Courts and Tribunals Bill (Sixth sitting)
(1 day, 16 hours ago)
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The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Chair
We are now sitting in public and proceedings are being broadcast. I remind Members to switch electronic devices off or to silent, please, and that teas and coffees are not allowed during sittings.
Yasmin Qureshi (Bolton South and Walkden) (Lab)
I beg to move amendment 25, in clause 3, page 5, line 38, at end insert—
“(7) The preceding provisions on allocation for trial without a jury do not apply to cases where a defendant has already elected to be tried in the Crown Court prior to the commencement of this section.”
The Chair
With this it will be convenient to discuss the following:
Amendment 12, in clause 3, page 9, line 28, leave out subsections (2) to (4).
This amendment would prevent the provisions on trial on indictment without a jury applying retrospectively to cases where the defendant has elected trial by jury before these provisions become law.
Amendment 43, in clause 3, page 9, line 28, leave out
“trial on indictment of a person beginning on or”
and insert
“cases whose first hearing in the magistrates’ court takes place”.
This amendment would prevent the provisions on allowing judges to try all triable either-way offences with likely sentences of fewer than three years from applying retrospectively.
Yasmin Qureshi
It is a pleasure to serve under your chairmanship, Ms Jardine.
Amendment 25 relates to the retrospective allocation of cases to the Crown court bench division. I am asking that provisions for the allocation for trial without jury do not apply when election has already happened. The point is that in all jurisprudence in the world, retrospective legislation is bad law and bad jurisprudence, going against the rules of natural justice. Why? Because there is a breach of legal certainty.
A core principle of the rule of law is that an individual should know the legal consequences of their actions. People also have a legitimate expectation of the procedural framework in place at the time of the commission of an offence. Retrospective allocation rules disrupt that expectation and weaken trust in our justice system. It is a selective tightening of procedures by the state, which risks an abuse of legislative power and an inconsistency.
Article 7 of the European convention on human rights argues against retrospective criminal law penalties. While it is correct that with this clause we are not talking about retrospective criminal penalty, I would say that article 7 is being breached, because even if penalties are not increased, legitimate expectations are being undermined. The defence and legal representatives prepare cases based on existing court structures, and on known procedures and practices. Suddenly to set new procedural rules and different evidential expectation is just not cricket.
The state is being given an advantage, because there should be an equality of arms. Administrative convenience should not override fundamental rights. The courts have repeatedly stressed that fairness is more important than efficiency, because it generates among people confidence in the state and in the criminal justice system. That is why—I repeat—our judicial system is recognised to be one of the best in the world.
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Ms Jardine. I rise to speak in support of amendment 43, tabled in my name, and to amendments 25 and 12. Again, on this issue the Opposition and the hon. Member for Bolton South and Walkden have alighted on the same challenge or issue—the same thing we think is unfair. We have gone about our amendments in different ways, but we recognise the same issue. As we heard, the amendments address the retrospectivity built into the Government’s approach.
The Bill makes it clear that the new allocation regime will apply not only to future cases, but to existing Crown court cases that are due to begin on or after the specified day on which the measures are implemented. In other words, cases that are already in the system, in which defendants may have made decisions on the basis that they expect a jury trial, could be reallocated to a judge-only trial. Our amendment 43 would prevent that by ensuring that the new regime applies only to cases in which the first magistrates court hearing takes place after the change, and not to cases already in the pipeline.
The Government say the change is merely procedural and can therefore be applied to ongoing cases, but that understates what is happening. To change the allocation part-way through proceedings would not simply be technical; it would alter the ground beneath the defendant’s feet. In written evidence, JUSTICE shared our concerns, saying:
“The retrospective application of the provisions is contrary to the rule of law.”
It pointed to the House of Lords Constitution Committee’s legislative standards, which state:
“Retrospective legislation is unacceptable other than in very exceptional circumstances”
and
“must have the strongest possible justification”.
It is worth considering that legislative guidance, which states, first, that enacting legislation with retrospective effect should be avoided. Secondly, provisions that have retrospective effect should be drafted as narrowly as possible. Thirdly, individuals should not be punished or penalised for contravening what was, at the time, a valid legal requirement. Fourthly, laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake. Fifthly, laws should not deprive someone of the benefit of a judgment already obtained. Sixthly, laws should not prevent a court from deciding pending litigation according to its merits on the basis of the law in force at the time when proceedings were commenced. Seventhly, retrospective legislation should be used only when there is a compelling reason to do so. Eighthly, a legislative power to make a provision that has retrospective effect should be justified on the basis of necessity and not desirability.
Having heard those points, we can immediately see the issues. On the principle that laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake, it is clear that that liberty is absolutely at stake in these matters.
On necessity, we have repeated throughout the debate that the Government, in our eyes, have completely failed to make the case successfully that the measures in the Bill are the only way to drive down the backlogs. This morning, we debated the fall in backlogs in some areas seen in the latest published data; that happened without the measures in the Bill, and without other measures that we all think are necessary to help to drive down the backlogs. To our eyes, the retrospective element clearly does not meet the test of exceptional circumstances or necessity.
JUSTICE says that, given that the curtailment of jury trials will have a marginal effect on the backlog, it cannot see how retrospective applications can be justified, and I agree. It argues that it is deeply unfair for defendants who elected for a Crown court trial in expectation of a jury to have their cases heard by a judge alone under a process that did not even exist when they made that choice. Defendants who have opted for a jury trial may be incarcerated on remand awaiting trial by jury. Had they known that this would never materialise, they may well have opted for a magistrates trial and already been released.
There is, then, a risk that the reallocation of cases that are already in the Crown court caseload to the bench division will be subjected to judicial review. There is clearly no ouster clause in the provisions. How do we know whether many of those affected might decide that they should challenge the decision in the courts? JUSTICE suggests that it could happen with each and every case in the backlog that is allocated to trial without jury. This would require additional hearings and the preparation of representatives for every affected case already in the backlog, creating further delays and placing unnecessary burdens on the defendants and the prosecution who, as we have all accepted, are already under significant pressure.
What did the Prime Minister say about retrospective measures? We have already covered what the Prime Minister previously thought about the importance of jury trials, which he seems to have forgotten, but what did he say about retrospective measures? He said that
“they are usually a very bad idea”.
That is a direct quote from our Prime Minister. He said they were usually a very bad idea, yet here is his own Government enacting one.
Of course, we know what the Deputy Prime Minister thought about this issue. He appeared before the Justice Committee on Tuesday 16 December last year. He was asked about this issue by my hon. Friend the Member for Solihull West and Shirley (Dr Shastri-Hurst), who said:
“There are currently in the region of 17,500 prisoners on remand in this country. Will these reforms apply retrospectively?”
What did the Deputy Prime Minister say? He said: “No.” The Committee must have to assume that that was his view of the right thing to do at the time. Why else would he have said no? It is reasonable for us to ask the Minister to explain why the Deputy Prime Minister has changed his mind.
Of course, the Minister herself has already been asked about this in the Justice Committee. My hon. Friend the Member for Bridgwater (Sir Ashley Fox) pointed out that a defendant committed to trial in the Crown court will expect a jury trial. He said,
“you will relook at cases that have been committed for trial at the Crown court and push some of them through the swift court—that is what you are telling me.”
The Minister replied:
“I think that is something we have to look at.”
My hon. Friend the Member for Bridgwater said to her:
“So when the Lord Chancellor said it will not be retrospective, that was not a wholly accurate answer.”
The Minister replied:
“I think the answer he was giving was in the context of a question around the impact on remand hearings; I think that was the context in which he may have addressed that.”
My hon. Friend replied:
“No, he said the changes would not be retrospective, and now you are giving me a slightly different answer. If someone elects to go to the Crown court at the moment, it is on the assumption that there will be a trial by jury. What you are saying is that it might not be; they might be diverted to the swift court.”
The Minister agreed with that, saying: “That is right, yes.” That can be interpreted only as a suggestion that there was no difference with or without a jury as they are still in the Crown court—an extraordinary response.
My hon. Friend the Member for Bridgwater said:
“Minister, if you have been committed to trial in the Crown court at the moment, you are expecting to have a jury trial, and what you are telling me is that once these changes take effect, you will divert those people committed but whose trial has not started into the swift court.”
The Minister agreed, saying: “Yes”. My hon. Friend said to her:
“That is not what the Lord Chancellor said before Christmas.”
The exchange concluded with the Minister making this point:
“It is a change in relation to the procedure that applies to those cases. They are still getting a Crown court trial under the new proposals.”
We are back to an argument that we have revisited a number of times. When the Minister is pressed on a disadvantage in one form or another of having a trial without a jury, she insists that it does not make much of a difference as they will still get a trial that, in her view, has all the merits of a trial with a jury, to some extent. We made some progress on that earlier today, when the Minister acknowledged that there is something special about a jury trial. If there is something special about it, she must surely accept that those people who do not get one are missing something special and are therefore in some way disadvantaged.
JUSTICE is not alone in its criticism of the retrospective element of the proposals. As I have said previously, Mr Robertson, the founder of the chambers that the Prime Minister, the Deputy Prime Minister and the Attorney General all practised at—someone they surely give some weight and credibility to—is critical about this. He writes:
“Those charged by police with offences currently carrying a right to elect a jury trial will go through newly devised ‘allocation proceedings’ where they will lose that right if it appears to the court to be more suitable to have a non-jury trial or if it appears to the court that the value of the property involved exceeds a sum to be set by the government.”
By that, I think he means in relation to the severity of the case.
Mr Robertson goes on:
“This means, for all 80,000 cases in the backlog, more time—days perhaps—will have to be set aside for novel pre-trial proceedings featuring arguments about suitability and value of stolen property. There will be legal challenges to the government’s proposal that such legislation should apply to defendants who have already been charged or are awaiting trial. Applying these changes retrospectively amounts to a fundamental injustice, undermining legal certainty and the long-standing principle that individuals should be tried according to the rules in place at the time of the alleged offence.”
He is right, is he not?
Mr Robertson is not alone. The Bar Council says:
“The application of this proposal retrospectively inevitably will face a constitutional challenge. The Criminal Bar Association estimates that up to 30,000 cases will be affected. Not only is this extraordinarily unfair to those who have already elected the Crown Court, understanding that it is a jury trial, it interferes with legal certainty and runs the risk of tying the courts up in appeals, further increasing the backlogs.”
I hope that the Minister can reflect, as always, on those clear views, as well as the views of thousands of other legal professionals, academics and former judges, that provisions in the Bill are not necessary to bring the backlog down, and therefore should not be enacted retrospectively. They are fundamentally unfair, unconstitutional and against the usual practices of this place when it comes to retrospective legislation. I hope the Minister will support our amendment to make sure that the measures are not applied retrospectively.
Jess Brown-Fuller (Chichester) (LD)
Although I have proposed the removal of clause 3 in its entirety—we will come to the arguments for that later in proceedings—I will speak to amendment 12, tabled in my name, which seeks to remove subsections (2) to (4) of the clause. Those subsections provide that cases can be assigned to be heard by a judge alone, even if the case has already been assigned to be heard in front of a jury.
Rebecca Paul (Reigate) (Con)
It is a pleasure to serve under your chairmanship, Ms Jardine. I am pleased to speak in support of amendments 25 and 12, and particularly in support of amendment 43, tabled in the name of my hon. Friend the Member for Bexhill and Battle.
The amendments all engage with a simple point of fairness. Whatever one’s view of the Government’s wider proposals, it cannot be right to change the rules after a defendant has already elected for a Crown court trial. Such defendants made their choice under the current rules. They did not opt for Crown court for any reason other than the fact they would get a jury trial, so for the court to remove that choice from them without any hearing would frankly be shocking.
Let us keep in mind that some of these people will be innocent, and remember that some may have chosen the magistrates route if they had known that going to the Crown court would not give them the jury trial they seek. The retrospective application of new rules is deeply unfair. Whatever side of the jury trial argument we are on, surely we can all agree that those who have already opted for jury trial should have that decision respected.
The amendments differ slightly in drafting but all try to achieve the same thing: to ensure that where somebody has already elected for jury trial, that choice is respected and the new regime does not operate retrospectively. Amendment 25 would disapply the new allocation rules where a defendant has already elected Crown court trial before commencement. Amendment 12 would strip out the retrospective commencement provisions. Amendment 43 would instead tie the new regime to cases in which the first hearing in the magistrates court takes place after the change in the law. Those are different routes with the same fair and sensible objective.
This should not be controversial. If the state tells a defendant that they have a right to elect for a jury trial and they exercise that right, it is manifestly unfair to turn around later and say that the right has vanished and that their case will now be dealt with under a wholly different system. In fact, to call it unfair fails to make the point seriously enough. It would amount to a violation of one of the most foundational principles of our legal system: that retrospective legislation of this kind runs contrary to basic rule-of-law principles and requires the strongest possible justification.
As JUSTICE, the cross-party law reform and human rights organisation put it in written evidence:
“The retrospective application of the provisions is contrary to the rule of law.”
It went on to state:
“It is deeply unfair for defendants who elected Crown Court trial in expectation of a jury to have their cases heard by a judge alone under a process that did not…exist when they made that choice.”
I always endeavour to see all sides of a given issue, but in this case I honestly struggle to see any argument against those statements. I hope the Minister will agree that retrospective application is fundamentally unfair.
If the Government are not moved by appeals to basic fairness, they should at least be moved by their own stated objective of reducing delay. The Bar Council is unmistakeable in warning us:
“The retrospective provisions may also be subject to numerous legal challenges.”
That is exactly the opposite of what Ministers say they are trying to achieve. If the Government push ahead with retrospective application, they risk drawn-out legal challenge, more hearings and more uncertainty in cases that are already in the system. Measures explicitly brought in to help to reduce the court backlog will, perversely, multiply it. This is exactly the sort of illogical thinking that Committee stage is intended to weed out. I very much hope that the Minister will engage on this point.
Our concern is echoed elsewhere in the written evidence we received. Dr Samantha Fairclough’s detailed submission to the Justice Committee states clearly that the Government’s plan to give the Bill retrospective effect is
“unfair…will create significant additional work in allocating those cases…and likely result in appeals.”
JUSTICE makes a similar point, saying:
“Reallocation of cases already in the Crown Court caseload”
could lead to judicial review challenges, further hearings and additional
“burdens on both defendants and the prosecution”.
Even on a practical level, the amendments are eminently sensible. They seek to diffuse the legal landmine that the Government are in danger of stepping on, and would avoid yet more work for a system that is already under intense strain.
As I have stated, the amendments are nothing other than fair and reasonable—in fact, they are a minimal safeguard. My colleagues and I have been clear that we should not be going ahead with these reforms, but if Ministers insist, the very least they can do is to ensure that they operate prospectively rather than retrospectively. People should be judged and dealt with under the rules in force when they made their election, not have the rug pulled from beneath them halfway through proceedings. That is why I support amendments 25, 12 and 43, and I urge the Government and the Minister to accept at least one of them.
Joe Robertson (Isle of Wight East) (Con)
To the extent that it is necessary, I declare an interest in that I used to be a solicitor regulated by the Solicitors Regulation Authority and registered with the Law Society. I, too, support amendments 25, 12 and 43. They are not technical or political amendments, but constitutional amendments, and I hope that the Committee will consider them in that spirit.
Let me begin with some facts that I think we can all agree on. There are thousands of defendants who are currently part-way through the criminal justice process having made a formal, consequential and, they thought, irreversible election to be tried by jury in the Crown court. They made that election under the law as it existed when they made it—indeed, as it exists today. If the Bill passes unamended, that election, that choice, that right, which they have already exercised, will be taken away from them before they ever reach trial. It is a bitter irony that they have not yet reached trial because of the situation that the country is in. I accept that it is not this Government’s fault that we are where we are, but the state is the state, and the Government are responsible for it. For those people to be awaiting trial because of the state and then have their rights taken away from them by the state because of this Government’s actions goes far beyond disagreement on the Bill and on the principle of jury trial, no matter how important that is.
Alex McIntyre (Gloucester) (Lab)
I am sure that we are all looking forward to a rather long afternoon listening to the hon. Member’s speech. Does he agree that this is also about the victims, some of whom the Committee heard evidence from, who did not have a right not to have their freedoms taken away, did not have a right not to be attacked, do not have a right to elect, do not have a right to speed up the process, and do not have a right to an earlier trial, before it collapses when other people pull out of the process? While he is making a very important point about ensuring that we have a just system for defendants, does he agree that we must also ensure that victims are centred in this?
Joe Robertson
I look forward to spending the afternoon exchanging ideas with the hon. Member. Let me begin by expanding a little on what I had intended to say. I do not agree with the narrative that it is either the defendant or the victim who wins out, not least because not every defendant is a guilty person. I would also say that victims of the worst crimes, when they are waiting for a guilty person to be found as such, already face the backlog. They will not have a choice to go to the magistrates court, because those are not either-way offences.
The jury system will always take longer, and the people who have suffered the worst will always be subject to the longer jury trial. There is a reason why that is right: a jury is asked to take a decision on whether something happened, and its decision could mean that someone loses their liberty for a very long time. The criminal system in this country is tilted in favour of the defendant, so I am afraid that it is tilted in favour of people who commit heinous crimes. However, in our system we must believe that those who commit heinous crimes will be found out, convicted and serve the very toughest sentences.
Yasmin Qureshi
Does the hon. Member agree that trying to divide our citizens into victims and defendants—the good and the bad—is not the best way forward? Defendants can themselves be victims, and victims can become defendants. It is important that we have a system of principle that applies to everyone. There is an assumption that we should favour of the victim and everything should be stacked against the defendant, but all of us, as individuals, could become defendants.
Joe Robertson
I do. Perhaps I could encourage a Tea Room conversation between the hon. Members for Gloucester and for Bolton South and Walkden, in the hope that her wisdom might rub off on her hon. Friend when it comes to pitching this as a contest between victim and defendant.
Of course, on a technical point, it is not the victim or complainant who brings the case; it is the Crown—the state. Yes, there is a victim who must see justice, but in criminal law, the offence is seen as a crime against the state. In countries where there is not a monarchy, it is the people versus the defendant, because the defendant’s crime is an affront to the people. We have a monarchy in this country, and we know it is the Crown against the defendant.
Dr Mullan
Further to the intervention from the hon. Member for Bolton South and Walkden, it might be helpful to remind the Committee of the letter written by dozens of organisations representing women and girls. I was very clear that that letter actually represented women and girls as victims, but it absolutely makes the hon. Lady’s point about the criminalisation that is sometimes attached to women and girls as a result of coercion and other circumstances that they might go through, so they have an interest in ensuring that they have access to a fair trial. As she said, the division between the two is not as black and white as some Government Members seem to want to make it.
Joe Robertson
Yes. Let us get back to principles here. I support what the Government are trying to do in reducing the backlog. Of course, that is the right thing to do, and it benefits both those awaiting trial and the victims and complaints who want to see justice.
On amendment 25, my particular issue here the retrospective application of the law. Even if Members agree with the Government that either-way offences should go and that people who commit or are accused of committing a crime in the future should no longer have the right that people used to, the clause will apply that new law to things that have already happened. That is highly controversial and an affront to the common law legal system in this country.
Alex McIntyre
It is refreshing to hear a Conservative Member defending the European convention on human rights. Can he confirm whether it is now the Conservative party’s position to support the ECHR, or is it for withdrawing from it, as it was last year?
Joe Robertson
I continue to be grateful to the hon. Member for hanging on my every word, and I am grateful for the opportunity to expand on that. As I said, it is a basic tenet of English common law, and the ECHR effectively replicates what is already in our legal system. I am very happy to engage in a wide-ranging debate on the ECHR, but I fear that you, Ms Jardine, are also hanging on my every word and may stop me.
Dr Mullan
I absolutely think that we should leave the ECHR, because I do not like the mechanism that it operates under, but I absolutely support some of the rights and protections in principle that it advocates. I am struggling to see why there is a contradiction. There are lots of times when we might support elements of proposals without supporting the manner in which they are handed down.
Joe Robertson
Again, I invite a Tea Room conversation —although we may have to meet somewhere geographically in the middle of the Tea Room.
Any measure that materially and detrimentally alters the regime to which a defendant is subject in a way not foreseeable at the relevant time engages article 7. The Government’s own ECHR memorandum on the Crime and Policing Bill of April this year acknowledged that article 7 is engaged where the defendant could not “reasonably have foreseen” the application of a measure “at the material time”. At least we can agree that article 7 is at least engaged. A defendant who elected Crown court trial under the existing law could not have foreseen that that election would be nullified, not least of all because some such defendants have been waiting rather a long time—and that is the issue this Government are trying to deal with. I say again that I support what they are trying to do, although I disagree with some of the means they are using to achieve those aims. This is precisely the kind of unforeseeable retrospective detriment that article 7 exists to prevent.
While we are on the ECHR, I turn to paragraph 2 of article 6, on the right to a fair trial, and pending proceedings. Paragraph 1 guarantees the right to a “fair and public hearing” before an “independent and impartial tribunal”. The European Court has repeatedly held that the principle of the rule of law and the notion of a fair trial preclude any interference by the legislature—that is, Parliament—other than on “compelling grounds of the general interest”, with the administration of justice designed to influence the judicial determination of a dispute. This principle was established in a number of cases and applied domestically in Reilly (No. 2), 2014.
Where a defendant has an existing elected case in train, the application to them of the new clause 3 regime is precisely the form of retrospective interference with pending proceedings that article 6 prohibits. The Government must demonstrate compelling grounds of the general interest. Processing efficiency—the rationale advanced for these reforms—does not satisfy that threshold, in my view. I say again that we are talking about cases that are already in proceedings.
The Government’s own Criminal Procedure Rules 2025 identify, as part of the overriding objective, the recognition of the rights of a defendant, particularly those under article 6 of the European convention on human rights. Retrospective removal of the elected mode of trial is directly at odds with the overriding objective that the Government have enshrined in their own procedure rules.
I turn to the more recent Reilly litigation that went on between 2013 and 2015, because, although this is a historic principle, it is one that has been repeatedly upheld. The R (on the application of Reilly) v. Secretary of State for Work and Pensions litigation provides, in my view, the closest and most instructive domestic parallel.
In 2013, Parliament fast-tracked the Jobseekers (Back to Work Schemes) Act 2013 to retrospectively validate regulations that the Court of Appeal had already found to be unlawful. The Act was introduced before the Supreme Court appeal was complete. That is a direct analogy to the present situation, in which the Bill would alter the mode of trial for defendants who are already part-way through criminal proceedings.
In Reilly (No. 2), Mrs Justice Lang held that the 2013 Act was incompatible with article 6(1) of the ECHR, in that it had interfered with—
The Chair
Order. I gently remind the hon. Member not to stray too far from the subject under discussion. We have a lot to get through.
Joe Robertson
I am grateful for that indication, Ms Jardine, and I understand. It had interfered with ongoing legal proceedings in favour of the state, which is exactly what is happening here: legal proceedings are being interrupted in order to favour the state, removing from appellants what would otherwise have been a conclusive ground of appeal without justification by compelling grounds of the general interest.
The Court of Appeal upheld this conclusion, with Lord Justice Underhill emphasising the importance to be attached to observance of the rule of law. Mrs Justice Lang further held that the absence of consultation with the representative organisations, which I say has happened here too, and the lack of scrutiny by relevant parliamentary Committees may have contributed to some misconceptions about the legal justification for the retrospective legislation. She said that the Government’s ECHR statement to Parliament failed to explain that a departure from the legal norm—exactly what is happening here, in my view—was being sought.
Those observations plainly apply with equal force to this Bill. The parallels are direct: the Government are introducing new legislation that will alter the legal position of defendants who are already engaged. As in Reilly, no compelling grounds of the general interest have been articulated for why existing elected cases must also be captured. Lots of arguments have been made about why either-way offences should no longer exist, but not why that must be the case for people who have already made an election in that way.
Joe Robertson
I will go on to my next bit, which is even more relevant than my previous bit.
The Police (Detention and Bail) Act 2011 is Parliament’s most recent example of retrospective criminal legislation. It reversed the effect of the High Court’s decision in R (on the application of Chief Constable of Greater Manchester Police) v. Salford Magistrates’ Court and Hookway on the calculation of detention time under the Police and Criminal Evidence Act 1984, and did so by deeming the amendments always to have had effect. They had not.
The then Policing Minister described the matter as too urgent to await a Supreme Court appeal. This Government have made no case that the current backlog is so urgent that it must be all shifted to the magistrates court. It wants to tackle the backlog, yes, by changing the right to elect, but removing people who have made that election into a different court is something quite different. The Government have not argued that it is too urgent. That is unsurprising, because it is plainly not. Even in the emergency context of the Police (Detention and Bail) Act, when the Government faced systemic liability for unlawful detentions, the retrospective approach attracted intense criticism, just as I am criticising this Government. It was acknowledged in the explanatory notes that it was deliberately retrospective and it remains subject to potential ECHR challenge.
It is interesting to note that this legislation may also be subject to challenge, even if it leaves this place and passes into law. No equivalent emergency exists here; there is no systemic liability to reverse. The War Crimes Act 1991 is cited as a paradigm case of retrospective criminal legislation, allowing proceedings for war crimes committed in German-occupied territory in the second world war, notwithstanding that the defendants were not British at the time. Parliament considered that the exception was justified by the gravity of the crimes involved—they were heinous crimes—but even then the Act was controversial.
Alex McIntyre
I thank the hon. Member for giving possibly the longest wind-up in the history of wind-ups. I have two questions for him. First, does he recognise that both examples of retrospective legislation that he mentions were made by a Conservative Government? Secondly, what number does the backlog need to hit before he deems it urgent that the Government tackle it?
Joe Robertson
I think it is for the Government to set out the state of emergency. I do not accept that there is one; in fact, I do not think the Government are saying that there is one, when it comes to taking away a right that someone has already elected. We are not talking about getting rid of jury trials for a trial for either-way offences. I disagree with that; we have dealt with that, and we will go back to it. In this clause, we are talking about applying that to a number of people who have already made an election. It is for the Government to set out the emergency. I do not believe that there is one, and I think that they have not set it out because they do not believe that there is one.
Dr Mullan
As I pointed out, at some point in these proceedings, even the Justice Secretary did not think it necessary. When he was considering these matters, the Justice Secretary agreed that it was perfectly reasonable for it not to be retrospective. We are actually making an argument with which, at one point, the Justice Secretary agreed.
Joe Robertson
The shadow Minister is absolutely right. I invite the Minister to address that point head on in her speech. Even the Government themselves do not seem to be saying it is an emergency, whereas when any previous Government, Conservative or Labour, have tried to enact something retrospectively, they have at least made the case for an emergency. Heinous crimes committed during a war, loopholes that have left the state open to repeat, ongoing litigation into perpetuity—those are the sorts of threshold that have been met in previous times.
I hope that that goes some way to answering the question asked by the hon. Member for Gloucester. Let us hear from the Government why retrospective application in this case is so urgent. The answer cannot be about future cases; it must only be about those who have already elected trial.
I draw attention to a post on the UK Constitutional Law Association blog in July last year, which addresses and objects to the idea of using the Crown court backlog crisis to justify this provision. It is not an adequate justification that it is equivalent to wartime. Jury trials were not suspended even in the first world war, the second world war or the covid pandemic, all of which produced a more acute systemic issue than the one we have today. The present difficulties, however real they are—and I say again that they are real—do not plainly reach that threshold.
The Government’s own stated policy is that they must balance conflicting public interests and consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest with regard to ECHR. The Solicitor General’s answer to a parliamentary question set that out explicitly. For the sake of brevity, I will not repeat that answer. However, whatever views are taken about that balancing exercise, there appears to have been no such exercise on which to take a view. It is apparent in the Bill’s explanatory notes. No compelling justification for retrospectivity is advanced. It should be in the notes, and it should have been done already, but at least the Minister can address it now.
This has not been a case of closing an unforeseeable loophole. It is not an emergency requiring same-day legislation. It is not a response to a systemic injustice in wartime. It is a policy reform that operates perfectly well on a prospective basis if that is what the Government want to do, although I do not agree with abolishing jury trials. But the retrospective reach of clause 3 appears—I hope—to be inadvertent. The amendments would correct it.
The Government’s reform agenda could be delivered even if the amendments are made. Future cases would be fully captured by the new regime applied prospectively. Where defendants have already elected—and there will be relatively few of those over the lifetime of this law, compared with all the crimes that it will capture in future—their cases can be resolved under the existing system. It raises the question of what happens when we take a number of cases and put them straight into the magistrates courts now, rather than allowing the natural wasting away of the election to trial by jury for those who face what, today, are either-way offences.
The cost of honouring the amendments is minimal, even to the Government. The cost of not honouring them is significant. I will not repeat the arguments that I have already made. In my view, the Committee should support amendments 25, 12 and 43. They are constitutionally proper and correct, legally secure and practically proportionate. The Government have offered no principled justification for the retrospective application of clause 3. In the absence of such justification, the presumption against retrospectivity must surely prevail. The Government can still achieve the aims of the Bill, no matter how much I disagree with a number of them.
The Chair
I gently remind Members that we have a lot to get through today. If they could keep their comments succinct and non-repetitive, that would be very helpful to everyone.
The Minister for Courts and Legal Services (Sarah Sackman)
I will endeavour to do just that, Ms Jardine.
I thank my hon. Friend the Member for Bolton South and Walkden and the hon. Members for Bexhill and Battle and for Chichester for their amendments. Albeit with slight variations in wording, the purpose of amendments 12, 25 and 43 is to prevent the new allocation test for the bench division set out in clause 3 from applying to any cases received in the Crown court prior to the commencement of the clause.
Two of the amendments refer to cases in which the defendant has elected for trial in the Crown court. The hon. Members did not think that judge-alone reforms should apply in such cases. To be absolutely clear, clause 3 does not apply to trials that are already under way. It provides that the new provisions will apply to trials on indictment beginning on or after the specified day, which must fall at least three months after commencement. That means that cases in the existing Crown court caseload in which a trial has not yet begun may be considered under the new allocation test for the bench division. Cases already assigned to the Crown court will not be returned to the magistrates court because of these reforms. Where a defendant has elected for their trial to be heard in the Crown court, that case will remain in the Crown court. Cases in which a jury trial has already begun will always proceed with a jury trial.
The question was asked, “Why did the Government choose, through this legislation, to apply the procedural changes to the existing caseload?” The answer is simple, and I regard it as compelling: it will enable us to start tackling the backlog sooner, delivering swifter justice for victims, defendants and witnesses alike, without compromising defendants’ rights or fairness. “Retrospectivity”, which is a word that we have heard a lot in this debate, is a misnomer here. Cases that have already been assigned to one court jurisdiction, whether that is the magistrates court or the Crown court, will not be allocated to another jurisdiction. We will not be returning cases to the magistrates court when a defendant has elected for a trial in the Crown court.
Trials should be tried in accordance with the law as it stands, as at the commencement of trial. Critically, the application of what are procedural changes to existing cases is consistent with long-standing legal practice, as can be seen from judge-only trials for jury tampering under the Criminal Justice Act 2003 and the application of the increase in magistrates court sentencing powers in 2024.
I disagree with the hon. Member for Isle of Wight East: there is no application of article 7 in this context, because we are dealing with a procedural change. We are not engaging the criminal law as it applies to offences and to penalties. As a general principle, a trial should proceed in accordance with the procedural law in force at the time at which the trial begins. That is lawful and consistent with precedent. It is a practical step to ensure that courts can make best use of their available capacity, and it avoids two different procedures running in parallel in the Crown court as a result of arbitrary cut-off dates.
Implementing structural reform in our courts will take time. As I said in answer to the hon. Member for Bridgwater on the Justice Committee, we must pull every lever at our disposal to improve efficiency because the situation is urgent. Yes, on a number of occasions I have used the word “emergency”. A critique put to me by Members of the House, including the hon. Member for Bridgwater, and by the media is, “It is going to take you far too long to get this backlog down.” Well, that is why we must pull every lever, whether on investment, on efficiency or on these structural reforms. We cannot wait years for them to kick into effect. That is why we have made our choice. I urge my hon. Friend to withdraw her amendment.
Yasmin Qureshi
I will not say any more. I think we have discussed retrospectivity enough. As I have said from the beginning, retrospective legislation is always a bad idea, in any country. People are entitled to certainty about the law. If we start eroding that fundamental principle, God knows where we will stop. I do not intend to press the amendment to a vote, but I hope that the Government will consider the issue further. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
I remind Members that amendments are voted on at the point they fall in the Bill, so any Divisions on amendments 12 and 43 will come later.
Dr Mullan
I beg to move amendment 40, in clause 3, page 5, line 38, at end insert—
“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may appeal that decision if he can demonstrate that the circumstances of their case are such that trial without a jury would amount to a breach of the principles of natural justice.
(8) An appeal made under subsection (7), must not be heard by the same judge who made the original determination.”
This amendment would allow a defendant to appeal the decision to have a judge-only trial on the basis that it is in the interests of natural justice for the trial to be with a jury.
The Chair
With this it will be convenient to discuss the following:
Amendment 18, in clause 3, page 9, line 17, leave out “no” and insert “a”.
This amendment entitles a defendant to appeal against a judge’s decision to allocate the case for trial by judge alone.
Amendment 28, in clause 3, page 9, line 20, after “hearing” insert—
“only if the prosecution and defence have waived their right to the hearing”.
Dr Mullan
I rise to speak in support of amendment 40 in my name and to consider other related amendments. At this point, we are considering in more detail the allocation decisions, how they work in practice and the likely legal risks and pitfalls inherent in the new process.
I will begin by laying out the process that will exist. The Bill will introduce a Crown court bench division where cases are tried by a judge alone. To ensure that jury trials remain in place for certain crimes, only triable either-way cases that are assessed as likely to receive a custodial sentence of three years or less will be allocated for trial in a bench division. Indictable-only offences cannot be tried there.
To determine whether a triable either-way case should be allocated for trial in a Crown court bench division, a Crown court judge will assess whether the offence or offences to be tried are likely to attract a custodial sentence of three years or less. That decision will be taken at the first opportunity for the defendant to enter a plea in the Crown court using a plea and trial preparation hearing. If cases involve multiple defendants, judges must assess eligibility based on the highest likely sentence of any one defendant. Offences to which defendants have pled guilty are not included in the assessment of a likely sentence, and youth defendants are not exempt from the bench division.
The bench division will operate as a lower tier in the existing Crown court—that is important. The Bill will not create a separate jurisdiction or intermediate court. The usual Crown court procedures will apply in the bench division, including the appeal route from the Crown court to the Court of Appeal. Judges sitting in the bench division will also retain the full sentencing powers of the Crown court and may impose sentences of more than three years where appropriate, even if the allocation was initially based on the likelihood that they would not do that.
The Bill and explanatory notes are clear that no new appeal route is created for decisions to allocate a case to the bench division. It is important to set out the distinctions between different types of allocation decisions both now and in the future, if these proposals are passed. There are some elements of allocation decisions at present that we would all agree are not subjective, but based on offence classifications. I may be wrong, but I do not imagine there remains much debate about allocation decisions in those scenarios. Summary and indictable-only offences will be heard in the magistrates court or the Crown court based on that classification, though there are some exceptions that I will ask the Minister to clarify later.
Under the Government’s proposed reforms, there are similar black and white scenarios, with summary-only remaining with the magistrates and indictable-only going before a judge and jury. However, we will continue to have decisions on either-way offences, which consider the subjective—the not black and white—consideration of what the likely sentence length is. The consequences for defendants are entirely new territory for criminal defendants for the offences concerned.
Of course, defendants may disagree with allocation decisions at present, and may want to stay in the magistrates court, but the court may decide that they must be heard in the Crown court. However, importantly, as I understand it, a defendant cannot actually legally challenge that decision through judicial review. I am not a legal expert, and if the Minister receives advice that that is wrong, I would welcome that clarification, but as I said, my understanding is that judicial review would not be possible in that scenario. I also understand that it would not be the case in relation to the Crown court where the allocation would take place. Importantly, as I pointed out at the start, this will be taken in the Crown court, not some new or different court, so we should read across the rights and procedures that already exist in the Crown court.
As I understand it, triable either-way offences, if heard in the Crown court, are then in legal terms considered to be a trial on indictment. If a triable either-way offence is tried in the Crown court, it becomes a trial on indictment as if it were an indictable offence as per the other offences that are always indictable. Again, I am happy for the Minister to say whether that is the case, but that is my understanding of it.
Why is it important? Because there are constraints on the use of judicial review in relation to a Crown court trial on indictment. Under sections 28 and 29(3) of the Senior Courts Act 1981, no appeal by way of case stated or judicial review is possible in respect of matters relating to trial on indictment, so it will not be available with regard to any decision relating to the conduct of a Crown court trial on indictment. These measures, in this important way, are specifically taking away an existing legal right: the right to challenge an allocation decision. That cannot be right, fair or reasonable, and I am not even confident, as it is not mentioned, that I have seen in any of the Government publications related to this that it is something the Government have recognised they are doing.
It is also potentially a mistake in another way: in relation to the efficiency and smooth running of the courts that the Minister is seeking to achieve. At conviction, the defendant can apply for leave to appeal in the Crown court. At that stage, is the proposal that the defendant will be prevented from appealing the allocation by the judge, so a defendant might argue that a judge could act unlawfully on allocation with no appeal safeguard?
I have not had my attention drawn to an ouster clause. More generally, there is the provision that there is no specific appeal to the decision in isolation, but not an ouster clause in terms of the appeals that are allowed in the Crown court. I am confident that there will be legal arguments about that, at least to start with, until common law settles the matter. It would be extraordinary for the Government to introduce such a clause. We might find examples where a judge in the Crown court has completely incorrectly and legally unjustifiably allocated a case, and when that is brought up as part of the appeal at the point of conviction, be told that that is not a matter on which the court can have an opinion. I think that would be extraordinary.
Does the Minister think it would be right, if it forms the basis of an appeal against allocation happening after conviction, for the Court of Appeal to be constrained from having the power to return the case for trial by jury if it agrees the allocation decision was unlawful? I cannot believe that she would think that was right. Therefore, we create the exact opposite effect of what we are seeking to do—to make the best possible use of Crown court time—particularly in relation to barristers and other people working across the courts, by not allowing an earlier appeal. That is with regard to both appeals that take place and, more importantly, where a whole new trial may have to be ordered before a jury because it is found that the initial allocation decision was wrong.
Consider the scale on which that may happen—hundreds of cases may suddenly have to be retried. If, for example, the measures are in place for seven, eight or nine months, there is no onus or expectation regarding at what point a defendant—a convicted criminal at that point—might seek legal advice and then successfully choose to challenge an allocation decision. That would then be heard by a court, and then that court of appeal will make a ruling as to whether the circumstances under which that person was allocated were unlawful and a retrial with a jury is required.
If any other case has been allocated under those same circumstances that the appeal court determines are unlawful, every single one of those who had been convicted would have the right to say that the precedent has been set that the way they were allocated was unlawful and has to be retried. That could happen six months, a year or two years in. We are talking about a huge potential reallocation and retrial of all cases if the Minister insists that there should not be an appeal on the right of the allocation decision.
A separate initial safeguard—an appeal against allocation at the stage that it happens—is not only the right thing to do to ensure that an existing right is not eroded, but the more efficient way to approach these things. The amendment is sensible, rational and will provide greater confidence in the new court that the Minister is insisting on creating, and its processes.
I ask the Minister to clarify an important matter of law in relation to the allocation decisions in the first place—just the sort of thing that might be appealed if it is not clarified by the Minister during the passage of the Bill or through amendments to the legislation. We are clear about the idea of summary offences that go to the magistrates court. Indictable-only offences will have a trial with a judge and jury. In a number of cases, however, the offence is triable either way, but provisions that this House has introduced mean that in particular circumstances it can be tried only on indictment.
Some examples of that are three-strikes class-A drug trafficking offences, three-strikes dwelling burglary offences, dwelling burglaries involving violence or threats of violence, and the minimum mandatory sentences for firearms offences. Those were decisions taken by Parliament to say that, while the offence more generally could be tried either way, these cases in those circumstances are too serious to be heard by a magistrates court; they must be heard by a judge and a jury.
What are the consequences of the Bill on those scenarios? Will the Government respect the will of Parliament in relation to considering those cases to be more serious, as the Government accept for those cases that retain a jury trial, and that they should therefore remain with a jury trial? It is important that we have clarity on this issue specifically because, as I said, it is something that would almost certainly be subject to appeal if clarity is not provided.
I finish by reiterating the point that, if the Government refuse to accept our amendment, they will be actively legislating away a right to appeal allocation decisions that currently exists in our system. They will be actively choosing to do that if they are unable to insert a similar right through other means, such as through our amendment or an amendment at a future stage. I think it is important that the Committee reflects on that, and I hope the Minister can agree.
Jess Brown-Fuller
I will speak to amendment 18, tabled in my name, which seeks to ensure that a defendant has the right to appeal against a judge’s decision to allocate a case for trial by judge alone, whether because of the likely sentence length or because the case is assessed to be complex or lengthy. I will also be supporting amendment 40, tabled in the name of the shadow Minister, and amendment 28, tabled in the name of the hon. Member for Bolton South and Walkden.
As stated, triable either-way offences, with potential sentences of up to three years, could be tried in the new Crown court bench division swift court. I argue that cases where a defendant may receive a sentence of up to three years are not minor offences; we are talking about life-changing sentences. Often in this category, we are talking about possession with intent to supply, actual bodily harm, death by careless driving, or section 20 unlawful wounding or grievous bodily harm, including where there is a grave injury. We must safeguard those sorts of cases against rough justice—an issue that much of the legal profession has warned could arise. It is vital that the Government provide an appeal system against decisions on whether to allocate a case for trial in front of a judge or jury.
I would like some clarification from the Minister: when we talk about summary offences, indictable offences and then triable either-way offences, are the measures being introduced in this Bill removing the concept of triable either-way offences? Are we then moving all those categories of offences into what are described as summary offences—these offences that carry long, life-changing sentences?
Briefly, amendment 28 would add a procedural requirement, but it is an important one because it would mean that the court could not simply decide, on the papers, to move a case to a judge-only trial; both parties would have to have first been given the opportunity to argue the point at a hearing, and only if both sides expressly gave up that right could the court proceed without one.
That goes back to the point that I raised earlier about the Canadian model, which I know the Government have been exploring and have spent time in Canada looking at. There, people have the right to elect a judge-only trial, so there is still an element of choosing what that looks like. That is not what this Government are proposing; they are proposing that there be no choice in the system, and that there be no legal precedent for it. I would appreciate the Minister’s answer to that.
Yasmin Qureshi
I will speak to amendment 28, regarding page 9, line 20 of the Bill. Essentially, the amendment states that, if the prosecution and defence waive their right to a hearing, the court can then make a determination under proposed new section 74AB of the Senior Courts Act 1981. That proposed new section, which will be introduced by clause 3, contains provisions regarding what the court must look at when determining allocation, such as whether a jury trial is to be declined. It is a fairly self-explanatory amendment, but a vital safeguard.
Rebecca Paul
I will speak in support of amendment 40, tabled in the name of my hon. Friend the Member for Bexhill and Battle, amendment 18, tabled in the name of the hon. Member for Chichester, and amendment 28, tabled in the name of the hon. Member for Bolton South and Walkden.
Before I get into my speech, I think that the hon. Member for Chichester raised a really interesting point about whether we will ever really talk about “triable either-way offences” going forward, if these changes go ahead. In effect, we will have the rather strange situation—to take the example of category 2 sexual assault or death by careless driving—of either summary offences or those with a full Crown court and jury. It will be interesting to see how that all flows through in the definitions. That is an interesting debate, but probably not one that everyone wants to have right now. I will move on from such interesting questions, and I can tell that the Minister is delighted that I have decided to do so.
Linsey Farnsworth (Amber Valley) (Lab)
This is a decision that magistrates make every day. Every sitting day, they look at allocation, and they do not put their finger in the air to decide what the sentence might be. The Sentencing Council provides guidelines for each individual offence. I know that the Conservative party does not like the Sentencing Council and has at times called to get rid of it, or Conservative Members have, in particular the former shadow Justice Secretary who has now moved to the Reform party, the right hon. Member for Newark (Robert Jenrick). The sentencing guidelines, however, are used by magistrates every day. Sentencing guidelines are also already available to Crown court judges. Does the hon. Lady accept that this is not something that judges will do willy-nilly? There are guidelines and factors that have to be taken into consideration, which is a safeguard in itself to ensure a fair decision.
Rebecca Paul
The hon. Lady is absolutely right that magistrates are doing that now, frequently and—as far as I am aware—fairly well, but we have to remember that they are doing it for low-level cases. In fact, their sentencing powers have increased only recently. The key point is that we will have an additional process. The magistrates do it, but now we will have this additional process at the Crown court level to decide between judge only and jury.
Obviously, the sentencing guidelines and all the things we have just set out would be entirely relevant to that process and will factor in. I will go through a that in a bit more detail, so I hope the hon. Lady will bear with me. I will of course let her intervene—that would be really helpful. She clearly has a huge amount of experience in this area, and I want everyone to feed in. I am asking questions about how this will work in reality, so it would be really good to draw on everyone’s experience. The Crown court deals with sexual assault and other more complex cases and, as she knows, the sentencing has to take into account things such as victim impact, so it is lot more difficult to estimate the sentence. Let us continue the debate, because it is very helpful to have this discussion.
To suggest that a judge in the plea and trial preparation hearing can undertake that assessment accurately and quickly off the back of the information that they have at that point, potentially on a paper determination without a hearing, is unrealistic. That could be very difficult for them. I will give a few examples, and again I am very happy for people to intervene or give their views, because we need to work through the nitty-gritty of how the measure will work in reality.
For category 2 sexual assault, the achieving best evidence full transcripts of the complainants’ evidence are often not available. Instead, the court has to rely on a written summary, but my understanding is that that information is needed to provide an accurate and realistic estimate of the likely sentence. How is it proposed that that will be done in practice for allocation? Will the judge watch the videos of the complainants’ evidence for an hour or two before deciding? If the case hinges on CCTV footage, is it proposed that the judge watch that before making the allocation decision? Those practical points do not appear to have been considered in preparation for the Bill, although the Minister may have all the answers and I obviously look forward to hearing how she thinks the process will work in practice.
It is not sufficient just to say that the judge will decide the likely sentence length without ensuring that they have the information they need to do that properly, particularly given the magnitude of the impact of the allocation decision. I therefore ask the Minister whether anyone has calculated how long it might take for the judge to go through the various videos and footage before the PTPH to get the information they need to make an allocation decision.
It is important to remember that victim impact is often a significant factor in sentencing. Is it proposed that victim impact statements will be relied upon at the point of determining an allocation? What happens if, at that point, the impact is not yet known? For example, the complainant might still be in hospital, medical evidence might remain outstanding or the psychological impact might not be known for many weeks or months.
On the face of it, we probably all thought that a judge deciding whether the likely sentence will be more than three years sounded straightforward. We would think that they just look at the sentencing guidelines, but I am not sure it is that straightforward. Once we start thinking it through and listening to those working in the justice system—I have spoken to people about this—we soon realise that it is far from simple, especially for complex cases such as sexual assault. The judge does not magically know the likely sentence; they need to understand the facts, the detail of the alleged offence and the impact on the victim before they can even begin to do that accurately. If they get it wrong, which is increasingly likely if insufficient information is available to them, that could result in defendants being denied a jury trial when they should have had one.
That brings me on to my next concern. How long will it take on average for the judge to do all this? Has that been factored into the Crown court saving of 27,000 sitting days? Has the increased time that the magistrates will need to spend on this, due to the complexity of cases, been factored into the increased demand of 8,500 sitting days? We also need to bear in mind that the allocation process that the magistrates undertake under the current rules will also get more complex once the sentencing powers increase up to two years. There will have to be allocation decisions for more complex offences such as sexual assault and death by careless driving. Do magistrates have the expertise to accurately assess the likely sentence in those types of cases to adequately assess victim impact?
The Government’s approach sounds simpler on paper, but I hope I have demonstrated that in reality I am not sure it is once we delve into it. These proposals add a not insubstantial amount of work simply to decide where to allocate the trial, essentially undertaking almost a mini trial to review the evidence before the allocation can even be decided. That does not sound time saving to me. It is the wrong way round. We expect the judge to make a judgment on sentence before the trial has even happened, which could change the type of trial the defendant is entitled to. That is fundamentally wrong. It is a flawed approach that will lead to bad outcomes for defendants and complainants.
Linsey Farnsworth
The magistrates court goes through that process. The process of allocation to the Crown court bench division essentially mirrors what already happens in the magistrates court, and that is quite a straightforward procedure. It often takes less than five minutes—virtually always less than five minutes. Because the prosecution makes its representations on the Crown’s case, it sits highest. For the most serious version of the offence, what would the likely sentence be, based on the sentencing guidelines that I have already mentioned? That will be the case in the Crown court. There will be a prosecutor in the Crown court standing up and saying, “The Crown’s case at its most serious does not warrant a sentence above three years. We therefore think it can stay in the Crown court bench division.”
For it to be a big argument, the defence advocate would need to argue that their client deserves a much longer sentence than the CPS says they deserve, if all the most serious elements of the case are proven. That strikes me as a very unusual argument for a defence barrister to make—that they would suggest their client deserves a longer sentence. That is what we are talking about here. How often is a barrister going to argue that their client deserves a longer sentence?
If the defence barrister convinces the judge, the judge might think, “Actually, maybe it does deserve a longer sentence; we will have a jury trial”, and that person is convicted after trial. Then there is the plea and mitigation stage. At that point, the defence barrister will try to argue, “I know the case is now proven, and I know that I said it deserved longer than three years, but actually, even though the case is proven, they deserve less.” That would be a very strange position for a barrister to be in, and I think they would be at risk of misleading the court at some point along the way, which is something they very much would not like to do. I can reassure the hon. Member that in my experience these arguments just do not happen.
Rebecca Paul
It is really helpful to hear the hon. Member’s perspective from her in-depth knowledge and experience, but I would challenge one aspect of her point: I might argue for a longer sentence if it meant I was more likely to get a jury trial and be found not guilty. Allow me to give an example. If I had created an offensive social media post, I would know that, if I could make my case to a jury, they would be much more likely to use their discretion and compassion and accept the human foibles that we have. They might well say, “This person did not intend to cause any harm—not guilty”. I therefore disagree with the hon. Member; I think she will find herself in a situation where—it sounds bizarre—people will argue that they should get a longer sentence in order to go to jury, so that they have a chance of being found not guilty and clearing their name.
Linsey Farnsworth
Please allow me to finish.
It is because barristers have a duty not to mislead the court. If they are saying to the judge, “I know my client is not really going to get more than three years, but I am going to argue that they are because I want the jury trial,” then that would be very much against the requirements on barristers.
Rebecca Paul
That is not the case. The hon. Lady has just set out that it is about setting out the worst possible cases with respect to the sentence—so they absolutely could do that. It is exactly what will happen. They will always be looking to achieve the best for their client—particularly if their client is not guilty. Let us remember that we are talking about some people who will not be guilty.
Again, they know that if they have done a social media post—and we have seen that people have gone to prison for these things—they are much more likely to not go to prison if they end up in front of a jury. However, if they end up in front of a judge—my goodness me—there is a much higher chance that they will go to prison.
Dr Mullan
As I said at the outset, there is a fundamental safeguard of people being able to have a judicial review of the allocation decision. It is all well and good for the hon. Member for Amber Valley to talk about the scenarios where it sails plainly, everyone is in agreement and it is all good. However, if it did not, at the moment, a defendant has a right to a judicial review of the decision to allocate. If these proposals go through, they will lose that right and have no ability to question legally the decision to allocate—even if it was a factual error of the law. We are not even talking about a subjective element. Let us say that the judge just gets it completely wrong, misunderstands the facts presented to them and allocates incorrectly. At the moment with magistrates that person could go straight to judicial review and the case does not proceed as was intended. However, we would now lose that right.
Rebecca Paul
I thank my hon. Friend for making that important point. Returning to this debate, we are going to see real problems from this approach to allocation. I am glad that the hon. Member for Amber Valley thinks that it is not an issue—it sounds as if she thinks that all the issues I am raising are not issues. However, she will find that there are some KCs out there that will say that some of the things I have raised are actually very much going to be issues.
I ask the Minister in her summing up to go into some of the detail about how this would work in practice. As I said, it sounds really straightforward—“Oh, we just decide whether it is more or less than three years”. However, it is just not that straightforward.
We also have to bear in mind that sometimes, as a case develops, the prosecution might substitute a lesser charge for trial, as sometimes happens—for example, a section 20 grievous bodily harm instead of a section 18 GBH, an affray instead of a violent disorder, or handling instead of robbery—and that changes everything.
What happens when they do that? Will it go back through the reallocation procedure every time? If so, has that been factored into the estimates on sitting day savings? I am sure that the Minister is very much enjoying me constantly going back to the estimates and impact assessment, but it is really important that we are clear about what has been factored in and what has not.
In the light of the number of questions about how this will work in practice, it is surely plain to see why it is so important that the defendant has, as a bare minimum, a right to appeal any such allocation decision by a judge. There is so much scope for error in having a judge perform a sentence estimate at a point before all the facts and evidence are known, or without giving them sufficient time to digest the information, that it would be completely unfair to not include an appeal route. Even better still, I would urge the Government to rethink the whole Bill and not do away with the right to elect for a jury trial at all; then we would not really have to worry about any of what I have just raised.
Sarah Sackman
Once again, I thank the hon. Members for Bexhill and Battle and for Chichester and my hon. Friend the Member for Bolton South and Walkden for tabling the amendments. I will seek to address each of them in turn, as well as the other points raised, in particular by the hon. Member for Reigate.
On amendment 40, let me begin by emphasising that I do share the view of the hon. Member for Bexhill and Battle that we have to uphold the principles of natural justice in our system, which encompass the right to a fair hearing, rules against bias and the duty to act fairly. He well knows that I regard timeliness as an important aspect of fairness and the effective administration of justice. Unnecessary delay places strain on all court users, which is what the Bill—primarily in clauses 1 to 7—is designed to address.
Members will have also heard me say that the fairness of the trial—the fundamental elements of fairness and natural justice—does not depend on the mode of trial chosen. I reject the characterisation by the hon. Member for Chichester of a judge-only trial as rough justice. A trial conducted without a jury is no less fair by reason of that alone.
Jess Brown-Fuller
I accept that it might be a mischaracterisation to describe it as rough justice, but does the Minister agree that in this case it will be summary justice, which by its very definition is rougher around the edges, because it is summary?
Sarah Sackman
I am happy to sit down with the hon. Member again to clarify what she means by summary. There is no curtailment of the trial. All the elements of the trial happen in exactly the same way: the prosecution presents its evidence; the defence presents its evidence; witnesses are cross-examined; the evidence is tested. It is not summary in that sense—but if she wants to come back on that, I am happy to give way.
Jess Brown-Fuller
I appreciate the opportunity to come back on that. That poses another question: if judge-only trials are going to take the exact same amount of time, how will this speed up the court backlog?
Sarah Sackman
As we have heard extensively in evidence, whether from Sir Brian Leveson, the three experienced judges or our international comparators, including the Attorney General for Ontario, it does save time in a number of ways. The most compelling characterisation I heard was from Clement Goldstone, the recorder of many years’ experience from Liverpool. He said:
“in my experience it is wrong to confine the savings, or the assessment of the savings, to empanelling and swearing in a jury. That is where it begins.
Every sex case, I suspect probably nationally, now comes before the court with a direction that there will be no witnesses before 2.15 pm on the first day or, if the case is starting at 2.15 pm, until 10.30 the following morning. If there is no jury, there is no bar to the evidence starting within 10 or 15 minutes... Half a day, at least, will be saved on every sex case that is heard in the Crown court. That is before you start with time lost as a result of jury sickness, or a juror being delayed”.
He went on to say—and we heard this from the Canadian witness as well—that
“It is also easier to call a witness out of order if you are not trying to take a jury through in the order in which the evidence would otherwise be called.”––[Official Report, Courts and Tribunals Bill Public Bill Committee, 25 March 2026; c. 76, Q161.]
He said, in terms, “I do not accept that there will not be a significant amount of time saved.”
It is not right to call a judge-only trial summary. It is not right to call it rough justice, and it is also not right to say that time will not be saved. Substantial time will be saved.
Several hon. Members rose—
Sarah Sackman
I am going to make some progress.
Amendment 40 seeks to introduce an appeal route. The practical effect would be adding an additional interlocutory stage to proceedings, increasing the risk of delay. That risks undermining the efficient progression of cases without providing any corresponding benefit in terms of fairness. As I have stated when discussing similar amendments tabled by the hon. Member for Bexhill and Battle, decisions about mode of trial are procedural case management decisions rather than determinations of guilt. As a general rule, such decisions are not subject to a specific route of appeal, in order to promote procedural finality and to avoid delay.
Sarah Sackman
There is no specific ability to appeal, but of course, a decision in relation to mode of trial could be subject to judicial review. Those familiar with the judicial review process know that that is a high bar. We are talking about public law grounds of vires—whether it is within the scope of the statute—and rationality. It is a high bar, but there is no unique route of appeal. That is in order to promote procedural finality and to avoid delay when we are talking about the allocation decision itself.
I reiterate that several important safeguards are in place to ensure fairness and transparency. Both parties will be able to make representations on mode of trial decisions, and judges will give reasons for their decisions. Of course, the wider system of appeal—that is, to the substantive determination on a verdict and, indeed, on sentencing—remains in place.
Dr Mullan
I think the Minister would accept that it is a high bar, but also that it is sometimes successfully crossed. Allocations are sometimes successfully challenged, which demonstrates just how important this provision is. If it is there and is used when things have gone so significantly wrong as to meet that high bar, it is vital that the same test is available in extreme scenarios, but it will not be available in relation to allocation by the Crown court.
Sarah Sackman
I think I have been as clear as I can be. If a mode-of-trial decision is so out of order or unlawful that it is challengeable by way of judicial review, it can be challenged in that way.
Dr Mullan
This is very important. I have read the legislation to the Minister, and highlighted the point that a non-conviction element of the Crown court proceedings cannot be taken to judicial review. The Minister should either say that I am wrong about that and that something like an allocation decision in the Crown court can be judicially reviewed, or that I am right and that what she has just said means there should be something that is not there. The whole Committee needs to know whether I am correct in saying—I believe I am—that that sort of hearing from a Crown court cannot be judicially reviewed.
Sarah Sackman
My understanding, and I will happily correct the record if I am wrong, is that there is no bar to judicial review in that context. However, there is not a specific route of appeal, which is what amendment 40 seeks to allow. To reiterate, several important safeguards are in place to ensure fairness and transparency.
Sarah Sackman
I am going to make some progress.
Both parties will be able to make representations as I have said. We also recognise that cases can and do evolve as they progress through the courts and a number of examples were raised. Clause 3 makes clear provision for cases to be reallocated between the bench division and jury trial where the seriousness changes. That process is set out specifically in the legislation, and for that reason I urge the hon. Member for Bexhill and Battle to withdraw the amendment.
Mr Paul Kohler (Wimbledon) (LD)
The point is that judges can make mistakes. That is why the Attorney General can appeal unduly lenient sentences. Why are the Government saying there cannot be a challenge in this case when a mistake has been made? Why are they not allowing an appeal when a mistake has been made as to how long the maximum sentence might be?
Sarah Sackman
As I am about to come on to, not least to address the very fair questions raised by the hon. Member for Reigate—she knows that I do not mind answering questions, because we have a constructive approach—the assessment designed to take place at the PTPH is to give an indicative assessment of sentence; it is not a final determination of sentence. That final sentence may exceed the estimate that is reached, or it may be lower. This is not intended to be a mini-trial, and that is consistent, as we heard from my hon. Friend the Member for Amber Valley, with what happens in the magistrates court every day.
Sarah Sackman
Of course nobody is infallible in this process, and mistakes are made. But I caution that there is a distinction between taking a decision that is totally outwith the legal authority the statute provides the decision maker with and an indicative assessment of likely sentence, which turns out not to be the precise result that we end up with. That does not invalidate the initial assessment or necessarily mean it is mistaken based on the representations that were before the judge at that time. We therefore think that introducing a specific route of appeal to the allocation decision—I am not talking about appeals to the ultimate verdict —introduces a needless interlocutory stage that will only add to delay, in a system where we are trying to bring them down.
Sarah Sackman
I am going to make some progress.
Amendment 18 would introduce a new right to appeal allocation or reallocation determinations made under proposed new sections 74A and 74B. The Government do not consider that necessary or appropriate. As I said, mode-of-trial decisions of this kind are procedural case management decisions. They are intended to ensure that cases are tried efficiently and fairly and managed proportionately. As a general rule, such decisions are not subject to a unique route of appeal.
Dr Mullan
Just so we are really clear, I have met Supreme Court judges and they tell me that they go back through discussions and debates about legislation to understand the intent or will of Parliament. The Minister said there will not be a separate route of appeal and referred to existing and ordinary rights to appeal. Does she therefore think that it is the will of Parliament that people at the point of conviction should be able to raise questions of allocation, or that judges at the point of conviction should not consider questions of incorrect allocation?
Sarah Sackman
I am not quite sure, in that hypothetical, where those arguments would take us. As I said, the allocation—whatever the constitution of the Crown court, it is still the Crown court—guarantees a fair trial. So I am not sure what this proposal does in that context to underline the fairness of what has been determined.
What I would say to the hon. Member for Reigate is that the intention here is that this process is neither new nor complex. As others have said, it broadly mirrors the allocation exercise in the magistrates court, which already requires a balanced assessment of the case, including matters properly advanced by the defence. The hon. Lady is absolutely right that the judge at the PTPH stage in the Crown court will hear the prosecution’s summary of the alleged facts and apply the relevant defence-specific sentencing guidelines to assess harm and culpability to determine in what category that places the case. When one examines the sentencing guidelines, although they are rich in detail, it is often pretty black and white as to whether someone is within the three-year territory or quite obviously above it in cases that are not themselves indictable-only. The judge will then consider any clear aggravating or mitigating features, which will allow the judge to determine where the case will likely fall within the sentencing category range. Inviting representations from the parties at PTPH is not an open-ended process, a mini-trial or a sentencing hearing. As I said, we are trying to give an indicative assessment of likely sentencing length, not what the actual sentencing length will be.
Rebecca Paul
I apologise if the Minister is about to come to this, but is she saying that she does not expect this process to take very long?
Sarah Sackman
It is not just me saying that; Sir Brian Leveson and the independent review of the criminal courts take that view, as did the three senior judges we heard from in Committee, who thought that allocation and reallocation decisions—this is in relation to reallocation decisions, but in some ways there are parallels—could often be appropriately made on the papers, as the judge would have sufficient information in front of them, including written representations from the parties.
The hon. Lady asked how we factor in assessments of the time savings. That is predicated on the idea that this is not a mini-trial and is not intended to be a mini-hearing in any sense. In the magistrates court, there is an indicative assessment that informs the applications of the sentencing guidelines to an allocation decision, and the same thing will happen in much the same way here, with highly experienced judges. That will happen as part of the PTPH, so this is part of a hearing that already happens. The hon. Lady was right to ask me about that, because there was some confusion or challenge over the idea that we are introducing a new hearing or a new stage. We are trying to make this efficient, so that is not the intention at all.
Rebecca Paul
Is the Minister saying that judges will not be required to review CCTV footage or understand the impact on the victim? Is she saying that that is not required in this process?
Sarah Sackman
I will not stray into judicial discretion about how they would do this, but I think that that is highly unlikely. One is assuming that the prosecution’s facts in their case summary are in their favour. That does not require looking behind every element of the evidence to substantiate whether the facts are proven or not; that is for the trial. However, the judge may want to look at something when the parties present their case on allocation, and I am not going to gainsay that. But I think that what the hon. Lady describes is highly unlikely.
As I said, appeals in the Crown court will otherwise remain unchanged. I have dealt with that, and I ask the hon. Member for Chichester not to press her amendment.
Amendment 28, tabled by my hon. Friend the Member for Bolton South and Walkden, would add into the reallocation test in clause 3 the ability for parties to require the court to hold a hearing. That would be inefficient. I refer again to the three senior judges who told this Committee that reallocation decisions can often be made appropriately on the papers. Why should judges be required to use up court time where that may not be necessary? This is simply not going to be the laborious process that has been suggested.
Forcing judges to hold hearings if they are considering reallocation runs counter to the intent of the clause. Delays to proceedings can and should influence a judge’s decisions over whether to reallocate a case, and by forcing hearings and delays, parties would effectively be tying a judge’s hands. There is also nothing to stop a party requesting a hearing in that context.
It is fundamental to the proper functioning of the courts that judges can make decisions impartially and independently. Like others across the House, I have full faith in our judiciary to make those informed and robust decisions. I therefore urge my hon. Friend not to press her amendment.
Dr Mullan
We are now being asked to vote in a totally unsatisfactory situation when it comes to the facts of how this legislation will operate in two very important regards. I put it to the Committee that there will be an erosion of the right to judicially appeal an allocation decision that currently exists in respect of magistrates. The Minister said she thinks that that is wrong, but we will have to vote one way or the other on the basis that either the Minister is correct or I am correct. A Member said from a sedentary position—this is not a criticism of him—that the Minister will come and correct the record, but we will have already voted when the record is corrected. The Minister has given a view that there will be a right of appeal through judicial review to an allocation decision in the Crown court, and that is a fundamentally different scenario to one where someone does not have that right. However, we will be asked to vote on that today, without having absolute certainty, and we will perhaps be told afterwards, “Oh no, you don’t actually have that right.” I am not sure how Labour Members are comfortable or confident voting against a right that we are seeking to give people, without having absolute clarity about what the Minister has said and whether she is correct. It is extremely unsatisfactory for this Committee to be asked to vote on that matter without absolute clarity.
Secondly, similarly, the Minister did not clearly answer whether, as a consequence of that, people would be able to pick the issue up in an ordinary court of appeal. To another point raised by Opposition Members, the Minister said that we are not talking about errors in the law or where judges have clearly strayed outside of legislation. How does she know that? How does she know what future mistakes a judge might make? A judge may do exactly that, and allocate a decision completely and utterly incorrectly, outside of the law and what Parliament intended, and the Minister will not tell us whether that could be picked up in a court of appeal.
That, again, has important consequences, not just for the rights of the person who may be subject to that kind of egregious mistake in a legal proceeding without any route of recourse; it will also undermine the whole system if people are appealing and challenging these decisions and there is all this uncertainty.
Mr Kohler
I hate to break the consensus on the Opposition side, but I really do not see how we can say that judicial review is an appeal, and therefore why it is caught by this legislation at all. Judicial review is not an appeal of a decision; it is a review of a process. I do not think it is a concern.
Dr Mullan
As I said, our preference is for an appeal. The Government could say, “We are not going to add additional rights that do not exist; you do not get a right of appeal on allocation by a magistrate, but you do have a right to judicial review.” But the Minister cannot say with confidence that we do or do not have that. That is extraordinary.
Dr Mullan
Sorry—with confidence. The Minister says she is happy to go away and double-check. She should know for certain whether people have a right to a judicial review of an allocation decision in the Crown court, as in the magistrates court. She should be able to tell us that with absolute certainty.
I have been the Parliamentary Private Secretary for a Minister, passing notes between officials and the Minister. That is why debates are structured in the way they are: earlier in the debate, someone raises a point of importance in their opening remarks, and that gives time to the Minister, working with their officials. I absolutely accept that the Minister will not always have things at the tips of their fingers, but that is why the officials are there, to liaise with the Department. I am not criticising the officials, but why have we not had a direct note so that the Minister can get up and say, clearly and confidently, with absolute certainty, that there is a right of appeal to a Crown court allocation decision?
Siân Berry (Brighton Pavilion) (Green)
I have to add my voice to the point that this is an unsatisfactory situation. We have heard time and again from the Minister that the decision about allocation will be made based only on the length of sentence, but in proposed new section 74C(7)(a) to (g) on reallocation—(g) allows for any other matters—there are many points that are quite subjective where decisions could be made on reallocation, and that could have a similar impact on someone’s life. I do not think we have all the answers we need about how this will work.
Dr Mullan
I absolutely agree. We will go on to discuss reallocation, and the hon. Member anticipates the points I was going to make. The reallocation decision is even more of a minefield, with all sorts of subjectivity and challengeable elements. I look forward to discussing that.
The PPS muttered earlier that I am patronising the Minister, but I think the Opposition are being patronised. We are being asked to vote on something where we have not had absolute clarity.
Sarah Sackman
I appreciate that the Opposition disagree with what we have decided to do in this legislation. There is no specific route of appeal to challenge the mode-of-trial allocation decision. If a defendant and their representatives consider it to be so egregious as to be unlawful, they can challenge that by way of JR, but I would suggest that that will be a very difficult threshold to reach and unlikely to get permission in the administrative court. The mode-of-trial allocation exercise involves an indicative assessment of likely sentence—a judgment on the basis of indicative factors—so establishing that the conclusion that has been reached is so irrational is unlikely.
I do not think I am being unclear. The hon. Member for Bexhill and Battle has heard it three times; he does not like it. I am doing my best.
Dr Mullan
Does the PPS want to intervene? No, I did not think so.
As we have agreed, judicial review exists for an allocation decision by the magistrates. The Minister has quite rightly set out that that is a very high bar and is not a right of appeal. In that regard, the Minister is fair to say that our amendment is not directly comparable. I put it to the Minister, and I made this point earlier, that it would be the Crown court making an allocation decision. It is not allowed, as it is in a magistrates court, to use judicial review to challenge a decision made, like at the PTPH, on allocation. That is an incredibly important point that all Members must understand. If the Minister is going to say that people are not allowed a general right of appeal—we do not agree with that, but it is a legitimate argument—that is one thing. But if the Minister is saying that people are going to lose the high bar of challenge that exists at the magistrates court, that is incredibly important. We need to understand that because, as I have said, it is a high bar, but it exists for a reason.
Dr Mullan
Again, this is why the Minister needs to clearly articulate whether or not we can—[Interruption.] The hon. Member for Amber Valley is saying that the Minister said that we can. But what will the Minister do if we all vote tonight on the basis that the allocation decision can be judicially reviewed? The Minister is asking us not to have a view on it, not to consider it, but to vote on the question of appeal in relation to allocation decisions on the basis that she has told us that they can be judicially reviewed. Will the Minister think that that is in any way satisfactory if what she has told us proves wrong? I do not see how she could possibly think that that would be satisfactory.
Alex McIntyre
The Minister has been really clear in her response. This morning, the shadow Minister was extolling some intellectually coherent arguments that the Conservative party has now discovered. I wonder whether he might return to them for this afternoon’s session.
Dr Mullan
I think that wanting defendants to have the ability to challenge allocation decisions as they stand under a new court is pretty intellectually coherent. I am arguing that these are potentially significant, consequential decisions for defendants, and at the moment, as the Minister has explained, we all agree that there is a high bar for judicial review. I am not confident, and the Minister has not given me confidence, that the judicial review element absolutely exists.
The Minister has talked about appeal; she is right that there is no right of appeal for the allocation decision at the magistrates court, but there is a right to judicial review and I am not sure that there is in this clause. It is unsatisfactory that we may have to vote on it.
Paulette Hamilton (Birmingham Erdington) (Lab)
I am no expert, but I find this argument fascinating. What would it take to make the shadow Minister believe what the Minister is saying? I do not understand this subject, except for everything that I have read, but the Minister has been absolutely clear. What does the shadow Minister need to make it clear so that we can move on to another point?
Dr Mullan
If the Minister wants to intervene on me and say, “I am absolutely certain that there would be a right to judicially review the allocation decision by a Crown court,” I will be satisfied. I am asking for the Minister to stand up and say that she is absolutely certain.
Sarah Sackman
If, at a PTPH, a judge makes an error of law, that is amenable to judicial review. Full stop.
Dr Mullan
I welcome that clarity; it will be interesting to see what happens as a result of that. I take what the Minister has said in good faith, and assume that she would not say that unless she was certain.
That point is about the question of judicial review. The Opposition believe that there should be a right of appeal separate to that, for two reasons. First, it is fair to the individual, and, secondly, if we do not have an initial right to appeal, and these matters are then considered in appeal at point of conviction, we will create more issues, backlogs and legal uncertainty and defeat the point. Our amendment would make the system more, not less, streamlined. It would help the Government meet their objective, not hamper them. On that basis, I will push it to a vote.
Question put, That the amendment be made.
Dr Mullan
I beg to move amendment 41, in clause 3, page 5, line 38, at end insert—
“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may request a different judge to preside over the trial than the judge who made the determination that the case was suitable to be tried without a jury.”
This amendment enables the defendant to request a different judge to try the case than the judge who determined that the case was eligible for trial without a jury.
The amendment draws into acute focus the challenges with public confidence and the risk of clouding judicial decision making that the proposals of a new judge-only court bench division will create.
It is important to set out the distinctions between different types of allocation decisions both now and in the future, if the proposals are passed. It is important to restate that we have summary-only cases based on the offence type rather than anything subjective, and then we have the indictable-only offences, again based on the offence type. In our previous debate on allocation, I pointed the Minister to grey cases, such as drug dealing and burglary offences, that are triable either way. At the moment, if it is about three of those offences, they have to go to the Crown court. I ask the Minister for clarity at some point about how they will operate.
Presently, we have what I sometimes call a clear and distinct separation of powers—a separation between those anticipating sentencing outcomes and those deciding sentencing outcomes, and a powerful safeguard for where that is not the case. Under the Bill, those lines will be blurred in a new and novel way, because the judge anticipating sentence length in the Crown court can then determine guilt and sentence length, and potentially issue a longer sentence of more than three years. That is important for the defendant and, in certain scenarios, for the victims and bereaved.
The hon. Member for Amber Valley, with her expertise, earlier described the fact that allocation and sentencing take place in the magistrates court, but importantly, the defendant can elect, and say no to their being involved in that process. They can say, “I want a jury trial; I want the judge who passes the sentence to be separate from the people involved in allocation.” Of course, the scenario is one in which a defendant is unlikely to have a reasonable claim of bias against their interests in relation to the sentence.
We discussed why someone may prefer a jury trial, even if the sentence might be higher. However, if we are talking about the defendant’s ultimate view about the judge, it is unlikely that someone in the magistrates court—if the case stays in the magistrates court—will say, “You chose to keep me here because of a shorter sentence, so I think you are biased in giving me a longer sentence.” They already have a positive disposition about the view of the sentencing.
More importantly, there are strict limits on the sentence length if a case stays in the magistrates court. It cannot go beyond what the initial judgment was. If the court decides, during or at the conclusion of the trial, that the sentence should be higher, it is up to someone else to pass that sentence. It goes to the Crown court for sentencing.
Linsey Farnsworth
It is true that the case has to go up to the Crown court, but it is not for the purposes that the hon. Member would like, as it were. It is because the magistrates’ maximum sentencing powers have been reached, and therefore they do not have the power, as opposed to it being preferable that the case go to somebody else.
Dr Mullan
That was not the point I was seeking to make, so I thank the hon. Lady for clarifying.
I sometimes wonder what victims think. Do they sometimes follow a case, hear the evidence and then think it should be getting more than the magistrates’ limits? Do they question whether the magistrates, who have a preliminary view about whether the case will hit a certain maximum at the outset, have come to the trial with some degree of bias about what outcome might be? Do they think the magistrates would therefore have some reluctance, even having heard the evidence in full, to pass a sentence that is beyond their powers and send the case up? Of course, magistrates do reallocate sentencing. As we have said, just because I feel there is a risk of a perception of bias does not mean I think we should scrap the whole lot and never let magistrates pass a sentence, but seeing that things are not perfect on balance does not mean that we accept them.
These proposals will add a degree of seriousness because of the potentially significant differences between possible sentence lengths. The sentencing guidelines for the offences are narrower than we will perhaps see with triable either-way cases, which have already been curtailed at a certain level of seriousness and might go up to an even greater level of seriousness.
If the clause passes unamended, the scenario could be as follows. A Crown court judge will receive an outline of the case, and make an initial judgment on the likely sentence outcome. They will decide, for a triable either-way offence, whether a sentence is likely to be more than three years. That same judge could then hear that case. That is the same judge whom a victim or bereaved family member could reasonably—perhaps not correctly, but reasonably—perceive on some level had already made a decision about the case, because of course they have: they have taken an initial view of the case and on what the outcome was likely to be. Importantly, that is not something that happens in any way shape or form with the jury trial system, where the two things are separate.
We all agree that perception as well as reality is important in our justice system. It is possible that some victims or bereaved family members might question whether the judge, who formed a view, is not best placed to then objectively and fairly decide what the actual sentence should be, if it should be longer than three years. They might even be concerned that passing a sentence of more than three years would suggest that they had got it wrong in their initial view. Again, we do not have to form a view about how likely or unlikely that is; we should form a view on what the perception of that will be. As politicians, we are very used to the concept that perception is important. Even if someone has not necessarily done something wrong, whether the public perceive that they might have done something wrong is important.
All that can be readily and simply avoided through our amendment, which would introduce a separation of powers, as I have described it. This is a modest and narrow amendment. It will provide a greater degree of confidence in the new system; even if the Minister is happy to proceed with the system, I am sure she would accept that it has generated questions and debates about rights and impartiality. This amendment is a very simple and modest way in which the Minister can minimise that. I know she wants maximum possible confidence in the new system, so I hope our amendment achieves that and that she can support it.
As we are still discussing allocations and who will or will not be allocated to different parts of the court, I would also be grateful if the Minister could provide clarity on triable either-way offences, such as drug dealing and burglary offences, where multiple versions go into the Crown court at the moment. What will happen to those cases in relation to allocation as part of the new division?
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.
Sarah Sackman
I am sorry: I did have that question noted down. The hon. Member will get an answer.
Sarah Sackman
Let me intervene, because the omission was certainly not deliberate. I am trying to make progress, for the sake of the Committee, but the hon. Member has fairly put the question. To be as clear as I can, the court considers the mode of trial by reference to the sentencing guidelines. According to the sentencing guidelines, a third domestic burglary offence is triable only on indictment.
Sarah Sackman
In fairness to the hon. Gentleman, and so that we can make progress, if he gives me a list of those cases at the end of the day, I will come back and give him chapter and verse on each of them at our next sitting.
Dr Mullan
To return to the heart of the matter, I will pick up on the comments made by my hon. Friend the Member for Isle of Wight East on an issue that I had not talked about. I talked about how one forms a view of the sentence and how one gives a sentence, and about the ways in which the interaction is unhelpful, but my hon. Friend helpfully points out that other things will happen at the pre-sentence hearing, including the submission of evidence that is then ruled out of order, that might lead to a certain perception.
The Minister rightly referred to precedents relating to judges’ capability, but I do not think that she really engaged with the Opposition’s concern about perceptions that the system is unfair. The Minister highlighted examples in which that might be a risk already. There might already be times when people argue that the perception is wrong. We accept that. I had anticipated that point, which is why I made it clear that the fact that the existing system is not ideal or has undesirable features does not mean that when we get to design a new system from scratch and from the ground up, we should say, “Yes, this is undesirable in these areas, but it exists and we are not going to get rid of it.” When we are designing a new system, we should design out the less desirable elements. Our amendment puts forward the best possible approach. I suspect that it would make it less likely that either defendants who have been convicted and sentenced or victims will be concerned.
Jess Brown-Fuller
I beg to move amendment 19, in clause 3, page 6, line 25, at end insert—
“(4A) A trial conducted without a jury will be heard by one judge and two magistrates.”
This amendment implements the recommendation of the Independent Review of the Criminal Courts to have cases heard in the Crown Court Bench Division by a judge and two magistrates.
Sir Brian Leveson and the Minister, on the many occasions on which we have discussed this issue, have been very clear that the proposals set out in the independent review of the criminal courts were not to be treated as a pick and mix. Sir Brian was clear that it was meant to be a package of reforms, alongside stating that juries are not the cause of the backlog; I want to make sure that that is on the record.
But the Government have indeed chosen to pick and mix from Sir Brian’s recommendations, because he never proposed a judge sitting alone in the Crown court bench division. He proposed including a lay element, with two magistrates sitting with the judge; the magistrates would have equal decision-making authority on matters of fact, evidence and sentencing, while the judge would retain responsibility on rulings of law. The purpose of having two was to enable them to outvote the judge on matters of fact and, importantly, to maintain public participation and legitimacy in the absence of a jury.
Sir Brian referred to that in part 1 of his review. He said:
“In a similar vein, the inclusion of two magistrates in the composition of the bench would also ensure that the CCBD would satisfy the expectation of”
being judged by “one’s peers.” He continued:
“I...will not revisit those arguments here. I do, however want to acknowledge the diversity of the current magistracy, which I believe goes some way to satisfying this expectation and would help ensure a fair and balanced representation in the CCBD.”
The magistracy has done an excellent job of improving its diversity, although one could argue that there is still more work to do. A former Lord Chief Justice, Lord Burnett of Maldon, has said:
“It seems to me that if one is going to reduce the involvement of the general public, as members of a jury, in the relatively low-level cases that go to the Crown court, maintaining public involvement through the magistracy is a good course to follow. It also has the great advantage of simply replicating a constitution and jurisdiction that exists in the Crown court at the moment. When there is an appeal from the magistrates court against conviction or sentence, including an appeal against conviction in an either-way case, it is heard in the Crown court by a judge and two magistrates.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 75, Q159.]
The Government cannot shirk their commitment to fair justice free from bias. If these changes are to be implemented, they should include the safeguard of two magistrates in the Crown court bench division. I would appreciate the Minister’s outlining why the Government have departed from Leveson on the point. Is it because there is a concern about finding enough magistrates to fill the roles? Is it because the magistracy will already be overwhelmed by the additional cases given to it as a result of the new sentencing powers outlined in this Bill? Or is it because the Government believe that having the lay element provides no additional safeguard in the interests of fair justice? Through the amendment, we seek to implement the recommendation of Brian Leveson’s review of the criminal courts.
Joe Robertson
The hon. Member for Chichester has set out the reasoning behind her amendment very well. If the amendment were agreed to, it would not go anywhere near restoring jury trials, but it would plainly be an improvement. The leading argument in its favour is that it is what Sir Brian Leveson recommended. The Government have repeatedly cited Brian Leveson’s review, and rightly so—that is what the Bill flows out of—but as the hon. Member for Chichester says, it cannot be a pick and mix. The Government cannot cite Leveson on the one hand and ignore him on the other.
Quite aside from the fact that the opinion expressed in the independent review has been ignored here, there are objectively good reasons why a trial heard by a judge and two magistrates is preferable to a trial heard by a judge alone. For a start, there would be three decision makers rather than one; with a jury there are 12, but clearly three is better than one. But it is not just a matter of numbers. Magistrates could be viewed, and certainly have been viewed, as a hybrid of jurors and judges. They are not judges, and they are not legally qualified people. They bring the quality that jurors bring—varied life experience—to the decision-making process. Of course, in a magistrates court, they are guided in the law by a legally qualified clerk.
It is fairly obvious that magistrates as a group are less diverse than the population of the United Kingdom, from which jurors are drawn, but at least they represent a greater diversity and variety of experience than judges. Judges all share one thing: they went to law school, they are legally qualified and they have had a career that is privileged—that is not a criticism, but I do not think it is an unfair word to describe a judge’s career. Magistrates have a greater variety of life experience. To bring magistrates into the decision making alongside a judge, as Sir Brian Leveson envisaged, would be to bring at least some element of a jury trial: the quality of being unjaded by a career in law and being unencumbered by the experience of being a well-paid legal professional.
I struggle to support the amendment, because it does not go anywhere near maintaining the system that we have today, but it would at least be a small improvement. It is an obvious point, but judges sit alongside magistrates today; it is a tried, tested and understood approach, not an obscure or novel one. Indeed, appeals are often heard in that way, as I understand it, because there is added rigour in having a magistrate sitting alongside a judge.
Of course, having a judge sitting alongside magistrates is an improvement on having magistrates alone, because judges bring professionalism from their legal training and experience of the law as part of the judiciary. There is a benefit there, although of course the benefit is already delivered by the Government’s own amendment, notwithstanding that it is worse than what we have today.
I commend, or at least understand, what the hon. Member for Chichester is trying to achieve. It comes from a good place, but unfortunately—this is not her fault, but the Government’s—it does not go anywhere near maintaining the status quo, which in my view is plainly greatly preferable both to her amendment and to the Government’s approach.
Dr Mullan
I welcome the opportunity to speak to amendment 19, tabled in the name of the hon. Member for Chichester. As my hon. Friend the Member for Isle of Wight East pointed out, this one of those challenging situations; we will not vote for the amendment, because it would indicate that we support or endorse a judge trial with two magistrates as opposed to a jury trial, which is not the case. But it is an extremely helpful probing amendment to point out the broader challenges and weaknesses with the Government’s proposal and the differences we would have seen had they followed the proposal by Sir Brian Leveson.
The amendment also draws close attention to a matter that I have spoken about frequently: the Government’s willingness both to say that great credibility should be placed on the reforms that they are proposing because they have come about as a result of the work of the independent review by Sir Brian Leveson, and at the same time to reject proposals by Sir Brian. When we discussed this matter before, the Minister argued that our concern was not valid because Sir Brian had said in his report that the Government could go further. In my view, it is quite the leap to say of our criticisms that specific proposals lack the authority that Ministers claim because they were not recommended by Sir Brian that the proposals would in fact, in some way, be recommended by him anyway.
While I think it is a weak point, it is probably stronger in relation to the decision by the Government to set the test for removing the jury from a Crown court trial at a sentence length of three years rather than Sir Brian’s recommendation of two years. I do not know whether he would support that—one might think he would have said so if he did—but there are what we might call matters on the continuum, where the prospect of Sir Brian’s suggestion of going further on a continuum of sentence length as the test is somewhat understandable. I do not think that argument is at all viable in relation to the measures relating to amendment 19.
There is a distinct, what we might call, category difference between the recommendation to have a judge sit alone and to have a judge sit with two magistrates. We have discussed a number of the drawbacks of a judge sitting alone compared with having a jury. I will take them in turn. First, there is the question of bias—of concerns raised in relation to different outcomes, for example for women or ethnic minorities. We have discussed this before, but I want to draw attention again to the comments of Geoffrey Robertson KC. He said:
“The determination, by 12 citizens of evidence tested by prosecution and defence, is a surer guide to the right result, reflecting common sense and common values, than the personal view of a judge”.
He also said:
“A diverse jury, usually with a few representatives of ethnic communities, serves as some guarantee of fairness and non-discrimination in dispensing justice.”
We have been leaning very heavily on the Bar, but the Criminal Law Solicitors Association says:
“Jurors, drawn from all elements of society, take jury service very seriously. Our Vice-Chair sat on a jury last year and saw his fellow jurors, without exception, treat the process with the gravity and respect that it deserves. Limiting jury trials reduces public engagement in the process and weakens democratic participation in criminal justice.”
Sir Brian was not the only person tasked to consider in detail proposals for a reform of the courts who has settled on similar views about the decision to reduce jury trials, which, as I have said, we do not support. They have also agreed that a judge with two magistrates is the way to do it. Lord Justice Auld’s 2001 independent review of the criminal courts in England and Wales recommended the creation of a new district division, with a unified criminal court structure designed to handle either-way cases that were too serious for the magistrates but did not require, in his view, a full jury trial. He proposed that the court would consist of a professional judge sitting with two experienced magistrates. He said in his report that there is a
“middle-range of cases that do not warrant the cumbersome and expensive fact-finding exercise of a trial by judge and jury, but which are sufficiently serious or difficult, or their outcome is of such consequence to the public or defendant, to merit a combination of professional and lay judges”.
That was a specific choice to say that there was merit in lay as well as professional judges taking part.
Sarah Sackman
I thank the hon. Member for Chichester for tabling amendment 19. I reiterate how grateful we are to Sir Brian Leveson and his team for their thorough review, which has directly shaped the measures in the Bill, including the one we are discussing. I also thank our magistrates, who are volunteers and do a fine job in hearing 90% of the trials in this country, providing a lay element. I say this on the day that the Government have launched the magistrates recruitment taskforce, which is part of our endeavour to boost the number of magistrates in the country.
Part of the relevant backdrop to the debate that we are having about the policy choice that the Government have made in this provision is the sufficiency, experience and availability of the cadre of magistrates. The fact is that the number of magistrates in this country halved under the previous Government. That is not an easy thing to turn around overnight. For us to implement and see the benefits of these reforms, the Government are undertaking a huge recruitment drive, but of course it takes time to train magistrates.
As discussed in relation to previous clauses, we are also, as part of this reform package, diverting appropriate cases to the magistrates court and enhancing magistrates’ sentencing powers. That is a big job of work. The hon. Member rightly challenges us and says, “Is that sustainable?” It will be sustainable if we recruit the requisite number of magistrates and train them sufficiently, but there is no doubt that a pressure needs to be met because of the legacy that we inherited, so of course that practical consideration has informed the policy choice. I accept, of course, that magistrates would add a community element and community participation in judge-only trials, in the constitution that the IRCC proposed. But it is also true to say that, on page 274 of the report, the practical realities and the point about sufficiency in the number of magistrates were expressly acknowledged by the independent review, so of course the numbers of magistrates and what they have to do are an important consideration.
I am again grateful to Members from across the House for recognising not just the contribution that magistrates make, but the diversity of the magistracy. For example, 31% of magistrates in London are drawn from black and minority ethnic communities. That is in keeping with the diversity of the city.
Paulette Hamilton
The Minister makes such a brilliant point. She is right: 31% of those who have become magistrates are from an ethnic minority group. But when we look outside London, we see that we are unable to recruit in the numbers that we need in big cities such as Birmingham. Would consideration ever be given to paying younger magistrates, because they are struggling to get employers to give them time off to do this important work?
Sarah Sackman
As ever, my hon. Friend raises a very good point. Overall in the country, 14% of our magistrates are drawn from black and minority ethnic communities. The picture is not bad in the midlands, which my hon. Friend takes a particular interest in. The reality is that we are not in a position to pay our magistrates, but it touches on another consideration in this context. As I have said, I fully accept that magistrates would add a community element to the Crown court bench division, but it is also true to say that in relation to longer and more complex matters, which necessarily are what we are talking about when we are talking about the Crown court bench division, the type of magistrate who can give up their time for the length of time needed to hear longer trials—for weeks at a time—is, I would suggest, inevitably skewing towards the less diverse end of the magistracy.
The other point to make, in addition to the practical one, which I have been transparent about throughout, is the normative one. If I can put it colloquially, the Government make this policy choice because we believe our judges can do it. We believe they can do it for the reasons that I have reiterated in earlier parts of the discussion: their integrity, impartiality and ability to manage the court efficiently. And we see parallels—international comparators. I will again draw on Canada, where this is done to good effect while maintaining the fairness and integrity of the trials.
Introducing a requirement for magistrates to sit alongside judges would risk delaying the implementation of these reforms and, with that, delaying the benefits to victims, defendants, complainants, witnesses and the wider justice system. The Government’s view is that in that time the backlog would continue to grow and remain unresolved, and we cannot have that. I therefore urge the hon. Member for Chichester to withdraw her amendment.
Jess Brown-Fuller
I recognise the comments made by the hon. Member for Isle of Wight East. I agree that the amendment would not go towards restoring jury trials, and I will continue to push for jury trials to remain at their current thresholds. However, in the absence of the Government budging on that issue, I will continue to table amendments as we go through this process, and I know that the hon. Member for Bexhill and Battle echoed those points.
The Minister rightly talked of the pressure in the system that must be met. We all feel that deeply across the House; no party represented on the Committee thinks the status quo is acceptable, or that a good version of justice is being served for anyone who is sitting in that backlog, or who is being told that their case will not be heard until 2029. However, the Minister also recognised that the lay element is really important, which surely strengthens the argument that she would not be doing this if she had capacity in the magistracy. If the magistracy was running at full volume, or at its numbers from 15 years ago, she would be including that lay element in the Crown court bench division.
There is a balance to be struck, and the balance should not see our fundamental justice system reduced or degraded in any way. It is something that we should be proud of in this country, and we should protect its core principles. I will push the amendment to a vote.
Question put, That the amendment be made.
Yasmin Qureshi
I beg to move amendment 26, in clause 3, page 8, line 36, at end insert—
“(h) fairness when considering the rights and circumstances of the defendant;
(i) the interests of justice.”
The Chair
With this it will be convenient to discuss amendment 44, in clause 3, page 8, line 36, at end insert—
“(h) whether it is in the interests of natural justice for the defendant for the trial to be conducted with a jury.”
This amendment would ensure that where the decision for a judge-only trial is being considered for reallocation following a change in circumstances, that the judge must consider whether it is in the interests of natural justice for the defendant to have trial with a jury.
Yasmin Qureshi
The amendment would add to proposed new section 74C of the Senior Courts Act, which concerns matters that must be taken into account when determining allocation in cases that are already set to have a jury trial. Amendment 26 would add two further conditions that must be considered when making such allocation decisions. First, it would add
“fairness when considering the rights and circumstances of the defendant”,
and secondly, whether the decision is in
“the interests of justice”.
Those two additional grounds would constitute an important safeguard for a defendant, especially given that these provisions are being applied retrospectively to cases that are already listed. We do not know what the criteria will be for reallocating existing cases in the system. For example, will it apply to those in custody, those very near to their trial time or those who are set down for trial within a short period of the Bill commencing, whenever that may be? No clear guidelines have yet been published on how the allocations will be dealt with.
We also do not know whether the decision to reallocate will be made by the resident judge of a particular Crown court, or whether a court’s listed cases be dealt with by the court administrators who are just doing the list, which is how many things are dealt with. We do not know what the procedure is going to be—we have no idea how the allocation process is going to work—so we are asking for these two particular provisions to be added to the Bill to ensure that there is a proper safeguard in the system.
Dr Mullan
I rise to speak in support of my amendment 44 and related amendments, which brings us to consider the issue of reallocation in more detail for the first time. It was touched on briefly this morning in the discussion about allocation, but there are distinct differences in the processes.
We must remind ourselves what the allocation process will be initially through proposed new sections 74A to D of the Senior Courts Act 1981. My understanding is that the reallocation provisions are intended to operate in the following way. First:
“The court must, at the prescribed time or times, determine”
in accordance with proposed new section 74A
“whether the trial is to be conducted with or without a jury.”
It is important to note that “prescribed time” is not defined in the Bill, but would be covered by the existing provisions in sections 84 to 87 of the Senior Courts Act, which refer to prescribed matters being specified in the criminal procedure rules. The explanatory note does not appear to provide any further detail on what the criminal procedure rules are likely to prescribe in terms of timing, so it would be helpful if the Minister could tell us what she expects that to be.
Whatever the prescribed time is defined to be, the court must say that the trial is to be conducted with a jury if either the offence, or any of the offences, is triable only on indictment or if the court considers that the defendant, if convicted of the offence for which they are to be tried, would be likely to receive a sentence of imprisonment or detention of more than three years. In any other case, the trial is to be conducted without a jury.
We have covered this initial decision at some length, but the proposed legislation also says that if a trial is to be conducted without a jury but there is a relevant change of circumstances, the court may—and in some cases must—reallocate the case to a jury trial. A relevant change of circumstances is defined in proposed new section 74B(8), and will occur if either the defendants to be tried, or the offences for which they are to be tried, have changed since the court’s last determination on allocation, or it appears to the court that there is new evidence that would or might affect whether the condition in proposed new section 74A is met, and that condition relates to a likely sentence of imprisonment of more than three years.
This is something to which we must give close consideration. The Bill does not define the term “new evidence”, and I am not aware of it being defined elsewhere in legislation. We can look to the explanatory notes to try to better understand what is meant here. In paragraph 206, the notes say:
“This is intended to capture significant new material indicating that the offending is more serious, or less serious, than originally understood. It is not intended to require the court to redo the full allocation exercise each time new evidence emerges, but simply to note where new material might alter the earlier likely-sentence assessment so as to justify reconsideration under section 74B.”
The explanatory notes are helpful, but we must remember that they are not legislation and that the courts are more likely to seek to interpret differently what may or may not be said in an explanatory note from something that is given clear direction in legislation.
The explanatory notes actually leave us with not just one but two new terms. Again, as far as I am aware, “significant new material” is not defined in legislation; there is certainly no case law for it in these specific circumstances, as these courts have never operated before. I do not think we can know in practice how it would be obvious that something amounted to new evidence for the purposes of proposed new section 74B(8); the Bill, as I have said, is silent on this point.
Do we have to assume that that will become a matter of judicial interpretation or discretion? I think we do. It might be evidence that was not already set out in the initial details of the prosecution case or in a defence statement. While the explanatory notes say they do not expect this process to be done on a rolling basis, I assume that the prosecution and defence would be able to invite the judge to consider whether evidence amounts to “new evidence” whenever it was brought to the attention of the court as part of the general conduct of the trial. Again, this is not specified in the Bill, but it is certainly not ruled out.
If there has been a relevant change of circumstances meaning that the case involves an indictable-only offence—for example, if new evidence emerges that results in a charge of theft being recharged as robbery, or a charge of sexual assault recharged as rape—the judge must reallocate it to a jury trial. To be clear, that is in relation to offence-based things. If there has been a relevant change of circumstances, but the aforementioned process does not apply—for example, if there is new evidence that means a custodial sentence of more than three years is likely—the judge may reallocate that to a jury trial. The use of “may” is important, because may is not must.
I draw Members’ attention to the wording of the initial process of allocation. Perhaps to the frustration of some, I took the time to read it, because it is important. The initial wording on allocation with regard to sentence times is “must”—if the court thinks a sentence of more than three years is likely, it must allocate a jury trial—but as I pointed out, on reallocation the court simply “may” reallocate. I hope it is immediately obvious to Government Members that that is a less stringent test, which creates an inherent unfairness.
At the outset, if a judge thinks that a defendant or accused is likely to receive three years, that jury trial is guaranteed. Let us remind ourselves that the Government accept that that is a benefit or a right—although they do not accept it is an absolute right—if the outcome is potentially a sentence of more than three years, yet some people will not get that benefit, even though the Government accept that it is desirable, because the Bill states that the judge has discretion to continue conducting the trial without a jury despite the relevant change of circumstances.
The judge has that discretion if any of the following applies. First, they have that discretion if the condition in proposed new section 74A—a likely custodial sentence of more than three years—is not met in relation to the defendant. Secondly, and this is the important bit, in proposed new section 74B(3)(b), they have that discretion if
“the court considers that it would not be appropriate to reallocate the trial”,
taking into account the matters set out in proposed new section 74C(6) and (7). Those include representations by the prosecution and defence; the extent to which the new likely sentence differs from the three-year threshold sentence; the interests of the alleged victim; the desirability of avoiding the need for witnesses to give evidence again; any delay to proceedings; any actual or potential wasted costs; the effect of reallocation on other court business; and any other prescribed matter set out in the criminal procedure rules.
Thirdly, the judge has that discretion if, as proposed new section 74B(3)(c) states,
“the prosecution and the defendant or defendants each consent to the trial being conducted without a jury.”
Therefore, if the defendant is happy to carry on without a jury, even though they risk the higher sentence, the trial can continue—and similarly for the prosecution.
Some of those examples set out in proposed new section 74C(6) and (7) could legitimately deny a defendant a right that they would otherwise have had if the evidence had been available at the start of a trial. It could be something that has nothing to do with them—for example, a witness might not give the same evidence in their statement as they do at trial. Another example is the effect of reallocation on other court business—so simply because it would be challenging for the court to allocate or reallocate the case, a right that the Government deliberately set out to preserve for those people at initial allocation could not be exercised at that point. Again, in essence, those are all new legal tests.
We have a whole range of factors, many of them subjective matters that must be weighed, rather than objective ones. They may all be factors that we might reasonably agree should be given weight, such as—to go back to some of the factors—the interests of the alleged victim. If an alleged victim has had a traumatic experience of giving evidence, it is not unreasonable for people to consider that. That does not mean, however, that it will not lead to circumstances in which a defendant is substantially disadvantaged.
Let us take, for example, a case related to injury. In a case of assault occasioning actual bodily harm, the sentencing range for this offence, triable either way, can include a sentence of up to four years. That is a good example of where we might see a change in circumstances, based on the evolving medical consequences of an alleged assault.
A more concrete and simple example than a medical injury that might evolve from an assault, which is complex, is a person who is originally on trial for grievous bodily harm or attempted murder, but the victim dies during the trial or at a much later date, which can happen, and the person can be retried for a further offence. We know that the medical consequences can take time to materialise and can make a material difference to the charge. There are other borderline cases where the likely sentence at the point of the initial allocation decision was considered to be just under three years.
To give another example, the sentencing guidelines for the most serious harm or culpability form of theft suggest a starting point sentence of three years and six months, with a suggested range of two years and six months to six years. That is absolutely within the scope of not being allocated a jury trial, but if the medical consequences were to evolve, that would change and push it to a sentence of up to six years, which would require a jury trial.
As the hon. Member for Amber Valley, with her expertise and experience of the CPS, pointed out in relation to things that already happen in a magistrates court, we know that magistrates have to undertake this sort of intellectual exercise. They must be mindful that if the circumstances change, the trial must move to the Crown court. I understand that is quite unusual, however, and as we have talked about before, the stakes are likely—not always—to be lower when we are talking about a potentially much wider gap in possible sentence length.
Strangely, this may be an example of something that magistrates do but, as I understand it, Crown court judges do not normally do; Crown court judges do not have to have it constantly in their mind throughout a trial whether their view has changed on the likely sentencing outcome. As I have alluded to, the legislation therefore risks creating a whole raft of legal challenges over potentially many years until there is a settled common law understanding of how all the different measures interact, and until higher courts set out the methodical tests and boundaries that are absent from it.
The obvious test will arise when someone does actually end up receiving a longer sentence, and the obvious challenge will be that the judge should have realised and reallocated the case because of something considered materially new. That will be highly arguable. Let us say, for example, a complainant, when giving evidence, identifies a more profound psychological impact of a crime on them that was apparent from the initial statements disclosed—something that is to some extent subjective. The judge might listen to the evidence being given and not consider it to be materially different from the statements on which they based their initial summation, but I can absolutely imagine a defendant and their legal representatives feeling that a witness did say something that indicated something materially different. That is another more complex decision than the one made by the magistrates courts in a different way.
As we have heard again and again, although magistrates court trials can be long, they are often shorter. Weighing up the impact of restarting that trial, of discounting the work that had been done and of re-sending it to another court, is very different from making that decision after weeks and weeks of a Crown court trial.
There is also another risk in terms of public confidence in the process. As we have touched on before in relation to the initial allocation and sentencing, the judge will have already made a decision and given a view on initial allocation. There would be a risk that a defendant feels that their right to a jury trial, if the circumstances are such that they would have been concerned that the sentence would be greater than three years, might inhibit a judge from reallocating in the way that they would have ordinarily wanted to.
As we have covered, the judge will be able to pass that higher sentence, which is another important difference with the magistrates, who, as I have talked about before, are constrained in their ability to go beyond that initial judgment. There will be no constraints, so it would be perfectly possible for a judge who had an initial view to end up passing a sentence much higher than they had anticipated and much higher than the defendant was advised would be the likely outcome. Again, that would give serious impetus for a defendant and their legal representatives to make the point that the judge had erred in their reallocation.
It is not just a question of the fair thing to do. I explained earlier in relation to other allocations that I do not think it is the fair thing to do, but again it is a matter of efficiency and process. If we end up with repeated appeals over, as I have said, many different factors that will all individually need to be clarified in case law, that will again take up the time and energy of court staff, and particularly legal representatives, who work between all the different courts in a way that judges do not.
Amendment 44 would help to balance that by opening up the widest possible interpretation of whether a reallocation is the right thing to do. We think talking about it in the interests of justice will give the maximum possible room to defendants to be sure that the trial they receive without a jury, and the decision taken to deny them a jury, are as fair as they possibly could be.
Sarah Sackman
I thank my hon. Friend the Member for Bolton South and Walkden, who is no longer in her place, and the hon. Member for Bexhill and Battle for their amendments.
I will begin with amendment 26. The defendant’s interests are already embedded into decision making on mode of trial reallocation. Parties are given the opportunity to make representations on reallocation, meaning the defence can draw the court’s attention to how the factors in the Bill intersect with a defendant’s interests, including the impact of delays to proceedings. Parties are also able to override a judge’s decision to reallocate to a jury trial if they both consent to remain in front of the Crown court bench division judge-alone, allowing, for example, a consensus for swifter justice to prevail.
At the same time, clause 3 requires the court itself to have regard to the interest of complainants—victims—when deciding whether reallocation would be appropriate. Those interests would be properly weighed by the court alongside the other factors set out in the Bill.
Finally, an additional “interests of justice” factor would be superfluous, not least because many of the factors that already fall under an “interests of justice” test, such as delays to proceedings and the impact on witnesses, are already taken account of. Introducing such a broad and undefined factor would risk undermining the structured and calibrated framework that Parliament is being asked to approve. It would also reintroduce uncertainty into the decision making that the clause is designed to make clear and workable in practice—not just the clause, but any accompanying criminal procedure rules. I have faith in our judiciary to make informed and robust decisions on the mode of trial reallocation. As such, I urge my hon. Friend to withdraw her amendment.
Turning to amendment 44, where an indictable-only offence is added to a bench division case, it will always be reallocated to jury trial. Where a jury trial has started, it can never be reallocated to the bench division. The principles of natural justice encompass the right to a fair trial, the rule against bias and the duty to act fairly. All of those elements are preserved in these reforms. The amendment would not add any substantive protection beyond those safeguards already in place.
Jess Brown-Fuller
On a point of clarification, in the instance where a jury trial may begin but the case is adjourned for any reason, could it be reallocated to the Crown court bench division at a later date when it is rescheduled, or would it continue to have a jury trial?
Sarah Sackman
Under the provisions, where a jury trial has started, it cannot be reallocated to the CCBD.
Jess Brown-Fuller
I am just trying to get some clarification about when a jury trial “has started”. If a jury trial is listed on a day but the case is adjourned, it does not go ahead. Cases can be adjourned for many different reasons—the defence or the prosecution could not be ready. In that instance, where the case is adjourned to be relisted on a different day, would the defendant maintain their right to a jury trial or could it be reallocated to the bench division?
Sarah Sackman
What circumstances does the hon. Member envisage would trigger that reallocation? The allocation has been made—it has been allocated to a jury trial. She is right that it has not yet commenced, which is the point I was dealing with, but the circumstances we are dealing with here fall into two broad categories: first, where the nature of the offences in question changes; or secondly, where new evidence comes into play mid-trial, which is so material as to lead to an application to reallocate, or even to a judge of their own volition deciding that the seriousness necessitates reallocation. I cannot see, where it has been allocated already but has not yet commenced, why that would be triggered. But maybe I have missed something.
Dr Mullan
I talked about how the medical picture can evolve in a worsening situation. We can also get that situation in reverse. For example, in A&E, the A&E consultant’s interpretation of an X-ray, to determine whether someone has broken a bone, can be a key fact in deciding the classification. But when that goes to a radiologist, sometimes two or three weeks later, they have that more expert view. This happens quite regularly: they review the X-ray, CT scan or whatever it might be and say, “Actually, no, there isn’t a fracture here.” That would then drop down the injury to a different category. In that intervening period, which could be a matter of weeks, there would be a change to the nature of the charge.
Sarah Sackman
What I am seeking to be clear on is that when we are talking about the trial being commenced—a perfectly good question—I am saying that if the trial has started and there has been the first day, and then for whatever reason there is an adjournment, in those circumstances we would never see such a trial reallocated to the bench division.
I suppose there may be circumstances in which there is an adjournment and new evidence could come to light, or a new offence or a new charge could be added to the indictment or withdrawn, which I suppose might trigger a reallocation decision, but the trial itself would not have commenced. In those circumstances, I think I am right in saying that it is possible that it might get reallocated at that point. I will come back to the hon. Member for Chichester if anything I have said on that point is inaccurate.
Amendment 44 would not add substantive protections, because the defendant in every Crown court trial, irrespective of whether it is Crown court bench division or before a jury, would be considered to receive a fair trial. The mode of trial itself has no bearing on the fundamental fairness of the proceedings.
We have designed the test for mode-of-trial allocation in clause 3 to ensure that the relevant interests are properly balanced by the court. Parties are given the opportunity to make representations on allocation and the court must have regard to the interests of victims when deciding whether reallocation would be appropriate.
I make one final point. The hon. Member for Bexhill and Battle raised a concern about rolling applications throughout the course of a trial. I think the Government’s view is that that is unlikely to be the case, because while new evidence is a feature of trials commonly, it is not all that often that such new evidence alters the fundamental seriousness of the case to such an extent that it would engage the tests that are here. I am not sure that it is quite the concern that the hon. Member suggests, and I urge him to not press amendment 44 to a Division.
The Chair
As the hon. Member for Bolton South and Walkden is not here to press amendment 26, is everyone content for that amendment to be withdrawn?
Amendment, by leave, withdrawn.
Amendment proposed: 44, in clause 3, page 8, line 36, at end insert—
“(h) whether it is in the interests of natural justice for the defendant for the trial to be conducted with a jury.”—(Dr Mullan.)
This amendment would ensure that where the decision for a judge-only trial is being considered for reallocation following a change in circumstances, that the judge must consider whether it is in the interests of natural justice for the defendant to have trial with a jury.
Question put, That the amendment be made.
Dr Mullan
I beg to move amendment 42, in clause 3, page 9, line 23, leave out subsection (4) and insert—
“(4) Where a court has determined in accordance with section 74A that a trial is to be conducted without a jury, the court cannot pass a sentence of imprisonment or detention of more than three years on a person convicted of an offence.
(4A) Where a person is convicted of an offence and the court considers that the appropriate sentence is more than three years’ imprisonment or detention, the court must refer the case for retrial by jury.”
This amendment prevents a judge sitting alone from sentencing a defendant to more than three years in prison, and requires that if this is the likely sentence, the case must be remitted for trial by jury.
It is my pleasure to speak in support of amendment 42, tabled in my name, which really drives at the heart of the question of fairness in relation to this new system. It would prevent a judge, sitting alone, from sentencing a defendant to more than three years in prison, and requires that, if that is the likely sentence, the case must be remitted for trial. Again, related to the important points I made earlier, it also introduces the element of “must”.
Again, we have to revisit the process of allocation; triable either-way offences will be allocated on the basis of sentence length. That is the important part for us to consider here. The Government have agreed that the suitable manner in which to allocate offences to trial with or without a jury is based on sentence length. We can only conclude, therefore, that the Minister accepts that the possible consequence—the possible time in prison—is intrinsically linked to the fairness, reasonableness, desirability or however the Minister might want to describe it of remaining with a jury trial.
In this case, if criminals—because they will have been convicted at this point, we can say criminals rather than defendants—ended up with a sentence of more than three years, they would have a reasonable basis on which to say that their treatment was not in keeping with the Government’s own decisions about what would be preferable in relation to fairness. Let us be clear: I spend a lot of time working with victims and campaigning for longer sentences for offenders, and I think that, across the board and for many decades, our sentencing regime for convicted criminals has been insufficiently punitive and has given insufficiently long sentences. But that does not mean that I do not think that there is a fair and proper way of going about that.
I agree with the Government that sentence length is inherently related to fairness in regard to whether someone gets a Crown court trial with or without a jury—although, in my view, it should always be a jury trial—but a convicted criminal now will look at this and say that he has a sentence greater than he otherwise should have expected to get, and that, if the judge had anticipated correctly that sentence at the outset, he would have had a jury trial. That would be his reasonable conclusion.
Linsey Farnsworth
On that point, what are the hon. Member’s thoughts in relation to a magistrates court where a magistrate has made a decision that a case is suitable for summary trial but then they have the opportunity—or the right if you like—to commit somebody for sentencing at the Crown court if the offence turns out to be more serious than had originally been envisaged? Actually, the safeguard for the expectation of the defendant is dealt with at an early stage—at the allocation stage—when the defendant is told of the decision that the case will stay in the magistrates court, but they could be committed in due course to sentencing in the Crown court.
Dr Mullan
That goes straight to the point we discussed earlier about why it is important to separate the two, because in this scenario it is the same person all the way through. Ultimately, the sentencing process ends up being separate to the people who decide whether or not someone is guilty, and they will have decided the mode of trial, as well.
Linsey Farnsworth
Can I also just mention Newton hearings? A defendant has pleaded guilty but does not accept all the allegations that the prosecution’s case sets out—perhaps the most serious aggravating feature. Then, there is a Newton hearing, at which a judge sits and decides what the factual situation is and goes on to sentence as well. There is already precedent in the Crown court for a judge to hear evidence, make a decision based on the evidence, and pass sentence. I wonder what the hon. Gentleman’s view on that is.
Dr Mullan
This is a great opportunity for me to learn and understand an element of the system that I did not understand—I know about it, rather than understand it.
I will go back to the point that we have made repeatedly. We are designing a system from scratch here. We have the opportunity to do things exactly as we want to. We do not have to be forced into replicating other elements of the wider system; we can design this system as we best think it should operate. I think that the best thing in this scenario, in which we are starting from scratch, would be to say to somebody that they should be able to derive the benefit of having a jury trial if the case is of a nature that the Government themselves agree would typically enjoy the benefits of a jury trial. This is just inherently a fairness question.
That is why we have replicated the process—in a positive way—in a magistrates court. The decision is the decision that has been made; the court cannot go above it. That is because we say that in a magistrates court, if someone seeks to go above that court, that is not the right place to do that; it would not be fair and reasonable. We are making a similar point here in relation to mode of trial, for jury trial.
We think that the amendment is sensible, reasonable, balanced and does not prevent the Government from undertaking their reforms; it is not what could possibly be described as a wrecking amendment. I hope that the Government will reflect on that and accept the amendment.
Joe Robertson
I echo the points made by the shadow Minister. The issue here is where sentences may go above three years. A sentence of three years or more is fairly significant. The crime, of course, will match the sentence; no one is suggesting that the sentence is inappropriate in these cases—someone has been convicted. However, the issue is that the trial—the fact of innocence or guilt—will have been decided by a judge. Without raking over too much old ground, the point in a jury trial is that on more serious offences, jury decides innocence or guilt.
What we have here, without the amendment, is a back-door way for a judge to decide what turns out to be a more serious case than perhaps had originally been thought, because the sentence passed is more than three years. As I understand it, it is not the intention of the Government to capture more cases of that serious nature than they had originally intended would be decided by a judge. They themselves are not arguing that jury trials do not have a place in this country for a great number of cases—unfortunately, not enough after this legislation.
The hon. Member for Rugby made the point in an earlier sitting that other Governments have adjusted the threshold, notwithstanding our disagreement over what is being proposed in this legislation. Clearly, the issue with this provision, if it remains unamended, is that more serious crimes, with a sentence of more than three years, will inadvertently get caught.
I cannot quite understand why the Minister will not accept the amendment, but I am sure she will address that. Once again, it would not, in any material way, move away from what she is trying to achieve with the legislation, which is tackling the backlog of Crown court cases. Again, that intention that is perfectly well meant. The amendment would not, in any way, get rid of her primary intent to get rid of either-way offences so that they are not heard by a jury. Notwithstanding the fact that I do not agree with her on that, the amendment would not defeat what she is trying to do there. Effectively, what it would do is close a loophole.
I invite the Minister to address that point about instances where a judge decides, on their own without a jury, that a case is of significant seriousness—and that may mean complexity that was not apparent at the outset but became apparent during the trial—that he or she wishes to pass a sentence of more than three years. Three years is a serious length of time for someone to be locked up and deprived of their liberty. Wherever we think that the threshold should sit, I think that we all agree that jury trials have a role in this country for more serious crimes.
If the threshold can rise above three years through that avenue, how high a threshold is the Minister willing to tolerate? In how many cases is she willing to tolerate that apparent loophole? Maybe she does not see it as a loophole. Maybe there is purpose behind it. If there is, perhaps she can explain why it is important enough to risk even her principle by having more serious crimes—those with a sentence over three years—potentially being heard without a jury. Again, I reiterate that I disagree with the primary disapplication of jury trials for what are now either-way offences. That is not what this is about; this is about the Bill doing something more than the Government may wish to do. I invite the Minister to address that in some detail.
Sarah Sackman
I will seek, as best I can, to clarify why judges sitting alone should have full Crown court sentencing powers consistent with the recommendations of the independent review of criminal courts. That review made clear that both judge-only trials—where those are prescribed—and a Crown court bench division must operate with the same judicial powers as jury trials if they are to function effectively in practice. As I have said, allocation is an early indicative assessment. It cannot and must not predetermine the sentence, which must be based on the facts proven at trial. The amendment would reverse that principle, effectively allowing an initial assessment allocation to cap the sentence ultimately imposed, or else force a retrial before a jury. That would compound a delay which, as anyone who has listened to victims’ testimonies to the Committee knows, we can ill afford.
Under proposed new section 74A, the allocation decision—whether the case should be tried by a judge alone or by judge and jury—will rely on a structured application of the existing sentencing guidelines. As I have said, we are not introducing an unfamiliar exercise, and we have full confidence that judges will apply the guidelines consistently to determine the appropriate mode of trial based on their assessment of the seriousness of the case.
In practice, the allocation decision in the Crown court will be tied firmly to the facts of the case, in much the same way as in the magistrates court. That means that in the vast majority of cases it is unlikely that a case will result in a sentence far beyond what was anticipated at the point of allocation. However, I recognise that in a small proportion of cases where evidence evolves and a case becomes more serious, appropriate safeguards must be, and will be under the Bill, put in place. That is precisely why the Bill includes provision for a reallocation where circumstances change. Where an indictable-only offence is added to the case, it must always be reallocated as a jury trial.
Where seriousness increases just enough to push the likely sentence in a case above three years, the judges must consider reallocation to jury trail. We have looked at the factors set out in the Bill, including potential delays following reallocation, any disruption to victims or wasted costs, and the effects on other trials. It is therefore essential that judges sitting alone retain the full sentencing powers of the Crown court. Unlimited sentencing powers do not expand the jurisdiction of judge-alone trials, but they ensure that once a case has been properly tried, the sentence imposed reflects the facts as found.
Against that backdrop, amendment 42 would require cases to be retried because the sentence ultimately exceeded the earlier indicative assessment. As I have said, that would introduce significant delay into the system, requiring cases to be heard twice and directly undermining the purpose of these reforms, which is to reduce the dreadful delays. The principle that the sentence must reflect the facts is important, and for that reason it is necessary that judges retain the full sentencing powers. To do otherwise would risk distorting outcomes and create unnecessary duplication and delay in proceedings, thereby undermining confidence in the system. For that reason, the Government cannot support the amendment.
Dr Mullan
I want to pick out a couple of points. The Minister has criticised the risk of retrials, and we have made several points about how other elements in the Bill will increase that risk through successful appeals and so on. I accept the Minister’s point that it is unlikely that these things will happen, but this is not so much about whether someone was expecting three years and ends up with three years and two months, for example, as the fact that there is no control of it at all.
The Minister is right that there is a reallocation process. We have debated the flaws in that, which are pertinent, but clearly the Government do not think that the reallocation process is perfect, otherwise they would not mind a cap. If they thought that the reallocation approach would manage all these scenarios, they would not oppose a cap. They want to oppose it because they accept that the reallocation process will not be perfect. Someone might be expecting a three-year sentence—I gave an example earlier, I think of theft—but could end up with a six-year sentence, double what they expected to receive. That is many years above what the Government have recognised as a suitable and acceptable threshold on which to make these decisions. It would be inherently unjust, and those sorts of situations would warrant retrial.
Sarah Sackman
Just on that point—as unlikely and rare a scenario as I anticipate it would be—would the hon. Member accept that that sentencing decision could be subject to appeal?
Dr Mullan
Yes, but the question is not whether the six-year sentence is reasonable, it is whether the mode of trial in reaching that sentence was fair. The Government agree that the preferable mode of trial in all other scenarios that could lead to a sentence of six years is a trial with a jury. Yet we could have people expecting a three-year sentence and ending up with a six-year one, which is far from the Government’s test of reasonableness for the mode of trial.
I understand the point about weighing probabilities with the smaller gap, but we are faced with the question of allowing either no gaps or very big gaps. If we are forced to choose, I will continue to say that we support amendment 42, because it is important that people do not end up in that situation. I do not know the limit; I have given an example of three to six years, but there could be even wider gaps among the offences that we are considering. That would not be reasonable, and, therefore this safeguard is important.
Question put, That the amendment be made.
Mr Kohler
On a point of order, Ms Jardine. I want to place on the record an apology to the shadow Minister. I have read some cases and, much to my surprise, I think the allocation process does come with the trial on indictment; it is not ancillary to it. Therefore, my view is that judicial review does probably come within the statutory bar, so I apologise.
Ordered, That further consideration be now adjourned. —(Stephen Morgan.)