Prisons and Courts Bill

Oliver Heald Excerpts

2nd reading: House of Commons
Monday 20th March 2017 Commons Chamber

[Elizabeth Truss]

We are doing a lot to improve broadband across the country. The online system is not mandatory; the paper process will be available. I have been looking recently at virtual hearings that are taking place across the country. In some areas, such as the south-west of England, there is very high take-up of these hearings, because being able to use broadband helps people in rural areas, who have long distances to travel to get to court.

[The Minister for Courts and Justice (Sir Oliver Heald)]

Particularly in the west country.

[Elizabeth Truss]

The west country is leading the way at the moment, and we are looking at how we can encourage courts across the country to do the same thing.

I am very pleased to say that civil justice is at the forefront of our reforms. I was proud to announce the new business and property courts last week with the Lord Chief Justice and the Chancellor of the High Court. These courts are the vanguard of our world-class civil justice system, making sure that global Britain leads the world in law. They will be based in London, Leeds, Bristol, Manchester and Cardiff, and they represent the fact that our courts and commercial courts serve not only the City of London, which is of course important, but significant regional centres across the country.

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[Sir Oliver Heald]

The hon. Gentleman fails to mention that the policy was designed in part to increase the number of cases that are conciliated. Now, instead of 23,000 cases a year going to ACAS, 92,000 do and half of them are resolved, and of course it is free.

[Richard Burgon]

The coalition Government’s objective in introducing employment tribunal fees was to strengthen the hand of employers, including unscrupulous ones, and to weaken the hand of individual employees. That is what the policy was about and that is why it has worked from the Government’s perspective. The ACAS conciliation now offered as compulsory conciliation is not the same as the role of ACAS in the past when people issued an employment tribunal case. No professional advice is given on the value of the case. Just because a claim has not been issued or a matter has been discontinued does not mean that it has been resolved satisfactorily with both parties on an equal footing. To make it clear, Labour would abolish employment tribunal fees because Labour believes in access to justice.

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[Richard Burgon]

More than implicit in the hon. Gentleman’s ill-considered comments is that allowing people to seek justice in the employment courts without paying money is a something-for-nothing practice. That is a disgraceful comment, which we look forward to publicising as widely as we can. The Government need to think again when it comes to employment tribunal fees.

[Sir Oliver Heald]

What is wrong with moving from a system where very many cases go to the employment tribunal to one where most cases are conciliated? It is a much easier way for people to get justice.

[Richard Burgon]

The problem is that the price that is being paid is that of access to justice, and that is unacceptable to the Labour party at least. Are the Government seriously contending that 70% of claims brought before 2013 were somehow fraudulent? If so, that is absolutely outrageous.

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[Mr Hanson]

I agree, but we both know that such problems are not easy to solve. Central to today’s debate is the question of what we can do in the context of the Bill. As I have said, I would add the question of family links to the list given by my right hon. and learned Friend the Member for Camberwell and Peckham. I was prisons Minister for two years and one month. It is a difficult job, and it is difficult to change policy, but we have opportunities to consider these matters. I hope that the Minister will reflect on them in Committee, and will think about how clause 1 can be strengthened in order to achieve its objectives.

The Justice Committee welcomes the fact that clause 2 puts Her Majesty’s inspectorate of prisons on a statutory footing, and we consider the statutory recognition of the inspectorate’s role in visiting places of detention to be a positive development. We are pleased that the chief inspector of prisons will be required to have regard to the new statutory purposes of prisons. I am particularly glad that the Government will have to respond to the chief inspector’s recommendations within 28 days if the matter is urgent, or within 90 days in the case of a general inspection, and that there will be scrutiny of inspection powers. Clauses 4 to 20 put the prisons and probation ombudsman on a statutory footing, and we welcome that as well.

The Government accepted the Committee’s recommendation that the HMIP protocol should be finalised, and said that they would produce a final version before Second Reading. The Committee was consulted on the draft protocol in January, but as far as I know no final protocol has been agreed or published. I think it important for it to be published as soon as possible so that we can develop it accordingly. It was more than a year ago that we recommended a protocol on the relationship between the inspectorate and the Ministry, and we need to know what that relationship is.

Whiplash poses a challenge for the Minister and the Government. The Committee heard evidence from the Association of British Insurers and from the association of legal professionals who deal with whiplash cases. Because we have not been convinced by the Government’s case to date, we have established a follow-up inquiry—as the Minister is doubtless aware, it was announced last Friday—to call for evidence on whiplash. The terms of reference for our fuller inquiry include the definition of whiplash and the prevalence of road traffic accident-related whiplash claims, considering whether fraudulent whiplash claims stack up and whether the provisions in part 5 introduce an effective tariff to regulate damages for RTA-related whiplash claims. In particular, they include consideration of the impact of raising the small claims limit to £5,000 for RTA-related whiplash claims, and—this is not in the Bill, but it is directly linked to it—raising the small claims limit to £2,000 for personal injury claims more generally. They also include consideration of the role of claims management companies, which have not been touched on to date.

The challenge for the Minister, in Committee and on Report—and I hope that the Justice Committee will influence those debates—is to convince us that his policies, established on a cross-party basis with the Committee, will meet our objectives. The claims that the Government have made about savings being passed on to motorists and about the level of fraud in the system have not yet been tested to my satisfaction or that of the Justice Committee, which, it should be remembered, has a Conservative majority.

The Government’s consultation paper sets out no rationale for including employment injuries in what is billed as a reform of whiplash claims. I wrote to the Lord Chancellor last week, and was told that the employment injury aspects would be dealt with by a statutory instrument following completion of the whiplash measures in the Bill.

[Sir Oliver Heald]

The aspect of whiplash that is in the Bill is the tariff, along with the judge’s ability to enhance it by 20%. However, there is an entirely separate secondary legislation route whereby the small claims limit can be raised. It could be reduced, of course, but that is not happening in this instance.

[Mr Hanson]

I appreciate that. I have said to the Minister that the other aspects are not in the Bill. However, I sense that they are linked in that the Government’s approach to whiplash will be linked with their approach to tariff levels.

[Sir Oliver Heald]

The point is that the small claims threshold is being raised to £5,000 for road traffic-whiplash related cases and to £2,000 for other cases.

[Mr Hanson]

I am fully aware of that. What the Minister needs to know is that the Justice Committee believes that there is still a tangential link between two matters, which is why it is considering the whiplash provisions in the Bill together with employment levels. We are very conscious that, as well as the potential examination of the Government’s case in regard to whiplash, there should be an examination of their case in regard to industrial and employment injuries. There are myriad cases—I have no time to list them now, but I shall do so on another occasion—in which industrial injury claims would be detrimentally impacted by the change in the limit, and while that is not directly in the Bill—

[Sir Oliver Heald]

It is £2,000.

[Mr Hanson]

The Minister does not work in the same spheres that I work in; people in my constituency depend on that level of employment injury support to ensure that they get justice at work. We will return to that at a later stage. The Minister is looking quizzical; he will have an opportunity to come and explain his proposals and those on whiplash to the Justice Committee in due course.

The Bill’s direction of travel can and should be supported. However, the beef of this Bill is what really matters. There are measures that the Government can take to improve it, and to reduce the poor indicators that have been growing in disparity over the last few years, and not just in staffing. They should also consider issues such as those raised by my right hon. and learned Friend the Member for Camberwell and Peckham and those that the Justice Committee asks the Government to look at again.

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[Mr David Nuttall (Bury North) (Con)]

It is a privilege, as always, to follow my hon. Friend the Member for Shipley (Philip Davies), and I very much look forward to supporting some of the amendments he foreshadowed in his speech.

At the outset, I must draw the House’s attention to my entry in the Register of Members’ Financial Interests, as I am on the roll of solicitors. I am a non-practising solicitor now, but earlier in my career I was involved in many personal injury matters, and it is to part 5 of the Bill, which deals with whiplash, that I want to restrict my remarks.

There are things to commend and welcome in the Bill, but the one area where I do have concerns is over the proposals relating to whiplash. It is completely understandable that the Government would want to root out fraudulent whiplash claims, and I am sure everybody would agree with that, but I am not convinced that the proposals in part 5 will assist in achieving that aim. I welcome the fact that the Government have abandoned some of the more extreme proposals in the consultation paper, but we have nevertheless finished up with a set of proposals that I doubt will have the desired effect.

There is no doubt that if fraudulent claims are submitted and not spotted, the damages that are paid out will increase premiums. However, I am not convinced that the way to reduce premiums is to restrict artificially the level of damages payable by someone found liable for the tort of negligence. The Government’s proposal has nothing to do with controlling public expenditure; we are told that it is all about rooting out false, fraudulent claims and trying, as a consequence, to reduce insurance premiums. If the Government are really keen to do that, one way would be to reduce insurance premium tax. It seems rather perverse that we should tax those who seek to do the right thing. I can understand the argument—I might not always agree with it—for taxing goods or behaviours that are perceived to be bad, but it is less easy to understand the rationale for taxing those who seek to do the right thing by taking out insurance to protect themselves and take care of their future.

There are already procedures in place to reduce the potential for fraudulent claims to be successful. I am all in favour of taking the strongest possible action to root out those who try to con the system, but perhaps we should have given the existing measures—it is not many years since they were introduced—more time to work, and there is already evidence that they are working. The number of whiplash claims, as reported to the compensation recovery unit at the Department for Work and Pensions, fell from 511,111 in 2010-11 to 335,365 in 2015-16.

[Sir Oliver Heald]

The expression we use is whiplash-related road traffic injuries. Some of them are described as upper torso strain caused by shunt by a vehicle; that is a whiplash-related claim, and it would not count as a whiplash claim, but we think they are the same thing, and we reckon that the figures show a 50% increase over the last 10 years, at a time when the number of road traffic accidents generally has been falling.

[Mr Nuttall]

Clearly, there are issues around the definition of what constitutes a whiplash injury. The fact remains that, under the definition of whiplash used by the CRU, there was a 34% fall between 2010-11 and 2015-16.

Regardless of the number of claims, if they are valid, appropriate damages should be paid. The introduction of tariffs will have a number of effects, particularly when combined with the proposed increase in the small claims limit, which I accept is not in the Bill but is foreshadowed in the Government’s proposals. First, the level of damages will hardly ever be correct, as the Government recognise in their proposed uplift provisions. This is a rather clumsy way to try to finesse the basic scheme, recognising that the damages will not be at the appropriate level. There will inevitably be an increase in the number of litigants in person, and that raises questions as to how the courts will cope. For example, is the portal proposed as the mechanism by which the system is accessed intended for use by litigants in person?

Claims management companies will have a field day as they look to expand their operations in the light of these proposals. I fear that there will inevitably be an increase in the number of nuisance telephone calls. The Government may feel that insurance premiums are a problem, but that is as nothing compared with the problem of nuisance telephone calls. I am sure that I am not alone among MPs in being able to say that I hardly ever get a complaint about insurance premiums in my postbag or email inbox, whereas I get many, many complaints about the number of nuisance telephone calls.

Another problem resulting from the introduction of tariffs is that the same injury will attract a different level of compensation dependent on whether the injury was suffered as a result of a road traffic accident or in the workplace. I am not sure how that could be justified to the injured person, but I look forward to hearing the explanation of how it could be justified. There will inevitably be a transfer of cases from qualified legal practitioners to unqualified claims companies—McKenzie friends and so forth—and thousands of high street practices will face closure or, at the very least, job losses. There will also be unintended consequences. For example, the Access to Justice Action Group has pointed out that an injured party would be entitled to £3,725 for a neck injury lasting 24 months under the small claims track, but £6,750 for a neck injury lasting just one month longer outside the small claims track. That will be an incentive for the small minority who try to play the system to exaggerate their claims.

In summary, why should the vast majority of innocent, law-abiding citizens be penalised for the actions of the dishonest few?

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[The Minister for Courts and Justice (Sir Oliver Heald)]

We have had an excellent debate this evening. I congratulate this very esteemed and experienced group of speakers: the Chair of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill); former Justice Minister, my hon. Friend the Member for Huntingdon (Mr Djanogly); my hon. Friend the Member for North West Cambridgeshire (Mr Vara), another successful colleague who actually had my job; my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier), who did this as a shadow Minister; my hon. Friend the Member for North West Norfolk (Sir Henry Bellingham), who has been a Minister in the Department; and former prisons Minister, my hon. Friend the Member for South West Bedfordshire (Andrew Selous). I also congratulate my hon. Friends the Members for Banbury (Victoria Prentis), for Derby North (Amanda Solloway), for North West Hampshire (Kit Malthouse) and for Mid Dorset and North Poole (Michael Tomlinson), who all made excellent contributions. I will comment on some of the other speeches, which were generally very thoughtful. It is obvious that there is a good deal of support for the Bill.

As the Secretary of State outlined at the beginning of the debate, these are vital provisions if we are to make the justice system fit for the 21st century. We are talking about a major reform of prisons, and an important set of changes to the law on the courts that will underpin the transformation programme that is going on at the moment and has the support of the senior judiciary. I pay tribute to those who work in our prisons, courts and the wider justice system. Their commitment to public service and care of the most vulnerable in society is inspiring, and I know that many of them will be following the Bill, which means a lot for their work.

Before addressing some specific matters, I want to clarify how the Bill does some important things and does not do some things that might have been suggested. The provisions in the Bill mean better access to justice and the simpler resolution of cases for people. It is important to reiterate that the Bill has been prepared with extensive user testing and consultation with those affected by the measures. Access to justice will not be compromised by the Bill. Sacred principles of open justice and the rule of law will be protected in a modern system that reflects how people access public services in the 21st century.

A good deal was said in support of the idea of having the statutory purpose of prisons in the Bill—for the first time, it is about not just housing the prisoner, but having to keep the person and the public safe, carrying out reform and rehabilitation, and preparing people for a life outside prison. That new framework is there, and everything follows from it: governors’ contracts, the information that is spread about best practice, and training. As the right hon. and learned Member for Camberwell and Peckham (Ms Harman) said in her very thoughtful speech, it is also important to prepare the prisoner for release. Other Members, including the hon. Member for Bridgend (Mrs Moon), referred to the importance of the family and accommodation. Those things are there in the purpose in the Bill, so when we talk about the reform and rehabilitation of offenders, we are talking about tackling their mental health needs. When we talk about preparing prisoners for life outside prison, we are talking about housing, accommodation and good contacts with their family. Those things are all in the Bill, but the right hon. and learned Lady—

[Neil Carmichael (Stroud) (Con)]

Will my right hon. and learned Friend give way?

[Sir Oliver Heald]

I have not got much time, I am afraid.

I think the right hon. and learned Lady made the point that we might want to see whether there was a solution in secondary legislation, as well as in primary legislation, that might address some of the important points she raised. Of course, the prison rules are secondary legislation, and they already contain a lot of detail about the way in which prisoners should be treated. So it is possible to look at those issues, and I will certainly do that.

The hon. Member for Stretford and Urmston (Kate Green) mentioned the Prison Reform Trust and its suggestion that we should add fairness and decency to the statutory purpose. It is right that those are important considerations in running prisons, but we need to remember that there is already an interlacing of legal obligations that apply in prisons. The right hon. and learned Member for Camberwell and Peckham, with her background in the Joint Committee on Human Rights, mentioned that there are basic human rights—articles 2, 3 and 8—that apply to the way in which prisoners are treated. There is health and safety legislation. There is the duty of care that comes through the law of tort. So it would be wrong to think that there is not protection already, but this is certainly something we can examine further in Committee. I would like to pay tribute to my hon. Friend the Member for Derby North, who has done so much as the rapporteur for the JCHR on the issue of deaths in prison.

My right hon. and learned Friend the Member for Harborough and others asked what happens if a prison does not meet the purpose set out in law. The purpose of prisons is in the Bill, and it is underpinned by the inspectorate’s duty to inspect against the purpose and the aims. It is also protected by the Secretary of State having to respond. I would not say that it is impossible that a case could be mounted for judicial review—to even say that is to press the case too far—but I think it would only be in a case where an individual prison totally ignored or disregarded the purpose, or something of that sort, that it would be grounded. Possibly, these things could also be considered as a factor in another case, where other aspects were being raised.

The right hon. Member for Delyn (Mr Hanson) asked about the update on HMIP’s protocol with the MOJ, and I pay tribute to his experience in this area. Earlier this year, a draft protocol was shared with the Justice Committee and other bodies. The final protocol will be available very shortly, and I can promise that it will be there before the Committee stage. [Interruption.] Very shortly—imminently.

I could say a lot about family engagement, and the Farmer review looks very much at it. It is well understood that maintaining family relationships is a key element in trying to set prisoners on the straight and narrow and that it is very important in rehabilitation.

The hon. Member for Leeds East (Richard Burgon) asked about the time limits for responding to inspection reports. Action will be taken from day one of an urgent notification by the chief inspector, so immediate energy will be brought to bear. Twenty-eight days is the appropriate period in a really urgent case of that sort. On the Law Society’s concerns about safeguards for online conviction, defenders must opt in to the new procedure, and proper warnings will be available making it clear that if a defendant wants to challenge the case in any way—for example, if they want to argue that time to pay is needed for a financial penalty or that the penalty should be lower because of means or circumstances—then all these things will be made clear. The Bill also provides that in the event of a mistake made, for whatever reason, it will be possible to set aside the conviction or the sentence in order to have the matter dealt with in the traditional way. I am sure that we will discuss this more in Committee, but certainly the idea is to have those protections in place.

My hon. Friend the Member for Huntingdon asked about successful prosecutions of fraud cases in relation to whiplash. The insurance industry data show that in 2015 there were 70,000 cases of insurance fraud worth £800 million. The City of London police insurance fraud enforcement department has secured over 200 prosecutions in the past four years, resulting in over 100 years’ worth of jail time for insurance fraudsters. A lot of action is being taken on this.

On whiplash more generally, the Government note that over a 10-year period when we have seen the number of road traffic accidents falling and car safety improving, we have had a more than 50% increase in the number of whiplash-related cases. These cases are obviously exaggerated to some extent, and perhaps fraudulent. No Government could ignore these sorts of statistics and not take action. We have not taken extreme options but gone for moderate options such as a tariff of damages for the very minor cases. The tariff does not apply in a serious case of whiplash where the damages would be substantial—it is for cases where the pain and suffering lasts less than two years and is of a minor nature. Against that background, such a tariff is surely a reasonable approach. If there is any element of exceptionality in these cases, then there is a provision to uplift. We say that this approach is proportionate to the scale of the problem.

My hon. Friend the Member for Shipley (Philip Davies) talked about violence against prison officers. I do not totally agree with him about this. I think that if there genuinely is violence against a hard-working and dedicated prison officer—he has been assaulted and it is an offence—we should go further than my hon. Friend suggests. I think that the perpetrator should be prosecuted in court for that violent offence, that he should face swift justice, and that the court should give the full penalty that is right for the offence. I would not say that it is a question of him serving his full time for the original offence, but that he should serve the full time for a serious offence of attacking a prison officer. I take a slightly different view from my hon. Friend on that.

[Philip Davies]

Can the Minister explain why, with all the assaults on prison officers at the moment, the average amount of extra time that prisoners spend in prison for assaulting a prison officer is 16 days, which is, quite frankly, pathetic and insulting?

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[Sir Oliver Heald]

To be honest, my hon. Friend is looking at something different—adjudications within the prison for an offence of some sort. I am saying that where somebody has been assaulted, the perpetrator should go to court. It should not be an internal adjudication if it is a serious matter. The person responsible should be taken to court and face the full penalty of the law. That is the approach that I would take. I will be interested to discuss the matter further in Committee, and I have no doubt that we will do so.

As a result of the Bill, prisons will be safer. They will be places of reform. Our courts will provide straightforward access for all users. There will be stronger confidence in the justice system. We will enhance our global reputation for the excellence of our legal system. This is a bold, reforming ambition for justice, and I commend it to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Prisons and Courts Bill (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Prisons and Courts Bill:

Committal

(1) The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 27 April 2017.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Proceedings on Consideration and up to and including Third Reading

(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.

Other proceedings

(7) Any other proceedings on the Bill (including any proceedings on consideration of Lords Amendments or on any further messages from the Lords) may be programmed.—(Guy Opperman.)

Question agreed to.

Prisons and Courts Bill (Money)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Prisons and Courts Bill, it is expedient to authorise:

(1) the payment out of money provided by Parliament of:

(a) any expenditure incurred under or by virtue of the Act by the Secretary of State or Lord Chancellor; and

(b) any increase attributable to the Act in the sums payable under any other Act out of money so provided; and

(2) any increase attributable to the Act in the sums charged on and payable out of the Consolidated Fund under any other Act.—(Guy Opperman.)

Question agreed to.

Prisons and Courts Bill (Carry-over)

Motion made, and Question put forthwith (Standing Order No. 80A(1)(a)),

That if, at the conclusion of this session of Parliament, proceedings on the Prisons and Courts Bill have not been completed, they shall be resumed in the next session.—(Guy Opperman.)

Question agreed to.

Prisons and Courts Bill (First sitting)

Oliver Heald Excerpts

Committee Debate: 1st Sitting: House of Commons
Tuesday 28th March 2017 Public Bill Committees

[Nick Thomas-Symonds]

Q If you as ombudsman make recommendations, how confident are you that the Secretary of State will act on them?

Nigel Newcomen: I published a report today on self-inflicted deaths among women and I said in the introduction that I was disheartened that I was saying again many of the things I had said previously. I have been in post six years, and I say very little that is new; I tend to repeat things. That does not necessarily mean that there is any ill will or any lack of desire to implement the recommendations I make. Virtually all the recommendations I make are accepted, almost without exception. I have given action plans, and my colleagues from the prisons inspectorate will go and see whether progress has been made.

Progress is often made to a degree. I am sure that if we go back to Chelmsford, to look at one establishment you just mentioned, much will have been done in the aftermath of the case of Mr Saunders and the aftermath of other cases there, too. But sustained and consistent improvement is something that the Prison Service has struggled to achieve. One of the aspirations the Bill must have is that by ensuring greater accountability and some devolution of responsibility to governors, sustained development and improvement can be achieved. To go back to your question, I personally am quite disheartened that I have been saying the same thing for so long.

[The Minister for Courts and Justice (Sir Oliver Heald)]

Q I want to ask you about mobile phones and drugs. Obviously, prison has never been a pleasant place, and I visited many prisons when I was practising as a barrister, but recently I visited a prison and talked to one of the trusted prisoners who said that the impact of psychoactive substances has been marked, particularly on younger men prisoners, with there being a lot more violence than there used to be. Mobile phones are also enabling prisoners to commit crimes at one remove that they did not use to be able to do. Will you each say a word about drugs and mobile phones—what their impact has been and whether the measures in the Bill are a help?

Martin Lomas: The linkage is very clear. The tsunami of new psychoactive substances in the last three or four years has had an enormously destabilising impact on prisons. The chief inspector referred to that in his annual report, and I for one have never seen anything quite like it. Interestingly, some prisons cope better than others, and there are some lessons to be learned there.

The linkage between drugs and the use of mobile phones and technology is clear. It facilitates criminality—there is no doubt about it. I was talking to a colleague of mine who has inspected this regularly and one of the tricks is to meet a new prisoner arriving in the institution who does not have a phone card and so is unable to communicate, and entrap them in a sense by lending them a phone, in which the numbers are stored. That facilitates the intimidation of families and leverage on them.

The answer to that is proper prevention mechanisms to stop mobile phones coming in and to interrupt those that arrive, and the Bill is supportive of that; but also, in tandem, effective means of ensuring that prisoners have access to legitimate phones, either in cell—we see that in some more modern institutions, which is incredibly helpful—or through phone cards and effective access to, for example, the canteen. We routinely report on new arrivals to institutions who do not get access to the canteen for 10 days, which increases their vulnerability both to self-harm—it is a high-risk time—and to others. It is a twin-track response, and the Bill helps.



Rachel O'Brien: I agree with all of that on phones. You see that really small things in prisons, like not having your phone card and getting the small stuff right, can have a huge impact. On NPS, to go back to the centralisation and the local, we took a long time to respond—inspections were raising that from 2012 onwards —and it is an absolute game changer. We have not been adaptive and responsive, and I think that is partly because we wait for the central machine to respond. That resulted in a quite punitive initial response; it was like we had forgotten everything we know about healthcare and substance misuse, with NPS seen somehow as different, which is ironic, because it is legal outside. It is very strange. So you have had a really punitive response generally, and I think that is beginning to change now.

Thirdly, you need to look at supply and demand. Yes, stopping it coming in in the first place is absolutely critical, but if you have no activity and no purpose—there is a lot of evidence to suggest it is partly about boredom and time out of your head, if not your cell—you are going to seek it out. I am not sure I would not seek it out, if I was stuck in a cell day after day. We have to look at the demand side, as well as supply.

[Sir Oliver Heald]

Q If you take the aims in the Bill of active reform and rehabilitation, and trying to prepare people for the world outside, are you saying that if you achieved that sort of purposeful regime, you would have a more peaceful regime?

Rachel O'Brien: Absolutely.

Nigel Newcomen: You would also have a safer regime. Access to legitimate phones increases family contact and the ability to mitigate your pressures inside. If you have more activity, you are less likely to be bored and less likely to need the bird-killer that is NPS. I endorse what colleagues have said: it is absolutely, fundamentally right for supply reduction to be at the heart of the Bill, but demand reduction—the lessening of the need—has to be implicit, and I take it to be implicit in the new purposes of prisons that have been specified. If it is not, we will be chasing a punitive response without the likelihood of success, because we will not have dealt with demand.

[Sir Oliver Heald]

Q I do not know whether you would agree, Mr Simpson, but I think a lot of prison officers find it very rewarding if they are able to help a prisoner to come round and live a better life after he leaves prison, and to help him get some skills while he is in there. I have certainly always found that when talking to prison officers. Do you agree that the overall idea of having proper purposes for prison, trying to increase the number of officers and tackling this scourge of drugs and mobile phones is the overall package that is needed?

Joe Simpson: It is, but drugs are not new in prisons.

[Sir Oliver Heald]

Q No, it is these psychoactive substances, which are allegedly legal.

Joe Simpson: Yes. The Government have also said it is illegal to bring them into prison or throw them over the wall, yet it still happens. When you are talking about supply and demand, say for argument’s sake that you can buy a bag of NPS on the street for £1. When it comes into prison, it is worth anywhere between £60 and £80. It is big business, and it does not have a great effect on the person who is supplying it from the outside, because they are never, ever going to get into trouble, because nothing ever goes back to them. Mobile phone are big currency in prisons. As a union, we have been asking for mobile phone blockers to be put into prison for years. That would stop the criminality inside and outside of prison.

Then we have drones. When they come over, it is about what they are carrying. We have had to approach the employer and say, “When there is a package dropped off into the grounds of a prison, you have got a prison officer immediately being told to go over and pick it up. It could contain anything, and there is no proper control over that.”

Yes, more time out of cell, and a prison officer watching them and interacting with them, would help. When I was a prison officer at Holme House, we used to have prisoners out on association, and they played pool and went on the phone. When you had a bank holiday weekend, such as Easter, by Sunday dinner time they were bored, because they were doing the same thing every weekend and every evening. It is about changing that, with education in the evening, gym programmes and programmes that prison officers can lead on, because before we entered the job, we had a prior life. We have teachers who have joined the Prison Service. They have a wealth of experience, but no one is using them, because we are going back to what we fear is a turnkey situation.

[Sir Oliver Heald]

Q Of course, a lot of these prisoners could benefit from that experience, could they not? They are not very well educated, and they could get some skills and make more of their lives.

Joe Simpson: Yes.

Martin Lomas: I agree that NPS is a specific challenge, and it has been a game changer. We have seen prisons that do better than others—this is a bit speculative, and there needs to be more research into this—and that seems to be down to effective multi-disciplinary working, particularly with local law enforcement and the like.

However, your point is valid: there cannot be reform, work, education and rehabilitation without safe institutions, but there is then a feedback loop. If prisoners understand, believe and realise—as enough of them do; there is a critical mass—that they might have to be in prison, but at least there they have a chance, or that it is worth investing their effort, or that there is a constructive opportunity for them, that in itself will begin to lift the bar and create a sense of positivity and civility within the institution.

[Matt Warman]

Q You briefly mentioned mobile phone blockers; the Bill allows for more rapid blocking of individual mobile phones that are associated with prisoners. Presumably, you would welcome the fact that you would not have a blanket ban on everything, or use more widespread blocking, because prison officers have mobile phones, which are useful for keeping in contact with families and all that while in the prison. Of course, people who live nearby prisons do not appreciate their systems being blocked, either. This helps with that, I would hope.

Martin Lomas: Whatever technology works. Actually, in prisons, nobody is allowed a mobile phone; there may be a community consequence.

--- Later in debate ---

[Nick Thomas-Symonds]

To add to the point made by the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Hexham, I am still owed thousands of pounds in fees, some of which I think may be from insurers.

[Sir Oliver Heald]

I am a barrister, not currently practising, and I am the legal aid Minister, so I apologise, boys.

[Robert Jenrick (Newark) (Con)]

May I also declare an interest? I am a solicitor, not currently practising, and a prison visitor at HMP Lowdham Grange in my constituency.

Prisons and Courts Bill (Second sitting)

Oliver Heald Excerpts

Committee Debate: 2nd Sitting: House of Commons
Tuesday 28th March 2017 Public Bill Committees

[The Chair]

We will now hear oral evidence from the Legal Aid Practitioners Group, Professor Richard Susskind, the Law Society, Women’s Aid and Transform Justice. We have until about a quarter past 3 for this session. Would the witnesses please introduce themselves for the record?

Richard Miller: My name is Richard Miller. I am head of justice at the Law Society.

Penelope Gibbs: I am Penelope Gibbs, director of the charity Transform Justice.

Polly Neate: I am Polly Neate, chief executive of Women’s Aid.

Jenny Beck: I am Jenny Beck, co-chair of the Legal Aid Practitioners Group.

Professor Susskind: I am Richard Susskind. I am IT adviser to the Lord Chief Justice and I chaired the Civil Justice Council advisory group on online dispute resolution.

[The Minister for Courts and Justice (Sir Oliver Heald)]

Q51 It is a joy to serve under your chairmanship again, Mr Brady. I thought I would start with some questions to Professor Susskind about the online procedure for civil and family courts and tribunals, which is dealt with in clauses 37 to 45. Then, after colleagues have put their questions, I will perhaps deal with cross-examination in family matters—clause 47—and criminal proceedings, which are dealt with in clauses 23 to 30 and 35 to 36.

Professor Susskind, I believe you have been the technology adviser to the Lord Chief Justice for many years and you are an advocate for the law adapting to modern technology. These proposals involve the use of digital processes, simpler rules and an online procedure rule committee to set them up. I wonder what your views are about whether the quality of this work will be as good as it is now—that it will not be not a second- class system—and what you think are the implications for the legal professions.

Professor Susskind: The motivation behind this is interesting. If one thinks of low-value claims—say civil claims—the current process is too costly, too time-consuming, largely too combative and largely unintelligible for the non-lawyer. Lord Dyson, the former Master of the Rolls, put it well when he said that any system that has a 2,000-page user manual has a problem, and that is the traditional civil justice system. I have long been an advocate of thinking of different ways of resolving disputes.

It seems to me that one argument that is often put is that we are going to allow people who can afford lawyers and legal advice access to the traditional court system, and those who use an online process will receive a second-class service, but our group—and, I believe, the Government—anticipates a system that is more accessible, more proportionate, quicker, easier to use and does not require people to take a day off work or pore through thousands of pages of rules, which seems to me to be a first-class service rather than a second-class service. It may be that, from a purist’s point of view, one can see advantages in the traditional system—I am a great believer in the traditions of the law—but for small, low-value claims, I think what is proposed here will be a great improvement rather than some pale substitute for the traditional system.

The implications for lawyers are very interesting. In so far as one of the great mischiefs sorted out here is that of litigants in person—that is to say people who represent themselves—then today lawyers are not involved in the process in any event. So for both litigants in person and for the great mass of people to whom we often refer as having unmet legal need—those who cannot afford or find too forbidding entry into the system in the first place—there is no impact on the legal profession at all, because the legal profession is not involved today.

As for the cases—they will probably be slightly higher value cases—that lawyers currently undertake, it is wrong to suggest that lawyers will be excluded from the process. There is a misunderstanding and ongoing debate about this. It has never been anyone’s intention that lawyers should not be allowed to participate; the intention is that this should be a system that people can use without the assistance of lawyers. My research is in medicine, law, tax, audit and architecture, and I think there is no denying that right across the professions we are seeing technology being used in ways that will reduce the number of some traditional jobs. On the other hand, new jobs will arise.

As I often say, the law is no more there to provide a living for lawyers than ill health is there to provide a living for doctors. It is not the purpose of the law to keep lawyers in a living. Lawyers, like all other industries, have to face the challenge of modernising and industrialising, and this is one of the consequences of offering far greater access to justice through technology.

[Sir Oliver Heald]

Q Do any of the other witnesses want to comment on the online court for civil cases, family courts and tribunals and whether it improves access to justice—the point that Professor Susskind just made?

Richard Miller: I think it has been readily accepted among many people who have discussed this issue that the system will work most effectively if there is good legal advice at appropriate points within the process. It may well be that the role of lawyers in this revised system is very different, but people who are looking to enter into any sort of dispute resolution system will want to know whether they have a good case, what evidence they need, whether any defence filed is valid and how to respond to it. There will be key stages within any case where good-quality legal advice will be essential if the system is to work effectively, but that is not to say there will not be a different role for lawyers within the system if it rolls out as is currently envisaged.

[Sir Oliver Heald]

Q Lord Justice Briggs said that it might be a role where a particular piece of legal advice would be given and then fixed recoverable costs would be involved, as a way of ensuring it could be funded. Do you have any views on that?

Professor Susskind: That is entirely feasible. I take the point entirely that there will be places where it would be beneficial to have the participation of lawyers. It might well be that we can, in an online process, involve lawyers in a more modular, occasional way, rather than an all-or-nothing way. If I am absolutely honest, we are to a large extent on new ground here. We can look at what has happened in Canada and what is happening in Singapore and Holland. We are feeling our way.

The overwhelming evidence is that online dispute resolution provides a cheaper, quicker, less forbidding service, but no one in the world has yet delivered an integrated service of the sort that the Law Society is sensibly anticipating, where lawyers can be involved in a structured, systematic way in the new process. I would welcome that, but again, we cannot forget the swathes of cases just now where people are self-represented or do not go to law at all, and lawyers are not involved. With online dispute resolution, there is the possibility of lawyers becoming more involved in some of those cases that they do not reach at all now.

[Sir Oliver Heald]

Q Perhaps I can ask one more question, before opening this up. Would you like to say a word about the benefits of virtual hearings and dispute resolution within this process?

Professor Susskind: It is important to draw a fundamental distinction—I am doing it in my terms—between virtual hearings and online process. With virtual hearings, there is a hearing: that is to say, there are people communicating with one another at the same time, but they are not all physically in one place; there is a video connection and an audio connection. Technologists would call that “synchronous”. Everyone has to gather together, and it may not be in one physical space, but there is a hearing and they are all attending it virtually. Online process is quite different. It is asynchronous: that means a party can submit a piece of evidence and a judge can respond, but they do not all need to be online at the same time. I am not sure if the Bill or people around the table are completely comfortable with that distinction between virtual hearings and online process. They are very, very different beasts.

The virtual hearing, in a sense, is a natural evolution from the traditional hearing. If people are vulnerable, if they are many miles away, or if it does not seem proportionate for them all to attend in person, why not attend by video and audio? That is the idea of a virtual hearing. It is an extension of the current system. An online process is often entirely different.

[Nick Thomas-Symonds (Torfaen) (Lab)]

Q I want to talk about virtual and online courts—I am with Professor Susskind in recognising that they are very different animals—in the criminal context. I will start with Penelope from Transform Justice. In your recent report you looked at an evaluation of the use of technology in the criminal courts back in 2010. The report said:

“The evaluation of the pilot was published in 2010, and concluded that virtual courts as piloted were more expensive, may lead to more guilty pleas and longer sentences, and impeded the communication between lawyer and client.”

As we embrace new technology, how can we seek to deal with those worries?

Penelope Gibbs: With huge difficulty. I would say that the virtual hearings as done now are slightly different from the ones piloted in 2010 in terms of the cost basis, but we still have a huge problem about the relationship between the lawyer and the client. Every piece of research that exists suggests that that communication is impeded.

The other huge problem that came up in that research, which was under-reported, was that actually it reduced the number of people who used a lawyer. In that research, I think only 52% or something of the defendants used a lawyer, despite the fact that all had access to legal aid. So there was something about the circumstances of doing it virtually that meant that they did not use a lawyer, and I would say that the criminal system, in some ways like the civil system, is pretty unsuited to anybody not having a lawyer. It is very complicated and complex, the procedure is difficult and the law is difficult, so there are huge concerns about having people virtually, nearly half of them without a lawyer, with huge decisions being made about remand and sentence, and even the proposition of trial in the Bill by conference call or virtually where you can see people.

[Nick Thomas-Symonds]

Q I will just move to the online criminal convictions—this is clauses 35 and 36 of the Bill. This is a general question to the panel. Do you think there are sufficient safeguards in the Bill for defendants who use the automatic online conviction process? For example, how could you make an offender aware of the consequences to their employment status of having a criminal conviction? What are the safeguards to enable them to fully understand the consequences of that guilty plea?

Penelope Gibbs: That is a challenge. The Bar Council has suggested that only non-recordable offences should go on to the online conviction system, and I agree with that. To an extent, that would resolve some of the criminal record issues, because non-recordable offences are not added to the police national computer. They can attract a rehabilitation period, but they do not come up in Disclosure and Barring Service checks. That is one of the issues.

If we move on to recordable offences that do attract a criminal record, it is absolutely crucial that people are given full information. A criminal record is not just a barrier to employment: it is a barrier to education, travel and housing. Also, something might be minor and recordable, and you think, “Oh well, that is okay,” but if you have two minor offences, they come up on a DBS check. So if you apply for lots of jobs, they will come up. It is a complex area, and it is crucial that the online conviction system does do that.

It is also important that the system gives people an idea of what a viable defence is. There is an idea that people know whether they are guilty or not. It is true that they might have done the deed, but if they have a legally viable defence, they have a good possibility of being acquitted. This is a complex legal area, and it is crucial that the online criminal conviction court should go through what a viable legal defence is, and refer people to legal agencies that could help with that.

[Sir Oliver Heald]

Q Penelope, you mentioned the 2010 pilot, which was between a police station and the magistrates court and which did reveal some interesting lessons, such as how to schedule cases—that needed to be done better—the elements of a case that are best dealt with by videolink, and the importance of technical quality and reliability. I am sure you would agree that, since then, videolinks have been used successfully in the Crown court, magistrates court hearings and in many other ways, and that the lessons have been learned. Now videolinks are better scheduled, they are used in a more targeted way, and the technology has improved.

There are a lot of benefits to a videolink: for vulnerable witnesses it is often used as a special measure, it stops people having to travel long distances, it stops the wasting of police time, and the professionals find it increasingly helpful to be able speak to their clients at distance. Then there is the security side of it, which means you do not have a lot of people having to use prison transport. Do you accept that things have moved on since 2010?

Penelope Gibbs: They have moved on in a tiny way. I went to observe a court the other day and the videolink worked but the camera angle on the defendant was towards the top of his head and he was quite distant from the camera. People had real difficulties understanding what he said. That was just a month ago.

I would like to talk more about that case—

[Sir Oliver Heald]

Q Before you go on, on that point, in the Rolf Harris trial that recently concluded, the video evidence was given from Australia. That meant the victims did not have to travel thousands of miles. Surely that is a benefit?

Penelope Gibbs: Can I distinguish between the use of videolink for expert witnesses and other witnesses and defendants? There are different issues with witnesses, who will often benefit from a videolink, and defendants.

[Sir Oliver Heald]

Q Rolf Harris watched it from prison.

Penelope Gibbs: It was his choice to do so, but in the 2010 research, the evidence was that those who were on videolink got longer sentences.

On the police station videolink, it is worth going backwards and saying, “Why are so many defendants being detained by the police on quite minor charges?” When I twice observed videolinks the other day, those people had been detained by the police, they are produced in the videolink room and most of them were released immediately after that videolink appearance. One of the police stations that it was linked to was 15 minutes’ walk from the magistrates court and the cost of the journey—in the 2010 report; I do not know if it is the same now—was only £35. For a defendant to be participating in their own process, it is worth £35 to get them into the court, because all the evidence says it is a less good process. Also, crucially in the 2010 report, people on videolink got longer sentences.

[Sir Oliver Heald]

Q Do you not accept you are going back to the very early history of this and that since a whole range of videolinks have been set up in prisons and in other places right across the country, as well as in police stations? The whole thing has moved on in leaps and bounds over the last seven years.

Penelope Gibbs: I do not think the basics of what was looked at in the 2010 report have actually changed. Of the lawyers I am in contact with, I have not met one lawyer now who thinks they can have the same relationship and the same communication with somebody who is on videolink as if they are in the court with them.

[Sir Oliver Heald]

Q It has been made clear that there will be safeguards for the online procedure. Although I accept they have to be done well, it is a procedure that should be tried, given how simple it is for everybody concerned. Are you against even trying it?

Penelope Gibbs: I am not opposed to online criminal conviction if we are talking about non-recordable offences and if sufficient, very rich information is put on the net. I have many more concerns about online indications of plea.

[Nick Thomas-Symonds]

Q Jenny, one of the critical things in the virtual court environment is that people and defendants understand what is going on within that environment despite being on videolink. This is why I raised a concern earlier about young defendants. How do you feel the cuts to legal aid and the proliferation of litigants in person will affect the way people are able to understand what is going on when there is no lawyer present either?

Jenny Beck: It is a massive risk. The critical point is that those who are the most marginalised are the most affected. People who have difficulty understanding, people who have learning needs and people who have language difficulties are the most likely to be those facing the most difficulty. I can see a split in access to justice as a consequence. In the absence of really targeted lawyer intervention at very strategic points, including the introduction of early advice across the board for people, which would be a huge step in the right direction, from a qualified lawyer via legal aid, you can get into a situation where people will be pushed to the margins and miscarriages of justice will result.

Professor Susskind: I want to highlight something that is important in civil, family and tribunals, which is that the introduction of the online process is to be accompanied—this is crucial—by a highly simplified set of rules. That does not fully meet Jenny’s point, but I do not want people to think we are cutting and pasting the old rules online. The idea is that the system will be governed by a very simple set of explicit rules, a lot of which will be embedded within the system, so it will be intuitive and easy to use. There will always be the hard to reach, those who do not use technology comfortably, for example, and the Government have in mind some assistive technology services. I think we will need services for people who otherwise would find the process difficult, but for the lion’s share of people, who use Amazon daily or perhaps renew their tax online, the system should not be complex in the sense of its having a vast body of unintelligible rules.

--- Later in debate ---

[Liz Saville Roberts]

Q Could you recommend what form that should take?

Professor Susskind: I am bound to say this, because in part I am an academic by background, but I think we need to move beyond anecdote. I can tell you what I heard in the court room that I visited—it was nothing like what was heard over here—but actually, what each of us says as individuals is less important than engaging serious researchers to undertake attitudinal surveys and surveys of people who have been through the process. That is the kind of work that we have seen someone like Hazel Genn at UCL doing over the decades—understanding why people go to the law, how they feel when they have been through the process and whether they have confidence in the system.

I have been strongly advocating, even for the civil system that I have recommended we introduce, that we should not rush in. We should think big, but start small. We should start small, monitor, evaluate, undertake serious academic empirical research, report back, invest where things seem promising and be prepared to accept if developments do not work out. We do not have the evidence yet so we have got to kick-start it somewhere. This, for me, is a call for an incremental—the technology would say an agile—modular step-by-step approach. If I was getting the sense that the Government were advocating a big bang—one single system, architect in advance—I would be very critical of that, but that is not the approach being taken.

[Sir Oliver Heald]

Q I was hoping we might move on to clause 47—the cross-examination in family justice. I was hoping to ask Polly from Women’s Aid, who is sat very patiently, one or two questions about this. Polly, could you give us a sense of the harm caused by victims being cross-examined in person by alleged abusers in the family courts?

Polly Neate: It is hard to overstate how harmful it is, actually; it is genuinely traumatising. In particular, it makes it very difficult for the family courts to play the role they should play, which is to put the child’s best interests first, when usually the mother of the child is not able to advocate adequately because she is being questioned by somebody who has put her through abuse—sometimes, years of abuse.

The other thing that is really important to understand about this—this is what is worrying about judges’ understanding, if I may say so—is that domestic abuse is not all about incidents of physical violence; it is all about control, and coercive control. The family courts are being used, if you like, as an arena for perpetrators to continue to exert the control over their partner or former partner, and in particular they are using child contact proceedings as a way of continuing to exert that control.

So it is not only that the person might be overtly abusive towards the survivor in the court, although that happens unfortunately. It is also that there are like trigger words and almost code words that a perpetrator can use when talking to the victim, which will mean something to her that is extremely traumatic but to anyone listening it would not necessarily appear to be abusive, on the face of it. That is why we say that the practice just has to be banned, because as an onlooker you cannot necessarily tell the meaning of what is being said between those two people, particularly—this often happens—after years of abuse and coercive control of all kinds, and psychological control in particular.

[Sir Oliver Heald]

Q We have been very grateful to work with Women’s Aid on this issue and for the help that you have been giving in trying to help with the training of those in the family justice system. Do you think the provisions in the Bill will help, and do you have any more that you feel needs to be done in terms of guidance and the judiciary?

Polly Neate: Absolutely, the provisions in the Bill will help. As you know, we very warmly welcome the move that has been made; I think it will make a big difference. We work on this issue with quite a number of women who have been through this experience and their reaction to the news that this is coming in the Bill has been quite amazing; there has been a very big kind of welcoming from women themselves. That is really important.

The only bit where I think we really need to take care is the level of judicial discretion in the other cases. So, we know that where an alleged perpetrator has already been convicted or charged, or where there is an injunction in place, automatically they will not be able to cross-examine the witness—the victim. However, there are other cases that will rely on judicial discretion and I guess my concern with that is, as I said, the understanding of judges. Their understanding of domestic abuse is what they will have to draw on in order to use that discretion. Very often their understanding is simply extremely inadequate, to be completely frank—particularly their understanding of coercive control, which is the key issue here.

Either the ban on cross-examination has to apply whenever domestic abuse is alleged, which would be our preference, or it is really vital that training for judges is absolutely ensured, and also that there is much better access to special measures in protection as well, so that the whole family court estate and system can be much safer for survivors of domestic abuse.

[Sir Oliver Heald]

Q Jenny, I know that the Legal Aid Practitioners Group has been very involved with this issue, as well.

Jenny Beck: Yes, we have.

[Sir Oliver Heald]

Q I do not know whether you would like to say something about all of those issues.

Jenny Beck: Yes, please. I echo all the points that Polly has made. I am also a family practitioner, so I go to court a lot and specialise in domestic abuse work. Last week, I had a client who did not give evidence in the case concerning her children, because she was terrified of being cross-examined. I know that the applicant in that case deliberately was unrepresented in order to be able to cross-examine her. That is a hands-on example of exactly what is happening, which is that perpetrators are using the court process to effect further abuse on their victims. We all know that; it is commonplace. It is not a special trick; it is very well known, so this is a hugely welcome move in the right direction.

Equally, I would like to see a widening of the last provision for the other cases to make sure that the representation covers the victim cross-examining in those cases as well, because that is not quite as clear as it is in the first two clauses. The reciprocity is quite clear in the first two clauses, but in the other cases there is a concern because, although legal aid is still available for victims of domestic abuse, there are still people who are not able to get it, because they have not got the right gateway evidence or because they are excluded on the basis of means or unable to make a contribution. It would be a perverse situation if you found that the perpetrator were able to be represented and the victim were not.

[Sir Oliver Heald]

Q As you probably know, on the evidence requirements, we have made partial announcements and we are reviewing it with the aim of making a fuller announcement fairly soon.

Polly Neate: Which is also extremely welcome.

[Sir Oliver Heald]

Q Richard Miller, do you want to come in?

Richard Miller: We also very much support the proposals. One of the issues that has been of concern, but I think is understood, is that there is a lot of comparison with provisions in the criminal courts. However, in the criminal courts, the victim is a witness in the case who comes in and gives evidence and leaves, whereas in the family courts they are a party and there is interaction throughout the entire process. It means this is a different situation with more scope for harm to be caused to victims of domestic violence within the family courts. We would want to continue to have dialogue to ensure that as much protection as possible is given in those circumstances.

We have identified a couple of specific points that we want to think about a little further. For example, the first provision talks about instances where someone has been convicted or charged. We wonder whether that ought to cover instances where they have been cautioned for the offence as well. That is something that might be added in.

The other issue that has struck us is that this protection will apply not just to the victim but also potentially to other witnesses, such as a child of the family who has witnessed some of the alleged abuse. In that situation, the child could be called on behalf of either party and therefore the issue might not be strictly cross- examination. That may also need to be looked at to ensure that adequate protection is there for all the vulnerable witnesses we are trying to protect.

[Nick Thomas-Symonds]

Q Clause 47 is very welcome. These protections have existed in the criminal courts for some time and to have them now in the family courts is absolutely right. Starting with Polly, what is your view on extending that principle to the civil courts more generally, even beyond simply the family court?

Polly Neate: This is why in the other cases where there was judicial discretion, I said we should discuss any alleged perpetrator of domestic abuse, where there is an allegation. I cannot see the benefit in any situation of any perpetrator of abuse being able to use any court directly to question or cross-examine the victim or the children in the situation. Coercive control does not only exist between a couple; it is something that is deliberately exerted by one person on the other members of the family, which very often includes the children. I want to back up that point, which was very well made.

I can think of no reason other than cost for the idea that someone has to have his day in court. I think that notion needs to be done away with altogether. There is no circumstance where that could possibly be a good idea.

--- Later in debate ---

[The Chair]

I welcome the next panel of witnesses. We will now hear oral evidence from the Association of British Insurers, the Association of Personal Injury Lawyers and Aviva. We have until 4.30 pm for the session. Please will the witnesses introduce themselves for the record?

Brett Dixon: Hello, I am Brett Dixon. I am the vice-president of the Association of Personal Injury Lawyers. We are a not-for-profit organisation that looks out for the interests of injured people.

Rob Townend: Hi, I am Rob Townend. I am the UK claims director for Aviva.

James Dalton: I am James Dalton, the director of general insurance policy for the Association of British Insurers.

[Sir Oliver Heald]

Q Let us start with you, Mr Townend. In recent years, since 2005, we have seen a fall in the number of road accidents, we have seen safer vehicles and we have seen a more than 50% increase in whiplash-related claims. Can you put this in perspective and tell us what you think the problem is and whether you think our tariff system is going any way to solving it?

Rob Townend: The first part, yes, we have seen a reduction in road traffic accidents and an increase in injury claims. From our perspective, it is the easy access to cash that has created the problem. In terms of your tariff, I think that will go part way with the other parts of the solution to deal with the problem around whiplash in the UK. It is interesting if you look at places such as Germany, where injury claims have fallen in line with a reduction in road traffic accidents.

[Sir Oliver Heald]

Q On what you think the problem is, you said “easy access to cash”. Would you like to explain the whole thing a bit more fully?

Rob Townend: The insurance industry has been part of this in settling claims too quickly. Some of that has been an attempt to avoid ongoing costs. A whiplash claim can get anything from £1,500 to £4,000. It is quite difficult to diagnose whiplash, so the propensity for claims has increased over the last 10 to 15 years.

[Sir Oliver Heald]

Q What do you put it down to? What is actually going on?

Rob Townend: I think it is claims farming, nuisance calls and people drawn to easy money. I think it is everything from “cash to crash” gangs to opportunists. Claims management companies are driving up claims and incentivising people to make claims.

[Sir Oliver Heald]

Q What about you, Mr Dalton? Do you agree? Do you think the tariff system will help?

James Dalton: I think the way Mr Townend has articulated the problem is exactly right. The behaviours that he described are symptomatic of a system that has too much money in it and incentivises lawyers to farm claims and to push claims into the system for insurers to pay, which drives up the cost of car insurance for everyone.

In terms of the Government proposals in the legislation, the tariff system is an important mechanism to provide clarity to claimants about the amount of damages that they will receive. That is an important clear signal to claimants in terms of ensuring that they get some compensation for the injury that they have suffered.

[Sir Oliver Heald]

Q Say that Mr Dixon says in a moment, “No, these are all genuine claims, and anyway they haven’t gone up; they’ve gone down.” That is something I have heard said. What would you say about that?

James Dalton: I am sure Mr Dixon will say that. He is being selective with the numbers he is using. There is absolutely no doubt that the number of whiplash claims has decreased. That is true—it is what the Compensation Recovery Unit statistics will tell you—but at the same time that the number of whiplash claims has gone down, the number of back injury claims has gone up significantly. Claimant lawyers re-labelling what is essentially the same injury as a back injury rather than a whiplash injury does not mean that the claim has gone away.

[Sir Oliver Heald]

Q The circumstances are the same, are they not? A shunt up the back, and then it is described as a back injury rather than a whiplash injury.

James Dalton: Correct.

[Sir Oliver Heald]

Q Well, Mr Dixon, are you going to tell us what I predicted, or do you disagree?

Brett Dixon: No, I was going to start by correcting something Mr Dalton said. It is not the claimant’s lawyer who enters the details for the Compensation Recovery Unit; it is the defendant’s representative. If they are being entered as back injuries, it is the defendant’s representative doing so. I am aware of that as a practitioner. The Government CRU statistics seem to me to be crucial to understanding this. If you look back—

[Sir Oliver Heald]

Q Can you explain what it is, in case anybody here does not know? It is the DWP, isn’t it?

Brett Dixon: It is. If you have an injury claim, the defendant’s representative informs the DWP—the Compensation Recovery Unit—that a claim is being made. Then there is a mechanism for the Government to recover costs such as NHS costs or benefits paid because someone has been unable to work. It is important that the money from the person who has negligently caused harm finds its way back into the Government system, rather than the Government and the taxpayer footing the bill, but what is important about those statistics is the simple fact that they effectively record the number of claims that go through the whole court system as well as claims settled before the court system.

If you look back six years, you can see that the Government figures show a 41% decrease in this type of whiplash claim. If you look at it in terms of neck and back—there are different recording mechanisms; they are all available and there to be seen—there is an 11% decrease over a similar period. The ABI’s own statistics also show that since 2013, which is roughly after the last major set of reforms, the cost of dealing with these types of claim is down 12%. They are saving approximately £500 million per year. There is not an issue in terms of cost.

I would urge the Committee not to be taken in by the hyperbole prevalent in the sector and think how we as a society we would want to deal with someone who has been genuinely injured as a consequence of somebody else’s negligence. There should be consequences for wrongs, and insurance is there and takes a premium to cover people in those circumstances. If there are issues with people pursuing claims that are not genuine, that is a completely different thing for the Committee to look at. We should not impact on genuine people and the fabric of our society in an effort to deal with that problem.

[Sir Oliver Heald]

Q So, Mr Townend, you are exaggerating the figures and these are genuine claims.

Rob Townend: There is a point around it being a choice for society—that is the one thing we agree with—whether people want to pay for these claims in their premiums; whether they want the ongoing nuisance calls; whether they want the fraudulent and opportunistic claims. We seem to think of this as victimless crime where people are not injured, but we have to defend our customers from spurious claims through the courts. We have had serious injuries and fatalities related to “cash for crash”.

In terms of the volume point, our volumes have been flat for the last three or four years. We still see significant variations between different areas of the country in terms of injury as a proportion of total claims. Somewhere like Exeter has 20% of road traffic accidents with an injury. If I go to Manchester, it is nearly two and a half times that. Why do they have weaker necks in Manchester than in Exeter? The road traffic accidents are no different, so that tells you the extent of the problem.

[Sir Oliver Heald]

Q If there are some savings here, is it right that Aviva has said that they will pass them on to the customer?

Rob Townend: Absolutely. We will guarantee to pass on 100% of the savings through the premiums.

[Richard Burgon]

Q Can I just start by clarifying with the Aviva representative that Aviva has chosen to pass that saving on? That is not compulsory; it is your organisation’s choice to do that.

Rob Townend: It is our commitment as an organisation. Most of you are aware of how the market works; it is a highly competitive motor market. There are a lot of underwriters and business providers. Whether claims costs increase or reduce, they typically flow through to our premiums.

--- Later in debate ---

[Chris Philp]

Q In the absence of any change, what is your assessment of the percentage impact on the average car insurance premium in this country?

James Dalton: It will go up significantly. I think the impact on young drivers is going to be particularly bad, because those are the customers who are most likely to have catastrophic injuries. It is estimated that their premiums could increase by £1,000.

Rob Townend: I will not say a lot that differs from what Mr Dalton has said. We have got to sort out the methodology for setting out the discount rate, because I think nobody would say that it fits the current world, either from an investment return point of view or from the point of view of looking after those who are seriously injured.

The fact that there are so many variations of the potential solution that the Lord Chancellor could have chosen tells you that the mechanism does not work. At the moment, while the consultation is happening, there is a world of uncertainty around what will happen in the future. I think it is in everybody’s interest to get clarity around a longer-term rate that can be as formulaic as possible and looks after the long-term interests of those who are seriously injured while looking at the longer-term investment returns that lump-sum payments can achieve. We just plead that the consultation is got on with quickly. We would love to see the piece of legislation that it could be put into.

Brett Dixon: It is important to understand that you are dealing with issues at two ends of a different spectrum. You are talking about a whiplash claim, and in the same breath, in terms of the discount rate, you are talking about the catastrophically injured person. The important point in relation to that is that, first, the insurers have known for some time that this change was coming. It was long overdue. For a number of years they have made provisions in their own accounts for this, so to suggest that this has come like a bolt out of the blue is disingenuous.

Secondly, the changes are to ensure that a seriously injured person has sufficient moneys available to make provision for their future needs because of somebody’s negligent act. A lot of it is about care. If you are not making sure the person who did the damage is paying via their insurance policy, it will be the NHS and the taxpayer who ultimately have to foot the bill to look after that seriously injured person. What you will not change by changing the mechanism for the discount rate is the fact that that person is seriously injured and needs that care. It is right for society that the person who did the damage should foot the bill, not the taxpayer.

Insurers knew this was coming. I hear a lot of talk about how you cannot buy Government gilts. Because of the mechanism chosen in the Damages Act 1996, the person who is investing their money does so on the basis that they are taking a no-risk investment. That is why that is there. There are no other no-risk investments available. If you want a judge to calculate damages, he has to have a methodology and a starting point.

James Dalton: No one is arguing about whether these claimants need the support that an insurance company is going to provide. No one is saying that these people should get less money. What we are saying is that the formula for setting the rate, which is now 20 years old, needs to be updated to take into account the fact that it is linked to Government bonds and assumes 100% compensation. These things do not just happen in practice.

[Sir Oliver Heald]

Q I do not know if Mr Dixon and Mr Dalton would agree that the Lord Chancellor has had to exercise her duty in a quasi-judicial way under the existing mechanism as it stands. It is right for this to be a consultation about the future, but that was the law. Do you agree?

Brett Dixon: I agree entirely. The Lord Chancellor made the decision that she was legally required to make. She was exercising a quasi-judicial function when we made the reforms, introduced the Supreme Court and made other changes. That role was retained by the Lord Chancellor, even though setting damages is properly a judicial function.

James Dalton: I do not agree. The Government undertook consultation exercises in 2012 and 2013 specifically asking questions around whether the regulatory framework for setting the discount rate was right. Indeed, there is going to be a consultation now asking similar questions. To me, that suggests that the Government do not think that the framework is right. In that context, it also suggests that the decision that the Lord Chancellor has decided to take, based on legal advice, is questionable. I do not think that the way that she has taken that decision is right.

Prisons and Courts Bill (Fifth sitting)

Oliver Heald Excerpts

Comittee Debate: 5th sitting: House of Commons
Tuesday 18th April 2017 Public Bill Committees

[Nick Thomas-Symonds]

I am grateful, Mr Stringer. I will confine my remarks to those two amendments. I was trying to be helpful; it is a slight curiosity that although amendment 32 relates to clause 34, it is grouped with the others because it relates to independent evaluation. That is the point I wanted to clarify.

The Opposition very much appreciate the need for greater efficiencies throughout the justice system, but to ensure that our justice system is just, proportionate and accessible, it is of the utmost importance that there be access to justice—access for the most vulnerable citizens in our communities, whether they are witnesses, victims or, indeed, the accused. It is well established that high numbers of people who come into contact with our criminal justice services have multiple needs, many of which are directly related to their ability to interact with Her Majesty’s Courts Service in a meaningful and effective manner using technology. To ensure that all defendants—especially the vulnerable, including children and those who suffer from mental health issues and may have addictions or learning difficulties—do not fall prey simply to the exigencies of swift and efficient resolution, robust safeguards have to be in place to ensure informed decision making and a comprehensive understanding of the nature of the decisions.

Clause 23 includes the ability of the defendant to give a written indication of their intention to plead guilty or not guilty. The aim is to save time and money. In subsection (4) there is already a provision for defendants to be given information about the written information procedure, how it works and the consequences, but we believe, in accordance with representations we have had from a variety of stakeholders, including the Bar Council, the Law Society, Justice, and the Magistrates Association, that the wording is not as explicit as we would like it to be. In addition, we wish to ensure that there is a user-friendly way in which the language is expressed. It is vital that people clearly understand their right to legal assistance before making a decision, to understand their options before they follow the online process; and, critically, that the defendant is aware of the consequences of indicating a plea in writing.

There is an additional concern that written procedures will lead to more unrepresented defendants in our system. Research by Transform Justice suggests that entering the plea is one of the points in the system where those without a lawyer are at their most disadvantaged. Unrepresented defendants did not understand when they had a viable defence and should plead not guilty, but that works in reverse as well: people can plead not guilty when the evidence against them is overwhelming, thus losing credit for an early guilty plea.

Furthermore, there are concerns that under the new written procedures defendants will no longer have access to the informal support network in courts, which includes clerks and ushers in addition to legal counsel. It is vital that we at least seek to replicate such support in the written procedures with an option to stop and seek legal advice at each stage. We need to prevent a situation where the defendant could reach the sentencing stage of their case before even seeing a judge or magistrate and for there to be a risk that a conviction should not have been entered. Of course, that could ultimately lead to an outcome that is in nobody’s interest: a miscarriage of justice.

In subsection (5) there is provision for how and by whom written information may be given to the defendant, but, again, concern has been raised by Transform Justice about the minimum levels of training that individuals will receive to ensure that they are appropriately qualified to offer advice on such complex issues. It is sometimes hard to imagine a situation in which representatives would not be in that position. We all have to try to ensure that they are in a position where we can serve the interests of justice.

Clearly, there are concerns. I refer specifically to amendment 92. Justice and the Prison Reform Trust are concerned in relation to persons who are unable to follow written procedures because of their particular needs. Many people in the justice system can lead chaotic lives for a variety of reasons and have complex needs, including mental health needs and/or learning difficulties. Others may be partially or wholly unable to read or write. There is also a concern that defendants and witnesses are reluctant to declare, or may not even be aware of, a disability, and online and virtual processes can exacerbate that assessment challenge. We are concerned about the risk that a vulnerability will be missed, and we certainly want to ensure that those who have to deal with it are able to do so. There is also a concern about the incentivisation of guilty pleas owing to the ease of simply responding to written options. I hope I have set out some of the concerns in relation to clause 23.

We suggest that the two amendments in this group—the first, amendment 92, is about adequate information; the second, amendment 91, is more specific, on the notification of the right to legal assistance, consequences of a plea and notification of plea procedures available—would deal with some of the concerns that I have outlined and would be sensible for the Government to adopt.

[The Minister for Courts and Justice (Sir Oliver Heald)]

It is a great pleasure to serve under your chairmanship again on such a momentous day, Mr Stringer. I put on the record my gratitude to the Ministry of Justice officials who have put so much work into briefing me and helping me with this Bill. I thank them all very much indeed.

I commend the hon. Member for Torfaen and his hon. Friends for seeking to ensure, in proposing amendments 92 and 91, that our planned reforms to pre-trial criminal procedures are fair, transparent and as straightforward as possible. I share the concerns about protecting the principles of justice. I hope that I can reassure them that the safeguards they seek are to be provided and are catered for by the Bill.

The first thing to say is that engaging with the written information procedure will always be entirely optional: defendants will always be free to opt out for a court hearing if that is their wish. The court will always retain the discretion to hold a hearing if it thinks that is necessary. Every defendant will be given a hearing date at the same time as they are invited to engage online. They will be provided with enough information to make an informed choice. If they choose not to engage online, they can simply attend the hearing that they have been notified about.

Clause 23(4), mentioned by the hon. Gentleman, states that the criminal procedure rules may specify what information is to be given to defendants about the nature of the written information procedure and the consequences of following it as well as about seeking legal representation. It states that this information can also be given to a parent or guardian where a defendant is under 18.

The Criminal Procedure Rule Committee, independent of the Government, is chaired by the Lord Chief Justice and is full of expertise, given that it has representation from other judges, magistrates, justices’ clerks, barristers, people from voluntary organisations and so on. It will have the power to stipulate the information that it considers to be pertinent to the defendant’s ability to make an informed choice. We believe that it is appropriate to give that committee the power because it has that expertise, and also because it will be able to refine the rules once it sees how the written information procedure works in practice. Section 69(4) of the Courts Act 2003 already requires that the rules be accessible, fair, simple and efficient. Those rules, of course, come before Parliament as secondary legislation.

In terms of accessibility, Her Majesty’s Courts and Tribunals Service is determined that the written information procedure shall be straightforward and comply with government digital service accessibility standards. User research has been at the heart of developing the technology. There will also be assisted digital provision for those, mentioned by the hon. Gentleman, who are unable to use digital services; they will be able to get help either over the phone or in person if they need it. I commend the hon. Gentleman for seeking reassurance and hope that I have provided it. On that basis, I ask him to withdraw the amendment.

[Nick Thomas-Symonds]

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Sir Oliver Heald]

Again, I commend the hon. Gentleman on putting forward a protection, but I hope to be able to satisfy him that the Bill tackles the issue.

I start by saying that I agree it is desirable for defendants to seek legal representation in the case of serious crimes. Engaging with the court online at pre-trial stages will be voluntary, and if a defendant wants to speak to a lawyer at a hearing before indicating a plea, he will be perfectly entitled to do that. Similarly, if he wants to obtain legal advice before indicating a plea online, he can do that. The measure does not fundamentally undermine the current system. In fact, it is probably better.

It is also relevant that, save when specific procedures apply in respect of summary offences—those are very limited—the defendant will have to enter a plea at the court hearing rather than simply indicating what their plea is online. So before trial or sentencing, a plea will have been entered at court.

If a defendant withdrew a previously indicated guilty plea, the previous admission of guilt could not be admitted as evidence in the proceedings, and no defendant who attended a court hearing rather than engaging online would be disadvantaged for the purposes of the early guilty plea discount.

Amendment 93 is undesirable to some extent because it would restrict the defendant’s right to self-representation, which has always been there, and I ask the hon. Gentleman to withdraw the amendment.

[Nick Thomas-Symonds]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 91, in clause 23, page 21, line 13, at end insert—

“(4A) Criminal Procedure Rules must include provision for a person charged with an offence, or a parent or guardian of that person, to be given in writing—

(a) notification of a defendant’s right to legal assistance;

(b) notification of plea procedures available, not limited to the written information procedure;

(c) an explanation of the consequences of indicating their plea in writing.

(4B) Information provided under subsection (4A) must be presented in an accessible format using clear language.” —(Nick Thomas-Symonds.)

This amendment ensures defendants receive adequate information and notification about the written information procedure, including alternative plea procedures and the consequences of indicating their plea in writing.

Question put, That the amendment be made.

--- Later in debate ---

[Sir Oliver Heald]

Again, I acknowledge the concerns that have been expressed. I support the idea of reviewing and monitoring measures put in place in legislation. However, the proposals have all been developed alongside extensive user research, and we already intend to review and monitor the new processes on a continuing basis to make sure that they are used properly. We consider that that iterative approach is better than conducting a one-off evaluation of the matters that we are discussing.

We also have plans to monitor performance data and gather feedback on all our new systems. Both Her Majesty’s Courts and Tribunals Service and the Ministry of Justice publish annual reports and accounts, reviewing performance against the year’s priorities and objectives, which are available to Parliament and the public. Defendants engaging online will be given the same information and warnings that they would receive in court, and will have access to the same legal advice. Of course, the court has discretion to conduct its proceedings at a hearing whenever it wishes.

The measures concerning audio and video technology in the criminal courts are very specific about the circumstances in which live links and virtual hearings may and may not be used, so sentencing hearings may not take place wholly as audio hearings. We have also invited the Criminal Procedure Rule Committee, which I mentioned before—an independent body chaired by the Lord Chief Justice—to consider the new powers and whether the current rules should be amended to set out additional factors that the court should consider when deciding the appropriate mode of hearing. The court will always have the final say on that, and assisted digital provision will be in place to support users to interact with Her Majesty’s Courts and Tribunals Service using digital channels, and to support access to the necessary technology and digital skills, so that it can be easily used.

I turn to public participation. Open justice is a fundamental principle of our justice system. It is vital that we maintain transparency, which is why we propose to enable access to fully virtual hearings that do not take place in a physical courtroom, using terminals, which will be located in court buildings across England and Wales. We have conducted extensive research with stakeholders to help develop our proposals, and we will be testing the provision with court users.

As we make virtual hearings available, HMCTS will carefully monitor observer demand to ensure that we are providing the appropriate levels of access. We anticipate that observer numbers for virtual hearings will generally be low but we will ensure, as far as we can, that provisions are flexible in order to accommodate interested observers of a virtual hearing.

I hope I have been able to reassure hon. Members that the appropriate arrangements and safeguards are in place, and that the written information procedure of virtual hearings will be used effectively and appropriately and to enable access to fully virtual hearings.

[Nick Thomas-Symonds]

I intend to push amendment 94 to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Sir Oliver Heald]

I will speak to Government amendments 51 and 50, but amendment 95 raises the important issue of whether the written information procedure in the Bill should apply to young defendants. Government amendment 51 clarifies how the court might proceed if a youth is on the cusp of turning 18, and Government amendment 50 looks at how the expanded power to remit cases from the youth court should apply when a defendant turns 18.

The written information procedure means that a person charged with offences may choose to give specified information to the court, including an indication of a guilty or not guilty plea. The plan is that that will usually occur online through the Government’s digital channel, which is a unified digital case management system that is currently being developed by HMCTS. Although young defendants may therefore indicate a plea earlier than now, amendment 51 makes sure that the court will retain discretion in relation to those on the cusp of turning 18 so that it can still treat them as youths, because they will no longer have to wait until the first courtroom hearing. Therefore when a defendant turns 18 having previously indicated a plea online, the youth court may still treat them as a youth and deal with them using the powers under the Children and Young Persons Act 1963.

Amendment 50 clarifies how the expanded power to remit cases from the youth court to another criminal court will apply when a defendant turns 18 between charge and trial. If a defendant turns 18 post-charge and the youth court decides pre-trial to remit the youth to the mainstream magistrate’s court, the receiving court will not be able to continue to treat them as a youth, and for example use the more extensive custodial powers of a youth court. As a result, defendants will have greater certainty about what will happen as a result of the youth court’s decision to remit. They will therefore be in a better position to decide whether at the time of remittal they want to elect for jury trial. From time to time the age of a defendant may be unclear, and there are young defendants who, for example, are also victims of human trafficking. In some such cases, fresh information may arise later on that allows the court to more accurately determine age. Amendment 50 caters for those scenarios and allows a case to be remitted back to the youth court.

Turning to Opposition amendment 95, the purpose of clause 23, combined with clause 30 and schedule 3, is to reduce the number of times young defendants and their parents or guardians need to travel to court. That is part of the distinct service model that is being developed for young persons. For example, when a case must be sent to the Crown court because it can be tried only with an indictment, young defendants will no longer have to travel to a youth court to allow that simple process to occur.

That is important, because there has been a 70% decline in the number of proceedings against young people in the criminal courts since 2006-07. Although that reduction is welcome, its scale does pose logistical challenges. In some areas, sittings of the youth court are in fewer locations and are already occurring less frequently, causing delays. Allowing case management at the pre-trial stages of cases to take place outside the courtroom means that young defendants ought only have to travel to court for a trial or for a sentencing hearing. Through its six-year reform programme, HMCTS is developing a specific service model for young defendants, including those who provide information in writing. It is a distinct youth justice system for children and young persons. Young defendants will therefore continue to be subject to procedures and processes that are different from those for adults.

The Bill provides a number of safeguards applicable to young defendants who choose to provide information in writing. I will not say more about those at this stage, as we have clause 30 to come. In the light of those safeguards and the distinct service model that is being developed, I ask the hon. Gentleman to withdraw amendment 95.

[Nick Thomas-Symonds]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24

Charge by police or prosecutor: non-appearance in court after guilty plea

Question proposed, That the clause stand part of the Bill.

[Sir Oliver Heald]

The purpose of clause 24 is to extend the current procedure of pleading guilty in writing, which is in section 12 of the Magistrates’ Courts Act 1980, to summary offences that are charged by the police. Under the procedure, a defendant can indicate a guilty plea in writing, and then the court can convict him or her of the summary offence in question without the defendant’s having to appear before it for a hearing.

Under existing law the procedure applies only to summary offences begun by summons or written charge. Clause 24 provides that a defendant can adopt the procedure in cases begun by police charge. In all cases, opting to plead guilty in writing and to be convicted in absence will remain entirely voluntary. Clause 24 reaffirms and continues the important safeguard that a magistrates court cannot sentence a defendant to custody, or impose a driving disqualification, without first bringing him or her to court.

Under the clause it will also remain the case that the section 12 procedure can apply only where the defendant has been served with the information about the charge and the evidence against him. Where there is reason to do so, clause 24 allows the court, relevant prosecutor, or police to decide not to apply the procedure whereby a defendant pleads guilty and is convicted in their absence, so that they are brought before the court to enter a plea.

Question put and agreed to.

Clause 24 accordingly ordered to stand part of the Bill.

Clause 25

Either way offence: choice of written procedure for plea before venue

[Nick Thomas-Symonds]

I beg to move amendment 98, in clause 25, page 24, line 7, leave out paragraph (d) and insert—

“(d) explain that, if the person chooses not to give a written indication of plea or fails to do so within 21 days of the date on which the document was sent, the court must proceed under section 17A upon the expiry of the 21 day period;”

This amendment gives greater clarity and certainty about the timeframe in which a court hearing must be held where a person does not give a written indication of plea.

The purpose of the amendment is to give greater clarity and certainty about the timeframe in which a court hearing must be held where a person does not give a written indication of plea. Clause 25 inserts into the Magistrates’ Courts Act 1980 a section that provides for the defendant charged with a summary, indictable or either way offence to have a choice to engage with the “plea before venue” procedure in writing, without having to attend court, provided that they have been equipped with certain information. Under the section, where the defendant indicates a guilty plea in writing, the offence is treated as if it were a summary offence.

In the case of a guilty plea, the defendant can be convicted without the hearing of any evidence, and the magistrates court can proceed to sentencing or refer the proceedings to the Crown court, if it considers its powers inadequate. Where the defendant indicates a not guilty plea in writing, they are given the choice of agreeing that the court should proceed to decide mode of trial outside court in their absence. Clause 25 also provides that where the defendant fails to give any written indication of plea, the proceedings continue in accordance with existing court-based procedures. There is a concern that that is likely to build in delay, rather than reduce it.

The clause provides a safeguard, in that it allows a defendant who has given an indication of plea in writing to withdraw it in writing at any time before the case is heard. However, it is our view that further safeguards should be added, to ensure that assistance is provided for those who are not able to engage with a written or online procedure. It is well established, as I mentioned in my remarks on clause 23, that high numbers of people in contact with the criminal justice system have multiple needs, many of which are directly related to their ability to interact with Her Majesty’s Courts Service in a meaningful and effective manner using technology. For example, literacy rates among prisoners are low, with about half at or below level 1 in reading, and four fifths at or below level 1 in writing.

It is generally acknowledged that between 5% and 10% of adult offenders have a learning disability of some kind, thus support is required in reading, writing, communication and comprehension. There is also a worry that someone with a learning disability before the justice system may be suggestible. We have to ensure that they are not in a situation where they fail to understand what they are accused of and the implications of decisions they are being asked to make.

There is a worry that someone may plead guilty in order to expedite proceedings in the hope of being allowed, for example, to leave custody and return home quickly, without appreciating the implications of entering a guilty plea.

Many people with mental health problems have conditions that fluctuate. That, of course, means that they may engage well with technology on one occasion but not on another. That can vary, not just day to day, but over the course of a day. It is vital that, where a defendant does indicate a plea, they must be able to choose between using a written, online or court procedure and that that is a legitimate choice, free of pressure or prejudice of any kind.

There are concerns that indirect pressure will be applied to defendants to opt for the written procedures by unduly delaying in-person proceedings. On that basis, I seek assurance that, where a person does not indicate his plea in writing or online, a clear and reasonable timeframe is offered in which a court hearing must be held. That is precisely what the amendment would do. It would make clear in circumstances where a person does not indicate his or her plea in writing or online that the timeframe of 21 days is given in which a court hearing must be held, so as not to discriminate against those who opt for an in-person hearing.

[Sir Oliver Heald]

The point underlying the amendment is, again, valid. Clearly, defendants will have to be told that, if they wish to indicate a plea online, they must do so before the date to which they have been bailed to appear at court. The time allowed for that purpose must not be so long as to lead to increased delay. However, the deadline set by reference to the date when documents were sent would not in my view work.

The date to which defendants are bailed after charge, pending their first court appearance, is governed by the criminal practice direction, issued by the Lord Chief Justice. It is significant that the date set for a hearing depends on the circumstances of the case and varies according to whether a guilty or not guilty plea is likely: respectively, 14 days or 28 days after charge.

The 21-day deadline specified in the amendment would expire a week before the hearing date in the case where a not guilty plea was expected or, less practically, a week after the date to which a defendant would be bailed to appear where a guilty plea was anticipated.

There are two conclusions. The first is that a single deadline, set by reference to the date when the documents were sent, would not work. The second conclusion is that, whatever deadlines may be suitable, it is probably not for primary legislation. I know that the Criminal Procedure Rule Committee has started to look at this matter. I therefore invite the hon. Gentleman to agree that this could more appropriately be prescribed in the criminal procedure rules and so ask for the amendment to be withdrawn.

[Nick Thomas-Symonds]

I hope that something like that will be prescribed in the criminal procedure rules, as indicated by the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 ordered to stand part of the Bill.

Clause 26

Either way offence: choice of written procedure for mode of trial

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Sir Oliver Heald]

The purpose of clause 26 is to provide for defendants to choose to have mode of trial dealt with in writing outside court and without being present. It will allow the court to hold fewer pre-trial hearings and to deploy its time more effectively and proportionately. As the Committee no doubt knows, mode of trial is the procedure for offences classified as triable either way when there is a decision to be made as to whether the case is more suitable for a magistrates court hearing or a Crown court hearing.

As part of the mode of trial procedure, the defence and prosecution have the chance to make representations to court concerning, for example, previous convictions. The defendant may have the right to ask whether a custodial sentence would be likely if he pleaded guilty. After such communication, the magistrates court makes a decision about whether summary trial at the magistrates court or Crown court trial is more suitable. If the magistrates reject jurisdiction, the defendant is sent to the Crown court for trial and their consent is not required. If the court decides that summary trial is more suitable, the defendant is asked to choose whether they wish to elect for trial at the Crown court.

Clause 26 makes it possible for all these interactions with the court to be conducted in writing if the defendant so chooses. As such, it plays an important role in allowing the criminal court to streamline case management procedure. It also amends the provision dealing with police bail after arrest. The date, time and place at which a defendant is remanded to attend court is to be that fixed by the court officer. This gives the court the flexibility to allow the defendant a reasonable opportunity to engage in the written procedure.

I turn to clauses 27, 28 and 29. Clause 27 would enable magistrates courts to decide mode of trial for either way offences in the absence of an adult defendant. It is needed to allow the courts to continue to progress cases when defendants have failed to appear. When mode of trial is to be decided in the defendant’s absence, he or she is deemed to have indicated a not guilty plea and the court then proceeds to allocate the case for summary or Crown court trial as appropriate. If the court allocates the case for summary trial, the defendant retains the right to elect for Crown court trial up to the start of that trial.

Clause 27 provides a safeguard in that the court can proceed to decide mode of trial in absence only if it is also satisfied that all the relevant documents have been given to the defendant and that he or she has been made aware of the date of the mode of trial hearing. Moreover, the court does not have to allocate the case in the defendant’s absence in accordance with this provision, but may choose to adjourn.

Under existing law, theft from a shop of goods worth less than £200—known as low-value shoplifting—is triable only summarily unless the defendant exercises the right to elect for trial in the Crown court. Clause 28 gives defendants in such cases the choice of exercising that right in writing without attending court.

Clause 29 enables indictable offences to be sent to the Crown court without a hearing and the defendant to be notified in writing that this has been done. A so-called sending hearing in the magistrates court—sending to the Crown court—would be superfluous in either way cases that are allocated for Crown court trial pursuant to clause 26 when the defendant has engaged online. Such a hearing would also be superfluous in any indictment-only case, which has to be sent to the Crown court for trial regardless of the defendant’s consent.

Clause 29 also provides that the circumstances when joined cases or co-defendants are to be sent to the Crown court along with the main offence are to be dealt with by criminal procedure rules, which may also include provision for related summary-only offences to be sent to the Crown court.

Question put and agreed to.

Clause 26 accordingly ordered to stand part of the Bill.

Clauses 27 to 29 ordered to stand part of the Bill.

Clause 30

Children and young people

Question proposed, That the clause stand part of the Bill.

[Sir Oliver Heald]

We have already had some discussion of the clause when considering amendment 95. The clause introduces schedule 3 to the Bill, which permits preliminary proceedings for defendants aged 10 to 17 charged with criminal offences to be conducted in writing. A person charged with offences may choose to give specified information to the court in writing, including the indication of a guilty or not guilty plea. It is planned that the giving of that information will usually occur online through a common platform—a unified digital case management system—currently being developed by Her Majesty’s Courts and Tribunals Service.

Through its six-year reform programme, Her Majesty’s Courts and Tribunals Service is developing a specific service model for young people, including those who provide information of the sort I mentioned in writing. That is in recognition of the fact that there is already a distinct youth justice system for children and young persons, with separate procedures and processes applying to them when they come to court. The future service model for young people takes account of the 70% decline in the number of young people proceeded against in the criminal courts since 2006-07. While that reduction is welcome, its scale poses the logistical challenges I have mentioned before, which can lead to delays; for young people, it is particularly important that cases are heard as quickly as possible.

The purpose of the clause and schedule is to reduce the number of times young defendants and their parents or guardians need to travel to court, so reducing the burden of travel. The Bill will allow for case management at the pre-trial stages of cases to take place outside the courtroom, so that young defendants preferably travel to court only for trial and sentencing hearings—for example, where a case must be sent to the Crown court, it will no longer require a court hearing to do so.

The Bill provides a number of safeguards applicable to young defendants who provide information in writing. For example, having regard to the circumstances of the case and the age of the young defendant, the court will ascertain whether the parent is aware of the written proceedings, and if not, will make them aware. The aim is to ensure that, taking into account the young defendant’s age and maturity, he or she is given enough information to make an informed decision when choosing to participate in the preliminary proceedings in writing. Courts must therefore also provide the young defendant, and as appropriate, their parents, with information that explains the written procedure, the choices available to them and the effects of those choices.

Where a plea of guilty or not guilty is indicated in writing, courts will also subsequently have to make sure, at the first hearing in the courtroom, that the young person has understood and confirms their written indication of plea before proceeding further. It is worth underlining that the young person is indicating their plea, not pleading in writing; they have to do that in court. As with any case involving a young defendant, when dealing with preliminary matters in writing, courts must have regard to the overarching statutory duties to prevent offending by young people and to have regard to their welfare.

[Nick Thomas-Symonds]

We oppose clause 30. As the Minister has indicated, we have already discussed children being involved in written proceedings when we discussed amendment 95 to clause 23 a moment or two ago. I am grateful for some of the safeguards the Minister has set out, but for the Opposition they remain insufficient. I indicated in our discussion about amendment 95 concerns about the awareness of parents and guardians, the likeliness of children entering guilty pleas, peer pressure and, most fundamentally, children being able to understand proceedings.

I want to deal specifically with the Taylor and Carlile reviews, with which the Minister will be familiar. The Taylor review, which was commissioned in 2015, looked at the youth justice system and was published in December last year alongside the Government’s response, which included a commitment to implement the spirit of the review. The Taylor review was highly critical of the court system, which it found was

“not set up to ensure the full participation of children in criminal proceedings.”

It should trouble the Committee that Taylor found that court procedures and outcomes are frequently not understood by children. He stated:

“On many occasions children leave the court confused by the outcome and need to have their sentence explained to them by a YOT”—

youth offending team—

“worker… Too often children are the passive recipients of justice and do not understand the process to which they have been subjected.”

In addition, he found that the youth justice system

“has a statutory aim to prevent offending, but the criminal courts are not equipped to identify and tackle the issues that contribute to and prolong youth offending… Magistrates frequently report that they impose a sentence without having a real understanding of the needs of the child, and they rarely know whether it has been effective.”

The phrase “frequently report” is important; it is not simply a problem that a minority worry about, but a frequent problem.

Taylor recommended the introduction of a new system of children’s panels to sentence children. Those panels would have greater powers to identify and tackle the causes of offending, and panel members would oversee a child’s progress. In 2014 a major review of the children’s court system, chaired by the noble Lord Carlile, made similar findings—particularly that children were not engaged in proceedings—and advocated a problem-solving approach.

The Opposition’s concern is that the Bill does nothing to rectify the very serious problems that both Taylor and Carlile identified. We worry that those problems of engagement, participation, understanding and comprehension will be made worse by introducing proceedings in writing in this way. Our position is therefore that clause 30 should not stand part of the Bill and should be deleted altogether.

[Sir Oliver Heald]

I agree with the hon. Gentleman that the reports to which he refers are well worth considering. The Government responded warmly to the Taylor review.

Young people lead their lives in a more online way than some of us older folk, so having an online procedure that explains things to young people, with the safeguard of their having to attend court so that they give only an indication of plea in writing—they do not actually plead—will help.

[Nick Thomas-Symonds]

On online procedure, in the initial evidence session Professor Susskind referred to the fact that children interact with one other in a very different way from the way they did 20 or 30 years ago. My only slight concern about that is that we often urge caution on children when they engage with people online, particularly when that online contact is transferred to offline contact.

[Nick Thomas-Symonds]

We should therefore perhaps exercise some caution about the way that children engage online.

[Sir Oliver Heald]

I do not disagree with the hon. Gentleman about being cautious—as a Conservative, it comes naturally. Having said that, there are a range of safeguards in the Bill, for example the fact that the parents and guardians are involved and that the parent has to be made aware of the written proceedings if they are not already aware. That has to be investigated. The online procedure will explain matters, as well as the oral explanations that always take place in the youth courts.

We obviously do not agree about this, but I invite the Committee to support clause 30, which will help rather than hinder the cause of young people in the courts, and schedule 3.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Sir Oliver Heald]

Clause 31 creates a power for the Lord Chancellor to make regulations to enable or facilitate the making of preliminary and enforcement decisions in criminal proceedings by a court on the papers—that is, without a hearing. Regulations may only be made under that power with the agreement of the Lord Chief Justice and will not be able to remove from the court the option of holding a hearing. The regulations may be used to amend primary or secondary legislation.

Courts already have an inherent power to determine matters on the papers in some circumstances, but existing provisions preclude that in certain cases. In order to give the court greater flexibility to manage criminal proceedings, it may be appropriate to remove those barriers, so that the court can decide whether a hearing is required. I should emphasise that any regulations made under this power will be subject to affirmative resolution. Both Houses of Parliament will therefore have the opportunity to scrutinise any proposed change and will be invited to approve it.

Given the wider court reform proposed in the Bill, we believe that the merits of removing legislative requirements for a hearing will be best assessed once the reforms have come into force and have bedded in. It is therefore not possible to say exactly which matters we would like to enable the courts to deal with on the papers, but Members can be assured that the necessary safeguards are in place to ensure that this power will only be exercised where it is appropriate to do so.

[Nick Thomas-Symonds]

It is not my intention to oppose the clause, but perhaps the Minister could comment on one or two concerns. It is doubtful whether this provision would save time overall in highly complex cases, but I can see the case for it in numerous other eventualities. We should always remember that case management decisions are judicial, not administrative, decisions. What flows from that is that we have to ensure that the relevant information is available to the judiciary in deciding that, and that interested parties always have the opportunity to contribute, should they wish. Of course, in this, as in other situations, the court has to be able to respond to the individual circumstances of a particular case.

[Sir Oliver Heald]

I agree that these are judicial decisions, but I believe there is a case for flexibility. Where appropriate, any legislation that requires that a pre-trial or enforcement matter be determined at a hearing, if that is to be removed, the courts can still on a case-by-case basis decide whether a hearing is required. That, of course, is a provision that requires the support not just of the Lord Chancellor but of the Lord Chief Justice. I certainly take the hon. Gentleman’s point but still commend the clause to the Committee.

Question put and agreed to.

Clause 31 accordingly ordered to stand part of the Bill.

Clause 32

Expansion of availability of live links in criminal proceedings

Question proposed, That the clause stand part of the Bill.

[Sir Oliver Heald]

I had understood that it might be the case that the amendments would be dealt with next, but I am more than happy to move straight to the clause if I should.

[The Chair]

I think you should.

[Sir Oliver Heald]

Then I will. I propose to deal with clause 32 and schedule 4 together, as the clause simply gives effect to that schedule. Schedule 4 expands the court’s powers under section 51 of the Criminal Justice Act 2003, to make better use of live audio and video links in trials, appeals and other specified hearings in criminal proceedings. At present, section 51 enables a witness, but not the defendant—

[The Chair]

Order. May I help the Minister? At the moment we are dealing only with the debate that clause 32 stand part of the Bill; we will come to amendment 104 to schedule 4 next. I hope that is helpful to the Minister.

[Sir Oliver Heald]

I beg to move clause 32.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Schedule 4

Live links in criminal proceedings

[Nick Thomas-Symonds]

I beg to move amendment 104, in schedule 4, page 77, line 14, at end insert—

“(aaa) in the case of a person who has not attained the age of 18 years, a live audio link or a live video link is in the individual’s best interests,”

This amendment ensures the court will only give direction to under 18 year olds to take part through a live audio link or a live video link, when it is in their best interests.

--- Later in debate ---

Specifically on the amendments, the Opposition think that requiring the provision of a live audio or video link to be in the individual’s best interests when dealing with those under the age of 18 would be an entirely sensible reform and safeguard for young people in our justice system.

[Sir Oliver Heald]

Again, I think that, across the Committee, we are seeking to achieve the same result. The Government sympathise with and share the intention behind the amendment. We want young people only to take part in proceedings that use such technology where it is appropriate for them to do so. I will reassure Committee members as to how the provisions in the Bill, and other protections, will achieve that objective.

Under the provisions in the Bill, a court may direct that a young person participate through a video link only where it considers that it is in the interests of justice for that person to do so. In exercising that power, the court also has a statutory duty under section 44 of the Children and Young Persons Act 1933 to have regard to the welfare of the young person. Furthermore, safeguards set out in the Bill will help to make sure that the court has adequate information with which to make that decision.

Schedules 4 and 5 provide that the court can make a direction to use a live link in respect of a young person only where the relevant youth offending team has been given the opportunity to make representations. Overall, it would be considered to be in the interests of justice for a young person to participate in proceedings through a live link where it could also be said that it was in their best interests to do so. The interests of justice test will consider the entire proceedings, and a detrimental impact on the young person would be, in my view, inconsistent with considerations of justice and having regard to the welfare of the young person.

Of course, where the defendant, victim or witness would not give their best evidence through appearing in person in the courtroom, it would likely neither be in the interests of justice or in their best interests to not use a video link. Conversely, where a young defendant’s mental condition is so disturbed that his or her production would be a significant detriment to his or her welfare, it would be difficult to argue that the use of the video link as an alternative—on medical advice—might not be in his or her best interests.

It is also worth noting that the recent amendments made by the Lord Chief Justice to the criminal practice directions of 2015 currently state that it will usually be appropriate for the young person to be produced in person in court. The directions suggest, where it may be appropriate, using video links on a case-by-case basis. They also refer to the need to ensure that the court can engage properly with the youth, and that the necessary level of engagement can be facilitated with the youth offending team, the defence representative and an appropriate adult. Those are the protections in place.

The hon. Gentleman asked whether there will be more use of the live link, but I think the key point is that the means through which a young defendant attends court proceedings will be and should be determined on a case-by-case basis. Courts have to consider whether it is in the interests of justice for a young defendant to participate, and I think we can rely on our courts to take those decisions with great care. Personally, I think one of the strengths of our independent legal system is that we have such expertise in our youth courts.

The 2010 study was mentioned, but 2010 is a lifetime ago in modern technology. That study did not cover the range of virtual hearings that we are talking about; it simply covered cases that were dealt with between the police station and the magistrates court. It came out in the evidence that the hon. Gentleman mentioned—many witnesses made this point—that that was not comparing apples with apples. Well, they did not use those words, but that is the way I put it. I therefore ask hon. Members to withdraw amendments 104 and 110.

[Nick Thomas-Symonds]

I am still not entirely satisfied, so I will press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Nick Thomas-Symonds]

This group of amendments seeks to require courts to give reasons for issuing live link directions rather than reasons for not issuing them. Our position is straightforward: we do not want a “digital by default” system to arise. We believe that the best method of achieving justice is having all participants in the same room. We suggest that that is a simple, well established proposition on which we should all be able to agree.

The amendments would still allow live links where appropriate, but they would build into the Bill an assumption in favour of the physical majesty of the courtroom rather than of digital technology being used most of the time. I suggest that the amendments would create the right balance in our court system, so that courts are able to utilise new technology when it is appropriate to do so but we do not lose sight of the fact that having all participants in the same room is the most appropriate way of producing a just outcome.

[Sir Oliver Heald]

I understand that hon. Members are concerned, as the hon. Member for Torfaen said, that the Bill will have the effect of making virtual hearings the default mode, but I assure them that that is not the case. Instead, it will enable the use of virtual hearings in a wider range of circumstances to improve accessibility and efficiency. Live link technology is already used by the courts to great effect. It reduces inefficiencies for court users and time-pressed citizens, and it makes the court process less intimidating for vulnerable or intimidated witnesses and young people, as we recently discussed.

Asking the court to give its reasons for not giving a live link direction is the established practice—for example, in respect of an accused person in custody at a preliminary hearing under section 57B(6) of the Crime and Disorder Act 1998. Although it does not create the presumption that live links must be used, it encourages the court at least to consider whether it would be more proportionate or in participants’ interests to make use of live audio or video link technology. With the status quo of the court hearing there is really no need for that particular measure.

We want to encourage the court and other participants to make greater use of live audio and video links, but at the same time there will be rigorous safeguards in place to ensure that those are used only appropriately and that defendants get a fair hearing. The court will always have the final say on mode of hearing and will need to be satisfied that it is in the interests of justice and compatible with the defendant’s right to a fair trial, having considered representations from the parties and, in the case of young people, the youth offending team.

I hope I have been able to reassure hon. Members that asking the court to give its reasons for not issuing a live link direction is the established practice. It will not have an impact on the court’s determination and it will, of course, provide useful information to Her Majesty’s Courts and Tribunals Service on what limitations there may be to the use of live audio and video links, according to the reasons given by the court. I therefore ask the hon. Gentleman to withdraw the amendment.

[Nick Thomas-Symonds]

We think that this is a very important point of principle in the Bill, so I propose to push amendment 105, but none of the others, to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Nick Thomas-Symonds]

I beg to move amendment 109, in schedule 4, page 79, line 5, leave out paragraph (10) and insert—

‘(10) A court may not deal with bail, sentencing or any hearing where a remand decision is to be made, other than for the purposes of giving evidence, through a live audio link.”

This amendment would prevent live audio links being used in bail or sentencing proceedings, or at any hearing where a remand decision is to be made, except for the purposes of giving evidence.

The amendment is on the same theme of safeguards with regard to the use of live links. It would prevent live audio links from being used in bail or sentencing proceedings or at any hearing where a remand decision is to be made, except for the purposes of giving evidence.

We put this forward as part of the battery of concerns about the use of live links. Live links can be utilised by courts to speed up a process but we are firm believers in robust safeguards, as shown again in this amendment.

[Sir Oliver Heald]

We say that the safeguards are there. Schedule 5 provides that sentencing hearings may not take place with participation through a live audio link, except to enable persons other than the defendant to give evidence where there are no suitable video facilities available. We believe that has the same effect as that intended by the amendment.

In relation to live audio links more generally, they can be used at a hearing where conditions of bail are in dispute but not the principle of bail. The protections in schedule 5 deal with the points that have been raised and I ask the hon. Gentleman to withdraw the amendment.

[Nick Thomas-Symonds]

Having pressed amendments 104 and 105 to a vote, I do not propose to divide the Committee further on amendment 109. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 33 ordered to stand part of the Bill.

Schedule 5

Live links in other criminal hearings

[Sir Oliver Heald]

I beg to move amendment 52, in schedule 5, page 96, line 14, leave out “accused” and insert “offender”.

The amendment makes the terminology of this provision consistent with other provision in Part 1 of Schedule 5.

[The Chair]

With this it will be convenient to discuss Government amendments 53, 54 and 55.

--- Later in debate ---

[Sir Oliver Heald]

I proposed to deal with clause 33 and schedule 5 together as the clause simply gives effect to that schedule, but we have already dealt with the clause. Schedule 5 expands the courts’ powers under part 3A of the Crime and Disorder Act 1998 to make better use of live audio and video links in preliminary sentencing and enforcement hearings.

Amendment 52 agreed to.

Amendments made: 53, in schedule 5 page 96, line 16, leave out “accused” and insert “offender”.

The amendment makes the terminology of this provision consistent with other provision in Part 1 of Schedule 5.

Amendment 54, in schedule 5, page 97, line 32, leave out “deals with” and insert “is minded to deal with a person for”. —(Sir Oliver Heald.)

The amendment makes the terminology of this provision consistent with other provision in Part 1 of Schedule 5.

Schedule 5, as amended, agreed to.

Clause 34

Public participation in proceedings conducted by video or audio

Amendment proposed: 32, in clause 34, page 33, line 22, at end insert—

‘(1A) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of matters under section 34 and shall lay the report of the evaluation before each House of Parliament.”—(Nick Thomas-Symonds.)

This amendment ensures the Secretary of State will undertake a review within two years of the Bill’s provisions relating to public participation in proceedings conducted by video and audio

--- Later in debate ---

Question proposed, That the schedule be the Sixth schedule to the Bill.

[Sir Oliver Heald]

Schedule 6 facilitates the observation of fully virtual hearings by members of the public and the media. The measures also prohibit unauthorised recording of virtual hearings in order to protect the solemnity of the court as well as the rights of victims, defendants and other participants. We propose to enable members of the public to view virtual hearings using screens located in court buildings.

Question put and agreed to.

Schedule 6 accordingly agreed to.

Clause 35

Changes to institution of proceedings by written charge

Question proposed, That the clause stand part of the Bill.

[Sir Oliver Heald]

The clause replaces the single justice procedure notice with the new written procedure notice. The new notice will be used to initiate proceedings that may proceed as now or, if eligible and appropriate, by way of the new automatic online conviction and standard statutory penalty procedure introduced by clause 36. If it is offered, defendants will need to actively opt into using the procedure and will be provided with all the information they need to make an informed decision about whether to use it.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36

Automatic online conviction and standard statutory penalty

[Nick Thomas-Symonds]

I beg to move amendment 101, in clause 36, page 35, line 6, leave out subsection (2) and insert—

‘(2) The person is convicted of the offence by virtue of—

(a) accepting the automatic online conviction; and

(b) not revoking this acceptance during the period of 14 days following, but not including the day of, acceptance.”

This amendment would enable a person convicted of an offence and who accepts the automatic online conviction to revoke that decision within a period of 14 days.

[Nick Thomas-Symonds]

This pair of amendments relates to the theme of safeguards, which the Opposition are attempting to push throughout the Bill’s passage.

Amendment 101 would enable a person convicted of an offence who accepts the automatic online conviction to revoke that decision within a period of 14 days. Amendment 102 would insert a provision to ensure that individuals are made aware of their rights before they accept an online conviction.

In the evidence we have had, stakeholders have expressed concerns about the creation of a new automatic online conviction process where a defendant who pleads guilty and agrees to be dealt with under the process would be convicted automatically and sentenced automatically. The Bar Council referred to concerns about a lack of provisions for ensuring the defendant’s knowledge of their right to legal advice; the range of offences in the scope of this scheme; and the Secretary of State’s power to put new offences in scope.

Under clause 36, the online conviction would be applicable to summary-only, non-imprisonable offences specified in a positive statutory instrument by the Secretary of State that would need to be approved by both Houses. Fines, compensation, costs, surcharges and, where relevant, driving endorsements could be included. Those would be fixed by order of different classes of offence and, potentially, different circumstances for the same offence. They would be specified in a statutory instrument under the negative resolution procedure.

Clause 36 inserts six new sections into the Magistrates’ Courts Act 1980. It is clear that the definition of offences in the “Transforming our Justice System” consultation has been shortened to summary, non-imprisonable offences. The definition no longer excludes offences where there is an identifiable victim, which removes an important safeguard for victims and should be remedied.

Adequate safeguards are also lacking to ensure that defendants are aware of the consequences of entering an online plea. That is vital if an offence results in a criminal record, which can have serious and long-term implications, such as restrictions on employment, travel and the ability to obtain insurance. The Opposition say that offences under the scope of the clause should be restricted to non-recordable offences only.

Of course, individuals may mistakenly plead guilty through lack of adequate or any legal advice, which is a concern. We therefore say that defendants must be made explicitly aware of their right to seek legal advice and of the implications of pleading guilty. Not providing such information could have very serious consequences for the defendant’s right to a fair trial and the quality of justice that they receive. For example, many defendants will not know that an offence such as fare evasion, which we believe will be under the scope of the online process, is significantly more serious than a minor motoring offence because of the intention to evade payment.

We are also concerned that the Bill gives the Secretary of State the authority to specify that any summary offence not punishable by imprisonment can be eligible for online conviction. That leaves the door open for an alarming expansion of the scope of offences included without proper scrutiny. Any extension of the range of offences beyond those that attract fixed penalty notices should be made the subject of consultation, at which stage a full evaluation of the existing scheme should be provided. Further concerns have also been raised by stakeholders—including Liberty, for example—that the clause would transfer to the Government the power to sentence individuals convicted, as opposed to the independent judiciary. Looking at the clause in the round, I suggest that the amendments are sensible safeguards.

[Sir Oliver Heald]

I welcome the hon. Gentleman’s objective to protect defendants who may choose the new procedure as a way of dealing with their case. The amendments raise important issues, but they are issues that I am satisfied we are conscious of and will be addressing in the design of the process and the system.

Amendment 101 seeks to provide that the person to be convicted must accept the online conviction, and it then provides for a cooling-off period. The prospect of being able to accept a conviction and its associated penalty, and then undoing it two weeks later, undermines an element of certainty in the judicial process. However, I believe I can point to protections that the hon. Gentleman will find compelling. Amendment 102 proposes to make it a qualifying condition of an automatic online conviction that the accused has been made aware of their right to seek legal advice. In our view, that is not necessary; it may help if I set out the process a bit more fully.

A defendant charged with an offence that may proceed either by way of the single justice procedure—where a magistrate deals with a case on the basis of a guilty plea—or the automatic online conviction procedure will be sent a notice that formally commences proceedings and sets out the procedures available for dealing with their charge. That notice will advise defendants that they have a set period of time to respond to the charge; we expect something like 21 days, as it is with the single justice procedure notice. That notice will advise defendants, as requested by the hon. Gentleman, to use that time to obtain legal advice should they wish to—again, as the current single justice procedure notice does. The details of the timing and what is contained in the notice will be set out in criminal procedure rules.

Amendment 102 also seeks to make it a qualifying condition of an automatic online conviction that the consequences have been clearly explained to the defendant. For the sake of clarity, I note that it is not only a guilty plea that will lead to a conviction, but that plea combined with an agreement to be convicted and penalised in accordance with proposed new sections 16H and 16I to the Magistrates’ Courts Act 1980. Defendants will be presented with all the information that they will need to make an informed decision, and they will also be given details of the range of sentences available to the court. That will all be set out in clear and simple terms. They will be able to opt out of the procedure at any time, up until the point that they accept the conviction. I mentioned the other protections.

--- Later in debate ---

[Nick Thomas-Symonds]

Again, the amendments relate to the safeguards that we are pressing upon the Minister.

Amendment 100 would ensure that the automatic online conviction option includes only offences that are non-recordable offences for which there is no identifiable victim, which would provide an important safeguard for victims. Amendment 103 would require the Secretary of State to consult and seek independent advice prior to extending the range of offences for which the automatic online conviction option may be offered.

Those two safeguards are important. Amendment 100 is very important in terms of how we treat victims in our criminal justice system. Amendment 103 would deal with the concern about mission creep and the idea that the range of offences will keep being extended. The requirement to consult and seek independent advice would provide reassurance to many who are worried about that aspect of the Bill.

[Sir Oliver Heald]

Amendment 100 seeks to define differently the features of offences in scope of the new procedure. As hon. Members will know, we propose to test this procedure with just three offences. Those are non-recordable and will be in the initial phase of introduction. This procedure will be used to prosecute, in any event, only the most straightforward summary offences in our criminal justice system.

We have stipulated that the offences for which the automatic online conviction procedure can be offered will only be summary-only, non-imprisonable offences. That means automatic online conviction can never apply to indictable either way offences, and a sentence of imprisonment will never be imposed by this procedure. Those are important safeguards.

To address the hon. Gentleman’s particular request that the Bill exclude offences where there is no identifiable victim, I should say that we have taken a policy decision that cases involving identifiable victims will not be specified for prosecution by way of the automatic online conviction procedure, just as such offences are not prosecuted by way of the single justice procedure. We are referring here to individual victims, rather than corporate victims.

Likewise, on the matter of non-recordable offences, the majority of offences intended to be in scope are non-recordable, including the first three that I mentioned—failing to produce a ticket for travel on a train, failing to produce a ticket for travel on a tram and fishing with an unlicensed rod and line.

Amendment 103 would commit the Government to commission an independent evaluation of any changes to the offences in scope of the procedure and to lay the report before Parliament. We have been clear from the start that we propose to test the automatic online conviction procedure with a small number of offences in the initial phase, so that we can review how well it works. We have already committed to reviewing the procedure 24 months following its implementation. If that initial phase is successful, we will consider widening the scope to other offences. Any decision to extend to other offences would, of course, also be based on the assessment of what impact any changes to the offences and scope would have.

Finally, the Committee will be aware that the clause provides that future offences need to be specified in secondary legislation made by the Secretary of State, which has to be agreed by Parliament through the affirmative procedure. It is the Government’s view that the amendments are not necessary, and on that basis I ask the hon. Gentleman to withdraw them.

[Nick Thomas-Symonds]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 33, in clause 36, page 38, line 35, at end insert—

“(4) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the implementation of the automatic online conviction option made under subsection (1) and shall lay the report of the evaluation before each House of Parliament.”

This amendment ensures the Secretary of State will review automatic online conviction within two years of its implementation.

I will be extremely brief. We will push the amendment to a vote. It concerns an independent review of the automatic online conviction process within two years of the Act coming into effect, on exactly the same principle as we have suggested for other independent reviews: to facilitate good governance and the opportunity to look at how well these new procedures are working.

[Sir Oliver Heald]

I have just given a commitment to review this 24 months following its implementation. On that basis, I invite the hon. Gentleman to withdraw the amendment.

[Nick Thomas-Symonds]

We are in favour of an independent evaluation within two years of the Act coming into effect. I will put the amendment to a vote.

Question put, That the amendment be made.