that a core element of that kernel of an idea, with 12 individuals at the heart of the system, remains more than 1,000 years later.
Prior to the petty jury reforms, there were other forms of jury—for example, to investigate land disputes—but guilt was still determined by trial by ordeal. The reforms made by King Henry III are rightly considered one of our most important cultural, and we might even say civilisational, inheritances. The concept and approach has, in some form, been spread around the world to more than 50 countries. In 1956, the legal philosopher Patrick Devlin said:
“For of all the institutions that have been created by English law, there is none other that has a better claim to be called…the privilege of the Common People of the United Kingdom”.
Committee members may have noted that the 1219 edict came after the often quoted Magna Carta declaration of 1215. That declaration was a precursor to the fundamental idea behind what became jury trials and the 1219 edict: the idea that the judgment of an individual should be made by their peers. The barons had in mind the importance of protecting people from the heavy hand of the King, but their instincts are reflected neatly in all those who now have concerns about the power of the state in all its forms, including the judicial system that collectively holds the power that then sat with the King. The Bill asks us to consider reforms to ideals and protections hard fought and won for us, for very good reason, many hundreds of years ago. That fact alone should give us reason to tread carefully.
Of course, as we have heard in earlier debates and the Committee’s evidence sessions, the use of jury trials is not absolute. The form a jury trial takes varies across the countries that adopted it, and our system has undergone reform. It is fair to say that the debate is not absolute or black and white. The majority of criminal cases in this country are decided by magistrates, whose role and importance were solidified in the modern era by the Magistrates’ Courts Act 1952 and the Magistrates’ Courts Act 1980. Although the Government and their supporters might say it, we are not arguing that we should turn back the clock, or that all those currently seen by magistrates should be seen by jury trials instead, but let us consider the nature and manner of the reforms made in the modern era that remain in place today.
Changes were made during world war two. At a time when our nation faced one of its greatest threats, when our continued existence as a free state was uncertain and when every effort was turned toward winning the war, what did we do? Did we radically cut down on jury trials? No. The number of jury trials and what cases would or would not be considered by them remained completely unchanged. The change was made to the number of jurors, which was reduced from 12 to seven. What did the Government of the day do as soon as the Nazi threat was defeated? They put it back up to 12.
In more recent memory we had the covid pandemic, a challenge sometimes equated in seriousness to world war two. When every aspect of our society, public life and freedoms were massively curtailed in a way that was completely unprecedented, did we permanently get rid of jury trials? No. There was cross-party consensus that we should do everything we could to maintain jury trials. We invested millions of pounds in Nightingale courts, alongside other measures, to allow jury trials to continue as soon as they could, without making any permanent change to the law and individuals’ right to access jury trials.
Labour Members will no doubt point to the changes on triable either-way offences, similar to the proposals in clause 1, that were made in the 1980s, but done differently, via offence reclassification. The changes covered common assault where no one was injured, joyriding and lower-level criminal damage, and research shows that they led to a 5% drop in the number of cases that headed to the Crown court. These are questions of gradation, and the reforms in the Bill are unprecedented in their impact and completely incomparable with those changes. The Government’s own analysis says that they will result in a halving of the number of jury trials.
Who else might we turn to in support of our view that labelling the erosion of a right as a reform and realigning the dial further and further away from where we are now cannot be seen as a minor act? We can turn to many members of the Government, and the Prime Minister himself, to support our view. On limiting jury trials, the Under-Secretary of State for Justice, the hon. Member for Rother Valley (Jake Richards) said:
“Instead of weakening a key constitutional right, the government should do the hard work.”
The Justice Secretary said:
“The right of an individual to be punished only as a result of the “lawful judgement of his equals” was enshrined in Magna Carta of 1215. Yes, this right only extended to a certain group of men, but it laid the foundation of a principle which is now fundamental to the justice system of England and Wales.”
He also said:
“Jury trials are fundamental to our democracy. We must protect them.”
Finally, he said:
“Jury trials are a fundamental part of our democratic settlement. Criminal trials without juries are a bad idea.”
That is what the Deputy Prime Minister, Justice Secretary and lead proponent of the reforms has said.
Finally the Prime Minister has said that the
“general and overriding presumption should be jury trial, with very, very limited exceptions”,
and that
“The right to trial by jury is an important factor in the delicate balance between the power of the state and the freedom of the individual. The further it is restricted, the greater the imbalance.”
There we have it. They all understood that these are questions of balance. The Government are simply on the wrong side of that balance with the reforms in the Bill, including clause 1. That is not just because of the scale and gravity of the changes, but because of the other ways forward and other approaches, as yet untested but available to them.
The Opposition’s approach in Committee, on this clause and others, is therefore straightforward. We will test whether the Government have correctly diagnosed the problem, whether the evidence supports the proposed solution, whether the safeguards being removed are proportionate to the gains claimed, and whether other options are available. Those are the fundamental questions. Of course, we will not forget that, despite everything else Government Members said previously, the reforms were born of necessity and that the Minister believes they are positive improvements to our justice system regardless.
The Government have estimated that clause 1 and other clauses will reduce Crown court sitting days by 27,000 a year while increasing magistrates court sitting days by 8,500. They think the provisions will reduce the open Crown court caseload by around 14,000 cases, and cost £338 million between 2024-25 and 2034-35. However, several stakeholders have criticised the assumptions and models that the Government used to produce the estimates, particularly in respect of how much time jury-only trials would save.
Cassia Rowland of the Institute for Government has said that the total impact of the Government’s proposals on court demand is
“likely to be around a 7-10% reduction in total time taken in the courtroom”.
She therefore considered that improving court efficiency,
“an alternative which enjoys broad support across the sector and which could begin much faster”,
provided “opportunities for meaningful improvements”. She said that implementing such efficiencies
“alongside more moderate proposals to handle some more cases in magistrates’ courts…would be less likely to provoke backlash.”
I could not agree with her more.
The Criminal Bar Association has criticised the “over-optimism” of the impact assessment, describing the Government statement that the Bill would only increase magistrates court demand by 8,500 days as “astonishing”. It says:
“The assumptions are that magistrates will complete each of these trials within four hours and guilty pleas/sentences within 30 minutes. Is there is an expectation that magistrates will be dispensing rough justice when they have these more complex, more serious cases allocated to them? Or are the assumptions in the Impact Assessment simply wrong?”
I think they are. Let us be clear: the Government would have us believe that 27,000 crown court sitting days can simply be converted into just 8,500 magistrates sitting days.
Clause 1 represents a fundamental shift in the balance between the citizen and the state. At present, a defendant in an either-way case has the right to elect trial by jury. The clause removes that right entirely, with the decision resting solely with the magistrates court, depending on likely sentence length. We object to the clause in its entirety, but we have also sought to put forward meaningful changes through amendment 38, which would simply allow the defendant to demonstrate that, in the particular circumstances of their case, trial without a jury would breach the principles of natural justice.
What current examples of violations of natural justice do we envision and hope this safeguard can protect against? Let us consider two theoretical cases of offenders, both facing trial for theft. This may be an opportune moment to point out that some of the examples used by Government Members to demonstrate the irrationality of Crown court time being frequently taken up by theft offences betray a lack of understanding of what happens in terms of the likely disposals in such cases. Nevertheless, as it seems such a popular example, I am happy to use it.
In the first example, we have an accused who has never been in trouble with the law before. He or she has a clean record and the offence was not aggravated in any way. In fact, he or she gives an account of a misunderstanding. No harm came to the victim, and the value of the goods they are said to have stolen was considered to be medium—between £500 and £10,000. But the impact of a guilty finding on his or her life would be enormous, because the accused is a practising solicitor. It would almost certainly lead to the loss of their employment and significant damage to their reputation.
The sentencing guidelines suggest that if the accused is found guilty, they might expect just over a year in prison. They are determined to have their case heard by a jury, because they believe their account of events would be believed by a jury, but under clause 1 as it stands, that would be denied them. Because they are clear of their innocence, they will not take a police caution, an out of court disposal, or make an early guilty plea.
Let us consider another accused. They are very far from being a person with a clean record. They have been convicted of multiple offences of theft, and other offences alongside those in the past—for example, criminal damage and common assault. They have been convicted of theft more than a dozen times. Those of us who have had an interest in criminal justice for some time will know that those sorts of offenders regularly appear before the courts.
The accusation the second person faces is of another order of seriousness. They are accused of having stolen a piece of jewellery worth more than £100,000. In fact, the loss of that item led to the collapse of a small business, as the owner was an elderly lone female, who is now living in constant fear and simply cannot face customers again. She trusted the accused on their visit to the business, and does not feel that she can trust anyone else. The accused faces up to six years in custody, so they will retain their right to a jury trial. They have no reputation to lose as a serial and convicted offender, and no employment to lose either.
Alex McIntyre (Gloucester) (Lab)
The shadow Minister is making an articulate argument about how the criminal justice system might deal differently with different types of offenders, but would he not agree that someone’s background should not determine their guilt? They have either done it or they have not. Actually, someone’s good character and previous clean record is taken into account at sentencing. Will the shadow Minister remind the Committee how sentencing is dealt with in the Crown court—is it by jury or by a judge sitting alone?
Dr Mullan
The hon. Gentleman’s question articulates the gap between what the Opposition and the Government think about these issues. Actually, for a case like the first example, the sentence passed will be almost irrelevant to the person. If they are found guilty and convicted of an offence, they will suffer all the consequences that I have talked about whatever sentence they are given. Such consequences do not exist for the individual in the second example; they do not have employment or a reputation to lose.
The Government also often portray the assumption that people are guilty—if they are accused, they are guilty. The whole point of the jury trial system is to allow what we have all agreed, at some point and in some ways, is the fairest and most balanced way to determine guilt. The Justice Secretary himself has talked in detail about how it is the fairest way to determine guilt. When someone’s decision is going to have huge consequences for the accused’s life, it is perfectly reasonable for people to want the fairest mode of determining that guilt.
Linsey Farnsworth (Amber Valley) (Lab)
Is the hon. Gentleman saying two different things? At the start, I heard him say that we have fairness across the whole criminal justice system, but he seems now to be suggesting that magistrates court trials are inferior and less fair. Is that the position of the Opposition?
Dr Mullan
As I said, it is actually the position of the Justice Secretary, in his own report, where he said that the fairest and most balanced element of the justice system is jury trials. If the hon. Member thinks it is odd for me to hold that view, perhaps she should have a conversation with the Justice Secretary.
Rebecca Paul (Reigate) (Con)
Does my hon. Friend agree that the question the hon. Member for Gloucester asked shows the crux of one of the issues? He used the term “offender” to describe someone where a verdict has not yet been reached, but they are the defendant. Is the assumption of innocence before guilt is proven not a key principle we should be fighting for?
Dr Mullan
Absolutely. I have been very careful in writing my speech to not say that and to be clear about that. Again, when we have had debates about people causing the backlog and holding up justice for other victims, there is an inherent assumption that everybody who has been accused is guilty. Of course, we know that is not the case.
As I said, Members should think about the two cases I cited and decide whether it would be fair and just for the individual who has so much more to lose to lose their ability to seek the mode of trial that we have articulated—the mode that Members of the Government are articulating is the fairest way of deciding things—when the person with the repeat record, who does not have a reputation or job to lose, gets to continue doing all the things that the Government have said are wrong, such as holding up trials in other, more serious cases.
Members who have read ahead may think that there is some overlap between our amendment and the way in which I have articulated it and amendment 24, tabled in the name of the hon. Member for Bolton South and Walkden, and they would be right. Our thinking is the same. Our intention and the issues we are trying to elucidate are the same. Of course, we know that we are joined politically in our views on this issue, not by the Ministers in their former articulation of what is important to them, but by 37 Labour MPs who signed a letter in opposition to the erosion of our jury trial rights by clause 1 and other similar clauses. I will name just a few of them: the Mother of the House and the hon. Members for Leeds East (Richard Burgon), for Walthamstow (Ms Creasy), for Liverpool Riverside (Kim Johnson), for Salford (Rebecca Long Bailey), for Liverpool Wavertree (Paula Barker) and for Norwich North (Alice Macdonald). They are very far away from me on the political spectrum—some of them could not be further away—but, along with their other colleagues, they are clear that the proposals are wrong, and I wholeheartedly agree with them on that.
Those Members—Labour Members—rightly say that these proposals are “madness” and will cause more problems than they solve and that the public will not stand for this erosion of a fundamental right, particularly given that there are numerous other things that the Government can do more effectively to reduce the backlog. I guess that where there are 37 Labour MPs willing to put their name to a letter, there are many more concerned in private, and I am sure that various Members were allowed to be absent from the estate for some of our earlier votes.
I ask Government Members to think about their colleagues and the difficult position that they will put them in if clause 1 and associated clauses are passed. The Government have quite simply failed to articulate why these proposals are the only way forward. The Government might have received a more sympathetic reception had they truly exhausted all the other options—if they had stretched every sinew since their election to tackle this issue.
Rebecca Paul
The removal of the cap on sitting days appears to be bringing the backlog down, which I think everyone in the Chamber can agree is a good thing. Why are the Government not looking at that, projecting it forward and taking that into account before making radical changes that remove rights of citizens?
Dr Mullan
It seems that my hon. Friend has been reading the same reports from the Criminal Bar Association as I have. They were reported in the press last weekend or the weekend before, I think, and identified a number of regions, according to their analysis, where the backlogs were coming down as a result of the changes that were already being made.
Let us be clear, we are sympathetic to every single victim who is waiting longer than they should for a jury trial. As the Minister kindly accepted in the evidence sessions, it would be totally wrong to say that those of us across all the elements of the political spectrum who oppose the changes do so with any kind of disregard or lack of sympathy or care for victims and what they are going through. Some of the ways in which those long waits have been articulated and framed as caused by jury trials is not helpful, because less than 10% of drop-outs occur post charge. That figure is coming down this year, so the number of people who are dropping out post charge is reducing.
Rebecca Paul
Would the shadow Minister also be interested to understand the impact of the three-year suspension on sentences that went live just a few weeks ago on the projections going forward and on the impact on the Crown court backlog?
Dr Mullan
Indeed. I hope that the Minister can start to address the figures from the Criminal Bar Association, in particular, and to articulate whether she agrees or disagrees with them. If she disagrees, why? As the Criminal Bar Association makes clear, if the Government had sight of that data—they would have known ahead of the Committee’s evidence sessions, and potentially some of the earlier stages of the Bill, that those figures were coming down—why did they choose not to make such potentially important information available to those of us considering the Bill? It is not helpful for Members to quote waits of four or five years for people to get to trial when, in fact, those figures can relate to the delay between the alleged offence and sentencing. Yes, waits for trial from the point of charge are too long, but that is just part of the picture.
Of course, the obvious weakness in the Government’s arguments that this is a measure to tackle what we should all consider to be a temporary problem—getting back to our historical court waiting times—is that these measures are permanent, without any plan to reverse them when the backlog is down to pre-pandemic levels. As I have said, we have precedent for that. During world war two, when we made changes to the number of people sitting on juries, we reversed those changes when the crisis was resolved.
The Government have announced an intention to recruit and train a further 2,000 magistrates in the next financial year. That is welcome, but recruiting and training magistrates takes time, and, in fact, the delays in the magistrates courts themselves loom over us. On the other hand, the Bar Council rightly points out how many barristers have left the profession. Those are trained, ready-to-go professionals, choosing not to practise criminal law, who could quite easily return to criminal practice, compared with having to train a magistrate from scratch.
What is missing from the Government’s approach is any serious attempt to make the most of the capacity that we already have. Court sitting days are still being wasted. Yesterday alone, 58 out of 515 Crown courtrooms sat empty—that is 11%. I am sure that, as we go through the day and proceedings move forward, we will get the figures for today. I imagine that those will be in line with every other day that the Idle Courts X account, which I think those of us following this debate have become great admirers of, shows day in, day out: Crown courtrooms sitting empty.
Trials also still collapse due to basic administrative failures. None of the problems are solved by curtailing the right to elect. As I have said, only a few years ago the Justice Secretary described jury trials as fundamental to our democracy—a sentiment that every Member of this House must share—yet now, in office, he appears willing to curtail them in the name of expediency.
This proposal also was not in the Labour manifesto at the election. A change of this nature—an unprecedented erosion of a fundamental right that we have all enjoyed for hundreds and hundreds of years—was not in that manifesto. I think that makes it extremely difficult for the Government to insist, particularly in the Lords, where I am sure very many Members will have serious concerns, that they have any kind of democratic mandate to push through these reforms.
Of course, we have been here before. In what will come as little surprise to many Members, just as with Labour’s current proposals to fatally weaken the punitive elements of our justice system by letting serious violent and sexual offenders out of prison earlier, Jack Straw, the then Justice Secretary, also proposed removing the right to a jury trial in either-way offences when Labour was last in office. As is the case today, Members across the House and stakeholders fought against, and successfully defeated, those proposals.
We can therefore do away with the pretence that this is entirely the workings of an independent figure in Sir Brian Leveson. Although I have no doubt that he came to his conclusions independently, I imagine that those old proposals had been sat in the Ministry of Justice, waiting for the right Minister for civil servants to press this idea on, and they found that in our Justice Secretary and our Prime Minister.
We would be right to fear that it is the thin end of the wedge. Often such arguments are hypothetical: we say, “Well, we think this is the thin end of the wedge; some future Government or future Minister will want to go further.” Thanks to the plans being leaked, we know what the current Justice Secretary wanted to do. He wanted to go much further than even the proposals we see before us by removing jury trials for offences carrying sentences of up to five years—five years! Where will the Government go next if they succeed with these proposals?
Sir Brian Leveson’s review made clear that the estimate of a 20% reduction in trial times is subject to what he described as “very high levels of uncertainty”. That uncertainty reads across to the other measures, including clause 1, which we are considering today. He said that it was very important that the Government undertook further detailed analysis before moving ahead with those proposals. When I put that to him during evidence, he simply said—I am paraphrasing but I think it is a fair and accurate description—that that is now a matter for the Government, and he was not willing to be drawn on whether they had actually done that further detailed analysis.
I brought up the main additional piece of analysis that the Ministry undertook, which was a stakeholder engagement exercise—not a typical one that seeks to measure and come up with firm outcomes. It found that the time saving was between 10% and 30%, so there is a huge variation in what the Government may or may not achieve, and, fundamentally, it is potentially very different from what even Sir Brian recommended.
Jury trials are not an obstacle to justice; they are a safeguard against its abuse. They ensure that the most serious power that the state holds—the power to convict and imprison—is exercised, where possible, with the consent and involvement of the public. If we allow that safeguard to be weakened, we should not be surprised when public trust in the justice system continues to erode. The answer to a justice system in crisis is not to strip away centuries-old protections; it is to make the system work as it should. That is why the proposals are wrong and should be opposed.
If the Government are serious about reducing backlogs, there are obvious steps they could take that do not involve weakening constitutional safeguards. I will come back to those at further stages, but I draw Members’ attention to the evidence given by the operations director in His Majesty’s Courts and Tribunals Service—the civil servant in charge of making our courts run more smoothly, efficiently and productively. I asked him what he thought were the priorities for bringing down the Crown court backlog. He mentioned lifting the cap on sitting days. He welcomed that and said it made a big difference. The other examples he gave were improvements to prison transport and to listing. None of those priorities had anything to do with jury trials. The man charged with making our system run more efficiently, when asked to list his key priorities, did not say anything to do with jury trials in his first four points. As I have said, a second report from Sir Brian goes through a whole range of measures that will improve the efficiency and productivity of our courts. We have some further amendments for later stages to tease out some of those, and I look forward to considering them.
Let us be clear. The burden on this Government is extremely high, as it should be, to make the case for unprecedented changes to halve the number of individuals able to have a jury trial. The Government could have spent time—two or three years—hammering the uncontroversial things that have political consensus and are able to make a difference. They could have looked at Liverpool Crown court, which does not have a historical backlog. As Sir Brian said in his evidence, to some extent, every court has a backlog of cases waiting to be heard, which is helpful for managing those cases, but there are normal levels of waiting time that are accepted without people having to go back to the judge and ask for more time.
As I understand it, the Minister has not visited Liverpool Crown court in the last 12 to 18 months. She can correct me if I am wrong. I do not think the Deputy Prime Minister has visited Liverpool Crown court either.
The Minister for Courts and Legal Services (Sarah Sackman)
I have visited lots and lots of courts.
Dr Mullan
Indeed, but, as I said, I do not think the Minister has actually visited the court that is most successfully managing and dealing with these issues, which is somewhat odd. I would have been visiting that court and trying to understand and replicate, in detail, every single thing that it does. If, in the end, the Government had found something that made the difference we all want, there could have been a different conversation, but they chose not to do that.
As I put to the Minister during our evidence sessions, politicians and Departments have only so much capacity and political attention, and only so much they can do with their time. Instead of investing that time, energy and attention into the detailed work of doing things better and improving the system, the Government are embarking on a reform programme that I suspect will end up overwhelming the Minister’s time. It will be a huge distraction from the very hard and detailed work that she needs to lead. I accept that she will try her absolute best to continue to deliver across the spectrum, but the political reality will be very different.
We oppose clause 1. We tabled an amendment that would, to some extent, limit the damage that it does, but we are clear that it should not proceed at all. The Government have completely failed to articulate robustly, and with clear, reliable data, the impact that it will have. They have not answered the very many criticisms put forward by those practising in the system every day about what will have an impact, and they have not secured the Opposition’s support for the curtailment and erosion of a fundamental right that has been with us for hundreds of years.
Rebecca Paul
I thank the hon. Lady for making that point, and I of course agree. Clearly, there is not a consensus, which is why we are here today, but we can categorically state that most knowledgeable and experienced people working in the justice system are against what this Labour Government are trying to do.
Dr Mullan
The policy adviser of the CPS does not represent the individual views of all the different people who work for the CPS. The suggestion that, because the policy lead or the senior management team have a view, everyone who works for the CPS thinks that this is the right thing is obviously complete nonsense.
Rebecca Paul
I completely agree with my hon. Friend. If I recall correctly, the hon. Member for Amber Valley has previously worked in the CPS—she might want to disclose her interest.
Rebecca Paul
I thank the hon. Lady for making that point, and I hope that she is comfortable having put that on the record. It is good to hear her view.
Dr Mullan
People who work for the CPS have privately expressed to me that they are against these proposals but, as I have said, the idea that a chat with a few former colleagues is representative of the views of the thousands of people involved in different ways with what the CPS does is completely unsustainable.
Rebecca Paul
My hon. Friend makes a very good point. I completely agree with him, and I remind the Committee that most people in this country are against these changes. Most people who know about the justice system are against the changes—[Interruption.] I know it is really hard for Labour Members to hear that they are not on the side of the people on this one. How has it all gone wrong? They have forgotten who they are and who they represent. It is a sad day.
Rebecca Paul
I thank the shadow Minister for that point; I share his concerns. There is also a question regarding whether unpaid volunteers will even want to take on such a serious role that involves handing out two-year sentences—that is quite a responsibility.
The outstanding caseload in magistrates courts has been increasing in recent years. In September 2025, the outstanding caseload was around 373,000, which was a 74% increase compared with pre-pandemic levels in September 2019. The shift of cases from the Crown court back into the magistrates court is simply moving the issue to a less suitable court to deal with it. It is simply moving the problem around, rather than actually addressing it.
Summary trial through the magistrates court was always designed for the purpose of swift justice in low-level cases. By removing the right to elect for a jury trial, in combination with increasing magistrates’ sentencing powers to two years’ imprisonment and removing the automatic appeal against conviction, important protections are being removed, and the groups that will be impacted most detrimentally are ethnic minorities.
Magistrates are unpaid members of their local community who volunteer to act as magistrates. There is no requirement for them to be legally qualified. That may well be fine for summary-only offences, such as low-level motoring offences and minor criminal damage, but it is not appropriate for more serious offences. Many magistrates do an excellent job and give up their time selflessly for the benefit of their community. In spite of that, I do not believe that they should have the power to send someone to prison for two years. Let us all remember that magistrates can be as young as 18.
In closing, I want to make one last point. This change was not in the Labour manifesto; indeed, there is no mention of any changes to trial by jury at all. Only one such commitment was made, which Government Members appear to have forgotten. To quote from the Labour manifesto:
“Labour will fast-track rape cases, with specialist courts at every Crown Court location in England and Wales.”
That is on page 67, if anyone needs to refresh their memory. That is what the British people voted for. The Bill could have been so different if clause 1 had started with that, instead of jeopardising fair justice for many defendants. It is such a shame that a Government with such a historic majority have so quickly forgotten the change they promised, and whom they fight for and represent.
Sarah Sackman
Let me begin by saying that the Bill has been prepared with precisely the people and communities who elected us and gave us our mandate in mind. The Labour party manifesto contained one word on the front cover: “Change”. It was not an acceptance of the status quo—a brittle criminal justice system with record and rising backlogs, which we inherited from the previous Government.
Rather than sit idly by, we are a Government who govern by choosing, and the choice we make is that, when we see a problem, we set about fixing it. We do so in a way that is informed by our values of equality, fairness and social justice. We also do so in an evidence-based way, which is why we commissioned an independent review of the criminal courts, led by Sir Brian Leveson and ably supported by Professor David Ormerod and others. They produced a detailed and comprehensive analysis that spoke to the depth of the crisis in our criminal justice system and the impact that the delays are having across the piece, not just on those impacted by crime but on those defendants on remand languishing in jail, whose lives have been put on hold, perhaps for crimes they did not commit. They spoke to the long-term challenges in our criminal justice system and the changing nature of evidence in our system, involving more digital and forensic evidence, all contributing to a picture in which trials are now more complex and take twice as long as they did in 2000.
In that time, there has been no reform of our criminal justice system; instead, as we have heard from a number of Members today, there has been a chipping away of the Department’s budget, underinvestment, the stripping back of not just legal aid but sitting days, the closure of more than 40% of our courts and people leaving the Bar in droves, all of which have driven the backlogs—and there is consensus that we need to do something about them.
I was interested in the remarks made by the hon. Members for Chichester, for Brighton Pavilion, for Bexhill and Battle and for Reigate, and my hon. Friend the Member for Bolton South and Walkden, all of whom called on this Government to pull every lever at our disposal. Here is the thing: I agree. We should be doing all those things, and indeed we are. We are not waiting to begin on the efficiency drive so desperately needed and called for by Sir Brian’s report and by those across the criminal justice system.
Sarah Sackman
The hon. Member started with a long digression into trial by ordeal. I hope this Committee will not become a trial by ordeal, but I find the brass neck approach to this from the Opposition surprising, given that they cut the Department’s budget in real terms, while we have invested in record levels of sitting days and have, I am proud to say, announced that we are lifting the cap on sitting days next year. I intend to get back to my point, but, interestingly, we are beginning to see the progress that our measures have made. Last quarter’s figures show that the backlog continues to rise—it is a snapshot—but we are starting to see the impact of the investment in a record number of sitting days and the lifting of the cap, which we know will be beneficial.
We have been clear from the start, following the expert recommendations of the independent review of the criminal courts, that three things will be needed: major investment in sitting days, the £92 million in criminal legal aid for solicitors that we invested in the early days of this Government and the committed uplift of £34 million to advocates fees, and a record settlement for the CPS.
Sarah Sackman
I will not take any more interventions; I want to make progress. The point is that we are already beginning to see the investment aspect of this.
The second pillar of how we address the backlog, which many have commented on, is efficiencies, and we have part 2 of Sir Brian’s report. In his speech on his vision for the justice system, the Deputy Prime Minister committed to a number of measures that are already under way. We will get blitz courts in London and the south-east under way this month, aggressively listing cases to get through them more efficiently. A pilot for AI-driven listing, working with the judiciary towards a national listing framework so that we end the postcode lottery on listing and list more efficiently, investment committed to case co-ordinators and driving case progression so that we are using the limited resources at our disposal most efficiently are all examples of taking forward greater efficiencies, which are desperately needed.
Sarah Sackman
Of course that is right. No one is talking about the abolition of jury trials. We have said, and I will say repeatedly, that juries are a cornerstone of the British legal system and of our legal culture. We are preserving jury trials for the most serious cases. By seeking to tackle the shameful delays in our criminal justice system, we are seeking to ensure that, where jury trials are appropriate and very much necessary, they happen in a timely fashion. There is no point in having a jury trial if it comes one, two or three years after the fact, when witnesses are pulling out, the quality of evidence has worsened, people’s memories fade, and quality justice is simply not delivered. The state’s fundamental obligation is to deliver a fair trial.
Under our existing system, as a society we have already made a threshold choice about who accesses a jury trial and who does not. Currently, 90% of cases in this country are tried—fairly, robustly, rigorously and independently—without a jury. This debate is about where that threshold should be, not about a complete abolition of jury trials. It is about a pragmatic and proportionate threshold change to respond to the issue of timeliness, which is currently detrimental to the state’s delivery of a fair trial to all.
Sarah Sackman
The hon. Member is right. Where currently a defendant charged with a triable either-way offence has the ability to choose trial by jury in the Crown court, even in a scenario in which a magistrates court has accepted jurisdiction over their case, that ability to choose is removed by clause 1. Currently, defendants do not need to justify that choice; presumably they choose it because they consider that they will derive some advantage from it. The reform that we are making is to remove that ability to choose and, rather, to place the responsibility with the court to allocate the mode of trial according to the seriousness of the offence.
There was much discussion raised by the hon. Member for Bexhill and Battle, and I believe one or two others, about the approach, and whether we should have an approach driven by the characteristics of a particular defendant—whether they are of good character, whether they have previous convictions—but that is not the approach we have chosen to take. The approach we have chosen to take is one in which it is the expert court, independently, that is triaging the case and allocating mode of trial based on the seriousness of the case. The best and most objective proxy for that is the likely sentence and the allocation guidelines, much in the same way as magistrates currently allocate trials in their mode of trial hearings.
Dr Mullan
The Minister is an extremely articulate individual. Will she just confirm that she agrees that, as the hon. Member for Brighton Pavilion pointed out, the Government are abolishing the right to elect, so it is perfectly reasonable for individuals to use the term “abolish” in relation to some of these reforms—because they are abolishing the right to elect?
Sarah Sackman
For those watching on TV—which is probably my mum—I will be absolutely clear: the Government are not abolishing jury trials. The Government are preserving jury trials for the most serious cases, and we are working in this way to ensure that those trials are fair and timely.
Sarah Sackman
What clause 1 does is remove the ability of a defendant to choose where they are tried, which, at the moment, they have a right to insist on. So we have—
Sarah Sackman
Let me finish my sentence; you asked me the question. We are removing the right to elect, and removing it completely. The right to elect means, notwithstanding the fact that under our current system—by the way, the right to elect does not exist in Scotland. I do not think any of us here would suggest for one minute that Scotland does not have a fair and independent justice system. It operates in a different way. The right to elect does not exist in a whole host of jurisdictions that have far lesser uses of jury trials than ours. What we are removing is the ability of the defendant to insist on their choice of trial, notwithstanding the seriousness of the case.
The CPS data shows that last year, under the current system, that happened in some 4,000 cases where the magistrates courts had accepted jurisdiction. In other words, under the magistrates courts’ existing sentencing powers, which currently stand at 12 months, they could hear that case and hear it fairly. They could also hear it more promptly because, as we know, the backlog is less in the magistrates court, and when the same trial that could be heard in the magistrates court is heard in the Crown court it takes four times as long, so there is swifter justice in that sense. Under the right to elect, the defendants in those 4,000 cases said, “I want a jury trial.” Under the current legislation, they can insist on that choice.
Some Members may say, “Actually, we think that is really important,” and I understand that that is the position of the Green party and the Opposition. We say something different for two reasons—one pragmatic, one principled. The pragmatic point is that, under the status quo—which we all agree is failing everybody, and we are implored to do something about the backlog—it is pragmatic and proportionate that cases that can be heard more swiftly and more proportionately, and be retained in the magistrates court, should be. It should be the court that triages that, in the same way as—to use the health analogy—if I went to A&E on a Saturday night with my child, and my child had a graze that could be dealt with by a nurse, if I insisted that it had to be seen by a specialist consultant, the answer would be, “Well, no; the person who needs to be seen by a specialist consultant is the person who has a specialist condition.” The triaging is done by the experts.
Sarah Sackman
I will make a little progress. As I have said, where a magistrates court has determined that an offence is suitable for summary trial there, clause 1 removes the ability of a defendant to insist on their choice of venue. The decisions about venue and mode of trial will rest with the court. That allocations process ensures that decisions about jurisdiction are made solely by the courts, so that cases are heard in the most appropriate venue according to their severity and complexity. There are thousands of cases in the Crown court caseload where the magistrates court has indicated that it has sufficient sentencing powers to hear the case, but a defendant has elected for jury trial.
Dr Mullan
I wish to pick up on a point the Minister made earlier, as interventions from other Members hampered me from doing so at the time. She hinted in her earlier remarks that although the total backlog is rising, there have been some improvements. I wonder whether she was attempting to address my questions around the Criminal Bar Association saying that the backlogs are falling in a number of areas. Could the Minister clarify whether the MOJ accepts that the backlogs are already falling in a number of courts? If it does not, what is the gap between what the CBA says and the Government’s position?
Sarah Sackman
I was coming to that point, but as the hon. Member has raised it, I will address it now. First, I put it on record that any suggestion that the Ministry of Justice or I have sought to bury good news is totally false. I would be the first person to be screaming it from the rooftops if our measures and our investment, which we made in contrast to the previous Government, were actually working. The fact is that at the last projected figures, in December, the backlog still stood at over 80,000 and it continues to remain high—slightly up from the previous quarter.
Sarah Sackman
I refer the hon. Member to the summary factsheet that was produced, which shows all of what I have described very clearly. I will ensure that every Committee member has a link. There was also a helpfully produced website by the MOJ, which synthesises all of these facts, all of the modelling, which demonstrates all of these things. I understand that she is looking at the formal impact assessment, but if you go on the website and look at the factsheet—all of which has been shared with stakeholders and the media, and I will ensure that she has the model she seeks—I can assure her that on the MOJ’s forecast of the growth in the backlog, even with maximum investment and ambitious efficiency we do not begin to reduce the backlog. That is our analysis, and it is what supported the IRCC’s analysis. It is only when you do all three things—investment, efficiency and structural reform—that you bring down the backlog.
Dr Mullan
I think even though the Minister did not directly and clearly say it, there was an acceptance there that the backlog is falling in a number of areas. A question that flows from that: what analysis has been done on why? I imagine this is something that the Ministry of Justice is all over like a rash. It is having to do something that is opposed by many people. Even if the Minister thinks it is the right thing to do, the Minister will accept it is a reduction in the rights of citizens, even if she thinks it is justifiable. If the Government’s main argument—that this will not work without removing jury trials—is not being demonstrated in a number of Crown courts, why is that? What has the Minister done rapidly to understand why they are coming down and what is transferable, right now, to the other courts?
Sarah Sackman
Just to be absolutely clear, I have not accepted the CBA figures. What I have told you, and everyone here, is that on the last published figures, the backlog continued to rise between September 2025 and December 2025. I accepted that it may be that in some courts there are signs of improvement—
Sarah Sackman
Of course, the Post Office Horizon scandal was one of the great miscarriages of justice of recent times. However, it is important to remember that we are discussing the whole system and that, of course, for the most serious crimes under a reformed system, we would be retaining jury trial. It is also important to remember, as I think even those representatives from the criminal Bar accepted, that there is no constitutional, absolute right to a jury trial. If that were so, the 90% of people whose cases are dealt with in the magistrates court would have a right to insist on a jury trial. This whole debate is centred around the appropriate way to treat that cohort of cases in the middle—between summary-only, which stay the same, retained by the magistrates, and all the indictable-only cases, or indeed anything likely to receive a sentence of over three years, which retain a jury trial.
Sarah Sackman
Let me just finish my sentence. This whole debate is located around a relatively narrow group—although we are still talking about thousands of cases—of triable either-way cases and those likely to receive a sentence of three years or more. It is why the question about jury equity, posed by the hon. Member for Brighton Pavilion, interestingly relates somewhat to—