Courts and Tribunals Bill (Sixth sitting)

Debate between Kieran Mullan and Joe Robertson

Thursday 16th April 2026 Public Bill Committees

[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.

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[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—

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[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.

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[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.

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[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.

Courts and Tribunals Bill (Fourth sitting)

Debate between Kieran Mullan and Joe Robertson

Tuesday 14th April 2026 Public Bill Committees

[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.

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[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.

--- Later in debate ---

[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]

I thank the hon. Gentleman for his point.

[Dr Mullan]

rose—

[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—

Courts and Tribunals Bill (First sitting)

Debate between Kieran Mullan and Joe Robertson

Committee stage
Wednesday 25th March 2026 Public Bill Committees

[Joe Robertson]

Q May I ask for a clarification? Is Charlotte on her own in her views? Is she the only person who holds the views she has expressed?

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.