Courts and Tribunals Bill (Fourth sitting) Debate
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Rebecca Paul
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Courts and Tribunals Bill (Fourth sitting)
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Sarah Sackman
I am going to make a little progress.
The point is that our magistrates court, trials before district judges and the Crown court bench division will continue to uphold those principles of natural justice. Both the prosecution and defence will continue to be able to make representations on whether a case should be heard in the Crown court, and the court must take into account those representations in reaching its decision. As with all cases heard in the magistrates court, defendants retain the right of appeal to the High Court and the Crown court against conviction or sentence. Even with a permission stage for certain appeals, those safeguards remain in place.
On amendment 38, tabled by the hon. Member for Bexhill and Battle, principles of natural justice are preserved in our reforms. We heard evidence from victims of crime and former judges alike about the detrimental effect that delays are having not just on people’s lives but on the quality of justice that can be administered. It is difficult to argue that the current system is consistently meeting our obligation to ensure a fair trial where, as I have said, justice delayed is justice denied. That reflects a structural failing and one that points to a system in urgent need of investment and modernisation. That is why clause 1 as drafted is focused on delivering swifter justice for all participants in the system.
The right to a fair trial is, as I have said, protected under article 6 of the European convention on human rights and reflected in long established common-law principles. Removing the defendant’s choice of venue does not change the procedural fairness of proceedings, nor the defendant’s ability to participate effectively in their case. Defendants will continue to receive fair and impartial justice, regardless of where their case is heard.
Rebecca Paul
I thank the Minister for her generosity in taking interventions. I think it may well be a timely point at which to deal with a quick question I raised earlier, about legal aid. Clearly, a defendant is potentially less likely to secure legal aid in the magistrates court than they are in the Crown court. I am sure the Minister will not be comfortable with that situation, so will she be looking to address that inequality that comes from the changes?
Sarah Sackman
I am glad to hear the Conservatives’ concern about legal aid and, yes, of course I am, as the Minister responsible for legal aid. We do under the current regime have a means test for criminal legal aid. The vast majority of those who apply for legal aid in the criminal context can access it. One of the things we want to do as a Government is wait to see precisely what forms the eventual product here take before analysing how we ensure that legal aid provision is as broad as it needs to be. Access to justice is fundamental not just to the individual concerned but to the efficient administration of justice; that is so important. We know from the civil jurisdiction, where so much legal aid was stripped out, that civil or criminal courts being confronted with vast numbers of litigants in person who are struggling to navigate the system is not just a detriment to them, but to the whole administration of justice. So of course we are looking at that, but it is important to make sure that the plans match precisely what form the Bill takes when it has come through Parliament.
As I said, decisions on mode of trial will be taken by judges and magistrates, who are independent office holders who take a formal judicial oath to act impartially and fairly. That oath is binding and accords with natural justice. Mode of trial decisions continue to be guided by the independent Sentencing Council’s allocation guidelines, which provide a clear and structured framework for allocation decisions. Further to that, magistrates courts are already required to give brief reasons for their allocation decisions, reflecting a long established common-law duty. That requirement will extend to the Crown court in relation to the mode of trial allocation decisions, so someone will know why they were allocated to a venue. That understanding is important for litigants and the transparency they require.
Amendment 38 does not add further protections beyond the safeguards that already exist. A defendant’s trial in the magistrates court does not breach those principles of natural justice and the existing legal protections already ensure procedural fairness in summary proceedings. The Committee will remember well the powerful testaments we heard from many, but in particular the victims who gave their evidence at a public session and their view that the system is weighted heavily towards the defendant. Not only do our reforms restore some of that balance, placing decisions over allocations in the hands of the court rather than those of defendants, but they make a material difference in addressing the backlogs. I am afraid that amendment 38, by contrast, is a defence of a failing status quo. For these reasons, I urge the hon. Member for Bexhill and Battle to withdraw the amendment.
Dr Mullan
I did raise an eyebrow at the level of evidence that the individual from the CPS chose to give in relation to commenting on Government policy in that way. I have spoken to previous Justice Ministers, and that was unprecedented. Again, if we want to give validity to its views, can Government Members point to a single time that the CPS has got up and directly opposed the policy of the Government of the day? It does not do that. It is all very well and good to champion it when it agrees with this particular point, but it is nonsense if it has never disagreed with Government policy because it is a non-departmental Government body. Again, the hon. Member for Chatham and Aylesford is perfectly entitled to raise it, but to try to give it the weight and character of the other organisations that are lobbying, campaigning and representing does not hold up to much scrutiny—as we have seen.
Rebecca Paul
To build on the excellent points made by my hon. Friend and the hon. Member for Chichester, does this not fundamentally come down to the fact that the CPS is made up of civil servants? They are not meant to tell the Minister that they are wrong or right. That is not their job. I feel those on the Government Benches are misunderstanding the role of civil servants.
Dr Mullan
Yes, and I will be writing to the CPS about that, because commenting in the way that it has was extremely unusual. I would hope that it has a very clear explanation as to how it has been able to formulate that position, because, of course, the CPS is just articulating a particular viewpoint. As has happened, when a Government-funded agency does that, it gives it a certain weight that is not necessarily appropriate. That is why ordinarily non-departmental Government bodies are not expected to do that sort of thing. It is something we should think about more carefully.
We also talked this morning about public confidence among members of minority communities, as was raised by the hon. Member for Birmingham Erdington. The group JUSTICE has put forward its views and concerns about this. It notes that the equality statement for the Bill also notes that black, older and female defendants historically elect for a Crown court trial at higher rates. In 2022, 26% of black defendants elected for a Crown court trial, compared with 15% of white defendants—a very significant gap. In 2017, the right hon. Member for Tottenham (Mr Lammy) also concluded that many individuals from ethnic minorities opted for trial in the Crown court whenever possible, as they had more confidence in the fairness of jury trials compared with magistrates.
As the Bill is written by the person advocating for those changes, we should consider what the right hon. Member said very carefully. He said:
“Juries are a success story of our justice system. Rigorous analysis shows that, on average, juries— including all white juries—do not deliver different results for BAME and White defendants. The lesson is that juries are representative of local populations—and must deliberate as a group, leaving no hiding place for bias or discrimination.”
Would Government Members put it to the right hon. Member for Tottenham that he was in any way denigrating magistrates in making that point, or that he was saying magistrate trials were not fair? I do not recall any Labour MP making that point at the time that his report was published. The review found that BAME defendants often had lower confidence in the fairness of magistrates courts and, as I have said, therefore opted for a trial in the Crown courts. Because of that lack of trust, BAME defendants were also thought to be more likely to plead not guilty in magistrates court and push for a Crown court trial, which resulted in them missing out on the one-third sentencing reduction offered by early guilty pleas. These things have real-world consequences for the individuals concerned.
While the report found that BAME defendants were not disadvantaged compared with white counterparts at the jury trial stage, they faced harsher outcomes elsewhere in the system. I want to quote again from the Lammy review:
“The way that juries make decisions is key to this. Juries comprise 12 people, representative of the local population. When a jury retires to make a decision, its members must consider the evidence, discuss the case and seek to persuade one another if necessary. This debate and deliberation acts as a filter for prejudice—to persuade other jurors, people must justify their position. In the final decision, power is also never concentrated in the hands of one individual.”
What did the right hon. Member have to say about magistrates courts? He said:
“This positive story about the jury system is not matched by such a clear-cut story for magistrates’ verdicts. The relative rate analysis…commissioned for this review found that decisions were broadly proportionate for BAME boys and girls. However, there were some disparities for adult verdicts that require further analysis and investigation. In particular, there were some worrying disparities for BAME women.”
As a table in the report showed,
“of those women tried at Magistrates’ Court, Black women, Asian women, Mixed ethnic women and Chinese/Other women were all more likely to be convicted than White women.”
Again, would Government Members say that the right hon. Member was therefore advocating for the abolition of magistrates hearings? Of course not, and neither are we. We are simply making clear the trade-offs for such an unprecedented shift in their use—for such a significant curtailment of the use of the system of juries that is so well regarded and trusted by our constituents—and are arguing that the case has not been made.
JUSTICE also raised concerns about unrepresented defendants. My hon. Friend the Member for Reigate made that point in relation to legal aid. The equality statement for the Bill acknowledges that if more cases are dealt with in the magistrates court, a greater proportion of defendants may be ineligible for legal aid compared than if their case were heard in the Crown court. That is because the income eligibility threshold in the magistrates court of £22,325 is significantly lower than that in the Crown court, where it is £37,500.
An increase in unrepresented defendants risks undermining fairness. For example, defendants may receive harsher sentences if they do not know how to effectively offer mitigation. This is especially concerning where expanded magistrates’ sentencing powers will leave defendants facing trials for offences carrying a sentence of up to two years unrepresented.
Additionally, the Institute for Government has highlighted that unrepresented defendants in magistrates courts are also likely to prolong hearings and therefore erode any of the anticipated efficiency gains. It estimates that, for every additional hour in the average length of a trial, estimated savings will fall by more than one percentage point.
I also want to address the issue of youth courts, which was debated this morning. Government Members posited the fact that these courts hear more serious cases such as rape as some form of proof that curtailing jury trials in a similar adult case could be acceptable. That ignores the fact that each court and each setting has its own balances and goals and its own weighing exercise, with different considerations, where different conclusions will be reached.
Youth court trials generally do not have a jury because they are designed to be less formal and more focused on rehabilitation than punishment, with cases heard by specially trained youth magistrates rather than ordinary magistrates alongside district judges. These courts prioritise specialist knowledge and child-friendly proceedings over public proceedings, and aim to ensure that a child understands what is happening, with less intimidating atmospheres than adult Crown courts. Youth courts are closed to the public, which is not possible with a jury trial.
This is the trade-off we make, but these are trade-offs that, for decades and decades, we have not considered suitable in adult courts. We have considered the extra, additional vulnerabilities and the need to focus on rehabilitation in youth courts, so we carry out a different balancing exercise and make a different trade-off. That does not mean that we can read that across to an adult court without considering the benefits, the conclusions and the additional factors that we seek to mitigate—that we can just say, “Well you can just do the same for adults as you do in a youth court.” Different scenarios have different tests.
We also know that the choice of trial by jury is not the only reason some defendants elect for trial by jury. In fact, there are important procedural differences in the two courts. An application to dismiss is a legal request made by the defence to have some or all of the charges thrown out before the trial begins. This application is available only in Crown court cases and applies to indictable offences or cases that have been sent from the magistrates court to the Crown court.
An application to dismiss in the Crown court is a pre-trial request to throw out charges, according to rule 3.2 of the Criminal Procedure Rules 2025, and earlier versions. It must be made in writing after the prosecution serves evidence but before arraignment, arguing that a reasonable jury could not convict.
It is true that formal applications to dismiss are relatively rare compared with other ways in which a case might end, mainly because the legal bar for success is very high. While specific numbers for rule 3.2 applications are not always separated in basic reports, wider court data gives a clear picture of how often cases are dropped or stopped before a full trial. In recent quarters, up to late 2025, the figures available to me show that approximately 17% to 18% of defendants in for-trial cases had their cases dropped by the prosecution or stopped by the court before a verdict.
Why are formal dismissals that are available in the Crown court less common? The Crown Prosecution Service knows it is legally required to keep cases under constant review. If the evidence is truly weak enough to be dismissed by a judge, the CPS will usually discontinue the case or offer no evidence to avoid a wasted hearing. We know that is a very common occurrence. Are we confident that we know how much of that happens because of the availability of that legal test? The CPS knows that if it does not do that and if it does proceed in an inappropriate manner, it will face the legal test that it does not face in the magistrates court. If the Government have access to evidence that can reassure us, they should present it, but I could not find anything that leads me to be confident that cases dropped in the Crown court might proceed in the magistrates court, and perhaps they should not.
The provision of disclosure in the Crown court is much more robust. We have all seen cases where trials collapse because of exchanges related to disclosure. Crown court disclosure is strictly governed by the Criminal Procedure and Investigations Act 1996, which requires formal staged disclosure. In magistrates courts, disclosure is often more streamlined, focusing on the initial details of the prosecution case. In the Crown court, a defence statement is mandatory. In the magistrates court, a defence statement is generally voluntary, although recommended. Once the prosecution discloses unused material, the defence has 28 days in the Crown court to serve a defence statement. In the magistrates court, the time limit is 14 days.
Crown court prosecutors must provide schedules of all unused material. Magistrates courts typically use, as I have said, streamlined disclosure certificates, which are not as extensive. We know there are problems with disclosure at times. The independent review of disclosure and fraud offences was officially announced by the UK Government on 23 October. Led by Jonathan Fisher KC, the review was commissioned as part of the fraud strategy launched in May 2023 to address the digital age challenges in criminal cases. It is the first of its kind since the 1986 Roskill report. Jonathan is a leading King’s counsel in financial crime, proceeds of crime, fraud and tax cases. He has been a visiting professor in practice at the London School of Economics and he holds a PhD, which was awarded by the LSE following his research into money laundering cases and the relationship between the obligation to report suspicious activity and corporate rights. Clearly, this is someone who speaks with a great deal of authority and experience in relation to the operation of criminal law.
Part one of the review, on disclosure, was published on 21 March 2025. It is helpful for us to reflect on it, given some of the exchanges we have had during debates. As I have said, Government Members sought to dismiss any suggestion that the magistrates courts were less fair or a less appropriate place to hold a hearing and suggested that everything is rosy in the magistrates court, so there is no possible reason why someone might not want to go to a magistrates court. They wanted to frame this as a purely binary choice between fair and unfair.
As I pointed out to the Minister, every time we point out some of the unfairnesses, the Minister says that everything is fair and it is all fine. But then when we ask the Minister to articulate why, if everything in the magistrates courts is just fine and dandy, we therefore keep jury trials for more serious cases, there is literally no rational or logical conclusion. The Minister says this is not a debating chamber, but the Minister is presenting a Bill with underlying political and legal principles, and if she cannot come up with a consistent set of those principles as a basis on which to articulate the arguments she is making, that is not a great advert for the Bill.
I can happily say that I think Scotland’s legal system is less fair, and I think the magistrates courts are less fair. I am perfectly happy to say that, but that does not mean that I want to get rid of them or curtail them. It is just part of the reality, and I am consistent in that regard. So let us talk about what Jonathan Fisher can do to assist us.
Rebecca Paul
I thank the Minister for that explanation. I hope she will bear with me as I try to take it on board.
Clauses 1 and 2 amend the Magistrates’ Courts Act 1980 so that a defendant charged with an either-way offence is no longer able to elect trial by jury. As was clearly established earlier today, that right to elect is entirely abolished by clause 1. Instead, it will be for the magistrates court alone to decide where the case should be tried; it can either remain in the magistrates court or go up to the Crown court. Clause 2 deals specifically with situations where there is a written indication of a guilty plea.
Section 17ZB of the Magistrates’ Courts Act, as inserted by section 6 of the Judicial Review and Courts Act 2022, sets out that the court can, on the material before it, without any hearing or representations, be satisfied that it is highly likely that, were the accused to plead guilty at summary trial of the offence in question and be convicted, the court would commit the accused to the Crown court for sentencing. Section 17ZB(5) then provides the accused with the opportunity to object to being sent to the Crown court for trial for the offence. Clause 2 amends that so that the accused and the prosecutor do not have the option to object and can instead only make representations as to whether the sentencing powers of the court would be adequate.
I note that “Crown Court” in the original section 17ZB is replaced with “court”. I assume that that refers to either the magistrates court or the Crown court, but I would be grateful for the Minister’s confirmation and explanation of that quite technical point, and of how it works with the Crown court bench division in the mix. The Bill’s explanatory notes suggest that it just means the magistrates court, but I went through the law— I should say that I am not a lawyer, but I dug it all out and read it—and, like a lot of Committee members, I am thoroughly confused. Normally, if something is logical and makes sense, I can follow it, so I am worried that it does not quite tie together. I am worried, even though I cannot quite articulate why, that the fact that the section will now just say “court” introduces some ambiguity. How is that defined? Quite often, these little bits of detail can be the speck of sand in the eye that can cause more problems than we realise.
This is a very technical issue, and I appreciate that it is difficult to go into it here and that the Minister is very good on the technical side of things—we have worked together on other things with very technical points, so I know that she is very thorough—but I think it is worth going through it again and making sure that the whole thing hangs together, so that we do not end up in a situation where the wrong place is doing sentencing or the wrong estimate of a sentence is made, and there is no way to unwind it. I am just a bit worried that there is potential for some problems to come out of this.
I appreciate the Minister’s helpful clarification that section 17ZB has not yet been commenced. However, if it had been, or if it were to be in future, it would, in a similar way to clause 1, remove powers and rights from defendants and give them less choice in how justice is dispensed in their case—essentially, a roll-back of rights. As I mentioned, I think we need to look at what will happen if the sentence estimate is wrong and how that will work its way through.
I thank the Minister for explaining that the provision is procedural, but it still strips people of the right to object and replaces it with the much weaker right merely to make representations. The explanatory notes are really clear on that point, even if they are not clear on a lot of others. They say that the changes made in clause 2
“remove the ability of the defendant or the prosecutor to object to the case being sent to the Crown Court for sentence”,
and instead create
“a process for each to make representations about whether the magistrates’ court’s sentencing powers would be adequate.”
That might have no impact if the section is never commenced, but if it ever is commenced, and we do not make sure that we have got clause 2 right, it may cause a problem and prioritise convenience over procedural protection.
When someone’s liberty, livelihood and reputation are at stake, it is a serious thing indeed to say that they may no longer object and may only make representations. Once again, the defendant is being moved further from the centre of the process, and the state closer to it. That is not right. Earlier in today’s proceedings, the Minister was reminded from the Opposition Benches that the legal system is balanced in favour of the defendant. That is not the spirit in which this change is being made. Indeed, that is the common thread running through clauses 1 and 2: at every stage, the defendant’s agency is reduced and the system’s convenience is elevated. The Government call that reform and improvement, but it is not; it is a distortion of our centuries-old legal protections.
There is a broader point here about confidence in the justice system. If the Government’s answer, again and again, is that defendants should simply trust the state’s estimate of seriousness, trust the allocation decision, trust the sentencing forum and trust that everything will work out in the end, that is not a strengthening of justice. It is a narrowing of the safeguards that make justice legitimate in the first place and will do nothing to address the backlog, which I recall was supposed to be the rationale for making these changes in the first place. Clauses 1 and 2 in combination are not what is required to address the Crown court backlog.
It appears that the backlog may be starting to come down already, as a consequence of uncapped sitting days and other changes that have been implemented, so why are the Government not taking a more cautious approach and exhausting all the good ideas that we have heard from expert witnesses before taking a sledgehammer to jury trials? Obviously, the first problem to address is the fact that up to 24% of Crown courts are not sitting on any given day, and getting the many defendants who arrive late to court there on time would be transformational. Why are we not solving those much more straightforward issues before pressing ahead with exceptional structural reform? We need to get the basics right, address inefficiencies and, most importantly, listen to those who know how to do it, such as the Bar Council and circuit leaders, and learn from the courts that are already making progress, such as Liverpool.
The Government are absolutely right to take the backlog issue seriously, but it is wrong to think that limiting jury trials will improve the situation. It could make the whole situation worse by creating years of transition and uncertainty and by moving one backlog from the Crown courts over to the magistrates. Furthermore, the cases moving over will be more complex, more technical and more sensitive. The Government are about to create a massive backlog in the magistrates court, which will then start to impact on low-level cases such as speeding offences.
I say that the Government should be more cautious because they have already accepted that there are other levers available. Ministers have announced that there will be no cap on Crown court sitting days next year, and that both the Crown court and magistrates courts will be funded at their highest ever operational level. That is much welcomed, but if the Government say that investment and capacity matter, why on earth would they not wait to see the full effect of those changes before pushing ahead with exceptional constitutional reform?
The Opposition position on that has been perfectly clear. On Second Reading, the Opposition’s reasoned amendment did not deny that the backlog is serious, but argued that the right answer is to improve case management, encourage earlier pleas, increase sitting days, increase the hours per day that courts are able to sit through better use of technology and improve the efficiency of prisoner transport. Those are practical, common-sense reforms; they go with the grain of the system, rather than taking a sledgehammer to jury trials and then hoping for the best.
The Government’s own impact assessment rather proves the point that this issue is as much about shifting pressure as solving it. It estimates that removing the defendant’s right to elect for jury trial would reduce crown Court demand by around 16,000 sitting days, but at the same time increase magistrates court demand by around 8,500 sitting days. The same document expressly recognises that reallocating cases to the magistrates courts is expected to increase the open caseload there and is likely to extend waiting times for hearing and sentencing in that jurisdiction. Even on the Government’s own figures, it is not some clean efficiency saving. It is a transfer of burden into a part of the system that is already under strain.
That is why clause 2 is more important than it first appears. Clause 1 removes the right to elect. Clause 2 then narrows the ability to resist where a written guilty plea is involved. Piece by piece, the Bill is building a system in which more serious, either-way cases are kept down, defendants have less say and the magistrates courts are expected to absorb ever more complexity. Ministers may present each provision as a small adjustment in isolation, but taken together, they amount to a very significant constitutional and practical change.
That change also carries transition risk. The Government are assuming that work currently taking place in the Crown court can be absorbed more quickly elsewhere. I know I am not telling the Minister anything that she does not already know, but the magistrates courts are not just a spare room in the system waiting to be filled. They will have to take more serious, more technical and more sensitive cases while continuing to deal with the huge volume of everyday criminal business that only they can process.
If the Government get this wrong, they will not have solved the backlog. They will simply have displaced it and degraded the quality of justice in the process. My plea is a simple one: “Proceed with caution. Let the effect of unlimited sitting days bed in. Fix the operational failings that everybody in the system can already see. Get defendants to court on time. Keep courtrooms sitting. Use technology better. Learn from the parts of the estate that are already improving, but do not dress up the removal of long-standing protections as if it were the only grown-up response to backlog. It is not. It is simply the most drastic one.”
That is why I cannot support clause 2. On its own, it may look technical, but in context it is part of a broader attempt to reduce rights, safeguards and the defendant’s role in how justice is administered. That is the wrong direction of travel.
Yasmin Qureshi (Bolton South and Walkden) (Lab)
I rise to ask about two things. First, for clarification on what clause 2 is actually trying to do, because, like the shadow Minister, the hon. Member for Bexhill and Battle, and like the hon. Member for Reigate, I was very confused by it. I read it many times and read the explanatory note as well. In desperation, I even went on to ChatGPT to see whether it could explain to me what clause 2 is trying to do.
I hope the Minister will bear with me: as I understand it, the procedures in the magistrates court are as follows: If it is a summary case, then the case stays in the magistrates court—the sentencing, trials and so on—and nobody has any right to go anywhere else. If it is an indictable offence, it has to be heard in the Crown court. There is no discretion and it is nothing to do with the magistrates court. If a defendant is charged with an either-way offence—this is the whole point of a jury trial—it has always been the case that he or she can turn up in court and say, “I plead guilty.”
The Chair
Given that Dr Mullan has spoken about clause 3 more generally in this debate, I have two options as Chair. Would the Committee like to talk about clause 3 more generally with this group of amendments? The Committee will also have an opportunity to debate clause 3 on Thursday, when the Minister could respond more fully. That is a matter for the Committee to decide.