Courts and Tribunals Bill (Sixth sitting)
Kieran Mullan Excerpts(2 days, 15 hours ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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.
Courts and Tribunals Bill (Fifth sitting)
Kieran Mullan Excerpts(2 days, 15 hours ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 (Fourth sitting)
Kieran Mullan Excerpts(4 days, 15 hours ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Sarah Sackman
We have an obligation to guarantee a fair trial. I believe that wherever cases are heard in this system, they will be heard fairly. It will be a different mode of trial, but it will be heard fairly. Ultimately, it comes back to a fundamental difference between us. The view has been taken by those on the Opposition Benches that, somehow, what one gets in a magistrates court—where 90% of our trials are heard—is less fair. That is in front of not just lay magistrates but district judges hearing cases. Some of the most serious civil matters such as the decisions around care proceedings—to remove children from their parents’ care—are determined by single judges. I believe that a single judge can determine cases fairly and impartially. That is the system that exists in different jurisdictions, including our own, and it works well and fairly. It is not unfair for somebody to be allocated a trial type based on the seriousness of the offence they are alleged to have committed.
Dr Kieran Mullan (Bexhill and Battle) (Con)
The Minister is to some extent varying her argument. Earlier in the debate, she accepted that these things are a matter of gravity and of weighing up, and inherent in saying that is that the Minister must accept that there are less and more fair ways of doing things. The point the Minister is now making is that it is an equally fair system. If the Crown court backlogs are the absolute priority, why not therefore make all trials magistrates trials? If there is no difference between the two, and the Minister cannot accept the point, made by the Opposition and other Members, that there is a difference in their value, why not extend the magistrates’ sentencing powers and let everything be done by magistrates?
Sarah Sackman
We do think that jury trials are a cornerstone of British justice. It is not inconsistent to say that the most serious cases—all cases in which the likely sentence is above three years—should be heard at a jury trial. If we turn the hon. Gentleman’s argument on its head, everybody should get a jury trial, because otherwise they are not getting a fair trial. We do not think that.
As a society, we have for centuries made a threshold choice about who can access a jury trial. We are having a debate now about where that threshold should be drawn. Our proposals strike the right balance between the rights of the different participants in the system. We think they secure fairness because of the other safeguards in the system—the giving of reasons by a judge in the Crown court bench division and the transparency measures we are bringing in—but we also think they are proportionate use of court resources. The hon. Members for Reigate and for Bexhill and Battle both made the point that somebody getting a criminal conviction in the magistrates court, which may attract a six-month custodial sentence or less, is a pretty serious thing in itself. For some people, that may mean, reputationally, that they can no longer pursue their career. These things are serious.
I do not think any of us is saying that the status quo, whereby magistrates and district judges hear those cases, is not inherently fair. It is fair. What is not fair is the status quo whereby the scale of the delays is detrimental to the quality of justice we are able to provide to the public, whether in jury trials, judge-only trials or magistrates trials. The delays are such that they are undermining law enforcement, the quality and recency of the evidence, and people’s memories. It is undermining the calibre of the justice that the system is able to mete out. Dealing with the delays is not just an efficiency question; it is inherent to the question of fairness itself.
We keep repeating the old adage that justice delayed is justice denied. It is a powerful one because there is truth in it: the older the vintage of the cases, the less fair they become. That is not fair on anybody. It is not fair on the defendant on remand or fair on the complainant. It is not fair on the witness, who may have just had the misfortune of passing by a criminal incident, and is being asked to recall what happened a year or two years ago, when they would like to move on with their lives. When it comes to fairness, timeliness is critical.
Dr Mullan
The Minister is somewhat chopping and changing her arguments. I can stand up and say that if budgets and resources were no issue, I would prefer every case to go to a jury trial. I can say that; I can be consistent that that is my preference, because I think they are, in some respects, a superior form of justice to magistrates courts. That is not to say that magistrates courts are totally inadequate or unable to do the job, but they are less preferable than a jury trial, and we have covered many of the reasons why.
On the one hand, the Minister says that she agrees with that to some extent, that these are weighing exercises and that there is a preference. But when she is pointed to a specific element of unfairness that that creates, she reverts to saying, “Well, all these things are equal and there is no difference between the two.” That is an inconsistency in her position that we do not have on the Opposition Benches. We are very clear: our preference would be for the superior jury trial in every circumstance, but we accept that that is not always practical; we are fighting the curtailment of that and the further shifting of the dial in the other direction.
What is the Minister’s view? Are these things absolutely equal? Is a magistrates trial just the same as a jury trial? Does she have no issues with that? If so, why not go further, as the Secretary of State wanted to, in respect of five years, for example? Or does the Minister accept that a magistrates court is, in some respects, inferior and less fair, and that there is therefore a rational argument for people to say that they would rather be in the Crown court?
Sarah Sackman
We know that people would rather be in the Crown court because, when they have a right to elect, some opt for that. I have acknowledged that fact, but this is not a debating contest. There is an air of unreality about the way the hon. Member put his arguments. He says that if he could choose, everyone would get a jury trial. I do not know of any jurisdiction in the world that has that. We know what the Conservative party would have done. It had the chance, over 14 years, to run the justice system, and we are now living with the consequences: prisons running hot, courts with record backlogs, legal aid gutted and 40% of our magistrates courts closed.
Since the Crown court was created in 1971, there has been no substantial criminal justice reform, despite broad societal changes, technological changes and the fact that, as the independent review of the criminal courts pointed out, the profile of crime and criminal evidence in this country has changed, which means that Crown court trials now take twice as long as they did in 2000, just because forensic and CCTV evidence makes them more complex. We would expect a public service to evolve with that societal change. We have always made that threshold decision; it is a decision that is taken in other common-law jurisdictions as well. The idea that we will talk in hypotheticals about being absolutist, and about having all jury trials or not—
Sarah Sackman
No, it has a total air of unreality. If we look at the current system, I think we all agree that it is not working for any participant in the system. It cannot be when there is a backlog of 80,000 and above and we hear the stories we are all familiar with, which hon. Members have put to me, whether they are supportive or not, about the delays in the system, the creaking courts and the more than 1,000 trials that did not go ahead on the scheduled day because of an absence of either a prosecuting or a defence barrister. We are trying to rectify that with our investment in the workforce.
We have to make decisions about the system as we find it, not as we might dream it to be in some academic seminar. The fact is that we have all made a choice, because 90% of trials in this country are already undertaken by magistrates. As I said, I do not think anyone is seriously suggesting that those are not fair. The state’s obligation is to guarantee a fair trial. Whether those trials are heard by lay magistrates or by a district judge, they uphold principles of natural justice. I do not understand why anyone would say that the trials that take place day in, day out in our magistrates courts do not uphold principles of natural justice and article 6 of the European convention on human rights—which, by the way, includes the obligation to conduct criminal trials within a reasonable time. The importance of timeliness, and the inherent importance of timeliness to a fair hearing, is enshrined explicitly in article 6.
The state’s obligation is to ensure that fair trial—it is not a jury trial in every case—and we have always made that threshold decision. The removal of a defendant’s ability to insist on their choice of trial venue does not change that. The right to elect does not exist under the Scottish legal system, for example, and no one would seriously suggest that the Scottish legal system offends the principles of natural justice. Our justice system is rightly respected around the world, irrespective of where a case is heard.
Dr Mullan
I will take this opportunity to address some of the points raised in this morning’s debate, and to expand on areas that were points of contention. There was healthy debate about the record of the issues that were inherited by this Government. One reason why this Government have got so quickly into so much difficulty is the way they seek to frame the challenges they inherited, and how the Labour party framed those challenges during the election. That applies across several issues, including inflation and global economic shocks. [Interruption.] This is relevant because the Bill is part of a consistent practice and approach—to reassure hon. Members, I will not spend long on this point. In opposition, the Labour party clearly sought to blame the Conservative Government entirely for those issues, but now that the same issues are affecting the Labour Government, they do not get credibility in saying the issues are broader and outside their control. Labour said the doctors’ strikes were entirely our fault—
The Chair
Order. I remind the Opposition spokesperson that his comments must be relevant to the amendment under consideration.
Dr Mullan
I will move on to a more directly relevant point.
When we talk about the challenges in the courts and what was inherited, the Government would do themselves a much greater service and reflect accurately the debate and the challenges if they more regularly sought to speak fairly and freely about what actually happened in relation to Crown court backlogs, and the reason why the amendment was tabled. Prior to the pandemic, Crown court backlogs were lower under the Conservative Government than they were under the previous Labour Government.
Every time the Government highlight the real challenges with the Crown court backlogs and omit to recognise that the historically unprecedented level of the backlogs was almost entirely driven by the covid pandemic, they do a disservice to the complexity and reality of what went on in our court service. Every time they talk in isolation about a lack of investment in the period of 14 years, they fail to understand that Members on Labour’s side, who have been highly critical of the Conservative party, actually recognise that over many decades, prior to the Conservative Government, as other Labour Members said on Second Reading, there has been a lack of investment—an investment lower than I would want—in our court service.
I have been clear since taking up the position of shadow Justice Minister that I would have wanted a higher degree of protection for the justice system than that in the decisions taken at the time. The Opposition have not been afraid to say that or to own the responsibility for it, as we have in a number of other areas where we wish things had been done differently. I have explained that, for me, courts and the criminal justice system is one of the reasons—if not the main reason—why I sought election to Parliament, so I am always going to say that we should invest more strongly in the justice system.
Just last week, I did an interview on Times Radio about our work on whole-life orders, after I successfully appealed a case in which someone had not got a whole-life order; the Court of Appeal gave them a whole-life order. The presenter asked me why we do not have more whole-life orders, and why more is not done about it. I explained that, in reality, as a politician I might have my priorities, and other individual MPs might have their own priorities, but inevitably the decisions of the Treasury, what goes into the manifesto and what the Government commit to are a matter of the public’s priorities. As someone who campaigns strongly on behalf of victims of crime, I understand the enormous impact that crime has. I also must accept that most people, most of the time, are not victims of any crime, let alone serious crimes, so convincing the public at large to vote for parties that will invest seriously in and improve our criminal justice system is difficult. In polling, the criminal justice system is not at the top of the list of the public’s priorities, as much as I might wish it were.
The Government and Labour Members would do better to more accurately reflect the history of what has happened in the criminal justice system, and particularly in relation to Crown court backlogs. I do not recall that when Labour were last in government—I have looked through Hansard for this—Labour MPs got up and complained about Crown court backlogs that were higher than those we delivered in Government, prior to the pandemic. That is the reality of what happened: the pandemic had an unprecedented impact on our criminal justice system. The vast majority of the historically unprecedented situation that we are dealing with is directly related to the pandemic. If, every time they talked about this, hon. Members made that point, the Opposition would be able to take their criticisms of our record more seriously.
To pick up on some remarks, I welcome those of the hon. Member for Brighton Pavilion, who drew attention to the issue that we considered in the evidence hearings about the not guilty pleas that some of us are uncomfortable with. As I said, I strongly objected to some of those. On the Colston statue, behind the scenes I was one of the MPs lobbying for the Attorney General to do as she did—to seek clarification from the Court of Appeal to stop that from happening again.
I very much resent some of those things—but is that not the point? We have a system that allows for that, that allows for MPs to have a view, to be unhappy or to criticise something that a judge sitting on their own would say, “Look, this is obvious. This is absolutely a guilty—no question”, but a jury might find a different outcome for reasons of their own. I have to admit that, before this debate and the Bill coming before the House, I had only ever viewed this issue through the prism of frustration, wanting to understand how it works and how we might even curtail this, supporting the Court of Appeal declaratory ruling on that judgment. This whole process, however, has made me reflect on the broader role of juries in civil liberties and in curtailing the power of the state.
Even if Parliament wants something done in a particular way, a jury of ordinary people retains the right—as frustrating as that might be, but it has been clarified repeatedly in case law—to say, “Look, we understand all the facts, and we might even agree privately that the law has been broken, but for this reason or that we are going to offer that as not guilty.” Our system has been asked explicitly whether that is something that should happen, and we have been told explicitly that that is something that our system deliberately holds on to. On the balancing, every time we shift more cases into the magistrates court, again we are minimising that, reducing it as an important part of what we might call an informal constitutional settlement.
I welcome the remarks by the Lib Dem spokesperson, the hon. Member for Chichester, who helpfully drew our attention to the gaps between what Sir Brian recommended and what the Government are doing. That is another major hole in the Government’s argument. The example that the hon. Member articulated was about his suggestion of two years going back to magistrates ending up as the Government’s three years. We will also discuss the issue of a Crown court bench without any magistrates, so in two major ways, the Government are not doing what Sir Brian recommended.
In evidence, the Minister even put to some of the witnesses from the Bar Council:
“What do you know that Sir Brian…does not?”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 43, Q81.]
That question, I am afraid, can be turned right back around to the Minister, who is also not doing what Sir Brian recommended. What does she know that Sir Brian does not? If it is so important that we listen carefully to Sir Brian, because he has done such an exhaustive piece of work and put so much time into developing detailed, specific and concrete proposals, why are the Government happy just to disregard the elements of that that they do not agree with?
We cannot do the same. We cannot say, “Actually, we don’t think the evidence is there. We don’t think the case has been made”, but the Government can. They want to say that about a fundamental element—this is not a minor element—which is whether a judge sits on their own or with two magistrates. That is a major difference. In fact, the most radical element of the proposals is the judge sitting on their own in those types of cases, but the Government do not agree with what Sir Brian said about it.
Sarah Sackman
Does the hon. Gentleman recognise that Sir Brian, in his report, gave scope for the Government to go further than his recommendation, should we need to? Can he comment on why no Conservative MP went to Sir Brian when he offered to engage with them today?
Dr Mullan
The Minister is factually incorrect. The engagement session was not today, but yesterday. I met Sir Brian, my hon. Friend the Member for West Suffolk (Nick Timothy) met Sir Brian, and Conservative shadow Ministers met Sir Brian during his review. It is completely incorrect for the Minister to suggest that we did not engage with him. We were happy to agree, as he was, that we would continue talking to him, so I am afraid that the Minister has failed slightly with her intervention. She might want to send a note to ask whoever gave her that information to try harder next time.
Sarah Sackman
What about what Sir Brian said in his report? Is it not right that the report specifically gives the Government scope to go further than his recommendations?
Dr Mullan
It absolutely does—but the Minister is not doing what Sir Brian recommended. She is rejecting his approach, but when we want to reject his approach, she asks how we can possibly question what Sir Brian has to say on such matters. That is the reality of what is happening. It is a consistent flaw that the Government cannot undo.
My hon. Friend the Member for Reigate did a good job of illustrating the nature and seriousness of so many of the offences we are considering. She also sought a firm answer on, for example, the modelling of the increases in guilty pleas that we might expect owing to the increase in the length of suspended sentences.
We had a debate about, “Well, it’s in the explanatory notes, not in the impact assessment,” as if that was just immaterial. The Minister and her officials will know very well that there is a big difference between what goes into an impact assessment, given the statutory nature of that document and everything that the Government have to do before they put things into it, and what a Government can put out in what is effectively a non-statutory document. They could really put anything in there that they wanted to.
Of course we would expect the Government to be fair, frank and honest, but the reason why we have impact assessments—and the reason why, when Labour Members were in opposition, they hammered the Conservatives repeatedly about what did or did not go into an impact assessment in particular, as opposed to broader documents—is that it has a statutory footing and is important in its own way. I think my hon. Friend the Member for Reigate did a good job of illustrating what was absent from that impact assessment.
We talked about the Crown Prosecution Service, and there was an attempt to say that what a senior member of the management said, one would assume—
Linsey Farnsworth (Amber Valley) (Lab)
On that point, will the hon. Member give way?
Dr Mullan
I will finish the sentence, and then I will.
Of course, we would assume that they had done that in consultation with other leadership figures, so we might reasonably say that they speak on behalf of the senior leadership team of the CPS, but there was an attempt to say that their views can somehow be taken to represent the views of the many people who work across the CPS—
Linsey Farnsworth
Mr Guest was giving evidence to the Justice Committee in his capacity on behalf of the CPS. He was talking with authority from the CPS, on the organisation’s behalf, on its official policy position. It is fair to say that the CPS, as Tom Guest said, is in favour of the structural reform we are making, is it not?
Dr Mullan
Nothing that I have said is in disagreement with that. The point we are making is about whether that reflects the wider, individual views of all the people who work for the CPS. I am not aware that the CPS, for example, undertook an internal staff survey. Does the hon. Lady want to intervene and tell me whether the CPS asked people about that? I am not aware that the CPS undertook an internal consultation exercise. Did the CPS consult all the many people who work for it and say, “This is our position. This is what we think”? How did it come to its view about these decisions?
The hon. Lady is very welcome to intervene and talk about how the CPS formulated its position in the way that she sought to talk about it, covering all the different people who work for the CPS. As I explained to her, I know there are people who work for the CPS who do not agree. She may well know people who do agree, but some do not agree. I took the liberty of re-contacting one of the people who works for the CPS over the Committee’s lunch break. Their—quite rightly—anonymous and private view, which they are entitled to hold and express to me is that, as a prosecutor, we should all be very worried when a state prosecutor wants to do something that further curtails the rights of defendants. I might not express it in those terms, but that is how someone from the CPS expressed it.
The hon. Lady is absolutely right to say that the formal policy position of the organisation of the CPS is as she described, but she was not right to refer to it as being meaningful because it covers lots and lots of people who have had no formal engagement whatsoever in helping the CPS to come to that conclusion. It is a bit like the Minister getting up and saying, “The Ministry of Justice is a big organisation and we all think this is what should happen.” The Minister knows that her civil servants are asked to produce policy; what they actually think about it and whether they agree with it is totally irrelevant, and she would never use the size of the organisation to add weight to the strength of her argument, because it is nonsense. As I pointed out when His Majesty’s Courts and Tribunals Service gave evidence, people are not allowed to give their individual views; it is a policy position that the organisation has to hold.
Tristan Osborne (Chatham and Aylesford) (Lab)
One could make that point about any organisation, including those that support the hon. Member’s argument: they are, broadly speaking, representative bodies and they cannot speak for everyone within the organisation. In that case, do we accept any representation from anyone, on the basis that one person in any organisation might not agree with their management team? We have to have a basis of evidence and an organisational view that comes through that organisation is its relevant viewpoint. Would he agree with that?
Dr Mullan
There is a fundamental difference between the CPS and, for example, the Criminal Bar Association, which is a representative organisation—its job is to represent its members. The CPS is not a representative organisation of its employees. The hon. Gentleman is comparing totally different things. I will absolutely listen to organisations whose job it is to advocate for the people they are representing. That is not the job of the CPS. The job of the CPS is to prosecute. The CPS has a view and a policy position that does not represent its staff.
Jess Brown-Fuller
Does the shadow Minister agree that to try to compare the CPS with, for example, the Criminal Bar Association is nonsense because the CPS is a non-ministerial Department? As the hon. Member has pointed out, the policy position is to agree with structural reform because they know that the system is broken. None of us is disagreeing with that today or disagreeing that there is a problem in the system that needs fixing. Of course, the CPS would say that we absolutely need to do something. However, it is not its role as a non-ministerial Department to say that it thinks that the Minister has got it wrong. What it is saying in broadbrush terms is that it agrees that something needs to be done. In contrast, the Criminal Bar Association actually surveyed all its members, because it is an independent organisation, and 88% of them came back and said that they were opposed to the reforms. They are two totally different things.
Dr Mullan
I did raise an eyebrow at the level of evidence that the individual from the CPS chose to give in relation to commenting on Government policy in that way. I have spoken to previous Justice Ministers, and that was unprecedented. Again, if we want to give validity to its views, can Government Members point to a single time that the CPS has got up and directly opposed the policy of the Government of the day? It does not do that. It is all very well and good to champion it when it agrees with this particular point, but it is nonsense if it has never disagreed with Government policy because it is a non-departmental Government body. Again, the hon. Member for Chatham and Aylesford is perfectly entitled to raise it, but to try to give it the weight and character of the other organisations that are lobbying, campaigning and representing does not hold up to much scrutiny—as we have seen.
Rebecca Paul
To build on the excellent points made by my hon. Friend and the hon. Member for Chichester, does this not fundamentally come down to the fact that the CPS is made up of civil servants? They are not meant to tell the Minister that they are wrong or right. That is not their job. I feel those on the Government Benches are misunderstanding the role of civil servants.
Dr Mullan
Yes, and I will be writing to the CPS about that, because commenting in the way that it has was extremely unusual. I would hope that it has a very clear explanation as to how it has been able to formulate that position, because, of course, the CPS is just articulating a particular viewpoint. As has happened, when a Government-funded agency does that, it gives it a certain weight that is not necessarily appropriate. That is why ordinarily non-departmental Government bodies are not expected to do that sort of thing. It is something we should think about more carefully.
We also talked this morning about public confidence among members of minority communities, as was raised by the hon. Member for Birmingham Erdington. The group JUSTICE has put forward its views and concerns about this. It notes that the equality statement for the Bill also notes that black, older and female defendants historically elect for a Crown court trial at higher rates. In 2022, 26% of black defendants elected for a Crown court trial, compared with 15% of white defendants—a very significant gap. In 2017, the right hon. Member for Tottenham (Mr Lammy) also concluded that many individuals from ethnic minorities opted for trial in the Crown court whenever possible, as they had more confidence in the fairness of jury trials compared with magistrates.
As the Bill is written by the person advocating for those changes, we should consider what the right hon. Member said very carefully. He said:
“Juries are a success story of our justice system. Rigorous analysis shows that, on average, juries— including all white juries—do not deliver different results for BAME and White defendants. The lesson is that juries are representative of local populations—and must deliberate as a group, leaving no hiding place for bias or discrimination.”
Would Government Members put it to the right hon. Member for Tottenham that he was in any way denigrating magistrates in making that point, or that he was saying magistrate trials were not fair? I do not recall any Labour MP making that point at the time that his report was published. The review found that BAME defendants often had lower confidence in the fairness of magistrates courts and, as I have said, therefore opted for a trial in the Crown courts. Because of that lack of trust, BAME defendants were also thought to be more likely to plead not guilty in magistrates court and push for a Crown court trial, which resulted in them missing out on the one-third sentencing reduction offered by early guilty pleas. These things have real-world consequences for the individuals concerned.
While the report found that BAME defendants were not disadvantaged compared with white counterparts at the jury trial stage, they faced harsher outcomes elsewhere in the system. I want to quote again from the Lammy review:
“The way that juries make decisions is key to this. Juries comprise 12 people, representative of the local population. When a jury retires to make a decision, its members must consider the evidence, discuss the case and seek to persuade one another if necessary. This debate and deliberation acts as a filter for prejudice—to persuade other jurors, people must justify their position. In the final decision, power is also never concentrated in the hands of one individual.”
What did the right hon. Member have to say about magistrates courts? He said:
“This positive story about the jury system is not matched by such a clear-cut story for magistrates’ verdicts. The relative rate analysis…commissioned for this review found that decisions were broadly proportionate for BAME boys and girls. However, there were some disparities for adult verdicts that require further analysis and investigation. In particular, there were some worrying disparities for BAME women.”
As a table in the report showed,
“of those women tried at Magistrates’ Court, Black women, Asian women, Mixed ethnic women and Chinese/Other women were all more likely to be convicted than White women.”
Again, would Government Members say that the right hon. Member was therefore advocating for the abolition of magistrates hearings? Of course not, and neither are we. We are simply making clear the trade-offs for such an unprecedented shift in their use—for such a significant curtailment of the use of the system of juries that is so well regarded and trusted by our constituents—and are arguing that the case has not been made.
JUSTICE also raised concerns about unrepresented defendants. My hon. Friend the Member for Reigate made that point in relation to legal aid. The equality statement for the Bill acknowledges that if more cases are dealt with in the magistrates court, a greater proportion of defendants may be ineligible for legal aid compared than if their case were heard in the Crown court. That is because the income eligibility threshold in the magistrates court of £22,325 is significantly lower than that in the Crown court, where it is £37,500.
An increase in unrepresented defendants risks undermining fairness. For example, defendants may receive harsher sentences if they do not know how to effectively offer mitigation. This is especially concerning where expanded magistrates’ sentencing powers will leave defendants facing trials for offences carrying a sentence of up to two years unrepresented.
Additionally, the Institute for Government has highlighted that unrepresented defendants in magistrates courts are also likely to prolong hearings and therefore erode any of the anticipated efficiency gains. It estimates that, for every additional hour in the average length of a trial, estimated savings will fall by more than one percentage point.
I also want to address the issue of youth courts, which was debated this morning. Government Members posited the fact that these courts hear more serious cases such as rape as some form of proof that curtailing jury trials in a similar adult case could be acceptable. That ignores the fact that each court and each setting has its own balances and goals and its own weighing exercise, with different considerations, where different conclusions will be reached.
Youth court trials generally do not have a jury because they are designed to be less formal and more focused on rehabilitation than punishment, with cases heard by specially trained youth magistrates rather than ordinary magistrates alongside district judges. These courts prioritise specialist knowledge and child-friendly proceedings over public proceedings, and aim to ensure that a child understands what is happening, with less intimidating atmospheres than adult Crown courts. Youth courts are closed to the public, which is not possible with a jury trial.
This is the trade-off we make, but these are trade-offs that, for decades and decades, we have not considered suitable in adult courts. We have considered the extra, additional vulnerabilities and the need to focus on rehabilitation in youth courts, so we carry out a different balancing exercise and make a different trade-off. That does not mean that we can read that across to an adult court without considering the benefits, the conclusions and the additional factors that we seek to mitigate—that we can just say, “Well you can just do the same for adults as you do in a youth court.” Different scenarios have different tests.
We also know that the choice of trial by jury is not the only reason some defendants elect for trial by jury. In fact, there are important procedural differences in the two courts. An application to dismiss is a legal request made by the defence to have some or all of the charges thrown out before the trial begins. This application is available only in Crown court cases and applies to indictable offences or cases that have been sent from the magistrates court to the Crown court.
An application to dismiss in the Crown court is a pre-trial request to throw out charges, according to rule 3.2 of the Criminal Procedure Rules 2025, and earlier versions. It must be made in writing after the prosecution serves evidence but before arraignment, arguing that a reasonable jury could not convict.
It is true that formal applications to dismiss are relatively rare compared with other ways in which a case might end, mainly because the legal bar for success is very high. While specific numbers for rule 3.2 applications are not always separated in basic reports, wider court data gives a clear picture of how often cases are dropped or stopped before a full trial. In recent quarters, up to late 2025, the figures available to me show that approximately 17% to 18% of defendants in for-trial cases had their cases dropped by the prosecution or stopped by the court before a verdict.
Why are formal dismissals that are available in the Crown court less common? The Crown Prosecution Service knows it is legally required to keep cases under constant review. If the evidence is truly weak enough to be dismissed by a judge, the CPS will usually discontinue the case or offer no evidence to avoid a wasted hearing. We know that is a very common occurrence. Are we confident that we know how much of that happens because of the availability of that legal test? The CPS knows that if it does not do that and if it does proceed in an inappropriate manner, it will face the legal test that it does not face in the magistrates court. If the Government have access to evidence that can reassure us, they should present it, but I could not find anything that leads me to be confident that cases dropped in the Crown court might proceed in the magistrates court, and perhaps they should not.
The provision of disclosure in the Crown court is much more robust. We have all seen cases where trials collapse because of exchanges related to disclosure. Crown court disclosure is strictly governed by the Criminal Procedure and Investigations Act 1996, which requires formal staged disclosure. In magistrates courts, disclosure is often more streamlined, focusing on the initial details of the prosecution case. In the Crown court, a defence statement is mandatory. In the magistrates court, a defence statement is generally voluntary, although recommended. Once the prosecution discloses unused material, the defence has 28 days in the Crown court to serve a defence statement. In the magistrates court, the time limit is 14 days.
Crown court prosecutors must provide schedules of all unused material. Magistrates courts typically use, as I have said, streamlined disclosure certificates, which are not as extensive. We know there are problems with disclosure at times. The independent review of disclosure and fraud offences was officially announced by the UK Government on 23 October. Led by Jonathan Fisher KC, the review was commissioned as part of the fraud strategy launched in May 2023 to address the digital age challenges in criminal cases. It is the first of its kind since the 1986 Roskill report. Jonathan is a leading King’s counsel in financial crime, proceeds of crime, fraud and tax cases. He has been a visiting professor in practice at the London School of Economics and he holds a PhD, which was awarded by the LSE following his research into money laundering cases and the relationship between the obligation to report suspicious activity and corporate rights. Clearly, this is someone who speaks with a great deal of authority and experience in relation to the operation of criminal law.
Part one of the review, on disclosure, was published on 21 March 2025. It is helpful for us to reflect on it, given some of the exchanges we have had during debates. As I have said, Government Members sought to dismiss any suggestion that the magistrates courts were less fair or a less appropriate place to hold a hearing and suggested that everything is rosy in the magistrates court, so there is no possible reason why someone might not want to go to a magistrates court. They wanted to frame this as a purely binary choice between fair and unfair.
As I pointed out to the Minister, every time we point out some of the unfairnesses, the Minister says that everything is fair and it is all fine. But then when we ask the Minister to articulate why, if everything in the magistrates courts is just fine and dandy, we therefore keep jury trials for more serious cases, there is literally no rational or logical conclusion. The Minister says this is not a debating chamber, but the Minister is presenting a Bill with underlying political and legal principles, and if she cannot come up with a consistent set of those principles as a basis on which to articulate the arguments she is making, that is not a great advert for the Bill.
I can happily say that I think Scotland’s legal system is less fair, and I think the magistrates courts are less fair. I am perfectly happy to say that, but that does not mean that I want to get rid of them or curtail them. It is just part of the reality, and I am consistent in that regard. So let us talk about what Jonathan Fisher can do to assist us.
Sarah Sackman
I have never sought to sugar-coat the situation in our courts. Does the hon. Member think that one of the reasons why magistrates courts are struggling in parts of the country is because the number of magistrates halved under the last Government?
Dr Mullan
Yes, absolutely, which is why I said earlier that I regret some of the changes undertaken while we were in government. I have made it very clear that justice and all the issues we are debating are a real political priority for me. That is why, in large part, I wanted to become an MP. Members will rarely hear me disagreeing with arguments that need to be made in government about which Department gets priority. I absolutely welcome the success that the Minister and her colleagues have had in making arguments for resources.
But again, that is no answer to the public about what the Government are doing now. They are in charge. There is a constant harking back to decisions we took, but the Government have to stand on their own merits. The point we have made again and again is not that we should not do something. It is not that there is not a problem. Our argument is purely that we do not think this is the way to do it, and we do not think the trade-offs that the Government are setting out and what they are asking us to lose will translate into those benefits.
Matt Bishop (Forest of Dean) (Lab)
I am listening intently to what the hon. Gentleman is saying. How do the disclosure aspects he is talking about link to the amendment we are discussing?
Dr Mullan
Those aspects link directly, because I am discussing particular disclosure issues occurring in the magistrates court. As I will go on to explain, these are specific problems that Jonathan Fisher has identified as being a particular problem in the magistrates court rather than the Crown court—yet we are going to send more cases to the magistrates court.
We have to be clear eyed about exactly what we are doing. The issue is relevant because every time Opposition Members say, “Things are not the same in the magistrates court. You do not get quite as fair a trial; it is not comparable to a jury trial”, Government Members say, “That’s nonsense—they are all the same. If you believe that, get rid of magistrates courts.” It is important to understand this clear example of where the magistrates courts are delivering a less fair service than the Crown courts. I will carry on.
HMCTS data suggests that in 2023, a total of 311 magistrates court cases were ineffective because the prosecution explicitly failed to disclose unused material. In the same year, 746 magistrates court cases were deemed ineffective due to defence disclosure problems. Between October 2014 and September 2023, disclosure accounted for almost 7% of all ineffective trials in magistrates courts.
The issue is also extremely important from a victims’ perspective. The debate today has been about the defendants, but if we take the argument that in some of these cases the defendant would have been found guilty, who loses out the most if we send a case to the magistrates court and it collapses because of particular challenges with disclosure? The victim loses out, because it is over and done with and they do not have the opportunity to recorrect.
Alex McIntyre
I want to correct the record. This morning, I understood the Conservative party position to be that we are not allowed to call them victims at that point.
Dr Mullan
Sometimes I wish that Government Members would pay more attention to what is being said. I mentioned “some” cases and “some” of these people. That is the difference in how we tackle these issues. We do not get up and talk about “every victim” and I specifically did not say that. I went out of my way to say that among hundreds and hundreds of accusations, some people would inevitably be guilty. That is completely different from what, some of the time, some Government Members have been doing: assuming that everyone who claims to be a victim is one. That is very particularly what I did not do.
I finish this particular point with something else Jonathan Fisher said:
“Notwithstanding the vital need for further quantitative analysis, I am not convinced that, regarding the Crown’s duties, the disclosure regime is working as intended in the magistrates’ courts.”
That is an extremely serious consideration. He is not convinced that the disclosure regime is working as intended in the magistrates courts; he did not make that point about the Crown courts. I ask Government Members to reflect on that and then say there is no rational reason why some people might be concerned about more cases—and more complex, serious cases—being heard in the magistrates court. What that report alone says about our magistrates courts gives plenty of people a rational and reasonable basis to say that what happens in magistrates courts is less fair and potentially less effective than what happens in the Crown court. Government Members would do well to concede that important point.
I finish with a pretty extraordinary exchange with the Minister about the figures on the backlogs themselves. Let us remind ourselves of the central premise and argument: we all agree that the backlogs are too high. The Government say that they cannot be brought down to historic levels without the erosion of our jury trial rights. Opponents of the Bill are varied in their views, but perhaps most common is the view that other things can, and should, be done instead. 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.
Sarah Sackman
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.
Dr Mullan
Clearly, if new receipts into the Crown court are coming down, we will not immediately see a reduction in the backlogs—we need time for the trials to come down. I am glad that the Minister has admitted that new receipts are coming down, because that is an extremely important insight into whether the backlogs themselves may then come down at a later stage. We also have to note that this potential improvement in the backlogs is happening without the introduction of changes to jury trials.
Sarah Sackman
Does the hon. Gentleman recognise that the central insight of the independent review—independent of Government—was that, absent reform, these backlogs will not come down? To confirm the point, the so-called do-nothing option includes the maximum investment of uncapped sitting days, so it already reflects the impact we can have on the backlogs with maximum investment. If that is the case, does he accept that nothing short of reform, efficiency and investment will bring the backlogs down?
Dr Mullan
As we heard from the Criminal Bar Association and others during the evidence sessions, we do not accept that the Government have sufficiently justified that modelling. Modelling is not perfect, and the IFG could not be clearer that the modelling used to justify the Government’s case, as the Minister has just done, is based on highly uncertain assumptions. If the Minister could actually produce some rock-solid modelling, so there was absolutely no way to dispute it, we would be in a different place. However, the Minister cannot produce modelling that even the IFG does not think is full of uncertainties.
Sarah Sackman
Does the hon. Gentleman accept that the very same sentence that he is quoting, which admits the fact that there is a degree of uncertainty—we are, of course, looking at a forecast—also accepts that our modelling assumptions, which the IFG itself pursued, are sound? In the same sentence, it recognises that the approach we have taken is sound, and as sound as it can be. What is not sound is doing nothing.
Dr Mullan
Let me think of a directly relevant example that shows just how important and meaningful that distinction is, in a way that the Minister is seeking to blur. We all follow political polls that are based on models. Those models are probably all sound, but they are all different and produce completely different results based on the assumptions—on voter turnout, for example.
I might speak to some Government Members and say, “Look, we have this poll that shows you’re going to smash it at the next election. You’re under no threat from Reform or the Lib Dems.” However, I might also say, “As part of that poll, we have assumed that 99.9% of the people who intend to vote Labour are going to come out and vote Labour.” Would Government Members then say, “Oh, great news! Absolutely, I’m going to smash the next election.” No. They would say, “Well, that assumption is fundamentally flawed.” The model may be correct, including the factors being considered, but inserting the assumptions into a model is what actually counts. That is what actually determines the outcomes, and the IFG is very clear about that.
Again, the Government are asking us to erode the important right to a jury trial, based on assumptions that the IFG says are highly uncertain. The Opposition’s position is quite clear. What is not uncertain is the fact that improving prisoner transport will help deliver improvements; that improving case management will deliver outcomes, which nobody disputes; or that improving access to early legal advice by reforming legal aid will help reduce the backlogs.
There is a whole slew of things that are not uncertain. Surely, the sensible and balanced thing to do is to get those things done first. Then, if the Government show that they really have done everything they possibly can, there could be a different discussion with MPs and the public about why they had chosen to erode and curtail an historic right that we have had for hundreds of years.
The reason why the data from the CBA is so important—the Minister accepts this—is that it is showing an improvement into the input. If the input is improving, then in theory the output will improve; I have not heard the Minister say that we will not get an improvement in the outlook at some point. If fewer cases are coming in, then surely there will be less of a backlog down the line. That is happening already—prior to the changes on jury trials and, more importantly, prior to all the other things having embedded in, as the Minister has herself admitted.
We have not even touched prison transport and we are getting an improvement; we have not even touched legal aid and we are getting an improvement—I could go on and on. The point was powerfully illustrated, in terms of priorities, by the representative from the HMCTS. I asked him about his priorities for reducing the backlogs and improving the situation. Jury trials did not even come close to the list of things that he thought were important. Surely we need to deliver on those elements successfully and consistently, but we all know that that is going to be extremely hard work.
I made the point to the Minister this morning. I do not doubt her sincerity on this, but being a Minister is about driving through major reform and change while having to manage day-to-day improvement in the system. She might think this an unfair comment, but I asked her this morning about what was happening with the inputs into the Crown courts. She is the Minister in charge of our backlogs, but when I asked for a clear answer about some of the statistics in regional variation, the Minister did not have them, did not know or was not able to answer. She had to go away at lunch time to answer a question about those key statistics. That is a bit like me asking the Health Secretary what is happening with regional variation in waiting times and the Health Secretary saying, “Well, I know overall waiting times are going down, but I don’t know the answer to that. I will have to go away and look and see what is happening in different parts of the country.” It is a giveaway.
Sarah Sackman
Given that the hon. Gentleman is besmirching my reputation, I should say that the equivalent is saying, “Health Secretary, what are the waiting list times in the UK—and what is the snapshot in Romford infirmary right now? I won’t afford you the opportunity to go away and get that figure over the break.” I think the hon. Gentleman is being a little unfair.
Dr Mullan
I do not think I am being the least bit unfair. I did not even ask the Minister to give a list or specifics; I just asked whether the statistics were going down in some parts of the country. That is a very broad and open question. I am flabbergasted that the Minister did not know whether things were improving, given that the main priority of the Bill is to get Crown court backlogs down. The Minister did not even know a topline figure.
One of the thrusts of the argument of the very many people who oppose the Bill is that if the good things happening in some areas were replicated everywhere, we would not have this issue. At the heart of some of the criticisms of the Government’s approach is the idea that we must understand that some places are getting this right. For the Minister not to know whether things are already getting better reflects poorly on the credibility of the case that this is the only way to do things. If it were me, I would want to know on a daily basis whether we were delivering this downward trend in some places. I would want to visit every single one of those places and drive forward that change.
The modelling is also important. The Government will already have modelled the period that we are in right now. I have to assume that the Government modelling gave some view as to whether there would be ups and downs in particular places. If we now know there are downward trends in particular places and the Government modelling did not account for that, that adds further reinforcement to the idea that we cannot rely on the Government modelling to make these decisions. It may well have got wrong the period that we are in right now, which makes things very uncertain when we want to look further in the future.
We are going to revisit these issues. As I said this morning, it is extremely important for the Government to be absolutely transparent at later stages about what is going on in the places getting lower receipts, as the Minister now accepts is happening. Why is that happening only in some places? What can be done to make sure it happens in other places? What does the Government expect would happen to the backlog if that was replicated across the country? As I have said, and as I will keep repeating, we are clear that the status quo is absolutely unacceptable for victims. We are clear about the role we played in that, and some Labour Members in the wider debate have accepted the role that Labour Governments, over the decades, have played in getting us to this place.
We want something to be done about the situation, but we also care about jury trial rights. I remind Government Members that there are victims’ representative groups that also do not want jury trial rights to be eroded. The idea that the issue is all about victims on the one side and opponents on the other is completely untrue—a point that the Minister accepted. To go down this particular road and erode our jury trial rights, the Government need a watertight case for why it is absolutely necessary, but they have completely failed to articulate, in any credible way, why this is the only thing they could possibly do and that there is nothing else they could do.
Sarah Sackman
The clause sits alongside clause 1 and ensures that the new allocation framework will operate coherently following the removal of the right to elect. It deals specifically with the written guilty plea route, which has not yet been commenced, created by the Judicial Review and Courts Act 2022. Clause 1 removes a defendant’s choice to select the mode of trial in the Crown court in either-way offences. Once that choice is removed, it is necessary to make consequential amendments to the written allocation procedure so that it does not preserve a right that no longer exists in open court.
Clause 2 amends section 17ZB of the Magistrates’ Courts Act 1980, which governs the procedure following a written indication of a guilty plea. Although those provisions have not been commenced, it is important that they are amended now, so that when they are brought into force, they operate consistently with the new allocation framework. Section 17ZB allows the defendant or the prosecution to object to the case being sent to the Crown court for conviction and sentencing where the magistrates court considers that its sentencing powers would be insufficient. Such an objection would prevent the court from sending the case unless the objection is withdrawn or a guilty plea is entered at an in-person hearing in the usual way.
Clause 2 will remove that ability to object. Instead, the magistrates court will have to invite written representations from both parties on whether its sentencing powers would be adequate and, having considered those representations, decide whether to send the case to the Crown court under section 51 of the Crime and Disorder Act 1998. That means that when a defendant engages with allocation in writing, the magistrates court will determine venue in the same way as it would at an in-person hearing.
As with clause 1, clause 2 does not remove existing safeguards. Both the prosecution and the defence will continue to be able to make representations, ensuring that the court has all the relevant information before making its decision. That will preserve fairness and ensure that all relevant factors, including seriousness, complexity and sentencing powers, are properly considered by the court before determining venue.
Taken together, clauses 1 and 2 will ensure that cases that are suitable for summary trial or sentence can be retained in the magistrates court, while cases that require Crown court sentencing are sent there efficiently, without unnecessary hearings. I commend clause 2 to the Committee.
Dr Mullan
I thank the Minister for explaining the measures as she understands them. I do not mind admitting that some of the explanations in the explanatory notes and the information from the Library have left us with questions about how the measure will operate. The clause refers to written indication of guilty plea, and the explanatory notes refer to this as being available to those who are pleading guilty. I do not mind admitting that the Minister is much more directly experienced with the legal system than I am, as are other members of the Committee, but I do not quite understand the idea of someone choosing the mode of trial after they have pleaded guilty. If they have indicated at the outset that they are going to plead guilty, will the hearing not be about sentencing, rather than trial? My remarks will be focused on that.
The obvious thing to ask is this. If this measure is purely about sentencing, why would anyone who has pleaded guilty ever elect to have a sentencing hearing in the Crown court, where they know there could be a higher sentence, rather than in the magistrates court, where they know there will be a cap on what sentence can be passed? Our arguments have been about the process of the trial itself, and I have touched on some of the elements other than sentencing. That is not to say that there may not be perfectly reasonable grounds for someone to object if they think the decision made was wrong. Again, these are people who have admitted guilt, so we can clearly say they are criminals. Some of them may have spurious reasons for wanting to approach the system in that way, by seeking not to go to the Crown court, but they may also legitimately think that the decision was wrong or not fair. They may well have legal advice that the decision was not consistent with the sentencing guidelines, and that they would have been expected to have stayed in the magistrates court. As we discussed this morning, a significant number of the appeals in the magistrates court are successful, although I accept that those who seek an appeal are in the minority. We all accept that the magistrates courts make mistakes.
It is important that we understand how this measure will work in practice. Can the Minister tell us how many people are objecting and using the mechanism at the moment? That is also confusing, because the explanatory note says that these provisions are not yet in place, but what is her projection of the difference this will make? What will be its material impact? The provisions have not been commenced, but the Government and civil servants must have a view about how objections would have operated and what they would have achieved, versus the right to make representations. What is the difference between those two mechanisms? A guilty person cannot insist on being sentenced in a magistrates court. If the magistrates think that someone is going to hit a higher tariff and should go to Crown court, the person can, in theory, object, as I understand it, but they cannot stop it. Before we vote on the clause, I want the Minister to explain in detail exactly how this will be different from what the Government envisioned was going to happen.
Is there a risk in theory that more things will go to the Crown court? If the Government are saying, “You can’t object,” they must think that at the minute, in theory—if the provisions were to be commenced—some people would be kept in the magistrates court inappropriately. The Government must want more of those people to go the Crown court. If they thought everyone was just going to stick in the magistrates court anyway, why would they be doing it?
Jess Brown-Fuller
The shadow Minister is clearly articulating his confusion, which I share. I believe that clause 2 is at odds with the rest of clauses 1 to 8, because it does the opposite of what those other clauses are trying to achieve. Let us say that, on the advice of legal counsel, Person A has been told that, if they plead guilty, they will most likely receive a suspended sentence. They are keen to move on with their life and therefore they are willing to enter a guilty plea, but they are then told by the magistrates that they would like their case to be heard in the Crown court, which could carry a higher tariff. At the moment, they have the right to object to their case being taken over to the Crown court, because the conditions in which they pleaded guilty have changed. By removing that right, we are making sure that people do not get to say whether they want their case heard in the Crown court, which could push more cases into the Crown court. That makes clause 2 feel at odds with the rest of the clauses, which are trying to remove things from the Crown court. Does the shadow Minister agree?
Dr Mullan
I do. In the other direction, the Institute for Government highlights that
“only around 30% of sentences of 6-12 months were handed out by magistrates”
since their sentencing powers increased from six months to 12 months. That indicates a hesitation in the magistrates courts to award higher sentences. If the Government have the objective of sending these cases to the Crown court, but there is evidence to suggest that magistrates hesitate when it comes to higher sentences, ultimately this measure will not change that.
I want to be clear, because I think that there is some confusion about what is written in the Bill and the explanatory notes. The explanatory notes say:
“The amendments remove the ability of the defendant or the prosecutor to object to the case being sent to the Crown Court for sentence”.
We are talking about sentencing, but that is not exactly what the Minister said or what the Bill seems to say. Before we are asked to vote in support of the clause, the Government need to clear this up, so that we can all understand what exactly this change will achieve that is different in theory from what was going to happen.
I appreciate that this is challenging because we are discussing changes that have never been put into operation, but that is not really an excuse. The Government should have a view of how things were going to operate, and therefore must have formed a view about how they want them to operate differently as a result of this change.
Sarah Sackman
I appreciate the complexity. We are slightly in the realm of the hypothetical. To be absolutely clear, the purpose of clause 2 is to align the uncommenced written plea and allocation provisions with the wider reforms in clause 1, which removes the right to elect. There is no intention at the current time to revisit the online plea and allocation system, so these written procedures have not been commenced, and they are not going to be commenced. The envisaged impact of those measures, which were part of the previous Government’s Judicial Review and Courts Act 2022, albeit that they have not been commenced, will have been assessed at that time. We have no intention to commence them.
Joe Robertson
I should clarify that I no longer get paid on an hourly rate—I am paid by the taxpayer, as the hon. Gentleman is, on the same terms.
I do not reject the argument about reform. I accept that. Sir Brian Leveson was very clear that the complexity of cases, including cases heard in the Crown court by a jury, has increased over the years, but he also said that he does not blame jury trials for the backlog. That is the difference between us. I do not see that the only option available to the Government is to end the election opportunity or the powers and rights of a defendant to select trial by jury or by magistrate.
Dr Mullan
The point was made very powerfully in the evidence sessions that we have this idea that we have to take a lot of time to explain all this complex stuff to a jury, and that we can just skip through it in a rapid way with a judge.
I visited courts and spoke to judges when I was on the Justice Committee. They themselves admit that they are not exactly whizz-kids when it comes to things like artificial intelligence or IT and the sort of things that might be over-complicating cases now. They are not going to be able to just whizz through stuff. They are going to need the same level of detail, explanation and time that a jury would need. Do we think defendants will be satisfied with a prosecution case that does not go through the same level of detail with a judge that it would have to go through with a jury?
We will end up with a whole new world of criminal appeals based on the idea that the judge did not adequately hear the evidence and that his summing up did not adequately address the reasons for his decisions. That could end up taking more time for judges. I am open to the idea that, potentially, we may possibly get some savings, but the case is so flimsy and weak that we cannot be expected to move forward on that basis when there are other things we could do.
Joe Robertson
I agree with my hon. Friend. There is a slightly strange implication that while jury trials have become more complex over time, due to technology and techniques for examining evidence—obviously a good thing—that somehow does not apply if the trial is in the magistrates court. That is the alarm bell, is it not? Magistrates courts are more capable of dealing with things in summary and they will not examine a case in as much detail and may miss things. That is not a criticism of magistrates and of the magistrates court—that is the system we have designed. When the consequences are less serious and the crime is less serious, the examination and process may be naturally less thorough.
That is not a reason to bring cases that today would be heard in the Crown court into the magistrates court without the defendant’s having the right to choose. My hon. Friend articulates that point exactly and represents the concerns that most people have.
In the evidence session, we heard that the current court backlog is the result of many things, including lack of investment—the Minister talked today about the lack of investment, and the issues with recruitment and retention, and criticised the previous Government for caps on sitting days—and the effect of the covid pandemic. The Minister and I might disagree on the extent to which that is true, but none of those things should be cured by abolishing jury trials.
Joe Robertson
I accept the Minister’s statement to the extent that it is a statement of fact of people’s evidence. To address the issue of taking cases out of one court to give to another, however: that is a small minority of cases. Indeed, that is the argument that the Government make, certainly to their own Back Benchers when they are worried about the Back-Bench view of their proposals: “Don’t worry. Most cases are heard in the magistrates court anyway, and only a tiny percentage are being taken out of the Crown court.” The Government cannot have the argument both ways: when speaking to their own Back Benchers, “Don’t worry, this is not going to be meaningful,” and when speaking to the rest of the world about tackling backlogs, saying that that in itself is a meaningful change.
Dr Mullan
What does not bear up to much scrutiny is for the Minister to say, “Actually, the package as a whole will deliver these major reforms,” because we do not object to the whole package. We can say, “Go ahead and do the things that we do not object to, and we will have violent agreement at later stages in the Bill.” The Government cannot hold over us the fact that we agree with some of the package, because that is not a reason for us to go along with the things that we do not like. That is part of the whole process of parliamentary scrutiny of a Bill—the bits that we do or do not like. We are not removed from commenting positively about the good stuff because we disagree with other things.
Joe Robertson
Once again, I agree with the shadow Minister. If the Government genuinely want to address the backlog, the answer lies in the other 179 recommendations that Sir Brian Leveson made: increasing sitting days, which the Government have now done in a modest way; improving case management; removing unnecessary adjournments; rebuilding or restructuring the legal profession; sustainable legal aid; and a whole list of recommendations. None of that requires the—in my view—brutal axe taken against the right of election to jury trial. In fact, it is more than a brutal axe; jury trial is just being denied for an either-way offence That is being restricted to the magistrates court.
I now turn to what I consider the most serious argument against the clause, which is an uncomfortable one. It has been referred to already in debate on clause 1, but it is relevant to clause 2 as well. The venue to which all relevant cases we are discussing will be diverted is the magistrates court, which produces—measurably, consistently and substantially—worse outcomes for defendants from ethnic minority backgrounds than the Crown court does. That is not a theoretical proposition or a position of advocacy; it is the statistical evidence and the documented finding of researchers, legal practitioners and analysis drawing on Government data. Magistrates courts convict people from ethnic minority backgrounds at rates up to 40% higher than non-ethnic minority defendants. That is not a small or debatable margin; it is a significant consideration.
Albeit to make a slightly different point, the hon. Member for Chichester mentioned that if someone has a clean record they would be tried in the magistrates court, but if they had a list of previous offences they may be tried on the same facts in the Crown court, where conviction rates are lower. Having previous convictions therefore puts someone into a venue with lower conviction rates. I am not suggesting that the Government have designed the measure in that way, but it is plainly nonsense and unacceptable for that to come about. The Government need to look at that and amend it.
Charities have responded to Sir Brian’s proposals and have provided further granular data. In Crown court jury trials, people of colour are convicted at broadly similar rates to their white counterparts. It is not hard to see why: the principle—the whole idea—behind a decision being made by someone’s peers is that juries reflect the country in which we live. Magistrates and professional judges are predominantly whiter, more educated and more male than the population at large. It is interesting to note, but is not a criticism, that this Committee itself is evidently less diverse not only than juries, but than the population at large. A defendant from an ethnic minority background charged with an either-way offence this week has a right to elect. They can look at the data—thank goodness we have that data—take advice from their legal representatives and make a considered choice about the venue in which they believe they are most likely to receive fair treatment. I would suggest, without quoting evidence, that a number of them elect the Crown court because they believe they will get a fairer trial—because they are more likely to have their fate at least partly decided by someone who shares something of their own background and lived experience.
Let me address the Government’s response to this evidence, which has been inadequate. The Lord Chancellor—who, as he has reminded this House, knows the experience of racial disparity personally and profoundly, and has long spoken about it throughout and before his time in this place—has argued that progress is being made. He has cited the figure that 21% of judges now come from an ethnic minority background. I welcome the progress that has been made, particularly in the judicial system, but that still does not compare to the fairness and legal principle of trial by jury.
I want to put the constitutional point more plainly. Parliament is being asked to pass a provision that it knows, on the basis of evidence submitted to its own Committee, will produce racially differentiated outcomes. The Government have seen that evidence. Ministers have been questioned on it at length, and the Bill has not been amended to address it, but it must be. If a different Government Department proposed a policy that its own evidence showed would increase adverse outcomes for ethnic minority applicants by, in this case, up to 40%, what would we say? We would say it is discriminatory and grossly unacceptable. We would demand it be withdrawn pending a full equality impact assessment. We would not pass it on a Government Whip. This is the standard I invite the Committee to apply here. The fact that the discrimination operates through an allocation mechanism in the criminal courts, or in some cases through an administrative form, does not change its nature or its effect. The test is the outcome, not the intention. No one is suggesting the Government intend this, but it is the outcome and the outcome is documented.
The racial disparity in outcomes does not exist in a vacuum. It is connected causally, not merely coincidentally, to a documented and persistent deficit in judicial diversity. In 2019, 12% of magistrates were from a BME background, which compares to an 18% share of the general population. The magistrates do not reflect the country that they are being asked to judge in the same way as a jury do.
I turn to the argument that the legal aid threshold will leave defendants unrepresented when making their plea in sentencing. That is a further systemic consequence of clause 2. The means test for legal aid differs, of course, between the two tiers of court, as we have heard. In the Crown court the threshold is more generous. Defendants in a wider income range qualify for representation at public expense. In the magistrates court the threshold is lower and less generous. Many defendants who would qualify for legal aid in the Crown court may not qualify for it in the magistrates court. Under clause 2, a significant cohort of defendants who previously had a right to elect, and with it the more generous legal aid provision, will find themselves in the magistrates court facing charges and sentencing that could result in a sentence of 18 months, or ultimately 24 months, without adequate legal representation. The Institute for Government has flagged this explicitly. Because of the low-income threshold to qualify for legal aid in the magistrates court, many more defendants are likely to go unrepresented or under-represented, and an unrepresented defendant in serious criminal proceedings is not a defendant receiving fair justice.
There is a cruel irony in the Government’s framing of the issue. Ministers argue that one problem with the current system is that defendants elect a Crown court to delay proceedings and therefore game the system. But why would a defendant in a serious case choose the Crown court? Often precisely because they know that in the Crown court they are more likely to have or to be able to afford a lawyer, and in the magistrates court they may not. The election is not a game. It is part of a system that has stood for a very long time. It is a rational response, in this case, to a legal aid system that is itself under severe pressure.
Joe Robertson
Of course, the Minister made that point—in her view, this is about thresholds. Whether we want to call it an argument about thresholds, and whichever part of history we want to look at, the Opposition’s fundamental point remains. There is a distinct lack of evidence for this Government’s plans today, set against the range of other provisions that could be, and in some cases have been, introduced. In our view, they have not been given the time to bed in and potentially deliver the savings that the Government want. I accept the hon. Member for Rugby does not accept that, but I think that is the point of contention here.
Dr Mullan
I covered all the statistics on the reforms that the hon. Member for Rugby mentioned this morning. The scale of these changes, compared with the scale of those changes, is absolutely unprecedented. There has never been a reduction in jury trials of the scale before us today. In support of the point being made by my hon. Friend the Member for Isle of Wight East, the burden of proof must become higher and higher as the change being made gets bigger and bigger. This change is unprecedented, so let us have an unprecedented level of evidence to support it before asking us to consider it.
Joe Robertson
I agree with the shadow Minister, and I really have nothing to add—his words stand for themselves.
Joe Robertson
In an attempt to resolve a debate that is not immediately mine, I will give way to the shadow Minister.
Dr Mullan
It would assist the Committee to know why we are making these comparisons. I have figures on the effect of the reclassification of criminal offences in the Criminal Justice Act 1988, which is one of the examples that the hon. Member for Rugby used in order to say that we are unfairly comparing the categorisations.
Let us bear in mind that the changes before us today will result in a 50% reduction in jury trials. According to the Home Office statistics bulletin, which provides a summary of the effect of those changes for comparison, that legislation resulted in a 5% decline. The Government are asking us to support something that will lead to a 50% decline, yet the hon. Gentleman says that we are being hyperbolic in comparing the two and saying that one is insignificant and the other is significant. I think the difference between 5% and 50% is pretty significant.
Joe Robertson
I thank the shadow Minister. I am probably not in a position to arbitrate between the two arguments; the hon. Member for Rugby will have to forgive me, as I come from the starting position that I back the shadow Minister, not least because he was wielding a particularly substantial file when he just spoke.
I want to address a provision that is not the immediate subject of this grouping, but which fundamentally determines the significance of clause 2—the reform of appeal rights from the magistrates court contained in clause 7. Currently, a defendant convicted in the magistrates court has an automatic right of appeal to the Crown court. That right is exercised in approximately—
The Chair
I will give a little leeway, but I ask the hon. Member for Isle of Wight East to please go back to clause 2.
Dr Mullan
On a point of order, Ms Butler. This speaks to the heart of the confusion at the start of the debate. On the one hand, the Minister wants to say that it is arbitrary and inconsequential, but the explanatory notes say that this is fundamental to enacting clause 1. That is what the Minister said—that these two things sit together, so everything that clause 1 is doing is surely in scope if the Minister’s argument is that clause 2 is needed to fully enact clause 1.
Dr Mullan
Reflecting on what has been said, I think that confusion remains. I welcome the further remarks from the Minister, but I am still not clear on whether there will be any impact in the real world for people as a result of the change. Earlier, I read out a sentence from the explanatory notes that talks about how the clause relates to sentencing, but the sentence before that says it relates to a
“written indication of a guilty plea”.
The legislation says that a written plea is not actually a guilty plea, so there could still be a trial—someone might change their mind. The difference that the legislation talks about is that if someone gives an in-person plea, that is their plea. This reform introduces the idea of a written plea, and, probably quite sensibly, it was decided that that should not be seen as the final example. Decisions are being made at that point, but then the plea could be changed and there could be a trial. It could have a real-world impact; it is not a technical change.
If the Government are clear that they are not enacting this measure, why not? There must have been a reason why they thought that written guilty pleas were of use. I suspect it probably was an efficiency measure at the time and they thought, “If we allow people to more easily give an early indication, that might encourage them to do so, and we can get all the benefits that flow from that.” If the Government are on an efficiency drive, why are they not enacting the measure? I would have asked the same of my Government if they had the ability to enact it. I do not know what the timeline was—was there a natural lag or a deliberate decision not to enact it?
We need it laid out in black and white: will this change have any real-world impact—yes or no? What exactly will that impact be? Because of the quite open possibility that it will have a real-world impact in terms of reducing someone’s ability to go to the Crown court—that is what we are talking about—all the concerns that Members have about clause 1 apply to clause 2.
I want to pick up on some of the changes. The Minister mentioned how we have listened to Canada. The point I made quite clearly in our evidence session with the Attorney General of Ontario was that they brought their backlog down without making any changes to jury trials whatsoever, so I am not sure how helpful that is as an example of why we need to change the system.
Members mentioned a sunset clause. If the Bill were just about bringing the backlog down, there would be a sunset clause in it. That again demonstrates that the Government actually think this is a better way of doing things. If that is the case, they should make that argument. They should just say, “We are making these reforms because they are the better way to do things. There will be an additional benefit in terms of bringing down the backlog,” but they have not said that.
I certainly would not use the language that the Minister used, but I am absolutely clear that we need to improve judicial accountability. We had a whole panel in the evidence sessions in relation to the family courts, for example, and whether they are making the right sorts of judgments about the interests of the child. We heard quite clearly that judges should not place too much weight on the idea that there is a good relationship with both parents when making decisions. The reason the Government are proposing changes on this issue is that they clearly do not think that judicial decisions are consistently doing the right thing.
My first encounter with this lack of accountability in judicial decision making—this is very important if people will be subject to individual judicial decisions—was the case of a constituent who had fostered a young girl in difficult circumstances. The young girl was physically fit and healthy, but struggling. The family—the original parents—had applied to get custody back. The foster mother did not want the girl to go back to the family, and nor did the local authority or the wider family, but the judge decided—again, we are giving more power to judges by removing the power to elect—that the girl should go back.
That girl is now in an almost vegetative state—it is not quite like that, but she is extremely disabled. The wonderful lady who fostered that young girl, even though the girl was then in a very difficult physical state and was going to be extremely dependent for the rest of her life, adopted her, which was an extraordinary thing to do. She approached me to say, “Social services have to account for what has happened. The police, if they had been involved, would have had to account for what happened. Can you tell me what happens to the judge who made that decision, which led to these consequences?” I wrote the Lady Chief Justice asking whether she could explain to my constituent what the consequences were. If there is a legal matter, it goes to the Court of Appeal; other than that, there is no issue for the judge. That has really driven my view about a need for more judicial accountability. I recognise the Minister’s right to say that we have to be careful about the language we use when talking about these things, but there is nothing wrong with saying that we need a more accountable judiciary.
On the need to increase sitting days, the Government like to claim that there are record levels of sitting days. I do not know whether the Minister knows that that is not a fair reflection of what is going on, but we changed the way in which we measure sitting days. There used to be two separate counts of sitting days—trial days and judge days—and we then combined them. If we look at the figures fairly, the counts are at some points pretty similar, if not higher previously. The figure is higher now because there is just one figure. I am not seeking to take away from the Government’s efforts in that regard, but we should be fair and accurate in how we describe the historical record.
We discussed whether it was fair to use the term “abolition”, which has come up repeatedly. I am very careful about the language I use, and I do not say that, but I will not take any lectures on the issue from a party that, when my right hon. Friend the Member for Richmond and Northallerton (Rishi Sunak) was Prime Minister, put out a Facebook campaign saying that he did not think that paedophiles should go to prison—a disgusting misrepresentation of the reality. The Labour party was happy to do that, so I will not take any lectures from Labour Members.
The Chair
Order. I allowed the hon. Member to rise to make a quick contribution on clause 2. Would he sum up?
Dr Mullan
My final point in opposition to clauses 1 and 2 is that the hon. Member for Kingston upon Hull East (Karl Turner), who is not here today, would have had a lot to say during our proceedings. He is a Labour MP who has quite literally never rebelled against the Labour Whip. Ms Butler, you have probably been here longer than all the rest of us, so you know that in our parties we have the usual suspects, who rebel when they get the opportunity and take any chance to disagree with the governing party—we all have a sense of what that means. The hon. Gentleman is not one of the usual suspects. He is a passionate practitioner. He will have dealt with clause 2 cases. He will have sat in court and dealt with the sorts of things that clause 2 covers.
Linsey Farnsworth
Clause 2 relates to measures that have not come into force yet, so my hon. Friend the Member for Kingston upon Hull East cannot possibly have any experience of that.
Dr Mullan
Sorry—I am not clear that there will not be real-world consequences in the kind of ways that the hon. Member for Kingston upon Hull East will understand. The Minister nodded her head when I suggested that fewer people will get a Crown court trial as a result of clause 2. The Minister indicated from a sedentary position that it is correct to say that fewer people will get a Crown court hearing specifically as a result of clause 2. If the Minister can clarify that, I am very open to hearing her. I ask Labour Members to think very carefully about the fact that one of their own, who is not one of the usual suspects, is so vehemently opposed to the change.
Dr Mullan
I rise to speak in support of amendment 39 tabled in my name. As I touched on earlier this morning, along with amendments 23 and 24—which are driving at the same point, but in slightly different ways—we are revisiting the discussion that we in the Opposition framed as a broad categorisation of principles of natural justice. We do so with the hope that it allows flexibility and expandability for the courts to interpret and give weight to that clause in a common-law system. However, it is also perfectly legitimate to approach the issue in a more defined way, as amendments 23 and 24 do. Every one of those examples is something we would agree with.
Amendment 24 states that the relevant conditions would be met in relation to a defendant if:
“the defendant, if convicted of the offence or offences for which the defendant is to be tried, would be likely to receive a sentence of imprisonment or detention of more than three years”
or if
“the defendant is of good character”.
It was helpful for the hon. Member for Bolton South and Walkden to use her expertise to explain that that is not just an idea of someone’s character; good character has a very specific meaning in law and exists for a reason. It exists because the judicial system, in various ways, thinks that that is important and it has a material impact on how someone should be treated within the legal system. Amendment 24 also specifies that the conditions would be met if
“the defendant has not previously been convicted of an imprisonable offence”,
or if
“the defendant would be treated as a rehabilitated person under section 1 of the Rehabilitation of Offenders Act 1974”.
Again, we go out of our way to put those provisions in place to say that rehabilitated offenders, as defined by the 1974 Act, should be treated differently from other types of offenders. We are building on the already established idea that we do not all experience the judicial system in the same way in relation to our previous convictions and offences—in both directions, because if someone has convictions, but they have moved past those convictions, we would seek to treat them differently again.
Amendment 24 would also apply to a defendant who,
“if convicted of the offence or offences for which the defendant is to be tried, would likely suffer significant reputational damage or have their employment or professional qualifications adversely affected”.
I talked about that issue this morning, and I welcome the hon. Lady’s references to Members of Parliament. Surely we can relate to that in a very profound way when we face a conviction. MPs are one such example, but there are many others. I gave the example of a solicitor this morning, and there are also doctors—my professional background—and police officers; there are a whole range of people who would suffer a very particular and specific set of consequences because of their job.
That would perhaps not be universal, and we would have to tease out whether someone might want the magistrates’ sentencing restrictions or the Crown court’s route to guilty—we will probably have to separate those two things. Some people might prefer a magistrates court, not because of the plea but, as they are likely to be found guilty, because of the sentencing restrictions. However, I agree with the hon. Lady that—if not universally, certainly overwhelmingly—people would want their guilt to be determined by a jury, even if they might prefer a magistrate’s restricted sentencing powers.
Finally, amendment 24 would apply to defendants where
“there are reasonable grounds to believe that the gravity or complexity of the case may increase; or…other exceptional circumstances pertain to the case.”
Those examples fit neatly with the aims of Opposition amendment 39.
As I said earlier, of all the provisions in the Bill, clause 3, which these amendments would alter, probably represents the profoundest and most unprecedented change to our legal system. We had a debate this morning about other changes that have been made, such as changes to which offences are summary, triable either way or indictable. Although it is true to say that there have been variations, and there has been that narrowing, I was very clear that the scale and unprecedented nature of these changes stand apart.
What we are talking about here is a completely different approach to determining guilt for adults in criminal cases, entirely removing the lay element. Again, we debated this morning about the fact that we cannot fairly describe magistrates as being entirely distinct from the local population; we very clearly heard all the reasons why they are not the same as having 12 ordinary members of the public on a jury, but they are not professionals. What we are talking about here, with the introduction of this new bench division, is removing every possible element of lay involvement.
On Second Reading, when we had a broader debate about the Bill, Government Members criticised the fact that the debate was dominated by white, older male barristers—maybe they did not say older, but certainly white and male. The criticism was, “This debate is being dominated by white, male barristers. This isn’t fair. This isn’t reflective of all the voices and different views we need to hear.”
But what will these changes do? They will give more power and influence to people who are white and male and who, historically, have almost certainly been barristers. We are doing the exact opposite of addressing those Government Members’ concerns, including their concerns about who has a say in all these issues compared with ordinary members of the public. Clause 3 removes those ordinary members of the public.
Under proposed new section 74A to the Senior Courts Act 1981, any case sent to the Crown court must be tried without a jury unless one of two things applies: either an indictable-only offence is involved, or the court considers that, if convicted, the defendant would be likely to receive a sentence of more than three years’ imprisonment or detention. In all other cases, the default becomes a judge-alone trial.
We are introducing a whole new idea that an individual person—a magistrate, not a jury—can sentence someone to six to 12 months. We are introducing the idea that a single person, on their own, can sentence someone to three years’ imprisonment, without any involvement of the wider public. The question for the Committee is not whether the jury trial remains available in some cases, as we have discussed—we absolutely accept that it should. Instead, the question is whether Parliament is content to create a new statutory presumption that, for a wide range of classes of Crown court cases, the citizen will no longer be tried by a jury of their peers, but by a judge sitting on their own.
Again, as we talked about this morning, this is not what Sir Brian recommended—he was specific in his recommendation. This morning, the Minister talked about going further, which I would interpret as referring to what offences and timelines are used. I am not sure that we can extend that suggestion of going further to creating an entirely new set-up that Sir Brian did not recommend. He did not recommend that a judge sit on their own and sentence someone to up to three years in prison.
Sarah Sackman
Of course, judges sitting alone do sentence. I understand the point the hon. Member is making in relation to the Crown court bench division, but it is important that my mum, watching at home, understands that judges hand down sentences.
Dr Mullan
I thank the Minister for picking me up on that; I meant that they are determining the guilt of individuals who can then face up to three years in prison. It undermines the veracity and importance of Sir Brian’s recommendations that the Government do not have the support of his report on this, the profoundest and most unprecedented change that they are making. That cannot be understated.
The Bill makes clear that in all cases falling below the threshold sentence of more than three years, a trial must take place without a jury. That is not at individual discretion, but a hard and fast rule. The Committee should note that the threshold is assessed prospectively, on a likely sentence basis. That means that at an early stage, the court is being asked to make an evaluative judgment about the likely sentence before a trial, and to use that judgment to determine whether the oldest safeguards in our system are available at all.
The Minister may, quite rightly, say that making estimates or anticipating likely sentencing outcomes is part of our system—but never in this way, and never with the consequences that will flow in terms of who determines an individual’s guilt as a result of that estimation. The consequences are profound.
Yet for all the Government’s reliance on the three-year threshold, proposed new section 74D makes clear that a judge sitting alone retains the full sentencing powers of the Crown court and may impose a sentence of more than three years where appropriate. That will allow a judge to determine guilt on their own, and potentially to sentence someone for many years—more than three—for an offence. Those two issues interact. The Minister was right to call me out for blending the two measures, but they are linked in the real world, and they certainly will be linked in the minds of defendants and the wider public. That relates back to the confidence issue. If a defendant sees that the person whom they think was inappropriately asked to determine their guilt is also then allowed to give them a sentence beyond what they were expecting to get, and beyond the thresholds that were designed for the imposition of a sentence, that creates real challenges for public confidence.
There is a tension in the Government’s remarks around this issue, because they have emphasised throughout that all these reforms will not be used for the most serious cases. That is how they have described it. That is largely determined by taking into account the sentencing length that is available—it is not a direct read-across, but more serious offences inevitably have longer sentence lengths, so someone will potentially be directly affected by these reforms around the same sentence lengths that the Government say are not appropriate for different types of offences. The Government might say that they are not choosing certain types of offences with very long sentences, but someone could end up with exactly the sort of sentence that someone else might receive for something like a rape offence. The Government think that that is acceptable but, again, it is inherently contradictory.
The Committee should also be concerned by the structure of the reallocation under proposed new section 74B. Cases can move from jury to judge alone and then from judge alone to jury following changes of circumstance or the emergence of new evidence. Such decisions may profoundly affect how justice is perceived, yet the Bill provides no right of appeal against them. What the Government are doing here is not simply adjusting or tinkering; they are creating a new mode of criminal trial in the Crown court by allowing a single judge to determine guilt in a substantial class of cases, allowing that decision to be revisited during proceedings, permitting it in some circumstances without a hearing and then insulating those decisions from appeal.
The Government’s case for doing all that relies heavily on efficiency, but this is precisely where the clause remains weak. The wider criticism of the Bill has always been that the backlog is being treated as if it were caused by jury trials rather than case management failures, workforce pressures, poor productivity and court capacity. We talked a lot about the IFG’s criticisms of the modelling and the data that the Government put forward to justify their clauses, but the IFG is not alone in thinking that the Government’s claims around the benefits are unsubstantiated. The London School of Economics submitted in written evidence what it thought about the Government’s approach to modelling. It said:
“Sir Brian Leveson stated that the modelling on which his recommendations were based is ‘uncertain and should be viewed as indicative’ and that the MoJ should ‘carry out more detailed modelling on the operational and financial impact of the recommendations’.”
I brought that up in the evidence session with Sir Brian and put it to him that he had said that further work should be done; he did not feel that it was for him to comment any further than that. The LSE says:
“Given the range of reforms suggested by the Independent Review of the Criminal Courts, their complex interrelation, and the lack of rigorous modelling by independent research groups, we are not confident that the evidential basis for curtailing jury trial has been established.”
Both the IFG and the LSE think that the modelling case has not been successfully made, so there are a number of different questions on that. This is important because Parliament is being asked to accept the removal of a fundamental safeguard, not because the Government have shown that jury trials are causing the delay, but because it has chosen to pursue structural reform before exhausting operational solutions.
The real constitutional innovation here is not only that some cases may be tried without a jury, but that Parliament is being asked to enact a statutory presumption in favour of a judge-only trial for a broad range of Crown court cases, with very limited, if any, safeguards once that allocation has been made.
The Committee should also consider the wider context in which these proposals are brought forward. Sir Brian Leveson’s review did not present the removal of jury trials as a stand-alone solution; it sets out a broader programme of reforms aimed at improving efficiency, capacity and case management across the system, and yet the Government have chosen to bring forward the most constitutionally significant elements of that review, those that limit access to jury trials, while leaving much of the operational reform agenda unimplemented.
We have visited this point a number of times today: the Government have not done the things they say they will do that will make a difference. They cannot realistically claim that those things will not have the necessary impact if they have not tried to implement them.
Sarah Sackman
Does the shadow Minister recognise that, in the IFG’s report, one of the central insights was that the key drag on court productivity was workforce shortages? We are making that investment, but does he accept that it will take years to build back the criminal Bar, the number of prosecutors and people practising criminal legal aid to the level we would need to deal with these cases?
Dr Mullan
The Minister put that question very succinctly, in exactly the same way, to members of the criminal Bar, who know much more about this than me; they were very clear that they did not accept her point. She is contrasting a magistrate or a police officer, who must be trained from scratch, to barristers, who practise in all different parts of the law, and they have clearly pointed out that the welcome changes that the Government have made around sitting days are seeing people coming back. They have not stopped being barristers because they have not practised over the last few years; they are practising other types of law.
I was on the Justice Committee in the previous Parliament, and we discussed in detail the challenges around the criminal Bar strike action and so on, and they were very clear that these people had not gone anywhere—they were the same people, but they were choosing not to practise criminal law. I would lean heavily on their view that these people want to come back.
If the Government want to put forward an analysis and tell us the figures for all the people who are out there who could be practising criminal law and are choosing not to, and if they produced a gap analysis showing how many they think they need on top of that, then we would have a different discussion. However, I do not know that the Government have produced any analysis or figures for how many practitioners are due to come back, or likely to come back, or what we need to get them to come back and so on. The Minister may well be right to just say, “They’re not there, we can’t do it,” but we keep coming back to the same point: where is the basis for making such strong decisions?
Sarah Sackman
But does the shadow Minister accept that these things take time? His party is a great believer in the force of the market, and the market here has decided that it wants to go and work in other markets. The point is that, on whatever the analysis, these things take time. That is why the Government have not just put forward major investment in terms of legal aid fees but matched funding for pupillages to create the pipeline. But the training of criminal barristers capable of taking on these trials will take years, and all the while the projections show the backlog rising. Does the shadow Minister accept that any realistic view or analysis shows that it will take years to build back the Bar to what it needs to be, both from the bottom up and at the higher levels that those criminal barristers were talking about?
Dr Mullan
The point I am making is that we actually do not know that, because we do not know how many people used to practise who could now practise again. I absolutely agree with the Minister that there might need to be a further wave of people that will potentially exhaust the people who could be succinctly brought back into practice, but we have time in that regard. We might find that we bring sufficient professionals back into the profession for the next few years, at the same time as the Minister is investing in the future.
Again, I would welcome the Government publishing an analysis seeking to interrogate in detail how many people are out there who could and would come back, and what it would take. The Minister could then get up and say confidently, “We have looked at this and we know that there are this many people who previously practised criminal law, or could come back to criminal law, and this is what we expect them to do over the next few years. We think we need this many people. We think we will train x number, and that still leaves us with a gap.”
As with so many of these issues, the Minster has a case with her argument and interpretation of things, but if we are going to do something as profound as introducing a whole new way of determining guilt by way of a single judge on their own—something that has never been done in this country—then the evidence threshold on which the Government need to deliver their arguments is so much higher than what we are getting. That is the case on this and so many other issues.
Alex McIntyre
I have some experience in this, having changed my practice when I was a solicitor from being a banking lawyer to being an employment lawyer. It takes time to build up a level of expertise, and if I were to return from this place to being a solicitor, it would take me some time to re-educate myself and get up to speed with developments in the law to be able to practise again. I accept the shadow Minister’s point that there are some barristers who change their specialty as often as MPs change their parliamentary constituencies—
Alex McIntyre
And parties, which seems to be happening at an increasing rate on the Opposition Benches. Does the shadow Minister not agree that, at the very least, it will take time for those barristers to reskill, retrain and update their knowledge to be able to take on those cases, and that therefore the premise that the Minister is putting forward is the right one?
Dr Mullan
I am afraid that we are again at violent agreement and disagreement at the same time. The principle that hon. Member is talking about is absolutely fair. There will be a period of time in which we have to retrain people; but as I said, the Committee has had barristers before it who were very clear that they thought there would not be insurmountable obstacles. The hon. Member may question their credibility on that front, but it is perfectly legitimate for them to say that they question the Government’s credibility and the arguments they are making.
The hon. Member for Gloucester, the Minister and I are all missing a proper attempt to study, define and measure these things. Without that, the Government cannot expect us to move forward with a massive erosion of jury trial rights, in a way that has never been done before. We are not talking about triable either-way offences going from magistrates to Crown, which has been done, but not on this scale; rather, we are introducing a whole new way of determining guilt in this country, which will have profound implications, and we are supposed to decide it on the basis that the hon. Member and the Minister think it will take too long to do otherwise—nor, conversely, should we just take the barristers’ word for it. What we really need is a proper, exhaustive study of the issue, as we do with many other issues that we will come to where the same things apply.
The hon. Member for Gloucester did a good job—from his perspective—of pointing out that the Criminal Bar Association of course has its own interests and angle. As my hon. Friend the Member for Isle of Wight East pointed out, the Opposition are not saying that the Criminal Bar Association is sacrosanct and cannot be questioned or grilled. However, it is also in the camp of those who want to see more information and more details. When the Minister put it to the Criminal Bar Association in Committee that it had not put forward its modelling or proposals, it was made very clear that it had sought the same data and analyses that would allow it to demonstrate these things, and the Government had not allowed it to do so. We cannot on the one hand say that it is a loaded jury, in the American sense, and we cannot take its word for it, but at the same time criticise it for not having alternative opinions, when we will not help it to further elucidate those measures that might make a difference.
Sarah Sackman
We do not necessarily accept that that is why. There may be all sorts of reasons, which need to be unpacked, and that is the kind of thing I hope will be enriched by a statutory review. There may be all sorts of reasons why conviction rates for all ethnicities are higher in the magistrates court, not least because people may want to enter a guilty plea in a jurisdiction where the sentencing powers are lower. That may be a perfectly rational reason why there are higher conviction rates in the magistrates court across the board. We accept that premise, although I also accept that BAME defendants and communities have less confidence in the magistrates than in the jury system.
Dr Mullan
Yes, and I have made that point in other debates on this issue: we cannot say that with absolute certainly. The Deputy Prime Minister is clear—I think his phrase was that we have to explain why these things exist. The point is that we certainly cannot rule out that explanation, and it is certainly not an unreasonable conclusion to draw, which is why so many campaign groups that represent BME defendants are clear about why they think the disparity exists. The Minister is right that it is not proved definitely; the issue is that we have not done the work that the Deputy Prime Minister asked us to do in bottoming that out. We still cannot confidently say, and the Minister cannot say, that that disparity does not exist because of prejudice. It may well exist because of prejudice. We are not in a position to say that that is not the case, yet if that is the cause, we are heading in a direction that might encourage and make the disparities even more frequent.
In relation to sentencing in the youth estate, where we have over-representation of BME individuals, I have made the point that we have to look at offending patterns and so on, which vary among different ethnic minority groups, but we cannot rule the explanation out. However, having failed to rule it out, as the Deputy Prime Minister said we should, he is going to shift more of the weight towards those risks. Again, if we accept as a possibility the premise that this is about a narrowing of individuals’ backgrounds and life experiences versus the experiences of those they are judging, then that becomes a very reasonable hypothesis for what is happening.
If that is a reasonable hypothesis and we have not been able to exclude it, and if it is then correct, then we are doing something that supercharges that effect. If that hypothesis is correct, and this is to do with background and diversity of opinion, then we are narrowing that down even further, to the view of one individual—to the life history and life experience of just one person. What the Government are proposing could not be further from what the jury trial system delivers, and this at a point when we cannot say with confidence that it will not have an adverse impact on BAME individuals.
Sarah Sackman
Does the shadow Minister accept, though, that the legislation as drafted contains a number of guardrails? They include the provision of reasons that will need to be given by a judge, the fact that judges will have gone through judicial training and also the equal treatment handbook. Obviously, juries do not go through such training. Indeed, the statutory review that is being proposed is another guardrail. Does he accept that those are all safeguards with merit and that, as I said earlier, sunshine is the best disinfectant?
Dr Mullan
Yes, I accept that, to a degree, the Government have attempted to put in place safeguards. The question is: what weight can be given to those safeguards? We had a discussion earlier today about judicial accountability and whether we think the decisions made are good decisions. Family courts are a helpful comparator because they make decisions on their own, in an area that they should be expert and practised in. They do that all the time, yet the Government are choosing to legislate to restrict—or to modify—the way in which judges are asked to make decisions. That is despite the Government’s own impact assessment saying that it really should not make much of a difference and despite the fact that, in the other direction, the campaign groups do not agree with them.
The Government accept that individual judges sitting in a particular way do not always make the right decisions for the welfare of a child. Those judges are trained and have all the things that the Minister mentioned, but that does not mean that the Government do not think that they sometimes make the wrong decisions. Those safeguards will be helpful and will hopefully hedge things back in the other direction if this is related to prejudice; the point we keep making is that we do not think that the proposition that the Government are putting forward is sufficiently weighted to get the outcome they want.
Dr Mullan
I will just finish my point.
If we were confident that this would deliver the outcome that the Government claim it will, then things would be different, but we question whether it will achieve the result they want, whether the safeguards are in place and whether the alternative options have been sufficiently secured. We are also highlighting the gravity of the consequences for individuals and the gravity of the change to our judicial system. Again, we need a little more than just, “We’re going to try these safeguards,” when we cannot be confident that they will guard against this issue, especially when we know—if it is prejudice—how difficult and recalcitrant it has been.
This is not a new discussion or a new debate. The Minister will probably want to make the criticism that it was not sorted during our period in office, but equally I would not expect her get up and say that she is confident that she will get to the bottom of it in the next few years, sort it all out, and make sure there is no prejudice in our judicial system, in the magistrates court or among the judges who she is asking to sit and determine these cases on their own. I am pretty confident that the Government will not give us that guarantee, so again, the thresholds for these decisions are not being met.
Did the Minister want to intervene? I do not know if the moment has passed.
Dr Mullan
We have talked about the issue of safeguards against prejudice, and it is not a view just shared by people such as the Secretary of State for Justice. The CBA commissioned an independent survey of criminal barristers. Of the 2,029 respondents, 94% raised concerns about the lack of diversity in the proposed criminal courts bench division and 88.5% were against the introduction of the criminal court bench division. We know that the public have great confidence in the verdicts of juries. The British public have been surveyed about that, and a YouGov poll following the Government’s announcement in December 2025 found positive support for trial by jury, especially among those who had served on juries.
I do not know whether this is something that I have to declare as an interest, but I have served on a jury. Serving on a jury gives those who do it an amazing insight, which those who have not done it might not have, and helps them to understand the importance of the discussion, deliberation and exchange of views that simply cannot happen with an individual judge sitting on their own.
Sarah Sackman
I accept that it cannot happen, but equally we do not know what happens in jury deliberation rooms. We do not know how the jury arrived at a verdict. All that a defendant ever finds out is whether they have been acquitted or convicted. One advantage of the Crown court bench division is that the defendant will have the judge’s reasoning and an explanation of what findings of fact have been made and on what basis a decision has been reached. Can the hon. Gentleman not see some benefit in that?
Dr Mullan
That potential benefit has to be weighed against what we discussed earlier. For a very good reason, our system explicitly prevents the jury’s inner working from being subject to scrutiny. The system was deliberately designed in that way, and we will be taking that away in some cases. Of course, at a cursory glance, we would probably all welcome being able to better understand why decisions are being taken, but if we start doing that, we would lose the ability for the jury to decide something that we are not comfortable with, and which a prosecution barrister might have a field day with.
As I said, I get frustrated with those sorts of decisions. I was very frustrated when a jury did not convict the Colston four. I did not get to know why they did not do that, but the system is deliberately designed that way. The Minister has to accept that. That is almost proving the point that others have made—in particular, the hon. Member for Kingston upon Hull East has said this both publicly and privately. Judges are forced to be much more constricted in their decision making. If the facts are a, b and c, they just have to go along with those facts.
Sarah Sackman
Is the shadow Minister seriously saying that the giving of reasons, constrained by the legal tests that judges have to apply—meeting the criminal standard of proof and applying a logical route to verdict, free from bias and procedural unfairness—is not desirable? I find that an extraordinary proposition.
Dr Mullan
As I said, it is about weighing the benefits that the Minister has rightly articulated against the loss of the benefit of safeguarding individual people who are perhaps erring from a strict interpretation of the law. Again, this is not happenstance. The idea that a jury might do that has been tested repeatedly in appeals and judgments. It has been repeatedly affirmed that it is for a jury to go away and make up their own minds, having heard all the evidence.
Sarah Sackman
I think the shadow Minister misunderstands me. I am not critiquing our jury trials which, as I have said, are a cornerstone of British justice. I am trying to understand why he has so little faith in the judges of this country.
Dr Mullan
I have explained why I have concerns about whether the judiciary is sufficiently accountable for the decisions and positions that it takes under the current system. I am not shying away from that. The reality is that I do not think it is sufficiently accountable. I think judges sometimes make poor decisions; we have to get away from the idea that politicians cannot say that.
The Justice Committee visited the Supreme Court and got to sit with Supreme Court judges. The portrayal is sometimes that they would be absolutely appalled by MPs criticising their judgments and not thinking they had made the right decision, but they were perfectly relaxed about that. They said it is absolutely the role of politicians and MPs to have criticisms and be concerned about the decisions that they make.
Sarah Sackman
I do not think we are disagreeing about the importance of judicial accountability or the need for a more diverse judiciary. The Deputy Prime Minister is making huge progress on that and has been a real proponent of that, both when he was in opposition and now in government. What I am talking about is the process for which these structural reforms provide, whereby a judge will give a reasoned judgment for their verdict. If that verdict proves to be unsound, arbitrary, unfair or biased in some way, the person knows what the reasons are and can appeal it. Is there not merit in that process?
Dr Mullan
We have to run with the idea that some judges might have some prejudices. We do not know for sure that they do, but there is certainly every reason to believe that might be an issue, particularly when we look at the disparity in their backgrounds and so on. The Minister is asking us to consider that when a judge has a prejudice, particularly unconscious bias, he is going to sit down and write in his reasons: “I thought this person was more likely to be guilty.”
Dr Mullan
They are working very hard, as the Minister says, but the work is not complete. We have not done what the Under-Secretary of State for Justice said we should, which is do the stretching and have it all dealt with before we consider curtailing jury rights. We are proceeding when that has not happened, and the Deputy Prime Minister made similar remarks.
There are other individuals to whom one might think the Prime Minister gives a lot of credibility and weight. Geoffrey Robertson, the founder of the Prime Minister’s barristers’ chambers, condemned the plans to restrict jury trials in England and Wales as
“a betrayal of the values for which Labour purports to stand.”
It was not just the Prime Minister who practised with that individual. Maybe they were working with him under the cosh or they had the view that the chambers they chose to work in were founded by someone they did not give weight and credibility to.
The Deputy Prime Minister also worked in the chambers of this individual. Who else, Ms Butler? Richard Hermer, the current Attorney General, also practised in the chambers founded by this individual, who said that
“attacking juries must be regarded as a betrayal of the values for which Labour purports to stand…How have they come to betray a principle that has been so important over the centuries for those who have dissented or stood for progress?”
He adds that, given the Labour party’s
“record of support for progressive causes, for free speech and peaceful political protests, the Bill does seem a betrayal of Labour traditions…MPs who vote in favour will be on the wrong side of their party’s own history.”
That is from the person with whom the Prime Minister, the Attorney General and the Deputy Prime Minister all enjoyed practising the law for many years in the chambers on which they sought to rely.
This morning we covered the right to appeal. As we discussed, the rate of successful appeal in the magistrates court is higher than might be expected. We do not know how that figure and the difference in respect of jury trials will translate if cases are taken down to a single judge. The Minister stated that reasonings will be laid out and that that will make the system more transparent; of course it will to some degree, but the drawbacks do not make that trade-off worth while.
We are also going to see, with the new Crown court bench division, a whole new series of ways in which defendants seek to appeal sentences. The Minister talked about the fact that there are not enough barristers; how do we know that some of those trials and appeals are not going to draw from barristers’ time? We do not.
I return to the central argument about the value and weight of jury trials in the public perception. The issue is not just about how the public perceive jury trials. Jury trials are the most important way in which the public are part of our judicial system: the public are part of the process; it is not a process separate from us. We have talked about magistrates as a halfway house for representation and diversity of opinion, but the same arguments apply in relation to the participation of the citizenry from their point of view. That is not the point of view of the defendant and the decisions that they might take, but that of the individual citizen participating in the judiciary, versus that of the magistrates.
All the same arguments that I made in relation to the perception of potential prejudices apply to the question of introducing the new division, which will even more greatly extract the citizen from our judicial system. That extraction is important because it goes back to the original question of whether we feel that the judicial system is ours and we have a role to play in it, or that it is what would have been, in the old days, the King’s judicial system. It was the King’s system: justice was in his name, for him, or—as I talked about this morning—in God’s name, for God, with individual citizens excluded from the process.
Although the Opposition oppose clause 3, our amendment 39 at least attempts to curtail some of the issues with it. I note that when we discussed it this morning, the Minister would not engage on the direct, specific question of whether, looking at the examples in isolation, she thinks it is fair that somebody of good character who stands to lose an enormous amount—their job and their reputation—is going to lose access to a jury trial whereas a repeat, recalcitrant, more serious offender will not. We are clear that that is not fair, so we have attempted, with a similar aim but in a manner different from the hon. Member for Bolton South and Walkden, to introduce some safeguards, but we are opposed to the proposal in clause 3 in its entirety.
The Chair
Given that Dr Mullan has spoken about clause 3 more generally in this debate, I have two options as Chair. Would the Committee like to talk about clause 3 more generally with this group of amendments? The Committee will also have an opportunity to debate clause 3 on Thursday, when the Minister could respond more fully. That is a matter for the Committee to decide.
Sarah Sackman
As I think I am hearing from the Opposition, given that clause 3 is really meaty and has lots of aspects and that, I suspect, all hon. Members, including myself, have prepared on the basis of the groupings in the selection list, a lot of the detailed points on which hon. Members want answers may get lost if we try to debate them all in one go. If we keep to the groupings, that might be efficient.
Ordered, That the debate be now adjourned.—(Stephen Morgan.)
Courts and Tribunals Bill (Third sitting)
Kieran Mullan Excerpts(4 days, 15 hours ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
We are now sitting in public and the proceedings are being broadcast. Before we begin, I remind Members to switch electronic devices to silent, and that tea and coffee are not allowed during sittings.
We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room and on the parliamentary website. It shows how the clauses, schedules and selected amendments have been grouped together for debate. A Member who has put their name to the lead amendment in a group is called to speak first. For debates on clause stand part, the Minister will be called first. Other Members are then free to indicate that they wish to speak in the debate by bobbing. Please bob on each occasion on which you wish to speak during proceedings.
At the end of a debate on a group of amendments and new clauses, I shall call the Member who moved the lead amendment or new clause again. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or new clause, or to seek a decision. If any Member wishes to press to a vote any other amendment in the group, including grouped new clauses, that is at the Chair’s discretion. My fellow Chairs and I shall use our discretion to decide whether to allow a separate stand part debate on individual clauses following the debates on relevant amendments.
I remind Members that decisions take place in the order the provisions appear in the Bill. This means that some amendments may be divided on considerably later than the point at which they are debated. I hope that explanation is helpful.
Clause 1
Removal of right to elect trial on indictment
Dr Kieran Mullan (Bexhill and Battle) (Con)
I beg to move amendment 38, in clause 1, page 3, lines 20, at end insert—
“, but see subsection (10).
(10) Notwithstanding the preceding subsections, the accused may elect to be tried on indictment if he demonstrates to the court that the circumstances of his case are such that to be tried on summary would amount to a breach of the principles of natural justice.”
Dr Mullan
It is a pleasure to have you with us, Ms Jardine, and I look forward to this first of many Committee sittings. I am pleased to begin line-by-line scrutiny of the Bill, beginning with clause 1 and the Opposition amendment tabled in my name.
The clause is a helpful place to start our considerations because it cuts straight to the core of our concerns and criticisms, many of which are similar and run through our opposition to many of the other clauses. The clause will amend subsections (2) and (9) of section 20 of the Magistrates’ Courts Act 1980 to remove the requirement for the defendant to consent to their case remaining in the magistrates court for summary trial. In effect, that will remove the ability of a defendant charged with an either-way offence to elect trial by jury in the Crown court.
This is one of the key changes that add up to reforms that represent an unprecedented erosion of our right to trial by jury, which is, without doubt, one of our oldest and most important traditions. It has been with us for hundreds and hundreds of years, bordering on the amount of time one might typically consider to make it an ancient right, as some people refer to it.
No wonder that right has become so valuable when we compare it to what went before. For about 500 years before the beginnings of what became the jury trial system, we had trial by ordeal. Guilt was determined by God through his unseen hand in the outcome of events, unrelated to considering in any way what happened or what we might consider evidence. The two main forms this took were trial by fire and trial by water. For trial by fire, the accused had to carry a red-hot iron bar and walk 9 feet. If the wound healed within three days, they were innocent, but if it festered, they were guilty.
For trial by water, the accused was plunged into a pool of water on a rope with a knot tied in it a long hair’s length away from the defendant. If they sank to the depth of that knot, the water was deemed to have been accepting of them and their innocence, but if they floated, the water was rejecting them, rendering them guilty. There was of course also trial by combat, or wager of battle, a fight between the accused and the accuser, which was introduced by the Normans in 1066.
Although they were invested in the wisdom of God and the Church, it was actually the gradual withdrawal and ultimate banning of the participation of the Church that brought an end to such practices. But that is not to say that even within those practices there was not some sense of allowing the views of others to play a role. Dr Will Eves, a research fellow at the University of St Andrews’ school of history, said that the key to the ordeal was the interpretation of the result. The community would probably have had some idea whether someone had actually committed the crime and would interpret accordingly. He said:
“In trial by hot iron, the issue wasn’t if the iron had caused a wound but rather how it had healed. So that’s a much more nuanced issue, much more open to interpretation. Whether the wound was festering was a judgment which could be influenced by the community’s knowledge of the individual involved and their awareness of the broader circumstances of the case.”
The wider involvement of the community then took the form of testaments to character, rather than a careful examination of the facts, as a basis for determining guilt.
On 26 January 1219, King Henry III issued an edict, and trial by petty jury was born in England, but it was its precursor that introduced the idea of 12 individuals that is still with us today. In 997, King Æthelred issued the Wantage code, which determined that 12 noblemen—of course, it was just men—be tasked with the investigation of a crime. It is an extraordinary testament to the legacy and enduring nature of such proposals that a core element of that kernel of an idea, with 12 individuals at the heart of the system, remains more than 1,000 years later.
Prior to the petty jury reforms, there were other forms of jury—for example, to investigate land disputes—but guilt was still determined by trial by ordeal. The reforms made by King Henry III are rightly considered one of our most important cultural, and we might even say civilisational, inheritances. The concept and approach has, in some form, been spread around the world to more than 50 countries. In 1956, the legal philosopher Patrick Devlin said:
“For of all the institutions that have been created by English law, there is none other that has a better claim to be called…the privilege of the Common People of the United Kingdom”.
Committee members may have noted that the 1219 edict came after the often quoted Magna Carta declaration of 1215. That declaration was a precursor to the fundamental idea behind what became jury trials and the 1219 edict: the idea that the judgment of an individual should be made by their peers. The barons had in mind the importance of protecting people from the heavy hand of the King, but their instincts are reflected neatly in all those who now have concerns about the power of the state in all its forms, including the judicial system that collectively holds the power that then sat with the King. The Bill asks us to consider reforms to ideals and protections hard fought and won for us, for very good reason, many hundreds of years ago. That fact alone should give us reason to tread carefully.
Of course, as we have heard in earlier debates and the Committee’s evidence sessions, the use of jury trials is not absolute. The form a jury trial takes varies across the countries that adopted it, and our system has undergone reform. It is fair to say that the debate is not absolute or black and white. The majority of criminal cases in this country are decided by magistrates, whose role and importance were solidified in the modern era by the Magistrates’ Courts Act 1952 and the Magistrates’ Courts Act 1980. Although the Government and their supporters might say it, we are not arguing that we should turn back the clock, or that all those currently seen by magistrates should be seen by jury trials instead, but let us consider the nature and manner of the reforms made in the modern era that remain in place today.
Changes were made during world war two. At a time when our nation faced one of its greatest threats, when our continued existence as a free state was uncertain and when every effort was turned toward winning the war, what did we do? Did we radically cut down on jury trials? No. The number of jury trials and what cases would or would not be considered by them remained completely unchanged. The change was made to the number of jurors, which was reduced from 12 to seven. What did the Government of the day do as soon as the Nazi threat was defeated? They put it back up to 12.
In more recent memory we had the covid pandemic, a challenge sometimes equated in seriousness to world war two. When every aspect of our society, public life and freedoms were massively curtailed in a way that was completely unprecedented, did we permanently get rid of jury trials? No. There was cross-party consensus that we should do everything we could to maintain jury trials. We invested millions of pounds in Nightingale courts, alongside other measures, to allow jury trials to continue as soon as they could, without making any permanent change to the law and individuals’ right to access jury trials.
Labour Members will no doubt point to the changes on triable either-way offences, similar to the proposals in clause 1, that were made in the 1980s, but done differently, via offence reclassification. The changes covered common assault where no one was injured, joyriding and lower-level criminal damage, and research shows that they led to a 5% drop in the number of cases that headed to the Crown court. These are questions of gradation, and the reforms in the Bill are unprecedented in their impact and completely incomparable with those changes. The Government’s own analysis says that they will result in a halving of the number of jury trials.
Who else might we turn to in support of our view that labelling the erosion of a right as a reform and realigning the dial further and further away from where we are now cannot be seen as a minor act? We can turn to many members of the Government, and the Prime Minister himself, to support our view. On limiting jury trials, the Under-Secretary of State for Justice, the hon. Member for Rother Valley (Jake Richards) said:
“Instead of weakening a key constitutional right, the government should do the hard work.”
The Justice Secretary said:
“The right of an individual to be punished only as a result of the “lawful judgement of his equals” was enshrined in Magna Carta of 1215. Yes, this right only extended to a certain group of men, but it laid the foundation of a principle which is now fundamental to the justice system of England and Wales.”
He also said:
“Jury trials are fundamental to our democracy. We must protect them.”
Finally, he said:
“Jury trials are a fundamental part of our democratic settlement. Criminal trials without juries are a bad idea.”
That is what the Deputy Prime Minister, Justice Secretary and lead proponent of the reforms has said.
Finally the Prime Minister has said that the
“general and overriding presumption should be jury trial, with very, very limited exceptions”,
and that
“The right to trial by jury is an important factor in the delicate balance between the power of the state and the freedom of the individual. The further it is restricted, the greater the imbalance.”
There we have it. They all understood that these are questions of balance. The Government are simply on the wrong side of that balance with the reforms in the Bill, including clause 1. That is not just because of the scale and gravity of the changes, but because of the other ways forward and other approaches, as yet untested but available to them.
The Opposition’s approach in Committee, on this clause and others, is therefore straightforward. We will test whether the Government have correctly diagnosed the problem, whether the evidence supports the proposed solution, whether the safeguards being removed are proportionate to the gains claimed, and whether other options are available. Those are the fundamental questions. Of course, we will not forget that, despite everything else Government Members said previously, the reforms were born of necessity and that the Minister believes they are positive improvements to our justice system regardless.
The Government have estimated that clause 1 and other clauses will reduce Crown court sitting days by 27,000 a year while increasing magistrates court sitting days by 8,500. They think the provisions will reduce the open Crown court caseload by around 14,000 cases, and cost £338 million between 2024-25 and 2034-35. However, several stakeholders have criticised the assumptions and models that the Government used to produce the estimates, particularly in respect of how much time jury-only trials would save.
Cassia Rowland of the Institute for Government has said that the total impact of the Government’s proposals on court demand is
“likely to be around a 7-10% reduction in total time taken in the courtroom”.
She therefore considered that improving court efficiency,
“an alternative which enjoys broad support across the sector and which could begin much faster”,
provided “opportunities for meaningful improvements”. She said that implementing such efficiencies
“alongside more moderate proposals to handle some more cases in magistrates’ courts…would be less likely to provoke backlash.”
I could not agree with her more.
The Criminal Bar Association has criticised the “over-optimism” of the impact assessment, describing the Government statement that the Bill would only increase magistrates court demand by 8,500 days as “astonishing”. It says:
“The assumptions are that magistrates will complete each of these trials within four hours and guilty pleas/sentences within 30 minutes. Is there is an expectation that magistrates will be dispensing rough justice when they have these more complex, more serious cases allocated to them? Or are the assumptions in the Impact Assessment simply wrong?”
I think they are. Let us be clear: the Government would have us believe that 27,000 crown court sitting days can simply be converted into just 8,500 magistrates sitting days.
Clause 1 represents a fundamental shift in the balance between the citizen and the state. At present, a defendant in an either-way case has the right to elect trial by jury. The clause removes that right entirely, with the decision resting solely with the magistrates court, depending on likely sentence length. We object to the clause in its entirety, but we have also sought to put forward meaningful changes through amendment 38, which would simply allow the defendant to demonstrate that, in the particular circumstances of their case, trial without a jury would breach the principles of natural justice.
What current examples of violations of natural justice do we envision and hope this safeguard can protect against? Let us consider two theoretical cases of offenders, both facing trial for theft. This may be an opportune moment to point out that some of the examples used by Government Members to demonstrate the irrationality of Crown court time being frequently taken up by theft offences betray a lack of understanding of what happens in terms of the likely disposals in such cases. Nevertheless, as it seems such a popular example, I am happy to use it.
In the first example, we have an accused who has never been in trouble with the law before. He or she has a clean record and the offence was not aggravated in any way. In fact, he or she gives an account of a misunderstanding. No harm came to the victim, and the value of the goods they are said to have stolen was considered to be medium—between £500 and £10,000. But the impact of a guilty finding on his or her life would be enormous, because the accused is a practising solicitor. It would almost certainly lead to the loss of their employment and significant damage to their reputation.
The sentencing guidelines suggest that if the accused is found guilty, they might expect just over a year in prison. They are determined to have their case heard by a jury, because they believe their account of events would be believed by a jury, but under clause 1 as it stands, that would be denied them. Because they are clear of their innocence, they will not take a police caution, an out of court disposal, or make an early guilty plea.
Let us consider another accused. They are very far from being a person with a clean record. They have been convicted of multiple offences of theft, and other offences alongside those in the past—for example, criminal damage and common assault. They have been convicted of theft more than a dozen times. Those of us who have had an interest in criminal justice for some time will know that those sorts of offenders regularly appear before the courts.
The accusation the second person faces is of another order of seriousness. They are accused of having stolen a piece of jewellery worth more than £100,000. In fact, the loss of that item led to the collapse of a small business, as the owner was an elderly lone female, who is now living in constant fear and simply cannot face customers again. She trusted the accused on their visit to the business, and does not feel that she can trust anyone else. The accused faces up to six years in custody, so they will retain their right to a jury trial. They have no reputation to lose as a serial and convicted offender, and no employment to lose either.
Alex McIntyre (Gloucester) (Lab)
The shadow Minister is making an articulate argument about how the criminal justice system might deal differently with different types of offenders, but would he not agree that someone’s background should not determine their guilt? They have either done it or they have not. Actually, someone’s good character and previous clean record is taken into account at sentencing. Will the shadow Minister remind the Committee how sentencing is dealt with in the Crown court—is it by jury or by a judge sitting alone?
Dr Mullan
The hon. Gentleman’s question articulates the gap between what the Opposition and the Government think about these issues. Actually, for a case like the first example, the sentence passed will be almost irrelevant to the person. If they are found guilty and convicted of an offence, they will suffer all the consequences that I have talked about whatever sentence they are given. Such consequences do not exist for the individual in the second example; they do not have employment or a reputation to lose.
The Government also often portray the assumption that people are guilty—if they are accused, they are guilty. The whole point of the jury trial system is to allow what we have all agreed, at some point and in some ways, is the fairest and most balanced way to determine guilt. The Justice Secretary himself has talked in detail about how it is the fairest way to determine guilt. When someone’s decision is going to have huge consequences for the accused’s life, it is perfectly reasonable for people to want the fairest mode of determining that guilt.
Linsey Farnsworth (Amber Valley) (Lab)
Is the hon. Gentleman saying two different things? At the start, I heard him say that we have fairness across the whole criminal justice system, but he seems now to be suggesting that magistrates court trials are inferior and less fair. Is that the position of the Opposition?
Dr Mullan
As I said, it is actually the position of the Justice Secretary, in his own report, where he said that the fairest and most balanced element of the justice system is jury trials. If the hon. Member thinks it is odd for me to hold that view, perhaps she should have a conversation with the Justice Secretary.
Rebecca Paul (Reigate) (Con)
Does my hon. Friend agree that the question the hon. Member for Gloucester asked shows the crux of one of the issues? He used the term “offender” to describe someone where a verdict has not yet been reached, but they are the defendant. Is the assumption of innocence before guilt is proven not a key principle we should be fighting for?
Dr Mullan
Absolutely. I have been very careful in writing my speech to not say that and to be clear about that. Again, when we have had debates about people causing the backlog and holding up justice for other victims, there is an inherent assumption that everybody who has been accused is guilty. Of course, we know that is not the case.
As I said, Members should think about the two cases I cited and decide whether it would be fair and just for the individual who has so much more to lose to lose their ability to seek the mode of trial that we have articulated—the mode that Members of the Government are articulating is the fairest way of deciding things—when the person with the repeat record, who does not have a reputation or job to lose, gets to continue doing all the things that the Government have said are wrong, such as holding up trials in other, more serious cases.
Members who have read ahead may think that there is some overlap between our amendment and the way in which I have articulated it and amendment 24, tabled in the name of the hon. Member for Bolton South and Walkden, and they would be right. Our thinking is the same. Our intention and the issues we are trying to elucidate are the same. Of course, we know that we are joined politically in our views on this issue, not by the Ministers in their former articulation of what is important to them, but by 37 Labour MPs who signed a letter in opposition to the erosion of our jury trial rights by clause 1 and other similar clauses. I will name just a few of them: the Mother of the House and the hon. Members for Leeds East (Richard Burgon), for Walthamstow (Ms Creasy), for Liverpool Riverside (Kim Johnson), for Salford (Rebecca Long Bailey), for Liverpool Wavertree (Paula Barker) and for Norwich North (Alice Macdonald). They are very far away from me on the political spectrum—some of them could not be further away—but, along with their other colleagues, they are clear that the proposals are wrong, and I wholeheartedly agree with them on that.
Those Members—Labour Members—rightly say that these proposals are “madness” and will cause more problems than they solve and that the public will not stand for this erosion of a fundamental right, particularly given that there are numerous other things that the Government can do more effectively to reduce the backlog. I guess that where there are 37 Labour MPs willing to put their name to a letter, there are many more concerned in private, and I am sure that various Members were allowed to be absent from the estate for some of our earlier votes.
I ask Government Members to think about their colleagues and the difficult position that they will put them in if clause 1 and associated clauses are passed. The Government have quite simply failed to articulate why these proposals are the only way forward. The Government might have received a more sympathetic reception had they truly exhausted all the other options—if they had stretched every sinew since their election to tackle this issue.
Rebecca Paul
The removal of the cap on sitting days appears to be bringing the backlog down, which I think everyone in the Chamber can agree is a good thing. Why are the Government not looking at that, projecting it forward and taking that into account before making radical changes that remove rights of citizens?
Dr Mullan
It seems that my hon. Friend has been reading the same reports from the Criminal Bar Association as I have. They were reported in the press last weekend or the weekend before, I think, and identified a number of regions, according to their analysis, where the backlogs were coming down as a result of the changes that were already being made.
Let us be clear, we are sympathetic to every single victim who is waiting longer than they should for a jury trial. As the Minister kindly accepted in the evidence sessions, it would be totally wrong to say that those of us across all the elements of the political spectrum who oppose the changes do so with any kind of disregard or lack of sympathy or care for victims and what they are going through. Some of the ways in which those long waits have been articulated and framed as caused by jury trials is not helpful, because less than 10% of drop-outs occur post charge. That figure is coming down this year, so the number of people who are dropping out post charge is reducing.
Rebecca Paul
Would the shadow Minister also be interested to understand the impact of the three-year suspension on sentences that went live just a few weeks ago on the projections going forward and on the impact on the Crown court backlog?
Dr Mullan
Indeed. I hope that the Minister can start to address the figures from the Criminal Bar Association, in particular, and to articulate whether she agrees or disagrees with them. If she disagrees, why? As the Criminal Bar Association makes clear, if the Government had sight of that data—they would have known ahead of the Committee’s evidence sessions, and potentially some of the earlier stages of the Bill, that those figures were coming down—why did they choose not to make such potentially important information available to those of us considering the Bill? It is not helpful for Members to quote waits of four or five years for people to get to trial when, in fact, those figures can relate to the delay between the alleged offence and sentencing. Yes, waits for trial from the point of charge are too long, but that is just part of the picture.
Of course, the obvious weakness in the Government’s arguments that this is a measure to tackle what we should all consider to be a temporary problem—getting back to our historical court waiting times—is that these measures are permanent, without any plan to reverse them when the backlog is down to pre-pandemic levels. As I have said, we have precedent for that. During world war two, when we made changes to the number of people sitting on juries, we reversed those changes when the crisis was resolved.
The Government have announced an intention to recruit and train a further 2,000 magistrates in the next financial year. That is welcome, but recruiting and training magistrates takes time, and, in fact, the delays in the magistrates courts themselves loom over us. On the other hand, the Bar Council rightly points out how many barristers have left the profession. Those are trained, ready-to-go professionals, choosing not to practise criminal law, who could quite easily return to criminal practice, compared with having to train a magistrate from scratch.
What is missing from the Government’s approach is any serious attempt to make the most of the capacity that we already have. Court sitting days are still being wasted. Yesterday alone, 58 out of 515 Crown courtrooms sat empty—that is 11%. I am sure that, as we go through the day and proceedings move forward, we will get the figures for today. I imagine that those will be in line with every other day that the Idle Courts X account, which I think those of us following this debate have become great admirers of, shows day in, day out: Crown courtrooms sitting empty.
Trials also still collapse due to basic administrative failures. None of the problems are solved by curtailing the right to elect. As I have said, only a few years ago the Justice Secretary described jury trials as fundamental to our democracy—a sentiment that every Member of this House must share—yet now, in office, he appears willing to curtail them in the name of expediency.
This proposal also was not in the Labour manifesto at the election. A change of this nature—an unprecedented erosion of a fundamental right that we have all enjoyed for hundreds and hundreds of years—was not in that manifesto. I think that makes it extremely difficult for the Government to insist, particularly in the Lords, where I am sure very many Members will have serious concerns, that they have any kind of democratic mandate to push through these reforms.
Of course, we have been here before. In what will come as little surprise to many Members, just as with Labour’s current proposals to fatally weaken the punitive elements of our justice system by letting serious violent and sexual offenders out of prison earlier, Jack Straw, the then Justice Secretary, also proposed removing the right to a jury trial in either-way offences when Labour was last in office. As is the case today, Members across the House and stakeholders fought against, and successfully defeated, those proposals.
We can therefore do away with the pretence that this is entirely the workings of an independent figure in Sir Brian Leveson. Although I have no doubt that he came to his conclusions independently, I imagine that those old proposals had been sat in the Ministry of Justice, waiting for the right Minister for civil servants to press this idea on, and they found that in our Justice Secretary and our Prime Minister.
We would be right to fear that it is the thin end of the wedge. Often such arguments are hypothetical: we say, “Well, we think this is the thin end of the wedge; some future Government or future Minister will want to go further.” Thanks to the plans being leaked, we know what the current Justice Secretary wanted to do. He wanted to go much further than even the proposals we see before us by removing jury trials for offences carrying sentences of up to five years—five years! Where will the Government go next if they succeed with these proposals?
Sir Brian Leveson’s review made clear that the estimate of a 20% reduction in trial times is subject to what he described as “very high levels of uncertainty”. That uncertainty reads across to the other measures, including clause 1, which we are considering today. He said that it was very important that the Government undertook further detailed analysis before moving ahead with those proposals. When I put that to him during evidence, he simply said—I am paraphrasing but I think it is a fair and accurate description—that that is now a matter for the Government, and he was not willing to be drawn on whether they had actually done that further detailed analysis.
I brought up the main additional piece of analysis that the Ministry undertook, which was a stakeholder engagement exercise—not a typical one that seeks to measure and come up with firm outcomes. It found that the time saving was between 10% and 30%, so there is a huge variation in what the Government may or may not achieve, and, fundamentally, it is potentially very different from what even Sir Brian recommended.
Jury trials are not an obstacle to justice; they are a safeguard against its abuse. They ensure that the most serious power that the state holds—the power to convict and imprison—is exercised, where possible, with the consent and involvement of the public. If we allow that safeguard to be weakened, we should not be surprised when public trust in the justice system continues to erode. The answer to a justice system in crisis is not to strip away centuries-old protections; it is to make the system work as it should. That is why the proposals are wrong and should be opposed.
If the Government are serious about reducing backlogs, there are obvious steps they could take that do not involve weakening constitutional safeguards. I will come back to those at further stages, but I draw Members’ attention to the evidence given by the operations director in His Majesty’s Courts and Tribunals Service—the civil servant in charge of making our courts run more smoothly, efficiently and productively. I asked him what he thought were the priorities for bringing down the Crown court backlog. He mentioned lifting the cap on sitting days. He welcomed that and said it made a big difference. The other examples he gave were improvements to prison transport and to listing. None of those priorities had anything to do with jury trials. The man charged with making our system run more efficiently, when asked to list his key priorities, did not say anything to do with jury trials in his first four points. As I have said, a second report from Sir Brian goes through a whole range of measures that will improve the efficiency and productivity of our courts. We have some further amendments for later stages to tease out some of those, and I look forward to considering them.
Let us be clear. The burden on this Government is extremely high, as it should be, to make the case for unprecedented changes to halve the number of individuals able to have a jury trial. The Government could have spent time—two or three years—hammering the uncontroversial things that have political consensus and are able to make a difference. They could have looked at Liverpool Crown court, which does not have a historical backlog. As Sir Brian said in his evidence, to some extent, every court has a backlog of cases waiting to be heard, which is helpful for managing those cases, but there are normal levels of waiting time that are accepted without people having to go back to the judge and ask for more time.
As I understand it, the Minister has not visited Liverpool Crown court in the last 12 to 18 months. She can correct me if I am wrong. I do not think the Deputy Prime Minister has visited Liverpool Crown court either.
The Minister for Courts and Legal Services (Sarah Sackman)
I have visited lots and lots of courts.
Dr Mullan
Indeed, but, as I said, I do not think the Minister has actually visited the court that is most successfully managing and dealing with these issues, which is somewhat odd. I would have been visiting that court and trying to understand and replicate, in detail, every single thing that it does. If, in the end, the Government had found something that made the difference we all want, there could have been a different conversation, but they chose not to do that.
As I put to the Minister during our evidence sessions, politicians and Departments have only so much capacity and political attention, and only so much they can do with their time. Instead of investing that time, energy and attention into the detailed work of doing things better and improving the system, the Government are embarking on a reform programme that I suspect will end up overwhelming the Minister’s time. It will be a huge distraction from the very hard and detailed work that she needs to lead. I accept that she will try her absolute best to continue to deliver across the spectrum, but the political reality will be very different.
We oppose clause 1. We tabled an amendment that would, to some extent, limit the damage that it does, but we are clear that it should not proceed at all. The Government have completely failed to articulate robustly, and with clear, reliable data, the impact that it will have. They have not answered the very many criticisms put forward by those practising in the system every day about what will have an impact, and they have not secured the Opposition’s support for the curtailment and erosion of a fundamental right that has been with us for hundreds of years.
Rebecca Paul
I thank the hon. Lady for making that point, and I of course agree. Clearly, there is not a consensus, which is why we are here today, but we can categorically state that most knowledgeable and experienced people working in the justice system are against what this Labour Government are trying to do.
Dr Mullan
The policy adviser of the CPS does not represent the individual views of all the different people who work for the CPS. The suggestion that, because the policy lead or the senior management team have a view, everyone who works for the CPS thinks that this is the right thing is obviously complete nonsense.
Rebecca Paul
I completely agree with my hon. Friend. If I recall correctly, the hon. Member for Amber Valley has previously worked in the CPS—she might want to disclose her interest.
Rebecca Paul
I thank the hon. Lady for making that point, and I hope that she is comfortable having put that on the record. It is good to hear her view.
Dr Mullan
People who work for the CPS have privately expressed to me that they are against these proposals but, as I have said, the idea that a chat with a few former colleagues is representative of the views of the thousands of people involved in different ways with what the CPS does is completely unsustainable.
Rebecca Paul
My hon. Friend makes a very good point. I completely agree with him, and I remind the Committee that most people in this country are against these changes. Most people who know about the justice system are against the changes—[Interruption.] I know it is really hard for Labour Members to hear that they are not on the side of the people on this one. How has it all gone wrong? They have forgotten who they are and who they represent. It is a sad day.
Rebecca Paul
I thank the shadow Minister for that point; I share his concerns. There is also a question regarding whether unpaid volunteers will even want to take on such a serious role that involves handing out two-year sentences—that is quite a responsibility.
The outstanding caseload in magistrates courts has been increasing in recent years. In September 2025, the outstanding caseload was around 373,000, which was a 74% increase compared with pre-pandemic levels in September 2019. The shift of cases from the Crown court back into the magistrates court is simply moving the issue to a less suitable court to deal with it. It is simply moving the problem around, rather than actually addressing it.
Summary trial through the magistrates court was always designed for the purpose of swift justice in low-level cases. By removing the right to elect for a jury trial, in combination with increasing magistrates’ sentencing powers to two years’ imprisonment and removing the automatic appeal against conviction, important protections are being removed, and the groups that will be impacted most detrimentally are ethnic minorities.
Magistrates are unpaid members of their local community who volunteer to act as magistrates. There is no requirement for them to be legally qualified. That may well be fine for summary-only offences, such as low-level motoring offences and minor criminal damage, but it is not appropriate for more serious offences. Many magistrates do an excellent job and give up their time selflessly for the benefit of their community. In spite of that, I do not believe that they should have the power to send someone to prison for two years. Let us all remember that magistrates can be as young as 18.
In closing, I want to make one last point. This change was not in the Labour manifesto; indeed, there is no mention of any changes to trial by jury at all. Only one such commitment was made, which Government Members appear to have forgotten. To quote from the Labour manifesto:
“Labour will fast-track rape cases, with specialist courts at every Crown Court location in England and Wales.”
That is on page 67, if anyone needs to refresh their memory. That is what the British people voted for. The Bill could have been so different if clause 1 had started with that, instead of jeopardising fair justice for many defendants. It is such a shame that a Government with such a historic majority have so quickly forgotten the change they promised, and whom they fight for and represent.
Sarah Sackman
Let me begin by saying that the Bill has been prepared with precisely the people and communities who elected us and gave us our mandate in mind. The Labour party manifesto contained one word on the front cover: “Change”. It was not an acceptance of the status quo—a brittle criminal justice system with record and rising backlogs, which we inherited from the previous Government.
Rather than sit idly by, we are a Government who govern by choosing, and the choice we make is that, when we see a problem, we set about fixing it. We do so in a way that is informed by our values of equality, fairness and social justice. We also do so in an evidence-based way, which is why we commissioned an independent review of the criminal courts, led by Sir Brian Leveson and ably supported by Professor David Ormerod and others. They produced a detailed and comprehensive analysis that spoke to the depth of the crisis in our criminal justice system and the impact that the delays are having across the piece, not just on those impacted by crime but on those defendants on remand languishing in jail, whose lives have been put on hold, perhaps for crimes they did not commit. They spoke to the long-term challenges in our criminal justice system and the changing nature of evidence in our system, involving more digital and forensic evidence, all contributing to a picture in which trials are now more complex and take twice as long as they did in 2000.
In that time, there has been no reform of our criminal justice system; instead, as we have heard from a number of Members today, there has been a chipping away of the Department’s budget, underinvestment, the stripping back of not just legal aid but sitting days, the closure of more than 40% of our courts and people leaving the Bar in droves, all of which have driven the backlogs—and there is consensus that we need to do something about them.
I was interested in the remarks made by the hon. Members for Chichester, for Brighton Pavilion, for Bexhill and Battle and for Reigate, and my hon. Friend the Member for Bolton South and Walkden, all of whom called on this Government to pull every lever at our disposal. Here is the thing: I agree. We should be doing all those things, and indeed we are. We are not waiting to begin on the efficiency drive so desperately needed and called for by Sir Brian’s report and by those across the criminal justice system.
Sarah Sackman
The hon. Member started with a long digression into trial by ordeal. I hope this Committee will not become a trial by ordeal, but I find the brass neck approach to this from the Opposition surprising, given that they cut the Department’s budget in real terms, while we have invested in record levels of sitting days and have, I am proud to say, announced that we are lifting the cap on sitting days next year. I intend to get back to my point, but, interestingly, we are beginning to see the progress that our measures have made. Last quarter’s figures show that the backlog continues to rise—it is a snapshot—but we are starting to see the impact of the investment in a record number of sitting days and the lifting of the cap, which we know will be beneficial.
We have been clear from the start, following the expert recommendations of the independent review of the criminal courts, that three things will be needed: major investment in sitting days, the £92 million in criminal legal aid for solicitors that we invested in the early days of this Government and the committed uplift of £34 million to advocates fees, and a record settlement for the CPS.
Sarah Sackman
I will not take any more interventions; I want to make progress. The point is that we are already beginning to see the investment aspect of this.
The second pillar of how we address the backlog, which many have commented on, is efficiencies, and we have part 2 of Sir Brian’s report. In his speech on his vision for the justice system, the Deputy Prime Minister committed to a number of measures that are already under way. We will get blitz courts in London and the south-east under way this month, aggressively listing cases to get through them more efficiently. A pilot for AI-driven listing, working with the judiciary towards a national listing framework so that we end the postcode lottery on listing and list more efficiently, investment committed to case co-ordinators and driving case progression so that we are using the limited resources at our disposal most efficiently are all examples of taking forward greater efficiencies, which are desperately needed.
Sarah Sackman
Of course that is right. No one is talking about the abolition of jury trials. We have said, and I will say repeatedly, that juries are a cornerstone of the British legal system and of our legal culture. We are preserving jury trials for the most serious cases. By seeking to tackle the shameful delays in our criminal justice system, we are seeking to ensure that, where jury trials are appropriate and very much necessary, they happen in a timely fashion. There is no point in having a jury trial if it comes one, two or three years after the fact, when witnesses are pulling out, the quality of evidence has worsened, people’s memories fade, and quality justice is simply not delivered. The state’s fundamental obligation is to deliver a fair trial.
Under our existing system, as a society we have already made a threshold choice about who accesses a jury trial and who does not. Currently, 90% of cases in this country are tried—fairly, robustly, rigorously and independently—without a jury. This debate is about where that threshold should be, not about a complete abolition of jury trials. It is about a pragmatic and proportionate threshold change to respond to the issue of timeliness, which is currently detrimental to the state’s delivery of a fair trial to all.
Sarah Sackman
The hon. Member is right. Where currently a defendant charged with a triable either-way offence has the ability to choose trial by jury in the Crown court, even in a scenario in which a magistrates court has accepted jurisdiction over their case, that ability to choose is removed by clause 1. Currently, defendants do not need to justify that choice; presumably they choose it because they consider that they will derive some advantage from it. The reform that we are making is to remove that ability to choose and, rather, to place the responsibility with the court to allocate the mode of trial according to the seriousness of the offence.
There was much discussion raised by the hon. Member for Bexhill and Battle, and I believe one or two others, about the approach, and whether we should have an approach driven by the characteristics of a particular defendant—whether they are of good character, whether they have previous convictions—but that is not the approach we have chosen to take. The approach we have chosen to take is one in which it is the expert court, independently, that is triaging the case and allocating mode of trial based on the seriousness of the case. The best and most objective proxy for that is the likely sentence and the allocation guidelines, much in the same way as magistrates currently allocate trials in their mode of trial hearings.
Dr Mullan
The Minister is an extremely articulate individual. Will she just confirm that she agrees that, as the hon. Member for Brighton Pavilion pointed out, the Government are abolishing the right to elect, so it is perfectly reasonable for individuals to use the term “abolish” in relation to some of these reforms—because they are abolishing the right to elect?
Sarah Sackman
For those watching on TV—which is probably my mum—I will be absolutely clear: the Government are not abolishing jury trials. The Government are preserving jury trials for the most serious cases, and we are working in this way to ensure that those trials are fair and timely.
Sarah Sackman
What clause 1 does is remove the ability of a defendant to choose where they are tried, which, at the moment, they have a right to insist on. So we have—
Sarah Sackman
Let me finish my sentence; you asked me the question. We are removing the right to elect, and removing it completely. The right to elect means, notwithstanding the fact that under our current system—by the way, the right to elect does not exist in Scotland. I do not think any of us here would suggest for one minute that Scotland does not have a fair and independent justice system. It operates in a different way. The right to elect does not exist in a whole host of jurisdictions that have far lesser uses of jury trials than ours. What we are removing is the ability of the defendant to insist on their choice of trial, notwithstanding the seriousness of the case.
The CPS data shows that last year, under the current system, that happened in some 4,000 cases where the magistrates courts had accepted jurisdiction. In other words, under the magistrates courts’ existing sentencing powers, which currently stand at 12 months, they could hear that case and hear it fairly. They could also hear it more promptly because, as we know, the backlog is less in the magistrates court, and when the same trial that could be heard in the magistrates court is heard in the Crown court it takes four times as long, so there is swifter justice in that sense. Under the right to elect, the defendants in those 4,000 cases said, “I want a jury trial.” Under the current legislation, they can insist on that choice.
Some Members may say, “Actually, we think that is really important,” and I understand that that is the position of the Green party and the Opposition. We say something different for two reasons—one pragmatic, one principled. The pragmatic point is that, under the status quo—which we all agree is failing everybody, and we are implored to do something about the backlog—it is pragmatic and proportionate that cases that can be heard more swiftly and more proportionately, and be retained in the magistrates court, should be. It should be the court that triages that, in the same way as—to use the health analogy—if I went to A&E on a Saturday night with my child, and my child had a graze that could be dealt with by a nurse, if I insisted that it had to be seen by a specialist consultant, the answer would be, “Well, no; the person who needs to be seen by a specialist consultant is the person who has a specialist condition.” The triaging is done by the experts.
Sarah Sackman
I will make a little progress. As I have said, where a magistrates court has determined that an offence is suitable for summary trial there, clause 1 removes the ability of a defendant to insist on their choice of venue. The decisions about venue and mode of trial will rest with the court. That allocations process ensures that decisions about jurisdiction are made solely by the courts, so that cases are heard in the most appropriate venue according to their severity and complexity. There are thousands of cases in the Crown court caseload where the magistrates court has indicated that it has sufficient sentencing powers to hear the case, but a defendant has elected for jury trial.
Dr Mullan
I wish to pick up on a point the Minister made earlier, as interventions from other Members hampered me from doing so at the time. She hinted in her earlier remarks that although the total backlog is rising, there have been some improvements. I wonder whether she was attempting to address my questions around the Criminal Bar Association saying that the backlogs are falling in a number of areas. Could the Minister clarify whether the MOJ accepts that the backlogs are already falling in a number of courts? If it does not, what is the gap between what the CBA says and the Government’s position?
Sarah Sackman
I was coming to that point, but as the hon. Member has raised it, I will address it now. First, I put it on record that any suggestion that the Ministry of Justice or I have sought to bury good news is totally false. I would be the first person to be screaming it from the rooftops if our measures and our investment, which we made in contrast to the previous Government, were actually working. The fact is that at the last projected figures, in December, the backlog still stood at over 80,000 and it continues to remain high—slightly up from the previous quarter.
Sarah Sackman
I refer the hon. Member to the summary factsheet that was produced, which shows all of what I have described very clearly. I will ensure that every Committee member has a link. There was also a helpfully produced website by the MOJ, which synthesises all of these facts, all of the modelling, which demonstrates all of these things. I understand that she is looking at the formal impact assessment, but if you go on the website and look at the factsheet—all of which has been shared with stakeholders and the media, and I will ensure that she has the model she seeks—I can assure her that on the MOJ’s forecast of the growth in the backlog, even with maximum investment and ambitious efficiency we do not begin to reduce the backlog. That is our analysis, and it is what supported the IRCC’s analysis. It is only when you do all three things—investment, efficiency and structural reform—that you bring down the backlog.
Dr Mullan
I think even though the Minister did not directly and clearly say it, there was an acceptance there that the backlog is falling in a number of areas. A question that flows from that: what analysis has been done on why? I imagine this is something that the Ministry of Justice is all over like a rash. It is having to do something that is opposed by many people. Even if the Minister thinks it is the right thing to do, the Minister will accept it is a reduction in the rights of citizens, even if she thinks it is justifiable. If the Government’s main argument—that this will not work without removing jury trials—is not being demonstrated in a number of Crown courts, why is that? What has the Minister done rapidly to understand why they are coming down and what is transferable, right now, to the other courts?
Sarah Sackman
Just to be absolutely clear, I have not accepted the CBA figures. What I have told you, and everyone here, is that on the last published figures, the backlog continued to rise between September 2025 and December 2025. I accepted that it may be that in some courts there are signs of improvement—
Sarah Sackman
Of course, the Post Office Horizon scandal was one of the great miscarriages of justice of recent times. However, it is important to remember that we are discussing the whole system and that, of course, for the most serious crimes under a reformed system, we would be retaining jury trial. It is also important to remember, as I think even those representatives from the criminal Bar accepted, that there is no constitutional, absolute right to a jury trial. If that were so, the 90% of people whose cases are dealt with in the magistrates court would have a right to insist on a jury trial. This whole debate is centred around the appropriate way to treat that cohort of cases in the middle—between summary-only, which stay the same, retained by the magistrates, and all the indictable-only cases, or indeed anything likely to receive a sentence of over three years, which retain a jury trial.
Sarah Sackman
Let me just finish my sentence. This whole debate is located around a relatively narrow group—although we are still talking about thousands of cases—of triable either-way cases and those likely to receive a sentence of three years or more. It is why the question about jury equity, posed by the hon. Member for Brighton Pavilion, interestingly relates somewhat to—
Prison Officers: Mandatory Body Armour
Kieran Mullan Excerpts(3 weeks, 2 days ago)
Westminster HallRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Mr Betts. I congratulate my right hon. Friend the Member for New Forest East (Sir Julian Lewis) on securing this important debate. I also thank the hon. Member for Washington and Gateshead South (Mrs Hodgson) for the work that she has done in relation to her constituent. I pay tribute to Claire. She has taken what must have been a horrific experience and, rather than letting it overwhelm and subdue her, used it to empower herself to have a voice on this issue for the benefit of others.
I record my thanks to prison officers and prison staff across the country. They go to work in difficult, dangerous conditions, doing a job that most of us would struggle to imagine. I come from a public service background—I was a doctor, I volunteered as a policeman, my mum was a nurse and my dad was a policeman—and I have always been struck by the contrast in our public discourse. It is interesting that we have an awareness of, and give our recognition to, those sorts of public emergency service workers but we do not do the same for prison officers.
Prison officers do a job that is just as important, if not more important, and under more difficult circumstances. I know that multiple Secretaries of State for Justice have tried to address that with initiatives to change the public’s perception and help them recognise how important that work is. I absolutely recognise it, and I think that prison officers should be held in exactly the same esteem as other emergency service workers, because that is what they are.
In discussing violence, to some extent this debate has focused on blades because of what happened to Claire, but we have seen violent assaults that have used whatever was to hand. Only two weeks ago, we had reports of an offender who attacked a prison officer with a plastic knife, so it does not matter what the particular weapon is. In recent months, we have seen assaults across the estate using boiling liquids and makeshift implements.
There are much broader issues around the safety of officers. After the appalling attack in April last year on three officers at HMP Frankland—the same place where Claire was attacked—Ministers commissioned a snap review and announced, in June last year, that protective body armour, meaning stab-proof vests, will be mandatory for officers working in close supervision centres and separation centres, with segregation units in the high security estate also benefiting from the roll-out. I welcome any sensible steps to make it more likely that officers will go home safe.
In September 2025, the Minister for Prisons, Probation and Reducing Reoffending told Parliament that “stab-and-slash-resistant” protective body armour
“will be made and issued as quickly as possible”
and that it was expected to be issued “by autumn 2025”. Later that month, the Government announced £15 million of investment, increasing the number of vests available to staff from 750 to 10,000, including 5,000 to equip every officer working in long-term and high security prisons. That announcement also stated that prisons had already begun to receive kit that week, “ready to be worn”. Those are great and welcome commitments.
The problem is that when Parliament has asked very simple questions, namely how many of those vests have actually been issued, Ministers have not been able to answer. In October, the Government said that the roll-out across the long-term and high security estate was expected to begin during 2026. In February this year, when asked in the Lords specifically how many of the 5,000 stab-proof vests for high security prisons have been issued, Ministers again did not provide a number but just said they
“expect to begin implementation across the estate”
this year.
My first set of questions to the Minister is straightforward and factual. How many stab-proof vests have been procured since September? How many have been delivered to prisons? How many have been individually fitted to officers? What proportion of the long-term and high security estate is now operating with every officer equipped as the Government promised?
Secondly, will the Minister set out clearly what “mandatory” means? We know that protective body armour is mandated in close supervision centres, separation centres and high security segregation units. We also know, from a September 2025 written answer, that body armour is already issued for Operation Tornado deployments and for operational response and resilience unit deployments, and that it is required for planned use of force or high-risk prisoner management. We also know, however, that the question of routine issue across other prison categories is very much alive. In Justice questions, a Labour Member told the House,
“Unlike in category A prisons, prison officers at HMP The Verne and HMP Portland are not routinely issued with protective body armour”,—[Official Report, 17 March 2026; Vol. 782, c. 750.]
and they asked for appropriate armour for officers regardless of category. I ask the Minister: are the Government now considering the provision of appropriate body armour for all prison officers irrespective of the category of prison in which they serve?
Will the Minister provide a clear and comprehensive statement following this debate—as I appreciate he will not be able to go through all the details now—on where body armour is mandated on a unit-by-unit basis, where it is mandated by activity, and where it is available to officers if they want it, but is not required? That level of transparency is essential for the House, given the promises and pledges that the Government are making. We welcome them, but they do not seem to be transparent about what they are actually delivering.
The point was made that it is not about just saying, “Here’s some armour—get on with it.” We need detail on the weight of the armour, the heat burden, the cover design, and what in-life monitoring and replacement cycles are in place. Those are also important, as is how the Government ensure proper fitting and equality of provision, particularly in relation to female staff.
I am afraid the Government have a lot of work to do. I know the Minister will be critical, as others have been, of our time in government, but if we look at their record in government when it comes to prison officer numbers, they are down. In March 2025 there were 22,737 full-time equivalent band 3 to 5 prison officers in post. As of December, that was down by around 700 to 22,067, and that builds on drops from their earlier time in government.
Although the previous Government took steps to equip officers by rolling out body-worn cameras and introducing safety tools alongside a clear emphasis on training and de-escalation, I recognise we should have gone further on the provision of body armour and other equipment where officers in the POA felt it was in prison officers’ interest, and I regret that we were not able to. As the Minister knows, we have worked together on the change to the law for whole-life orders for people who murder prison officers on duty or off duty. We worked together on that successfully on a cross-party basis. We support the Government on measures that are helpful.
I want to finish with Claire. The offender who attacked Claire is currently held in HMP Frankland in a separation centre and is subject to isolation. We have already discussed the attacks that took place at that centre where people were gravely injured. Sadly, we have seen the Government give thousands of pounds of compensation to people who have been responsible for vile crimes in isolation centres because of a breach of their human rights. That is on the record and we know that that has happened. The Mirror reports that the same person who attacked Claire—the person I am sure the Minister will get up and condemn; I am sure the Minister will pay tribute to Claire and say how fantastic her campaigning is—will get compensation from the Government for having been in an isolation unit. That would be a disgrace and deeply insulting to Claire and all the other prison officers who would see that as an insult after what Claire had gone through.
I ask the Minister to write to Claire’s MP, the hon. Member for Washington and Gateshead South, to tell her very clearly—if he cannot tell us now—whether the Government have paid or are going to pay compensation to the man who so brutally attacked Claire? He does not deserve a penny of taxpayers’ money. When will the Government bring forward their promised plans to review the legal framework through which these vile people get taxpayers’ money because apparently we have breached their human rights?
In the response to the independent review of the isolation units, the Government promised to bring forward a review of the framework. They still have not done that. Can the Minister tell us, following the cases in the public domain, whether there have been any further claims lodged by offenders because of the time they have spent in isolation? I think we deserve to know that, and we deserve to know for certain that the person who attacked Claire, who we are all here paying tribute to, will not get a penny of taxpayers’ money.
Courts and Tribunals Bill (First sitting)
Kieran Mullan ExcerptsWednesday 25th March 2026
(3 weeks, 3 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: Public Bill Committee Amendments as at 25 March 2026 - (25 Mar 2026)
The Chair
We will now hear oral evidence from Sir Brian Leveson. We must stick to the timings of the programme order that the Committee has agreed, so we have until 9.55 am for this panel. Will the witness please briefly introduce themselves for the record?
Sir Brian Leveson: My name is Brian Leveson. I was a practising criminal lawyer from 1970. I became a silk in 1986. I went on to the High Court bench in 2000, and the Court of Appeal in 2006. I was the senior presiding judge for England and Wales between 2007 and 2009, the inaugural chair of the Sentencing Council between 2010 and 2013, president of the Queen’s bench division from 2013, and latterly head of criminal justice. I retired at the compulsory age of 70 in 2019. I am now the Investigatory Powers Commissioner. I have spent the last 15 months seeking to review criminal justice, a subject which I rather thought I had left behind.
Dr Kieran Mullan (Bexhill and Battle) (Con)
Q
Sir Brian Leveson: No, although I recognise that, in 2015, I looked at efficiency in criminal proceedings. Everybody says that was a wonderful time—no, it was not. I published a report that dealt with efficiency. It was not to incorporate anything that involved legislative change, but in chapter 10, “Out of Scope”, I discussed what Sir Robin Auld said in 2001. Anybody looking at that material would have seen that I was seriously concerned about the way in which criminal justice was proceeding and progressing, notwithstanding the backlog then because of an absence of police officers. What I visualised has actually come to pass.
Dr Mullan
Q
Sir Brian Leveson: Well, I have been visiting Crown courts for 50 years. I personally visited Liverpool Crown court, and I am sure I went to another Crown court, but my team went a large number of Crown courts. I was assisted by three advisers: Professor David Ormerod, who is I think the foremost criminal academic lawyer in the country; Chris Mayer, a former chief executive of HM Courts Service; and Shaun McNally, a former director of crime at HMCS and a former chief executive of the Legal Aid Agency. I had plenty of expertise. I did not need to visit courts; they did. I spoke to a lot of judges, though.
Dr Mullan
I do not want to assume what you may or may not know about Liverpool, but are you aware that Liverpool does not have a backlog in its courts?
Sir Brian Leveson: I am very aware of Liverpool: I am a Liverpudlian. I practised in Liverpool. I know all the judges in Liverpool extremely well. It would be a mistake to think that Liverpool is a microcosm of the country, for lots of reasons. Liverpool has a single Crown court. There are 20-odd courts in one building. It was opened in 1984—I was present. It has its problems, but it is still a very highly functioning court. There is one Crown Prosecution Service area. There is essentially one police force, although there is a second in Cheshire. There is one chief probation officer. Much more importantly, there is a small local Bar where everybody knows everybody else and they all get on with it. That is not the case in other parts of the country.
Dr Mullan
Q
Sir Brian Leveson: Yes, and I have made recommendations. It is critical that the systems join up: the police, the CPS, the defence community, the courts, the judiciary, and the prison and probation services. They all have their own budgets, their own problems and their own priorities. One of the recommendations I made in part 2 of my review—which is not considered in the Bill, obviously—was the creation of a criminal justice adviser whose only responsibility was co-ordinating the work of each of the agencies to try to make them work together. That is where it has worked in Liverpool. But doing that on its own would not be sufficient.
Dr Mullan
Q
“I have no doubt that the MoJ will want and need to conduct more detailed modelling, including through impact assessments of any recommendations taken forward.”
It is a common theme throughout the report that you say, repeatedly, that you expect that the Ministry of Justice will want to undertake more detailed modelling than the modelling you undertook. Are you aware of what, if any, more detailed modelling the MOJ did undertake?
Sir Brian Leveson: That is not my responsibility. What I wanted to say about modelling was this: it is bordering on the speculative to think that you can model all the changes to get one set of results. I am very conscious, for example, of the modelling in relation to the time saved by a bench division. You will know, and doubtless quote it at me in a moment, that the modellers suggest 20%, which I believe is pessimistic. Let me say why I think that is so, because it is very important that the Committee understands this.
How can modelling be undertaken in relation to systems that have never operated? The first question is, “What time would be saved?” The modellers—the analysts—looked to the court service: “How many minutes would be saved by not having to do this with a jury? How many by doing that, and the other?” They also spoke to some judges. I believe they came up with a figure that is far too pessimistic, as I said.
Let me explain why. The dynamic of a criminal trial conducted with a jury is very different from the dynamic of a trial conducted without a jury. Take family work, for example. The judge gets involved. If there is a jury, he finds no facts—every fact that anybody wants to elicit or develop, unless it is inadmissible, they can—but if a judge is conducting a trial, he or she will say, “Well now, what’s the issue in this case? Let’s get down to it,” and, “I’ve got that point; what’s the next point?” That changes the dynamic of the trial entirely.
Indeed, I have spoken to district judges who try rapes in the youth court and are also sex-ticketed recorders, so are trying rapes in the Crown court, and they say to me that trials in the Crown court are twice as long as for the same sort of acquaintance-type rape in the youth court. Canadian judges talk about 50%; I am concerned to achieve fair justice, and I need to speed that up because of the backlog.
Dr Mullan
On the right to elect, your report—we are not talking about further work that you are not responsible for—says:
“It has been assumed that disposals per day in the magistrates’ court are in line with the current average.”
So if we change the system, disposals will remain at the current rate. If we are trying more complex, more serious cases, is it reasonable to assume that the disposal time will be the same as for those currently seen for less serious cases?
Sir Brian Leveson: Why do you say they are more complex? They are not necessarily more complex at all.
Dr Mullan
If they are being given sentences of potentially up three years versus, for example, six months, you do not think that will have any impact on the time, complexity or seriousness of the cases?
Sir Brian Leveson: I am not suggesting it will not have any impact; I am suggesting that the time cases take is not necessarily governed by the nature of the charge or, indeed, the eventual sentence. In the 1970s, I could conduct two trials in a day; nobody ever conducts a trial in a day these days.
Dr Mullan
The most specific element of modelling that the MOJ undertook was something called a structured elicitation workshop, which found that the time saved would be between 10% and 30%. At the lower the end, that is half of the 20% estimate that you put forward. Would you accept that?
Sir Brian Leveson: No. I think that is wrong. As far as I am concerned, there will be a considerable time saving and, much more importantly, there will be a cultural shift. At the moment, if you can put your trial off until 2028, what is not to like?
Dr Mullan
Q
Sir Brian Leveson: I do not accept that characterisation at all. I believe that savings in a Crown court will be dramatic, for cultural and involvement reasons, in the same way that family judges get through cases more quickly. If you ask those who are opposed to any change what they think will happen as a result of change, they are going to be—
The Minister for Courts and Legal Services (Sarah Sackman)
Q
Sir Brian Leveson: Yes. At the moment, there are undeniably defendants who are gaming the system. They are charged with a crime, they are told their trial will not be until 2028 or 2029, and they are happy to put it off.
I gave an example in a debate on this subject. I said that in 1970 I would say to defendants in around November, “Well, this is a very strong case. If you are guilty, you are much better admitting it. You get a discount for pleading guilty and you can explain it, which will contain litigation.” More than once defendants would say, “Well, Mr Leveson, I am guilty, and I will plead guilty, but I want to spend Christmas with my kids, so I will plead guilty in January.” Now they can say, “I would like to spend Christmas 2028 with my children.” That was an anecdote from me, but after the debate a defence solicitor from London came up to me and said, “That example you gave—I am having that conversation every day of the week.”
We need people to confront what they have done. I do not want anybody to plead guilty who is not guilty and has seen the evidence. I am not asking to change the guilty plea rate, but in the early days, you pleaded guilty on the first or the second occasion you appeared at the Crown court—now there are many examples of that happening on the fifth or the sixth occasion you are in the Crown court. Each one of those takes a considerable amount of time. That is what is sucking up part of the time.
There are lots of other challenges to the system, which if you have had what I do not say is the benefit or privilege of reading both parts 1 and 2 of my review, you will see that I try to elaborate on there. I am concerned that we need to change the dynamic so that people address allegations that are made against them at the first opportunity, rather than hoping that the victim will withdraw, the witnesses will forget or the case will just fade away. That is the point I am talking about with cultural change.
The Chair
We will now hear oral evidence from Claire Waxman, Professor Katrin Hohl and Dame Vera Baird. It is good to see you and to have you back here, Vera, albeit in a different guise.
I will follow the same procedure as I did in the previous panel, but I want to get more Committee members in, as I know that Members on both sides of the Committee missed out. I ask Dr Mullan and the Minister to try to keep the Front-Bench questions tighter, so that we can get more participation from all parts of the Committee.
Dr Mullan
Q
Claire Waxman: Of course. My role is very much focused on listening directly to victim survivors and families bereaved by homicide, so any changes in legislation and proposals are sense-checked with them. I have been listening to victims since 2020, when the pandemic hit, and have seen the direct impact of the long delays, with cases now going well into 2030. There is a human cost to that. We often say, “Justice delayed is justice denied,” but justice is not abstract for victims. When we delay justice, what it really means for victims is a lack of security and safety, and an inability to process what has happened, to get closure and to move on with their lives; all those are denied. We trap victims in prolonged years of uncertainty, which compounds and prolongs their trauma. I have spoken at length publicly about what that looks like for victims.
You will hear from victims shortly, and a letter signed by 18 victims who have actually been in the criminal justice system and sustained long waits for justice was sent last week. I have spoken to victims, and they want this to end: they want a way out, and they are desperate. They are saying that if having a judge-only trial in a case will mean that they will come out of the system more quickly, they want to see timely justice. Without that, we are seeing a reduction in access to justice, an increase in victim attrition—and not just post-charge, as we have seen an increase of more than 5% in the last five years—and a third of trials breaking down because victims have withdrawn as they cannot sustain staying in the system.
We are also seeing it impact the pre-charge phase. Last year, as London’s Victims’ Commissioner, I published the London victim attrition review, finding that on average 40% of victims withdraw from the system, and that delays are playing a part in that—not just delays in investigation, but the thought of having to wait years to get into court.
Dr Mullan
Q
Claire Waxman: Yes, I am absolutely aware of it.
Dr Mullan
Q
Claire Waxman: That letter was actually around victims who have been criminalised, so it is a different issue; they are dealing with victims who are defendants in the system, not victims who are complainants.
Dr Mullan
Q
Claire Waxman: In that letter, the focus is on the criminalisation of victims, which is awful. The overlap of criminalisation and victimisation needs to be dealt with way earlier on in the system.
The Chair
Kieran, can we just ask a question and get the answer?
Claire Waxman: You would need to ask Welsh Women’s Aid. They have signed up to a slightly different tone of a letter, which is around the criminalisation of victims coming into the system as defendants. It is very different to the victims I listen to—
Sarah Sackman
Q
Professor Hohl: The measures in the Bill that address sexual offences broadly fall into two groups. The first group clarifies and tightens admissibility rules around sexual history evidence and previous reports of sexual violence that may be portrayed as so-called “victim bad character”, tightening that threshold to better protect victims from unnecessary, intrusive and unfounded lines of questioning. We very much welcome those.
There is also a set around special measures, which effectively clarify how they should apply. Those are also very welcome, and my understanding is that they are largely uncontroversial; they seem to be welcomed across the board.
Dr Mullan
Q
“The Government’s proposed reforms will likely create significant operational disruption and practical challenges that pull resources from more effective measures to reduce the backlog. This would prolong the uncertainty that leads many survivors to withdraw support for the prosecution of their abuser.”
Do you accept that the letter does, in fact, also talk about the impact on victims of the jury trial changes?
Claire Waxman: If you read the letter, it focuses on the victim coming in as a defendant, but it is also—
Dr Mullan
Q
Claire Waxman: You have to read the whole context of the letter—you have pulled out one bit. The whole context of that letter really focuses on listening to women who are wrongly being criminalised, as opposed to victims.
Dr Mullan
Q
Dame Vera Baird: Yes, but she is on her own—
Dr Mullan
Oh dear!
Dame Vera Baird: Kieran, you are not listening to what Claire says—she is right. The women’s movement is very disappointed with the Bill because it does not tackle the issue of criminalisation of women. They think that dealing with delays in the list is a very poor substitute, and they will not have it. They want to stand up at last for a proper defence of coercively controlled women who are put into crime—goodness knows it has been long enough coming—but that does not appear in the Bill. The women’s movement is very upset about that, and in my view that has driven this. I do not doubt—
The Chair
Order.
Dame Vera Baird: No, it is not at all disrespectful. Natalie Fleet, who has also been abused, takes the opposite view. She does not want to be weaponised, Kieran, and that is a very sound point. None the less, her example is appalling, and nobody could doubt her. The man was acquitted, but a judge believed her, so what is your argument now? Judges are not fair.
Joe Robertson
Q
Dame Vera Baird: Of course not, and I did not intend to say that. I have been trying to think, since we discussed it, about how I would feel if my experience were being used for a political cause, and it had been a very nasty experience. I might feel the same sort of—I do not know whether it is resentment or disappointment, or whether it is that it was inappropriate. I can well understand that, but many other victims do not agree that this will not help.
Women are waking up every morning, for three or four years, dreading the day when they will have to relive what happened to them in rape cases, or a man who has been very badly beaten up might wake every morning, worrying that he will have to relive it. It goes on and on like that, because there is a right to demand—as, I am afraid, I would phrase it—a trial for relatively small offences. I do not make little of them, but those will be in the queue. If Charlotte’s case is coming up next Monday, all the cases that have elected for trial before hers will be in the queue in front of it.
Dr Mullan
indicated dissent.
Dame Vera Baird: I see Kieran shaking his head, but there is no other way. There is a limited opportunity to give priority to cases. Obviously a very important point is whether the defendant is in custody. Most rape defendants are not in custody, because it is a “one word against the other” case, so they cannot be given any real priority for that reason. We end up very regularly with cases that took as long as Charlotte’s. That is really awful for a large number of victims. It also gives very little to the people who want this right: 64% of people who elect for trial plead guilty before they get to trial. You have to ask why they are electing for trial if they are going to plead guilty, but they have blocked up the jury list all of that time. This is about freeing up the jury list.
Jess Brown-Fuller
Q
The Chair
Impressively brief. If we can have those kind of pithy answers—and pithy questions, by the way—we can get through our questions and cover as much ground as possible.
Dr Mullan
Q
Farah Nazeer: I am conscious that there are victim-survivors here as well, so I will be brief. In the Bill, we are pleased to see the repeal of the presumption of parental involvement. That is absolutely critical. We know that the vast majority of survivors of domestic abuse do not go into the criminal justice system. Only one in five women will ever report to the police, so they find themselves in the family courts. The repeal will make a huge difference to them.
We now need to see the culture around that change. We have had a pro-contact culture in the family courts for a very long time. We can see through our experience working with vast numbers of survivors every day that the vast majority of judges are not as aware as they should be of domestic abuse and coercive control—they are not trauma-informed. We need to see judges trained to be able to apply this effectively.
We also see that, across all those other safeguarding contexts for children, such as health and safety, police and schools, there is mandatory training required, and a framework and infrastructure. Strangely, there is not the same infrastructure here, where you are actually talking about children’s lives and wellbeing. I previously heard a comment about how we cannot mandate judges to have training, but perhaps you should be mandating, because you do so in every other safeguarding context.
For further context, the majority of people affected by domestic abuse are children; we have more children in our refuges across the country than we do adults. It is a huge safeguarding matter, and I would encourage the Committee to think about mandatory training for judges.
Dr Mullan
Q
Jade Blue McCrossen-Nethercott: I come from an angle of delay being a key factor. While my case was dropped 13 days before trial, from report to court it would have been 1,317 days, which is now becoming quite the norm. I regularly hear fellow victims advising on very similar situations, and how they feel about that and how it changes their perspective on wanting to navigate the justice process. If people are telling us that they would not necessarily come back into the system, for me, that is the clearest possible signal that change is not optional but very much overdue.
We published a letter last week in response to the Bar Council’s letter, just to try to centre lived experience in this conversation and debate, which felt like it had been predominantly missing. In statements of support, a couple of victims have described the process of waiting for court and the delays as “extreme harm”—that was from Victoria. Sarah advised that she felt “suffering, gaslighting and anxiety”.
Charlotte said that report to court was “total agony” and that we need to reduce the suffering. Jane advised that it felt like years on “eggshells, in limbo”. She said:
“Waiting years with no guarantee of getting justice is like torture.”
Charlotte—another Charlotte—advised of the delays that:
“They shape our lives, our ability to move forward, and our trust in justice itself.”
Those are important and strong statements from women describing that process. That is the angle that I come from.
Charlotte Meijer: We have also handed the letter over to one of your colleagues, so that the Committee can read it. I was seen in a magistrates court, so having the recording of magistrates courts that is in the Bill is incredibly important. That transparency, which I did not have, will really change victims’ lives, whether that is just to understand what happened in their trial or to hold people to account.
I did not have a good experience with my judge, but I am still pro my case being seen by a judge. I am so glad that my perpetrator chose that—although there is an issue with that in itself, as they should not be able to choose, and I am glad to see that being taken away. I am so glad I was seen in front of a judge, because to me a judge is educated in all aspects—or should be, as there is a definite need of training, as has been said—while 12 strangers off the street all have their own biases. We know that one in four men are generally perpetrators, so that could be three on the panel that is judging you and your case.
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.
One thing that I think is also really important in this discussion, where there is so much pushback against more cases going to magistrates courts, is that coercive control essentially involves rape—it involves coercive sex—and yet it is seen in a magistrates court. When we talk about how only the worst crimes are being seen by juries, and they need to be seen by juries, what does that mean about all the other crimes, including domestic abuse and coercive control, that are being seen in magistrates courts? Are we saying that they are not getting fair trials as it is? We believe that they are, so why is there such pushback at the moment about more cases going to magistrates courts? Magistrates are laypeople as well, so there is still that accountability from the general public.
Dr Mullan
Q
Morwenna Loughman: Thank you for having us all here. I waited two and a half years for my rape trial to go ahead. It was delayed twice—each time, the day before we were due in court. The second time it was delayed, it was actually confirmed, and then five hours later, on email, we were told that it was not going ahead. He had lied his way out on bail and breached his bail conditions 23 times. During those two and a half years, I lost my job, I lost my home and I developed acute PTSD, a side effect of which was a repeated vomiting syndrome, which meant that I had to go to hospital to have my oesophagus repaired.
I am also here to speak about juries not being bastions of infallibility. The treatment of the jury that I experienced was one of attrition. In particular, the foreman came out at one point and asked the judge, “If she’d been raped so many times, why did she not leave earlier?”
I would also like to talk about the treatment of victims while they are on the stand. During cross-examination, I experienced pervasive and repeated use of rape myths and stereotypes in a way to deliberately mislead the jury against me.
Dr Mullan
I am really sorry for the experiences that you have had, and certainly for any role that we played in government in not better addressing these delays and the challenges that you faced. The consequences of that are really powerfully illustrated by the things that you have talked about, so thank you for sharing that. I really hear all the evidence that you have given.
Sarah Sackman
Q
Charlotte, I wanted to pick up on something that you said. You talked about transparency and about the benefit that the recording of proceedings in the magistrates court would have. We are committed, as part of these reforms, to recording all proceedings in the magistrates court. Can you describe and explain what difference you think that might have made in cases like yours?
Charlotte Meijer: Definitely. After I gave my evidence in my trial, I left. The gallery was not somewhere I could sit safely. It was a tiny bench. His best mate and his sister were sat there, so I could not really go and sit between them.
I had said to the CPS and the police that I might want to come and hear the verdict. I was not given that opportunity, unfortunately. I got a call from my independent sexual violence adviser to say that the verdict had been made and that he was found not guilty. From that day, I really wanted to understand what had happened. For me, it was a very clearcut case of coercive control. I cannot go into too much detail, because he was found not guilty, but there was a huge age difference and there was a power imbalance and so forth, so I never understood how he was found not guilty.
The judge also made some comments. She said that, because I waited eight months to report, I was unreliable, and that I had clearly spoken to other victims of domestic abuse, so I knew what to say. Those comments really stuck by me. 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. It is definitely twofold: I wanted to understand what happened for my healing, but I also still want to hold that judge to account, because the things she said are not true and should not be said by someone who should be in a position of power and education.
I also think there is an important argument to be made around transparency, because people do not feel that the system is transparent—and to be fair, if it is not recorded, it is not. If you cannot sit in the gallery, if no one can watch and if there are no transcripts, then it is not. It is important to have the ability to record everything so that people can listen back, whether that is for their healing or for their understanding, or to hold people to account. We need to be able to hold people who are in power to account.
The Chair
I know that Kieran and Jess wanted to come back in. Kieran Mullan first—briefly, please.
Dr Mullan
Q
Morwenna Loughman: I was aware of it. He is actually appealing the length of sentence at the moment, but has not yet been granted leave to do so.
Dr Mullan
Q
Obviously, an increased sentencing length means that someone could be sentenced for three years in a magistrates court, without a right to appeal that sentence. This question is to all three of you. Do you think it is important to ensure that, even if we increase sentence lengths in the magistrates court, victims have the opportunity, in certain circumstances, to appeal sentences that they think are unduly lenient?
Charlotte Meijer: Yes.
Jade Blue McCrossen-Nethercott: Straight and to the point: yes.
Court and Tribunal Transcripts
Kieran Mullan Excerpts(3 weeks, 5 days ago)
Westminster HallRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Mr Pritchard. I thank my hon. Friend the Member for Keighley and Ilkley (Robbie Moore) for opening the debate on behalf of the Petitions Committee. He is proving himself to be a consistent and doughty champion of victims and the issues that they raise with him. I also acknowledge the long-standing campaigning of the hon. Member for Richmond Park (Sarah Olney) in this area.
I welcome today’s opportunity to discuss this issue as part of our wider debate about transparency in the justice system. Sadly, I think that I can predict to some extent what the Minister will say: the phrase “14 years” will make an appearance; there will be lots of rhetoric about how terrible the previous Government were; and there will be a complete absence of any idea of how the current Government would have managed differently the challenges that the previous Government faced.
I can also be pretty confident about what the Minister will not say. There will be no real engagement with what the challenges of covid presented to our justice system, even though they truly were unprecedented. However, that is the standard that Ministers and Labour have set, not just for justice, but across the Government on issues such as inflation and energy bills. There is no acceptance of the challenges that the previous Government faced and no exceptions made for things outside their control. It therefore should not be any surprise when the present Government are held to exactly the same standard.
In reality, this issue is a good example of what more fair-minded commentators accept as a multi-decade failure to give the justice system and those involved in it the priority and resources they deserve. I am sure that if the Minister and I were to design the justice system from scratch together, we would agree that free access to transcripts was important and, indeed, should just be the default. However, we are where we are.
Sadly, I am realistic about what success we will achieve on the issue of transcripts today, even when a petition has been signed by an impressive 200,000 people. After all, this is the Government who tried to delete the Courtsdesk archive, which has been one of the biggest steps forward for transparency in our justice system in recent years. I raised that issue in the main Chamber because I was deeply concerned about the decision to delete a unique archive of corrected and correlated court listings. In the absence of retrospective access to court transcripts, the work of journalists is absolutely vital, and Courtsdesk had become a valuable tool for journalists, campaigners and others seeking to identify patterns in offending and to expose failings in our justice system.
Rather than seeking to preserve that transparency while dealing constructively with any data protection concerns, the Government moved towards deleting the archive altogether. Of course, the Government’s defence of that decision did not hold up to scrutiny. When the Minister for Courts and Legal Services came to the House and said that there were serious data protection concerns with Courtsdesk, she did not tell us that the Government’s internal processes had found the incident she cited to be low-risk, not even warranting referral to the Information Commissioner’s Office.
At a time when confidence in the justice system depends on greater openness, the Minister for Courts and Legal Services was going to deliver the exact opposite, and that is part of the context for today’s debate. It relates to the broader question of whether the Government are approaching transparency in the justice system with sufficient urgency and seriousness.
The petition speaks to the basic principle that access to justice should not depend on the ability to pay, and open justice is not an optional extra to be considered only once the administrative convenience of the system has been satisfied. The petitioners are right to identify transcript fees as a paywall. For too many people, they are exactly that: a barrier to understanding what happened in court; a barrier to considering making an appeal; a barrier to holding the system to account; and, in some cases, a barrier to justice itself.
That matters not just for journalists and campaigners, but for victims, bereaved families and ordinary members of the public who are trying to make sense of a justice system that is supposed to work for them. There is clearly public demand for greater transparency in the system, which was why the previous Conservative Government started moving in that direction, including through the pilot of making sentencing remarks available free of charge to victims of rape and other sexual offences. That was a start, although I now think that we should have moved faster and further while we were in government.
I find it hard to think of any other walk of life in which we would expect a member of the public who is part of such an important process—it is important for them, for their friends and family, and for the wider justice system—to be asked to remember key things that may or may not have been said in court, and to be asked to be in court every single day if they want to understand the full process, although that might not necessarily be appropriate. What disappoints me in particular is the Government’s resistance not just to making full transcripts available, but on the much narrower and more readily resolvable issue of making transcripts of sentencing remarks available. The Government have refused to accept our proposal—it has been voted on in the Lords—to have such transcripts produced within 14 days and free of charge. They will accept doing that only from spring of next year and not necessarily within 14 days. As we have heard, given the unduly lenient sentence scheme, people need those transcripts quickly if they are to be able to make good use of them.
It is particularly clear that there is public interest in sentencing remarks. I look forward to the Labour Members who spoke today backing amendments that the Conservatives, with cross-party support, are attempting to pass so that transcripts of sentencing remarks are made available. As the Liberal Democrat spokesperson, the hon. Member for Chichester (Jess Brown-Fuller), pointed out, similar amendments have been proposed to allow victims to have even more made available to them, including the route to verdict and bail decisions. Those amendments have cross-party support, so I hope that Labour Members and others will support them when the House considers them this week.
My right hon. Friend the Member for North East Cambridgeshire (Steve Barclay) showed his ministerial experience through the well-articulated questions that he put to the Minister. I will add my own questions to his. It is all well and good for the Minister to talk in warm words about access to sentencing remarks and court transcripts, but do we have an actual date for when the Government will deliver that? What cases will it apply to at first, and what barriers are preventing us from implementing this much more quickly than the Government have committed to?
I pay tribute to everyone who signed the petition, particularly those campaigners such as Fiona Goddard, who my hon. Friend the Member for Keighley and Ilkley mentioned and focused on grooming gangs. That has been a key driver of the demands for greater transparency in our justice system. The Government resisted an inquiry on that matter in a similar vein to how they are resisting transparency in our justice system. I look forward to the Minister giving us concrete answers about how we will make progress, rather than just warm words.
Oral Answers to Questions
Kieran Mullan Excerpts(1 month ago)
Commons ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Dr Kieran Mullan (Bexhill and Battle) (Con)
Right now there are potentially thousands of rapists, paedophiles and perverts, who are responsible for some of the worst offences against women and girls, who this Government are going to let out of prison earlier. That is a disgrace, and at the very least the Government should be transparent about it. When I asked them to tell us what their estimates and modelling were on the number of people who were due to be let out, at first they denied they had any of that information; then they admitted that they did, but refused to publish it. Does the Minister not think that they should be transparent about the consequences of their own policies?
Alex Davies-Jones
I will take no lectures from the hon. Member about transparency when it comes to early release schemes. It was this Government who had to pick up the mess left by the last Government when we came to office, because our prisons were full. Instead of dealing with the issue, they ran away and called a general election. It was this Government who introduced risk assessments to prevent violent perpetrators of crimes against women and girls from being released early in our early release scheme, whereas the Conservatives’ early release scheme included no such protections. I will take no lectures from the hon. Member about how we protect women and girls.
Dr Mullan
I wish that the Minister got as angry about the fact that her Government are releasing thousands of rapists, paedophiles and perverts from prison early. If the Government will not tell us about the reality of the consequences, surely they should at least tell the victims. One of the worst aspects of this policy is the fact that many of those victims will have been given an estimated date for when the perpetrators would be released. That date will now be brought forward, and the perpetrators will get out of prison earlier than the victims were led to believe. Does the Minister think that, at the very least, the Government should write to the victims in advance to let them know that they are letting the perpetrators of those horrendous crimes out of prison earlier?
Alex Davies-Jones
I will tell you what makes me angry, Mr Speaker: it is the fact that the last Government presided over an increase in the number of crimes of violence against women and girls of 37% in just five years. That was not a Government who tackled violence against women and girls. That was not a Government who took it seriously. As for communication and notification, it is this Government who are introducing the victim contact scheme in our Victims and Courts Bill to ensure that victims are notified, which the last Government refused to do. It is this Government who are writing to victims to ensure that they are given information. I will take no lectures about how the last Government tackled these crimes; it is this Government who are getting on with the job.
Marriage Regulations
Kieran Mullan Excerpts(1 month ago)
Westminster HallRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Sir Christopher. I warmly congratulate my right hon. Friend the Member for Dumfriesshire, Clydesdale and Tweeddale (David Mundell)—who I consider a friend—on securing the debate. I could characterise him as a romantic perhaps, given his decision to focus on this topic, and I know from his early-day motion that he has taken a close interest in these issues.
From the perspective of the justice system, marriage is not simply a social institution, but a legal status that carries significant consequences in areas ranging from inheritance and family law to taxation, immigration and parental responsibility. Because of that, the framework governing marriage rightly sits within the responsibilities of the Ministry of Justice. With that responsibility comes an obligation to ensure not only that the legal framework is workable in practice, but that it continues to uphold the seriousness and integrity of marriage as an institution.
The statutory 28-day notice period, the processes surrounding registration, and the complexity of guidance for couples all deserve periodic scrutiny to ensure they continue to serve their intended purpose. Safeguards are essential, and notice periods allow registrars to verify eligibility, while also helping to prevent sham marriages or coercion, but the experiences of couples and registrars suggest there may be circumstances where greater clarity and flexibility would improve how the law operates in practice. However, any move to modernise the framework must be undertaken with care. Reform should not create a system that treats marriage casually or allows the institution to be diluted. Rather, modernisation should reinforce the seriousness of marriage while ensuring the law functions effectively in practice.
My right hon. Friend drew attention to the perspective of Gretna Green—one of the most historic and recognisable wedding destinations in the United Kingdom—which is in his constituency. For centuries, Gretna Green has occupied a unique place in the story of marriage law in these islands. Following the Marriage Act 1753, couples famously travelled north of the border to marry under Scotland’s more flexible rules. That history has become embedded in the cultural identity of the place and has helped to shape a thriving wedding destination that continues to attract couples from across the UK and beyond. Today, that tradition supports not only the ceremonies themselves, but a wider network of hotels, restaurants and local businesses that rely on the wedding sector, and for which my right hon. Friend is a champion and advocate in all the right ways.
The “Love Shouldn’t Wait” campaign launched by Gretna Green Ltd raises a number of practical questions about whether aspects of the current system create avoidable delays for couples wishing to marry. Although the MOJ must rightly approach such proposals with care, it is appropriate that we listen to the experience of those who work daily with couples navigating the system.
From a justice policy perspective, my right hon. Friend’s EDM raised several points: first, whether the current framework provides sufficiently clear and transparent mechanisms for urgent marriages in exceptional circumstances; secondly, whether the system of guidance and administration should be simplified so that couples and registrars alike can navigate it more easily; and, thirdly, whether the continued development of secure digital processes could streamline elements of the marriage registration system, while preserving safeguards against fraud.
However, in pursuing such reforms, we must be careful that the pendulum does not swing too far in the other direction. It is worth remembering that the question of modernising marriage law is not new; over the past decade, successive Governments have recognised that aspects of the legal framework governing weddings in England and Wales warranted wider review.
Most recently, the Law Commission set out a comprehensive package of recommendations for reforming wedding law in its report published in 2022. Among its key proposals was a shift away from the current system in England and Wales, which largely regulates weddings through the buildings in which they take place, towards a model centred on the officiant conducting the ceremony.
Alongside that longer-term review, the previous Government introduced more limited reforms where there was a clear practical need, such as the changes made during the covid pandemic to allow weddings to carry on. However, Ministers at the time were clear that more fundamental questions about wedding law should be considered comprehensively, rather than through piecemeal change. My right hon. Friend has also suggested the appointment of a marriage tsar; I do not know whether he is suggesting that he might be a candidate for that role, but it is something we should look at.
As a member of the all-party parliamentary humanist group, I wanted to touch on the contribution from the hon. Member for Luton South and South Bedfordshire (Rachel Hopkins), because I have a lot of sympathy for the point she made. The Conservative party has not reached a settled policy on it at this stage, but I am personally very sympathetic to her suggestion.
My right hon. Friend the Member for Dumfriesshire, Clydesdale and Tweeddale has rightly drawn attention to the experience of communities such as Gretna Green, where the intersection between legal regulation and real-world practice is particularly visible. By listening to those experiences, and by considering the practical reforms highlighted in EDM 2200 and the substantial work already undertaken on wider wedding law reform, Ministers can help to ensure that our marriage laws remain legally sound and practically workable, while continuing to respect and uphold the institution of marriage itself.
I once again thank my right hon. Friend for securing the debate, and I look forward to hearing the Minister’s thoughts on the concerns raised.
Courts and Tribunals Bill
Kieran Mullan ExcerptsTuesday 10th March 2026
(1 month, 1 week ago)
Commons ChamberRead Full debate Courts and Tribunals Bill 2024-26 View all Courts and Tribunals Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Dr Kieran Mullan (Bexhill and Battle) (Con)
It has been a positive debate in terms of the exchange of ideas, and there have been some fantastic contributions. I pay particular tribute to the hon. Members for Bolsover (Natalie Fleet) and for Warrington North (Charlotte Nichols) for the very personal way in which they made their cases. There is consensus that for victims, the current waits are terrible and an experience that they should not have to go through. It is not only damaging for them as individuals, but some of them drop out as a result. We see perpetrators who would have been found guilty walking away and escaping justice, and we see defendants who would have been found innocent having to wait too long to have the accusations over their head removed.
Dr Mullan
Not yet.
We must have a serious discussion about why that is. It was disappointing for those who sought to put forward a credible analysis of what has happened that the Justice Secretary and most Labour Members did not mention the word “covid” once. In reality, the backlogs in the Crown court under this Government before covid were lower than those we inherited from the previous Government.
It is fair to say that for many years—25 years, as we heard from the hon. Member for Congleton (Sarah Russell)—it has been accepted that not enough political attention has been paid to our justice system. The question is, what do we do about it? There is no single answer to that question, because there is no single problem. A whole variety of things are going wrong in our justice system. We are seeing late pleas because of insufficient early advice, faulty courtrooms, a lack of reports from probation services, and problems with prison transport. All those problems, and others, cause the delays and other issues.
The central recommendation of the Leveson report was for more sitting days— 130,000—and that will require more venues, more court staff, more prosecution staff, more solicitors and more barristers. However, as I have mentioned, there are simpler things that we can do ahead of that, and we need look no further than Liverpool Crown court under the leadership of Andrew Menary. At a time when the national average wait from charge to trial is 321 days, that court manages an average wait of 206 days. As far as I am aware, neither the Justice Secretary nor any of his team has visited Liverpool Crown court to speak to the judge and hear how he does that. In fact, he achieves it partly through the use of early guilty pleas. Nationally, we lose court time because too many people—31%—plead guilty on the day of a trial. In Liverpool, the proportion is just 6%. Those are not bold reforms. They are not measures that allow a Secretary of State to give a grand speech and consider himself a great reformer. It is just hard work, or what one Member described as “pretty boring” stuff that gets the job done.
As was pointed out by the hon. Members for Warrington North and for Walthamstow (Ms Creasy), these reforms will not only fail to achieve what the Government claim they will; they will be an overbearing, destructive distraction from that sort of hard work. And what will the Government gain? Certainly not what they claim in the impact assessment, which is full of assumptions and fantasies, and certainly not anything that might be described as modelling. The Government want us to believe that 24,000 Crown court days will simply be converted into 8,500 magistrate days, but they have no evidence for that claim. They want us to believe that trials without juries will be 20% shorter, but they have no evidence to support that claim either.
Alex McIntyre (Gloucester) (Lab)
Has the shadow Minister seen today’s statement from the Institute for Government, which has backed the Government’s modelling and overturned its previous position? He might want to reflect that in his comments.
Dr Mullan
I wonder whether the hon. Gentleman read the entire statement. What the institution actually said was that the modelling
“relies on several assumptions—some of which are highly uncertain.”
Did he read that part of the statement? I do not think he did, because it claims that there will be reductions of only 2% in trial time as a result of these reforms.
What are we being asked to give up? We are being asked to give up 800 years of English legal history. A sledgehammer is being taken to the cornerstone of our system, and to fundamental rights. Thousands of accused people risk spending years in prison, losing their livelihoods, losing their families, losing their homes, and not being able to make the simple request for a forum of their peers to make that decision—a part of the justice system that is trusted and supported more than any other. That is perhaps why it is being defended so robustly by those within it. Just today, thousands of retired judges and retired and working legal professionals asked the Justice Secretary to think again. What has been the Government’s response to that? It has been to denigrate the role of jury trials.
We have had the appalling sight of the Lord Chancellor comparing three years in prison to a scraped knee. We have heard the Minister for Courts say that being accused of an offence of sexual assault, which could be considered either way at the moment, was not serious—an accusation that, if proven, would lose someone their livelihood. It is shameful and desperate stuff from a desperate Government. In contrast, what did the Prime Minister say? He said:
“The right to trial by jury is an important factor in the delicate balance between the power of the state and the freedom of the individual. The further it is restricted, the greater the imbalance.”
Now he asks us to upend that balance in a historically unprecedented way.
Of course, we can talk about the facts and figures, as woeful and thin as they have been, but at the end of the day, these decisions come from political instinct and a deep sense of what is right and wrong. That is not shallow; it is based on knowledge and years of experience —the sort that the hon. Member for Kingston upon Hull East (Karl Turner) and my right hon. and learned Friend the Member for Torridge and Tavistock (Sir Geoffrey Cox) have. That experience told them, before they saw the figures, that the Government’s approach was not going to work. They have been proven right by the figures.
Is it any surprise that the Prime Minister does not understand this? Time and again, we have seen that he is absolutely devoid of any sort of deep political instinct. His only instinct is to chop and change his mind as it suits him on any particular day. No wonder he has been, more than any other Prime Minister in recent history, an agent of the civil service. He has forgotten the golden rule that civil servants advise and Ministers decide. The Conservatives have said yes to more resources, to efficiency and to the hard work of getting things done, but we have said no to eroding a fundamental right, no to more overbearing state power, and no to gutting and scouring away the mechanism by which all of us watch the watchmen.
The Courts Minister tells us that the Bill has been introduced on a point of political principle, whereas other Members have argued that it is a matter of necessity and resource. Too often, Labour Members have said yes to a Prime Minister to whom they should have said no. They have an opportunity tonight to say no to the Prime Minister when it counts. Let us hope they have the courage to do so.