Courts and Tribunals Bill (Eighth sitting)
Debate between Sarah Sackman and Joe RobertsonTuesday 21st April 2026
(3 months, 3 weeks ago)
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Sarah Sackman
I think we are maybe dancing on the head of a pin. Whether it is a concession or not, I accept that there is no right of appeal of the allocation decision. I also accept that there is no obvious route to judicial review, because of the operation of section 29 of the Senior Courts Act. If I might say so, the hon. Member and I are agreeing. Whether he or the hon. Member for Bexhill and Battle wants to categorise that as a concession, as a reduction of rights, that is a matter for them; but we are agreeing as to the legal position. What I wanted to do was set that out formally in writing, in response to that and to the various other questions that the Bar Council asked in their letter, because I thought that would be useful. However, we are in agreement, and I think that is why we can proceed to a vote, because we have a shared understanding of the law.
Joe Robertson (Isle of Wight East) (Con)
I intended to intervene on the Minister to ask a question, but I am happy to pose it by way of a speech. She has indicated—in fact, she stated very clearly—that she wants to formally clarify in writing, but she is declining to formally clarify orally. Does she not accept that if we proceed to a vote on clause 3, she is at risk of inadvertently misleading this Committee if she cannot clarify what she says she wants to clarify in writing before we vote?
Sarah Sackman
I think I did clarify; I do not think I have anything more to say. I clarified it in answer to the hon. Member for Wimbledon. I am not going to say anything more; I think we should go to a vote.
Sarah Sackman
In that case I will deal with amendments 30 to 32 once I have addressed amendments 29 and 61, because they all touch on similar issues in relation to clause 4.
Much has been said about the policy rationale behind this provision, and whether juries are somehow incapable of following complex trials involving fraud or financial matters. That is not the Government’s contention, although some of the cases that are routinely dealt with in Southwark Crown court, particularly in a modern environment with crypto and complex financial instruments, are indeed highly complex.
The primary issue is jury burden, which is a theme that emerged from the independent review of criminal courts, and it has long been identified as a significant issue. As long ago as 2001, Lord Justice Robin Auld said that the
“increase in the length of such trials over recent years has become a severe intrusion on jurors’ working and private lives. It cannot be good for them or for justice.”
Sir Brian Leveson picked up that theme in part 1 of his review, in which he said that
“the personal and financial burden placed on jurors, particularly those involved in lengthy trials, is significant.”
He also said that
“serious and complex fraud trials…place more significant burdens on court resources and jurors’ time.”
There is evidence of the financial strain on jurors who sit in lengthy trials, particularly those who are self-employed or who have caring responsibilities.
In addition, under the current system, the companies that jurors work for cannot claim back losses incurred while their employee is on jury service. As I have said before, we commend the participation in jury service of people from across society and from all backgrounds, which is why we are seeking to preserve jury trials for our most serious cases—those pertaining to matters that are not only serious for individuals but are in the public interest.
Sarah Sackman
I will make a bit of progress.
We also need to be mindful of the burden that lengthy trials place on jurors. In this country, between January 2024 and December 2025, almost 3,000 jurors sat in trials that lasted more than six weeks. We should be mindful that trials for fraud and serious financial crime, which are within the purview of this clause, are some of the longest and most demanding in the Crown courts. We also have to be mindful of our argument on the time savings of having judge-only trials for such cases.
Joe Robertson
The Minister talks about the statutory test for complexity, among other things. I cannot identify the statutory test for complexity. Where is the test in the new legislation?
Sarah Sackman
We consider it to be set out in clause 4 as drafted. It is sufficiently flexible and will no doubt be subjected to interpretation. We think that, as drafted—with all the carefully prescribed exceptions to what could be included, in addition to the public interest exclusion—it is sufficiently clear, and that there is a clear understanding of the sorts of offences that would come within the provision.
I am also keen to work together constructively to ensure public confidence, particularly in cases involving loss of life, while still providing the courts with the flexibility they need for the clause to work appropriately. In the case of amendment 31, given the high bar already set in the clause and the cautious way that we expect judges will exercise these powers, we consider the statutory exclusion of these additional offences unnecessary. Again, I urge my hon. Friend the Member for Bolton South and Walkden not to press her amendment.
Finally, the placement of amendment 32 in proposed new section 42B(4) of the Criminal Justice Act 2003 means that it would not, in fact, exclude any offences beyond the indictable-only sexual offences that are expressly excluded by proposed new section 42B(2)(b). As I have said previously, we set up the clause so that jury trial is the default. Judges apply the test, and there are safeguards for case suitability and public interest. It would be very rare for sexual offences to be tried alongside the kinds of complex or lengthy fraud and financial cases that clause 4 is designed to capture. For those reasons, once again, I urge my hon. Friend not to press the amendment.
Joe Robertson
I support the amendment tabled by my hon. Friend the shadow Minister, which would ensure the right of appeal to a decision whether a trial should be heard by a jury. The Government’s reason for not accepting the amendment, as they have put forward on a number of previous amendments, is the principle of efficiency—that it would slow the system down and would not drive the efficiencies that they hope to secure through the Bill.
The principle of efficiency cannot be an untamed principle that runs roughshod over carefully fought legal principles of fairness and natural justice. Efficiency cannot simply trump everything. If efficiency has no limits, why have trials of more than a few days at all? The arguments have been well made by the shadow Minister, and I do not wish to repeat them, but it is not an inefficient process to allow a right of appeal. I assume that the decision made by the judge in the first instance on how to allocate the trial will not be a particularly lengthy process anyway, so an appeal of that decision will be no lengthier—indeed, less so.
I have never heard the argument that appeals are against efficiency in any other aspect of law. Indeed, appealing the substantive outcome of a case—a claim of wrongful conviction—has not one but many stages of appeal: appeal to the High Court, appeal to the Court of Appeal and appeal to the Supreme Court. I have never heard the argument that someone should not have the right to appeal the outcome of a trial because it is inefficient or might cause delays.
It seems that efficiency is being used to justify a fairly hastily put together Bill, and that the Government do not recognise the possibly unintended consequences of its provisions in order to get their business through. The best way of addressing those issues, and accepting that there might be loopholes and unintended consequences, is to give genuine due regard to amendments tabled in good faith, on this occasion by the shadow Minister, to improve the lawmaking process and the Bill.
The amendment does not seek to drive a coach and horses through what the Government are trying to achieve with the Bill, even though we disagree with some of it; it seeks to improve, to perfect and not to allow unfairness to creep into the Bill. I am sure that the Government do not intend the Bill to be unfair, but time and again they risk allowing it to be so.
Sarah Sackman
The amendment would effectively introduce a new right of appeal against a decision to order a judge-only trial. Once again the Government does not consider that to be necessary in the interests of fairness, or appropriate given the time saving this Bill seeks to achieve. We are seeking, by the process set out in clause 4, to encourage procedural finality and to avoid delay rather than setting up additional procedural layers to add complexity and delay.
Of course, all that should not come at the expense of overall fairness. That guarantee of fairness is expressed in a number of ways: because we consider the different modes of trial that might be afforded to a case to be fair; because a judge sitting alone will be required to give reasons for the allocation itself and then for the substantive verdict, whether a conviction or an acquittal; and because that in itself can be subject to an appeal in the Crown court in the usual way. We regard that as an important safeguard in terms of fairness, but we do not want to encourage mode-of-trial allocations—which we think that judges will do well, transparently, efficiently and having heard from both sides—to be relitigated. For those reasons, I urge the hon. Member to withdraw his amendment.
Sarah Sackman
I am going to make some progress— I know the hon. Gentleman has raised this with me. Those responsible for drafting the legislation do not need to add further definitions of what we mean by “complex” and “lengthy”. That is well understood. As I said, given the other safeguards and considerations related to the kinds of cases that will be suitable, we think that the discretionary approach that judges will apply will suffice.
Joe Robertson
As my hon. Friend the shadow Minister pointed out, there are a number of problems that not only arise with what clauses 3 and 4 try to do, but carry over to clause 5, which tries to replicate aspects of jury trials in trials that will not be heard by a jury because a judge has made an allocation decision.
The problems with juries seem to be, as the Minister and the Government have articulated, time wasted through swearing in, the unpredictable nature of convening 12 people—with people sometimes dropping out—and the fact they can hear evidence only at certain times of the day, which makes the day for hearing evidence shorter. Of course, none of those things are new; they are things that have always existed with jury trials. Citing issues with juries that have existed since juries began, in order to deal with the more recent issue of backlogs, misses the point.
The Government have taken measures to deal with the more recent issues with criminal cases, including the fact that evidence inherently takes longer, although that is the same with evidence that a judge has to consider, and that cases have become more complex because of evidence and technology. That also is true of cases that are heard by a judge only. The Government have made plenty of complaints and shared plenty of views about what they think of the previous Government. They have spoken about under-investment and caps on sitting days, things that they say they have addressed through allocating more sitting days and investing in the legal system. Surely, that is the remedy for their complaints. However, they have not been prepared to spend the time to assess that remedy, to see whether the benefits in reducing the backlog will be felt in the coming months and years.
To take an inherent feature of the jury system—the jury itself—as a justification for doing away with it in certain cases because of more recent pressures for other reasons is neither logical nor fair. The problem with simply transferring all the provisions that would ordinarily happen in a jury trial to a trial that is decided by a judge alone, as clause 5 seeks to do, is that there are features of a jury system that cannot simply be replicated by a judge sitting alone. Let us remember that a jury decides the facts. It decides whether something happened and it decides what was in the mind of the defendant at the time in question. That is the preserve of the jury.
It is for the judge, even in a jury trial, to decide the law, to direct the jury—where appropriate—and to decide issues of procedure. Some of the procedural issues or arguments about evidence, including about whether evidence is admissible or not, are decided by the judge in the absence of the jury. The jury is sent out of the room. Of course, that can make the whole trial last longer, but there is a very good reason for it. It is because sometimes the arguments that are made—for example, arguments about the admissibility of certain evidence—are in themselves prejudicial to the decision maker of the facts, which is the jury, or prejudicial to the way that they might decide the case. A judge might need to hear the contested evidence, or at least hear what it is about to decide whether it is admissible.
A judge might decide that evidence is inadmissible because it is not relevant, or—this is where I go way beyond my legal expertise; I never practised as a criminal lawyer—because it might effectively prejudice the jury. We do not want the jury seeing that evidence, which is why they are out of the room. If the judge rules that the evidence is inadmissible, the jury come back into the room never having seen it, and the trial continues with the jurors’ minds unclouded by inadmissible evidence.
However, when the judge is also deciding the facts—that happens, of course in magistrates courts, where the magistrates decide the facts and are guided on the law by a legal professional sitting in front of them—and indeed when a judge is deciding the facts and the law, and procedural issues and issues of the admissibility of evidence, then, if they take separate arguments or separate submissions from the defence and prosecution on whether an item of evidence is admissible or not, and they decide that it is not admissible because it would cloud the judgment of the jury or confuse the issues of the main trial, they effectively have to pretend that they never heard that prejudicial evidence, having decided that it is prejudicial.
Judges are trained and professional, and have to do all this anyway in certain cases where a judge decides both—
Sarah Sackman
We have already covered a fair amount of the same ground. The example that I gave a couple of sittings ago was in relation to judges considering contempt of court applications, where they themselves would have seen the offending behaviour and have to make a determination about it. Judges are well used to dealing with these issues, both in the criminal context and the civil context. Does the hon. Gentleman accept that?
Joe Robertson
I accept that judges can do all this, and indeed sometimes do all this. Surely, however, the Minister will accept that, given human nature, there is a limit to the extent to which a human being can be so well trained or so professional that they can simply disregard something that they have heard as though they had never heard it. Indeed, that is one reason why we have jury trials. It is also one of the leading reasons why in more complex cases or longer cases—in cases involving murder, or sexual offences, or in all those cases that have to be heard by a jury—we have a jury. It is to separate the decision makers of fact from the decision makers of law and procedure.
Joe Robertson
My hon. Friend the shadow Minister makes a good point, and we will get on to talking about the provisions relating to the family courts.
In relation to this particular provision, the family courts are where we have a judge making a decision on very emotive facts and on procedure. But family courts are far more collaborative in nature. A judge’s role is also about straining to find consensus. That is very different from the criminal courts where, ultimately, a judge or a jury, depending on who is hearing the case, has to make a yes-or-no decision on innocence or guilt. That has wide-ranging and profound impacts, which sometimes turn on a knife edge on hard-to-determine evidence. That is different from the family court, where the intention is to try and find consensus, rather than making those decisions.
Of course, juries are used in civil courts in some defamation cases. Again, it is where the value judgment on intention—why somebody made a statement about someone and whether they knew it to be false or not—of 12 ordinary people selected at random in this country is better than a judge’s decision making alone.
My issue with clause 5 is that it simply sweeps all sorts of provisions in a number of existing clauses of different legislation passed at different times into judge-only trials when those provisions were designed for jury-led trials. Unless I have misunderstood, that seems to have been done through a set of Government amendments and elements of existing law that were not envisaged on the first drafting of the Bill. That possibly demonstrates the slightly rushed and painful nature of how we are having to deal with this legislation, with so many loopholes and gaps in it.
I am happy to be discharging my duties, dissecting and scrutinising the Bill. I do not mind how long it takes because that is my job; it is why I am here and I am pleased to be doing it.
Sarah Sackman
On that final point, we are all delighted to be here and perform the function of Government properly. [Hon. Members: “Hear, hear.”] Exactly, and the company of all Members is a delight, as always.
On a serious point, there is some suggestion that the Government are rushing the legislation through. I do not think that is right. Yes, the Government have a sense of urgency about gripping this problem. I make no apologies for that. The depth of the problem and the shameful delays demands that urgency, but it is not true to say that this is rushed legislation. We commissioned a two-part independent review of hundreds of pages. We took our time to consider how we would bring that forward in a pragmatic way that vindicated the evidence base that the IRCC had put together. Now we are scrutinising it in the usual and proper way, and it will take as long as it takes. I do not want the public to think that the integrity of the process is somehow compromised. I know it would not be under your chairship, Ms Butler.
Courts and Tribunals Bill (Sixth sitting)
Debate between Sarah Sackman and Joe Robertson(3 months, 4 weeks ago)
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Joe Robertson
Evidently, I support the amendment in the name of the shadow Minister. As he set out, this is about confidence in the trial when it gets under way. It is about understanding what a judge, in exercising their procedural decision making, may have seen prior to the trial getting under way and the evidence being heard. As I see it, the amendment would go some way to at least mitigating what is lost in the Government’s abolition of jury trials for certain offences: that is, the objectivity of jury trials, where a jury decide on the conviction—guilt or innocence, effectively—and the judge decides on the sentencing.
In jury trials, there is separation between a judge’s procedural decision making about how the trial runs, including throughout the trial, and the facts of the case—whether someone is guilty or not—being decided on by the jury. When a trial is heard by a judge, the judge makes both those decisions. The disadvantage there, of course, is that when either party to proceedings—the defence or the prosecution—wishes to make representations about the way a trial is being conducted or about the evidence in a jury trial, the jury get sent out of the room. They do not see that argument, and their minds are not clouded by what is discussed in the courtroom on a procedural matter that a judge may rule is inadmissible in the hearing. Frequently in trials, that would be a dispute over evidence, such as whether a certain bit of evidence should be brought before a jury. The jury will not hear that discussion; if a judge says no, the jury come back in and they never see it. In a judge-only trial, where the judge is also deciding innocence or guilt, they have to decide whether a piece of evidence is relevant and, if they decide it is not, they have to effectively pretend that they never saw it and to disregard it.
Our judges are capable of doing that because of their training, career, expertise and experience. I would suggest that judges in this country are among the best in the world; as I have said before, I believe our common law English legal system is the best, and I believe our judiciary is the best. But it is simply the case—it is human nature—that when someone has seen something they cannot unsee it. That is precisely one of the arguments for why we have jury trials in this country.
This is about the arguments a judge hears and assesses when it comes to allocation. They could be fairly contested and, of course, the decision made by a judge could be controversial—not necessarily wrong, but controversial—and against what the defendant is seeking. When a judge chooses a judge-only trial, the defendant’s wishes are not disregarded but considered and set to one side, and the judge then hears the facts of the case. The argument is that the judge may be clouded in their view of a defendant, given the robust, perhaps sometimes controversial, arguments the defendant is making about where they want the trial to be heard. That may then unfairly cloud the judge’s view of the defendant when hearing the case itself. In the vast majority of cases, judges have a professional separation as they move on from an important single decision about where to hear the case to hearing the case itself.
It is not just about whether a judge was clouded by the earlier decision-making process. In truth, in the vast majority of cases we can never know. We do not want to get into philosophy here, but some philosophers may argue that judges themselves do not realise when they are clouded. Probably more relevant in practice, though, is the confidence that the defendant has in the judge’s decision.
If there has been a highly contentious, contested argument about where the trial should be held, if the defendant did not get their way, which in my view they should have, because I do not agree with this legislation, and if the defendant does not believe that their case is being tried properly and sees bias in the judge, that will make the trial harder to run even if it is not a reasonable view to hold. It could lead to defendants, some of whom may be representing themselves and giving evidence, not being able to set aside their disagreement with the judge. There will therefore not be a fair, objective process with a judge and a fair-minded defendant who at least has confidence in the system.
Of course, not every defendant will have objective confidence in the system, but at least we can assist the process by not creating an opportunity for the defendant to disagree with a judge’s allocation decision and then have to face the same judge making a decision on their innocence or guilt in the trial itself. I use the analogy of juries, because that is what we are discussing, albeit not under this amendment.
An important example arises in the family courts, when two people are contesting finances during a divorce. That is an area I am more familiar with, as a former family practitioner, and the principle is similar. I apologise if the language I use to describe the proceedings is slightly out of date; it has been a few years since I practised. A financial dispute resolution hearing is effectively an interim hearing before people get to a final hearing; they are seeking to avoid the final hearing by having a financial dispute resolution hearing. A judge hears the arguments made at that hearing and tries to assist the parties to at least narrow the areas of dispute, or indeed resolve their dispute and come up with an agreement by consent. If consent is not reached at that hearing, the FDR judge will not hear the final hearing, because they have seen things that they cannot unsee and heard things that they cannot unhear. The perception is that the judge has been unable to assist in the settlement, they will be unable to hear an objective final hearing and make a decision.
The principle runs through not just criminal courts and jury trials, but family courts and the civil courts. It is a fundamental principle, in this country, that judge who makes a final decision should be as unclouded as possible by earlier arguments or decisions of a more procedural nature. For those reasons, I support the shadow Minister’s amendment. It would not drive a coach and horses through what the Government want to achieve in the Bill. I have already said that I disagree with a lot of the Government’s intentions, but the Government can still do what they want to do while taking the amendment on board. I hope that they will at least consider accepting some amendments. If not, what is the point of scrutiny of a Bill? What is the point of the process?
Sarah Sackman
Let me begin by making it absolutely clear that the deployment of judicial resource is properly a matter for the independent judiciary. Under proposed new sections 74A to 74D of the Senior Courts Act 1981, judge-alone trials will operate in the existing Crown courts and any judge of the Crown courts will be eligible to sit in the new division. Creating a statutory entitlement to require reassignment following a request of the kind outlined in the amendment would, in the Government’s view, encroach on that judicial responsibility.
Let me be clear that, like the hon. Member for Isle of Wight East, I am firmly of the view that our judiciary are among the best in the world. That is why the Government are prepared to put our faith in them to deliver this reform. They are best placed to determine how and where to deploy their resources.
The amendment implies that, to safeguard fairness and impartiality in our courts, different judges must preside over the allocation decision and the trial. Let me address that concern directly. There is no basis for suggesting that a judge who has made an allocation decision would be unable to approach a trial with full independence and objectivity. We have confidence in our judiciary, who are independent and highly trained, to do so. Judges receive training throughout their careers, including on structured decision making and the fair treatment of court users. They are accustomed to managing complex cases and to ensuring that trials are conducted fairly. That is their job.
What the Bill proposes is consistent with well-established practice. Across our systems in the civil courts, judges routinely make a range of procedural and case management decisions before trial without that depriving them of their impartiality at trial. The Government are committed to upholding the highest standards of justice, which is why we have ensured that the judiciary have the funding that they need to deliver the training and guidance required to support these reforms.
I reassure the Committee, the House at large and the public watching at home that every defendant in the Crown court will receive a fair trial, and that that is not affected by the mode of trial or by the particular judge presiding over the case. In the magistrates court, justices and district judges routinely make decisions about the admissibility of evidence, including bad character evidence, and other preliminary points of law and then go on to determine guilt without any loss of impartiality. In the Crown court, judges already deal with instances of contempt of court that they witness themselves, sometimes those directed at them personally, without being disqualified from continuing to try the case. That position was affirmed by the Court of Appeal only last year.
Requiring a different judge to preside over the trial would encroach on judicial independence and introduce unnecessary complexity and inefficiency to the system without any evidence that such a safeguard is needed. I urge the hon. Member to withdraw the amendment.
Joe Robertson
I echo the points made by the shadow Minister. The issue here is where sentences may go above three years. A sentence of three years or more is fairly significant. The crime, of course, will match the sentence; no one is suggesting that the sentence is inappropriate in these cases—someone has been convicted. However, the issue is that the trial—the fact of innocence or guilt—will have been decided by a judge. Without raking over too much old ground, the point in a jury trial is that on more serious offences, jury decides innocence or guilt.
What we have here, without the amendment, is a back-door way for a judge to decide what turns out to be a more serious case than perhaps had originally been thought, because the sentence passed is more than three years. As I understand it, it is not the intention of the Government to capture more cases of that serious nature than they had originally intended would be decided by a judge. They themselves are not arguing that jury trials do not have a place in this country for a great number of cases—unfortunately, not enough after this legislation.
The hon. Member for Rugby made the point in an earlier sitting that other Governments have adjusted the threshold, notwithstanding our disagreement over what is being proposed in this legislation. Clearly, the issue with this provision, if it remains unamended, is that more serious crimes, with a sentence of more than three years, will inadvertently get caught.
I cannot quite understand why the Minister will not accept the amendment, but I am sure she will address that. Once again, it would not, in any material way, move away from what she is trying to achieve with the legislation, which is tackling the backlog of Crown court cases. Again, that intention that is perfectly well meant. The amendment would not, in any way, get rid of her primary intent to get rid of either-way offences so that they are not heard by a jury. Notwithstanding the fact that I do not agree with her on that, the amendment would not defeat what she is trying to do there. Effectively, what it would do is close a loophole.
I invite the Minister to address that point about instances where a judge decides, on their own without a jury, that a case is of significant seriousness—and that may mean complexity that was not apparent at the outset but became apparent during the trial—that he or she wishes to pass a sentence of more than three years. Three years is a serious length of time for someone to be locked up and deprived of their liberty. Wherever we think that the threshold should sit, I think that we all agree that jury trials have a role in this country for more serious crimes.
If the threshold can rise above three years through that avenue, how high a threshold is the Minister willing to tolerate? In how many cases is she willing to tolerate that apparent loophole? Maybe she does not see it as a loophole. Maybe there is purpose behind it. If there is, perhaps she can explain why it is important enough to risk even her principle by having more serious crimes—those with a sentence over three years—potentially being heard without a jury. Again, I reiterate that I disagree with the primary disapplication of jury trials for what are now either-way offences. That is not what this is about; this is about the Bill doing something more than the Government may wish to do. I invite the Minister to address that in some detail.
Sarah Sackman
I will seek, as best I can, to clarify why judges sitting alone should have full Crown court sentencing powers consistent with the recommendations of the independent review of criminal courts. That review made clear that both judge-only trials—where those are prescribed—and a Crown court bench division must operate with the same judicial powers as jury trials if they are to function effectively in practice. As I have said, allocation is an early indicative assessment. It cannot and must not predetermine the sentence, which must be based on the facts proven at trial. The amendment would reverse that principle, effectively allowing an initial assessment allocation to cap the sentence ultimately imposed, or else force a retrial before a jury. That would compound a delay which, as anyone who has listened to victims’ testimonies to the Committee knows, we can ill afford.
Under proposed new section 74A, the allocation decision—whether the case should be tried by a judge alone or by judge and jury—will rely on a structured application of the existing sentencing guidelines. As I have said, we are not introducing an unfamiliar exercise, and we have full confidence that judges will apply the guidelines consistently to determine the appropriate mode of trial based on their assessment of the seriousness of the case.
In practice, the allocation decision in the Crown court will be tied firmly to the facts of the case, in much the same way as in the magistrates court. That means that in the vast majority of cases it is unlikely that a case will result in a sentence far beyond what was anticipated at the point of allocation. However, I recognise that in a small proportion of cases where evidence evolves and a case becomes more serious, appropriate safeguards must be, and will be under the Bill, put in place. That is precisely why the Bill includes provision for a reallocation where circumstances change. Where an indictable-only offence is added to the case, it must always be reallocated as a jury trial.
Where seriousness increases just enough to push the likely sentence in a case above three years, the judges must consider reallocation to jury trail. We have looked at the factors set out in the Bill, including potential delays following reallocation, any disruption to victims or wasted costs, and the effects on other trials. It is therefore essential that judges sitting alone retain the full sentencing powers of the Crown court. Unlimited sentencing powers do not expand the jurisdiction of judge-alone trials, but they ensure that once a case has been properly tried, the sentence imposed reflects the facts as found.
Against that backdrop, amendment 42 would require cases to be retried because the sentence ultimately exceeded the earlier indicative assessment. As I have said, that would introduce significant delay into the system, requiring cases to be heard twice and directly undermining the purpose of these reforms, which is to reduce the dreadful delays. The principle that the sentence must reflect the facts is important, and for that reason it is necessary that judges retain the full sentencing powers. To do otherwise would risk distorting outcomes and create unnecessary duplication and delay in proceedings, thereby undermining confidence in the system. For that reason, the Government cannot support the amendment.
Courts and Tribunals Bill (Third sitting)
Debate between Sarah Sackman and Joe Robertson(3 months, 4 weeks ago)
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Sarah Sackman
I am not sure who to give way to, but I will give way first to the hon. Lady—I will try to be as fair as I can.
Sarah Sackman
Let me just finish the point on clause 1, if I may. As I was saying in answer to a colleague’s question, the approach here on clause 1 and the approach to these structural reforms is pragmatic, driven by the necessity to bring down these backlogs, following the central insight of the IRCC; but the approach in clause 1 to remove the ability of the defendant to insist on their choice is also a principled one. We heard in Committee from crime victims—I think I am using that word appropriately in that context—that the ability of the defendant to insist on their mode of trial, notwithstanding the seriousness of the offence, in their view tilted the balance excessively towards defendants’ rights to drive the criminal justice process. In a criminal court, the Crown is on one side, represented by the prosecution, and the defendant is on the other. The complainant, who may turn out to be a victim of crime, is not represented. In this scenario—in keeping with other jurisdictions such as Scotland—it seems that the right to have the defendant drive the process, irrespective of the proportionality or the suitability of that mode of trial, is in principle an odd design choice.
Joe Robertson
It seems that the Minister has perhaps momentarily forgotten that the entire legal system in this country is tilted in favour of the defendant. The defendant is innocent until the prosecution makes its case, and it cannot just make a good case, because the case has to be beyond reasonable doubt. The whole system is tilted in favour of the defendant, and rightly so. It is slightly strange to hear her use the argument that the defendant should not have freedom and liberty to elect when they are innocent people until convicted—and many of them are never convicted.
Sarah Sackman
I am well versed in how our legal system works. I am well versed in the principle of the idea of innocent until proven guilty, and the criminal standard of proof. That is all important, as are the other safeguards that this reform system would retain. However, I make no apologies for the approach that we take in reforming this system, which, as I have said, is not just driven by necessity and pragmatism but by principle, and for the case repeated by myself and the Deputy Prime Minister—that we are a Government who will centre victims of crime. I also make no apologies for the investment we make in victim support services, or for the recalibration we are making in terms of how mode of trial is determined. Determining mode of trial is driven not just by the severity of cases, by creating an objective test to be applied by the courts, but the pursuit of timeliness. Timeliness, by the way, helps not only complainants and victims of crime but those accused of crime. If I were accused of a crime, I would want to clear my name as quickly as possible, so timeliness helps everybody across the criminal justice system.
Courts and Tribunals Bill (Fourth sitting)
Debate between Sarah Sackman and Joe Robertson(3 months, 4 weeks ago)
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Sarah Sackman
We do think that jury trials are a cornerstone of British justice. It is not inconsistent to say that the most serious cases—all cases in which the likely sentence is above three years—should be heard at a jury trial. If we turn the hon. Gentleman’s argument on its head, everybody should get a jury trial, because otherwise they are not getting a fair trial. We do not think that.
As a society, we have for centuries made a threshold choice about who can access a jury trial. We are having a debate now about where that threshold should be drawn. Our proposals strike the right balance between the rights of the different participants in the system. We think they secure fairness because of the other safeguards in the system—the giving of reasons by a judge in the Crown court bench division and the transparency measures we are bringing in—but we also think they are proportionate use of court resources. The hon. Members for Reigate and for Bexhill and Battle both made the point that somebody getting a criminal conviction in the magistrates court, which may attract a six-month custodial sentence or less, is a pretty serious thing in itself. For some people, that may mean, reputationally, that they can no longer pursue their career. These things are serious.
I do not think any of us is saying that the status quo, whereby magistrates and district judges hear those cases, is not inherently fair. It is fair. What is not fair is the status quo whereby the scale of the delays is detrimental to the quality of justice we are able to provide to the public, whether in jury trials, judge-only trials or magistrates trials. The delays are such that they are undermining law enforcement, the quality and recency of the evidence, and people’s memories. It is undermining the calibre of the justice that the system is able to mete out. Dealing with the delays is not just an efficiency question; it is inherent to the question of fairness itself.
We keep repeating the old adage that justice delayed is justice denied. It is a powerful one because there is truth in it: the older the vintage of the cases, the less fair they become. That is not fair on anybody. It is not fair on the defendant on remand or fair on the complainant. It is not fair on the witness, who may have just had the misfortune of passing by a criminal incident, and is being asked to recall what happened a year or two years ago, when they would like to move on with their lives. When it comes to fairness, timeliness is critical.
Sarah Sackman
I have to make a little progress.
Let me turn to the detail of clause 1. Part of its function is to ensure consistency across the statute book. To ensure consistency in that way, the clause makes a series of consequential amendments to remove references to a defendant electing for a Crown court trial. That includes amendments to the uncommenced written plea and allocations provision inserted by the Judicial Review and Courts Act 2022. Those uncommenced written procedures would allow defendants to indicate a plea without attending court. Their inclusion does not signify that the Government are intending to commence them. The clause ensures that if those provisions were brought into force in future, they would operate consistently with the removal of the defendant’s ability to choose the mode of trial. Defendants will still be able to indicate a plea in writing, and both parties may still make representations on venue. That decision on mode of trial would rest with the court.
The clause also updates the remittal power in section 46ZA of the Senior Courts Act 1981. Currently, where a case is already in the court, a judge may remit to the magistrates court only with a defendant’s consent. Clause 1 removes the requirement to obtain that consent, ensuring that remittal decisions, like allocation decisions, are made on the basis of the court’s assessment of suitability.
Sarah Sackman
Does the hon. Gentleman agree that the 1% to 2% refers to the time savings achieved by the Crown court bench division? The IFG recognised that the totality of the package achieved a 10% saving. The Ministry of Justice’s modelling—externally verified—shows a 20% saving, which is highly material.
Joe Robertson
I accept the Minister’s statement to the extent that it is a statement of fact of people’s evidence. To address the issue of taking cases out of one court to give to another, however: that is a small minority of cases. Indeed, that is the argument that the Government make, certainly to their own Back Benchers when they are worried about the Back-Bench view of their proposals: “Don’t worry. Most cases are heard in the magistrates court anyway, and only a tiny percentage are being taken out of the Crown court.” The Government cannot have the argument both ways: when speaking to their own Back Benchers, “Don’t worry, this is not going to be meaningful,” and when speaking to the rest of the world about tackling backlogs, saying that that in itself is a meaningful change.
Sarah Sackman
I do not want to interrupt the hon. Gentleman because he is making important points, but the point was well made a moment ago that in line-by-line scrutiny the intent is to go line by line. Clause 2 deals with making what were uncommenced online procedures consistent with the changes made in clause 1 to the current ability of a defendant to choose venue. The hon. Gentleman is making a wide-ranging speech on whether one can appeal the mode of trial decision, and the permission to appeal. That will come later when we get to clause 7. I venture that these are all valid points that we will want to debate, but that might be the appropriate place to discuss those matters, because right now we are looking at clause 2. I am happy to reclarify the points I made in relation to clause 2, but if we range on to clause 7 in the scope of clause 2, we are not going to get the line-by-line scrutiny that we all want to achieve.
Joe Robertson
I thank the Minister for rather politely encouraging me to come towards the end of my speech. I will finish by addressing the idea that somehow, because something does not happen in Scotland, it must be okay not to happen in England. That plainly has nothing to do with politics or even football—not that I am suggesting the Minister thought it did. I am happy to say, as a proud citizen of the United Kingdom, that I think the English and Welsh legal system is the best in the world. The common-law system is the foundation, it has been adopted all around the world, and is by far the most widely-used legal system. It is possibly our greatest export, along with the English language.
Sarah Sackman
While I am very proud of our legal system, I do not necessarily take the view that ours is best and we cannot learn from other systems. Indeed, some of the places that we have exported to, such as Canada, are the places that we are looking to learn from when seeking to ameliorate our own system. Does the hon. Gentleman agree that, with its strong foundations, one of the strengths of our system is our fiercely independent judiciary? Much has been said about the judiciary, but does he agree that it is a fundamental pillar of our outstanding legal system and we should seek to defend it—and when judges are called enemies of the people, we should call it out?
Joe Robertson
I am very happy to say that I agree with all the things the Minister said. I also agree with learning from other systems. Plainly, the English legal system, like the English language, has been successful in its ability to adapt and evolve. Without going back to the beginning of my speech, started just a few minutes ago, for the reasons I have set out, I believe that this is an evolution—or arguably a revolution. [Interruption.] Was that another intervention? I think these measures are a stage too far.
Oral Answers to Questions
Debate between Sarah Sackman and Joe Robertson(1 year, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Sarah Sackman
I welcome my hon. Friend’s question and I am grateful to him for raising the pathfinder court. These pilots are proving incredibly successful. They front-load a lot of the evidence gathering, they put the safety of children and family arrangements right at their heart, and they are proving a really successful model, which is why we plan to roll them out further. As part of that, as he has heard, we will be publishing our response to the presumption review very shortly.
Joe Robertson (Isle of Wight East) (Con)
The backlog of cases in the Isle of Wight coroner service is the worst in the country, causing pain and distress to too many families, some of whom are waiting 800 days to find out what is happening to their loved ones. Will the Minister offer any comment or support to those families, and will she agree to meet me to discuss how we deal with the problem of the Isle of Wight coroner?