Courts and Tribunals Bill (Seventh sitting)

Rebecca Paul Excerpts

Tuesday 21st April 2026 Public Bill Committees

[Rebecca Paul (Reigate) (Con)]

It is a pleasure to serve under your chairmanship, Ms Jardine. As the Committee has likely anticipated, I will argue that clause 3 should not stand part of the Bill.

Clause 3 is the heart of the Government’s constitutional gamble. It creates a wholly new general rule for trial on indictment without a jury in a substantial category of criminal cases. Under the clause, a defendant charged with an either-way offence who has pleaded not guilty will lose the right to be tried by a jury unless the court considers that, on conviction, they would be likely to receive a sentence of more than three years’ imprisonment. It also allows reallocation later if the case changes, says that there is no right of appeal against allocation or reallocation, permits some decisions to be made without a hearing, and still allows a judge sitting alone to impose a sentence of more than three years.

The Government continue to maintain that this change is necessary to reduce the Crown court backlog and reserve jury trials for the most serious cases. I note, though, that the very good House of Commons Library briefing points out that these provisions are based only in part on Leveson, and contain material differences from that which he recommended. Sir Brian proposed restricting, not abolishing, the right to elect, he did not propose the same increase in magistrates’ sentencing powers, and the Government’s model is more aggressive than the one on which much of the original discussion was based.

JUSTICE makes the same point directly in its written evidence. It says that the Bill goes further than the review by removing the right to elect entirely, replacing the full rehearing appeal from the magistrates court with a permission stage, allowing the extension of magistrates’ custodial powers to 18 or 24 months, and introducing judge-only trials for either-way cases with likely sentences of three years or less.

I say that at the outset because I am keen to avoid the suggestion that the Bill amounts to the Government reluctantly implementing a difficult but expert-led recommendation. That is simply not the case in clause 3. In fact, we are dealing with a discretionary political choice to legislate in a way that is broader, harder and less cautious than many of the evidence-based alternatives that are already on the table. As the Law Society put it:

“Clauses 1 to 7 represent radical changes to criminal procedure without convincing evidence that they will improve efficiency.”

The Bar Council says:

“Radical changes to the availability of jury trials…are unnecessary and will consume resources without bearing down on the backlog.”

That is the proper context in which clause 3 should be considered.

As much for my own clarity as for the benefit of the Committee, I would like to dedicate a limited amount of time to clarifying what the clause actually does. It inserts into the Senior Courts Act 1981 proposed new sections 74A to 74D, which create a mechanism under which, in a very wide category of cases, the court must decide at the outset whether a defendant will be tried by a jury or by a single judge alone. The central test is the threshold sentence: whether the defendant, if convicted, would be likely to receive more than three years’ imprisonment or detention. If the likely sentence is above that threshold, the defendant gets a jury; if not, the default is a judge-alone trial in what the Government and stakeholders have described as the Crown court bench division, although that phrase is not used in the Bill itself.

This is about not a tiny number of trivial cases but a structural redesign of the Crown court’s work. According to the Government’s own modelling, about 14,000 cases would continue arriving at the Crown court in 2028-29 and would require a trial, of which approximately 4,000 are expected to be heard by a judge alone, rather than a jury. The package is said to reduce Crown court sitting day demand by 27,000 days a year while increasing magistrates court sitting day demand by 8,500. Even if one accepts every assumption behind those figures—many serious people do not—they demonstrate that this is a major transfer of work and power. The offences within scope are not, as has sometimes been implied, confined to the sort of minor petty theft case used in media briefings.

The written evidence from JUSTICE makes that point bluntly. Clause 3 would cover a huge number of either-way offences, including

“sexual offences, sexual abuse of children, stalking, fraud offences, violence against the person offences and theft offences.”

JUSTICE offers a chilling practical illustration with this observation:

“Most of the postmasters wrongly convicted in the Horizon scandal received a sentence under three years.”

That point ought to give the Committee serious pause. We are being asked to remove jury trial for the types of case in which miscarriages of justice have historically occurred.

The centrepiece of clause 3 is the idea that a court can safely determine, at an early stage, whether a defendant is likely to receive more than three years if convicted, and that that prediction is a just and adequate basis for deciding whether the defendant gets a jury at all. I do not accept that. More importantly, the Bill itself does not truly accept it either. The Commons Library briefing I referenced earlier notes this contradiction plainly:

“While cases that are less likely to result in a sentence of more than three years would be allocated for trial by a judge alone, the judge could still pass a custodial sentence of more than three years.”

In other words, the very legislation that uses the three-year threshold as the decisive basis for removing jury trials simultaneously recognises that the threshold may not map on to the final seriousness of the case at all. The initial allocation may say that the case is not serious enough for a jury, yet the final outcome may be serious enough for more than three years in prison. If that is not an admission that the threshold is an unstable and unsafe proxy, I do not know what is.

Does that not cut to the most basic but most profound concern about this Bill—that it just is not fair? If the threshold cannot reliably distinguish the cases that merit a jury from those that do not, the clause is not preserving jury trial for the most serious cases. It is rationing jury trial on the basis of an impressionistic and sometimes speculative sentence prediction. The written evidence from the London School of Economics says exactly that, stating that the three-year threshold

“is a poor metric for determining the right trial procedure”

and that if jury trial is a

“cornerstone protection against the state”,

alternative measures ought to be exhausted first.

We cannot properly predict a sentence at the plea and trial preparation hearing, and in the context of clause 3, that is a problem. If the allocation decision is to be made at the hearing, the notion that a judge can decide the likely sentence then and there is, in many cases, unrealistic and, at the extreme, absurd. In many cases, the evidence is incomplete at the PTPH. In sexual offences, full achieving better evidence transcripts are often unavailable, and practitioners rely on summaries. CCTV may not yet have been watched in full, medical evidence may be outstanding and the victim impact, which can materially affect a sentence, may be unknown. Sometimes the complainant is still in hospital. It may well be that the psychiatric or psychological impact becomes clear only weeks or months later. Yet the clause asks the court to decide mode of trial at exactly this sensitive and uncertain stage. The Government are therefore building a supposedly rational system on a procedural moment that practitioners know, and I am sure the Minister knows, is often evidentially immature.

The Committee will remember reading the Victims’ Commissioner’s written evidence, which accepts the need for reform but recognises the concern that sentencing ranges vary and that the evidential picture may be incomplete when the crucial decision is taken. JUSTICE likewise says that the proposal risks unfairness because the allocation and reallocation system lengthens the PTPH and depends on speculative assumptions about how much court time will actually be saved. The Bar Council adds that the Bill gives no schedule or annexe identifying categories of offence; instead, a Crown court judge will simply assess in individual cases whether the likely sentence exceeds three years, meaning that the determination is case specific, contestable and uncertain from the outset.

I can well imagine the response to all that being that if circumstances change, the case can be reallocated, but to my mind that is not a defence of the clause; it is an admission that the initial prediction is often too flimsy to bear the weight placed on it. As any King’s counsel will readily point out, real criminal cases are not static things. Charges are amended, defendants are added and new evidence emerges. Perhaps a section 18 becomes a section 20. When something like that happens, is it seriously proposed that the case repeatedly cycles through reallocation every time? Clause 3 says yes, at least in substance.

Proposed new section 74B provides for a formal reallocation mechanism where there is a relevant change of circumstances, including changes in the indictment or new evidence affecting likely sentence. The problem is that that does not solve the uncertainty; it adds another layer of litigation, or at least potential litigation. It invites both sides to argue over whether the threshold position has changed, whether reallocation is required, whether the change is sufficiently material, what prejudice would be caused by moving the case, whether delay, wasted cost or witness inconvenience should prevail, and what happens if the case is already part way down the tracks. Frankly, that sounds like a dream come true for a solicitor’s billing manager, but the rest of us can surely see the problem.

JUSTICE and the Bar Council have both picked up on that point. JUSTICE notes that the

“allocation of cases is going to lengthen the plea and trial preparation hearing as will the process of reallocation”,

and it warns that the absence of any right of appeal against allocation decisions is likely to increase judicial reviews and Court of Appeal litigation. In the Bar Council’s written evidence, it states:

“The proposed Crown Court Bench Division introduces an extra layer of hearings and complication…It could result in further litigation at an interlocutory stage.”

It argues that one of the Bill’s fundamental flaws is precisely the fact that it presents a false binary: either do nothing, or do this. The Bill does not properly assess a range of other policy options.

Having made those points, I would like to pose a question to the Minister, which I think may shed some light on where we are with the clause. Has the additional work needed at both Crown court and magistrates court level for allocation, reallocation, submissions and case management been factored into the claimed 27,000 sitting day decrease and 8,500 sitting day increase? If the answer is yes, can we get some insight into precisely where and how? If the answer is no, the core productivity claim behind clause 3 is overstated from the start.

If clause 3 were merely a bad threshold coupled with an elaborate reallocation maze, that would be bad enough. However, the Government have compounded the problem by providing no right of appeal against allocation or reallocation decisions, and by permitting some decisions to be made without a hearing. Under proposed new section 74D, there would be no right of appeal against an allocation or reallocation determination made under proposed new sections 74A or 74B, and a reallocation determination could be made without a hearing. That is extraordinary. A defendant may lose trial by jury on the basis of an early-stage sentence prediction, under a mechanism that the Government know may need to be revisited as the case develops, yet there is no appeal.

JUSTICE warns that the likely consequence of the proposal is judicial review pressure on the High Court, and appeal pressure on the Court of Appeal once written reasons are handed down, meaning that the supposed efficiency savings may be displaced into other courts. The Bar Council says much the same; it proposes, as a minimum safeguard, that there should be a hearing before reallocation, unless the parties waive it, and that there should be an appeal right. The absence of appeal is especially troubling because summary trial has historically been justified by two safeguards: lower-level offences and the ability to appeal. The Bill proposes to remove both. It moves up the seriousness of cases, while stripping away the classic safeguard of easy correction—that is not a tolerable bargain.

Although the Committee has already debated the retrospectivity point at some length, clause 3 itself remains infected by it. The new allocation procedure will apply to cases already in the Crown court open caseload, including cases where the defendant has already been arraigned at a PTPH before the new regime comes into force, so long as the prosecution has not yet opened its case. For those cases, the court must make a determination under proposed new section 74A as soon as is reasonably practicable, and may do so without a hearing. That means that a defendant who chose a Crown court trial, expecting a jury, may wait months, prepare for that jury and then lose it retrospectively.

The Minister herself has defended that approach by saying that the Government are on sound legal ground, and that there is no procedural or legal impediment, relying on advice from—as I recall—an unnamed KC. However, political defensibility and legal ingenuity are not the same as fairness. To put this in very plain terms, people did not opt to go to Crown court for the car parking or the architecture; they chose it for one thing only—a jury. To move the goalposts after the choice is made is profoundly unfair, regardless of other considerations.

The Committee will recall reading through the written evidence from some eminent groups and individuals that, in as many words, call this retrospective application contrary to the rule of law. The Bar Council says:

“The retrospective provisions may also be subject to numerous legal challenges.”

Dr Samantha Fairclough argues that the plan is unfair, and she says:

“It will also create significant additional work…and likely result in appeals.”

That all points in the same direction. Retrospectivity here is not just constitutionally unattractive; it will ultimately prove to be practically self-defeating.

A very large part of the Government’s case for clause 3 rests on the impact assessment, which says that clauses 1 to 7 will reduce Crown court sitting days by 27,000 a year, while increasing magistrates court sitting days by 8,500. It also says that the Crown court open caseload will fall by around 14,000 cases over 2028-2029, and that

“overall the reforms will reduce demand on Crown Court time by almost 20%”.

However, several stakeholders have criticised the assumptions and modelling, especially those on how much time judge-only trials would save. The Government’s core assumption is that hearing times will fall by 20% for judge-only trials, but Sir Brian himself accepted that this was associated with high levels of uncertainty, and the Justice Committee challenged how anecdotal the basis for that figure appeared to be.

--- Later in debate ---

[The Chair]

Order. The hon. Member has not done anything disorderly or out of order in any way, but I remind Members that the House has agreed that this Committee must conclude its work by 5 pm on Tuesday 28 April. I have no power to impose a time limit on speeches, and it is for the Committee to decide how it uses its time, but I gently encourage Members to consider the length of speeches in the light of the desire of all Members to speak in the debate and on the later parts of the Bill.

[Rebecca Paul]

I thank you for making that point, Ms Jardine. I just emphasise how serious the changes in this legislation are. I know the Opposition are willing to put in the hours that are needed to go through the full detail, so that everyone can say what they need to. I imagine the Government are equally keen to spend the hours required to do full justice to the Bill.

[The Chair]

But there is a limit on time.

[Rebecca Paul]

Absolutely, Ms Jardine—we can go into the early hours of the morning if we need to, and I am happy to do so this evening if that is what people would like to do.

In cases of offensive communications, malicious communications, harassment, stalking and other digital evidence-related cases, the line between criminality and obnoxiousness can be fact-sensitive and context-heavy. We have all seen how politically sensitive a question this has become. We should remember, too, that some of these cases are driven almost entirely by screenshots and unauthenticated digital material, which may be manipulated, selectively presented or forensically thin.