Courts and Tribunals Bill (Twelfth sitting)
Kieran Mullan ExcerptsTuesday 28th April 2026
(1 week ago)
Public Bill CommitteesRead Full debate Courts and Tribunals Bill 2024-26 View all Courts and Tribunals Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2026 - (28 Apr 2026)
Jess Brown-Fuller
I thank the Minister for her comprehensive response to this group of amendments. We have talked heavily about efficiencies: the shadow Opposition and the Liberal Democrats have put forward alternative measures to improve efficiencies that were not explored in Leveson’s report. I asked Sir Brian if he had explored the concept of doing two trials a day. He said, “No, that wasn’t really something that I looked at.” But he was quite open to it. We had the same conversation that it seems the Minister had with him, where he said, “I used to be able to get through two trials in a day.” We know that that world does not exist any more.
Dr Kieran Mullan (Bexhill and Battle) (Con)
Interestingly, we have been told all along that this is about the complexity of cases, yet the evidence is that the number of hours that things have been looked at has shrunk. To me, that is a much bigger issue. If we have fewer hours in a day to operate, of course it is going to take longer to get through complex cases.
Jess Brown-Fuller
The hon. Gentleman is absolutely right. It is a worrying trend that the number of hours that are being used efficiently in Crown courts every day seems to be decreasing year on year.
The Minister spoke about not wanting to necessarily set a target. I agree with her: sometimes putting an arbitrary number on something does not actually reflect the situation. The previous Government attempted to do that, setting a target in 2019 to get the backlog down to a certain number. That does not always reflect the fact that the backlog could be a caseload 30,000 of the most complex cases that will take an incredibly long time to get to. Instead, we should look at the average time that it takes to get from charge to trial, and monitor whether we can bring that number down.
When I have talked about bringing that report to Parliament in new clause 5, it is not necessarily to say, “It was 80,000 and now it is 79,500,” because that does not reflect how long people are going to actually wait to have their cases heard. It is far more about the experiences of all of those people going through the system.
With regard to having reports established every year, the Minister spoke passionately, as she always does, about wanting to make sure that the reforms genuinely make a difference. But the Deputy Prime Minister has said that, even with all the reforms coming in together, he does not expect to see the backlog fall before the end of the Parliament. We need to be able to look at where the data is taking us every year, track what the backlog is doing, track the sorts of cases that are getting stuck in the backlog, and then scrutinise that, so that if there are other levers that can be pulled—whether they are things that have been suggested by me or by the shadow Minister—we have the opportunity to come back and review those things.
I am glad that the Minister recognises that trust in the criminal justice system is low anyway. It is not where it should be. I have said it before: the justice system is inextricably linked with how people view democracy. When trust in democracy is low, there is distrust in institutions, policing and the way our courts work. As cross-party parliamentarians, we have a duty to improve trust in all those systems. I worry that the measures in clauses 1 to 7 will not do that, but will erode trust.
Question put, That the clause be read a Second time.
Dr Mullan
I wish to speak briefly in support of the principle that different approaches to case management and ways of working are making a difference in a number of areas. The Committee has had extensive back and forth about the fact that backlogs are actually coming down in certain locations. There has been debate about whether that is just a seasonal trend that we see at some points in the year; we will have to wait to see whether that is the case.
We have also spoken about the approach to case management in Liverpool, and this morning I read out various statistics from other courts that are bringing the backlogs down. I think new clause 7 drives at the same point; other measures are already showing benefits before the passage of this legislation, and we should prioritise them.
Sarah Sackman
Let me begin, as we all have in this Committee, by acknowledging the challenges that victims face in accessing the information and support they need. We have talked about the Government’s drive to centre victims in the criminal justice process.
I have a couple of things to say in response to new clause 7. First, there is lots of work under way. For example, on 5 February this year we launched a consultation on a new victims code to ensure that we get the foundations right for victims. Through the connecting criminal justice data programme, we are aiming to strengthen data sharing by seeing how we can both track and share that data with victims, as appropriate. We have published statutory guidance on independent sexual violence advisers and independent domestic violence advisers, recommending best practice for those roles. Of course, we have also begun to roll out the independent legal adviser service for rape victims. We have also undertaken consistent engagement; I met the Victims’ Commissioner just yesterday to discuss some of the ways in which we can marshal the over £500 billion-worth of investment that the Government have made in victims services, so that we can ensure that we have a victim-centred approach.
Case management is ultimately a matter for the judiciary, but taking into account the impact that delays in processes have on victims will of course form an important part of that. I would say that a publication strategy is not a matter best addressed through primary legislation, but I understand the thrust behind the hon. Lady’s proposal, and it is one that we would agree with.
Jess Brown-Fuller
I beg to move, That the clause be read a Second time.
The new clause would give victims a right to receive, free of charge, court transcripts on judicial summings-up and bail decisions relevant to their case. It would require that transcripts be provided within 14 days of a request and clarify that this right would applies whether or not the victim gave evidence in the case.
We spoke earlier in Committee about the important role of court transcripts. I recognise the challenges that the Government have in rolling out large-scale reforms to the way that we currently do court transcripts. The new clause is slightly more limited in its scope, because it specifically calls for transcripts on judicial summings-up and bail decisions relevant to the victim’s case. I know that the Government are doing a great deal in trying to move the dial on making sure that we slowly get to the point where everybody has access to court transcripts. As a spokesperson for an opposition party, I will continue to put pressure on the Government wherever I can to try and push them to go further and faster in this regard. I will not press the new clause to a vote.
Dr Mullan
I rise to speak briefly in support of the new clause. Whenever we talk about narrowed elements of a transcript, I always think to myself that, in giving these remarks, the judge will hopefully have written them down and not be doing these sorts of things off the top of their head. That is why I struggle to understand why these more limited elements are not more meaningful and easily available.
If a judge does not happen to write these sorts of things down, I do not think it will be much to ask them to do so and to make it so that the transcript can be quickly and easily checked. I appreciate that the hon. Member for Chichester will not press the new clause to a vote, but as she mentioned, in any opportunity we get we should push the issue of transcripts. It is particularly important in relation to, as we will come to talk about, the unduly lenient sentence scheme, because all these things would help somebody, in theory, to give an appeal a shot. If they do not have that sort of thing, it is much more difficult.
Sarah Sackman
The hon. Member for Chichester rightly acknowledges the significant amount of work that the Government are currently undertaking in this space, and we had an opportunity to debate that in Committee earlier.
In relation to the new clause, it might be worth briefly explaining why such an extension would not provide significant benefits compared with the systems already in place. In relation to bail decisions, a transcript of the hearing is rarely informative for victims. What victims need and want to know, and what the victims code already requires, is for victims to be informed of the outcome of the bail hearing and any conditions imposed. Those updates are already provided to victims by victim witness care units within five working days. We are currently exploring how responsibilities under the code are being met by the relevant service providers and how to better support them in the delivery of the code. To strengthen that further, once commenced, the Victims and Prisoners Act 2024 will introduce a compliance framework, requiring criminal justice bodies to keep their performance against the code under review.
Transcripts of judicial summings-up are unlikely to add significant value for many victims. Those remarks are given before the jury begins to deliberate and are intended to guide them by summarising the evidence and setting out the relevant law. They are not, and cannot be, a reflection of the jury’s decision. Without the full context of the trial, they may risk causing confusion rather than providing clarity. Before being released, summings-up must be manually reviewed to ensure that they are accurate. That, too, is resource intensive. In looking at where we can roll out making transcripts available at either low or no cost, we must target those areas that add value for the public and victims.
As I said when we discussed this last Thursday, we are focused on driving improvement for the longer term. That is why we are undertaking a study in the use of AI to transcribe court hearings. The findings will identify what is possible from AI transcription in a Crown court setting, in considering how to make the provision of transcripts more cost-effective. I think we are in a good place. As the hon. Member for Chichester says, there is more to do, and the Government would be grateful for work across the House to see how we can drive greater transparency in transcription in our Crown courts, but I urge her to withdraw her new clause.
Jess Brown-Fuller
The new clause is a sunset clause that would require a report on the effectiveness of certain provisions of the Bill. If the report found that the provisions were not effective, the Secretary of State would have to bring forward regulations to repeal them; if it found that they were effective, the Secretary of State would have to set a deadline for their repeal and a return to full jury trials.
The design of these reforms has not been tested in practice. There are many different estimations of their impact on the backlog, and if they are shown to not be effective, they must not continue. If they prove to be effective at reducing the backlog, full jury trials could be reinstated when the backlog is reduced and we are working at a level that the criminal justice system can cope with.
Dr Mullan
My new clause 24 and new clause 18 in the name of the hon. Member for Chichester seek to achieve a similar outcome. Although there is broad agreement that the backlog is a challenging issue that must be addressed, we believe that any measure that curtails jury trial rights in such a significant—and, I would say, unprecedented—way should be proportionate to the problem it seeks to solve and be used only for as long as absolutely necessary while we are presented with this problem. Therefore, we propose a sunset clause to ensure that the powers expire once the court backlog has returned to pre-pandemic levels for a sustained period.
A sunset clause is a measure in a statute that provides for a law or specific provisions to cease to be effective after a predetermined date, or once a specific condition is met, unless Parliament takes further action to renew them. Although they have experienced a resurgence in recent decades as a tool for managing extraordinary or controversial measures, sunset clauses have been employed by Parliament since at least 1500. Historically and in contemporary practice, they serve vital democratic functions. They are used to facilitate the passage of controversial legislation by assuring critics and the public that the measures are temporary, rather than a permanent erosion. They act as a safeguard for democracy, particularly when emergency legislation is required, by preventing the normalisation of extraordinary powers.
Furthermore, sunset clauses create a more formal trigger for post-legislative scrutiny, forcing both the Executive and the legislature to revisit their assumptions and evaluate whether a law has been effective before deciding whether to prolong its life. The Terrorism Act 2006 and the Terrorism Prevention and Investigation Measures Act 2011 both utilise sunsetting or recurring renewal requirements to ensure ongoing parliamentary oversight. More recently, sunset clauses were used in covid-19 legislation to ensure that restrictive measures did not extend longer than necessary. The UK Coronavirus Act 2020 contained a two-year sunset clause and a requirement for six-monthly reviews to determine whether temporary provisions should expire early.
When considering radical changes to our trial system during a time of crisis, we should look to our history for a more direct precedent. During world war two, a period when our continued existence as a free nation was genuinely uncertain, the Government of the day did not choose to radically cut down the use of jury trials or erode the right of the citizen to elect to be judged by their peers. Instead, they reduced the number of jurors from 12 to seven. Importantly, that was a temporary adjustment. As soon as the Nazi threat was defeated, the Government of the day restored the number of jurors to 12. That demonstrates a principled understanding that emergency measures taken in response to a temporary crisis should be reversed once that crisis is resolved.
In contrast, the measures before us today regarding the erosion of jury trials and the abolition of the right to elect are drafted as permanent changes to our statute book, with no built-in mechanism for their reversal once the backlog is managed again. As I have said, that is a significant departure from the most closely related historical example of what we did during even the darkest days of the 1940s.
Our sunset clause would tie the duration of these reforms to the very problem they are intended to fix. The Government’s case is that these are necessary, backlog-driven measures, and it is entirely consistent to state that they should expire once that backlog is brought down to a more historically normal level, which we define as the pre-pandemic level—a level that the system was able to manage sufficiently, if not perfectly, without the need for structural erosion of the right to a jury.
Dr Mullan
I beg to move, That the clause be read a Second time.
If you will indulge me, Dr Huq, I want to congratulate the hon. Member for Rugby on the news that he has been appointed as a trade envoy. We can all recognise that he has put an enormous amount of work into that. The Opposition think that he is amazing at selling the unsellable; he does it all the time. If he has British products to sell, he will be amazing at it. He should just double check that he is going to the south of Korea, rather than the north.
As we have said before, we are debating a Bill that represents one of the most significant reconfigurations of our criminal justice system in modern history, and it is therefore unsurprising that we feel that other contingent parts of the system need to be considered in that light and adjusted accordingly. As we expand the reach and punitive power of the magistrates courts, we must ensure that our procedural safeguards in both directions keep pace with that expansion. That is the core purpose of new clause 26, which proposes to extend the unduly lenient sentence scheme to triable either-way offences, which will now be increasingly retained and sentenced at the summary level. If we can trust magistrates with the power to deprive a citizen of their liberty for up to two years, the public must have the assurance that there is a mechanism to correct sentencing decisions that fall in the other direction by being unduly lenient.
The Government have occasionally attempted to reframe their reforms as affecting only low-level or petty crimes such as shoplifting, but the reality of the triable either-way category is very different from that. As the Criminal Bar Association and JUSTICE have pointed out, some of the offences that will be almost exclusively in the jurisdiction of the magistrates courts include unlawful wounding, actual bodily harm and, as we have discussed, even some sexual assault cases. Those are offences where the impact on the victims can be very significant. For some time, I have been aware of dissatisfaction in many ways with the punitive element of our justice system, and whether it sufficiently punishes perpetrators in a way that victims and the wider public would consider to be justice. That is one of the reasons why the unduly lenient sentence scheme exists.
In the Crown court, sentencing outcomes are subject to the oversight of the Attorney General’s office through the unduly lenient sentences scheme. It is an essential safety valve that helps contribute to public confidence by allowing the public—it has always been open to the public—and, most importantly for me, victims and family members to refer unduly lenient sentences for consideration by the Court of Appeal. As I have talked about previously, I have made it use of it and so have other Members of the House, so it is important. It would be illogical to allow offences with the same potential gap in public confidence in the outcome to be without this equivalent safeguard, simply because the Government have decided to change the likely venue of trial in so many of these cases.
The need for the extension is further underscored by the evidence on the rate of appeal of sentences from the perspective of defendants. About 47% of appeals against sentences from the magistrates courts result in a change. Those figures are not marginal; they indicate that the lower courts fall into meaningful error in nearly half of the cases where they are challenged. That is from the perspective of the defendant—that is, the person found guilty—appealing the sentence. There is nothing to suggest that, if victims were given a similar opportunity to challenge sentences, no similar rate of error would be found from their perspective. That is, at the very least, of equal importance to someone who has campaigned significantly on behalf of victims in sentencing. For me, it is probably the more important of the two.
Historically, one of the primary arguments against extending the ULS scheme to magistrates courts was a practical one: there was no comprehensive record of the proceedings and sentencing decisions were often delivered without the detailed recorded remarks that characterised the Crown court. However, the Bill fundamentally changes that landscape. Schedule 2 introduces proposed reforms to introduce a mandatory requirement for audio recording and the provision of transcripts in the magistrates court. The Government are making this change to support their new appeal model, recognising that a fair system cannot function without an accurate record of what was said and decided. This move towards digital transparency is a game changer for sentencing accountability for victims as well.
As the Minister herself noted, sunshine is the best disinfectant. Once we have a reliable audio record of the sentencing remarks and the mitigations offered, the logistical barriers to reviewing a sentence for undue leniency from a victim’s perspective and that of the wider public falls away. We will, for the first time, have the infrastructure to allow the Office of the Attorney General to scrutinise sentences with the same precision applied to the Crown court. We should use this new capability to ensure that the sentencing code is applied fairly. Extended sentencing powers must be matched with extended accountability. If a magistrate is given power more akin to a judge, then they must be subject to the same oversight of their sentencing decisions. New clause 6 is not about creating more work for the Court of Appeal; it is about ensuring that, as we redraw the boundaries of our legal system, we do not leave victims of serious crime behind in a two-tier justice system where leniency cannot be corrected.
In summary, the proposals to extend the ULS scheme to either-way offences is a necessary and proportionate response to the Government’s radical restructuring of the trial process. Magistrates will soon be passing sentence on much more serious offences where the interest of victims will be of even greater concern. The record is improving to allow this to happen at the same time and it is common sense that there is consistency. I do not think there is a rational basis for excluding more serious offences from the ULS scheme simply because of the venue.
We should not wait for a high-profile case where a victim is concerned and able to seek redress in the way that they might in the Crown court. I ask the Minister to be proactive. I can understand that the Minister would perhaps argue for a more gradual approach—and perhaps not applying it to every single case might be a compromise that the Minister could bring forward. Perhaps it should be for the more serious of these less-serious, more-serious cases. However, I certainly think that we can have some kind of progress.
Sarah Sackman
I thank the hon. Member for Bexhill and Battle for this new clause on the unduly lenient sentencing scheme. The ULS scheme is an exceptional power, reserved for the most serious cases, that applies only to offences passed in the Crown court. One of the things that we have seen—this is not an unwelcome development—is its expanded use. What started as an exceptional power used in a handful of exceptional cases has grown in usage as members of the public, their representatives and others who have either experienced crime, or have loved ones who have, take up the ULS scheme in greater numbers. In 2025, the Office of the Attorney General assessed around 1,500 cases.
It is important to focus on what the ULS scheme is and what it is not. It is a legal backstop that rightly sets a hard test. Someone simply not agreeing with or taking issue with the sentence handed down to a particular offender is not, of itself, a basis for challenging it. One needs to show that there has been a gross error in the application of the sentencing guidelines, and that the sentence is manifestly inadequate given the seriousness of the offence.
I understand the points that the hon. Member for Bexhill and Battle is making. I would, though, draw attention to the fact that the Law Commission is currently undertaking a review of criminal appeals, which includes looking at reforms to the unduly lenient sentencing scheme. The Law Commission is due to publish its report in autumn 2026. I suggest that that is an appropriate moment to look at the operation of the scheme and at what is suggested in the new clause about its current operation as it applies in the Crown court, rather than pre-empting what that report might say and how the Government might think about the scheme’s potential extension to the magistrates court.
I cannot support the new clause at the moment, as it would in effect significantly alter the scope and operation of a power that is supposed to be exceptional. It would make the exceptional the norm. It would entail administrative burdens and goes against the grain of what was intended when the scheme was first conceived. However, I look forward to seeing the Law Commission’s work. That will be the appropriate moment to re-examine how the scheme operates and how it operates in a reformed system. I urge the hon. Member for Bexhill and Battle to withdraw the new clause.
Dr Mullan
The Minister opened her remarks by saying that the scheme applies only to certain cases in the Crown court. The point that the Opposition make is that it will no longer apply to some of the cases to which it would apply now. The Minister has given figures. If the scheme is configured in the right way, and sufficiently constrained to just pick up those cases that are moving, it should not necessarily lead to any increase in the number of cases referred, so I do not accept her argument.
I would not expect the Minister to know this—she has given a single set of figures—but I would be interested in the historical trend, and the number of applications in the preceding few years. It would be helpful if she could give those figures. I also want to make clear—I have been quite clear about this with other stuff that we have done on the ULS scheme—I think it is unusual that the scheme is available to absolutely anybody. I would be open to any expansion or modification being constrained just to victims and family members. I think that I have made that clear in relation to other reforms.
That brings me to the Minister’s point about the Law Commission. That was the answer I was given repeatedly over very many months by the Victims Minister as to why the Government would not make reforms to the scheme, yet they accepted such reforms last week as a result of pressure. If the Minister insists that that is the route forward, I ask her to write to the commission. I point out the reforms that the Minister is making, which will not have been in the terms of reference for the Law Commission. At the point at which it started that work, the reforms were not even on the operating table, so it is important that the Government write to the commission and make clear that they would welcome it expanding the matters that it is considering to include this question, which would have been novel to them at the point of that undertaking.
I have learned from our experience with the other element of the ULS that, I am afraid, one should just keep pushing and pushing on such issues, so I will put the new clause to a vote. However, I have given some points on which I ask the Minister to go away and reflect to determine whether there is a way forward that can be satisfactory to both sides of the House at some point in future proceedings.
Question put, That the clause be read a Second time.
Jess Brown-Fuller
I beg to move, That the clause be read a Second time.
New clause 35, which I tabled last week after a conversation with the Victims’ Commissioner, would reinstate an inspectorate body for the criminal courts in England and Wales. The Courts Act 2003 introduced His Majesty’s Inspectorate of Court Administration, which was established in 2005. The inspectorate was then closed in 2010, with the then Government arguing that audits of HMCTS, combined with the inspection regimes of the current justice inspectorates and the National Audit Office, negated the need for HMICA. However, a 2022 Justice Committee report found that that argument had not stood the test of time, and it called for the re-establishment of an inspectorate body. The report stated:
“A Courts’ Inspectorate, which is independent from Government, could make a substantial difference to the accountability and transparency of the justice system. It could use inspections and the promised improvements to the quality of the data to make recommendations that can inform policy and guidance in both criminal and civil justice. An inspectorate could also help to monitor the use of technology in the courts.”
This is a really important time to introduce the additional level of having a courts’ inspectorate, especially when the use of technology will play a much larger role in the criminal justice system, as well as the quality of the data coming out, which the Committee has debated various times. The proposal was backed by Andrew Cayley KC, then chief inspector for the Crown Prosecution Service. He favoured an even broader court inspection regime to scrutinise the operation of the disjointed parts of the system, particularly regarding the listing of cases. The re-establishment of a courts inspectorate was also recommended by Sir Brian Leveson in part 2 of his independent review of the criminal courts; it was recommendation 58. While there are four criminal justice inspectorates, Sir Brian notes:
“There is, however, no one body that is responsible for the inspection of the criminal courts in England and Wales.”
Due to limitations to the scope of this Bill, our new clause proposes a criminal courts inspectorate that would inspect and report on the administration and operation of the criminal courts. The new clause stipulates that that inspectorate must have
“particular regard to the experience of witnesses and victims”
when assessing
“the efficiency, effectiveness and accessibility of those courts”.
An inspectorate would identify inefficiencies and monitor victims’ experience in the system.
When debating an earlier group, the Minister mentioned what I think she called a public governance board that she is exploring. It would be helpful if she could outline whether she sees my new clause as different from that, or whether she is looking to create an additional level of inspection and scrutiny in the criminal courts system.
Dr Mullan
As I have alluded to several times, the Conservative party is considering more broadly how we tackle judicial accountability in all its different elements. It would be premature for us to settle on this new clause if, as the hon. Member for Chichester pointed out, it had to be necessarily narrow to fit in the Bill. On that basis we will not vote for it. We are not against it as an idea, but we need greater time to think about accountability and performance in the justice system in a more comprehensive way.
Sarah Sackman
I agree with the sentiment behind the new clause to ensure that we are monitoring efficiency, effectiveness and performance across our criminal courts system. However, as the shadow Justice Minister just said, the best mechanisms for holding the system to account in terms of performance and judicial accountability merit greater reflection. We are taking the time to consider the IRCC’s recommendations. The hon. Member for Chichester alluded to the history, and that there has previously been an inspectorate of court administration; that of course ceased operation under the coalition Government, who found it unnecessary at the time.
Sarah Sackman
These clauses are in part 3 of the general provisions of the Bill. They provide the position on the commencement of measures in the Bill, the powers to make consequential, transitional and other provisions in connection with the coming into force of the provisions of the Bill, and the Bill’s territorial extent and short title.
Clause 21 is a technical clause that will allow the Secretary of State to make any further consequential amendments or legislative changes where required to implement the provisions in the Bill. Clause 22 creates a power to allow the Lord Chancellor to make “transitional or saving provisions” by regulation
“in connection with the coming into force of any provision of this Act.”
Clause 23 will allow the Secretary of State to, by regulation, amend the Sentencing Act 2020, so as to specify the cases or purpose for which the amendment or repeal made by the Bill has effect.
Clause 24 allows for regulations under statutory instrument to be made under the Bill once it becomes an Act. The Bill contains nine delegated powers; we have considered the scope and extent of those powers carefully and have taken the decision to include them only where it is necessary, in respect of particularly technical or detailed areas, or to allow flexibility for our legislation to remain up to date and be responsive to changes.
Clause 25 sets out the extent of the Bill. All measures apply to England and Wales only, save in respect of four areas: section 7; section 18(6) and subsection (7); sections 10(4) and 11(8); and part 3. Those four areas have UK-wide extent, except for sections 10(4) and 11(8), which have the same extent at the Armed Forces Act 2006, so that they extend to the UK, the Isle of Man and British overseas territories except Gibraltar.
Clause 26 states that the measures in the Bill will be commenced via regulations on the day that the Secretary of State appoints apart from clauses 21 to 25 and clause 27, which come into force on the day on which the Act is passed, and section 6 and section 20, which come into force at the end of a period of two months beginning with the day on which the Bill is passed. Finally, clause 27 states that the Bill
“may be cited as the Courts and Tribunals Act 2026”
once it becomes an Act of Parliament.
I thank all members of the Committee for the spirit in which they have engaged over the last five days. Some may know the famous line, “I fought the law and the law won.” Some may also know that I have been developing a Spotify soundtrack to get me through the Committee, inspired by some of the interventions. Everyone has not only made this stage constructive and engaging, but given the Government a lot of food for thought as we take the Bill through to the next stage. It will be all the stronger for the contributions that have been made, so I thank everyone for that.
Dr Mullan
I have just one remark to make. I draw the Committee’s attention to the submission we received from the circuit in Wales. Clause 25 is about the territorial extent of the Bill, and the circuit pointed out that it feels the Welsh system has been unfairly caught up in these reforms, which it does not think are applicable in terms of the need to reduce waiting times. It is important that the Committee makes note of the evidence that was submitted to us.
I join the Minister in thanking everybody for their time and deep concentration when listening to the exchanges throughout. I thank the Clerks who have assisted us over the many days, including during a late sitting. I thank the House staff in that regard, and I thank the Minister for the constructive manner in which she has engaged with feedback and proposals from this side of the House.
Sarah Sackman
I commend clauses 21 to 27 to the Committee. I did not specifically mention the House staff and all our wonderful Chairs. I add my thanks to everybody for their hard work. I also thank my team of officials—those watching at home and those in the room—who have worked very hard.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Clauses 22 to 27 ordered to stand part of the Bill.
Bill, as amended, to be reported.
Courts and Tribunals Bill (Eleventh sitting)
Kieran Mullan ExcerptsTuesday 28th April 2026
(1 week ago)
Public Bill CommitteesRead Full debate Courts and Tribunals Bill 2024-26 View all Courts and Tribunals Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2026 - (28 Apr 2026)
Yasmin Qureshi (Bolton South and Walkden) (Lab)
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairship, Sir John. New clause 1, tabled by my hon. Friend the Member for Liverpool Riverside (Kim Johnson), would address cases in which the prosecutions need to start a second or third time. It would reclassify offences and move the threshold of offences that are in the Crown court to summary offences. It would increase the maximum possible sentence reduction on a guilty plea to two fifths, remove the restriction that means the highest reduction is available only for early-stage guilty pleas, allow the defendant to receive that reduction even if they plead guilty later in the process, and extend eligibility so that the reduction can also apply before a retrial.
The new clause would build on the huge successes of the Liverpool model and Operation Expedite—which was praised by Sir Brian Leveson’s review of the criminal courts—in bringing down court backlogs. Those successes were largely based on a focus on pre-trial negotiation or plea bargains to avoid cases going to a trial and taking up court time.
The new clause is in tune with the Government’s recent announcement following the review carried out by the former Lord Chancellor, David Gauke, which looked at trying to avoid giving people a sentence of less than one year because of the disruptive nature of those sentences. The Government could accept the new clause as part of the process of trying to prevent a backlog. It would also allow people to plead guilty, which would be better for victims, complainants, witnesses and the court system.
Dr Kieran Mullan (Bexhill and Battle) (Con)
I wish to make some brief remarks. I am keen to see suggestions of alternative approaches, but we have to be careful when it comes to discounts for guilty pleas, because there is a balance to be struck from the perspective of victims and complainants. We do not want to be in a situation where they feel that justice is undermined, particularly given the many other things the Government are doing to reduce the punitive element of the justice system.
I am sure the Committee will know that thousands of serious violent sexual offenders will be getting reductions in their prison time. For example, two thirds of those sent to prison every year for rape will have their prison time reduced, and more than 90% of those sentenced for child grooming offences and similar offences will have their prison time reduced to one third. We are already seeing appalling erosions of the punitive element of the justice system by the Labour Government; I would be wary about doing anything that adds to that.
The Minister for Courts and Legal Services (Sarah Sackman)
It is a pleasure to serve under your chairmanship, Sir John. I thank my hon. Friend the Member for Bolton South and Walkden for speaking to the new clause. As she knows, an early guilty plea avoids the need for a trial, shortens the gap between charge and sentence and, crucially, can save victims and witnesses from the concern of having to give evidence.
Sir Brian Leveson’s independent review of the criminal courts found that
“guilty pleas are being entered later and later”
in the process. It found that
“in 2016, approximately 25% of defendants who pleaded guilty to all counts prior to trial did so at or after their third pre-trial hearing”,
compared with 35% in 2024. That reflects the decline in the efficiency and the increase in delays in the criminal courts. Sir Brian made it clear that that was contributing to the backlog and, in turn, creating a “feedback loop” of perverse incentives for defendants. There are, then, clearly benefits to ensuring that those who intend to plead guilty do so at the earliest possible opportunity.
For those reasons, it has long been the practice of the criminal courts to give a reduction in sentence when an offender pleads guilty earlier in the process. The level of sentence reduction that the court can give on a guilty plea is currently set out in sentencing guidelines produced by the Sentencing Council. In his review, Sir Brian made a number of recommendations relating to early guilty pleas, including a recommendation to increase the maximum reduction in sentence for a guilty plea from 33% to 40%, which new clause 1 seeks to implement.
However, we must maintain the right balance between the benefits to the system obtained by the making of early guilty pleas and ensuring that offenders are appropriately punished for their crimes. Sir Brian also notes that increasing the maximum sentencing discount for early guilty pleas could increase the
“risk of pressure being brought to bear on defendants to plead guilty, who might not otherwise have done so.”
It is therefore important that we consider whether there are alternative ways to encourage early guilty pleas, as opposed to increasing the level of maximum sentence discount.
We are not convinced that a further discount will work to incentivise the behaviours that we desire in the system, not least because other matters play their part in incentivising an early guilty plea, or the opposite. They include the nature of the offence, whether a defendant is remanded or released on bail, and the level of early engagement by the prosecution and defence in advancing case progression. We consider all those things as alternative factors that drive defendant behaviour. Most importantly, the punishment must be appropriate to the offence in question, and we think the new clause would cut against that.
We are currently carefully reviewing Sir Brian’s remaining recommendations, alongside part 2 of his review, and we will set out our full detailed response to that review in due course. For those reasons, I urge my hon. Friend the Member for Bolton South and Walkden to withdraw the clause.
Yasmin Qureshi
I rise to speak in support of new clause 2, which was tabled in the name of my hon. Friend the Member for Warrington North (Charlotte Nichols). On Second Reading, my hon. Friend made one of the most powerful contributions the House has heard in recent memory. She spoke from her own experience as a victim of rape and made a point that deserves to be heard again in this Committee. She said that the experiences of victims are being “weaponised” and used as a rhetorical cover for reforms that do not deliver anything meaningful for those victims.
My hon. Friend also said something that goes to the heart of this debate: we promised specialist rape courts in our manifesto. The Bill does not deliver them. That observation raises a wider question for the Committee, as we consider new clause 2, about the manifesto commitment and what the Bill does instead. The Labour manifesto made a clear commitment to establish specialist courts for rape and sexual offences and for domestic abuse. That commitment existed because we recognised that the system was failing victims, not because of juries but because of how cases were being managed—the delays, lack of court capacity, the way evidence is handled and the limited support available to those giving evidence.
New clause 2 is the legislative delivery of that manifesto commitment. It would not require us to restrict jury trials or accept a reform the benefits of which may, according to the Institute for Government, amount to as little as a 1% to 2% reduction in delays—a reduction the Bar Council considers optimistic. Instead, it would require us to build something that is already proven to work.
What works and what does not work? On Second Reading, my hon. Friend the Member for Warrington North pointed to the work already under way at Liverpool and Preston Crown courts. That work is reducing waiting times for complainants and defendants—we are talking about months, not years—without removing anyone’s right to be tried by a jury. That is the model, that is what we should be scaling, and that is what the new clause would require the Lord Chancellor to do.
Instead, the Government have brought forward reforms that will not take effect until 2028 or 2029. A victim who reports a rape today will wait through years under the existing system before a single one of the Bill’s provisions affects their case. We are being asked to accept a permanent reduction in defendants’ rights in exchange for a speculative and delayed improvement in victims’ experience. That is not a serious offer.
Let us be clear what the Bill does not do. It will not improve how evidence is handled, how cases are managed or how victims are supported through the process. It will not guarantee timely disclosure, it will not ensure fixed trial dates, it will not provide independent sexual violence advisers where they are needed, it will not reform the conduct of cross-examination, and it will not address wider support or compensation issues. All of those things, which the violence against women and girls sector and Rape Crisis England and Wales have consistently called for, remain untouched.
As my hon. Friend said on Second Reading, we should not claim that the Bill delivers justice for victims unless it actually does. The Bill will not do that. New clause 2 would take a different approach. It would preserve jury involvement in every case while introducing a specialist court designed to deal properly with sexual offences and domestic abuse. Each case would be heard by a jury and a specialist judge with training in coercive control, trauma responses, honour-based abuse and best practice in cases involving violence against women and girls. That combination matters. A specialist judge improves the management of proceedings. A jury brings the collective judgment and diversity of the public.
As the Lammy review found, juries are far more diverse than the judiciary, and there is no evidence that jury verdicts are affected by the ethnicity of the defendant. By contrast, the removal of juries risks undermining confidence, particularly among victims from minority backgrounds or people from poorer working-class backgrounds.
To address the real causes of delay, we ask that strict time limits for case preparation are set. We ask for fixed and reliable trial dates; the proper management of disclosure and third-party material; the prioritised listing of cases, including those of defendants who are on bail; specialist facilities for victims; and the adequate resourcing of judicial, administrative and legal support, including independent sexual violence advisers. These practical reforms would make a material difference to how cases are handled and to the experience of the victim, and they can be done quite quickly.
The Government have relied heavily on the experience of victims to justify the reforms, so they should support new clause 2, which would deliver on our manifesto commitment. It is based on a model that already works well. It would improve things for victims without removing fundamental safeguards and does not ask victims to wait until the end of the decade to see any benefit.
The Government have identified a real problem but, with respect, have chosen the wrong solution. If the Bill was truly about delivering justice for victims of rape and sexual violence, we would not be debating the restriction of jury trial; we would be implementing the specialist courts we promised. The Bill does not do that. I ask the Government to consider the new clause; otherwise, it will be a missed opportunity. I commend the new clause to the Committee.
Dr Mullan
It is a pleasure to serve under your chairmanship, Sir John. We are all here because we recognise that the current state of our criminal courts is untenable. Complainants and defendants alike are facing unacceptable delays, and victims and innocent defendants are suffering as a result. The Government’s response, as set out in the Bill, is a radical restructuring of our trial processes, most notably in the removal of the right to a jury in a vast number of cases—around half, in fact. We believe there is a strong obligation on the Government to institute a more targeted, and potentially more effective, way to address the specific delays that they most frequently cite, through the establishment of specialist courts for rape and serious sexual offences.
The Minister herself raised this issue in the Chamber on 7 January. When talking about jury trial reforms, she said:
“Does it make sense that the queue of the victim of rape or of a homicide is shared with someone who has stolen a bottle of whisky”?—[Official Report, 7 January 2026; Vol. 778, c. 278.]
In December, the Deputy Prime Minister and Lord Chancellor said:
“if someone is charged with an offence such as theft of a bicycle, theft from a vehicle or employee theft, they can opt for a trial that, by necessity, goes into the system and will delay a rape trial”.—[Official Report, 2 December 2025; Vol. 776, c. 807.]
That point has been made by a number of Labour MPs, including the hon. Member for Bolsover (Natalie Fleet). The Opposition have been clear that that is an oversimplification of how the listing process works, and that some of those examples are extremely unlikely to be in the queue in the Crown court, except for in specific circumstances. Nevertheless, the Government have been advancing that case.
A commitment to introduce specialist courts was actually in the Government’s manifesto. By fulfilling the promises made to the electorate, the Government can deliver swifter justice for a group of victims they have centred in the debate, without dismantling the constitutional right to elect for jury trial. The Government’s proposals to halve the number of jury trials was not in the Labour party manifesto, but on page 67 there was a commitment to
“fast-track rape cases, with specialist courts at every Crown Court location in England and Wales.”
It could therefore be argued that—as much as we can debate what in an entire manifesto the public vote for—the public voted for a system that would prioritise these types of cases through specialisation and resourcing, and did not vote for a system that would instead prioritise administrative throughput by removing the right to elect to be judged by one’s peers.
Sometimes, Governments do things that were not in their manifesto one way or another, or were not touched on in any way, but it would be difficult for people to argue that the public had a specific idea that they were not going to get certain things. However, if a Government put in their manifesto a particular element of direct relevance, as they did in relation to specialist courts, the public would have every right to be aggrieved if something entirely different, and significantly so, appeared as Government policy instead of what was in the manifesto.
Opposition new clause 25 asks the Government to return to their original vision. It is similar to the other new clauses tabled by the Lib Dem spokesperson, the hon. Member for Chichester, and by the hon. Member for Warrington North. They are crafted in different ways—for example, new clause 2, tabled by the hon. Member for Warrington North, is more prescriptive about how the courts would operate—but the intention and outcome are essentially the same. Specialist courts equipped with trauma-informed training and access to independent sexual violence advisers would recognise the unique complexity of these cases in a way that a simple bench division cannot.
As I have said, the Government frequently refer to the experience of rape victims waiting years for justice as a significant justification for restricting jury trials. They argue that moving towards judge-led trials in 50% of cases will streamline the process and reduce the backlog, but the evidence for the broader claims of efficiency is highly contested.
Independent analysis by the Institute for Government suggests that judge-only trials in the Crown court might save as little as 1.5% to 2.5%—[Interruption.] The Minister is right to say, and I do not mind accepting, that the saving is higher for the broader package—that has never been a point of dispute—but we are less concerned about the broader package, and there are things in it that we agree with. We are concerned about the much smaller saving that the IFG has pointed out. The Criminal Bar Association has pointed out that the Government’s modelling assumes that the trials will be completed twice as fast as is realistic. We must ask whether the trade-off is proportionate, especially when there is another option.
Sarah Sackman
I thank the hon. Member for that intervention. I will make two points in response. First, the full extent of the crisis in our criminal justice system was not apparent. It was not apparent in prisons, when we opened the car bonnet on day one and essentially found prisons at breaking point. That obviously interacts with courts, because if we are sentencing people and there is simply nowhere to put violent criminals, we have a pretty serious problem on our hands. The full extent of the crisis in our courts was not apparent either, and we need to have a solution that meets the moment. That is what this Bill is.
Secondly, I strongly refute the suggestion that we have been sitting on our hands; rather, we have been putting in place the building blocks and ingredients of a specialist court. We are rolling out trauma-informed training not just for our specialist judges but for every member of the court staff—that is in train. We are changing the way that evidence is dealt with, as we debated on clauses 8 to 11. We are investing £6 million in the introduction of independent legal advisers for victims of rape as they go through that process. We are committing more than £500 million to victim support, some of which will cover victims of rape and sexual offences. I would argue that that is far from change denied. I would call that change in train, which will deliver a transformation for victims of rape in this country.
Dr Mullan
The Minister is in danger—there is a bit of a pattern here—of wanting to have things both ways. She is suggesting that waiting for Brian Leveson’s review, and the parliamentary time and effort going into the legislation, has had no impact or delay on the measures regarding specialist rape courts, which were in the Government’s manifesto and they could have just got on with from day one. That really stretches credibility.
The Government must accept the consequences of their decisions. If they have decided that the erosion of jury trials is the way forward, they should just say that and accept that there has been a negative consequence on their manifesto commitment to introduce rape courts. The Minister cannot say, “We’re pretty much doing what we would have done anyway, and this is all fantastic from both sides of the paper.” It is really not.
Sarah Sackman
Once again, I strongly reject that suggestion. The two things are not mutually exclusive: wanting to bring in measures that speed up justice for every victim in the criminal justice system and building the foundations for a specialist court.
Let us get back to basics. What is a specialist court? What are we talking about? I have discussed this with my hon. Friend the Member for Warrington North. A specialist court prioritises a type of offence to address the timeliness issue. It guarantees special measures. Again, we have debated provisions in Committee about how we ensure the consistent guarantee of special measures in whichever Crown court in the country a rape trial occurs. Thirdly, it is a court in which not just those who are adjudicating and directing juries, but those who are supporting the participants, are trauma-informed, as that is how we now in contemporary society understand that evidence needs to be treated. That training is in train.
Those are the essential ingredients of a specialist court. Those are the building blocks. We guarantee them not just in this Bill but through the funding of training and the measures being implemented in our courts. That is really important, but it does not have a bearing on the overall backlog problem. It prioritises those cases, as we recognise them being among the most serious with some of the most acute trauma, but it does not deal with the huge backlog delays for other forms of violent crime and other types of crime.
Sarah Sackman
We are making those choices. The difference is that we do not need legislation to make those choices. We have made those choices, including the commitment of money to fund independent legal advisers, trauma-informed training and victim support. We have made those decisions. We have put those building blocks in place. We do not need legislation to deliver specialist courts. I had this discussion yesterday with the Victims’ Commissioner. We do not need legislation.
I wholeheartedly agree with the spirit of the new clause. How could I not? It is in our manifesto. We are taking action to deliver it. We do not need the new clause to deliver it—that is the point. I will come shortly to its unworkability, but I will not take from the hon. Member for Brighton Pavilion or anyone else the suggestion that we have not been making the choices to deliver on our commitment to halve violence against women and girls.
Sarah Sackman
I am going to make some progress.
As I said, and as I discussed with my hon. Friend the Member for Warrington North, I assure the Committee that the principle behind this proposal is recognised by the Government. I agree with my hon. Friend on her assessment of what is needed: swifter justice and prioritisation so that victims do not wait years for their day in court; specialist staff and judges who are trained in these kinds of cases; and properly equipped courtrooms that support victims and witnesses to deliver their best evidence with dignity.
Dr Mullan
Thank you, Sir John. I just want to make a simple point. The Minister said that what the Government want to do does not require primary legislation, but in the same speech referred to primary legislation that we are considering today as part of introducing specialist rape courts. It is obvious to anybody that there is a requirement for primary legislation. We waited a year for Brian Leveson and we are two years into the Parliament. There are uncontroversial clauses that we have not opposed; the Government could have got on with those and passed them within six months, and they would be operating right now. I just do not think the Minister’s argument that nothing has been lost from progress on these issues because of the jury trial reforms stands up to scrutiny.
Dr Mullan
I rise to speak in support of amendments 59, 35 and 36 tabled in my name, and the amendments outlined by the hon. Member for Chichester, all of which enjoy our support.
Our amendments seek to ensure that efficiencies and improvements to the system are made, increasing the maximum of sitting days to 130,000 and, in a different way, addressing the issue of sitting hours. We are debating the fundamental restructuring of our criminal justice system, and the Government’s central argument—the Minister has admitted that it is not the sole argument; even though most of the rest of the Government talk about this as a necessity, she thinks it should be done anyway—is that the Crown court is in a state of emergency with the backlog that we all agree is causing much distress to victims and innocent defendants alike.
Amendment 59 asks the Government to take all reasonable steps to increase Crown court sitting days and address the other challenges in the system that are limiting our ability to tackle the backlog—the avoidable operational failures currently crippling our courts.
We must remember that Sir Brian Leveson acknowledged that jury trials are the gold standard of our justice system. The Minister herself accepted that there was something special about them. Juries are not just a step in a trial; they are a democratic barrier between the individual and the overreach of authority. They are an important way in which citizens participate in our justice system. The Deputy Prime Minister has been one of the biggest cheerleaders of the value and importance of jury trials, describing them as a “success story” and comparing them less favourably with the magistrates courts—although I am sure he respects and understands the benefit of magistrates courts—because of the ability of 12 citizens to look at a case uniquely and without prejudice.
Productivity in the Crown court has fallen significantly, and analysis shows that courts are hearing approximately 20% fewer hours per sitting day than they were less than a decade ago. In evidence to us, the Bar Council shared analysis showing that the average for which each Crown court judge sits in court each day has fallen to 3.2 hours. That is due to inefficiencies such as technological breakdown, prisoner transport delays and difficulties with interpreter services. Just getting back to the 2016-17 level of 3.8 hours would be an 18% improvement, far outstripping the much debated, but we think much fairer, figure of a 1% to 2% improvement in relation to the reforms to jury trials. If the Government were serious about efficiency, they would start by addressing the low-hanging fruit in respect of the logistical problems.
Members will remember the evidence from the HMCTS civil servant tasked with running the system, asking for it to operate efficiently. He talked about listing, prison transport and sitting days as his priorities, and none of the things that he felt would make a significant impact required any changes to jury trials.
Prisoner escort and custody services, as they are known, have been a strong theme of concern from a wide variety of witnesses. The figures that I have show that there were 713 ineffective trials in 2023 solely because the prison escort service failed to deliver a defendant to court on time. Reports from barristers indicate that, in a quarter of cases, their clients were brought to court more than five hours late, meaning that the trial day could not start on time or was lost entirely. That grit in the system causes thousands of hours of delays across our courts, yet the Government’s priority is to remove the jury trial rather than fix the transport contract.
Another major drain on efficiency is the timing of guilty pleas. Sir Brian Leveson noted that defendants used to plead guilty at their first or second appearance, but we now see many examples of guilty pleas occurring at the fifth or sixth occasion. The Minister is right to raise that, and we accept that one element is delays in the court system that reduce the incentive for a guilty plea. We have heard evidence that defendants would say, “I just want to hold off my guilty plea until I have a last Christmas,” but that has now become, “I want another two Christmases.” So we understand the delays, but they are not the only reason and are not an insurmountable problem.
Instead of removing the right to a jury, the Government should focus on improving access to early legal advice, which we know can make a big difference. We can also learn from courts such as Liverpool Crown court that have a laser focus on an approach to listing, which encourages early engagement by defendants and legal representatives alike. That has produced results with their Crown court backlogs that are nothing like the national figure. They are not alone in showing what can be done without the need to erode our jury trial rights. The Bar Council points to other successes in the system and says that blitz courts, established by Crown courts such as Preston, Liverpool, Nottingham and others, are effective.
Preston Crown court’s listing of domestic abuse cases from the autumn of 2024 until this year has reduced the time between plea and trial preparation hearing, listing and trial by 16%. Ipswich Crown court’s backlog is down 28% since January 2024, and Derby Crown court’s fast-track courts are being run with a specific focus on cases with allegations of domestic abuse. That scheme has been successful, with those cases now being listed for trial sooner than when they might have been otherwise. We also received evidence that the circuit in Wales does not have a backlog that is anything like the rest of the country, which shows what can be done.
The Government promise that judge-only trials will be 20% faster, but that figure is based on highly uncertain assumptions and anecdotal evidence. We have made the argument in Committee that there might be savings up front, but we could lose those savings in the time taken by judges to deliberate and provide their summation, which we should also weigh up.
Amendment 59 relates to all the things that could be done to improve efficiency without necessarily having an increase in sitting days, but we cannot support the removal of constitutional rights while we have not even hit the maximum sitting days target that Sir Brian Leveson recommended. Amendment 35 would require the Government to demonstrate that they have funded at least 130,000 Crown court sitting days before they can commence their reforms. That figure is the target number that Sir Brian says the Government should seek to achieve if they want to bring down the backlog. Our amendment would require HMCTS to assess that those sitting days have, as far as possible, been fully utilised, and that ties in with amendment 59. It is no good the Government funding, in theory, a maximum number of sitting days if they are not able to utilise them for various reasons, some of which I have covered. Amendment 35 would also require the Lord Chancellor to make a statement to the House confirming that, even after those steps have been taken, the number of cases pending trial has not been reduced compared with the start of the financial year.
We are essentially putting forward a litmus test. If the Government want to say that they have no other options and that there is no other way to do this, they should at least take the steps recommended by Sir Brian in terms of efficiencies, reforming how the system operates and having the maximum number of sitting days, which they have to get to at some point anyway if they want to argue in support of Sir Brian Leveson’s report as a litmus test for what is sufficient.
If the Government are confident in their analysis, they should have no difficulty meeting that test. I know the Minister will talk about the time it will take to reach that point, but the dial can be pushed both ways. I do not think the Government are seriously suggesting that the jury trial element of the reforms will make a drastic difference to the backlog in the next one or two years. As we have discussed, the time saving of the jury trial element on its own is not that significant.
Amendment 36 has a different approach, but seeks to make the same point as new clause 4, tabled the hon. Member for Chichester, which relates to having two court sittings a day. Our amendment 36 asks the Government to approach another possible alternative reform of the operating hours of our courts—specifically, the potential for extending court sitting hours and introducing weekend sittings. If we are in a state of emergency, as the Government claim, our response should focus on maximising the use of our existing infrastructure, rather than dismantling the rights of the citizen.
At present, our Crown courts often operate typically between 10 am and 4.30 pm. It is difficult to justify a policy that removes the right to a jury trial—a move estimated to save perhaps as little as 1.5% to 2.5% of court time—when we are leaving so many hours of the working day and the entirety of the weekend completely unutilised. Working normal business hours such as 9 to 5, or even utilising Saturdays for specific types of hearings, could provide a far more substantial reduction in the backlog than the structural reforms proposed in the Bill.
We recognise that a possible move towards extended or weekend hours must be handled with extreme care. That is why we proposed amendment 36, which would require the Lord Chancellor to undertake a comprehensive consultation on the potential introduction of extended sitting hours before the reforms can commence. Operational changes of this magnitude cannot be mandated from a desk in Whitehall without understanding the impact on the human beings who keep the system running.
The consultation would address the practical realities that will determine whether such a system is viable and sustainable, including the availability and wellbeing of HMCTS staff, who are already under significant pressure; the level of fees and remuneration required for legal professionals and court staff to work non-standard hours; and the impact on legal aid practitioners, many of whom, as we have discussed, find the challenges of working in criminal legal aid difficult. We must ensure that those who would be asked to work in this way—judges, barristers, solicitors and court staff—believe that any such plans are appropriate and supported by proper resourcing. To impose extended hours without their consent and without addressing the current crisis in retention and recruitment would potentially be counterproductive, rather than a benefit.
Where could we look for an example of how this can be done in a way that is welcomed by staff who want to increase their income in a fair way? I was glad that the Minister raised the example of the NHS, which has an equivalent issue with waiting lists as we do with Crown court waiting times. The NHS uses weekend operating as a core part of its elective recovery strategy. To be clear, the NHS has always been a 24 hours a day, seven days a week service for urgent and emergency care, but it specifically uses additional, elective, planned operations. By opening facilities 7 days a week, the health service aims to maximise the use of expensive equipment and theatre space that would otherwise sit idle. I am sure that every Committee member can see the direct read-across. The Crown court is an expensive space with expensive equipment that sits empty and unutilised in what the Government describes as a crisis.
A national programme in 50 hospitals runs what is called a weekend hitlist once a month. That approach focuses on one type of procedure a day, such as 24 endometriosis surgeries in a single weekend. It was pioneered by Guy’s and St Thomas’ foundation trust—the trust that looks after many of us when we are not well—and it is now being scaled up nationwide. The approach uses high staffing levels, rigorous pre-op assessment and enhanced theatre utilisation. Again, the read-across could not be more direct. We could have courts with trained staff to consider particular types of cases that had been assessed in advance as suitable for such sessions. Those courts could be set up to make the most of that, whether it is a Saturday or an evening.
It is not just in those approaches that we see the Government and the NHS thinking more innovatively about how to make use of resources. Many of us now have community diagnostic centres in our constituencies. I know from when I was a junior doctor that, previously, it was extremely difficult to organise certain types of scans out of hours. The NHS have reformed the whole approach so that such tests, which had typically been restricted to just the working day, can now take place seven days a week to maximise capacity.
Dr Mullan
The Minister is correct. That is the only time I have referred to it more broadly; I have been consistent throughout in saying that it is a system with significantly less access to jury rights than there is at present. There is a third way: to take the path towards operational excellence and better placed resourcing. We should not trade a centuries-old right for a 1.5% efficiency gain on a Government spreadsheet.
Rebecca Paul (Reigate) (Con)
It is a pleasure to serve under your chairmanship, Sir John. I speak in support of amendments 59, 35 and 36 tabled by my hon. Friend the Member for Bexhill and Battle, and the new clauses tabled by the hon. Member for Chichester. Those new clauses are constructive, and the Government should engage with them seriously. They seek to address the right question: how can we increase capacity, improve efficiency, preserve public trust and make better use of the system before cutting into long-standing criminal justice safeguards?
The Opposition amendments would ensure that before clauses 1 to 7 are commenced, the Government must show that they have exhausted the practical alternatives, such as more sitting capacity, better use of buildings, fewer lost sitting days from late guilty pleas and prisoner transport delays, proper funding for sitting days and a serious examination of extended sitting hours. That is the right order of operations. The Government’s approach too often appears to be about restricting rights first and hoping that savings arrive later. Our approach is to build capacity and fix operational failures first and contemplate introducing legislation only then, and if truly necessary.
Our approach is encapsulated perfectly in amendment 59 in the name of my hon. Friend the Member for Bexhill and Battle. The amendment would prevent clauses 1 to 7 of the Bill from coming into force until reasonable steps have been taken
“to increase Crown Court sitting capacity, including but not limited to—
(a) using buildings not currently in use as courts to hear cases where cells are not needed, and
(b) reducing lost sitting days as a result of late guilty pleas and prison transport delays.”
That is exactly the right approach, and it is at the heart of the argument we have made throughout proceedings. The Government say that the backlog is so bad that they must remove the right to elect a jury trial, create judge-alone trials, expand magistrates’ sentencing powers and restrict appeals. We say that before they do any of that, they should show us that they have used all the practical means already available to increase capacity and reduce wasted court time.
We are seeking to draw attention to the tangible, everyday causes of courtroom delay, which, as the Minister well knows, is often about the case not being ready, defendants not arriving, late pleas, poor listing, lack of courtrooms or staff, or failure to use the estate properly. If those are the root causes of inefficiency, it is extraordinary to reach first for the curtailment of our ancient right to jury trial rather than for more mundane operational fixes.
I would go as far as to suggest that the evidence that the Committee has received from the Bar Council could almost have been written in support of the amendment. It says that the current backlog was not caused by the availability of jury trials. It supports “opening all…courts so they can hear cases”,
“intense court listing” and “proactive” CPS “case ownership”, “revising” the PECS contract so that
“defendants are delivered to the dock on time”,
“better use of technology” and “proper resourcing”. It also specifically identifies PECS as a problem, and warns that the Government’s impact assessment does not contain enough modelling on the changes needed to make prisoner transport work under the new system.
Amendment 59 also references late guilty pleas. Late pleas waste enormous amounts of time. They consume preparation time, courtroom hours, witness time and judicial energy that is better spent elsewhere. If the Government can reduce late pleas by better case progression, better early engagement or stronger listing discipline, that should happen before constitutional rights are reduced. I am in danger of repeating myself, but this point is central to the Opposition’s position: it is far more sensible to make the existing system work properly than to redesign it around its current inefficiencies.
Another question we should ask is whether every possible physical capacity option has been explored. Are there hearings that do not require cells and could be heard in other suitable buildings? Are there underused spaces in the existing estate? Are there ways to free Crown courtrooms by moving appropriate administrative or preliminary business elsewhere? Those are practical questions to which I have not seen a satisfactory answer. It seems logical that the Government should be required to answer them before commencing clauses 1 to 7. In essence, if the Government are minded to oppose this amendment, they are effectively saying that they are content to shred legal rights before making the effort to prove that they have exhausted all possible operational reform first. That is the wrong way around.
That is also the crux of our case for amendment 35, which was also tabled in the name of my hon. Friend the Member for Bexhill and Battle. It would prevent clauses 1 to 7 from coming into force until three conditions have been met. First, the Lord Chancellor must have
“provided funding for at least 130,000 sitting days in the Crown Court in the financial year following the coming into force of this Act”.
Secondly, HMCTS must have assessed that
“the Crown court has, so far as possible, used that allocation of sitting days”.
Thirdly, the Lord Chancellor must have
“made a statement to the House of Commons that the funding provided…has not reduced the number of cases pending trial in the Crown Court compared with the start of the financial year.”
Put as simply as possible, before the Government curtail fundamental safeguards in the criminal justice system, they should first fund and use the Crown court at maximum practical capacity. If that works, there is no need for clauses 1 to 7. If it does not, Ministers can come back to Parliament having at least proven that the obvious operational fix was seriously attempted.
One of the persistent weaknesses in the Government’s case thus far has been the “do nothing” comparison. Too often, the Government present the Bill in the context of a binary choice: do nothing, or accept the package as it is. But that is a false choice; there are other options. One of the most obvious is to run the Crown court at full sitting capacity and see what happens. The Bar Council has welcomed the removal of the cap on sitting days and has long argued that courts should sit at maximum capacity. If increased sitting days are now being funded, those additional days should be allowed to take effect before Ministers demand more controversial, and likely irreversible, changes.
The Institute for Government has also weighed in on this issue. It says:
“There is a lot of uncertainty attached to the potential benefits of the government’s proposed reforms.”
It also says that there is a serious risk that these reforms could backfire and actually cause a decline in court performance. It identifies productivity as central, noting that the assumptions behind the Government’s proposed savings are “uncertain”. If boosting productivity and increasing sitting capacity are critical, then amendment 35 is exactly the right kind of test. Let us see whether properly funded sitting days can reduce the backlog before proceeding with more radical measures.
Amendment 35 is therefore one of the strongest amendments we are considering today. It does not deny the reality of the backlog—the Opposition never have. Rather, it confronts it directly. It does not say, “Do nothing,” it says, “Do the obvious thing first—fund the Crown court, use the capacity, report back and only then consider whether more fundamental changes are genuinely necessary.”
I also support amendment 36, also tabled in the name of my hon. Friend the Member for Bexhill and Battle. It would prevent the Lord Chancellor from
“bringing sections 1 to 7 into force until he has…undertaken a consultation on the potential benefits of introducing extended sitting hours in the Crown Court, and…laid before Parliament a report on the outcome”.
The consultation would have to consider
“potential rates of fees and remuneration for legal professionals and court staff working extended hours”
and the availability of HMCTS staff. The amendment is a reasonable one. It simply requires the Government to consult and report before commencing clauses 1 to 7. Given the scale of the changes the Government are asking us to approve, that is not an excessive demand, in my view.
The amendment also seeks to address one of the practical concerns around extended sitting hours. It recognises that extended hours may have benefits but also inherent costs. It explicitly requires consideration of remuneration and staff availability. We all understand that we cannot run a court system merely by wishing it to sit longer. Judges, advocates, court staff, legal professionals, witnesses and support services all have to be able to make the model work. If hours are to be extended, that must be properly resourced.
That is precisely why a consultation is needed. The Government should not be able to say on the one hand that extended hours are too complicated to consider, while on the other hand pressing ahead with sweeping reforms to jury trial and appeal rights. If their position is that extended hours are impractical, Ministers should set out the evidence. If extended hours are practical in some settings, Ministers should explain where and how. If remuneration is the problem, the Government should consult on it. If staffing is the problem, they should say so. What the Government should not do is ignore the question altogether, as they seem to have done here.
There is also a simple point of fairness. The Government are asking defendants, victims, witnesses, lawyers and the public to accept major changes to the criminal process. They should therefore be willing to accept a much smaller burden: to consult, report and explain why a less constitutionally disruptive capacity measure is or is not viable. Taken alongside amendments 59 and 35, amendment 36 offers a coherent and moderate alternative path forward: build capacity first, fund sitting days first, examine extended hours first, fix operational problems first and only then ask Parliament to consider whether the more drastic provisions in clauses 1 to 7 are necessary. That is a measured and responsible approach that the Government should consider accepting.
I will speak briefly to new clauses 3, 4, 5, 13, 17 and 22, which would improve the Bill. They focus on delivering capacity, efficiency, transparency, public trust and practical reform in line with what the Opposition also seek to achieve. New clause 3 would allow certain Crown court locations or courtrooms to operate as extended-capacity courts, with a morning session from 9 am to 1 pm and an afternoon session from 2 pm to 6 pm. The purpose of that is to allow two different cases to be heard in the same courtroom on the same day. That is clearly a significant operational proposal, and while the principle is sound, it raises serious questions about the availability of judges, court staff, interpreters, security and CPS staff. It also raises questions about remuneration, because the criminal Bar, solicitors and court staff are already under enormous strain. A justice system running on exhausted people will not produce better justice simply because the building stays open for longer. We need to consider all those things at the same time.
New clause 3 is aimed at the right problem: capacity. The Government are asking us to make very large changes to jury trials, allocation and appeals. Before they do that, they should be able to show that every realistic capacity option has been explored. If courtrooms can be used more intensively without compromising fairness, quality or the welfare of those involved, that should at least be examined. The Bar Council’s evidence is clear that the backlog has not been caused by jury trials but by under-investment, poor management of the estate, failures in prisoner transport, listing problems, technology issues and inadequate resourcing. New clause 3 seeks to address that; it asks how we increase throughput while keeping the basic architecture of justice intact.
New clause 4 takes a more cautious approach, and for that reason, it may be the more attractive version of the idea. It would require an independent report into the feasibility of holding two trials a day in designated courtrooms, followed by a Government response and proposals for a pilot, if appropriate. That seems to be a serious and reasonable way to proceed. It does not assume that the model will work: it asks for independent work; evidence; consideration of the effect on defendants, victims, witnesses, judges, practitioners and staff; and an assessment of cost and resource implications.
New clause 5 would require the Lord Chancellor to publish annual targets for reducing the Crown court backlog, both nationally and in each HMCTS region, and to report to Parliament on progress. Again, that appears useful and sensible. If backlog reduction is the central justification for the Bill, Ministers should be willing to define what success looks like and be judged against it.
The regional element is especially important. We know that the backlog is not the same everywhere, and it is undeniable that some court centres have done better than others, sometimes because of stronger local leadership, better listing or more effective case progression. Others face particular estate, staffing or operational problems, and a national figure alone can hide those differences. If the Government are relying on predicted reductions of sittings days and caseload, Parliament should be able to see whether those predicted benefits are actually being delivered, and where they are and are not being delivered.
Sarah Sackman
I thank the hon. Member for Chichester for tabling new clauses 3 and 4, which seek to extend Crown court sitting hours, including the possibility of running two separate sessions per day, and enabling multiple cases to be heard in a single courtroom each day. In the same vein, amendments 59, 35 and 36, tabled by the hon. Member for Bexhill and Battle, also call for a consultation on extending sitting hours in the Crown court, funding for 130,000 sitting days and a consultation on increased sitting days.
As colleagues know, the Government have funded Crown court sitting days to record levels, and we are funding unlimited sitting days in the new financial year. That means that there is no financial constraint on the hours that Crown courts can sit. They can sit for as many days as possible within capacity constraints. That offers complete flexibility in Crown court centres to hear as many cases as possible. That represents real progress, and has been welcomed by Members on both sides of the House, the Bar and judges.
But we cannot immediately increase capacity to 130,000 sitting days. That is not just a question of funding. Court capacity is not just about the rooms; it depends on judges, barristers, solicitors and court staff. We cannot 3D print those. We predict that sitting at unlimited levels next year will allow us to sit for 117,000 or 118,000 days, but we are not yet ready to ratchet up to 130,000 sitting days. That is the figure referred to in Sir Brian Leveson’s review, but he acknowledged that, even in the medium term, we will not get there. I say that because, although it is part of the Government’s ambition to grow capacity in the Crown court to meet the incoming demand and put the system on a sustainable level, the fact that we will not get there, even in the medium term, means that all those impacted by the cases sitting in the backlog—defendants on remand and potential victims—are left waiting.
The lifting of the cap on sitting days is highly significant and is part of the investment lever that we all agree is needed to get our Crown court back on its feet. However, the central insight of the independent review of criminal courts is that that investment alone will not be enough, because even when we remove the limit on sitting days we cannot get to 130,000 sitting days because of capacity constraints. Extending hours alone does not increase the underlying capacity. Extending sitting hours or attempting to run multiple trials per day risks, I would argue, reducing time for case preparation, potentially increasing ineffective and cracked trials, and then potentially worsening delays rather than improving them.
Sarah Sackman
Well, during covid courts did operate with extended and flexible arrangements, but those were temporary measures, under exceptional conditions, dealing with reduced volumes. By the way, to the point made by the hon. Member for Chichester, the reduction in the hearing time in a sitting day—now under four hours—concerns me greatly. That loss of time aggregated over the 117,000-odd sitting days adds up and is hugely significant. But where HMCTS conducted pilots of increased and flexible sitting hours, it found that increasing hours alone delivered limited gains. There was also, at the time, substantial opposition from the Bar, because although we are primarily concerned with the hearing time, because that is where progress is driven in a trial, all the case preparation—whether that is judicial, reading the papers, or the preparation time that is needed by the barristers and the prosecution—needs to be factored in. Extending sitting hours sounds like a good remedy to this problem, but we do not think it provides a solution, because time needs to be afforded to enable proper case preparation, so that when we do get on with a trial we can crack on with a hearing.
Dr Mullan
I intervened when the Minister said she thought that extending sitting hours would make things worse. When I asked her to explain that, she then said that she thought the benefit would be minimal. That is a different point. Given that we have said there should be an extensive consultation to figure out all those things, so that it appeals to people, such that that they will want to take part in these extended sitting hours, why would it make things worse? If people are willing to do it, I just do not see the logic of that point.
Sarah Sackman
As I have said, we have precedent. The pilots showed that there was precious little improvement. Extending sitting hours might make things worse if, for example, one is stuck in extended hours on one trial, meaning that one is not available to be in other parts of the country.
Draft First-tier Tribunal (Property Chamber) Fees (Amendment) Order 2026
Kieran Mullan Excerpts(1 week, 1 day ago)
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Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Dr Murrison, and to respond on behalf of the Opposition in this Delegated Legislation Committee.
It might seem that this is a narrow measure, but, in reality, the draft order is part of a poorly implemented Act of Parliament. As the Minister explained, it introduces a £47 application fee for rent appeals, a £47 application fee for succession of assured tenancy rights and a £200 application fee, plus a £300 hearing fee, for financial penalty appeals, which are where landlords appeal civil penalties imposed by local authorities. That reflects the expanded scope of rent repayment orders under the Renters’ Rights Act, so it is clearly not an isolated change. The order is being introduced because, as the Minister described, Government legislation is creating new routes into the tribunal system, and Ministers need to introduce a fee structure to go with those routes.
There are two immediate problems. The Government have not done an impact assessment for the order because, they say, no significant impact is foreseen, but that is hard to accept. The order introduces new fees into a system that the Government are making more widely applicable, and it is doing so in a sensitive area where access to the tribunal may matter a great deal to tenants and landlords alike. It simply does not look credible to say that there is no significant impact worth assessing.
The Opposition have been clear for some time that the Government’s rental reforms will put more pressure on the courts and tribunals system before it is ready. Regardless of the changes that the Government make to the fee structure, such relatively minor, short-term changes in the income available to courts will not change that situation overnight. Our court system is simply not in a position to manage the influx that is likely to result from the Act, but Labour is pushing ahead without first showing that the wider justice system can cope. The Government are adding further operational pressures to the property chamber at a time when there are already problems across all elements of His Majesty’s Courts and Tribunals Service. The Government should deal with those broader pressures first, not build new demand into the system and adjust the fee structure around it.
There is also real concern about incentives. Geoffrey Vos, the Master of the Rolls, has warned that the rules under the Renters’ Rights Act could incentivise tenants to apply to the first-tier tribunal in respect of every rent increase, simply to delay its implementation. That is because even when a rent increase is upheld, it will take effect only from the date of the tribunal decision, not from the date of the notice being served, meaning that even unsuccessful challenges could delay higher rent payments for months. If that is the case, Ministers may be creating a much greater volume of tribunal work than they are willing to admit, and I would be grateful if the Minister would respond to that particular concern, which was raised by someone with significant credibility..
The broader truth is that Labour is failing to listen to those who understand the sector. No serious impact assessment has been done, there have been clear warnings about incentives and workload, and there are longstanding concerns that the wider Act will reduce supply and increase rents, yet Ministers are pressing on regardless. Our objection to the order is straightforward: it is not just a technical amendment, but part of a wider framework that places more reliance on a tribunal system that is already under strain. It comes without a proper assessment of impact, and helps to implement a wider Act that we believe will leave the rental market less, not more, stable. For those reasons, the Opposition cannot support the order.
Sarah Sackman
That was exactly what I was going to suggest: I shall write to the right hon. Gentleman. I will write to him on his first question, which was about RDEL and the exact running costs of the property chamber.
We expect an increase in the volume of receipts that the property chamber will take, and some work is being done internally as to what that might look like. As the right hon. Gentleman would expect, this is an expansion of rights, and as I have said, we have set the fees not to impede the enforcement of those rights but to enable it, while achieving a measure of cost recovery. We want to reduce conflict in our society, but we do not shy away from the fact that the thrust of the policy behind the Renters’ Rights Act is that we welcome people enforcing their rights where rents that are set far outstrip what can be considered reasonable. That is why we have deliberately empowered people by giving them rights that can be enforced.
The hon. Member for Bexhill and Battle made a point about the tribunal’s readiness. In anticipating additional pressures on the tribunal, we have been undertaking steps to increase capacity within it. Those have included the recruitment of additional administrative staff and the establishment of a centralised operating hub. We are also working with the Ministry of Housing, Communities and Local Government to develop a new digital system for rent appeals in the property tribunal, to maintain the efficiency of that. The fees, along with the Ministry of Justice’s operating budgets, will support that capacity, so that those who rely on the chamber, be they tenants or landlords, can expect the capacity of the tribunal to keep up with the demand.
Dr Mullan
Let us say that a landlord proposes to put someone’s rent up by £100 a month, and that it might take two months for the case to be heard in tribunal. They are therefore going to be £150 better off, even if they pay the £48 fee, if they wait for two months and the case goes to the point of a ruling. That is the criticism made by the Master of the Rolls. What is the counter-argument to that? Why would people not simply lodge an appeal knowing that they will make that money back and be in the black on the back of it?
Sarah Sackman
I am familiar with the argument raised by the Master of the Rolls; we discussed it during the passage of the Renters’ Rights Act, and I have discussed it with the relevant Minister. That is the subject of a whole series of policy choices that have been made to strike an appropriate balance between the rights of tenants and landlords.
We do not expect that measure to be abused, and there are equities that go the other way. If someone backdates a payment, they will then be forced to pay arrears and additionality in one big lump sum, which can also create unfairness. That is the result of a policy choice that has been made in the Act, although it may be one that the Opposition take issue with. This is now all about ensuring that a tribunal is ready to receive any ensuing rent appeals as soon as possible after the order comes into force on 1 May—it is very exciting.
I did jot down the right hon. Gentleman’s further question, but I am now struggling to read my handwriting, because we are at that point in the day.
Public Office (Accountability) Bill (Carry-over)
Kieran Mullan ExcerptsMonday 27th April 2026
(1 week, 1 day ago)
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Dr Kieran Mullan (Bexhill and Battle) (Con)
Let me say at the outset that the Opposition continue to support the broad aims of the Bill, as we have done throughout its passage. We recognise the importance of candour, transparency and accountability in public life and recognise the long and determined work of those campaigners, including the Hillsborough families and others who have fought for many years to ensure that where public bodies fail, evade, conceal or mislead, there are proper consequences. That principle remains an important one, and it is not a partisan principle. It is not owned by any one party or Government; it is a basic requirement of good government and of public confidence in the institutions of the state.
As has been recognised throughout the passage of the Bill, legislation on its own cannot guarantee the cultural change that is needed. We have already introduced duties of candour in parts of the public sector—for example, the NHS—and have taken steps in recent years in policing to improve accountability, as well as creating the office of the independent public advocate, but questions remain about whether the system works as it should when it really matters. The lesson from Hillsborough, the infected blood scandal, the Post Office scandal and other serious institutional failures is that, yes, the legal framework matters, but so do culture and practice. For that reason, we want the Bill to progress and the areas of consensus to move forward, so we do not intend to oppose this carry-over motion. We have consistently taken part in proceedings in that matter.
What I say next is not a criticism of the approach of campaigners, or indeed of the many Labour MPs who have been sincere and consistent in their campaigning on this issue over many years, including the hon. Members for Liverpool West Derby (Ian Byrne) and for Liverpool Garston (Maria Eagle). The Government have utterly mishandled this legislation from start to finish, which is why we are here today, six months on from Second Reading, with a Bill pulled at the last minute—and with broken promises. I do not expect Labour Members to relish joining me in that criticism.
The Minister will, I am sure, say that the Government have at least brought a Bill forward, as if that were a blank cheque for the manner in which these proceedings have been conducted. I have some sympathy for her—she has been put into difficult situations—but trust has been damaged on all sides. Even though this Bill is about trust, candour and whether the public can believe what they are told by those who exercise power on their behalf, the process by which the Government have pursued the Bill has too often fallen short of the standards that Ministers say they want to impose on others through this legislation.
The Prime Minister announced the Bill last September at party conference, and gave the clear impression that families and campaigners were content with the detail on the approach being taken. The House should remember that it had been widely reported several months earlier that a draft Bill had been rejected by campaigners. What else could we have reasonably assumed other than that those concerns had been addressed? It has since become crystal clear that campaigners were in fact not satisfied with the draft proposals, and that their support was conditional—as I understand it, they made that clear to the Government—but the Prime Minister wanted his big announcement and proceeded anyway.
The Hillsborough Law Now campaign has explained its view: the delays since January have been caused not by the families or campaigners, but by disagreements within Government and by objections from the Cabinet Office, the security services and others. All that should surely have been dealt with prior to the drafting, publication and big announcement of the Bill, and the fact that it was not is why we are debating this carry-over motion. On more than one occasion, we were presented with a version of the Bill that the Government told us was the only possible approach to the inclusion of the intelligence services—until it was not. We were told that the balance had been struck, but then the Bill was withdrawn and there were reports of further changes.
The issues relating to the security services could not be more serious. The Government cannot have it both ways; they cannot tell the House at one stage that the Bill they have published is the only responsible approach to the inclusion of the security services—and marshal the leaders of the security services to say the same thing—before moving away from that position without properly explaining what has changed, why, and whether the earlier assurances given to Members were sound.
The Opposition have always accepted that national security raises real and serious issues; there will be material that cannot be handled in the same way as ordinary departmental papers, as well as operations, sources, methods and relationships with allies that require safeguards. Any responsible Government must take that seriously. It was a Conservative Member—my hon. Friend the Member for Huntingdon (Ben Obese-Jecty)—who asked how those provisions might apply to elements of the armed force, and those elements were then included in the Bill very late in the day. That is another issue that should have been properly thought through before the Government reached the point of withdrawing the Bill in January, which has led us to this carry-over motion.
This is part of a broader pattern. We have seen a lack of candour from the Lord Chancellor when he has been asked about prisoner release, and tomorrow we will debate the candour and honesty of the Prime Minister. I have absolutely zero faith in this Government—zero. The Bill is literally about candour in public office, but this process has left campaigners, Members and the public unclear about the Government’s position from one month to the next.
The Government should not be surprised, then, that we will not simply accept assurances about the Bill at face value. Assurances are not enough; the test will be the text of the Bill, whether Ministers can explain clearly and consistently how the Bill will operate in relation to our security and other services, and whether the Government can show that they have balanced transparency, accountability and national security in a workable, principled and robust way.
I hugely respect the Hillsborough Law Now families and campaigners, but I am not afraid to say that they may well not be entirely satisfied by this law. A responsible Government must sometimes say that to campaigners, but this incredibly weak Prime Minister is not able to do so. The families and campaigners who have fought for this legislation deserve better than drift, confusion and mixed messages; they deserve frankness and candour. If the Government are not willing to do everything that the campaigners ask, they should just tell them so and get on with it. The public deserve legislation that is not merely well intentioned but clear, workable and effective.
As I have explained, we will not oppose the carry-over motion, but we will scrutinise what comes next with the seriousness that the subject demands and the scepticism that the Government’s handling of the Bill has regrettably earned.
Courts and Tribunals Bill (Tenth sitting)
Kieran Mullan Excerpts(1 week, 5 days ago)
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Yasmin Qureshi
It is a pleasure to serve under your chairship, Ms Jardine. The amendments are fairly self-explanatory: they just ask to insert a few words. I will leave it at that.
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to have you guiding us through the second part of the proceedings today, Ms Jardine.
Clause 9 is part of a rolling set of clauses about the admissibility of evidence. Our task is to ensure that, while we protect complainants from being retraumatised by intrusive lines of questioning, we also maintain a legal framework that is clear, workable and consistent with the fundamental right to a fair trial.
Clause 9 specifically addresses the use of evidence regarding compensation claims made by complainants in sexual offence cases. Under current practices, complainants are sometimes discredited or have their credibility attacked simply because they have sought compensation for the harm they say they have suffered. It is entirely fair and reasonable, and a valid part of our law, for someone to pursue a criminal case and also seek financial compensation. But sometimes there is an underlying misconception that the act of seeking compensation, on its own and without any more evidence, means that the original criminal complaint may have been fabricated.
To address that, clause 9 introduces the following measures: a leave requirement, which means that evidence about a compensation claim cannot be introduced without the court’s explicit permission, and an admissibility threshold, under which a court may admit such evidence only if it has “substantial probative value” in relation to a matter of “substantial importance” to the case as a whole. The goal is to ensure that irrelevant or purely prejudicial material is excluded, while still allowing genuinely probative evidence to be heard when the interests of justice require it. The law must guard against unfair insinuations, but the admissibility test must be applied with precision and discipline. While the objective of protecting complainants from unfair discredit is welcome, there are practical and legal implications that require clarification.
As I have said to the Minister, some of my questions will be consistent throughout the clauses. Can she elaborate on how she expects the courts to interpret the terms “substantial probative value” and “substantial importance”, and outline how the Government will seek to ensure that the restriction does not prevent a defendant from exploring the full circumstances of the case?
Is the Minister confident that the current drafting provides judges and practitioners with a clear enough structure to apply the principles consistently across different courts without creating a postcode lottery? In terms of monitoring and evaluation, what work will the Government do to ensure that these new measures have the desired impact?
Clause 9 is straightforward: its premise is that a victim should not be put on trial for seeking the compensation they are entitled to under the law. Excluding irrelevant and prejudicial material can help ensure that the trial remains focused on the actual evidence of the offence. However, we must be diligent in our scrutiny to ensure that the drafting delivers those protections without compromising the procedural rigour that a fair justice system demands.
The Minister for Courts and Legal Services (Sarah Sackman)
As with the previous debate, I will set out the rationale for clause 9 and then turn to the amendments tabled by my hon. Friend the Member for Easington (Grahame Morris).
Clause 9 will create a high admissibility threshold for evidence about a complainant’s compensation claims in sexual offence prosecutions. That could include evidence that a victim has made a compensation claim in relation to the offence being tried, the amount of money awarded as compensation, details of the claim or the fact that compensation was refused. The Law Commission report made clear that compensation claim evidence is disproportionately requested in sexual offence cases, and that, in some instances, it is used by the defence to insinuate that a victim has fabricated an allegation for financial gain. That kind of reasoning lacks a legitimate basis and risks unfairly undermining victims.
This measure will ensure that such evidence cannot be admitted when its sole purpose is to introduce or perpetuate misconceptions about why survivors come forward. Instead, a judge will be able to admit compensation claim evidence only when it has substantial probative value to a genuinely important issue in the case. These reforms therefore strengthen protections for claimants while maintaining the defendant’s right to a fair trial.
I will respond to the questions from the hon. Member for Bexhill and Battle. He fairly raises the issue of how we can assess that these tests are being applied fairly and consistently. That will obviously take time as they bed in, but, in many ways, the precise rationale behind these changes is to codify, clarify and simplify tests that already exist for the treatment of evidence in these cases and to assist our judges to use them fairly. There is no doubt that future Ministers and others with responsibility for this issue will want to know that it is working as intended. No doubt studies can be undertaken in the future. I commend clause 9 to the Committee.
I turn to amendment 68. The Law Commission’s review made clear that compensation claim evidence is disproportionately requested in sexual offences cases, as I have said. That is precisely why we have introduced the high admissibility threshold in the Bill. The amendment asks for a threshold of merely “relevance”, which is lower than the statutory threshold we propose. If we were to accept it, it would not give complainants any additional protections above the current status quo, despite the Law Commission identifying a clear issue with how this evidence is currently being requested and used. For those reasons, I urge my hon. Friend the Member for Bolton South and Walkden to withdraw the amendment.
Amendment 69 focuses on the disclosure of evidence to the defence before an application is made to admit that evidence to the courtroom. However, the clause does not change the test that the prosecution must currently apply when considering whether to disclose details of a complainant’s compensation claim to the defence. Instead, it focuses on the stage after the prosecution and defence have reviewed the evidence, and asks the judge to consider whether the evidence indeed has substantial probative value and can therefore be relied on in court.
As the clause stands, the case will remain that the prosecutor must disclose to the defence any material that might be considered capable of undermining or assisting the case of the accused—that is only fair—and that includes the compensation claim evidence. The defence, in cases involving sexual offences, can then consider how they wish to bring that forward. For those reasons, I urge my hon. Friend the Member for Bolton South and Walkden not to press the amendment to a vote.
Sarah Sackman
Clause 10 sets out that evidence or questioning about a victim’s previous allegation of a sexual offence may be admitted only when there is a proper evidential basis for doing so. It also clarifies that certain facts do not, by themselves, mean that a previous allegation was untrue. Those include: if the victim did not report the offence to the police; where an allegation did not result in a charge or conviction; and where a victim withdraws from proceedings.
The Law Commission’s report, alongside the sector campaign “Bad Experiences, not Bad Character”, identified inconsistencies in how courts currently approach previous allegations in sexual offence trials. There have been instances where previous unproven allegations have been raised to suggest, without evidence, that a victim is unreliable by insinuating that such allegations were false. That risks reinforcing myths and misconceptions, making the trial process a traumatic one for the complainant.
This measure will maintain a defendant’s right to a fair trial. Judges will still be able to admit evidence about a complainant’s previous allegations when there is a proper evidential basis for doing so. The clause simply creates a clearer and more consistent statutory test to ensure that such decisions are based on sound evidence rather than speculation. Victims should feel confident that a previous allegation will not be unfairly used against them in the courtroom. Clause 10 strengthens the integrity of the trial process while supporting complainants and survivors to come forward and engage in the justice system.
Dr Mullan
As the Minister said, we are considering the next iteration of the question of admissibility, which addresses the evidentiary rules regarding previous false complaints in sexual offence cases. This is a sensitive area of criminal law where the pursuit of truth must be carefully balanced against the need to protect complainants from unfounded attacks on their character. The primary objective is to ensure that trials remain focused on the actual facts of the case at hand rather than being diverted by speculative allegations that a claimant has made false allegations in the past. The Law Society and Bar Council have indicated their support for this measure; they recognise that it brings clarity to the statutory framework governing bad character and credibility.
The central feature of clause 10 is the introduction of a requirement for a “proper evidential basis” before any suggestion can be made that a complainant has previously fabricated an allegation of sexual offending. Currently, there is an ever-present danger that the defendant may attempt to undermine a complainant’s honesty by pointing to past allegations that simply did not result in a conviction. That is related to the challenges that we discussed in the debate on clause 8 regarding the difficulty of complainants when it comes to seeing a case through to the end—either because of the delays in the courts, which we are all concerned about; challenges with the police; or fears or concerns they might have about how their case was treated in the courts. There could be a whole series of reasons why a complainant does not pursue an allegation through to its fullest conclusion, none of which have anything to do with the allegation being false.
Under the clause, the following factors are explicitly excluded from being used as sole proof of a false complaint: the fact that a previous allegation was denied; the fact that a previous case did not lead to a charge or result in an acquittal; any delay by the complainant in reporting the previous matter; and a complainant’s decision not to pursue or support prosecution in the past. By codifying those exclusions, the Bill aims to eliminate the use of unsupported assertions and ensure that the court does not rely on assumptions or stereotypes that are frequently used to imply that a complainant is untruthful. This is a helpful step in reforming the trial processes by ensuring that a defendant’s conduct and not the complainant’s history remains the focus of the jury.
While the principle of clause 10 is sound, its success depends on how the courts interpret and apply the proper evidential basis test. We must ensure that this framework is robust enough to shield victims from speculative and prejudicial questioning while still being fair to the defendant.
I have some questions for the Minister. Can she provide the Government’s thinking on what a proper evidential basis will look like? Do the Government envisage it requiring independent, objective proof of falsity, such as a previous conviction for perverting the course of justice, or will a lower standard suffice? Is the Minister confident that the current wording provides a road map clear enough to prevent judges from applying different standards? I want to address the gap in the data and understand how the measure will be implemented.
In relation to previous complaints, very sadly there are victims of violence against women and girls who have been affected hundreds of times. Will the Minister explain what would happen if some of these “for exclusion” criteria had occurred at an extraordinary rate? If a complainant’s decision not to pursue or support a prosecution relating to a crime that happened hundreds of times, that could in itself be relevant. It would not necessarily be so—they may have chosen hundreds of times not to support a prosecution. However, unlike other elements of the Bill, the clause is highly specific in what it is excluding, so I want to check whether there is any flexibility for the judge so that, in extremis, they can still admit the evidence, or whether there is a hard no, regardless of circumstances.
Sarah Sackman
I welcome the support from Members across the Committee for clause 10. A proper evidential basis is defined in the Bill as ensuring that there is material before the court that shows both that the complainant made the previous allegation and that the previous allegation was false. I do not want to elaborate on the test, and thereby in any way tie the hands of the judge hearing the evidence in the case. The tests and the clear structure set out in the Bill will enable and empower the judge to test whether there is an evidential basis for the claim and whether it has probative value and relevance to the issues at hand. The judge will then be able to take a view on whether it can be included and put to a witness.
There will always be cases where the evidence is relevant to the proceedings, both for the prosecution and for the defence. There is certainly no hard rule excluding it altogether.
Dr Mullan
Contrary to our other interactions, I think it reasonable for the Minister just to write to me. I read the Bill to mean that these types of things cannot be included at all, so could she at some point to clarify whether that is the case or whether there is some flexibility at the edges?
Sarah Sackman
I am very happy to do that. I will make that correspondence available to all members of the Committee and the wider public because it is important that, when judges and others are looking to apply the test, they understand the Government’s rationale and understanding of the provisions.
For reasons that others have articulated, this is an important clause, which recognises something that women’s groups and others have been campaigning on for an awfully long time. It can help to change the culture in our criminal justice system for victims of sexual violence.
Sarah Sackman
Clause 11 will ensure that if a defendant has a previous conviction for domestic abuse—of any type and against any victim—it can be taken into account as evidence of bad character in a further domestic abuse case. That will help courts to recognise relevant patterns of behaviour that might otherwise fall outside narrow offence category boundaries. We know that domestic abuse can take many forms and that patterns of domestic abuse do not always map neatly on to a single type of offending. Recognising those patterns can help juries to understand the context of the offence.
The clause therefore allows previous domestic abuse-related convictions to be admitted as propensity evidence when the statutory test is met. That will include cases in which the previous conviction involved coercive or controlling behaviour, and the current allegation involves a different form of domestic abuse, such as sexual assault against an intimate partner. Our aim is to ensure that courts can consider relevant patterns of abusive behaviour when they provide important context on the issues in the case while maintaining the full range of safeguards that protect a defendant’s right to a fair trial.
Clause 11 completes the package of evidential reforms set out in clauses 8 to 11. Taken together, the measures provide greater clarity, consistency and coherence to the rules governing sensitive evidence. They help to improve the experience of victims—particularly victims of sexual offences—in the criminal justice system while ensuring that trials remain fair and balanced. I urge that clause 11 stand part of the Bill.
Dr Mullan
We now go to the other end of the spectrum and look at this from a different direction by addressing how courts handle evidence of a defendant’s propensity to commit domestic abuse. The provision acknowledges that domestic violence is rarely a series of isolated, vacuum-sealed events; rather, it is often characterised by established patterns of coercion, control and escalation over time, repeated across relationships, although potentially in different ways. When thinking about the precedent in our system, it brings to mind Clare’s law, which we brought in for the very purpose of allowing members of the public to know someone’s domestic abuse history, because we recognised just how common it was for abusers to move from victim to victim.
The primary function of clause 11 is to clarify the rules regarding admissibility in respect of past domestic abuse offending. It establishes that a defendant’s previous conduct can be used to demonstrate an inclination to commit similar crimes, even in instances when the earlier and later offending take different forms. That ensures that the law recognises the underlying reality of abusive relationships, where the specific method of harm may change while the dynamic of power and intimidation remains constant. As we have discussed previously, the prevalence of such behaviour is so great that we have to do whatever we can to support victims.
The Bar Council has noted that while much of such material might already be admissible under existing bad character provisions, clause 11 provides statutory clarity for judges. Of course, the court’s duty is to ensure that a jury does not convict a defendant for a specific charge simply because they have behaved poorly in the past. The evidence has to remain relevant and fair, and to be assessed within the unique context of the case. Nothing about introducing that information stops that from happening, as the jury or judge can weigh it up as they see fit in that regard.
How do the Government intend to ensure that propensity is defined narrowly enough to prevent juries from using a defendant’s past as a shortcut to a verdict? Given the Bar Council’s view that that might already be covered, what did the Minister see as the key gaps between how the law operates at present? What are the direct benefits of clause 11 beyond how things currently operate?
I am personally more hard-line when it comes to bad character admissions and previous convictions. I think the whole system should be much more flexible. We have a tough, rigorous way of finding out if someone is guilty, and we know that previous offending is a massive indicator, across many offence fields, of a propensity to offend again. It is part of natural justice. We all understand that if someone has been found to have done the wrong thing on other occasions, it is quite natural and reasonable for people to give that considerable weight when determining that person’s credibility and reliability, and if they can be trusted.
A lot of court cases come down to the likelihood of something happening—how probable it was that someone did something. The fact that someone has done something similar before is clearly going to weigh heavily on any reasonable opinion former’s mind when deciding whether that person has done the same thing again. We support the clause, which has great merit.
Sarah Sackman
I will be brief. What we have tried to do with the definition of propensity—we think this is the benefit—is to provide clarity and a structured process for judges. Of course, it is important to remember that a trial is not a likelihood test. As we all know, it is a test of the criminal standard of proof beyond all reasonable doubt, whether it is a judge-made decision or a jury directed by a judge. It is really important, even in the context where bad character evidence is admitted—the issue of propensity is there—that juries are reminded that they have to be absolutely sure that the offence did happen.
A decision cannot be based on the fact that a person did something before and therefore probably did it again. The jury has to be absolutely sure. None of that changes. That standard of criminal proof does not change as a result of clause 11. We hope that, in line with the Law Commission’s recommendations, the measure provides a clear, structured and, above all, consistent series of tests so that, irrespective of where a trial happens in the country, the same approach is taken and there is a shared understanding among judges, juries and practitioners as to what the test is.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Use of screens etc
Question proposed, That the clause stand part of the Bill.
Dr Mullan
Clause 12 addresses an important aspect of protection: the use of screens in the courtroom. We must start from the position that special measures are not a luxury or optional administrative add-on; they are often essential to ensuring that the justice system remains capable of hearing evidence properly. We want to enable people to give evidence in the proper way, and victims and vulnerable witnesses must be able to give their best evidence—we always want people to be able to give their best evidence in court—without avoidable distress, intimidation or re-traumatisation.
For many, the prospect of being in the same physical space as the person who harmed them is a primary barrier to their participating in the justice system at all. Clause 12 will strengthen and clarify current provisions by creating a clearer statutory footing for the use of screens. Specifically, when a witness is providing testimony via live link or through a pre-recorded cross-examination, the clause will require the court to consider whether a screen should be provided. Crucially, the clause clarifies that that protection should operate in both directions: not just preventing the witness from seeing the accused, but shielding the witness from the accused’s gaze as well. That increased clarity is intended to support consistency in practice across the country.
For many victims, particularly those of sexual violence or domestic abuse, the physical presence of the accused is a source of profound distress that can affect their memory and the clarity of their evidence. The current application of these measures can be inconsistent, leading to what practitioners describe as a postcode lottery. By establishing a presumption in favour of screens unless it would be contrary to the interests of justice, the law recognises the practical reality. However, we must ensure that that presumption is not merely a tick-box exercise, but achieved effectively through things such as either-way screens.
We must recognise, as we have at several points in Committee, the challenge presented by the fabric of some of our courtroom buildings and their facilities. Evidence provided to the Committee—this is also highlighted by Sir Brian Leveson—suggests that malfunctioning equipment and poor infrastructure continue to create problems, specifically in relation to using special measures. A stronger use of screens can be mandated but, if the physical layout of the court and its facilities are insufficient, that will hamper the clause’s benefit.
What survey or review have the Government undertaken, or do they plan to undertake, to ensure that there are no physical barriers to the use of screens in this way? I suspect that, on a physical basis, it is easier to have screens just in one direction rather than two, and it probably involves different equipment and facilities. It would be good to get the Minister’s view on any barriers that might practically limit the intention of this measure.
Jess Brown-Fuller
Clause 12 stipulates that when a direction allows evidence by live link or pre-recorded cross examination, screens must also be provided unless that would be contrary to the interests of justice, such as due to preventing the adequate testing of evidence. It also clarifies under a special measure direction that a screen may be used to prevent either the witness from seeing the accused or the accused from seeing the witness. The Liberal Democrats welcome the clause.
Vulnerable and intimidated witnesses are entitled to a number of additional measures to protect them from defendants. When the Law Commission conducted a review of these measures in relation to sexual offences cases, it came up with a number of recommendations, although the Government have chosen not to take forward some of them, such as introducing automatic entitlement for sexual offence complainants or providing complainants with independent legal advice on their entitlement to special measures.
It would be helpful to understand from the Minister why the Government chose not to introduce those recommendations, which would have turned special measures into almost standard measures. The blanket introduction of these measures would save administrative time and cost. I recognise that this is anecdotal, but the judges I have spoken to have said that if they get a request for special measures, they never refuse it.
Surely by reversing the onus and introducing the special measures as standard, we would still provide an opportunity for victims to opt out of those measures if they have a particular desire to see, or to look into the eyes of, their defendant, but if they did not wish to do so, they would be, at the very minimum, provided with protections. If this was the standard approach, it would also give more women—this affects mostly women—the confidence to come forward knowing that their court experience is going to protect them.
On a recent visit to Chichester Crown court—I thank the Minister for committing to reopening that court fully—His Majesty’s Courts and Tribunals Service talked about creating videos for those who are coming to give evidence, with the opportunity to have a virtual walk-through of the court. If vulnerable witnesses and victims were able to watch a walk-through to see exactly what measures could be put in place as standard to protect them, I imagine that would provide much more reassurance than saying, “This is what you are seeing, but there are also additional special measures that you can apply for.”
Introducing these measures as standard would also take away the stigma of being associated as a vulnerable witness. We talk a lot about victims. Some victims do not want to be described as victims; they want to be described as survivors. We talk about vulnerability. If we had these measures as standard, we would be acknowledging that vulnerability is expected, but that there is no stigma around it and that the courts have mitigated it, without being asked to do so.
The measures are backed by various victims groups, such as Women Against Rape, and by the Victims’ Commissioner. It would be helpful if the Minister could highlight whether the Government plan to go further and make these special measures standard.
Yasmin Qureshi
I beg to move amendment 70, in clause 13, page 27, line 37, at end insert—
“(7) Disclosure of the details of any connection between the independent supporter and the complainant is required prior to seeking the court’s agreement of the independent supporter.”
This proposed addition is simple. The clause centres on witnesses being accompanied while giving evidence. Essentially, it states that if somebody wants another person to accompany them, they should be able to do so if the court is satisfied that they meet the various criteria. The amendment proposes a seventh criterion requiring that the independent supporter must not be a connected person—that is, a friend, a member of the family or a relative. That is for an important reason: we know that in offences involving domestic abuse or sexual offences, the victims and witnesses can be traumatised, distressed and vulnerable, in which case they can be suggestible when it comes to comments, ideas or suggestions about something that they might not even have seen. That is why the person accompanying the witness should be independent.
I shall illustrate that argument by explaining what happens to children’s evidence when taken as evidence in chief. Often, a specialist lawyer, police officer or even psychologist is present when children give evidence. Sometimes, photographs, diagrams or pictures are shown to the children so as to elicit the best evidence out of them. Whenever such a trial takes place, the notes that a psychologist or other trained person has taken, and the pictures they may have shown to the child to get the best evidence, are adduced in court. There is always a suggestion that the person carrying out the interview may deliberately or inadvertently have put an idea in the head of the child, who may end up saying something that did not actually happen or emphasise that something was stronger than it was.
This small amendment says that this approach should apply to adults as well. It says that the connected person must not be family, a friend or a relative. Often, the first person a victim will talk to will be a friend or family member. I do not think that that would be very good. At the end of the day, we want to make sure that convictions are safe and that the best evidence comes through.
Dr Mullan
I rise to speak in connection to clause 13 and amendment 70, which are about how witnesses are supported while navigating the potentially stressful environment of the courtroom. Giving evidence in criminal proceedings is inevitably going to be stressful for many people. For victims of crime, including but not limited to victims of sexual violence and domestic abuse—any crime, really—the presence of an individual to support them in the process can mean the difference between successfully completing their testimony and being overwhelmed by the process.
Sarah Sackman
Clause 13 introduces an important new special measure, which will make a real and tangible difference to vulnerable or intimidated witnesses who come before our courts. It enables them to be accompanied by a supporter when giving evidence to reassure them and help them to give their best evidence. Crucially, it creates a rebuttable presumption that a trained professional such as an IDVA or ISVA will be allowed to accompany the witness. These specialists play a vital role in helping witnesses navigate an often stressful and emotionally demanding experience. A presumption helps ensure that this is consistently accessible across our criminal courts.
While section 24 of the Youth Justice and Criminal Evidence Act 1999 already permits witnesses giving evidence via a live link to be supported in this way, and the Criminal Procedure Rules 2025 create a presumption in favour of support from IDVAs or ISVAs, the Law Commission has highlighted that practice on the ground remains inconsistent.
Despite existing provisions, some witnesses who would benefit from the presence of a supporter are still unable to access that assistance. Such inconsistency both undermines witnesses’ confidence and risks adversely affecting the quality of the evidence that they can provide. By improving access to supporters, clause 13 improves the experience of vulnerable complainants and witnesses, while helping to maximise the quality of the evidence that they can give. I commend clause 13 to the Committee.
Dr Mullan
I ask the Minister to think about everything I said about the previous amendment. The Minister mentioned that there is a definition in the Bill. However, “definition” is open to interpretation. The Bill just says:
“an individual who performs a role which involves the provision of support to witnesses in criminal proceedings or victims of criminal conduct, where the support relates to those proceedings or that conduct.”
It seems to me that that could be anyone who says that they perform a role in supporting a witness. It is extremely open. The Minister rightly pointed to two specific roles that are well recognised and understood. However, the Bill does not say that—it does not say “IDVAs or ISVAs”; it just says an “independent supporter”. Questions about the previous amendment also apply here: what in the definition means that it could not be someone’s family member? There is not any kind of specification.
My understanding was that there might be further definition in secondary legislation. Could the Minister clarify whether there will be an attempt at further definition, either in secondary legislation or in criminal practice rules? I do not think that the definition is suitably robust at present. The Minister is not using it—because when the Minister is talking, she refers to the two very well-established and recognised roles that we all understand. However, that is not what is happening in the clause.
We are minded not to oppose the clause, but it appears to suggest that anyone can be an independent supporter. It does not even say that the court must test that; it suggests that if someone says they are an independent supporter, they are in. That cannot be what the Government intended. To avoid an unnecessary vote, perhaps the Minister could offer further clarification, unless I have misunderstood and there will be secondary legislation that provides further definition.
Sarah Sackman
I seek to assist the Committee, as I do not want us to get this wrong. The purpose of the definition is to exclude non-professional supporters or those who do not habitually perform a role in supporting witnesses. That is the intent. The fact that the court must also be satisfied that the support is not contrary to the interests of justice is an important protection in relation to who can and cannot perform the function. I do not think that necessarily excludes the fact that one could, in theory, have a relative perform it. I am, again, happy to provide that clarification so that there is no issue with the Committee not having the full information.
Dr Mullan
I wonder whether the Minister might reflect on that. I think there would be good reason to say that the supporter should not really be a family member. That is not how the system has been operating at present; it has been operating with professionals. I take the Minister’s point about the preceding clause, but the Government should perhaps be clearer about what they expect. I would not be neutral about whether a family member should sit with someone in that situation.
Sarah Sackman
I understand the point. In the circumstances, I would prefer to take officials’ advice and check that the legislation is doing what it intends to—providing a consistent practice of professional witness support, while maintaining trial fairness. I do not want to misdirect myself or the Committee.
Sarah Sackman
I think all of that is right, but I would prefer to take the matter back to the Department and check that we have a common understanding. I do not want to do this on the hoof if I do not have the full information before me. I think that is the intention—the presumption is that it applies only to professional supporters. I suppose it is ultimately up to the court if a family member sits with the person, if that is deemed necessary in the interests of justice.
Sarah Sackman
I am more than happy to accede to that. This has been useful, and I am very happy to provide that clarity.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14
Exclusion of persons from court
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
This clause represents an important and balanced step forward in strengthening the support available to intimidated complainants in our justice system. It will make it easier for courts to exclude individuals who may be causing distress or intimidation from the public gallery, while fully preserving the principle of open justice.
Section 25 of the Youth Justice and Criminal Evidence Act 1999 already permits the exclusion of the public from the courtroom while a complainant gives evidence, yet the Law Commission has observed that the power is rarely used in practice. Concerns about its perceived impact on open justice, particularly the requirement that only a single member of the press can remain, means that courts are often reluctant to apply it. At the same time, we know that individuals present in the gallery, including supporters of the defendant, can on occasion create an atmosphere that is distressing for intimidated witnesses. My hon. Friend the Member for Lowestoft (Jess Asato), who has huge amounts of experience in this area, told me of an egregious example affecting a constituent of hers who was giving evidence while friends of the defendant were creating an intimidatory atmosphere in the gallery, yet nothing was done about it.
The clause offers a practical and proportionate solution to that sort of situation. It will broaden the categories of individuals who may remain in the courtroom when the public gallery is cleared, allowing accredited members of the press, approved academic researchers and one supporter for the complainant to stay. It directly addresses concerns about transparency and open justice by allowing those reporting or researching the case in the public interest to remain. That is not a novel approach: comparable provisions already operate in Scotland and Northern Ireland, where courts can restrict public attendance while members of the press and a limited number of individuals remain in their place. Their experience demonstrates that it is entirely possible to restrict public access during particularly sensitive evidence without compromising the integrity or openness of the proceedings.
The clause will encourage courts to take a more flexible approach, excluding only those likely to intimidate the witness, where it is not necessary to clear the public gallery entirely. This will increase the likelihood that the measure can be used where appropriate, while maintaining open justice. I commend the clause to the Committee.
Dr Mullan
As the Minister points out, this clause interacts with the issue of transparency in the justice system. I recognise that the Minister thinks it attempts to strike a balance by clarifying the categories of people who may not be excluded, such as representatives of news organisations, witness supporters and approved researchers. The aim is to ensure that, while a witness may be shielded, the trial remains professional and legitimate.
However, we do not want the measure to have the unintended effect of narrowing public scrutiny, including by ordinary members of the public, who the Minister will accept are not necessarily there to intimidate or have any impact on the witness—they might not be even connected to the case. It should be assumed that people in this country can just turn up to a courthouse and watch a case, as they currently can, and as I have in the past.
Sad to say, but we have seen recently that practical transparency can be very difficult to achieve. We had the whole debacle with the Courtsdesk archive, which hugely assisted transparency in our legal system. The Opposition certainly do not feel that the Government’s initial response to that demonstrated that they were as committed to transparency in the justice system as they should be. It was only the effort of Opposition Members and media campaigners that secured a U-turn. We must ensure that these powers are used only when the interests of witnesses genuinely outweigh the public’s right to witness proceedings—although I note that the clause does not create an automatic entitlement for persons to be excluded.
We have discussed the availability of transcripts, and it would not be unreasonable to link the two issues. If people are excluded, I do not see why that could not become a trigger for making available those elements of the evidence that the public are for that reason unable to hear at first hand. I do not think the Minister is suggesting that the people in the gallery cannot hear the evidence; it is just about the impact on the witness of them being there. If that is happening and we accept that that is a break from the norm, it would be reasonable to say that transcripts of the elements that were not open to public scrutiny should be more widely available.
If the powers are enacted, it is important that the Government monitor their use going forward. They should have a clear position that they would be open to reforming or even removing the powers if they think they are not operating as intended.
We will not oppose these measures, but the Lords will want to look at them and ensure that we are excluding as little as possible. I accept the Minister’s point that, at the minute, nobody is getting excluded because of worries about how the provision operates, but that does not mean that we should just accept a new way of doing things when it could be better refined. If the Minister could clarify the point about transcript availability, it would demonstrate some good faith by ensuring that people can see for sure that we are not attempting to stop people from hearing what is going on in a courtroom.
Jess Brown-Fuller
I seek clarification from the Minister about the reference in clause 14 to
“representatives of news gathering or reporting organisations”.
Earlier, the hon. Member for Reigate raised the practice of live tweeting from court proceedings. I would appreciate it if the Minister set out her understanding of who would come under “a representative of a news gathering or reporting organisation”. With the rise of social media, and with more people getting their news online on things like X, we can have lots of news organisations with self-professed journalists or online commentators who are acting in the interests of providing online journalism, but who do not hold any form of accreditation or any official role as a journalist. It would be helpful if the Minister could explain who legitimate members of the press will be under this measure. Will they have to be recognised journalists? Will they have to have a press pass? Or can they say, “I’m here, in the interest of journalism, to live tweet the events because I am a self-employed journalist”?
Siân Berry (Brighton Pavilion) (Green)
It is great to see you back in the Chair to help us to make our way through the Bill, Ms Jardine. New clause 28 is a probing amendment, and I shall not press it to a Division when the time comes. To give the context for why I have tabled the new clause, I will lay out the experience faced by a young child—I cannot give many details of the case, as the Committee will appreciate.
This young child was below school age when they became the victim of and witness to abuse. They gave clear evidence on video at the time that it had happened, and while the case was investigated and awaiting trial in court, they continued with their childhood. Their mother helped them to move on from the abuse, and she says that the memory of what happened not being constantly brought back was a key part of their recovery. However, during the court case some years later, they were made to rewatch the video. By hearing their younger self talk about the abuse, they were, essentially, properly traumatised for the first time, as they for the first time properly understood, with a real, more mature understanding, what had happened to them in detail.
That case made me realise that the process of being cross-examined and watching back original, video-based evidence in chief, even just while the prosecution team refreshes their memory of their evidence, can do victims real harm. Although I can see why it may be necessary to cross-examine a witness on what happened, based either on their memory or facts stated in the evidence, I feel strongly that putting them through the additional trauma of rewatching it themselves is not necessary and should certainly not be routine, and that that should be in the law or guidance.
My new clause would amend sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999, which are intended to relate to special measures and directions. It would ask that witnesses not be obliged to watch video recordings of their earlier evidence, and would allow transcripts, as a potentially less traumatic alternative, to be submitted for cross-examination. It would also ask for notice of questions for cross-examination to be provided in good time. Although I understand that there is no legal obligation for the videos to be rewatched, I know that it is happening even when concerns have been expressed. I want to make sure that it is clearer in the law or relevant guidance that no witness or victim is obliged, against their will, to relive the crimes committed against them.
As I said, the new clause is probing. I am grateful that the Minister has looked into the issue, and has today committed to updating the guidance. I have corresponded with her departmental colleagues who are leading a review of the victims code, passing to them more details than I can mention here on that particular case and some ideas for how relevant guidance around special measures could be amended, as that could take the place of changes in primary legislation. I hope that my bringing this point to the Committee is constructive, and I thank the Minister for her attention.
Dr Mullan
As we have heard, clause 15 clarifies the use of pre-recorded evidence for cross-examination and re-examination, which is often referred to as section 28 evidence. Our courts frequently rely on recorded testimony to spare witnesses the trauma of a live trial, so the rules governing the editing and presentation of that evidence must be clear and robust.
Clause 15 provides clarification on the circumstances under which a video recording may be edited before it is admitted as evidence in a trial. Editing may be required if certain procedural requirements were not met during the recording being taken, or if specific portions of the material are deemed inadmissible or contrary to the interests of justice. The clause requires the court to perform a delicate balancing act, weighing any potential prejudice towards the accused against the desirability of presenting the whole, or substantially the whole, recorded examination.
A clearer statutory footing for editing is welcome, but it must be applied with consistency and transparency. If recorded evidence is to protect witnesses properly, the rules for its use must be as rigorous as those for live evidence. We must acknowledge, as we discussed earlier in respect of screens, the highly variable state of court technology. In my time on the Justice Committee, I visited courts and heard that they sometimes did not have the screens necessary to show evidence. There is a huge difference between a poky little TV of low granularity and a proper screen for showing video evidence to the jury.
Sir Brian Leveson’s review and others have highlighted that malfunctioning or substandard equipment can derail trials or create grounds for appeal when it comes to the use of pre-recorded evidence. Without reliable hardware and skilled technical staff—I also heard about the challenge when something goes wrong and there is no one available to fix it—the legal clarification in clause 15 will remain theoretical rather than practical.
My final point is about the guidelines, which the Minister talked about. We must ensure that they are sufficiently detailed, rigorous and standardised, so that, notwithstanding the further clarifications in the clause, they are suitably consistent in their application.
What are the Government’s current plans to address the technological challenge on the court estate in relation to section 28 recordings? What steps will be taken to ensure that all parties have time to review and potentially challenge edited versions of recordings before they are played to a jury? The ability to challenge is vital to ensuring consistency and fairness.
Sarah Sackman
On the hon. Gentleman’s last point about the reliability of the kit in courtrooms, that is critical not just for evidence via video. We have an ambition for greater use of video right across our criminal justice system, not just for vulnerable witnesses but in other ways that have been touched on. We have talked a lot about prisoner transportation being a challenge for the system; one way to address that is by having less demand for it, unless it is needed in the interests of justice and fairness.
The increased use of video could be of real benefit but, of course, it has to be reliable. That is why the Government’s capital investment in increasing the budget for His Majesty’s Courts and Tribunals Service—I saw some of that equipment in action in Harrow court—will make such a difference.
When we are talking about vulnerable witnesses, who are given the option of section 28, the quality of their evidence can be impacted if it is inconsistent or glitchy, or if the way it appears in a courtroom is somehow distorted because it is too big or too small, or whatever. All those things will be important, which is why the significant investment agreed with the judiciary through the concordat process over the next three years will make such a difference, and why all the court transformation and reform measures are being accompanied by significant inward investment, as announced by the Deputy Prime Minister.
I should say that HMCTS, the performance of which I routinely review with the Deputy Prime Minister, conducts regular audits of facilities and brings that to our attention so that we can see where the roll-out is happening, which courts are lacking facilities and which need to be prioritised for investment.
Sarah Sackman
I am very happy to provide that information, to the extent that we hold it.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16
Application of special measures to victim personal statements etc
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
The clause makes it clear in legislation that special measures are available when a victim chooses to read their victim impact statement aloud at sentencing. This is a moment of real significance for many victims—the point at which they are able to explain, in their own words, the impact of the offending on their lives. Although special measures can already be used for this purpose, that entitlement is not explicitly set out in legislation.
As the Law Commission has explored, the lack of a clear statutory basis can create uncertainty about what victims may rely on, adding avoidable stress at a time when they are already managing the emotional weight of addressing the court. Clause 16 removes that uncertainty. It ensures that victims can rely on the same special measures at sentencing as they can when giving evidence, whether using screens, a live link or some other appropriate measure.
By placing the provisions on a clear statutory footing, clause 16 gives victims greater reassurance that their voice can be heard at sentencing and that they will have access to the support needed to participate effectively. It will enhance their overall experience of the justice system, and strengthen the quality of information available to the court when determining a sentence. I commend the clause to the Committee.
Dr Mullan
I have spent a lot of time working on the issue of victim personal statements, often referred to as victim impact statements, in work on other Bills. We are talking today about someone’s ability to give an effective statement, but the Opposition have also been concerned about restrictions on what people can actually say, and have tabled amendments to other Bills on that issue.
I have worked with a number of victims. The people who come to mind are the parents of Violet-Grace, a four-year-old girl who was hit and killed by a stolen car going 80 mph on a 30 mph road while she was crossing with her grandmother. The criminals involved fled the scene—they came back to step over her body as they grabbed the drugs they had left in the car—and then fled the country. Her grandmother suffered massive injuries and will never be physically the same. Violet-Grace’s parents, two amazing individuals who are part of the Justice for Victims campaign group, talked about their experience of what they wanted to say in their victim statement being interfered with.
I have also had the pleasure of meeting and working with Sarah Everard’s parents, who tell the same story of having wanted to say certain things. Of course, the Opposition do not think it should be a free-for-all, and people should say whatever they want in an impact statement, but surely the onus should be on allowing victims to have their say.
There is a need to reform what these statements are for. In statute, it is there purely as a way for victims to talk about the impact of the crime on them. That is helpful, but in other jurisdictions it is an opportunity for the victim to say what they want about what has happened—importantly, this is at the point of conviction, when someone has been found guilty. We will therefore continue to push for broader reforms to impact statements.
On screens, this one of those things we read and thinks, “Why wasn’t this thought of at the time?” It seems self-evident that everything is put in place for witnesses during a trial—before someone has even been convicted, when the state has not yet decided through the courts whether someone is guilty—but this is after the trial. Surely the protections for people taking part at that stage should have been included in the original envisaging of the use of screens. We wholly support the relevant measure. We have discussed physical infrastructure already, but I am sure there is something the Government can do on that.
I do not think the Minister is responsible for the content of statements—I think that lies with the Minister for Victims—but we would appreciate her lending support to her ministerial colleague in relation to further expanding what people can say in their statements. The clause seeks to ensure that they have their moment in court from a physical point of view, but that will be undermined somewhat if what they are allowed to say is not as expansive as we can possibly make it.
Sarah Sackman
I think we all agree that the victim impact statement, and that moment when victims read or speak aloud about the ways in which they have been impacted, is critical. Their ability to speak at all may depend on the consistent provision of the special measures in clause 16. All that can be done without compromising the fairness of what is to follow, which is the sentencing exercise in which a judge must engage in respect of the defendant. Clause 16 seeks to enable that, because there may be victims who simply cannot bring themselves to do it absent those special measures. That is why it is a really important clause.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17
Welfare of the child: repeal of presumption of parental involvement
Jess Brown-Fuller
Amendment 14 would require the Government to set out how the family courts and legal aid system will be resourced to give full effect to the repeal of the presumption of parental involvement. It would necessitate a report being laid by the Government on the impact of repealing the presumption of parental responsibility. We are in favour of clause 17, but the amendment focuses on the impact of the provisions on legal aid and the capacity of family courts, judicial training and investment in the family court estate. Repealing the presumption of parental responsibility will lead to a need for more legal advice, as well as changes in hearings and court practices. It is important that the Government report on those changes to the House. We hope that they accept the need for a report.
Clause 17 will repeal the presumption of parental involvement in the Children Act 1989. The presumption was originally introduced to ensure that both parents could maintain a relationship with their children after separation. However, there have been long-standing campaigns to repeal the presumption, with evidence emerging—I say emerging, but it is long-standing evidence—that children could be left at risk of harm. The change will mean that the courts will no longer start from the assumption that parental involvement is always in the child’s best interests.
A key campaigner for this change, working with Women’s Aid, is Claire Throssell, who the Committee had the opportunity to hear from during the evidence session. Claire’s children, Jack and Paul, were killed by their father, who locked them in the attic and set fire to the house. If there was any moment that we all will remember for a very long time, it was Claire holding the images of her children before the incident and afterwards. I commend her for her bravery and for the way that she was able to speak so clearly not just for herself, but for all the families who have experienced devastating bereavement in that way—fighting for the children who will come after.
A family court judge, guided by the presumption, decided to allow Claire’s ex-husband unsupervised access to their children, despite evidence that he had threatened to harm both her and them. Since Women’s Aid first reported on the issue in 2004, 67 children have been killed by perpetrators of domestic abuse through contact arrangements, with 19 further child deaths documented in the decade to September 2024 alone.
The Lib Dems are in favour of the shift in law away from the presumption of parental involvement. Although the Bill seeks to repeal the presumption, there is a pro-contact culture in the family courts, as described by Farah Nazeer of Women’s Aid, who we also heard from in the evidence session. Will the Minister lay out what will be done to support the cultural reform of the family courts to ensure that this is a pivotal moment for victims of domestic abuse, who for so long have had their concerns around their children’s safety dismissed?
Claire spoke to that point in the evidence session. When I asked her what she believed the next steps should be, she said:
“What I would like to see moving forward is an understanding of what it looks like without presumption of contact; what good practice looks like; understanding trauma; understanding what coercive control is; understanding emotional abuse. We all understand physical abuse—it is there; we see it. What we do not understand is the emotional abuse and the scars that we carry. We must always look from the position of actually seeing a child, hearing a child, believing a child, protecting a child, and we must go from this basis.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 58, Q110.]
New clause 16, which I also tabled, is a probing amendment that I will not press to a vote, but I wish to discuss it further. It would introduce a rebuttal presumption that a parent’s relocation with a child in the context of domestic abuse, undertaken in reliance on and with documented advice from authorities or support services, is reasonable and in the child’s best interests, unless the contrary is known.
New clause 16 would allow a parent to relocate with a child if they have evidence or advice from a domestic abuse support service or authority. It would require the court to assume that the move is reasonable and place the burden on the other parent to prove that the move is not in the child’s best interest.
The new clause is aimed at making it easier for victims of domestic abuse to leave their situations safely, and to prevent them from being forced to remain near their abusive ex-partners. Currently, the legal framework does not adequately distinguish between a parent who removes a child to protect them and a parent who removes a child to punish the other party. Our new clause would not remove safeguards in respect of alienation, but would instead shift the dial towards believing and protecting victims of domestic abuse.
The new clause is supported by Fair Hearing, which shared multiple examples of its work with courts that failed to give proper weight to the relevance of domestic abuse in relocation decisions. In one such case, a mother who had experienced severe physical, sexual and psychological abuse had been forced by her partner, during the relationship, to move with their children to an isolated rural area. After leaving him, she sought permission to return to her home town, where she had family support and greater safety. The court none the less required her to remain in an isolated cottage near her abuser, failing to give proper weight to the impact of the abuse, or to her need for safety and support. Cases of that kind illustrate the consequences of a framework that, in its operation, too often treats a survivor seeking to relocate for safety no differently from any other parent seeking to move for lifestyle or preference reasons.
I make the point to the Minister that this could happen to any of us. So often, abuse does not start on day one, when the partner suggests that we move somewhere lovely and will be really happy there. I am a very long way removed from the version of myself who made the decision to follow a boy three hours away from my family in my early 20s. He turned out not to be the great guy I thought he was when I made that decision. I escaped from that situation, but had I stayed and ended up having children, the idea that I would have been trapped in a city that was not mine, away from my family, who were my support network, is too scary to bear. I remind the Minister that it could happen to literally any one of us.
Wider campaigns from Women’s Aid, SafeLives and Refuge have focused on ensuring that survivors can relocate to escape abuse. As subsection 2 of the new clause outlines:
“Where the relocating parent demonstrates that the decision to relocate was made in consequence of domestic abuse, and this is supported by documented advice from a relevant authority or support service, there is a presumption that the relocation was reasonable and in the best interests of the child.”
Under the new clause, the documented advice would include evidence from a police force, social services, a multi-agency risk assessment conference or an independent domestic violence adviser. We look to work closely with the Government on this issue, and I hope they recognise the need to go further, but I will not push new clause 16 to a vote.
I will speak briefly to new clause 20, also tabled in my name, which would introduce a statutory presumption that where domestic abuse is alleged, the court must make findings on the allegations before considering any claim that a parent has sought to undermine the child’s relationship with the other party. If one parent alleges domestic abuse and the other alleges alienating behaviour—that is, influencing the child against them—the court must decide the domestic abuse allegations first. The court cannot move on to contact issues until that is decided. If the court finds domestic abuse, a child’s reluctance to see that parent is presumed to be justified. That presumption can be overturned only with evidence. If abuse is proven, courts cannot consider claims of alienation until the alleged abusive parent proves the child’s resistance is not due to abuse.
Campaigners have long argued that the family courts have been used by abusers to retraumatise victims and have over-prioritised contact between parents and children. It is estimated that around 60% to 90% of child arrangement cases in the family court feature allegations of domestic abuse. In 2020, the report entitled “Assessing Risk of Harm to Children and Parents in Private Law Children Cases” highlighted serious issues with how the family court system addresses domestic abuse in child arrangement cases. It said that those issues were underpinned by a pro-contact culture, silo working, an adversarial system and resource constraints.
A 2023 report by the Domestic Abuse Commissioner stated:
“Victims and survivors and their advisors reported concerns that raising domestic abuse as an issue often risked the retaliatory use of so-called ‘parental’ alienation narratives by parties against whom domestic abuse had been alleged as a counter-claim, leading to worse outcomes for adult and child victims and survivors.”
Five years on from the harm report, the Domestic Abuse Commissioner found that despite overwhelming evidence of domestic abuse in most cases, a pro-contact culture and a failure to recognise abuse still contribute to decisions that may put children in harm’s way.
This can be considered a probing amendment; I will not press new clause 20 to a vote. We will be looking to work closely with the Government to make progress in this area. The new clause would tilt the dial slightly towards victims of domestic abuse by ensuring that courts properly examined cases before considering issues of alienation. It would prioritise the safety of victims of domestic abuse, whether partners or children, by requiring these allegations to be addressed first.
It is also sometimes argued that children resist contact with certain parents because of manipulation. Our proposal would ensure that courts did not assume that manipulation first, but it would also have safeguards. It would not allow domestic abuse organisations to submit evidence; instead, it would be the authorities, social services and an independent domestic violence adviser who would do that. A minimum evidential threshold would also have to be met.
Dr Mullan
I want to begin by acknowledging the gravity of what we heard in evidence in Committee. As the Liberal Democrat spokesperson, the hon. Member for Chichester, pointed to, the evidence from Claire in relation to her children will stay with all of us. It was so moving and so upsetting for anyone thinking about how they would feel in that scenario. There was also the testimony of other parents who have lost children, and survivors of domestic abuse, who felt let down by a system that prioritised contact over their safety. That testimony matters. The Committee has a duty to take it incredibly seriously and give it the maximum possible weight.
We also have a duty to legislate carefully, however, and when it comes to legislating I do not think there are many areas of human frailty and human complexity that are more complicated than this. As anyone with any experience of the family court—and of life generally and the interactions between families who split up—will agree, all these things are incredibly complicated. When we seek to be prescriptive about how exactly a court should or should not seek to do things, that is fraught with risk and potential unintended consequences, just as today we are discussing the unintended consequences of a measure that may have been brought in for good reasons.
We must think very carefully, therefore, when it comes to the repeal of section 1(2A) of the Children Act 1989, and particularly about whether we think that will achieve what it promises. I make no apologies for saying that I want to consider this in some detail and that we will want to follow the discussions on it in some detail as the Bill progresses. Although we are not seeking to oppose the repeal at this stage, it is certainly not something—as opposed to some other measures—that is without the need for further scrutiny.
I want to say plainly that the courts, social services and CAFCASS have made serious mistakes in the past—importantly, both before that provision was inserted in 2014 and since—and those serious mistakes have cost children their lives. However, the question before us today is whether repealing the presumption will fix the mistakes or whether it might distract from the need for much deeper reforms and more complex and difficult work than can be achieved by a simple measure in a Bill.
Let me deal with the most important point: the presumption introduced in 2014 does not give any parent an automatic right to contact. It is important that we recognise that. It does not override the paramount principle in the law. I think we probably all remember the evidence given by one of the barristers in Committee, who was clear that while they thought the presumption could be repealed, the law as it stands does not allow the desire for a parent to have contact to override the welfare of a child. It also does not override the welfare checklist, or require courts to make an order that places children at risk.
The presumption establishes a starting point that, where it is safe to do so, children should generally benefit from the involvement of both parents. That starting point can be rebutted, but it expressly does not apply where a parent’s involvement would put the child at risk. In its written evidence, Both Parents Matter describe it as a “statutory benchmark”, not a straitjacket.
Rebecca Paul
I am sure people saw me during evidence. I get really upset about the loss of any child’s life. We have to remember that we all want to keep children safe—[Interruption.]
Rebecca Paul
No, I’m okay.
I would gently say to the hon. Member for North West Leicestershire that I hope she has heard—and even seen—enough from me to know that I am here to protect children. Of course I am horrified by any loss of a child, but my point is that I am trying to step back, be objective and say, “What is the reason that those children lost their lives?”. I am not convinced that it was the parental presumption—I am not saying that I am right on that; I am just open-minded to it.
I have seen a particular case quite closely—I should declare that I am a serving county councillor in Surrey—and that is the case of Sara Sharif. I have gone through the safeguarding reviews in a huge amount of detail; it affected all of us councillors in Surrey greatly. It was an absolutely awful case. So many things went wrong throughout her life. From the family courts to social services, her GP and the school, there was just a barrage of failure that led to that poor little girl being murdered, and that absolutely could have been prevented.
People might argue, “Well, if we had removed the parental presumption, that would have saved her.” Having gone through all that, I can tell the hon. Member that, in that case, it would not have done anything. It was safeguarding failures. People just made mistakes. They got things wrong. They were too worried about offending people to take the right actions.
What I am saying today is just that it is really important, when we look at these things, that we diagnose what went wrong. We have to do that quite objectively. That is difficult when we are hearing from lots of different people who have gone through awful things, but our job is to try to not be emotional—I say that having got emotional myself—and to look at it logically. At the end of the day, we all just want to deliver the outcome that protects children. That is what all of us on this Committee want to do. But it is important that we can talk about that without the hon. Member suggesting that I somehow do not care about children, because what I am trying to do is to have that objectivity, because it matters to me so much that we do protect those children that I want us to have that proper debate and to say, “Is this really the right way or are there other things we can be doing? Do we need to do multiple things? Maybe this isn’t enough.” I am not saying that we should not do it; I am saying that we just need to make sure that we have thought this through.
I will be really keen to hear from the Minister; I know this really matters to her as well, and she will have done that thinking, so I look forward to hearing her thoughts on the challenges I have brought up today. But, as I say, I keep an open mind, and we all share the same objectives.
Dr Mullan
The Minister was absolutely right to point to the enormous burden on those judges. I should have made a similar observation, and I am happy to do so now. Although I have been critical of some of their decisions, I cannot imagine the weight that sits with some of those people all the time, so I want to put on the record my thanks to those judges—on the whole, they do a very good job.
However, we still come back to the issue of accountability. We can preload the system to ensure that judges are more likely to make suitable decisions but, if there are no accountability mechanisms at the other end, we will not necessarily get the results that we want. What thought has the Minister given as to how we better ensure accountability for decision making? In my practice as a doctor, for example, there are so many mechanisms in place to ensure that the decisions I make are not just technically justifiable, but good. The point my constituent made when she visited me was that there are no such mechanisms for judges. If they make a strict error in law, that can be tackled through the Court of Appeal, but outside of that, how can the judiciary better hold itself to account for poor-quality, even if legally defendable, decision making? I am not talking about the Government interfering with the judiciary.
Sarah Sackman
The hon. Gentleman makes a good point. Obviously, we have appeal systems and, in some family proceedings, the nature of them can be iterative; as family circumstances and the facts change, it might be that there are provisions in directions to come back and relitigate some of those child arrangements. In other cases, they are final. Accountability is really important to us as a ministerial team, and the Secretary of State does not shy away from it. While of course respecting separation of powers, the judicial complaints process must be important as well, not just in family courts, but right across the piece. Where judges fall short of the standards we require of them, they should be held accountable.
I want to make a point about transparency and the publication of family court judgments. That is happening more and more, and it is important because it holds it up and says, “That is what a good judgment looks like”. It also exposes where there is decision making that is either faulty, poorly reasoned or simply not justified, so that that cannot happen.
The other thing happening is not just the publication of those judgments, with all the support that transcription allows, but also opening up—again, where appropriate—to journalists and the public to come and see how those hearings operate.
Dr Mullan
The Minister has pointed to complaints, and that is an important element, but there is something in between complaints and legal appeal. Again, from my own experience, working extensively on trying to make quality improvements in healthcare, these are incredibly complex things that we expect experts to do. Someone might not have done the wrong thing but, when we look at their practice as a whole, it does not compare favourably with that of other clinicians. That is what we recognise as the manner in which we drive improvement.
Some of the high-profile statisticians who I have worked with in that regard and who speak publicly on these matters have looked at court decisions say that they can find similar patterns of what we might call outliers—for example, regarding how likely people are to grant parental custody. Any one of those decisions might not be a decision that would be legally wrong or warrant a complaint—but we might see that they are 10 times more likely than all the other judges to award custody. Again, that is not to say that they are wrong to do so; but, just as clinicians are forced to do, we should at the very least be forcing them to reflect on that internally within the judiciary, and say, “Why is it that you are awarding custody to both parents in so many more circumstances than all your peers?”. It is not about complaints or legally wrong actions, but someone’s practice as a whole.
As the Minister has said, there is a very important separation: it should not be the Minister responsible saying to that person, “I don’t like your rate of referral”, but there should be something else within the judiciary—something that is not complaints and is not legal challenge, but that just says, “You all have to be a bit more accountable for the decisions you take”. To give another example in sentencing, if we could consistently see that a judge’s sentencing was consistently very far away from their peers’, that is not something that we should just accept as a society. This is not a Government issue, but a society issue.
Dr Mullan
I had considered thinking of a question for every single amendment, but I elected against that. I speak in support of clause 18 and schedule 3. While the provisions may not generate the same level of public debate and scrutiny as the Bill’s earlier clauses regarding the restriction of jury trials, they carry significant institutional and constitutional weight within our judicial hierarchy.
The clause and schedule will bring the leadership of tribunals in England and Wales more firmly within the unified judicial structure, placing them under the overarching leadership of the Lady Chief Justice. In practical terms, this involves a title change for the Lady Chief Justice, who will become the president of the courts and tribunals of England and Wales. They also involve the transfer of specific leadership responsibilities that are currently vested in the Senior President of Tribunals.
The Government’s primary justification for the reform is administrative coherence and systemic flexibility. By reconfiguring the office of the Senior President of Tribunals, as the head of tribunals justice, the Bill attempts to create a more integrated and seamless judicial pyramid. In theory, such integration should allow for better co-ordination across different jurisdictions, ensuring that the tribunal judiciary is viewed not as a secondary or isolated branch of the law, but as an equal partner in the modern administration of justice.
The Opposition offer support for this move towards unity, acknowledging that a more cohesive leadership structure can streamline high-level decision making and improve the deployment of resources. However, that support must be tempered with a request for scrutiny. Unification should not be used as a tool for uniformity. Tribunals are substantially and culturally distinct from the traditional courts; they were designed specifically to be more accessible, specialist and often less formal in their proceedings. Their value to the public lies not only in their final adjudication of a dispute. Whether it is social security, immigration or employment, I am sure that we as MPs have all been contacted by constituents who have gone through, or expect to go through, a tribunal process.
Leadership arrangements are never merely technical; they shape the culture, training priorities and institutional identity of the body they lead. The Government have stated that practical leadership will continue to be exercised through a system of delegation back to the reconfigured office of the Senior President of Tribunals. While we recognise that this appears workable on paper, we must be satisfied that it will not allow creeping deprioritisation, a lack of focus, or a watering down of tribunals’ particular culture when they become part of this unified leadership. Will the Minister therefore assure us that thought has been given to ensuring an absence of uniformity, because we have specifically designed the courts not to be uniform, but different in their own way?
Sarah Sackman
That reflects the clause as drafted and the intention behind it, from speaking to our judicial leadership. In my experience, I have certainly found our judicial and tribunal leadership to be progressive, reforming and more open to cultural change, scrutiny and improvement than perhaps might previously have been the case. I welcome that, because it is as it should be. The hon. Member is right, of course: tribunals are different. They are meant to be informal and feel different from going to the High Court, which is all terribly alienating to the ordinary person who is untrained. A tribunal is supposed to involve a relatively cost-neutral and more relaxed process so that the individual can participate in it. Our proposals do not cut against that, but bring the judiciary across England and Wales into the notion of unity, with a lot of the benefits of being under a single leadership—sharing best practice and deploying judges across different jurisdictions—being enhanced, so that everyone can benefit without bleeding out the differences that rightly exist in our different courts and tribunals.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Schedule 3
Leadership of tribunals
Amendments made: 72, in schedule 3, page 68, line 4, after “may” insert
“, subject to the following provisions of this section,”.
This amendment is intended to clarify that the Lord Chief Justice’s general power under section 7A(1) of the Tribunals, Courts and Enforcement Act 2007 (inserted by the Bill) to delegate functions relating to tribunals is qualified by subsequent subsections of that section.
Amendment 73, in schedule 3, page 68, leave out line 5.
This amendment would remove redundancy in the drafting of new section 7A(1) of the Tribunals, Courts and Enforcement Act 2007 (inserted by the Bill).
Amendment 74, in schedule 3, page 68, line 9, at end insert—
“(1A) A function of the Lord Chief Justice may not be delegated under subsection (1) to a person who—
(a) is a judge, or other member, of the Upper Tribunal or First-tier Tribunal only by virtue of the person being a relevant Scottish office-holder or a relevant Northern Ireland office-holder, and
(b) is not a Chamber President, or a Deputy Chamber President, of a chamber of the Upper Tribunal or of a chamber of the First-tier Tribunal.”
This amendment, together with amendment 75, would prevent the Lord Chief Justice of England and Wales delegating functions relating to tribunals to a person who is a judge of the Upper Tribunal or First-Tier Tribunal only because the person holds a particular judicial office in Scotland or Northern Ireland.
Amendment 75, in schedule 3, page 69, line 6, at end insert—
“(8A) For the purposes of subsection (1A)—
(a) a person is a ‘relevant Scottish office-holder’ if the person is—
(i) a judge of the Court of Session,
(ii) a sheriff in Scotland,
(iii) the President of Employment Tribunals (Scotland),
(iv) the Vice President of Employment Tribunals (Scotland), or
(v) a member of a panel of members of employment tribunals (whether or not a panel of Employment Judges) established for Scotland;
(b) a person is a ‘relevant Northern Ireland office-holder’ if the person is—
(i) a Lord Justice of Appeal in Northern Ireland,
(ii) a puisne judge of the High Court in Northern Ireland,
(iii) a county court judge in Northern Ireland,
(iv) a district judge in Northern Ireland,
(v) the Chief Social Security Commissioner, or any other Social Security Commissioner, appointed under section 50(1) of the Social Security Administration (Northern Ireland) Act 1992, or
(vi) a Social Security Commissioner appointed under section 50(2) of that Act (deputy Commissioners).”
See the explanatory statement to amendment 74.
Amendment 76, in schedule 3, page 69, line 21, after “may” insert
“, subject to the following provisions of this section,”.
This amendment would make a change to the drafting of new section 7B of the Tribunals, Courts and Enforcement Act 2007 (further delegation of functions of the Lord Chief Justice) corresponding to the change made by amendment 72 to the drafting of new section 7A of that Act.
Amendment 77, in schedule 3, page 69, line 25, at end insert—
“(1A) A function of the Lord Chief Justice may not be further delegated under subsection (1) to a person who—
(a) is a judge, or other member, of the Upper Tribunal or First-tier Tribunal only by virtue of the person being a relevant Scottish office-holder or a relevant Northern Ireland office-holder, and
(b) is not a Chamber President, or a Deputy Chamber President, of a chamber of the Upper Tribunal or of a chamber of the First-tier Tribunal.”
This amendment would impose a limitation on the power to further delegate a function of the Lord Chief Justice under new section 7B of the Tribunals, Courts and Enforcement Act 2007 corresponding to the limitation imposed in relation to new section 7A of that Act by amendment 74.
Amendment 78, in schedule 3, page 69, line 28, leave out from “to” to end of line and insert
“a person appointed as—
(a) Deputy Head of Tribunals Justice, or
(b) Chamber President of a chamber of the Upper Tribunal.”
This amendment would enable functions of the Lord Chief Justice under paragraph 1(1) or 2(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007 that are delegated to a senior judge to be further delegated to the Deputy Head of Tribunals Justice.
Amendment 79, in schedule 3, page 70, line 2, at end insert—
“‘relevant Scottish office-holder’ and ‘relevant Northern Ireland office-holder’ have the same meaning as in subsection (1A) of section 7A (see subsection (8A) of that section);”.
This amendment is consequential on amendment 77.
Amendment 80, in schedule 3, page 70, line 7, leave out “(1)(b),” and insert
“(1)—
(a) in the words before paragraph (a), after ‘may’ insert ‘, subject to the following provisions of this section,’;
(b) in paragraph (b),”.
This amendment would make a change to the drafting of section 8 of the Tribunals, Courts and Enforcement Act 2007 (Senior President of Tribunals: power to delegate) corresponding to the change made by amendment 72 to the drafting of new section 7A of that Act.
Amendment 81, in schedule 3, page 70, line 8, at end insert—
“(2A) In subsection (1A)—
(a) for ‘paragraph 1(1) or 2(1) of Schedule 2’ substitute ‘any of the provisions listed in subsection (1B)’;
(b) for ‘a Chamber President of a chamber of the Upper Tribunal’ substitute ‘a person appointed as—
(a) Deputy Head of Tribunals Justice, or
(b) Chamber President of a chamber of the Upper Tribunal’.
(2B) After subsection (1A) insert—
‘(1B) The provisions are—
section 7(7);
section 7(8B) and (9);
paragraph 1(1) of Schedule 2;
paragraph 2(1) of Schedule 2;
paragraph 2(1) of Schedule 3;
paragraph 7(1) of Schedule 3;
paragraph 2 of Schedule 4;
paragraph 5(1) and (3) of Schedule 4;
paragraph 5(5) to (8) of Schedule 4;
paragraph 5A(3A) of Schedule 4.’”
This amendment would insert provision amending section 8 of the Tribunals, Courts and Enforcement Act 2007 to enable the Senior President of Tribunals to delegate to the Deputy Head of Tribunals Justice or an Upper Tribunal Chamber President certain functions to which subsection (1) of that section does not currently apply.
Amendment 82, in schedule 3, page 70, line 9, leave out sub-paragraph (3) and insert—
“(3) For subsection (2) substitute—
‘(2) Subsection (1) does not apply to functions of the Senior President of Tribunals under any of the following—
section 29B;
section 29D;
section 46;
paragraph 3 of Schedule 5;
paragraph 2 of Schedule A1 to the Employment Tribunals Act 1996.’”
This amendment is consequential on amendment 81.
Amendment 83, in schedule 3, page 70, line 21, at end insert—
“18A After section 8 insert—
‘8A Delegation: supplementary
(1) Where a function is exercisable, in a particular case, by the Lord Chief Justice and the Senior President of Tribunals, acting jointly—
(a) so far as the function is exercisable by the Lord Chief Justice, it is to be treated for the purposes of section 7A as a relevant tribunal function and may be delegated under that section, and further delegated under section 7B, accordingly (including to the Senior President of Tribunals);
(b) so far as the function is exercisable by the Senior President of Tribunals—
(i) it is to be treated for the purposes of section 8 as a function the Senior President of Tribunals has in that capacity and may be delegated under section 8 accordingly, but
(ii) it may not be delegated under that section to the Lord Chief Justice.
(2) Where a person (“the delegator”) has a power to delegate a function under section 7A, 7B or 8—
(a) any requirement that the delegator may exercise the function only with the concurrence of another person (“P”) does not prevent the delegator from delegating the function to P, and
(b) if the delegator delegates the function to P, any such requirement is to be disregarded so far as the function is exercised by P.
(3) In this section “the Lord Chief Justice” means the Lord Chief Justice of England and Wales.’”
This amendment would insert provision intended to clarify the effect of delegation powers under the Tribunals, Courts and Enforcement Act 2007, inserted or amended by the Bill, in cases where the function being delegated is exercisable jointly with, or with the concurrence of, the person to whom it is delegated.
Amendment 84, in schedule 3, page 75, line 6, leave out “senior judge” and insert
“person who holds high judicial office”.
This amendment would enable functions of the Senior President of Tribunals to be exercised during any vacancy or incapacity by a holder of high judicial office in Scotland or Northern Ireland (as well as in England and Wales).
Amendment 85, in schedule 3, page 75, leave out lines 12 and 13 and insert—
“‘high judicial office’ has the same meaning as in Part 3 of the Constitutional Reform Act 2005 (see section 60(2)(a)of that Act);”.
This amendment is consequential on amendment 84.
Amendment 86, in schedule 3, page 88, line 9, at end insert—
“32A In Schedule 8 (tribunals and inquiries: consequential and other amendments), in paragraph 41, omit sub-paragraphs (3) and (6) (which insert into the Employment Tribunals Act 1996 provision repealed by this Act).”
This amendment would repeal provisions of the Tribunals, Courts and Enforcement Act 2007 which insert into the Employment Tribunals Act 1996 provision repealed by the Bill.
Amendment 87, in schedule 3, page 92, line 38, at end insert—
“Agriculture Act 1947
43A In Schedule 9 to the Agriculture Act 1947 (constitution etc. of tribunals etc.), in paragraph 15A (which provides for a member of the First-tier Tribunal to act as a member of the Agricultural Land Tribunal)—
(a) in sub-paragraph (1), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) after sub-paragraph (1) insert—
‘(1ZA) In sub-paragraph (1), “the appropriate office-holder” means—
(a) in relation to a member of the First-tier Tribunal who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’
Lands Tribunal Act 1949
43B In section 1 of the Lands Tribunal Act 1949 (which makes provision including provision about selecting a surveyor for the purposes of section 58 or 106 of the Lands Clauses Consolidation Act 1845)—
(a) in subsection (6), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) after subsection (6) insert—
‘(6ZA) In subsection (6) “the appropriate office-holder” means—
(a) in relation to the determination of compensation to be paid in respect of land in England or Wales, the Lord Chief Justice of England and Wales;
(b) in any other case, the Senior President of Tribunals.
(6ZB) Section 7A of the Tribunals, Courts and Enforcement Act 2007 (Lord Chief Justice: power to delegate) applies to any function of the Lord Chief Justice under subsection (6) as it applies to a relevant tribunal function within the meaning of that section.
For provision enabling the delegation of any function of the Senior President of Tribunals, see section 8 of that Act.’
Rent Act 1977
43C In Schedule 10 to the Rent Act 1977 (rent assessment committees), in paragraph 5A (which provides for a member of the First-tier Tribunal to act as a member of a committee in Wales)—
(a) the existing text becomes sub-paragraph (1);
(b) in that sub-paragraph, for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(c) after that sub-paragraph insert—
‘(2) In sub-paragraph (1), “the appropriate office-holder” means—
(a) in relation to a member of the First-tier Tribunal who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’”
This amendment would insert provision amending provisions of the Agriculture Act 1947, the Lands Tribunal Act 1949 and the Rent Act 1977 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 88, in schedule 3, page 93, line 12, leave out paragraph 46 and insert—
“46 In section 9 (assistance for transaction of judicial business)—
(a) in subsection (1), in the Table (judges deployable to certain courts), in column 1 of entry 4A (the Senior President of Tribunals), after ‘Senior President of Tribunals’ insert ‘, if not an ex-officio judge of the Court of Appeal’;
(b) omit subsection (1ZA).”
This amendment would enable a holder of the office of Senior President of Tribunals who is an ex-officio judge of the Court of Appeal to act on request as a judge of the Crown Court (like all other judges of the Court of Appeal).
Amendment 89, in schedule 3, page 93, line 29, at end insert—
“Mental Health Act 1983
48A In Schedule 2 to the Mental Health Act 1983 (Mental Health Review Tribunal for Wales), in paragraph 5 (which provides for certain members of the First-tier Tribunal to act as members of the tribunal)—
(a) in sub-paragraph (1), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) after sub-paragraph (1) insert—
‘(1ZA) In sub-paragraph (1), “the appropriate office-holder” means—
(a) in relation to a member of the First-tier Tribunal who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’
Landlord and Tenant Act 1987
48B In section 33 of the Landlord and Tenant Act 1987 (acquisition order where landlord cannot be found)—
(a) in subsection (2)(a), for ‘the Senior President of Tribunals’ substitute ‘the Lord Chief Justice of England and Wales’;
(b) after subsection (3) insert—
‘(4) Section 7A of the Tribunals, Courts and Enforcement Act 2007 (Lord Chief Justice: power to delegate) applies to the function of the Lord Chief Justice under subsection (2)(a) as it applies to a relevant tribunal function within the meaning of that section.’
Local Government Finance Act 1988
48C In Part 1 of Schedule 11 to the Local Government Finance Act 1988 (the Valuation Tribunal for England), in paragraph A18A (power for member of First-tier Tribunal to act as member of the Tribunal)—
(a) in sub-paragraph (2)(a), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) in sub-paragraph (9), after paragraph (a) insert—
‘(aa) “the appropriate office-holder” means—
(i) in relation to an FTT member who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals, and
(ii) in any other case, the Lord Chief Justice of England and Wales, and’.
Social Security Act 1998
48D (1) Section 15A of the Social Security Act 1998 (functions of Senior President of Tribunals) is amended as follows.
(2) For the heading substitute ‘Confidentiality in the First-tier Tribunal’.
(3) In subsection (1), for ‘The Senior President of Tribunals’ substitute ‘The appropriate office-holder’.
(4) After subsection (1) insert—
‘(1A) In subsection (1), “the appropriate office-holder” means—
(a) in relation to the First-tier Tribunal in England and Wales, the Lord Chief Justice of England and Wales;
(b) in relation to the First-tier Tribunal in Scotland or Northern Ireland, the Senior President of Tribunals.’”
This amendment would insert provision amending provisions of the Mental Health Act 1983, the Landlord and Tenant Act 1987, the Local Government Finance Act 1988 and the Social Security Act 1998 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 90, in schedule 3, page 94, line 1, at end insert—
“49A The Crime and Courts Act 2013 is amended as follows.”
This amendment is consequential on amendment 92.
Amendment 91, in schedule 3, page 94, line 2, leave out “the Crime and Courts Act 2013, in”.
This amendment is consequential on amendment 90.
Amendment 92, in schedule 3, page 94, line 3, at end insert—
“50A In Schedule 13 (judicial appointments), omit the following provisions (which insert into the Tribunals, Courts and Enforcement Act 2007 provision repealed by this Act)—
(a) paragraph 30(3);
(b) paragraph 43;
(c) paragraph 44(2);
(d) paragraph 45(2) and (4);
(e) paragraph 46(2) and (6);
(f) paragraph 47(4) to (6), (8), (9), (11) and (12).
50B In Schedule 14 (deployment of the judiciary), in paragraph 12, omit sub-paragraph (2) (which inserts into the Employment Tribunals Act 1996 provision repealed by this Act).”
This amendment would repeal provisions of the Crime and Courts Act 2013 which insert into the Tribunals, Courts and Enforcement Act 2007 and the Employment Tribunals Act 1996 provision repealed by the Bill.
Amendment 93, in schedule 3, page 94, line 3, at end insert—
“Wales Act 2017
50A (1) Section 63 of the Wales Act 2017 (cross-deployment of tribunal members and judges) is amended as follows.
(2) In subsection (1), for the words from ‘if’ to the end substitute ‘—
(a) in England and Wales, if the Lord Chief Justice of England and Wales asks the member to do so and the President of Welsh Tribunals agrees to the request being made;
(b) in Scotland or Northern Ireland, if the Senior President of Tribunals asks the member to do so and the President of Welsh Tribunals agrees to the request being made.’
(3) In subsection (2), in the words after paragraph (b), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’.
(4) After subsection (2) insert—
‘(2A) In subsection (2), “the appropriate office-holder” means—
(a) where the tribunal member exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’”
This amendment would insert provision amending provisions of the Wales Act 2017 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 94, in schedule 3, page 94, line 3, at end insert—
“Courts and Tribunals (Judiciary and Functions of Staff) Act 2018
50A In the Schedule to the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 (authorised court and tribunal staff: legal advice and judicial functions), omit paragraph 40 (which inserts into the Tribunals, Courts and Enforcement Act 2007 provision repealed by this Act).”
This amendment would repeal provision of the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 which inserts into the Tribunals, Courts and Enforcement Act 2007 provision repealed by the Bill.
Amendment 95, in schedule 3, page 95, line 4, at end insert—
“Judicial Review and Courts Act 2022
54 The Judicial Review and Courts Act 2022 is amended as follows.
55 (1) Section 32 (judicial agreement to certain regulations) is amended as follows.
(2) In subsection (1)(a)—
(a) omit the ‘or’ at the end of sub-paragraph (i);
(b) at the end of sub-paragraph (ii) insert
‘, or
(iii) relevant tribunal proceedings in England and Wales;’.
(3) In subsection (1)(b)—
(a) in sub-paragraph (i), after ‘First-tier Tribunal’ insert ‘in Scotland or Northern Ireland’;
(b) in sub-paragraph (ii), after ‘Upper Tribunal’ insert ‘in Scotland or Northern Ireland’;
(c) in sub-paragraph (iii), after ‘employment tribunals’ insert ‘in Scotland’;
(d) in sub-paragraph (iv), after ‘Employment Appeal Tribunal’ insert ‘in Scotland’.
(4) After subsection (2) insert—
‘(3) In this section, “relevant tribunal proceedings” means proceedings in—
(a) the First-tier Tribunal,
(b) the Upper Tribunal,
(c) employment tribunals, or
(d) the Employment Appeal Tribunal.’
56 (1) Schedule 3 (practice directions for online proceedings) is amended as follows.
(2) In Part 2 (proceedings in the First-tier Tribunal and Upper Tribunal), in paragraph 7 (giving practice directions)—
(a) in sub-paragraph (1), for ‘The Senior President of Tribunals’ substitute ‘The Lord Chief Justice and the Senior President of Tribunals, acting jointly,’;
(b) after sub-paragraph (1) insert—
‘(1A) The Lord Chief Justice may give practice directions under paragraph 5 in relation to proceedings in a Chamber of the First-tier Tribunal or Upper Tribunal whose business involves only the application of the law of England and Wales.
(1B) The Senior President of Tribunals may give practice directions under paragraph 5 in relation to proceedings in a Chamber of the First-tier Tribunal or Upper Tribunal whose business involves only the application of the law of Scotland or Northern Ireland.’;
(c) in sub-paragraph (2), for ‘The Senior President may not give practice directions’ substitute ‘Practice directions may not be given under sub-paragraph (1), (1A) or (1B)’;
(d) in sub-paragraph (4)—
(i) omit the ‘and’ at the end of paragraph (a);
(ii) after paragraph (a) insert—
‘(aa) the Lord Chief Justice, if the business of the Chamber to which the directions relate involves the application of the law of England and Wales, and’;
(iii) in paragraph (b), after ‘Tribunals’ insert ‘, if the business of the Chamber to which the directions relate involves the application of the law of Scotland or Northern Ireland’;
(e) in sub-paragraph (6)—
(i) for ‘the approval of the Senior President of Tribunals if’ substitute ‘any approval’;
(ii) for ‘sub-paragraph (4)(b)’ insert ‘sub-paragraph (4)(aa) or (b)’.
(3) In Part 3 (proceedings in employment tribunals and the Employment Appeal Tribunal), in paragraph 11 (giving practice directions)—
(a) in sub-paragraph (1)—
(i) for ‘The Senior President of Tribunals’ substitute ‘The Lord Chief Justice and the Senior President of Tribunals, acting jointly,’;
(ii) for ‘any proceedings’ substitute ‘proceedings in the Employment Appeal Tribunal’;
(b) after sub-paragraph (1) insert—
‘(1A) The Lord Chief Justice may give practice directions under paragraph 9 in relation to proceedings in employment tribunals in England and Wales.
(1B) The Senior President of Tribunals may give practice directions under paragraph 9 in relation to proceedings in employment tribunals in Scotland.’;
(c) in sub-paragraph (2), for ‘The Senior President may not give practice directions’ substitute ‘Practice directions may not be given under sub-paragraph (1), (1A) or (1B)’;
(d) in sub-paragraph (5), for the words from ‘of—’ to’ the end substitute ‘of the Lord Chancellor’;
(e) after sub-paragraph (5) insert—
‘(5A) The President of the Employment Appeal Tribunal may not give practice directions without the approval of—
(a) the Lord Chief Justice, and
(b) the Senior President of Tribunals.
(5B) The President of Employment Tribunals (England and Wales) may not give practice directions without the approval of the Lord Chief Justice.
(5C) The President of Employment Tribunals (Scotland) may not give practice directions without the approval of the Senior President of Tribunals.’;
(f) in sub-paragraph (6), for ‘sub-paragraph (5)(a)’ substitute ‘sub-paragraph (5)’;
(g) in sub-paragraph (7)—
(i) for ‘sub-paragraph (5)(a)’ substitute ‘sub-paragraph (5)’;
(ii) for ‘the approval of the Senior President of Tribunals if’ substitute ‘any approval’;
(iii) for ‘sub-paragraph (5)(b)’ substitute ‘sub-paragraph (5A), (5B) or (5C)’.”
This amendment would insert provision amending provisions of the Judicial Review and Courts Act 2022 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 96, in schedule 3, page 95, line 4, at end insert—
“57 In Schedule 5 (employment tribunal procedure rules: further provision)—
(a) in paragraph 3, omit sub-paragraphs (3) and (6) (which insert into the Employment Tribunals Act 1996 provision repealed by this Act);
(b) omit paragraph 28 (which inserts into the Tribunals, Courts and Enforcement Act 2007 provision repealed by this Act).”—(Sarah Sackman.)
This amendment would repeal provisions of the Judicial Review and Courts Act 2022 which insert into the Employment Tribunals Act 1996 and the Tribunals, Courts and Enforcement Act 2007 provision repealed by the Bill.
Schedule 3, as amended, agreed to.
Clause 19
Lay justices’ allowances
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
I could not agree more. That is precisely why we are doing this, and it is why I commend the clause to the Committee.
Dr Mullan
I rise to speak in enthusiastic support of the clause. If we were starting from scratch, would we deal with this issue in primary legislation? I expect not. I do not know the history of why the approach of the time was followed, but it seems that the matter should be addressed flexibly via regulations. Members will have heard us argue vociferously against the use of both positive and negative regulations in different contexts, but it seems appropriate in these circumstances. The proposal reflects the changing nature of how people work, interact and fulfil their role as magistrates. We want to support and accommodate that in a way that is not over-rigid.
Of course, there will be opportunities for scrutiny of the legislation to come. Even though we have talked about the significant limitations of the negative procedure, scrutiny is still an option in theory if something were proposed that that we really were not happy about. Considering the stakes of this issue, that is a proportionate approach.
Linsey Farnsworth (Amber Valley) (Lab)
It is a pleasure to serve under your chairship, Ms Jardine.
I wanted to speak on this clause because, as the Minister said, while it is technical and feels dry, it is incredibly important. I appeared in front of many magistrates over my 21 years as a Crown prosecutor. They do an incredibly important job and provide a huge public service. During the course of this legislative process, it has been concerning to hear suggestions that magistrates are, in some respects, an inferior bench or forum for our criminal justice system. That is far from my experience over 21 years.
I put on record my thanks to all the magistrates who serve day in, day out, across this country. The clause recognises them and shows that we can be dynamic in rewarding them. The Minister mentioned the medal, which I welcome. I can think of many magistrates who deserve a medal for their work. It is important that we pass the clause today.
Dr Mullan
I rise to speak in support of clause 20, which is a technical and geographic provision necessitated by the significant infrastructure developments currently under way in the City of London. As new law courts are developed, specifically at the Salisbury Square site—we mentioned the specialist fraud court earlier in the Committee, and I do not know if that is included in the site—the law must be updated to clarify how historical designations, sitting rights and traditional roles are to be maintained in a changing physical landscape. The clause is a matter of ensuring that our legal terminology catches up with the physical reality of the court estate.
The primary objective of the clause is clarity and the avoidance of ambiguity. It ensures that the prestigious and globally recognised designation of the Central Criminal Court remains attached exclusively to the historic Old Bailey site. “Old Bailey” is a phrase that many people will be familiar with, and it acts as a tourist draw for our visitor economy. It is important to ensure that the title is not diluted or confused as additional Crown court capacity is brought online at other locations within the City boundaries.
Simultaneously, the clause ensures that the historical sitting rights of the Lord Mayor and aldermen of the City of London are maintained and extended to any Crown court site within the City. That is a respectful preservation of the unique judicial heritage of the City of London Corporation, ensuring that ceremonial traditions and historical roles are not inadvertently extinguished by modern building projects.
The Opposition support clause 20 as a necessary administrative measure. It is a fundamental principle of good lawmaking that technical clauses should be explained clearly to the Committee so that their practical effect is well understood. I thank the Minister for doing that today.
Sarah Sackman
There is only one Old Bailey, and as a result of clause 20, there will only ever be one Old Bailey. I invite all members of the Committee to join together on a group tour of the new facility in Salisbury Square when it opens, hopefully in a year’s time.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Stephen Morgan.)
Courts and Tribunals Bill (Ninth sitting)
Kieran Mullan ExcerptsThursday 23rd April 2026
(1 week, 5 days ago)
Public Bill CommitteesRead Full debate Courts and Tribunals Bill 2024-26 View all Courts and Tribunals Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 23 April 2026 - (23 Apr 2026)
Sarah Sackman
Thank you, Dr Huq. Amendment 63 seeks to broaden the test for allowing an appeal from magistrates courts under the new reforms. The amendment expands the existing test so that permission will be granted where there is some other compelling reason. That is a test used in civil proceedings in the Court of Appeal civil division. There is not equivalent test for appeals in the Court of Appeal criminal division, which is what our new process for appeals in the magistrates courts is based on.
One reason why a court might hear an appeal due to some other compelling reason is to seek an authoritative binding judgment on a particular issue. A Crown court cannot provide a binding decision as to the law on magistrates courts generally, whereas the High Court can. If the appellant wished to appeal for this reason—in other words, in order to seek a binding judgment on a point of law—they could achieve that by using the existing process of appeals by way of case stated to the High Court. In short, we do not think it would be appropriate for there to be appeals to the Crown court in this context.
Instead, we have replicated the existing grounds for appeal in the Court of Appeal criminal division: whether it is reasonably arguable that an appeal will be allowed. An appeal of conviction will be allowed if it is unsafe, which can be the consequence of the incorrect application of the law, procedural irregularities, or the introduction of fresh evidence. An appeal against sentence will be allowed in the same circumstances as in the Court of Appeal: where a sentence is manifestly excessive or otherwise wrong in law or principle. These are well-established tests.
We are committed to ensuring that we create a fair appeals system that provides adequate safeguards for summary justice. In the event that appellants feel an incorrect decision has been made in respect of their application for permission, they have the opportunity to seek a judicial review of that decision to the High Court. I remind the Committee that, as I said earlier, the introduction of recording equipment into magistrates courts to accompany the change in the appeals process will increase the ability to scrutinise the decisions of magistrates courts. I hope I have reassured the Committee of our commitment to a fair and accessible criminal appeals process, and I urge that amendment 63 not be pressed to a Division.
Amendments 64 to 66, tabled by my hon. Friend the Member for York Central, relate to the right to renew an appeal for permission to appear at an oral hearing if the appeal has been refused on the papers. I will deal with these matters sequentially.
The right to renew an application for permission at an oral hearing when it has been refused on the papers does exist in appeals from the Crown court to the Court of Appeal. We decided not to replicate the provision for appeals from the magistrates courts. There will be occasions when an oral hearing may be regarded as necessary in order for a Crown court judge to determine whether to grant permission to appeal. For that reason, we have included a provision in proposed new section 108A of the Magistrates’ Courts Act 1980, so that judges can hold an oral hearing if they feel it is necessary or for the purpose of making a determination more expeditiously.
However, the key is whether an oral hearing is necessary in the context. We are keen to avoid an influx of applications to renew permission to appeal at an oral hearing where that is unnecessary. That is particularly important when we consider the high volume of cases that our magistrates courts already consider, and the higher volume of cases that we anticipate they will be considering after the other reforms in the Bill come into play. The volume of appeals from magistrates courts to the Crown court will therefore be higher, proportionally, than the volume of appeals from the Crown court to the Court of Appeal. If we include provision for appellants to renew an application for permission that has already been refused, we risk creating a higher volume of unnecessary oral hearings than in the Court of Appeal, thereby placing a significant and unnecessary strain on Crown court time.
I understand that the amendment is driven by the desire to ensure that adequate safeguards are built into the process, and I hope my hon. Friend will be reassured that, as I have said, refusal of permission can still be challenged by applying to the High Court for judicial review.
The second part of the amendment provides that the grounds of appeal may be based on issues of procedure and fact arising in the trial, as well as on points of law. I want to reassure my hon. Friend that the grounds for appeal as currently drafted in the Bill capture the points raised in the amendment. An appeal of conviction will be allowed if it is unsafe, which can be the consequence of an incorrect application of law, procedural irregularities or fresh evidence.
Appeals of sentence could also be successful on the basis that the magistrates court has made a mistake as to the facts of the case or made a procedural error, as long as, by virtue of that mistake, the sentence was manifestly excessive or wrong in law or principle. The amendment would not change that position.
For the reasons I have set out, I urge Members not to support amendments 64 to 66. In essence, they are already covered by the Bill.
I thank the hon. Member for Bexhill and Battle for tabling amendments 54 and 57, which would provide that whenever an appeal against conviction or sentence is made from the magistrates court to the Crown court, the appeal must be allowed, irrespective of whether there is any merit in the appeal. I suspect that was not the intention behind the amendments. If I read them in the spirit that I imagine they were tabled, I think they were designed to remove the permission test, rather than indicating to the Court that it should allow all such appeals.
Dr Kieran Mullan (Bexhill and Battle) (Con)
I am grateful to the hon. Member for Wimbledon, who is not in his place, for the advice received in relation to amendment 54, which was drafted with the assistance of the Clerks. The Minister is right that our intention was to unpick the barriers at the permission stage that the Bill introduces. I think her point applies just to the first amendment; the other amendments fit because they are about what happens after a successful appeal and how it might be re-instigated. On that basis, I will not press amendment 54 to a vote. We will table a suitable amendment at a later stage.
Sarah Sackman
I am grateful to the hon. Gentleman for that clarification. I was pretty sure that that was what he must have meant and that it was not his intention to suggest that we should, essentially, allow and uphold all appeals as an automatic right. I understand, though, his intention to debate the merits of the permission test in the Bill.
I should make one point about the consequence anticipated in the amendments, in terms of appeals being directed automatically to a jury trial. To be clear, that is not how appeals currently operate, whereby a judge sitting with magistrates rehears the case on appeal in the Crown court. The effect of the amendments together could mean that we would see large numbers of appeals of conviction being allowed and sent to the Crown court for a retrial by jury, absent any permission test or filter. That could mean, for example, that low-level summary-only offences, such as being drunk and disorderly, are added to the Crown court caseload and, by extension, the backlog, which would only increase the waiting times for the more serious offences, which we want to get on with more expeditiously.
I am grateful for the hon. Gentleman’s correction, but we take issue with not just the effect of the amendment but the fact that it would mean that appeals would go to a jury trial, because that would extend the right to, or access to, a jury trial, which we do not want to encourage in this context. I anticipate that the intention was to expand the grounds for permission, so that instead of applying a test, any application for permission would be allowed. This would essentially remove the permission filter and return us to the status quo, where there is an automatic right to a rehearing on appeal, absent any filter for the merit of an appeal.
Dr Mullan
It is a pleasure to serve under your chairmanship, Dr Huq. Clause 7 and schedule 2 represent a fundamental and troubling departure from the way that our justice system corrects error. As the Minister said, we have tabled a number of amendments, which essentially form two groups. The first group seeks to reconstitute the existing right of appeal, and amendment 37 aims to stop the Government’s proposal until we have a more substantial and better understanding of how to drive the appeal success rate down, which is our primary aim.
As the Minister outlined, at present a defendant convicted in the magistrates court has an automatic right of appeal to the Crown court, where the case will be heard as a full rehearing before a judge and two lay magistrates. The Bill proposes to replace that long-standing framework with a permission-based model, whereby the defendant must first prove that their appeal is reasonably arguable before a single judge, often based only on written papers and transcripts. I rise to oppose that restriction on access to justice. I will argue that, where an appeal is successful, justice is best served by providing the option of a retrial before a jury.
I will reflect on the Minister’s remarks about how our amendments would operate. I always listen very carefully to what she says and, as I will explain, I think there is some merit in some of her points, so we can reflect on those. The Minister has pointed out the difference between the magistrates court and the Crown court, and processes elsewhere, but my contention is that that is not an accident or happenstance; that is by design, because the magistrates court is very different in many other ways from those other elements of the courts. That is why there is a difference there—for very good reason.
Because efficiency must be balanced with accuracy and fairness, the current automatic right of appeal is not simply a source of unnecessary delay; it is a vital check on a part of our system that others have described as being, to some extent, “rough justice”—a forum in which decisions are swift but carry a higher risk of mistake. The evidence—because let us look at the evidence; this is not just what people might say about it—is that the current system is performing a very necessary function. Around 40% to 42% of appeals against convictions from the magistrates court are successful, and roughly 44% to 47% of appeals against sentences are also successful. That is an extremely high rate of successful appeals. These are not marginal or trivial figures; they indicate, I am afraid, that the lower courts are making meaningful errors in nearly half of the cases in which they are challenged.
The Law Commission actually considered this issue in detail. It rejected the proposals that a permission stage should be introduced and highlighted a number of key points in relation to that. On the importance of correcting error, as I have mentioned, it emphasised the critical role that those appeals are playing. It also highlighted the low volume of appeals. The Minister talked about 4% of receipts in relation to one element; I think 1% of the total number of magistrates court cases are being appealed, so that demonstrates that this measure will make a transformative difference to the backlog.
We can talk about receipts, but the other thing to keep in mind is how long the actual appeals take. Although receipts are one way of looking at it—on a numbers basis—that is also distortive, of course, because appeals are much shorter hearings than the ordinary business of the Crown court.
The Law Commission pointed out that it found no meaningful evidence that this process was being abused, even without that permission stage in place. As we have talked about previously in the Bill, legal representatives cannot support an appeal that is completely without merit. As I have said, due to a combination of the low volume of appeals and the shorter hearing times, our contention is that there would be minimal efficiency gains to weigh against this erosion of an existing right.
Actually, the introduction of a permission stage is something that we welcome, but the work that will have to be done to support it, with the introduction of recordings and making available transcripts, will probably—or could—cost significantly more than will be saved. By introducing a permission stage, the Government are creating a multi-stage system that is complicated and potentially more inefficient than the current situation.
We know that many of those facing imprisonable offences in magistrates courts are currently unrepresented. The Bill simultaneously increases sentencing powers in clause 6 while narrowing the ability to challenge those decisions in this clause. The Bar Council has described this as a
“comprehensive rolling back of safeguards”.
An unrepresented defendant, potentially facing up to two years in prison, will now be expected to navigate the practicalities of reviewing transcripts and preparing permission grounds for appeal without professional help.
The legal aid gap means that many defendants who would have qualified for a solicitor and legal aid in the Crown court will be ineligible in the magistrates court due to the different low-income thresholds—£22,325 versus £37,500. Requiring those individuals to purchase costly transcripts just to ask for permission to appeal is a significant barrier that risks entrenching injustice. If the error rate in the magistrates court remains high, restricting access to the remedy is a recipe for uncorrected miscarriages of justice.
I will move on to our amendments about the case for retrial by jury. If we accept that the current appeal system exposes weaknesses in the original summary trial, we must also look at what happens after a successful appeal. As the Bill stands, if the Crown court quashes a conviction and determines that a retrial is necessary, the case must generally be returned to the magistrates court.
We believe that that is a rigid approach that ignores the complexity, which does not exist at present, of what might have been revealed by the appeal. Because we are introducing a new system of allocation and decisions around allocation, that is a new area of the law that could be contained within appeals. A successful appeal may demonstrate that the case was too complex, or the evidence too sensitive, for a summary disposal in the new division. Returning cases to the same level of court that originally fell into error will do little to restore public confidence.
Sarah Sackman
I am grateful to all the Members who have spoken for the points they have raised. Without repeating myself, they have focused on a number of areas. The first is the concern around access to justice under the new process. We had a good debate on the question of the availability of legal aid in an earlier sitting. As I have said, the Government are committed to fair and accessible routes to legal aid. There are mechanisms such as passporting for those on universal credit. An example given was that the vast majority of prisoners do not have an income. The real picture is that the vast majority of them, unless they have personal wealth, do access legal aid and therefore would be represented and supported by those who are able to give legal advice in what are, of course, high-stakes situations.
As I mentioned in the earlier debate, a hardship mechanism is available where the matter necessitates greater complexity and expenses. I recognise that, where there are litigants in person, there is more to do, and part of the implementation and delivery of these reforms will involve looking at what support can be given to those who find themselves in that position. At the moment, litigants in person in the Crown court on appeal to the Court of Appeal are given targeted information and forms that allow them to formulate grounds of appeal and that make it user-friendly and intelligible to a lay person. That sort of thing will have to be put in place if a permission stage is extended to the magistrates court.
The points that have been made are valid, but I also want to present a realistic picture of the fact that the majority will continue to access legal aid. As I said earlier, the Department has committed to review the position once we know what the final shape of the Bill looks like to ensure that we are not creating a problem in respect of access to justice. However, in the event that there are litigants in person, we also know that we need to strengthen support for them more broadly across the system, not just in the context of these reforms. That will be a vital feature of the implementation.
The second issue raised was about the trade-offs between the efficiency savings versus the introduction of a permission filter to match the sort of permission filter that already exists in the Crown court. While I recognise that the current volume of appeals, in the context of the volume of work that the magistrates undertake, is small, that will grow as the volume of work that the magistrates undertake grows.
The sorts of appeals where success is achieved are precisely the ones that will not be prevented by this appeal test, because it is a low bar; all that has to be shown is reasonable arguability, and a court can identify that straightforwardly. It is not as if, all of a sudden, a huge risk to access to justice is created. However, what is permitted is the filtering out of wholly unmeritorious appeals, the volume of which may grow as the overall volume of cases within the magistrates court expands.
Dr Mullan
I direct the Minister to the report from the Law Commission, which said that there was no significant evidence of people abusing the system or lots of unmeritorious appeals. The point is that someone has looked at this in detail, on an independent, non-party political basis, and they do not support the suggestion that there are lots of appeals going through that should not be in there.
Sarah Sackman
I will say two things to that. Obviously, that report—as is typical from the Law Commission—is non-partisan, but it predates the reforms we are proposing in the Bill, which will inevitably increase the volume of cases we are talking about. It goes back to the point that, where we have finite resources, if the permission stage filters out only a relatively small number of cases—in fact, that is how I anticipate it will work—then that is all to the good, because even those take up a disproportionate amount of Crown court resources that we can ill afford to have directed to wholly unmeritorious appeals. That is what we are getting rid of.
The other thing is that this test is focused on specific grounds, much in the same way as exists in Crown court appeals. The treatment of that appeal can be directed towards the issue that has been the cause of the appeal, rather than having the whole thing looked at again, which is currently the case.
Dr Mullan
It is about the combination of those concerns, along with the fact that there are unrepresented people. The Minister is right to say that people who have representation, if their appeals are valid, will be able to carry on, because they will continue to meet the test. The reason the Opposition support the broader approach is because there are people who do not know the detail of the law or how to make a successful application. That is why there should be a freer approach. The concern is about those two things combining.
As my hon. Friend the Member for Reigate pointed out, not only are things being made more consequential—longer sentences and a lower likelihood of a jury trial—but at the same time it is becoming more difficult in the other direction. That feels counterintuitive and not in line with what the Government are saying about making the system fairer. On that point, the Government are moving in directly opposing directions.
Sarah Sackman
I have heard that argument, but I do not accept it. I do not think the provision makes it less fair. But I accept that there is work to be done, which does not necessarily need to be reflected in the Bill, to support litigants in person, and to examine the approach and the structure to legal aid, to narrow the gap for those who do not have access to it. That way we can reduce the number of people who have to navigate the system without legal representation.
I will not repeat the arguments that I made earlier. For those reasons, I commend the clause and schedule 2 to the Committee.
Question put, That the clause stand part of the Bill.
Jess Brown-Fuller
I beg to move amendment 17, in schedule 2, page 52, line 5, leave out “on payment of a fee” and insert—
“to victims of criminal offence without a fee within 14 days of a request”.
This amendment would make magistrates’ court transcripts free for victims and requires that such transcripts are provided within 14 days of a request.
I first acknowledge that the Government have made steps to improve access to court transcripts after robust negotiations in both Houses and on various Bills, most recently the Sentencing Act 2026, the Victims and Court Bill and now this Bill.
I also put on record the exemplary effort made by my hon. Friend the Member for Richmond Park (Sarah Olney), who has been campaigning to ensure that court transcripts are made available for free for victims of crime, after her constituent was quoted thousands of pounds to access the transcript of her own court case. Nobody should be priced out of seeing their own story.
Why are transcripts important? For many victims, they choose not to attend the entirety of a hearing or trial. Even if they do, there is so much to take in. Being able to process the events of the court case provides a valuable opportunity to better understand why decisions were made and hopefully enables them to move on with their lives.
The Committee had the privilege of listening to the testimony of Charlotte Meijer, alongside other victims, Jade Blue McCrossen-Nethercott and Morwenna Loughman. I would like to remind Members of a few of the things that Charlotte said. She said:
“For me, having transparency really changes things. We talk about justice and the system being closed, so if we have more recording and transcripts, it will really help people. There is something that is not in the Bill that I would love to see; I have fought for the last three years for sentencing remarks to be made free, which we did earlier this year, but I believe that is not going to extend to magistrates courts. If they are now being recorded, my belief is that they should also be free in that way.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 25, Q49.]
Charlotte spoke about her experience. She did not feel that she could listen to the trial after she had given her evidence, because it was a very small bench and the defendant’s family and friends were sat there. She did not feel like she could go and sit and listen, so she left, but she had indicated that she would like to be there for the sentencing or the hearing. However, she just got a call from her independent sexual violence adviser telling her that he had been found not guilty. She was not given the opportunity to hear that. Charlotte continued:
“For my healing, and for me to be able to move on, I just needed to understand what was said in court, so I went to ask for the transcripts, of which of course in the magistrates courts there are none.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 26, Q51.]
It is important for victims of crime and victims who see their perpetrators found not guilty to have the opportunity to process that by seeing what happened, whether they were in the room or outside it. The transcript can also be a tool for those who choose to apply to the unduly lenient sentences scheme, which I am pleased that the Government have agreed to improve significantly, after working alongside Baroness Brinton in the other place.
I recognise the concerns raised by the Government, particularly about the cost of producing transcripts and the processing time for redaction, which is all currently contracted out. I am pleased that they have agreed to a proactive trial of AI in courtrooms to improve transcripts, and to a move to record all magistrate hearings. I know that that approach has cross-party support; I have been in the Chamber with many Labour MPs and MPs of other parties who have made exactly the same arguments that I am making now, that providing free court transcripts is a key step towards transparency.
The Minister knows that we have worked collaboratively on reducing the scope in other Bills and have called on the Government to provide judicial summings-up and the route to verdict, including for those whose defendants are acquitted, because there is still a process that they need to go through. I am keen to work with the Government on this. I hope that as the Bill progresses through the House, we can continue the good work that has started on court transcripts.
Dr Mullan
I rise to speak in support of amendment 17, which stands in the name of the hon. Member for Chichester. I acknowledge the progress that we have made on the issue; it has not been as fast or as good as personally I would like, but it has absolutely been progress. The hon. Member has laid out some of the important points.
The idea that we will record these proceedings and that the transcripts will exist, but that the victim cannot have them, is obviously not sustainable. If they do not exist at all and nobody has them, that is one thing, but when they are available and some people might be accessing them—defendants, for example—it is really not reasonable that victims cannot, for all the reasons that we have discussed in relation to the Crown court. The existence of recordings will make that less of an excuse. Again, the interaction of different elements of the Bill, with longer sentences, restricted appeals and more serious cases being heard, builds an even stronger case for victims to have access to the transcripts.
The hon. Member for Chichester mentioned the unduly lenient sentence scheme. As we talked about in the context of Crown court appeals and the current use of the scheme, it is pretty hard to appeal an unduly lenient sentence if we do not even have access to the route to sentencing that the judge laid out to explain why they gave the sentence that they did. In my understanding, we have a later amendment that asks for an expansion in the use of the scheme in order for it to be meaningful. We talk about the unduly lenient sentence scheme, but people cannot access it in the magistrates court, even though we are about to put more serious cases into that court. At the minute, people are able to access the scheme when a case is heard in the Crown court. For those reasons, we enthusiastically support the hon. Member’s amendment.
Siân Berry
I will speak briefly in support of the amendment, to which I have put my name. Later, I hope to speak about the real difference between viewing evidence—seeing it given in real life, or going into the room where evidence is given—and being able to review it more dispassionately later in writing. Given that we are now producing transcripts, the amendment would be an important measure to provide them free to victims who may want to see what has been said in court, without having to attend court and see it in a more triggering, more visceral way, and without facing a financial penalty. It is important that the amendment is agreed to, along with everything else, to allow for a more compassionate way to treat victims.
Sarah Sackman
I thank the hon. Member for Chichester for tabling the amendment. As she acknowledged, there has been fruitful cross-party working on the issue. I am really pleased to see the progress that we have made, both as a matter of open justice, because timely justice must be fair and transparent, and, candidly, because technology is our friend here and is enabling progress. It must be robust and tested, because the ability of AI to enable redactions where needed has to be properly studied, which is why we have initiated an AI study. But I am pleased with the progress that we have been able to make and that, as a Parliament, we will continue to make.
Dr Mullan
I have always struggled somewhat with the question of redaction. If reporting restrictions are in place, what can be shared and so on will be controlled, but anybody can sit in a court and listen to the whole thing, unredacted. I am not quite sure that I understand the absolute focus on transcripts being redacted. If someone could have sat in that court and written down what was said, word for word, why are we worried about its being redacted? The judge is the person who can say, “You can’t report that, beyond what you’ve heard,” but, separately, why are we so much more concerned about transcripts than we would be about open court, where everyone can hear the whole thing?
Sarah Sackman
It is context specific, which is exactly why we have a study: to test the level of accuracy. Accuracy is really important; we do not want a lot of judicial time to be taken up reviewing the accuracy of transcripts before they can be put out. That would not be a good use of judge time, which should be spent running trials and getting them concluded. In some contexts, most obviously in family law, redaction is really important.
Yasmin Qureshi
I will not press the amendment, which is self-explanatory, to a vote, but I ask the Committee and the Minister to think about it.
Dr Mullan
We now come to a series of considerably less contentious clauses, including clause 8, relating to the admissibility of evidence in our criminal courts. This area of the Bill deals with the sensitive and often contentious issue of sexual history evidence. Of course, we want victims of rape, sexual violence and domestic abuse to experience a justice system that treats them with dignity and protects them from irrelevant, prejudicial attacks. Complainants can be subject to questioning that is invasive and distressing, that may not be relevant or may hold little or no genuine relevance to the legal issues at hand.
Clause 8 seeks to tighten and clarify the rules governing when a complainant’s previous sexual behaviour can be introduced as evidence. The underlying principle is that a complainant should not have their credibility undermined through assumptions, stereotypes or what are often described as rape myths regarding their past.
To achieve this, the clause will replace the current model with a more rigorous admissibility framework. Under the new rules, such evidence may be admitted only if it meets one of two criteria: it must have substantial probative value in relation to a matter of substantial importance to the case as a whole, or it must constitute important explanatory evidence. This shift is intended to ensure that only genuinely relevant material is put before the court.
Furthermore, the clause explicitly requires the court to consider whether the suggested value of the evidence relies on inferences that cannot be properly drawn, to avoid the situation in which evidence is admitted with the defence knowing what inferences be drawn even if it would not be proper to do so. That is another important safeguard designed to prevent the trial process from being distorted by prejudice.
Although the Opposition support the aim of ensuring better protection for complainants, our role in Committee is to ensure that the law is not only well intentioned, but clear, workable and consistent with the right to a fair trial. I am sure the Minister agrees that there cannot be a blanket ban on the admission of this sort of evidence where it meets those tests.
I have a number of questions in relation to the need to ensure that the measure does not create any unintended procedural hurdles. To forewarn the Minister, this will be a consistent question across these clauses, but what assessment has been made to ensure that the substantial probative value threshold is sufficiently precise—not sufficiently high or low, but sufficiently precise—to meet both sides of the coin, and that it is workable in practice? How do the Government intend to monitor the application of the new framework to ensure that it delivers the intended protection for complainants? Is the Minister confident that the drafting strikes the correct balance between protecting victims from inappropriate and invasive questioning and upholding the fundamental right of a defendant to a fair trial?
The need for reform in this area has been well argued, and protecting victims from irrelevant and prejudicial questioning is a goal we all share. However, as I have said, the Committee’s task is to ensure that this clause is the right approach. That is something we should continue to explore throughout the later stages of the Bill.
Rebecca Paul
It is truly a pleasure to get to a part of the Bill on which I suspect we will agree more than we will not. I think we will all find that rather refreshing after the last few sittings.
Clause 8 seeks to introduce a new framework governing the admissibility of evidence about the previous sexual behaviour of the complainant. I very much welcome the fact that we are now having this debate and looking to address some of the issues we currently see in the justice system with respect to sexual assault crimes. Rape and sexual violence are horrendous crimes that have a lifelong impact on victims. In oral evidence, we heard this directly from some of the brave witnesses who testified, and I thank them for giving their time so generously and for speaking so honestly and courageously. What was made very clear is that they are keen to see change in how the justice system deals with these types of offences. They want to see justice done swiftly and considerately.
It takes a huge amount of bravery for an individual to report these types of crimes and to pursue their attacker through the courts, so we must do all we can to ensure that the process is quick, supportive, effective and efficient for them, while preserving the principles of natural justice. Although I may disagree with some victims on the limitation of jury trials being a way to achieve this, I share the same ambition: to speed up the process so that justice is no longer delayed and denied.
It is important to remember that most of these crimes are committed by someone the victims knows, making the process even more of an intrusive ordeal. It is deeply personal. That is why it is important to treat victims with respect and care, not to diminish their experiences or feelings, and not to make them feel like they are the ones on trial. It is incredibly important not only for justice, but for deterrence purposes, that the state sends a clear message that those guilty of such crimes will face the consequences. This is much needed at a time when violence against women and girls is rife in our communities. If the state can get this right, we should see more victims coming forward and being more willing to undergo the stress of a trial in the confidence that justice will prevail.
In June 2021, the Conservative Government published the findings of an end-to-end review of the criminal justice system response to rape, which they referred to as the rape review. What it found made for difficult reading. In the prior five years, there had been a significant decline in the number of charges and prosecutions for rape cases and, consequently, fewer convictions. One in two victims were withdrawing from rape investigations, demonstrating a big problem. The Home Secretary at the time, my right hon. Friend the Member for Witham (Priti Patel), said:
“We are not prepared to accept that rape is just ‘too difficult’ a crime to prosecute. We can, and must, do better.”
The review set out that there are an estimated 128,000 victims of rape a year, that less than 20% of victims of rape report to the police, and that only 1.6% of rapes that are reported result in someone being charged. That means that considerably fewer than one in every 100 rapes actually leads to justice for the victim. That shows the scale of the issue. One of the actions set out was that
“only evidence about the victim that is pertinent to the case should be used at court and a victim’s credibility should not be undermined by pre-conceptions or rape myths.”
In the final recommendations issued by the Law Commission in 2025, it was made clear that the use of evidence relating to the previous sexual behaviour of the complainant—for example, previous consensual sex between the defendant and complainant, or between a defendant and a third party—is highly distressing, humiliating and even traumatising, and is often irrelevant and can prejudice a case.
The admission of sexual behaviour evidence has, rightly, long been restricted through so-called “rape shield” legislation, which applies specifically to a trial where a person is charged with a sexual offence. No question can be asked about the sexual behaviour of the complainant without the leave of the court, and various gateways are considered in determining that. However, the Law Commission has criticised those gateways for being too restrictive, too broad and too complicated.
Clause 8 seeks to address some of the issues raised by the Law Commission, and has incorporated the stage 1 recommendation accordingly. It amends the conditions that must be met before a defendant can adduce sexual behaviour evidence or ask questions intended to elicit evidence of sexual behaviour in criminal proceedings. It ensures that such evidence may be admitted only if it
“has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in...the case as a whole”.
However, clause 8 does not include stage 2 of the two-stage framework suggested by the Law Commission, which prohibits the use of sexual behaviour evidence unless its admission would not significantly prejudice the proper administration of justice. The Law Commission has raised that specific deviation in its written evidence. I ask the Minister to give her reasoning for not adopting the second stage, so that we are all clear.
It is reassuring to see the Bar Council welcoming the changes brought by clause 8, which it says
“provide appropriate safeguards for victims and for fairness of trials.”
The Law Society also supports the proposals, along with many other rape crisis and women’s organisations. Having said that, I note that a joint letter from Rape Crisis England & Wales, the Centre for Women’s Justice, Rights of Women, the End Violence Against Women Coalition and Imkaan, while welcoming much of clause 8, raises some specific concerns. It would be helpful to hear from the Minister on those points and whether she intends to make any changes.
Dr Mullan
I mentioned this point in my speech, but I will repeat that these clauses interact with the other elements of the Bill that will remove juries. Under the older jury trial system, the judge decides on things that the jury will never hear, so if something is made inadmissible, there is no question at all of it colouring the judgment. Of course, if we remove the jury in potentially more serious cases, we can have all this legislation and all these things that become technically inadmissible, but as we have talked about, we are then relying on the intellectual operation of the judge’s mind. Whether or not people think it is right for them to draw a direct conclusion, it is a matter of fact that judges are a group of people who are more distant and removed from the people we are concerned about. For example, if we are talking about women and girls, judges are more likely to be men. Those are the issues that will become more contentious as a result of the other changes in the Bill.
Rebecca Paul
My hon. Friend makes a really important point. There is a lot that is positive about the clause, but, as he rightly says, we have to think about it in the context of all the other changes. Unfortunately, we could find that the other changes unwind the good that is done by this clause. That said, it is still a positive clause, and I am pleased to see it in the Bill and to debate it today.
Lastly, I want to flag that in its evidence, Victim Not Suspect notes a need to address verification and/or the reliability of digital evidence, which it believes is relevant to the admissibility test and has not been addressed in the Bill. It would be useful to hear the Minister’s view on that matter too. Victim Not Suspect says:
“Without forensic verification, including IP address data, account ownership confirmation from platforms such as Meta, and metadata examination, there is no reliable basis for assessing authorship.”
That is a point of detail, but it could become important in certain cases, so it is worth bearing in mind. There may be scope to improve and tighten that up in the Bill during its further progress, which is why I have flagged it to the Minister.
Courts and Tribunals Bill (Seventh sitting)
Kieran Mullan ExcerptsTuesday 21st April 2026
(2 weeks ago)
Public Bill CommitteesRead Full debate Courts and Tribunals Bill 2024-26 View all Courts and Tribunals Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 21 April 2026 - (21 Apr 2026)
Dr Kieran Mullan (Bexhill and Battle) (Con)
I am sure we will get to hear from the hon. Member for Birmingham Erdington shortly.
The proposal in clause 3 is being framed as a mere administrative adjustment—a common-sense fix for a system under strain. The Government’s plan to introduce a Crown court bench division, where a judge sits alone without magistrates to decide the fate of those accused of either-way offences, is being sold to the public as a remedy for the backlogs that currently paralyse our courts. But we must be clear from the outset that the crisis in our courts is not the result of the jury system. The backlog, which sees tens of thousands of cases waiting for a hearing, is the result of long-term challenges and the unprecedented impact of covid on our justice system.
Eroding a defendant’s right to a trial by their peers is not a fix; it is a fundamental reconfiguration of the English legal system. Across the Bill, we see a pattern emerging: a shift away from what we are clear is the gold standard of justice towards a swift model. The evidence supporting it is dangerously thin, and we must resist the permanent eroding of a right that has stood for hundreds and hundreds of years.
The right to a jury trial is often described as fundamental. It is not merely a traditional quirk of our system; it is an important constitutional safeguard. The core of the Government’s plan, as outlined in their impact assessment and the Second Reading briefings, is to remove the right to elect. Currently, if someone is charged with an either-way offence—crimes like theft, assault or certain drug offences—they have a right to choose whether they are tried by a jury in the Crown court or by magistrates. The Government’s plan to strip away that choice in clause 3, under a new bench division model for when the sentence outcome is likely to be three years or less, will remove even the role of lay magistrates from the decision.
The briefing provided by the organisation JUSTICE, which I have referred to several times, makes a compelling case against that. JUSTICE points out that the right to elect is a long-standing protection that ensures that a defendant can seek the judgment of a diverse group of citizens when they feel the state’s power is being unfairly applied. By removing that right, we are effectively saying that the state knows better than the citizen how they should be judged. This is not unheard of, as we have talked about before, but clause 3, combined with previous clauses, represents it being done at a scale never seen before.
This is a dangerous path. When we move cases from juries to a bench division, we are moving from a system of community participation to a system of professionalised adjudication. The jury is the part of our constitution where the greatest number of ordinary citizens have a direct, hands-on role in the administration of justice. It is the primary way that the public grant their consent to the upholding of criminal law. If we remove the public from the process, we risk the law becoming something done to people, rather than something that belongs to them.
The Government’s narrative suggests that a judge-led bench division will be just as fair as a jury, only faster. But it ignores the fundamental and unique aspect of fairness delivered by a jury trial, which they acknowledge by continuing to maintain jury trials for what they describe as the “more serious” offences. A jury is, by definition, balanced. It consists of 12 people from different backgrounds, with different life experiences and different biases, in the crucible of the jury room. Their diversity is its greatest strength; a single judge, no matter how well intentioned, cannot possibly replicate that breadth of perspective.
There is also the phenomenon of being case-hardened: when a professional judge or magistrate hears 50 similar cases of theft or assault in a year, there is a natural human tendency to begin seeing patterns rather than individuals. Evidence that might seem fresh or potentially exonerating to a jury can seem like the usual excuse to a professional who has heard it hundreds of times before.
Juries bring fresh eyes; they are not jaded by the grind of the system. They are instructed to look only at the facts of the case before them. That is why juries are considered—by the Opposition, at least—to be the gold standard. The evidence submitted to the Committee warns that we lack clarity as to why the Government are so eager to discard this standard. If the jury is the best way to ensure an accurate and fair verdict, the burden of proof for removing it must be exceptionally high.
Furthermore, the bench division model threatens to undermine the lay element of our justice system. Originally, as recommended in the Leveson review, the idea was that a judge would sit with two magistrates. That was intended to maintain at least some form of community involvement. However, clause 3 moves towards judge-only trials for many cases, discarding even the judge-plus-two compromise.
I will now address the primary argument made by the Minister in her opening remarks. The Government claim that moving to the bench division will significantly reduce the backlog. However, the Institute for Government has produced an insightful analysis, which we have referred to frequently, suggesting that the evidence for those savings is incredibly weak.
The IFG points out that the vast majority of Crown court time is not actually spent on the types of trials that the Government want to move to the bench division. The cases being targeted are the less serious ones, which already take up less time than more complex cases such as murder, which will remain subject to jury trial. According to the IFG’s modelling, if judge-only trials are 20% faster than a jury trial, the total impact on the overall Crown court backlog would be a reduction of 2%. When we consider the constitutional cost of us losing, at this unprecedented scale, the right to access a jury, that is simply not sufficient.
The backlog is not caused by juries being slow; it is more often caused by ineffective trials that are postponed because witnesses do not show up, because solicitors or barristers are unavailable, or because courtrooms are not fit to operate in. These are systemic failures, and moving a trial from a jury to a judge does not make a witness appear or fix a broken courtroom.
The Bill proposes a threshold of cases likely to attract a sentence of up to three years being diverted to the bench division. Predicting a sentence before a trial is never an exact science, and that is something that magistrates actually have more experience of than judges. That unprecedented scenario—without the safeguards that we sought to add through a right of appeal, which the Government rejected—will create huge questions of impartiality and bias.
A three-year sentence is not a minor matter. Three years in prison is a life-altering event. It can mean the loss of a home, a career and a family. To suggest that a person facing such a consequence does not deserve what they consider to be the fairest possible trial betrays that principle of fairness in our justice system when the consequences are so severe.
There is also the issue of the absence of a sunset clause. If these measures are truly a temporary response to tackle an emergency backlog, they should include a sunset clause that ensures that rights are restored once the crisis has passed. As I have said previously, changes were made during world war two and then reversed when the war was over. The fact that the Government have resisted such a clause suggests that this is not a temporary fix, but a permanent land grab by the state. Once the right to a jury is surrendered for either-way offences, it is highly unlikely that any future Government will be in a position to restore it.
We must see the Crown court bench division for what it is: a policy of convenience, not a policy delivering justice. It is a policy that ignores the findings of the IFG, which would require us to focus more heavily on other elements of the system. It is a policy that ignores the warnings from JUSTICE, which highlight the erosion of the defendant’s right to elect and its impact on public confidence and fairness in the judicial system. It is a policy that even ignores the original, more balanced recommendations of the Leveson review, which at least sought to keep lay magistrates involved.
We are told that we must modernise and that we must be efficient. The purpose of a criminal trial is not to process cases as quickly as possible; it is to arrive at the truth through a process that the defendant, the victim and the public have trust in. If we allow the Government to erode the jury system in the name of the backlog on this occasion to this extent, we are sending a message that this constitutional right is highly conditional, and that it can be traded away whenever the state finds it too expensive or too cumbersome to maintain. As the Minister frequently points out, lots of countries do without it; “Why shouldn’t we?” will be the next argument.
Instead of stripping away rights, the Government should be more focused on the areas that we can all agree on: prisoner transport, early legal advice, more efficient listing, Crown Prosecution Service reviews of cases in the backlog, facilities that work and IT that works. We do not fix a house by tearing it down to its foundations because the roof is leaking; we fix the roof. Jury trials ensure that our laws remain grounded in the common sense of ordinary people. Let us apply some of that common sense to tackling this issue. Common sense will lead us to oppose clause 3.
Linsey Farnsworth
I do apologise, Ms Jardine.
The report by the Deputy Prime Minister, as he is now, was conducted almost a decade ago. It highlighted concern about the sentencing decisions of judges, so it is often cited—understandably—as a reason to be cautious about judge-only trials. New clause 29 would ensure that a review of judge-only trials will be conducted after a year, and should there be disparities in the conviction rates for those of an ethnic minority background and/or for white British persons living in lower-income households, measures can and will be put in place to prevent such disparities from arising.
It is also right that a further review is conducted between 35 and 36 months after enactment, as the new clause suggests, both to check the initial findings and to take account of the fact that things can change. In the review conducted by the Deputy Prime Minister, for example, it was found that where CPS charging decisions were concerned, a defendant’s ethnicity did not affect the likelihood of their being charged. However, subsequent research conducted by the University of Leeds, in which the outcomes of decision making in 195,000 cases between 2018 and 2021 were examined, identified evidence of disproportionality in CPS decision making. Specifically, defendants from minority ethnic backgrounds were significantly more likely to be charged than a white British defendant for a comparable offence.
Additional research by the independent disproportionality advisory group and scrutiny by the CPS itself has led to an action plan to tackle the disproportionality that was found to exist, and to deliver change. There is precedent for ongoing review of disparities in outcomes within the criminal justice system where ethnicity is concerned, and precedent for action being taken to address such disparities.
Recent research by the University of Birmingham identified concern about racial bias within juries, particularly when there is no representation of ethnic minorities among the 12 people serving on a jury. This research cited a case in which an attack on the victim was caught on CCTV, yet in May 2022 a jury with no black members acquitted most of the perpetrators. The researchers concluded that their study raised important questions about whether the public in England and Wales see juries as being fair and just in relation to racial minorities, and that juries in England and Wales remain extremely lacking in diversity; that is what the study found. Another problem the study identified in that case was that the concerns of victims’ families about racial bias among the jury were never investigated.
Linsey Farnsworth
No. I will make some progress; we need to make progress today.
The researchers found that more than 90% of respondents in the survey they conducted believed that discrimination on juries should be reported to trial judges and properly investigated, yet there is no mechanism under current law that allows juries to do so.
Appeal, a not-for-profit organisation, has submitted evidence opposing some elements of the Bill. However, in a paper that it prepared in 2024, Appeal set out concerns relating to majority decisions, as opposed to unanimous jury decisions, and the impact of racial bias. The case of R v. Connor et al was cited, in which questions from the jury suggested that there had been a focus on the defendant’s race and a letter from a juror after conviction confirmed racial bias in the jury’s deliberations.
Section 8 of the Contempt of Court Act 1981 provides for confidentiality in jury decision making. However section 8A, enacted in Scotland, permits the Lord Justice General to allow information about deliberations from the jury room to be disclosed for the purposes of research. That provides an opportunity for the same to follow in England and Wales. Recent statistics show an increase in hate crime, including crime based on race and religion, rates of which spiked after Brexit and, recently, following the Southport murders. Now more than ever, we must be conscious of the impact that discrimination could have on the fairness, or otherwise, of jury trial.
Yasmin Qureshi
No, because let’s face it: in the jury trials we are talking about, people are not getting sentences of more than three years. There is hardly going to be a King’s counsel dealing with those cases—it is not even going to be a leading junior who will deal with those cases. A lot of the barristers will be middle ranking; the KCs will not be dealing with these types of cases. There are enough members of the Bar to fill the capacity issue.
Dr Mullan
The hon. Member for Gloucester pointed to what the Bar Council said, but let us be fair and talk about what it said in its completeness. It may well have said that the people currently practising dropped out, but the Minister quite directly asked how it was going to train these people up and get back to that point, and it made the point that the people who have dropped out of practising criminal law have not evaporated into thin air. They are still there; they are just practising in other areas of law, and when the situation is right for them, they can just come back into practising criminal law.
Yasmin Qureshi
That is absolutely correct. Of course, one of the reasons why some people left the criminal Bar is the fact that the legal aid funding was not great, but I assure Members that if they did not have other work to do, they would come back to the Bar. There are enough barristers and solicitors in the legal system for that.
Yasmin Qureshi
I entirely agree. The state of some of the courts in this country is sad. They are completely neglected, which creates a lot of challenges.
Dr Mullan
We are leaning heavily on the points made by the Criminal Bar Association. The Government seem quite rightly to be extremely concerned about the training of future barristers, but the Criminal Bar Association has made the point that that training often takes place in what the Government are describing as less serious cases. That is where the more junior people get the experience they need to work on the more serious cases. If those cases are not available, how do the Government expect barristers to be trained to the level required to take on the more serious cases with a jury trial?
Yasmin Qureshi
I agree with the hon. Member.
I want to set out why we have a backlog and what we can do. Everybody has talked about various things that we could do, such as triaging the cases more effectively and more routinely, like Liverpool Crown court and some of the others that have seen a considerable reduction. There are the issues of transporting prisoners on time and internet connections in court. We have discussed a number of things that can lead to a reduction in the backlog.
I entirely agree with my hon. Friend the Member for Birmingham Erdington and I thank her for tabling new clause 29. The reason why we need it is that, years ago, the importance of jury trials was recognised by the current Lord Chancellor and Secretary of State for Justice, and the fact that the new clause has been tabled shows that we believe they are important. We really should not be restricting jury trials. It is like throwing the baby out with the bathwater.
Victims and Courts Bill
Kieran Mullan ExcerptsMonday 20th April 2026
(2 weeks, 1 day ago)
Commons ChamberRead Full debate Victims and Courts Act 2026 View all Victims and Courts Act 2026 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 20 April 2026 - (20 Apr 2026)
Alex Davies-Jones
I welcome the hon. Gentleman’s comments. I was not inadvertently misleading the House; if he looks at the details of Lords amendment 5C, he will see that that is not what it does. The amendment does not simply extend the time limit—it does much more—and it does not extend the time limit for everyone. As I will explain in my comments, this amendment is for the families and for the victims directly. It is not for everyone, as was proposed by the Opposition. This amendment does not just do what the Opposition’s amendment would have done, as Tracey Hanson said in her own words; it does much more with respect to its application, and it is for the bereaved families and victims directly. There is also a statutory duty in this group of amendments to directly inform victims and their families about the ULS scheme, so that they are aware of it in the first place.
Dr Kieran Mullan (Bexhill and Battle) (Con)
There will be some back and forth about who wants what elements of this scheme and in what ways, but I think the Minister was wrong to say that our focus was on it being for everybody. I have been clear from the start that our focus was also on extending the provision for victims and their families, and not for everybody.
Alex Davies-Jones
I appreciate that clarification. The hon. Gentleman is correct, but Lords amendment 5C does much more than that, through listening to victims campaigners such as Tracey Hanson and Katie Brett directly. The measure is a direct tribute to them, because for them the status quo was neither fair nor acceptable.
I would also like to extend my sincere thanks and gratitude to Katie Brett. Katie, your commitment and courage in campaigning in memory of your sister Sasha has been truly remarkable. I do not need to remind the House that Sasha was brutally murdered at the age of just 16, and since that devastating loss, Katie has worked tirelessly to ensure that the families of victims have the right to be informed about the ULS scheme and that, where they are not told, they are given a fair opportunity to make a request to the Attorney General beyond the 28 day limit. I have felt privileged to get to know you all over the course of this Bill.
Before I turn to the motions that we will debate today, I would also like to thank those who have contributed to recent debates on amendments related to homicides abroad and court transcripts. I thank Members across this House and in the other place for the thoughtful way in which they have engaged with those issues. I pay particular tribute to the hon. Member for Maidenhead (Mr Reynolds), who has campaigned to ensure that support is available for families bereaved by homicide abroad as they navigate such tragic events. In the other place, the Government committed to working jointly with the Foreign, Commonwealth and Development Office, and the Home Office, to undertake a review of how support is provided to those families and to assess how current arrangements are operating.
Madam Deputy Speaker (Judith Cummins)
Order. Before I call the shadow Minister, Members may wish to refresh their memories. According to the rules of behaviour and courtesies in the House of Commons, we must never directly address visitors in the Public Gallery.
Dr Mullan
It is a pleasure to take part in this debate on the Lords message on the Victims and Courts Bill.
The Bill has been debated extensively in the other place. I thank the Lords for their care and consideration in trying to improve it, as we tried to do in the Commons. Members will know that, when the Bill was last in this House, we were sadly defeated by Labour MPs on a number of provisions relating to court transcripts, the victims code and the unduly lenient sentence scheme. Since then, the Lords have done a good job in securing concessions from the Government, including an agreement that there should be a clearer and more defined set of rights for victims of homicide abroad, which the Minister mentioned.
Although it is not the subject of the debate, I join the Minister in acknowledging the campaigning by the relatives and MPs of Olivia, Zara, Sabina and Jan, which we have discussed a number of times in the Chamber as we passed specific amendments.
Today we are considering two remaining provisions added in the Lords. I begin with the Government amendment in lieu of the Lords amendments on the unduly lenient sentence scheme. Many Members of this House will be familiar with the ULS and will have used it themselves. Anyone, including a victim, a relative of a victim or a member of the public, can ask the Attorney General to consider whether a sentence should be referred to the Court of Appeal as being unduly lenient. If the Attorney General considers that it might be, they refer it to the Court of Appeal for review. However, there is a strict 28-day limit within which the Attorney General is able to refer a sentence to the Court of Appeal—and, by extension, a 28-day limit within which the victim or a member of the public can refer the case. If the Court of Appeal finds that the sentence is unduly lenient, it may alter the sentence or substitute it for another.
I have used the scheme on occasions when I have considered sentences to be unduly lenient, including, most recently, in relation to the horrific murder of Alana Odysseos, who was murdered by her boyfriend, Shaine March. He stabbed her 19 times when she refused to have an abortion. Despite having been convicted of murder and released on parole for that offence, when he committed this second murder, he was given a second life sentence—a term that is increasingly unfit for purpose—with the prospect of leaving prison again. That was plainly wrong, and after I referred his case to the scheme, his sentence was overturned and replaced with a whole-life order, meaning that he will never be released. I have had the pleasure of speaking with Alana’s sister, Jasmine. She has told me of the importance of that outcome, which means that Mr March is serving a sentence that reflects the gravity of his crime. That demonstrates how effective the scheme can be in certain circumstances, but it does not always operate as we might want it to.
I have had the privilege of being able to meet and work with a number of victims and their families. They explained to me clearly the pitfalls in the scheme, and drew particular comparisons between the rights and privileges of the criminals and those of victims and the bereaved, in relation both to awareness and notification of the scheme and to the time available to use it. MPs and others can refer cases to the scheme, but those most likely to have an interest in making a referral or appealing a sentence are the victims or their families, and they do not always know about the scheme.
There is not much point in people having a right if they are not told about it. The Government have agreed to a statutory duty to notify victims of the existence of the unduly lenient sentence scheme, which will mean that victims and bereaved families can easily find clear information about the ULS and about their rights in the victims code. Will the Minister clarify which body she envisages will have responsibility for that? It is important that we have some kind of plan to ensure that notification is working. I am sure that the various bodies involved would say that they like to think that everybody is told about it, but that is not the case, so how do the Government plan to ensure that whoever is given that job follows through on it?
My hon. Friend the Member for Bridgwater (Sir Ashley Fox), who is no longer in his place, spoke about what the Government did or did not agree to. The Government’s original plan for the ULS in the Bill was not to give victims more time, but to give themselves more time. It was not on their radar, in any way, shape or form, to extend the time available to victims and their families. When we sought to amend the Bill in that respect, we were told that it was not possible and that we would have to wait for the findings of the Law Commission’s review of criminal appeals. I think the Minister must now accept that that was not true—as we knew at the time—because here we are making amendments before those findings are published.
I do welcome the amendments, however. I pay tribute to those I have worked with directly, many of whom the Minister has mentioned. I have worked closely on this issue with Katie Brett from the campaign group Justice for Victims. I pay tribute to her MP, the hon. Member for Blackpool North and Fleetwood (Lorraine Beavers), who made a particularly powerful and effective speech on this matter last time it was before this House. She has been very effective behind the scenes in driving forward this change.
Katie’s sister, Sasha, was murdered in 2013. This is difficult to talk about, but it is the reality of what people are going through. Aged just 16, Sasha was raped and stabbed more than 100 times, and her body was set on fire. Katie and her family believed that Sasha’s killer met the existing criteria for a whole-life order, but he was given only a minimum sentence of 35 years. In reality, that meant that there was every possibility that he would end up getting out of prison. Despite all Katie’s amazing work on this issue, the scheme is not retrospective, which is something the family will have to accept.
Katie was so upset about being unable to successfully appeal the sentence that she collected more than 10,000 signatures on a petition to remove the 28-day limit for appeals.
The way that Katie described the situation has always stuck with me, and I have used it in discussions with Ministers and others. She said that 28 days is the amount of time we have to take something back to a shop. Someone has the same amount of time to decide whether or not they like a top that they have bought. How can we have the same test for something so serious? That measure was a cross-party one—we did not amend it when we were in government.
I also met Ayse Hussein, another member of Justice for Victims, who campaigns on behalf of her cousin, Jan Mustafa. Jan’s killer had raped, tortured and imprisoned various girls and young women. He murdered Henriett Szucs and Jan and hid their bodies in a freezer, one of top of the other. He did not receive a whole-life sentence and may leave prison one day. Again, Ayse and her family never knew anything about the scheme.
I have also had the pleasure of meeting Lauren Redmond, who lost her ability to appeal a sentence purely because of errors made by the Crown Prosecution Service. When a request to appeal the sentence was placed, the Attorney General’s office asked for the relevant files. The CPS sent the wrong date to the Government, who then worked towards an incorrect timetable. As a result, Lauren was denied the right to appeal.
I have also had the opportunity to meet Tracey Hanson. You have given us guidance on addressing visitors in the Public Gallery, Madam Deputy Speaker, but the Minister has already done it for us. Tracey has campaigned for many years on this issue, and works on victims’ behalf more generally through the Josh Hanson Trust, which is named after her son. I know that she has been supported by the Victims’ Commissioner in that work. As the Minister said, Joshua was 21 when he was murdered in an unprovoked knife attack. Tracey and I have not always seen eye to eye on exactly how the scheme should be reformed, but that in no way diminishes the incredibly vital role that she has played over many years in campaigning for improvements to the scheme. I pay tribute to my hon. Friend the Member for Mid Bedfordshire (Blake Stephenson), who has done a great job of advocating and lobbying on Tracey’s behalf.
I am glad that the Government have been persuaded to act. They will now allow up to six months for victims and their families to make use of the scheme in certain circumstances. I want to allow space for Katie and Tracey’s words on those changes. Katie said:
“It’s a relief that, in Sasha’s memory, victims and their families will have 6 months to challenge an unduly lenient sentence, and the new legal duty to be notified means every family will know their rights to be able to do so. No family should ever be left in the dark like we were, every victim deserves support. We’re grateful these steps are being taken to redress the balance that so often feels weighted against victims.”
Tracey said:
“After…years of relentless campaigning through the Josh Hanson Trust, this is a significant and long-awaited victory for victims’ rights. Following our extensive advocacy, the Government has agreed to transformative amendments to the Unduly Lenient Sentence (ULS) scheme. These changes represent a hard-fought victory in ensuring that families are no longer left in the dark or rushed through a traumatising process during the most painful moments of their lives. These reforms are a testament to Josh’s memory and the passion and dedication of everyone who stood with the Josh Hanson Trust. We have moved forward, but the fight for full equality in the eyes of the law continues.”
Courts and Tribunals Bill (Fifth sitting)
Kieran Mullan Excerpts(2 weeks, 5 days ago)
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Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Dr Huq.
I want to begin by touching again on the question of necessity. One of the key arguments for clause 3, and one of the reasons why the Opposition think there is a debate to be had, is that we do not feel that the new provisions are entirely necessary to bring down the backlog, and that there might be other means by which we might do so.
We have had a debate about what the figures say, and I have laid out why I think they are important. They are important because the Government accept that, quite plainly, they have not yet implemented the reforms that they think are absolutely necessary to bring down the backlog. While the Government and the Opposition recognise that some steps that might help have been taken, such as the lifting of the cap on sitting days, the Minister herself accepts that even that measure will not have had full effect yet. On other measures, such as on prison transport, there has not been any significant reform or undertakings to do things differently. We are at a very early stage of the approach to bringing down the backlogs in the significant way that the Minister and the Opposition would like to achieve.
In that scenario, given that so little has been done in comparison with what we would hope to achieve—with or without the Bill—if there were some suggestion that backlogs were falling, that would be incredibly important for the Committee to understand. It would give us the confidence to question whether, at this early stage, there is an alternative approach. If we are managing to bring the backlogs down in some parts of the country, we could base that approach on understanding what is happening in those areas and expanding on it before taking the unprecedented step of restricting jury trial rights.
The Minister and I had an exchange about this in an earlier debate. I suggested that there have been positive developments and a reduction of the backlog in some areas. I want to be clear about what I said to the Minister:
“What is happening right now with the backlogs is extremely important to this debate. If the backlogs are coming down in some places without these changes being introduced, it is vital to know and understand that.”
I echoed those points in other parts of the debate. The Minister responded:
“I checked this during the adjournment of the sitting: the CBA’s point relates to new receipts in certain courts, rather than the state of the backlogs, which, as I said, continue to rise. I absolutely welcome the progress in some parts of the country in lowering receipts, which is obviously good news for the courts, but that does not yet reflect any lowering of the backlogs. As we would expect, the investment will take time to kick in.”––[Official Report, Courts and Tribunals Public Bill Committee, 14 April 2026; c. 159.]
In response to my question as to whether the backlogs were coming down in some parts of the country, the Minister told the Committee—on the record—that they were not.
As Members might imagine, I went away and had a further look at the data to ensure that that was the case. My understanding of the latest available published statistics is that the Minister may have inadvertently misled the Committee in stating that the backlogs were not coming down in certain parts of the country. As of December 2025—the latest period for which we have this data is from quarter 3 to quarter 4—there has been a drop in the backlogs in the south-east, the north-west and Wales. We have seen a drop in the backlogs in the quarter-on-quarter data in three parts of the country, and it is extremely important that the Committee understands that.
Alex McIntyre (Gloucester) (Lab)
As the shadow Minister has the backlog data to hand—I do not—would he mind sharing with the Committee the data for all the other regions and the overall backlog picture for the whole country?
Dr Mullan
In all the other regions and overall, the backlogs are going up. That is why we have to understand what is happening regionally and why I asked the Minister about that. Throughout this Committee, one of the main arguments from Opposition Members, the Criminal Bar Association and other opponents of the Bill has been that if we are able to replicate what is happening in the best parts of the system, we should be prioritising that.
For example, Liverpool Crown court does not have what might be called unacceptable levels of backlog. As Sir Brian and others have pointed out, every Crown court has a backlog in the sense of a trail of cases that are due to be heard. That is a normal and needed part of the process of case management, and no one argues that there is an unsustainable and unacceptable backlog in Liverpool Crown court. If Liverpool and whole regions can get it right, surely we should be prioritising trying to replicate that.
Yasmin Qureshi (Bolton South and Walkden) (Lab)
The shadow Minister is talking about the north-west, and I am an MP for that region. The numbers are going down in Preston, Liverpool and even Bolton Crown courts, and one reason for that is that they have taken a proactive approach to case management. They are regularly monitoring cases, and going into courts to judge whether cases are trial ready. That is unlike in some parts of the country, where a case is set for trial in two or three years’ time and nobody looks at it or tries to sort out problems until literally two days beforehand, which then leads to a delay.
Dr Mullan
The hon. Member has articulated extremely well that these things can be done differently and have a different outcome. I heard about case management directly from Liverpool Crown court. It has an aggressive approach to case management: it swept the cases and was clear whether it needed to be hearing a case or whether it could do any work to get a plea. It does a lot of work, and if every court was doing that, it would deliver different outcomes. The Minister might rightly point out that different courts have different circumstances, but surely the goal should be to correct those circumstances so that the positive things enabling some courts to bring the backlogs down can be done everywhere.
Linsey Farnsworth (Amber Valley) (Lab)
My point follows on from the powerful point the hon. Member is making about the need to look at good practice, which is something we should all get behind. Over my many years of working for the Crown Prosecution Service, I saw various schemes aimed at doing just that, but unfortunately, given that we are here today, they did not sort out the issue entirely.
Does the hon. Member recognise the evidence Sir Brian Leveson gave specifically about Liverpool Crown court, in which he cautioned against suggesting that that case could simply be replicated across the whole country? Liverpool Crown court deals with a single police force and Crown Prosecution Service, and has a very small local Bar that work together well. Although we would like it to be, that is not necessarily the case across the country. Does the hon. Member recognise that those circumstances are unique and may not be possible for the whole country?
Dr Mullan
Yes, absolutely. In the NHS, I worked on what we might call change and improvement programmes or quality improvement programmes. We worked hard to replicate the best clinical practice everywhere, but it is simply not possible to directly replicate everything that goes on in every unit, although that is not to say that we cannot do some of what goes on. As the hon. Member for Bolton South and Walkden pointed out, we are not talking about a single court; that is why I was clear about looking at this on a regional basis. I do not think that the data in any of these regions is getting better because of one court that has specific circumstances that cannot be replicated. That is why we have to show a high degree of interest in understanding what can be replicated and in trying those measures.
As we heard from the representatives of the criminal Bar and the circuit, we should give them a chance to try some of these things before we do something so unprecedented that will lead to a curtailment of rights. Nobody thinks that the other, positive parts of the Bill, or the measures that do not even require legislation, take away from anything else; they are just exceptionally positive things we could be doing where we do not pay some kind of price. Surely, we should try those before taking the step proposed in the Bill. Whether or not we think this step is reasonable—Labour Members have made it clear that they do—I doubt they think it will not lead to a loss in relation to jury trial rights.
Rebecca Paul
My hon. Friend is making a powerful point about the existing backlog starting to go down, and why it is important that we look at that and understand the impact that other measures are having. Does he agree that the recent change to suspensions for three-year sentences, which went live only a few weeks ago on 22 March, will decrease receipts to court, as it will increase guilty pleas? Whether that is good or bad is a totally separate debate, but it will surely reduce the backlog further.
Dr Mullan
Yes, and my hon. Friend did an excellent job of pointing out that although that might have been in some non-statutory documents, we do not know, because we do not have the details. We do not know whether that was included in the impact statement or the modelling that the Government have relied so heavily on to make their case. As I have said, it is extremely important that the Minister said, on the record, that there was no lowering of the backlogs in any of the regions. The data I can see suggests that there has been a quarter-on-quarter lowering of the backlog in three regions.
Alex McIntyre
For the sake of clarity for the whole Committee, is it not also true that quarter-on-quarter data generally shows a decrease in backlog between Q3 and Q4 in most years for which we have data, because there is a drop in receipts around that time of year? Does the hon. Member recognise that if we look at the data for the overall year, the backlog has been reduced only in the north-west, and by only 2%? If we reduced the backlog by 2% a year, it would take 50 years to clear.
Dr Mullan
I accept the first point. If the Minister had said, “Yes, there is a drop in the backlog in those three regions, but we tend to see that because of this,” citing the points the hon. Member made, we would be having a different discussion, but she did not say that; she said there was no drop.
On the second point, the hon. Member is also right: if that rate of drop was all we were ever going to get, it would not make a material difference to the backlog. That is why I was very clear that, if we are getting a drop, in a context where everybody agrees we are very early in the process and have done a fraction of the things we could do, it is important for us to look at it. If we were at the end of the process and had done all the things we all agree are positive and should be done, and that was the rate of return we were getting, we would be having a different debate. But we are not at the end of it; we are at the start.
Paulette Hamilton (Birmingham Erdington) (Lab)
I thank the shadow Minister; I am listening to what he is saying and I am finding it really interesting. But let us not forget that, until 2019, we had a backlog of something like 40,000, and that has now doubled to nearly 80,000. The Tory party was in power at that time and presided over all this. We are trying to make a difference. It has been said that everything that has been done is wrong, but I ask the shadow Minister why he did not bring in at least some of the preliminary changes that he says we should have brought in. At least then we would have some of those statistics to work from now that we are trying to make changes in the system.
Dr Mullan
I draw the Committee’s attention to my remarks at the outset of our proceedings: our judicial system, victims and defendants and how we manage crime in this country are my personal priorities. That is primarily the reason why I sought to be elected to this place, so I will never disagree that justice should get a higher priority than it has historically. I also pointed out that Labour Members more broadly have accepted that justice getting insufficient priority in our political system has gone on for many decades.
The hon. Member for Birmingham Erdington is right in pointing out the backlogs that existed prior to the pandemic, and they were actually lower than those we inherited from the previous Government. If we are talking purely about what happened with the backlogs, our record prior to the pandemic was an improvement on that of the previous Labour Government. That does not mean it is okay; that does not mean we say, “We did a great job,” but it is important, in balancing and understanding the debate, to know that.
In terms of what we did in relation to the covid pandemic and all the challenges it posed, we had uncapped sitting days and Nightingale courts, and we took steps to try to address the backlog. I served on the Justice Committee, scrutinising what the Government were doing at that time. I was very frustrated, because we would visit Nightingale courts and one of the biggest challenges they faced was the lack of certainty about whether they would be renewed in the future. I questioned Ministers at the time about that. To all of us on the Committee, on a cross-party basis, it was obvious that those courts would need to carry on for longer—why not just get on and agree that and let them run in that sustained way? There were many things we could and should have done better. That is not to say that we did not do anything or that, prior to the pandemic, our record did not compare favourably to that of the previous Labour Government.
As I said, in that particular example we introduced the innovation of making the provisional data available earlier. In June, given the challenges with that data being wrong on occasion, a decision was taken to temporarily stop publication, to see if we could close that gap. If that data is significantly different from the revised published data, there is sense in looking again at the methodology and seeing whether the gap between the provisional and final data can be closed. But here we are, almost a year later, and the Government have not chosen to reinstitute the publication of that provisional data. I think everyone on the Committee would benefit from seeing that data, so I would be interested to know whether that is the basis on which the Minister has said the backlogs in some regions are not going down, when in fact, from the evidence and data I have seen, they are.
Our amendments are aimed at delivering a fairer system. Amendment 23 also seeks to achieve that outcome, in a more specific but equally valid way. As my hon. Friend the Member for Reigate said, human beings in criminal cases are not neat, so we need a degree of flexibility. There is not flexibility in all parts of the system at the moment, but allowing a judge, on their own, in these types of cases, to allocate, hear the case, determine guilt and issue a sentence is unprecedented in our judicial system—
Linsey Farnsworth
District judges in the magistrates courts sit alone every sitting day and hear cases and trials. They then go on to sentence if that person is convicted, or to release them if they are acquitted. That happens every day, so there is precedent within our criminal justice system. District judges hear the most serious and complicated cases that go to the magistrates courts. So there is already precedent for this, and indeed in the youth court as well.
Linsey Farnsworth
I am afraid I have to disagree with the hon. Member, because the youth court has powers to sentence people for up to two years, so it already has higher sentencing powers than magistrates. Many of the cases we are talking about in the Crown court bench division would command a sentence of perhaps two years.
Dr Mullan
I covered that in earlier remarks, when I pointed out that those people are not adults, so it is a different set of circumstances. If the hon. Member is asking me to be ultra-specific—I am happy to be—what is proposed is unprecedented for cases of this nature, with adults, with these sentence lengths. That is, of course, the vast bulk of our justice system. There are lots of things that we do differently for children than we do for adults in the justice system. I am not familiar with arguments suggesting that those distinctions cannot be made, and that something we do with the youth custodial element or judicial process must therefore be perfectly acceptable with the adult estate. We do not do that.
Linsey Farnsworth
But the hon. Member is happy that youths are treated fairly in the criminal justice system, even if a single judge hears their case.
Dr Mullan
Again, we talked about this before. There are degrees of fairness. Specifically on whether a defendant will get a judge who is as fair as possible in terms of representation, understanding their background and so on, I think it is less fair than a jury system. But I made it clear that other factors are given greater weight in the youth court. For example, the intimidation that a young defendant might feel in the adult court versus the youth court is given greater weight. I might think overall that the deal, so to speak, for the youth defendant is fair and reasonable, but that does not mean that I cannot say that the absence of a jury might be less fair for a youth defendant in some regards.
Linsey Farnsworth
I think the hon. Member is saying this is a balancing exercise. It is about having a fair trial, but one that is equipped within our criminal justice system. That is exactly what the Government are doing here. Of course we need fair trials, but we also need a criminal justice system that is fair, and justice delayed is justice denied. That is not fairness. Would the hon. Member recognise that?
Dr Mullan
To use the word that the hon. Member used at the start of her intervention, it is a balance. We in the Opposition are clear that the Government have that balance wrong, which is why we oppose the measures. As I said, the Government want to have this both ways: on the one hand, when it suits them, they say that it is a balancing exercise, but on the other hand, when we point out flaws in the balance, they say, “Everything’s fine. You would be just as happy in a trial with or without a jury.”
The Government should be consistent. If the Government just said, “This is a balancing exercise. There will be some detriment to people as a result, but we believe that it is right”, and then stuck to that line, at least it would be intellectually coherent. The Minister might think that makes it a debating point, but I think it is pretty important in politics to be intellectually coherent. We take a different view from the Government.
The other point that we think is different, too, is that the proposal will not achieve the desired outcome. Even if we agreed, in theory, that the balancing exercise was correct and that the trade-off that the Government seek to achieve were a reasonable one to make against the loss of the rights that we are talking about, we do not think that the Government will get those outcomes. We therefore think that the Government’s argument is fatally flawed in two respects, which is why we continue to oppose the Bill.
As I said, fairness is important. We focused on the example where a first-time offender might end up with fewer rights in our judicial system than a repeat offender; in respect of, for example, loss of respect, reputation, employment or income, the person who has more at stake has their rights removed. That is a point made clearly by JUSTICE, which supports our amendment 39. JUSTICE states that the three-year threshold is likely to lead to outcomes that are seen as unfair by those within the system and by the public. Repeat offenders are more likely to qualify for a jury trial, because their previous convictions would push the likely sentence above three years, while first-time offenders committing the same offence may be denied a jury trial.
When we put that to Ministers, as I said, they say that it is perfectly fine for those people to have a trial without a jury, and that is fair. Ministers also say, however, that they are keeping jury trials for the most serious cases—but if they are keeping it for the most serious cases, they must at some level accept that it is a superior system in some way. Otherwise, why keep it for the more serious cases, as they define them? The Government cannot hold both positions coherently.
Absolutely, as I said, the core issue is fairness. The Government want to have it both ways in this argument, but of course the defendants will not get to have it both ways. The defendants will just have what they are told by the judge, without any ability to exercise their rights in the way that they think is fair or consistent with the broader point. We therefore continue to press our amendment 39 and that is why I ask Labour Members to think carefully; this might not be universal, but how many of them would feel happy if they—with their previous good character, and all the damage that could happen to their reputation and income from a conviction—were not allowed to have the option of a jury trial? I cannot say for sure, but potentially some of them might feel differently then.
The Minister for Courts and Legal Services (Sarah Sackman)
It is a pleasure to serve under your chairship, Dr Huq. I thank my hon. Friend the Member for Bolton South and Walkden and the hon. Member for Bexhill and Battle for their amendments. I will address amendments 23 and 24 first.
The test for the clause is framed intentionally framed around a single condition: the likely sentence. We are ensuring that jury trials are preserved for the most serious offences. Under proposed new section 74A, indictable-only offences will always be tried by a jury. In all other triable either-way cases, the likely sentence provides the clearest and most objective way of identifying seriousness, ensuring that cases where the likely sentence exceeds three years’ imprisonment or detention are heard by a jury. That follows recommendation 30 of the independent review of the criminal courts.
That is already a feature of our system—every day, magistrates courts determine allocation by assessing the likely sentence on conviction. The clause applies that well-established approach in the Crown court; it is not, in that sense, a departure from the current system, but a consistent extension of it. We do not exclude broad categories of defendants from such an assessment in the existing system, and nor do we intend to do so under the reforms. Doing so would risk undermining the impact that the reforms are designed to deliver.
As such, the test does not introduce separate gateways based on the personal characteristics of the defendant; it is focused rather on the seriousness of the offending. Introducing such gateways would remove a significant number of cases from scope. Nearly a quarter of those convicted in the Crown court are first-time offenders, and these amendments would carve out even more cases than that, as they include wider defendant-specific factors, thereby undermining the purpose of the creation of the Crown court bench division, which is to ensure more efficient processing of cases to reduce the overall backlog on a sustainable basis.
As a general rule, those defendants are not given automatic priority in procedural decisions; case management decisions, such as on adjournments, disclosure directions and trial scheduling in the Crown court, do not tend to turn on the characteristics of the defendant. The amendments would change that approach by determining mode of trial by a number of independent defendant-specific factors. Every defendant in the Crown court will receive a fair trial, and that is not affected by the mode-of-trial decision. We have confidence in our judiciary, who take a formal judicial oath to act independently, impartially and fairly.
Sarah Sackman
As I have said consistently throughout this debate, we regard jury trials as a cornerstone of British justice. They are part of our legal culture, for all the reasons that Members on both sides of the House have articulated, and we do see a role for citizen participation in our justice system, not least to preserve its legitimacy. But what corrodes the legitimacy of our justice system is a backlog in which we see appalling delays, causing people to lose faith—whether they are witnesses, complainants or indeed defendants—and to pull out of trials. That is corrosive of trust in our justice system. We therefore of course want to preserve juries for our most serious cases. But trust in a system is built on many foundations, and the timeliness and proper administration of that system, including the proper resourcing of the system—which was not the case in the previous 14 years—is paramount when it comes to trust in the system.
Sarah Sackman
The premise of not just these amendments, but amendments that we have already debated, is that other tiers of the system, whether that be the magistrates court or the proposed Crown court bench division, somehow offend the principles of natural justice. The principles of natural justice are essential; they are foundational. They are based on impartiality, freedom from bias and fair process. All those things are guaranteed under our current system in the magistrates court, and would be guaranteed in a judge-only trial, as articulated by my hon. Friend the Member for Amber Valley; district judges make those decisions on a daily basis.
The hon. Member for Bexhill and Battle wants me to say that, somehow, this would be a lesser justice. I will not say that. I am recognising that there is something special about jury trials—of course there is; it is why I have said consistently that they are a cornerstone of our legal system—but we have to deploy what is a very particular resource that demands a great deal of jurors. We have not spoken about jurors all too often in this debate, but there is something called jury burden. That is why, as we will hear when we come to the clauses that deal with judge-only trials for long and complex cases, particularly for fraud, which place a huge burden on jurors, often with cases lasting months on end, we have to use that resource and deploy it carefully.
However, as I have said repeatedly, and I will say it again, the state’s obligation at every level of the justice system, at every level of seriousness, is to guarantee an individual defendant a fair trial that upholds the principles of natural justice, which is what the hon. Member’s amendment actually focuses on. I am firmly of the view, and the Government are firmly of the view, that, whether by lay magistrates, by judge alone or by a judge and jury, our system upholds those principles of natural justice and is therefore fair throughout.
Sarah Sackman
It is a good question and one that we touched on in our earlier debate in the context of clause 1, where we were discussing the proposal to remove the defendant’s right to insist on their choice. When we step back and look at the entirety of the system, if a person is charged with a summary-only offence that will be considered by the magistrate, there is no choice; you are allocated directly to a trial by the magistrate’s jurisdiction. If a person is charged with an indictable-only offence—a more serious offence—there is again no choice and that person goes to the Crown court whether they like it or not.
Under our system we have this feature of triable either way, where we extend the choice to defendants in a category of cases that we, as a society, have chosen. As I have said, lots of other jurisdictions—and I use the Scottish one as an example because it is proximate—do not have this feature. In many ways, when I came to this debate and to reflect on the policy choices that we might make, driven by the critical—dare I say emergency—context in which we find ourselves, this feature of our system seemed to me quite strange. I cannot deny that it is a choice that people have obviously enjoyed and utilised, with many opting for Crown court trials even when the seriousness of their case meant that it could have been dealt with a lot more swiftly and efficiently in the magistrates court.
We know that people are making those choices, so there must be a reason for that the preference. It might be driven by lots of things: because of confidence and also presumably because people think that they will get some advantage and perhaps a better chance of being acquitted if the trial is heard in the Crown court. However, it is strange when thinking about public services and how we triage and ration what is ultimately a limited resource.
That is why I use the health analogy—and not just because my hon. Friend the Member for Birmingham Erdington is so experienced in that field. When we think about how we triage finite resources within the NHS, we give patients choices around their healthcare, but ultimately the triaging is done by the experts. In this context, the expert is the court. The court knows, based on the seriousness of the offence, what mode of trial is most suitable in the context. Under these reforms, we are saying that it is the court that should decide, rather than the defendant being able to insist on their choice, even if that choice comes at the expense of the complainant, who might end up being the victim in the case, and needlessly dragging things out.
We must be honest and pragmatic. It seems to me a quite unusual feature of our system that it is the defendant that always has the right to insist when, in lots of contexts, the defendant does not get a choice. It is only in this narrow cohort of cases that they do.
Dr Mullan
I have a background in healthcare. The Minister has talked about triage being led by healthcare professionals, but there is another side of healthcare where people can insist on choice. This Government have introduced Martha’s rule, where the family member can not only insist on choice, but override what the treating clinical team think is the right course of treatment. They are given a route to go around them, to call someone, to insist that they are wrong and that they fundamentally disagree with them, and to get somebody else in who will challenge what the consultant in charge of the patient thinks is right. The Minister points to one element of the healthcare system where the state has a greater degree of control, but does she accept that there are other aspects of the healthcare system where we allow people to override what the healthcare team want to do?
Sarah Sackman
I do not want to labour the analogy—forgive the pun—but in many senses, we do allow that. Under this system and the reformed system, we preserve the right of the defendant to appeal. Having allocated the trial to the venue, be it judge-only or the magistrates court, if the outcome is perverse in some way or the defendant takes issue with it, they can appeal the verdict, provided that there is a proper legal and rational basis for doing so.
Sarah Sackman
I have to make progress. Expanding the test for eligibility beyond seriousness would dilute the focus and risk undermining both the clarity of the allocation framework and the savings these reforms are designed to deliver. I therefore urge my hon. Friend the Member for Bolton South and Walkden to withdraw her amendment.
Amendment 39 would introduce a new route to jury trial, where the defendant demonstrates to the court that the circumstances of their case are such that to be tried without a jury would amount to a breach of principles of natural justice. As I have already said and sought to reassure the Committee, those principles of natural justice are, I believe, preserved in the reforms. Those include the right to a fair hearing, the rule against bias and the duty to act fairly and to give reasons where required. As such, I do not consider that the amendment would add substantive protection beyond the safeguards already in place.
I want to pick up on one or two of the points raised earlier in the debate. There was an exchange between the hon. Members for Reigate and for Chichester relating to change of circumstances. That is dealt with in clause 3, which makes provision that where a charge is added to an indictment—an indictable-only charge—the case would be reallocated to a jury trial. Similarly, there are change of circumstances provisions where there is material new evidence meaning that the judge can make a decision that a case should be more appropriately heard before a jury. That is provided for and is intended to meet the sorts of complex scenarios that both hon. Members raised.
The hon. Member for Brighton Pavilion raised again with me the issue of jury equity. I have heard the arguments. I have listened carefully to her as she has raised them on a number of occasions and I listened to the witness who raised them as well, but we do not think it is appropriate to make a specific carve-out for a specific category of offences in this context.
Finally, the hon. Member for Bexhill and Battle raised again with me the argument that we either do not need to do any of this, or we should wait to see how our other measures pan out—the huge investment in lifting the cap on sitting days and in legal aid, the workforce and the efficiency drive.
Sarah Sackman
I am rejecting the addition of any other carve-outs or exceptions beyond the test of seriousness that we lay down in these measures, which is dictated by the likely sentence, the test proposed by the independent review of the criminal courts.
Dr Mullan
The Minister said earlier, and she just said again, that it was the test recommended by the independent review. But if we are being specific, the test that was recommended was two years. The Government have made the test three years, so it is not the test that was recommended. It is important that the Minister does not repeat that inaccurate phrase.
Sarah Sackman
The point that I was making is that it should be the seriousness of the case that is the sole dictator of the mode of trial, and that likely sentence is the best and most objective test that we have. We must also be mindful of how we administer a system. Sometimes, adding lots of tests not only leads to complexity and introduce uncertainty, but introduces one of the things that we are trying to eliminate—delay. If we have a straightforward, well-understood test that is consistent with the sorts of allocation decisions that magistrates routinely make, we can apply that test consistently.
Returning to another point that the hon. Member for Bexhill and Battle made in relation to necessity, we maintain that we have a serious, nationwide problem. We maintain that that the national overall backlog of 80,203 outstanding cases in the Crown court, as it stood in December 2025, is an emergency. The central projection for the number of sitting days we are likely to need in very short order is 139,000. If I took an optimistic view that the central projection was too high, even in a low scenario we would need 130,000 sitting days. That is not to say that there are not, on a short snapshot basis, parts of the country that are doing better. I have given evidence to the Justice Committee where we have looked at that. Historically, there are parts of the country—Liverpool and Wales are often cited—that have lower backlogs. But there is no doubt that as a national picture—we do not want a postcode lottery in our justice system—the situation needs tackling.
Sarah Sackman
Miscarriage of justice should concern us all. That is why I am happy to see the responsibility for looking into miscarriages of justice being given to the Criminal Cases Review Commission under the leadership of Dame Vera Baird. She gave evidence to the Committee, and her support for these measures is notable. I am not sure why the hon. Member for Reigate thinks that miscarriages of justice will increase under them; there is no evidence for that. One miscarriage of justice is, of course, one too many, but I do not accept the premise of her question, which is that the reforms introduced by this aspect of clause 3 will somehow lead to an increase in the number of miscarriages of justice.
Dr Mullan
The hon. Member for Bolton South and Walkden highlighted the Post Office scandal. She talked about those involved in that case as an example of people who supported the defendants feeling that there was a risk of greater miscarriage of justice, so it is not a proposition that my hon. Friend the Member for Reigate has plucked out of thin air. Other people with direct experience of these matters think that is a risk, so would the Minister at least accept that it is a valid concern?
Sarah Sackman
The circumstances of the Post Office Horizon scandal are incredibly serious. Part of the reason why they came about is because people were essentially fabricating evidence and using computer evidence in a way that was fundamentally dishonest. However, I do not think that the reform that we are talking about in this context, which is the allocation test, or mode of trial, and allocation to a Crown Court bench division should of itself reduce the confidence that the public can have in the integrity of our justice system. For all those reasons, and the way in which clause 3 is drafted with a focus on delivering swifter justice for victims, witnesses and defendants alike, I urge the hon. Member for Bexhill and Battle not to press amendment 39.
Dr Mullan
The hon. Member is doing a good job of highlighting the whole additional set of complexities of the new system. We cannot predict how those are going to pan out. She referenced the separation of what a judge will hear and what a jury will hear, to preserve the fairness of the jury’s sentiment. We are now going to be in a position to a much greater extent—it might happen in other courts and other circumstances—where the judge has to hear material that is not going to be deemed relevant to the finding, and then make a finding. I am sure that there is going to be a whole new set of case law, with challenges where defendants and potentially prosecutors will say, “That clouded the judgment. That made the judgment unsound.” There is unpredictability and greater complexity in using this system.
Yasmin Qureshi
Yes, absolutely. At the moment, one of the beautiful things we have is that the judge determines sentence and directs on law, and the jury decides on the innocence or guilt of a defendant. It is fantastic, because that also protects the judges.
In a system where judges are going to be dealing with Crown court cases—we will come on later to complex cases and fraud cases, where they are going to be spending months and months on cases—the judges are going to have to write very long decisions. This is not similar to a district judge in a magistrates court, where the average trial takes maybe half a day or a day, two or three at the most. That is normally the limit.
In the Crown court, the average trial date is two to three days or five days to a week. The judge is going to be writing up all that evidence; because he or she will have to make the decision at the end on innocence or guilt, they have to pencil their decision in a very detailed way, covering not just the law, but an assessment of each witness who gave evidence—for example, “I accept the evidence of that witness because of this, this and this; I don’t accept the evidence of that witness because of this, this and this; this witness is unreliable because of this, this and this.”
All of that will have to be included; if it is not, the defendant who is found guilty will want to appeal, and so the judge is going to spend ages writing decisions.
Courts and Tribunals Bill (Sixth sitting)
Kieran Mullan Excerpts(2 weeks, 5 days ago)
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Yasmin Qureshi
It is a pleasure to serve under your chairmanship, Ms Jardine.
Amendment 25 relates to the retrospective allocation of cases to the Crown court bench division. I am asking that provisions for the allocation for trial without jury do not apply when election has already happened. The point is that in all jurisprudence in the world, retrospective legislation is bad law and bad jurisprudence, going against the rules of natural justice. Why? Because there is a breach of legal certainty.
A core principle of the rule of law is that an individual should know the legal consequences of their actions. People also have a legitimate expectation of the procedural framework in place at the time of the commission of an offence. Retrospective allocation rules disrupt that expectation and weaken trust in our justice system. It is a selective tightening of procedures by the state, which risks an abuse of legislative power and an inconsistency.
Article 7 of the European convention on human rights argues against retrospective criminal law penalties. While it is correct that with this clause we are not talking about retrospective criminal penalty, I would say that article 7 is being breached, because even if penalties are not increased, legitimate expectations are being undermined. The defence and legal representatives prepare cases based on existing court structures, and on known procedures and practices. Suddenly to set new procedural rules and different evidential expectation is just not cricket.
The state is being given an advantage, because there should be an equality of arms. Administrative convenience should not override fundamental rights. The courts have repeatedly stressed that fairness is more important than efficiency, because it generates among people confidence in the state and in the criminal justice system. That is why—I repeat—our judicial system is recognised to be one of the best in the world.
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Ms Jardine. I rise to speak in support of amendment 43, tabled in my name, and to amendments 25 and 12. Again, on this issue the Opposition and the hon. Member for Bolton South and Walkden have alighted on the same challenge or issue—the same thing we think is unfair. We have gone about our amendments in different ways, but we recognise the same issue. As we heard, the amendments address the retrospectivity built into the Government’s approach.
The Bill makes it clear that the new allocation regime will apply not only to future cases, but to existing Crown court cases that are due to begin on or after the specified day on which the measures are implemented. In other words, cases that are already in the system, in which defendants may have made decisions on the basis that they expect a jury trial, could be reallocated to a judge-only trial. Our amendment 43 would prevent that by ensuring that the new regime applies only to cases in which the first magistrates court hearing takes place after the change, and not to cases already in the pipeline.
The Government say the change is merely procedural and can therefore be applied to ongoing cases, but that understates what is happening. To change the allocation part-way through proceedings would not simply be technical; it would alter the ground beneath the defendant’s feet. In written evidence, JUSTICE shared our concerns, saying:
“The retrospective application of the provisions is contrary to the rule of law.”
It pointed to the House of Lords Constitution Committee’s legislative standards, which state:
“Retrospective legislation is unacceptable other than in very exceptional circumstances”
and
“must have the strongest possible justification”.
It is worth considering that legislative guidance, which states, first, that enacting legislation with retrospective effect should be avoided. Secondly, provisions that have retrospective effect should be drafted as narrowly as possible. Thirdly, individuals should not be punished or penalised for contravening what was, at the time, a valid legal requirement. Fourthly, laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake. Fifthly, laws should not deprive someone of the benefit of a judgment already obtained. Sixthly, laws should not prevent a court from deciding pending litigation according to its merits on the basis of the law in force at the time when proceedings were commenced. Seventhly, retrospective legislation should be used only when there is a compelling reason to do so. Eighthly, a legislative power to make a provision that has retrospective effect should be justified on the basis of necessity and not desirability.
Having heard those points, we can immediately see the issues. On the principle that laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake, it is clear that that liberty is absolutely at stake in these matters.
On necessity, we have repeated throughout the debate that the Government, in our eyes, have completely failed to make the case successfully that the measures in the Bill are the only way to drive down the backlogs. This morning, we debated the fall in backlogs in some areas seen in the latest published data; that happened without the measures in the Bill, and without other measures that we all think are necessary to help to drive down the backlogs. To our eyes, the retrospective element clearly does not meet the test of exceptional circumstances or necessity.
JUSTICE says that, given that the curtailment of jury trials will have a marginal effect on the backlog, it cannot see how retrospective applications can be justified, and I agree. It argues that it is deeply unfair for defendants who elected for a Crown court trial in expectation of a jury to have their cases heard by a judge alone under a process that did not even exist when they made that choice. Defendants who have opted for a jury trial may be incarcerated on remand awaiting trial by jury. Had they known that this would never materialise, they may well have opted for a magistrates trial and already been released.
There is, then, a risk that the reallocation of cases that are already in the Crown court caseload to the bench division will be subjected to judicial review. There is clearly no ouster clause in the provisions. How do we know whether many of those affected might decide that they should challenge the decision in the courts? JUSTICE suggests that it could happen with each and every case in the backlog that is allocated to trial without jury. This would require additional hearings and the preparation of representatives for every affected case already in the backlog, creating further delays and placing unnecessary burdens on the defendants and the prosecution who, as we have all accepted, are already under significant pressure.
What did the Prime Minister say about retrospective measures? We have already covered what the Prime Minister previously thought about the importance of jury trials, which he seems to have forgotten, but what did he say about retrospective measures? He said that
“they are usually a very bad idea”.
That is a direct quote from our Prime Minister. He said they were usually a very bad idea, yet here is his own Government enacting one.
Of course, we know what the Deputy Prime Minister thought about this issue. He appeared before the Justice Committee on Tuesday 16 December last year. He was asked about this issue by my hon. Friend the Member for Solihull West and Shirley (Dr Shastri-Hurst), who said:
“There are currently in the region of 17,500 prisoners on remand in this country. Will these reforms apply retrospectively?”
What did the Deputy Prime Minister say? He said: “No.” The Committee must have to assume that that was his view of the right thing to do at the time. Why else would he have said no? It is reasonable for us to ask the Minister to explain why the Deputy Prime Minister has changed his mind.
Of course, the Minister herself has already been asked about this in the Justice Committee. My hon. Friend the Member for Bridgwater (Sir Ashley Fox) pointed out that a defendant committed to trial in the Crown court will expect a jury trial. He said,
“you will relook at cases that have been committed for trial at the Crown court and push some of them through the swift court—that is what you are telling me.”
The Minister replied:
“I think that is something we have to look at.”
My hon. Friend the Member for Bridgwater said to her:
“So when the Lord Chancellor said it will not be retrospective, that was not a wholly accurate answer.”
The Minister replied:
“I think the answer he was giving was in the context of a question around the impact on remand hearings; I think that was the context in which he may have addressed that.”
My hon. Friend replied:
“No, he said the changes would not be retrospective, and now you are giving me a slightly different answer. If someone elects to go to the Crown court at the moment, it is on the assumption that there will be a trial by jury. What you are saying is that it might not be; they might be diverted to the swift court.”
The Minister agreed with that, saying: “That is right, yes.” That can be interpreted only as a suggestion that there was no difference with or without a jury as they are still in the Crown court—an extraordinary response.
My hon. Friend the Member for Bridgwater said:
“Minister, if you have been committed to trial in the Crown court at the moment, you are expecting to have a jury trial, and what you are telling me is that once these changes take effect, you will divert those people committed but whose trial has not started into the swift court.”
The Minister agreed, saying: “Yes”. My hon. Friend said to her:
“That is not what the Lord Chancellor said before Christmas.”
The exchange concluded with the Minister making this point:
“It is a change in relation to the procedure that applies to those cases. They are still getting a Crown court trial under the new proposals.”
We are back to an argument that we have revisited a number of times. When the Minister is pressed on a disadvantage in one form or another of having a trial without a jury, she insists that it does not make much of a difference as they will still get a trial that, in her view, has all the merits of a trial with a jury, to some extent. We made some progress on that earlier today, when the Minister acknowledged that there is something special about a jury trial. If there is something special about it, she must surely accept that those people who do not get one are missing something special and are therefore in some way disadvantaged.
JUSTICE is not alone in its criticism of the retrospective element of the proposals. As I have said previously, Mr Robertson, the founder of the chambers that the Prime Minister, the Deputy Prime Minister and the Attorney General all practised at—someone they surely give some weight and credibility to—is critical about this. He writes:
“Those charged by police with offences currently carrying a right to elect a jury trial will go through newly devised ‘allocation proceedings’ where they will lose that right if it appears to the court to be more suitable to have a non-jury trial or if it appears to the court that the value of the property involved exceeds a sum to be set by the government.”
By that, I think he means in relation to the severity of the case.
Mr Robertson goes on:
“This means, for all 80,000 cases in the backlog, more time—days perhaps—will have to be set aside for novel pre-trial proceedings featuring arguments about suitability and value of stolen property. There will be legal challenges to the government’s proposal that such legislation should apply to defendants who have already been charged or are awaiting trial. Applying these changes retrospectively amounts to a fundamental injustice, undermining legal certainty and the long-standing principle that individuals should be tried according to the rules in place at the time of the alleged offence.”
He is right, is he not?
Mr Robertson is not alone. The Bar Council says:
“The application of this proposal retrospectively inevitably will face a constitutional challenge. The Criminal Bar Association estimates that up to 30,000 cases will be affected. Not only is this extraordinarily unfair to those who have already elected the Crown Court, understanding that it is a jury trial, it interferes with legal certainty and runs the risk of tying the courts up in appeals, further increasing the backlogs.”
I hope that the Minister can reflect, as always, on those clear views, as well as the views of thousands of other legal professionals, academics and former judges, that provisions in the Bill are not necessary to bring the backlog down, and therefore should not be enacted retrospectively. They are fundamentally unfair, unconstitutional and against the usual practices of this place when it comes to retrospective legislation. I hope the Minister will support our amendment to make sure that the measures are not applied retrospectively.
Jess Brown-Fuller (Chichester) (LD)
Although I have proposed the removal of clause 3 in its entirety—we will come to the arguments for that later in proceedings—I will speak to amendment 12, tabled in my name, which seeks to remove subsections (2) to (4) of the clause. Those subsections provide that cases can be assigned to be heard by a judge alone, even if the case has already been assigned to be heard in front of a jury.
Joe Robertson
I do. Perhaps I could encourage a Tea Room conversation between the hon. Members for Gloucester and for Bolton South and Walkden, in the hope that her wisdom might rub off on her hon. Friend when it comes to pitching this as a contest between victim and defendant.
Of course, on a technical point, it is not the victim or complainant who brings the case; it is the Crown—the state. Yes, there is a victim who must see justice, but in criminal law, the offence is seen as a crime against the state. In countries where there is not a monarchy, it is the people versus the defendant, because the defendant’s crime is an affront to the people. We have a monarchy in this country, and we know it is the Crown against the defendant.
Dr Mullan
Further to the intervention from the hon. Member for Bolton South and Walkden, it might be helpful to remind the Committee of the letter written by dozens of organisations representing women and girls. I was very clear that that letter actually represented women and girls as victims, but it absolutely makes the hon. Lady’s point about the criminalisation that is sometimes attached to women and girls as a result of coercion and other circumstances that they might go through, so they have an interest in ensuring that they have access to a fair trial. As she said, the division between the two is not as black and white as some Government Members seem to want to make it.
Joe Robertson
Yes. Let us get back to principles here. I support what the Government are trying to do in reducing the backlog. Of course, that is the right thing to do, and it benefits both those awaiting trial and the victims and complaints who want to see justice.
On amendment 25, my particular issue here the retrospective application of the law. Even if Members agree with the Government that either-way offences should go and that people who commit or are accused of committing a crime in the future should no longer have the right that people used to, the clause will apply that new law to things that have already happened. That is highly controversial and an affront to the common law legal system in this country.
Joe Robertson
I continue to be grateful to the hon. Member for hanging on my every word, and I am grateful for the opportunity to expand on that. As I said, it is a basic tenet of English common law, and the ECHR effectively replicates what is already in our legal system. I am very happy to engage in a wide-ranging debate on the ECHR, but I fear that you, Ms Jardine, are also hanging on my every word and may stop me.
Dr Mullan
I absolutely think that we should leave the ECHR, because I do not like the mechanism that it operates under, but I absolutely support some of the rights and protections in principle that it advocates. I am struggling to see why there is a contradiction. There are lots of times when we might support elements of proposals without supporting the manner in which they are handed down.
Joe Robertson
Again, I invite a Tea Room conversation —although we may have to meet somewhere geographically in the middle of the Tea Room.
Any measure that materially and detrimentally alters the regime to which a defendant is subject in a way not foreseeable at the relevant time engages article 7. The Government’s own ECHR memorandum on the Crime and Policing Bill of April this year acknowledged that article 7 is engaged where the defendant could not “reasonably have foreseen” the application of a measure “at the material time”. At least we can agree that article 7 is at least engaged. A defendant who elected Crown court trial under the existing law could not have foreseen that that election would be nullified, not least of all because some such defendants have been waiting rather a long time—and that is the issue this Government are trying to deal with. I say again that I support what they are trying to do, although I disagree with some of the means they are using to achieve those aims. This is precisely the kind of unforeseeable retrospective detriment that article 7 exists to prevent.
While we are on the ECHR, I turn to paragraph 2 of article 6, on the right to a fair trial, and pending proceedings. Paragraph 1 guarantees the right to a “fair and public hearing” before an “independent and impartial tribunal”. The European Court has repeatedly held that the principle of the rule of law and the notion of a fair trial preclude any interference by the legislature—that is, Parliament—other than on “compelling grounds of the general interest”, with the administration of justice designed to influence the judicial determination of a dispute. This principle was established in a number of cases and applied domestically in Reilly (No. 2), 2014.
Where a defendant has an existing elected case in train, the application to them of the new clause 3 regime is precisely the form of retrospective interference with pending proceedings that article 6 prohibits. The Government must demonstrate compelling grounds of the general interest. Processing efficiency—the rationale advanced for these reforms—does not satisfy that threshold, in my view. I say again that we are talking about cases that are already in proceedings.
The Government’s own Criminal Procedure Rules 2025 identify, as part of the overriding objective, the recognition of the rights of a defendant, particularly those under article 6 of the European convention on human rights. Retrospective removal of the elected mode of trial is directly at odds with the overriding objective that the Government have enshrined in their own procedure rules.
I turn to the more recent Reilly litigation that went on between 2013 and 2015, because, although this is a historic principle, it is one that has been repeatedly upheld. The R (on the application of Reilly) v. Secretary of State for Work and Pensions litigation provides, in my view, the closest and most instructive domestic parallel.
In 2013, Parliament fast-tracked the Jobseekers (Back to Work Schemes) Act 2013 to retrospectively validate regulations that the Court of Appeal had already found to be unlawful. The Act was introduced before the Supreme Court appeal was complete. That is a direct analogy to the present situation, in which the Bill would alter the mode of trial for defendants who are already part-way through criminal proceedings.
In Reilly (No. 2), Mrs Justice Lang held that the 2013 Act was incompatible with article 6(1) of the ECHR, in that it had interfered with—
Joe Robertson
I think it is for the Government to set out the state of emergency. I do not accept that there is one; in fact, I do not think the Government are saying that there is one, when it comes to taking away a right that someone has already elected. We are not talking about getting rid of jury trials for a trial for either-way offences. I disagree with that; we have dealt with that, and we will go back to it. In this clause, we are talking about applying that to a number of people who have already made an election. It is for the Government to set out the emergency. I do not believe that there is one, and I think that they have not set it out because they do not believe that there is one.
Dr Mullan
As I pointed out, at some point in these proceedings, even the Justice Secretary did not think it necessary. When he was considering these matters, the Justice Secretary agreed that it was perfectly reasonable for it not to be retrospective. We are actually making an argument with which, at one point, the Justice Secretary agreed.
Joe Robertson
The shadow Minister is absolutely right. I invite the Minister to address that point head on in her speech. Even the Government themselves do not seem to be saying it is an emergency, whereas when any previous Government, Conservative or Labour, have tried to enact something retrospectively, they have at least made the case for an emergency. Heinous crimes committed during a war, loopholes that have left the state open to repeat, ongoing litigation into perpetuity—those are the sorts of threshold that have been met in previous times.
I hope that that goes some way to answering the question asked by the hon. Member for Gloucester. Let us hear from the Government why retrospective application in this case is so urgent. The answer cannot be about future cases; it must only be about those who have already elected trial.
I draw attention to a post on the UK Constitutional Law Association blog in July last year, which addresses and objects to the idea of using the Crown court backlog crisis to justify this provision. It is not an adequate justification that it is equivalent to wartime. Jury trials were not suspended even in the first world war, the second world war or the covid pandemic, all of which produced a more acute systemic issue than the one we have today. The present difficulties, however real they are—and I say again that they are real—do not plainly reach that threshold.
The Government’s own stated policy is that they must balance conflicting public interests and consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest with regard to ECHR. The Solicitor General’s answer to a parliamentary question set that out explicitly. For the sake of brevity, I will not repeat that answer. However, whatever views are taken about that balancing exercise, there appears to have been no such exercise on which to take a view. It is apparent in the Bill’s explanatory notes. No compelling justification for retrospectivity is advanced. It should be in the notes, and it should have been done already, but at least the Minister can address it now.
This has not been a case of closing an unforeseeable loophole. It is not an emergency requiring same-day legislation. It is not a response to a systemic injustice in wartime. It is a policy reform that operates perfectly well on a prospective basis if that is what the Government want to do, although I do not agree with abolishing jury trials. But the retrospective reach of clause 3 appears—I hope—to be inadvertent. The amendments would correct it.
The Government’s reform agenda could be delivered even if the amendments are made. Future cases would be fully captured by the new regime applied prospectively. Where defendants have already elected—and there will be relatively few of those over the lifetime of this law, compared with all the crimes that it will capture in future—their cases can be resolved under the existing system. It raises the question of what happens when we take a number of cases and put them straight into the magistrates courts now, rather than allowing the natural wasting away of the election to trial by jury for those who face what, today, are either-way offences.
The cost of honouring the amendments is minimal, even to the Government. The cost of not honouring them is significant. I will not repeat the arguments that I have already made. In my view, the Committee should support amendments 25, 12 and 43. They are constitutionally proper and correct, legally secure and practically proportionate. The Government have offered no principled justification for the retrospective application of clause 3. In the absence of such justification, the presumption against retrospectivity must surely prevail. The Government can still achieve the aims of the Bill, no matter how much I disagree with a number of them.
Dr Mullan
I beg to move amendment 40, in clause 3, page 5, line 38, at end insert—
“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may appeal that decision if he can demonstrate that the circumstances of their case are such that trial without a jury would amount to a breach of the principles of natural justice.
(8) An appeal made under subsection (7), must not be heard by the same judge who made the original determination.”
This amendment would allow a defendant to appeal the decision to have a judge-only trial on the basis that it is in the interests of natural justice for the trial to be with a jury.
The Chair
With this it will be convenient to discuss the following:
Amendment 18, in clause 3, page 9, line 17, leave out “no” and insert “a”.
This amendment entitles a defendant to appeal against a judge’s decision to allocate the case for trial by judge alone.
Amendment 28, in clause 3, page 9, line 20, after “hearing” insert—
“only if the prosecution and defence have waived their right to the hearing”.
Dr Mullan
I rise to speak in support of amendment 40 in my name and to consider other related amendments. At this point, we are considering in more detail the allocation decisions, how they work in practice and the likely legal risks and pitfalls inherent in the new process.
I will begin by laying out the process that will exist. The Bill will introduce a Crown court bench division where cases are tried by a judge alone. To ensure that jury trials remain in place for certain crimes, only triable either-way cases that are assessed as likely to receive a custodial sentence of three years or less will be allocated for trial in a bench division. Indictable-only offences cannot be tried there.
To determine whether a triable either-way case should be allocated for trial in a Crown court bench division, a Crown court judge will assess whether the offence or offences to be tried are likely to attract a custodial sentence of three years or less. That decision will be taken at the first opportunity for the defendant to enter a plea in the Crown court using a plea and trial preparation hearing. If cases involve multiple defendants, judges must assess eligibility based on the highest likely sentence of any one defendant. Offences to which defendants have pled guilty are not included in the assessment of a likely sentence, and youth defendants are not exempt from the bench division.
The bench division will operate as a lower tier in the existing Crown court—that is important. The Bill will not create a separate jurisdiction or intermediate court. The usual Crown court procedures will apply in the bench division, including the appeal route from the Crown court to the Court of Appeal. Judges sitting in the bench division will also retain the full sentencing powers of the Crown court and may impose sentences of more than three years where appropriate, even if the allocation was initially based on the likelihood that they would not do that.
The Bill and explanatory notes are clear that no new appeal route is created for decisions to allocate a case to the bench division. It is important to set out the distinctions between different types of allocation decisions both now and in the future, if these proposals are passed. There are some elements of allocation decisions at present that we would all agree are not subjective, but based on offence classifications. I may be wrong, but I do not imagine there remains much debate about allocation decisions in those scenarios. Summary and indictable-only offences will be heard in the magistrates court or the Crown court based on that classification, though there are some exceptions that I will ask the Minister to clarify later.
Under the Government’s proposed reforms, there are similar black and white scenarios, with summary-only remaining with the magistrates and indictable-only going before a judge and jury. However, we will continue to have decisions on either-way offences, which consider the subjective—the not black and white—consideration of what the likely sentence length is. The consequences for defendants are entirely new territory for criminal defendants for the offences concerned.
Of course, defendants may disagree with allocation decisions at present, and may want to stay in the magistrates court, but the court may decide that they must be heard in the Crown court. However, importantly, as I understand it, a defendant cannot actually legally challenge that decision through judicial review. I am not a legal expert, and if the Minister receives advice that that is wrong, I would welcome that clarification, but as I said, my understanding is that judicial review would not be possible in that scenario. I also understand that it would not be the case in relation to the Crown court where the allocation would take place. Importantly, as I pointed out at the start, this will be taken in the Crown court, not some new or different court, so we should read across the rights and procedures that already exist in the Crown court.
As I understand it, triable either-way offences, if heard in the Crown court, are then in legal terms considered to be a trial on indictment. If a triable either-way offence is tried in the Crown court, it becomes a trial on indictment as if it were an indictable offence as per the other offences that are always indictable. Again, I am happy for the Minister to say whether that is the case, but that is my understanding of it.
Why is it important? Because there are constraints on the use of judicial review in relation to a Crown court trial on indictment. Under sections 28 and 29(3) of the Senior Courts Act 1981, no appeal by way of case stated or judicial review is possible in respect of matters relating to trial on indictment, so it will not be available with regard to any decision relating to the conduct of a Crown court trial on indictment. These measures, in this important way, are specifically taking away an existing legal right: the right to challenge an allocation decision. That cannot be right, fair or reasonable, and I am not even confident, as it is not mentioned, that I have seen in any of the Government publications related to this that it is something the Government have recognised they are doing.
It is also potentially a mistake in another way: in relation to the efficiency and smooth running of the courts that the Minister is seeking to achieve. At conviction, the defendant can apply for leave to appeal in the Crown court. At that stage, is the proposal that the defendant will be prevented from appealing the allocation by the judge, so a defendant might argue that a judge could act unlawfully on allocation with no appeal safeguard?
I have not had my attention drawn to an ouster clause. More generally, there is the provision that there is no specific appeal to the decision in isolation, but not an ouster clause in terms of the appeals that are allowed in the Crown court. I am confident that there will be legal arguments about that, at least to start with, until common law settles the matter. It would be extraordinary for the Government to introduce such a clause. We might find examples where a judge in the Crown court has completely incorrectly and legally unjustifiably allocated a case, and when that is brought up as part of the appeal at the point of conviction, be told that that is not a matter on which the court can have an opinion. I think that would be extraordinary.
Does the Minister think it would be right, if it forms the basis of an appeal against allocation happening after conviction, for the Court of Appeal to be constrained from having the power to return the case for trial by jury if it agrees the allocation decision was unlawful? I cannot believe that she would think that was right. Therefore, we create the exact opposite effect of what we are seeking to do—to make the best possible use of Crown court time—particularly in relation to barristers and other people working across the courts, by not allowing an earlier appeal. That is with regard to both appeals that take place and, more importantly, where a whole new trial may have to be ordered before a jury because it is found that the initial allocation decision was wrong.
Consider the scale on which that may happen—hundreds of cases may suddenly have to be retried. If, for example, the measures are in place for seven, eight or nine months, there is no onus or expectation regarding at what point a defendant—a convicted criminal at that point—might seek legal advice and then successfully choose to challenge an allocation decision. That would then be heard by a court, and then that court of appeal will make a ruling as to whether the circumstances under which that person was allocated were unlawful and a retrial with a jury is required.
If any other case has been allocated under those same circumstances that the appeal court determines are unlawful, every single one of those who had been convicted would have the right to say that the precedent has been set that the way they were allocated was unlawful and has to be retried. That could happen six months, a year or two years in. We are talking about a huge potential reallocation and retrial of all cases if the Minister insists that there should not be an appeal on the right of the allocation decision.
A separate initial safeguard—an appeal against allocation at the stage that it happens—is not only the right thing to do to ensure that an existing right is not eroded, but the more efficient way to approach these things. The amendment is sensible, rational and will provide greater confidence in the new court that the Minister is insisting on creating, and its processes.
I ask the Minister to clarify an important matter of law in relation to the allocation decisions in the first place—just the sort of thing that might be appealed if it is not clarified by the Minister during the passage of the Bill or through amendments to the legislation. We are clear about the idea of summary offences that go to the magistrates court. Indictable-only offences will have a trial with a judge and jury. In a number of cases, however, the offence is triable either way, but provisions that this House has introduced mean that in particular circumstances it can be tried only on indictment.
Some examples of that are three-strikes class-A drug trafficking offences, three-strikes dwelling burglary offences, dwelling burglaries involving violence or threats of violence, and the minimum mandatory sentences for firearms offences. Those were decisions taken by Parliament to say that, while the offence more generally could be tried either way, these cases in those circumstances are too serious to be heard by a magistrates court; they must be heard by a judge and a jury.
What are the consequences of the Bill on those scenarios? Will the Government respect the will of Parliament in relation to considering those cases to be more serious, as the Government accept for those cases that retain a jury trial, and that they should therefore remain with a jury trial? It is important that we have clarity on this issue specifically because, as I said, it is something that would almost certainly be subject to appeal if clarity is not provided.
I finish by reiterating the point that, if the Government refuse to accept our amendment, they will be actively legislating away a right to appeal allocation decisions that currently exists in our system. They will be actively choosing to do that if they are unable to insert a similar right through other means, such as through our amendment or an amendment at a future stage. I think it is important that the Committee reflects on that, and I hope the Minister can agree.
Jess Brown-Fuller
I will speak to amendment 18, tabled in my name, which seeks to ensure that a defendant has the right to appeal against a judge’s decision to allocate a case for trial by judge alone, whether because of the likely sentence length or because the case is assessed to be complex or lengthy. I will also be supporting amendment 40, tabled in the name of the shadow Minister, and amendment 28, tabled in the name of the hon. Member for Bolton South and Walkden.
As stated, triable either-way offences, with potential sentences of up to three years, could be tried in the new Crown court bench division swift court. I argue that cases where a defendant may receive a sentence of up to three years are not minor offences; we are talking about life-changing sentences. Often in this category, we are talking about possession with intent to supply, actual bodily harm, death by careless driving, or section 20 unlawful wounding or grievous bodily harm, including where there is a grave injury. We must safeguard those sorts of cases against rough justice—an issue that much of the legal profession has warned could arise. It is vital that the Government provide an appeal system against decisions on whether to allocate a case for trial in front of a judge or jury.
I would like some clarification from the Minister: when we talk about summary offences, indictable offences and then triable either-way offences, are the measures being introduced in this Bill removing the concept of triable either-way offences? Are we then moving all those categories of offences into what are described as summary offences—these offences that carry long, life-changing sentences?
Briefly, amendment 28 would add a procedural requirement, but it is an important one because it would mean that the court could not simply decide, on the papers, to move a case to a judge-only trial; both parties would have to have first been given the opportunity to argue the point at a hearing, and only if both sides expressly gave up that right could the court proceed without one.
That goes back to the point that I raised earlier about the Canadian model, which I know the Government have been exploring and have spent time in Canada looking at. There, people have the right to elect a judge-only trial, so there is still an element of choosing what that looks like. That is not what this Government are proposing; they are proposing that there be no choice in the system, and that there be no legal precedent for it. I would appreciate the Minister’s answer to that.
Rebecca Paul
That is not the case. The hon. Lady has just set out that it is about setting out the worst possible cases with respect to the sentence—so they absolutely could do that. It is exactly what will happen. They will always be looking to achieve the best for their client—particularly if their client is not guilty. Let us remember that we are talking about some people who will not be guilty.
Again, they know that if they have done a social media post—and we have seen that people have gone to prison for these things—they are much more likely to not go to prison if they end up in front of a jury. However, if they end up in front of a judge—my goodness me—there is a much higher chance that they will go to prison.
Dr Mullan
As I said at the outset, there is a fundamental safeguard of people being able to have a judicial review of the allocation decision. It is all well and good for the hon. Member for Amber Valley to talk about the scenarios where it sails plainly, everyone is in agreement and it is all good. However, if it did not, at the moment, a defendant has a right to a judicial review of the decision to allocate. If these proposals go through, they will lose that right and have no ability to question legally the decision to allocate—even if it was a factual error of the law. We are not even talking about a subjective element. Let us say that the judge just gets it completely wrong, misunderstands the facts presented to them and allocates incorrectly. At the moment with magistrates that person could go straight to judicial review and the case does not proceed as was intended. However, we would now lose that right.
Sarah Sackman
There is no specific ability to appeal, but of course, a decision in relation to mode of trial could be subject to judicial review. Those familiar with the judicial review process know that that is a high bar. We are talking about public law grounds of vires—whether it is within the scope of the statute—and rationality. It is a high bar, but there is no unique route of appeal. That is in order to promote procedural finality and to avoid delay when we are talking about the allocation decision itself.
I reiterate that several important safeguards are in place to ensure fairness and transparency. Both parties will be able to make representations on mode of trial decisions, and judges will give reasons for their decisions. Of course, the wider system of appeal—that is, to the substantive determination on a verdict and, indeed, on sentencing—remains in place.
Dr Mullan
I think the Minister would accept that it is a high bar, but also that it is sometimes successfully crossed. Allocations are sometimes successfully challenged, which demonstrates just how important this provision is. If it is there and is used when things have gone so significantly wrong as to meet that high bar, it is vital that the same test is available in extreme scenarios, but it will not be available in relation to allocation by the Crown court.
Sarah Sackman
I think I have been as clear as I can be. If a mode-of-trial decision is so out of order or unlawful that it is challengeable by way of judicial review, it can be challenged in that way.
Dr Mullan
This is very important. I have read the legislation to the Minister, and highlighted the point that a non-conviction element of the Crown court proceedings cannot be taken to judicial review. The Minister should either say that I am wrong about that and that something like an allocation decision in the Crown court can be judicially reviewed, or that I am right and that what she has just said means there should be something that is not there. The whole Committee needs to know whether I am correct in saying—I believe I am—that that sort of hearing from a Crown court cannot be judicially reviewed.
Sarah Sackman
My understanding, and I will happily correct the record if I am wrong, is that there is no bar to judicial review in that context. However, there is not a specific route of appeal, which is what amendment 40 seeks to allow. To reiterate, several important safeguards are in place to ensure fairness and transparency.
Sarah Sackman
I am going to make some progress.
Both parties will be able to make representations as I have said. We also recognise that cases can and do evolve as they progress through the courts and a number of examples were raised. Clause 3 makes clear provision for cases to be reallocated between the bench division and jury trial where the seriousness changes. That process is set out specifically in the legislation, and for that reason I urge the hon. Member for Bexhill and Battle to withdraw the amendment.
Sarah Sackman
Of course nobody is infallible in this process, and mistakes are made. But I caution that there is a distinction between taking a decision that is totally outwith the legal authority the statute provides the decision maker with and an indicative assessment of likely sentence, which turns out not to be the precise result that we end up with. That does not invalidate the initial assessment or necessarily mean it is mistaken based on the representations that were before the judge at that time. We therefore think that introducing a specific route of appeal to the allocation decision—I am not talking about appeals to the ultimate verdict —introduces a needless interlocutory stage that will only add to delay, in a system where we are trying to bring them down.
Sarah Sackman
I am going to make some progress.
Amendment 18 would introduce a new right to appeal allocation or reallocation determinations made under proposed new sections 74A and 74B. The Government do not consider that necessary or appropriate. As I said, mode-of-trial decisions of this kind are procedural case management decisions. They are intended to ensure that cases are tried efficiently and fairly and managed proportionately. As a general rule, such decisions are not subject to a unique route of appeal.
Dr Mullan
Just so we are really clear, I have met Supreme Court judges and they tell me that they go back through discussions and debates about legislation to understand the intent or will of Parliament. The Minister said there will not be a separate route of appeal and referred to existing and ordinary rights to appeal. Does she therefore think that it is the will of Parliament that people at the point of conviction should be able to raise questions of allocation, or that judges at the point of conviction should not consider questions of incorrect allocation?
Sarah Sackman
I am not quite sure, in that hypothetical, where those arguments would take us. As I said, the allocation—whatever the constitution of the Crown court, it is still the Crown court—guarantees a fair trial. So I am not sure what this proposal does in that context to underline the fairness of what has been determined.
What I would say to the hon. Member for Reigate is that the intention here is that this process is neither new nor complex. As others have said, it broadly mirrors the allocation exercise in the magistrates court, which already requires a balanced assessment of the case, including matters properly advanced by the defence. The hon. Lady is absolutely right that the judge at the PTPH stage in the Crown court will hear the prosecution’s summary of the alleged facts and apply the relevant defence-specific sentencing guidelines to assess harm and culpability to determine in what category that places the case. When one examines the sentencing guidelines, although they are rich in detail, it is often pretty black and white as to whether someone is within the three-year territory or quite obviously above it in cases that are not themselves indictable-only. The judge will then consider any clear aggravating or mitigating features, which will allow the judge to determine where the case will likely fall within the sentencing category range. Inviting representations from the parties at PTPH is not an open-ended process, a mini-trial or a sentencing hearing. As I said, we are trying to give an indicative assessment of likely sentencing length, not what the actual sentencing length will be.
Dr Mullan
We are now being asked to vote in a totally unsatisfactory situation when it comes to the facts of how this legislation will operate in two very important regards. I put it to the Committee that there will be an erosion of the right to judicially appeal an allocation decision that currently exists in respect of magistrates. The Minister said she thinks that that is wrong, but we will have to vote one way or the other on the basis that either the Minister is correct or I am correct. A Member said from a sedentary position—this is not a criticism of him—that the Minister will come and correct the record, but we will have already voted when the record is corrected. The Minister has given a view that there will be a right of appeal through judicial review to an allocation decision in the Crown court, and that is a fundamentally different scenario to one where someone does not have that right. However, we will be asked to vote on that today, without having absolute certainty, and we will perhaps be told afterwards, “Oh no, you don’t actually have that right.” I am not sure how Labour Members are comfortable or confident voting against a right that we are seeking to give people, without having absolute clarity about what the Minister has said and whether she is correct. It is extremely unsatisfactory for this Committee to be asked to vote on that matter without absolute clarity.
Secondly, similarly, the Minister did not clearly answer whether, as a consequence of that, people would be able to pick the issue up in an ordinary court of appeal. To another point raised by Opposition Members, the Minister said that we are not talking about errors in the law or where judges have clearly strayed outside of legislation. How does she know that? How does she know what future mistakes a judge might make? A judge may do exactly that, and allocate a decision completely and utterly incorrectly, outside of the law and what Parliament intended, and the Minister will not tell us whether that could be picked up in a court of appeal.
That, again, has important consequences, not just for the rights of the person who may be subject to that kind of egregious mistake in a legal proceeding without any route of recourse; it will also undermine the whole system if people are appealing and challenging these decisions and there is all this uncertainty.
Mr Kohler
I hate to break the consensus on the Opposition side, but I really do not see how we can say that judicial review is an appeal, and therefore why it is caught by this legislation at all. Judicial review is not an appeal of a decision; it is a review of a process. I do not think it is a concern.
Dr Mullan
As I said, our preference is for an appeal. The Government could say, “We are not going to add additional rights that do not exist; you do not get a right of appeal on allocation by a magistrate, but you do have a right to judicial review.” But the Minister cannot say with confidence that we do or do not have that. That is extraordinary.
Dr Mullan
Sorry—with confidence. The Minister says she is happy to go away and double-check. She should know for certain whether people have a right to a judicial review of an allocation decision in the Crown court, as in the magistrates court. She should be able to tell us that with absolute certainty.
I have been the Parliamentary Private Secretary for a Minister, passing notes between officials and the Minister. That is why debates are structured in the way they are: earlier in the debate, someone raises a point of importance in their opening remarks, and that gives time to the Minister, working with their officials. I absolutely accept that the Minister will not always have things at the tips of their fingers, but that is why the officials are there, to liaise with the Department. I am not criticising the officials, but why have we not had a direct note so that the Minister can get up and say, clearly and confidently, with absolute certainty, that there is a right of appeal to a Crown court allocation decision?
Siân Berry (Brighton Pavilion) (Green)
I have to add my voice to the point that this is an unsatisfactory situation. We have heard time and again from the Minister that the decision about allocation will be made based only on the length of sentence, but in proposed new section 74C(7)(a) to (g) on reallocation—(g) allows for any other matters—there are many points that are quite subjective where decisions could be made on reallocation, and that could have a similar impact on someone’s life. I do not think we have all the answers we need about how this will work.
Dr Mullan
I absolutely agree. We will go on to discuss reallocation, and the hon. Member anticipates the points I was going to make. The reallocation decision is even more of a minefield, with all sorts of subjectivity and challengeable elements. I look forward to discussing that.
The PPS muttered earlier that I am patronising the Minister, but I think the Opposition are being patronised. We are being asked to vote on something where we have not had absolute clarity.
Sarah Sackman
I appreciate that the Opposition disagree with what we have decided to do in this legislation. There is no specific route of appeal to challenge the mode-of-trial allocation decision. If a defendant and their representatives consider it to be so egregious as to be unlawful, they can challenge that by way of JR, but I would suggest that that will be a very difficult threshold to reach and unlikely to get permission in the administrative court. The mode-of-trial allocation exercise involves an indicative assessment of likely sentence—a judgment on the basis of indicative factors—so establishing that the conclusion that has been reached is so irrational is unlikely.
I do not think I am being unclear. The hon. Member for Bexhill and Battle has heard it three times; he does not like it. I am doing my best.
Dr Mullan
Does the PPS want to intervene? No, I did not think so.
As we have agreed, judicial review exists for an allocation decision by the magistrates. The Minister has quite rightly set out that that is a very high bar and is not a right of appeal. In that regard, the Minister is fair to say that our amendment is not directly comparable. I put it to the Minister, and I made this point earlier, that it would be the Crown court making an allocation decision. It is not allowed, as it is in a magistrates court, to use judicial review to challenge a decision made, like at the PTPH, on allocation. That is an incredibly important point that all Members must understand. If the Minister is going to say that people are not allowed a general right of appeal—we do not agree with that, but it is a legitimate argument—that is one thing. But if the Minister is saying that people are going to lose the high bar of challenge that exists at the magistrates court, that is incredibly important. We need to understand that because, as I have said, it is a high bar, but it exists for a reason.
Dr Mullan
Again, this is why the Minister needs to clearly articulate whether or not we can—[Interruption.] The hon. Member for Amber Valley is saying that the Minister said that we can. But what will the Minister do if we all vote tonight on the basis that the allocation decision can be judicially reviewed? The Minister is asking us not to have a view on it, not to consider it, but to vote on the question of appeal in relation to allocation decisions on the basis that she has told us that they can be judicially reviewed. Will the Minister think that that is in any way satisfactory if what she has told us proves wrong? I do not see how she could possibly think that that would be satisfactory.
Alex McIntyre
The Minister has been really clear in her response. This morning, the shadow Minister was extolling some intellectually coherent arguments that the Conservative party has now discovered. I wonder whether he might return to them for this afternoon’s session.
Dr Mullan
I think that wanting defendants to have the ability to challenge allocation decisions as they stand under a new court is pretty intellectually coherent. I am arguing that these are potentially significant, consequential decisions for defendants, and at the moment, as the Minister has explained, we all agree that there is a high bar for judicial review. I am not confident, and the Minister has not given me confidence, that the judicial review element absolutely exists.
The Minister has talked about appeal; she is right that there is no right of appeal for the allocation decision at the magistrates court, but there is a right to judicial review and I am not sure that there is in this clause. It is unsatisfactory that we may have to vote on it.
Paulette Hamilton (Birmingham Erdington) (Lab)
I am no expert, but I find this argument fascinating. What would it take to make the shadow Minister believe what the Minister is saying? I do not understand this subject, except for everything that I have read, but the Minister has been absolutely clear. What does the shadow Minister need to make it clear so that we can move on to another point?
Sarah Sackman
If, at a PTPH, a judge makes an error of law, that is amenable to judicial review. Full stop.
Dr Mullan
I welcome that clarity; it will be interesting to see what happens as a result of that. I take what the Minister has said in good faith, and assume that she would not say that unless she was certain.
That point is about the question of judicial review. The Opposition believe that there should be a right of appeal separate to that, for two reasons. First, it is fair to the individual, and, secondly, if we do not have an initial right to appeal, and these matters are then considered in appeal at point of conviction, we will create more issues, backlogs and legal uncertainty and defeat the point. Our amendment would make the system more, not less, streamlined. It would help the Government meet their objective, not hamper them. On that basis, I will push it to a vote.
Question put, That the amendment be made.
Dr Mullan
I beg to move amendment 41, in clause 3, page 5, line 38, at end insert—
“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may request a different judge to preside over the trial than the judge who made the determination that the case was suitable to be tried without a jury.”
This amendment enables the defendant to request a different judge to try the case than the judge who determined that the case was eligible for trial without a jury.
The amendment draws into acute focus the challenges with public confidence and the risk of clouding judicial decision making that the proposals of a new judge-only court bench division will create.
It is important to set out the distinctions between different types of allocation decisions both now and in the future, if the proposals are passed. It is important to restate that we have summary-only cases based on the offence type rather than anything subjective, and then we have the indictable-only offences, again based on the offence type. In our previous debate on allocation, I pointed the Minister to grey cases, such as drug dealing and burglary offences, that are triable either way. At the moment, if it is about three of those offences, they have to go to the Crown court. I ask the Minister for clarity at some point about how they will operate.
Presently, we have what I sometimes call a clear and distinct separation of powers—a separation between those anticipating sentencing outcomes and those deciding sentencing outcomes, and a powerful safeguard for where that is not the case. Under the Bill, those lines will be blurred in a new and novel way, because the judge anticipating sentence length in the Crown court can then determine guilt and sentence length, and potentially issue a longer sentence of more than three years. That is important for the defendant and, in certain scenarios, for the victims and bereaved.
The hon. Member for Amber Valley, with her expertise, earlier described the fact that allocation and sentencing take place in the magistrates court, but importantly, the defendant can elect, and say no to their being involved in that process. They can say, “I want a jury trial; I want the judge who passes the sentence to be separate from the people involved in allocation.” Of course, the scenario is one in which a defendant is unlikely to have a reasonable claim of bias against their interests in relation to the sentence.
We discussed why someone may prefer a jury trial, even if the sentence might be higher. However, if we are talking about the defendant’s ultimate view about the judge, it is unlikely that someone in the magistrates court—if the case stays in the magistrates court—will say, “You chose to keep me here because of a shorter sentence, so I think you are biased in giving me a longer sentence.” They already have a positive disposition about the view of the sentencing.
More importantly, there are strict limits on the sentence length if a case stays in the magistrates court. It cannot go beyond what the initial judgment was. If the court decides, during or at the conclusion of the trial, that the sentence should be higher, it is up to someone else to pass that sentence. It goes to the Crown court for sentencing.
Linsey Farnsworth
It is true that the case has to go up to the Crown court, but it is not for the purposes that the hon. Member would like, as it were. It is because the magistrates’ maximum sentencing powers have been reached, and therefore they do not have the power, as opposed to it being preferable that the case go to somebody else.
Dr Mullan
That was not the point I was seeking to make, so I thank the hon. Lady for clarifying.
I sometimes wonder what victims think. Do they sometimes follow a case, hear the evidence and then think it should be getting more than the magistrates’ limits? Do they question whether the magistrates, who have a preliminary view about whether the case will hit a certain maximum at the outset, have come to the trial with some degree of bias about what outcome might be? Do they think the magistrates would therefore have some reluctance, even having heard the evidence in full, to pass a sentence that is beyond their powers and send the case up? Of course, magistrates do reallocate sentencing. As we have said, just because I feel there is a risk of a perception of bias does not mean I think we should scrap the whole lot and never let magistrates pass a sentence, but seeing that things are not perfect on balance does not mean that we accept them.
These proposals will add a degree of seriousness because of the potentially significant differences between possible sentence lengths. The sentencing guidelines for the offences are narrower than we will perhaps see with triable either-way cases, which have already been curtailed at a certain level of seriousness and might go up to an even greater level of seriousness.
If the clause passes unamended, the scenario could be as follows. A Crown court judge will receive an outline of the case, and make an initial judgment on the likely sentence outcome. They will decide, for a triable either-way offence, whether a sentence is likely to be more than three years. That same judge could then hear that case. That is the same judge whom a victim or bereaved family member could reasonably—perhaps not correctly, but reasonably—perceive on some level had already made a decision about the case, because of course they have: they have taken an initial view of the case and on what the outcome was likely to be. Importantly, that is not something that happens in any way shape or form with the jury trial system, where the two things are separate.
We all agree that perception as well as reality is important in our justice system. It is possible that some victims or bereaved family members might question whether the judge, who formed a view, is not best placed to then objectively and fairly decide what the actual sentence should be, if it should be longer than three years. They might even be concerned that passing a sentence of more than three years would suggest that they had got it wrong in their initial view. Again, we do not have to form a view about how likely or unlikely that is; we should form a view on what the perception of that will be. As politicians, we are very used to the concept that perception is important. Even if someone has not necessarily done something wrong, whether the public perceive that they might have done something wrong is important.
All that can be readily and simply avoided through our amendment, which would introduce a separation of powers, as I have described it. This is a modest and narrow amendment. It will provide a greater degree of confidence in the new system; even if the Minister is happy to proceed with the system, I am sure she would accept that it has generated questions and debates about rights and impartiality. This amendment is a very simple and modest way in which the Minister can minimise that. I know she wants maximum possible confidence in the new system, so I hope our amendment achieves that and that she can support it.
As we are still discussing allocations and who will or will not be allocated to different parts of the court, I would also be grateful if the Minister could provide clarity on triable either-way offences, such as drug dealing and burglary offences, where multiple versions go into the Crown court at the moment. What will happen to those cases in relation to allocation as part of the new division?
Sarah Sackman
Let me begin by making it absolutely clear that the deployment of judicial resource is properly a matter for the independent judiciary. Under proposed new sections 74A to 74D of the Senior Courts Act 1981, judge-alone trials will operate in the existing Crown courts and any judge of the Crown courts will be eligible to sit in the new division. Creating a statutory entitlement to require reassignment following a request of the kind outlined in the amendment would, in the Government’s view, encroach on that judicial responsibility.
Let me be clear that, like the hon. Member for Isle of Wight East, I am firmly of the view that our judiciary are among the best in the world. That is why the Government are prepared to put our faith in them to deliver this reform. They are best placed to determine how and where to deploy their resources.
The amendment implies that, to safeguard fairness and impartiality in our courts, different judges must preside over the allocation decision and the trial. Let me address that concern directly. There is no basis for suggesting that a judge who has made an allocation decision would be unable to approach a trial with full independence and objectivity. We have confidence in our judiciary, who are independent and highly trained, to do so. Judges receive training throughout their careers, including on structured decision making and the fair treatment of court users. They are accustomed to managing complex cases and to ensuring that trials are conducted fairly. That is their job.
What the Bill proposes is consistent with well-established practice. Across our systems in the civil courts, judges routinely make a range of procedural and case management decisions before trial without that depriving them of their impartiality at trial. The Government are committed to upholding the highest standards of justice, which is why we have ensured that the judiciary have the funding that they need to deliver the training and guidance required to support these reforms.
I reassure the Committee, the House at large and the public watching at home that every defendant in the Crown court will receive a fair trial, and that that is not affected by the mode of trial or by the particular judge presiding over the case. In the magistrates court, justices and district judges routinely make decisions about the admissibility of evidence, including bad character evidence, and other preliminary points of law and then go on to determine guilt without any loss of impartiality. In the Crown court, judges already deal with instances of contempt of court that they witness themselves, sometimes those directed at them personally, without being disqualified from continuing to try the case. That position was affirmed by the Court of Appeal only last year.
Requiring a different judge to preside over the trial would encroach on judicial independence and introduce unnecessary complexity and inefficiency to the system without any evidence that such a safeguard is needed. I urge the hon. Member to withdraw the amendment.
Sarah Sackman
I am sorry: I did have that question noted down. The hon. Member will get an answer.
Sarah Sackman
Let me intervene, because the omission was certainly not deliberate. I am trying to make progress, for the sake of the Committee, but the hon. Member has fairly put the question. To be as clear as I can, the court considers the mode of trial by reference to the sentencing guidelines. According to the sentencing guidelines, a third domestic burglary offence is triable only on indictment.
Sarah Sackman
In fairness to the hon. Gentleman, and so that we can make progress, if he gives me a list of those cases at the end of the day, I will come back and give him chapter and verse on each of them at our next sitting.
Dr Mullan
To return to the heart of the matter, I will pick up on the comments made by my hon. Friend the Member for Isle of Wight East on an issue that I had not talked about. I talked about how one forms a view of the sentence and how one gives a sentence, and about the ways in which the interaction is unhelpful, but my hon. Friend helpfully points out that other things will happen at the pre-sentence hearing, including the submission of evidence that is then ruled out of order, that might lead to a certain perception.
The Minister rightly referred to precedents relating to judges’ capability, but I do not think that she really engaged with the Opposition’s concern about perceptions that the system is unfair. The Minister highlighted examples in which that might be a risk already. There might already be times when people argue that the perception is wrong. We accept that. I had anticipated that point, which is why I made it clear that the fact that the existing system is not ideal or has undesirable features does not mean that when we get to design a new system from scratch and from the ground up, we should say, “Yes, this is undesirable in these areas, but it exists and we are not going to get rid of it.” When we are designing a new system, we should design out the less desirable elements. Our amendment puts forward the best possible approach. I suspect that it would make it less likely that either defendants who have been convicted and sentenced or victims will be concerned.
Joe Robertson
The hon. Member for Chichester has set out the reasoning behind her amendment very well. If the amendment were agreed to, it would not go anywhere near restoring jury trials, but it would plainly be an improvement. The leading argument in its favour is that it is what Sir Brian Leveson recommended. The Government have repeatedly cited Brian Leveson’s review, and rightly so—that is what the Bill flows out of—but as the hon. Member for Chichester says, it cannot be a pick and mix. The Government cannot cite Leveson on the one hand and ignore him on the other.
Quite aside from the fact that the opinion expressed in the independent review has been ignored here, there are objectively good reasons why a trial heard by a judge and two magistrates is preferable to a trial heard by a judge alone. For a start, there would be three decision makers rather than one; with a jury there are 12, but clearly three is better than one. But it is not just a matter of numbers. Magistrates could be viewed, and certainly have been viewed, as a hybrid of jurors and judges. They are not judges, and they are not legally qualified people. They bring the quality that jurors bring—varied life experience—to the decision-making process. Of course, in a magistrates court, they are guided in the law by a legally qualified clerk.
It is fairly obvious that magistrates as a group are less diverse than the population of the United Kingdom, from which jurors are drawn, but at least they represent a greater diversity and variety of experience than judges. Judges all share one thing: they went to law school, they are legally qualified and they have had a career that is privileged—that is not a criticism, but I do not think it is an unfair word to describe a judge’s career. Magistrates have a greater variety of life experience. To bring magistrates into the decision making alongside a judge, as Sir Brian Leveson envisaged, would be to bring at least some element of a jury trial: the quality of being unjaded by a career in law and being unencumbered by the experience of being a well-paid legal professional.
I struggle to support the amendment, because it does not go anywhere near maintaining the system that we have today, but it would at least be a small improvement. It is an obvious point, but judges sit alongside magistrates today; it is a tried, tested and understood approach, not an obscure or novel one. Indeed, appeals are often heard in that way, as I understand it, because there is added rigour in having a magistrate sitting alongside a judge.
Of course, having a judge sitting alongside magistrates is an improvement on having magistrates alone, because judges bring professionalism from their legal training and experience of the law as part of the judiciary. There is a benefit there, although of course the benefit is already delivered by the Government’s own amendment, notwithstanding that it is worse than what we have today.
I commend, or at least understand, what the hon. Member for Chichester is trying to achieve. It comes from a good place, but unfortunately—this is not her fault, but the Government’s—it does not go anywhere near maintaining the status quo, which in my view is plainly greatly preferable both to her amendment and to the Government’s approach.
Dr Mullan
I welcome the opportunity to speak to amendment 19, tabled in the name of the hon. Member for Chichester. As my hon. Friend the Member for Isle of Wight East pointed out, this one of those challenging situations; we will not vote for the amendment, because it would indicate that we support or endorse a judge trial with two magistrates as opposed to a jury trial, which is not the case. But it is an extremely helpful probing amendment to point out the broader challenges and weaknesses with the Government’s proposal and the differences we would have seen had they followed the proposal by Sir Brian Leveson.
The amendment also draws close attention to a matter that I have spoken about frequently: the Government’s willingness both to say that great credibility should be placed on the reforms that they are proposing because they have come about as a result of the work of the independent review by Sir Brian Leveson, and at the same time to reject proposals by Sir Brian. When we discussed this matter before, the Minister argued that our concern was not valid because Sir Brian had said in his report that the Government could go further. In my view, it is quite the leap to say of our criticisms that specific proposals lack the authority that Ministers claim because they were not recommended by Sir Brian that the proposals would in fact, in some way, be recommended by him anyway.
While I think it is a weak point, it is probably stronger in relation to the decision by the Government to set the test for removing the jury from a Crown court trial at a sentence length of three years rather than Sir Brian’s recommendation of two years. I do not know whether he would support that—one might think he would have said so if he did—but there are what we might call matters on the continuum, where the prospect of Sir Brian’s suggestion of going further on a continuum of sentence length as the test is somewhat understandable. I do not think that argument is at all viable in relation to the measures relating to amendment 19.
There is a distinct, what we might call, category difference between the recommendation to have a judge sit alone and to have a judge sit with two magistrates. We have discussed a number of the drawbacks of a judge sitting alone compared with having a jury. I will take them in turn. First, there is the question of bias—of concerns raised in relation to different outcomes, for example for women or ethnic minorities. We have discussed this before, but I want to draw attention again to the comments of Geoffrey Robertson KC. He said:
“The determination, by 12 citizens of evidence tested by prosecution and defence, is a surer guide to the right result, reflecting common sense and common values, than the personal view of a judge”.
He also said:
“A diverse jury, usually with a few representatives of ethnic communities, serves as some guarantee of fairness and non-discrimination in dispensing justice.”
We have been leaning very heavily on the Bar, but the Criminal Law Solicitors Association says:
“Jurors, drawn from all elements of society, take jury service very seriously. Our Vice-Chair sat on a jury last year and saw his fellow jurors, without exception, treat the process with the gravity and respect that it deserves. Limiting jury trials reduces public engagement in the process and weakens democratic participation in criminal justice.”
Sir Brian was not the only person tasked to consider in detail proposals for a reform of the courts who has settled on similar views about the decision to reduce jury trials, which, as I have said, we do not support. They have also agreed that a judge with two magistrates is the way to do it. Lord Justice Auld’s 2001 independent review of the criminal courts in England and Wales recommended the creation of a new district division, with a unified criminal court structure designed to handle either-way cases that were too serious for the magistrates but did not require, in his view, a full jury trial. He proposed that the court would consist of a professional judge sitting with two experienced magistrates. He said in his report that there is a
“middle-range of cases that do not warrant the cumbersome and expensive fact-finding exercise of a trial by judge and jury, but which are sufficiently serious or difficult, or their outcome is of such consequence to the public or defendant, to merit a combination of professional and lay judges”.
That was a specific choice to say that there was merit in lay as well as professional judges taking part.
Dr Mullan
I rise to speak in support of my amendment 44 and related amendments, which brings us to consider the issue of reallocation in more detail for the first time. It was touched on briefly this morning in the discussion about allocation, but there are distinct differences in the processes.
We must remind ourselves what the allocation process will be initially through proposed new sections 74A to D of the Senior Courts Act 1981. My understanding is that the reallocation provisions are intended to operate in the following way. First:
“The court must, at the prescribed time or times, determine”
in accordance with proposed new section 74A
“whether the trial is to be conducted with or without a jury.”
It is important to note that “prescribed time” is not defined in the Bill, but would be covered by the existing provisions in sections 84 to 87 of the Senior Courts Act, which refer to prescribed matters being specified in the criminal procedure rules. The explanatory note does not appear to provide any further detail on what the criminal procedure rules are likely to prescribe in terms of timing, so it would be helpful if the Minister could tell us what she expects that to be.
Whatever the prescribed time is defined to be, the court must say that the trial is to be conducted with a jury if either the offence, or any of the offences, is triable only on indictment or if the court considers that the defendant, if convicted of the offence for which they are to be tried, would be likely to receive a sentence of imprisonment or detention of more than three years. In any other case, the trial is to be conducted without a jury.
We have covered this initial decision at some length, but the proposed legislation also says that if a trial is to be conducted without a jury but there is a relevant change of circumstances, the court may—and in some cases must—reallocate the case to a jury trial. A relevant change of circumstances is defined in proposed new section 74B(8), and will occur if either the defendants to be tried, or the offences for which they are to be tried, have changed since the court’s last determination on allocation, or it appears to the court that there is new evidence that would or might affect whether the condition in proposed new section 74A is met, and that condition relates to a likely sentence of imprisonment of more than three years.
This is something to which we must give close consideration. The Bill does not define the term “new evidence”, and I am not aware of it being defined elsewhere in legislation. We can look to the explanatory notes to try to better understand what is meant here. In paragraph 206, the notes say:
“This is intended to capture significant new material indicating that the offending is more serious, or less serious, than originally understood. It is not intended to require the court to redo the full allocation exercise each time new evidence emerges, but simply to note where new material might alter the earlier likely-sentence assessment so as to justify reconsideration under section 74B.”
The explanatory notes are helpful, but we must remember that they are not legislation and that the courts are more likely to seek to interpret differently what may or may not be said in an explanatory note from something that is given clear direction in legislation.
The explanatory notes actually leave us with not just one but two new terms. Again, as far as I am aware, “significant new material” is not defined in legislation; there is certainly no case law for it in these specific circumstances, as these courts have never operated before. I do not think we can know in practice how it would be obvious that something amounted to new evidence for the purposes of proposed new section 74B(8); the Bill, as I have said, is silent on this point.
Do we have to assume that that will become a matter of judicial interpretation or discretion? I think we do. It might be evidence that was not already set out in the initial details of the prosecution case or in a defence statement. While the explanatory notes say they do not expect this process to be done on a rolling basis, I assume that the prosecution and defence would be able to invite the judge to consider whether evidence amounts to “new evidence” whenever it was brought to the attention of the court as part of the general conduct of the trial. Again, this is not specified in the Bill, but it is certainly not ruled out.
If there has been a relevant change of circumstances meaning that the case involves an indictable-only offence—for example, if new evidence emerges that results in a charge of theft being recharged as robbery, or a charge of sexual assault recharged as rape—the judge must reallocate it to a jury trial. To be clear, that is in relation to offence-based things. If there has been a relevant change of circumstances, but the aforementioned process does not apply—for example, if there is new evidence that means a custodial sentence of more than three years is likely—the judge may reallocate that to a jury trial. The use of “may” is important, because may is not must.
I draw Members’ attention to the wording of the initial process of allocation. Perhaps to the frustration of some, I took the time to read it, because it is important. The initial wording on allocation with regard to sentence times is “must”—if the court thinks a sentence of more than three years is likely, it must allocate a jury trial—but as I pointed out, on reallocation the court simply “may” reallocate. I hope it is immediately obvious to Government Members that that is a less stringent test, which creates an inherent unfairness.
At the outset, if a judge thinks that a defendant or accused is likely to receive three years, that jury trial is guaranteed. Let us remind ourselves that the Government accept that that is a benefit or a right—although they do not accept it is an absolute right—if the outcome is potentially a sentence of more than three years, yet some people will not get that benefit, even though the Government accept that it is desirable, because the Bill states that the judge has discretion to continue conducting the trial without a jury despite the relevant change of circumstances.
The judge has that discretion if any of the following applies. First, they have that discretion if the condition in proposed new section 74A—a likely custodial sentence of more than three years—is not met in relation to the defendant. Secondly, and this is the important bit, in proposed new section 74B(3)(b), they have that discretion if
“the court considers that it would not be appropriate to reallocate the trial”,
taking into account the matters set out in proposed new section 74C(6) and (7). Those include representations by the prosecution and defence; the extent to which the new likely sentence differs from the three-year threshold sentence; the interests of the alleged victim; the desirability of avoiding the need for witnesses to give evidence again; any delay to proceedings; any actual or potential wasted costs; the effect of reallocation on other court business; and any other prescribed matter set out in the criminal procedure rules.
Thirdly, the judge has that discretion if, as proposed new section 74B(3)(c) states,
“the prosecution and the defendant or defendants each consent to the trial being conducted without a jury.”
Therefore, if the defendant is happy to carry on without a jury, even though they risk the higher sentence, the trial can continue—and similarly for the prosecution.
Some of those examples set out in proposed new section 74C(6) and (7) could legitimately deny a defendant a right that they would otherwise have had if the evidence had been available at the start of a trial. It could be something that has nothing to do with them—for example, a witness might not give the same evidence in their statement as they do at trial. Another example is the effect of reallocation on other court business—so simply because it would be challenging for the court to allocate or reallocate the case, a right that the Government deliberately set out to preserve for those people at initial allocation could not be exercised at that point. Again, in essence, those are all new legal tests.
We have a whole range of factors, many of them subjective matters that must be weighed, rather than objective ones. They may all be factors that we might reasonably agree should be given weight, such as—to go back to some of the factors—the interests of the alleged victim. If an alleged victim has had a traumatic experience of giving evidence, it is not unreasonable for people to consider that. That does not mean, however, that it will not lead to circumstances in which a defendant is substantially disadvantaged.
Let us take, for example, a case related to injury. In a case of assault occasioning actual bodily harm, the sentencing range for this offence, triable either way, can include a sentence of up to four years. That is a good example of where we might see a change in circumstances, based on the evolving medical consequences of an alleged assault.
A more concrete and simple example than a medical injury that might evolve from an assault, which is complex, is a person who is originally on trial for grievous bodily harm or attempted murder, but the victim dies during the trial or at a much later date, which can happen, and the person can be retried for a further offence. We know that the medical consequences can take time to materialise and can make a material difference to the charge. There are other borderline cases where the likely sentence at the point of the initial allocation decision was considered to be just under three years.
To give another example, the sentencing guidelines for the most serious harm or culpability form of theft suggest a starting point sentence of three years and six months, with a suggested range of two years and six months to six years. That is absolutely within the scope of not being allocated a jury trial, but if the medical consequences were to evolve, that would change and push it to a sentence of up to six years, which would require a jury trial.
As the hon. Member for Amber Valley, with her expertise and experience of the CPS, pointed out in relation to things that already happen in a magistrates court, we know that magistrates have to undertake this sort of intellectual exercise. They must be mindful that if the circumstances change, the trial must move to the Crown court. I understand that is quite unusual, however, and as we have talked about before, the stakes are likely—not always—to be lower when we are talking about a potentially much wider gap in possible sentence length.
Strangely, this may be an example of something that magistrates do but, as I understand it, Crown court judges do not normally do; Crown court judges do not have to have it constantly in their mind throughout a trial whether their view has changed on the likely sentencing outcome. As I have alluded to, the legislation therefore risks creating a whole raft of legal challenges over potentially many years until there is a settled common law understanding of how all the different measures interact, and until higher courts set out the methodical tests and boundaries that are absent from it.
The obvious test will arise when someone does actually end up receiving a longer sentence, and the obvious challenge will be that the judge should have realised and reallocated the case because of something considered materially new. That will be highly arguable. Let us say, for example, a complainant, when giving evidence, identifies a more profound psychological impact of a crime on them that was apparent from the initial statements disclosed—something that is to some extent subjective. The judge might listen to the evidence being given and not consider it to be materially different from the statements on which they based their initial summation, but I can absolutely imagine a defendant and their legal representatives feeling that a witness did say something that indicated something materially different. That is another more complex decision than the one made by the magistrates courts in a different way.
As we have heard again and again, although magistrates court trials can be long, they are often shorter. Weighing up the impact of restarting that trial, of discounting the work that had been done and of re-sending it to another court, is very different from making that decision after weeks and weeks of a Crown court trial.
There is also another risk in terms of public confidence in the process. As we have touched on before in relation to the initial allocation and sentencing, the judge will have already made a decision and given a view on initial allocation. There would be a risk that a defendant feels that their right to a jury trial, if the circumstances are such that they would have been concerned that the sentence would be greater than three years, might inhibit a judge from reallocating in the way that they would have ordinarily wanted to.
As we have covered, the judge will be able to pass that higher sentence, which is another important difference with the magistrates, who, as I have talked about before, are constrained in their ability to go beyond that initial judgment. There will be no constraints, so it would be perfectly possible for a judge who had an initial view to end up passing a sentence much higher than they had anticipated and much higher than the defendant was advised would be the likely outcome. Again, that would give serious impetus for a defendant and their legal representatives to make the point that the judge had erred in their reallocation.
It is not just a question of the fair thing to do. I explained earlier in relation to other allocations that I do not think it is the fair thing to do, but again it is a matter of efficiency and process. If we end up with repeated appeals over, as I have said, many different factors that will all individually need to be clarified in case law, that will again take up the time and energy of court staff, and particularly legal representatives, who work between all the different courts in a way that judges do not.
Amendment 44 would help to balance that by opening up the widest possible interpretation of whether a reallocation is the right thing to do. We think talking about it in the interests of justice will give the maximum possible room to defendants to be sure that the trial they receive without a jury, and the decision taken to deny them a jury, are as fair as they possibly could be.
Sarah Sackman
What circumstances does the hon. Member envisage would trigger that reallocation? The allocation has been made—it has been allocated to a jury trial. She is right that it has not yet commenced, which is the point I was dealing with, but the circumstances we are dealing with here fall into two broad categories: first, where the nature of the offences in question changes; or secondly, where new evidence comes into play mid-trial, which is so material as to lead to an application to reallocate, or even to a judge of their own volition deciding that the seriousness necessitates reallocation. I cannot see, where it has been allocated already but has not yet commenced, why that would be triggered. But maybe I have missed something.
Dr Mullan
I talked about how the medical picture can evolve in a worsening situation. We can also get that situation in reverse. For example, in A&E, the A&E consultant’s interpretation of an X-ray, to determine whether someone has broken a bone, can be a key fact in deciding the classification. But when that goes to a radiologist, sometimes two or three weeks later, they have that more expert view. This happens quite regularly: they review the X-ray, CT scan or whatever it might be and say, “Actually, no, there isn’t a fracture here.” That would then drop down the injury to a different category. In that intervening period, which could be a matter of weeks, there would be a change to the nature of the charge.
Sarah Sackman
What I am seeking to be clear on is that when we are talking about the trial being commenced—a perfectly good question—I am saying that if the trial has started and there has been the first day, and then for whatever reason there is an adjournment, in those circumstances we would never see such a trial reallocated to the bench division.
I suppose there may be circumstances in which there is an adjournment and new evidence could come to light, or a new offence or a new charge could be added to the indictment or withdrawn, which I suppose might trigger a reallocation decision, but the trial itself would not have commenced. In those circumstances, I think I am right in saying that it is possible that it might get reallocated at that point. I will come back to the hon. Member for Chichester if anything I have said on that point is inaccurate.
Amendment 44 would not add substantive protections, because the defendant in every Crown court trial, irrespective of whether it is Crown court bench division or before a jury, would be considered to receive a fair trial. The mode of trial itself has no bearing on the fundamental fairness of the proceedings.
We have designed the test for mode-of-trial allocation in clause 3 to ensure that the relevant interests are properly balanced by the court. Parties are given the opportunity to make representations on allocation and the court must have regard to the interests of victims when deciding whether reallocation would be appropriate.
I make one final point. The hon. Member for Bexhill and Battle raised a concern about rolling applications throughout the course of a trial. I think the Government’s view is that that is unlikely to be the case, because while new evidence is a feature of trials commonly, it is not all that often that such new evidence alters the fundamental seriousness of the case to such an extent that it would engage the tests that are here. I am not sure that it is quite the concern that the hon. Member suggests, and I urge him to not press amendment 44 to a Division.
Dr Mullan
I beg to move amendment 42, in clause 3, page 9, line 23, leave out subsection (4) and insert—
“(4) Where a court has determined in accordance with section 74A that a trial is to be conducted without a jury, the court cannot pass a sentence of imprisonment or detention of more than three years on a person convicted of an offence.
(4A) Where a person is convicted of an offence and the court considers that the appropriate sentence is more than three years’ imprisonment or detention, the court must refer the case for retrial by jury.”
This amendment prevents a judge sitting alone from sentencing a defendant to more than three years in prison, and requires that if this is the likely sentence, the case must be remitted for trial by jury.
It is my pleasure to speak in support of amendment 42, tabled in my name, which really drives at the heart of the question of fairness in relation to this new system. It would prevent a judge, sitting alone, from sentencing a defendant to more than three years in prison, and requires that, if that is the likely sentence, the case must be remitted for trial. Again, related to the important points I made earlier, it also introduces the element of “must”.
Again, we have to revisit the process of allocation; triable either-way offences will be allocated on the basis of sentence length. That is the important part for us to consider here. The Government have agreed that the suitable manner in which to allocate offences to trial with or without a jury is based on sentence length. We can only conclude, therefore, that the Minister accepts that the possible consequence—the possible time in prison—is intrinsically linked to the fairness, reasonableness, desirability or however the Minister might want to describe it of remaining with a jury trial.
In this case, if criminals—because they will have been convicted at this point, we can say criminals rather than defendants—ended up with a sentence of more than three years, they would have a reasonable basis on which to say that their treatment was not in keeping with the Government’s own decisions about what would be preferable in relation to fairness. Let us be clear: I spend a lot of time working with victims and campaigning for longer sentences for offenders, and I think that, across the board and for many decades, our sentencing regime for convicted criminals has been insufficiently punitive and has given insufficiently long sentences. But that does not mean that I do not think that there is a fair and proper way of going about that.
I agree with the Government that sentence length is inherently related to fairness in regard to whether someone gets a Crown court trial with or without a jury—although, in my view, it should always be a jury trial—but a convicted criminal now will look at this and say that he has a sentence greater than he otherwise should have expected to get, and that, if the judge had anticipated correctly that sentence at the outset, he would have had a jury trial. That would be his reasonable conclusion.
Linsey Farnsworth
On that point, what are the hon. Member’s thoughts in relation to a magistrates court where a magistrate has made a decision that a case is suitable for summary trial but then they have the opportunity—or the right if you like—to commit somebody for sentencing at the Crown court if the offence turns out to be more serious than had originally been envisaged? Actually, the safeguard for the expectation of the defendant is dealt with at an early stage—at the allocation stage—when the defendant is told of the decision that the case will stay in the magistrates court, but they could be committed in due course to sentencing in the Crown court.
Dr Mullan
That goes straight to the point we discussed earlier about why it is important to separate the two, because in this scenario it is the same person all the way through. Ultimately, the sentencing process ends up being separate to the people who decide whether or not someone is guilty, and they will have decided the mode of trial, as well.
Linsey Farnsworth
Can I also just mention Newton hearings? A defendant has pleaded guilty but does not accept all the allegations that the prosecution’s case sets out—perhaps the most serious aggravating feature. Then, there is a Newton hearing, at which a judge sits and decides what the factual situation is and goes on to sentence as well. There is already precedent in the Crown court for a judge to hear evidence, make a decision based on the evidence, and pass sentence. I wonder what the hon. Gentleman’s view on that is.
Dr Mullan
This is a great opportunity for me to learn and understand an element of the system that I did not understand—I know about it, rather than understand it.
I will go back to the point that we have made repeatedly. We are designing a system from scratch here. We have the opportunity to do things exactly as we want to. We do not have to be forced into replicating other elements of the wider system; we can design this system as we best think it should operate. I think that the best thing in this scenario, in which we are starting from scratch, would be to say to somebody that they should be able to derive the benefit of having a jury trial if the case is of a nature that the Government themselves agree would typically enjoy the benefits of a jury trial. This is just inherently a fairness question.
That is why we have replicated the process—in a positive way—in a magistrates court. The decision is the decision that has been made; the court cannot go above it. That is because we say that in a magistrates court, if someone seeks to go above that court, that is not the right place to do that; it would not be fair and reasonable. We are making a similar point here in relation to mode of trial, for jury trial.
We think that the amendment is sensible, reasonable, balanced and does not prevent the Government from undertaking their reforms; it is not what could possibly be described as a wrecking amendment. I hope that the Government will reflect on that and accept the amendment.
Joe Robertson
I echo the points made by the shadow Minister. The issue here is where sentences may go above three years. A sentence of three years or more is fairly significant. The crime, of course, will match the sentence; no one is suggesting that the sentence is inappropriate in these cases—someone has been convicted. However, the issue is that the trial—the fact of innocence or guilt—will have been decided by a judge. Without raking over too much old ground, the point in a jury trial is that on more serious offences, jury decides innocence or guilt.
What we have here, without the amendment, is a back-door way for a judge to decide what turns out to be a more serious case than perhaps had originally been thought, because the sentence passed is more than three years. As I understand it, it is not the intention of the Government to capture more cases of that serious nature than they had originally intended would be decided by a judge. They themselves are not arguing that jury trials do not have a place in this country for a great number of cases—unfortunately, not enough after this legislation.
The hon. Member for Rugby made the point in an earlier sitting that other Governments have adjusted the threshold, notwithstanding our disagreement over what is being proposed in this legislation. Clearly, the issue with this provision, if it remains unamended, is that more serious crimes, with a sentence of more than three years, will inadvertently get caught.
I cannot quite understand why the Minister will not accept the amendment, but I am sure she will address that. Once again, it would not, in any material way, move away from what she is trying to achieve with the legislation, which is tackling the backlog of Crown court cases. Again, that intention that is perfectly well meant. The amendment would not, in any way, get rid of her primary intent to get rid of either-way offences so that they are not heard by a jury. Notwithstanding the fact that I do not agree with her on that, the amendment would not defeat what she is trying to do there. Effectively, what it would do is close a loophole.
I invite the Minister to address that point about instances where a judge decides, on their own without a jury, that a case is of significant seriousness—and that may mean complexity that was not apparent at the outset but became apparent during the trial—that he or she wishes to pass a sentence of more than three years. Three years is a serious length of time for someone to be locked up and deprived of their liberty. Wherever we think that the threshold should sit, I think that we all agree that jury trials have a role in this country for more serious crimes.
If the threshold can rise above three years through that avenue, how high a threshold is the Minister willing to tolerate? In how many cases is she willing to tolerate that apparent loophole? Maybe she does not see it as a loophole. Maybe there is purpose behind it. If there is, perhaps she can explain why it is important enough to risk even her principle by having more serious crimes—those with a sentence over three years—potentially being heard without a jury. Again, I reiterate that I disagree with the primary disapplication of jury trials for what are now either-way offences. That is not what this is about; this is about the Bill doing something more than the Government may wish to do. I invite the Minister to address that in some detail.
Sarah Sackman
I will seek, as best I can, to clarify why judges sitting alone should have full Crown court sentencing powers consistent with the recommendations of the independent review of criminal courts. That review made clear that both judge-only trials—where those are prescribed—and a Crown court bench division must operate with the same judicial powers as jury trials if they are to function effectively in practice. As I have said, allocation is an early indicative assessment. It cannot and must not predetermine the sentence, which must be based on the facts proven at trial. The amendment would reverse that principle, effectively allowing an initial assessment allocation to cap the sentence ultimately imposed, or else force a retrial before a jury. That would compound a delay which, as anyone who has listened to victims’ testimonies to the Committee knows, we can ill afford.
Under proposed new section 74A, the allocation decision—whether the case should be tried by a judge alone or by judge and jury—will rely on a structured application of the existing sentencing guidelines. As I have said, we are not introducing an unfamiliar exercise, and we have full confidence that judges will apply the guidelines consistently to determine the appropriate mode of trial based on their assessment of the seriousness of the case.
In practice, the allocation decision in the Crown court will be tied firmly to the facts of the case, in much the same way as in the magistrates court. That means that in the vast majority of cases it is unlikely that a case will result in a sentence far beyond what was anticipated at the point of allocation. However, I recognise that in a small proportion of cases where evidence evolves and a case becomes more serious, appropriate safeguards must be, and will be under the Bill, put in place. That is precisely why the Bill includes provision for a reallocation where circumstances change. Where an indictable-only offence is added to the case, it must always be reallocated as a jury trial.
Where seriousness increases just enough to push the likely sentence in a case above three years, the judges must consider reallocation to jury trail. We have looked at the factors set out in the Bill, including potential delays following reallocation, any disruption to victims or wasted costs, and the effects on other trials. It is therefore essential that judges sitting alone retain the full sentencing powers of the Crown court. Unlimited sentencing powers do not expand the jurisdiction of judge-alone trials, but they ensure that once a case has been properly tried, the sentence imposed reflects the facts as found.
Against that backdrop, amendment 42 would require cases to be retried because the sentence ultimately exceeded the earlier indicative assessment. As I have said, that would introduce significant delay into the system, requiring cases to be heard twice and directly undermining the purpose of these reforms, which is to reduce the dreadful delays. The principle that the sentence must reflect the facts is important, and for that reason it is necessary that judges retain the full sentencing powers. To do otherwise would risk distorting outcomes and create unnecessary duplication and delay in proceedings, thereby undermining confidence in the system. For that reason, the Government cannot support the amendment.
Dr Mullan
I want to pick out a couple of points. The Minister has criticised the risk of retrials, and we have made several points about how other elements in the Bill will increase that risk through successful appeals and so on. I accept the Minister’s point that it is unlikely that these things will happen, but this is not so much about whether someone was expecting three years and ends up with three years and two months, for example, as the fact that there is no control of it at all.
The Minister is right that there is a reallocation process. We have debated the flaws in that, which are pertinent, but clearly the Government do not think that the reallocation process is perfect, otherwise they would not mind a cap. If they thought that the reallocation approach would manage all these scenarios, they would not oppose a cap. They want to oppose it because they accept that the reallocation process will not be perfect. Someone might be expecting a three-year sentence—I gave an example earlier, I think of theft—but could end up with a six-year sentence, double what they expected to receive. That is many years above what the Government have recognised as a suitable and acceptable threshold on which to make these decisions. It would be inherently unjust, and those sorts of situations would warrant retrial.
Sarah Sackman
Just on that point—as unlikely and rare a scenario as I anticipate it would be—would the hon. Member accept that that sentencing decision could be subject to appeal?
Dr Mullan
Yes, but the question is not whether the six-year sentence is reasonable, it is whether the mode of trial in reaching that sentence was fair. The Government agree that the preferable mode of trial in all other scenarios that could lead to a sentence of six years is a trial with a jury. Yet we could have people expecting a three-year sentence and ending up with a six-year one, which is far from the Government’s test of reasonableness for the mode of trial.
I understand the point about weighing probabilities with the smaller gap, but we are faced with the question of allowing either no gaps or very big gaps. If we are forced to choose, I will continue to say that we support amendment 42, because it is important that people do not end up in that situation. I do not know the limit; I have given an example of three to six years, but there could be even wider gaps among the offences that we are considering. That would not be reasonable, and, therefore this safeguard is important.
Question put, That the amendment be made.