Criminal Justice and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Wednesday 23rd July 2014 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, for the first time I have some hope that there may be an answer to the problem of that part of the Bill that has troubled everyone on all sides of the House, and which will never work in practice no matter how well intentioned it may be. We have now had from my noble friend a very clear outline of the sort of institution that would make sense.

As we all know, so many of the children who end up in this position not only have had appalling backgrounds but often have had no education at all. One of the first things needed is a basic test of the extent to which they are able to read or write. I hope that the Minister will take this issue away and be persuaded that his proposals are absolutely no good and will not have the support—let alone the extra cost that they would involve. They would provide a solution that would be totally unsatisfactory.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I rise to support the noble Lord, Lord Ramsbotham. In his introduction, he gave a very comprehensive analysis of the secure college proposals and came up with positive alternatives, which he has every reason to believe would be more favourable than the secure colleges model.

I want to concentrate on one particular aspect that, as far as I know, no other noble Lords have looked at, and that is the costs involved. As I understand it, an adult male prison place costs about £40,000 a year; a place in a male young offender institute costs about £80,000 a year; a secure training centre place costs about £140,000 a year; and a place in a secure children’s home costs about £210,000 a year. Not surprisingly, those costs are completely dominated by the staffing ratios, which are what control the costs of running prisons. When I put the issue to the former Minister, Jeremy Wright, regarding the proposed staffing levels for the secure colleges, his answer was that that would be a matter for the company that was bidding for the contracts. However, this is fundamental to the cost and the quality of the education provision for young people in custody.

Why are the Government so reticent in talking about what they hope to be the running costs of these institutions when they are up and running? Like all noble Lords, I have had many briefings on this matter, and there was reference to a cost of £60,000 a year per boy in a secure college. I have not found any further reference to that and I do not know whether the figure is right, but the House would be better informed if we knew exactly what the Government aspire to in reducing the per-year costs of having boys in these secure colleges. The Government should not be reticent; there is nothing wrong with trying to save costs, but the Committee would be much better informed if it knew what cost they aspire to.

[The Lord Bishop of Rochester]

My Lords, I hesitate slightly to speak in this debate, not least because I am still rather new to your Lordships’ House and new in my role as bishop to prisons. However, I cannot help but note the wise advice of the noble Lord, Lord Cormack, in encouraging some space for rethinking. Many of us would applaud the overall intention expressed by the former Prisons Minister to establish somewhere that is primarily an education facility but with detention aspects. The difficulty for some of us is that we cannot at the moment see the detail of how that might be provided. Some of the points that have just been raised by the noble Lord, Lord Ponsonby, about staffing levels and so on are key to this. We encourage the Government to have the courage to be a bit more prescriptive regarding who might be the eventual provider than is the case now.

If a mechanism could be found for us to move forward without the need for the Committee to divide on this—which would put some of us in a difficult position—I am sure that it would be appreciated. Like others, I look forward to the Minister’s response in the hope that some consultative way forward on this might be found. I am sure that many of us around the Committee would be more than happy to be part of such a process.

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Moved by

[Lord Ponsonby of Shulbrede]

48A: After Clause 32, insert the following new Clause—
“Application of reporting restrictions to social media
Sections 39 and 49 of the Children and Young Persons Act 1933 shall apply in relation to public electronic communications networks as they apply in relation to newspapers, and sound and television broadcasts.”

[Lord Ponsonby of Shulbrede]

My Lords, I shall speak to Amendment 48A and others in this group. Amendment 48A is largely self-explanatory. The Children and Young Persons Act was enacted in 1933, well before the advent of the internet or any sort of social media. The purpose of this amendment is simple: to make it beyond any doubt that any repeating of things that are sub judice to do with a child’s identity would be prohibited and that orders under Sections 39 and 49 apply to social media just as they do to print and broadcast media. That is the effect of Amendment 48A.

Amendment 48B, which is in my name and the names of other noble Lords, seeks to close a legal loophole whereby children can be named before they are charged and appear in court. This is an anomalous situation that makes a mockery of the anonymity protection. In the recent tragic case of the murdered Leeds schoolteacher Ann Maguire, the Sun newspaper printed the name of the boy accused of her murder before he was charged. Now that the matter is before the court, it is illegal to name him. This is an illustration of the loophole that this amendment seeks to close. Pre-charge naming undermines any anonymity later afforded by the court. I am pleased to see that noble Lords from other sides of the House have added their names to this amendment.

The purpose of Amendments 48C and 48D is that anonymity provided by Sections 39 and 49 of the Children and Young Persons Act 1933 should last for a lifetime. Lord Justice Leveson has ruled that Section 39 orders expire when the child reaches the age of 18. This judgment is being appealed and the appeal is due to be heard in autumn this year. Lord Justice Leveson has said:

“It is for Parliament to fashion a solution: the problem requires to be addressed as a matter of real urgency”.

He is referring to precisely this question of whether anonymity should continue beyond the age of 18. The purpose of Amendments 48C and 48D is that the default situation should be that anonymity should be granted for life unless a court orders that it be lifted.

Why is this a good principle? The principal aim of all youth justice is to prevent reoffending. I would argue that naming a child as an offender, particularly in this day and age, would work against that child’s interests. Their name is likely to get on to the internet and to stay on the internet. It will make it more difficult, once the child is identified and named as an offender, for that child to change their ways. More than that, it will punish innocent families. We know that children identify very strongly with their siblings, more strongly than adults do. I have been made aware of a number of cases where the names of children who have been charged with an offence have come to light and the families, particularly the siblings, of the children have suffered as a result. This only serves to worsen the situation and to set back the prospect for rehabilitation. That is the purpose of Amendments 48C and 48D. I beg to move.

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I would like to revisit this matter on Report. In the light of that request, which I hope noble Lords will accept is entirely sincere and an appropriate response to this debate, I hope that they will, in the mean time, not press their amendments.

[Lord Ponsonby of Shulbrede]

My Lords, I thank the noble Lord for that response, which I found constructive in a number of respects. On Amendment 48A, the noble Lord said that he would give further thought to this matter and pointed out the issue of the amendment being so broadly worded that it might include private correspondence by e-mail. I acknowledge the point: the matter needs to be looked at more carefully.

On Amendments 48B and 48C, the noble Lord referred to the previous Government introducing the affirmative procedure and the adoption of new self-regulation procedures within the media. These are probing amendments and we on these Benches will consider whether to bring them back on Report. I acknowledge the points that the noble Lord made in addressing them and I was pleased with his response to Amendment 48D, when he said clearly that he wants to revisit the issue on Report. Therefore, I beg leave to withdraw Amendment 48A.

Amendment 48A withdrawn.

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[Lord Ponsonby of Shulbrede]

My Lords, I welcome the Government’s move to single justice procedures. I have sat on many hundreds of these types of cases and it is absolutely not necessary for three justices to sit to make such determinations.

I have three amendments—the noble Lord referred to them in his comments—which the Magistrates’ Association has asked me to put forward to clarify particular issues. As the noble Lord said, Amendment 50A is an amendment to the Government’s amendment which seeks to add that specified and relevant information should be made available to the court. The concern raised by the Magistrates’ Association is that magistrates should have access to the right information, such as DVLA records, as appropriate. The amendment was worded in a wider sense because if one was dealing with television licences one would need information on non-payment. The amendment is to ensure that magistrates, when sentencing, have specific and relevant information in front of them.

Amendments 50B and 51A would require the court to give public notice of trials under the single justice procedure and to publish the outcomes of these trials. I know the Magistrates’ Association has been consulted fully on these changes and everyone is aware that we are dealing with high volume, low level regulatory cases more than anything else. Nevertheless, it is important that these cases are dealt with properly and that the public should have confidence in our legal system. Therefore they need to know when the trials are happening and the results of those trials. The purpose of the amendments is to provide some clarity on what the Government intend to do in making sure that the trials and their results are well published.

As the Minister pointed out in his comments, if anyone turns up for a trial, the matter would be put off to be dealt with by a Bench of three. That is, of course, right and proper.

[Lord Beecham]

It is some 23 years since I last appeared before Newcastle magistrates. I should make it clear that I was in a professional capacity, although I had the pleasure recently of seeing them in a political capacity. As I think I mentioned at Second Reading, I attended a meeting of what is now the Northumbria Bench—in the current state of play, of course, there is no longer just a local Newcastle Bench. Unlike my noble friend Lord Ponsonby, who of course has long experience as a sitting magistrate, I was initially attracted to the notion that some have suggested; namely, that, although the procedure is generally to be welcomed, it should be not one magistrate but two who sit on these matters. However, I am persuaded not only by the eloquence and logic of my noble friend but, perhaps more relevantly, by the almost unanimous opinion of the local Bench in Newcastle and Northumbria that such a precaution is unnecessary.

There are, however, a number of issues, which are the subject of amendments to which I shall now refer. The first of those is Amendment 49A, which would ensure that there is a proper procedure for determining which offences can be tried under the new system. It is obviously sensible for many of the offences which have been canvassed in discussion—television licences and matters of that sort—to be dealt with in this way, but the amendment would require that the issues be determined by regulations and approved by Parliament. We do not want added to the list for disposal in this way matters which are not necessarily the first that come to mind as more or less formalities. It would not be asking too much of the Government for them to indicate what they intend and how many offences and for them to proceed by way of regulation. In this case, the negative procedure would be quite acceptable.

Amendment 49B would remove the automatic paper trial if the defendant did not respond to the notice that would have been given. There is a potential for difficulty to be encountered here if, for example, the defendant does not understand English or the purport of the document. What is sought in the amendment is that failure to respond would not itself trigger the automatic transfer to dealing with the case on the papers.

Amendment 49C, on the provision of evidence in respect of vehicle licensing cases, would require the court to be satisfied with the position as recorded by the DVLA, so that the defendant would have an opportunity to say that matters had been dealt with on the basis of the DVLA providing information. It is a relatively modest requirement.

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[Lord Faulks]

I thank noble Lords who have taken part in this useful debate. In addition to my response and the moving of government amendments, the debate has enabled the Government to place on record the rationale behind these provisions, which are broadly welcomed. I am reassured to hear, as I knew was the case, that the Magistrates’ Association is very much in sympathy with this, as are magistrates such as the noble Lord, Lord Ponsonby, and Newcastle magistrates’ court, which, sadly, misses the noble Lord, Lord Beecham. There is general consensus that this is a move in the right direction. Nevertheless, I also understand that there is the feeling that there should be safeguards to ensure that there is no sense that these hearings take place behind closed doors unless it is entirely appropriate that that should be the case.

I shall deal first with Amendment 49A, which seeks to require that the list of offences to which the new single justice procedure should apply is set out in secondary legislation. Our intention is that all summary, only non-imprisonable, offences should be in scope of the procedure. However, we anticipate this procedure being used only in the more straightforward cases, such as where the particular circumstances of the case mean there is no direct victim or specific threat to public safety involved, or cases that involve offences designed to regulate the conduct of some particular activity in the public interest where there is a minimal or no mental requirement needed to prosecute. In legal terms, this would mean cases where there is no mens rea or it is easy to prove mens rea.

We expect offences that are technically in scope of the legislation but which might not be suitable for the new procedure to be initially filtered out by prosecutors who make decisions on the handling of these types of cases on a daily basis. It will, of course, be for a single justice to decide whether a case is appropriate for this procedure, and he or she can refer it to the ordinary court at any time. I fully understand the temptation to try to limit or specify a list of offences to which the single justice procedure might apply. However, we have high-quality magistracy in this country who are well used to exercising their powers to determine the right forum within which cases should be heard.

Amendment 49B relates to the rights of the defendant under the single justice procedure. Our provisions allow the court to use the single justice procedure unless the defendant explicitly states that he or she does not want that to happen or intends to plead not guilty, in which case it will automatically be referred to a traditional magistrates’ court. The objective of the single justice procedure is to address the current situation, whereby a significant number of defendants fail to engage with the process at all. Although the effect of the amendment would be to allow a single justice to consider any case, regardless of the defendant’s response, I understand that the intention is to remove the ability of the single justice to hear cases where the defendant has not responded. I recognise that this may be in response to concerns about the assumption that, where a defendant does not engage, the case should nevertheless still be heard by a single justice. However, it should be remembered that the defendant will have the right to request a traditional hearing in open court at any point before his or her case is considered by the single justice. If a defendant does not know about the case until after it is finished, they can make a statutory declaration to that effect, which will start the proceedings again from the beginning.

Amendment 49C would introduce a new requirement that the documents sent to the defendant with the single justice procedure notice should include a copy of the submission from the DVLA informing the court of any penalty points on the defendant’s driver record. It is the explicit responsibility of the holder of a driving licence to ensure that it is kept up to date by surrendering it as and when required for details to be changed or endorsements added. If there are endorsements on a driving record that do not appear on the counterpart of the corresponding driving licence, the licence holder might well be committing a further separate offence. I assure noble Lords that courts will have direct access to DVLA records. The days that the noble Lord, Lord Beecham, remembers of a moth-eaten driving licence being handed up to the justices have departed. A single justice will have information about an offender’s previous offences before them when trying a motoring offence.

[Lord Ponsonby of Shulbrede]

My Lords, I am sorry to disabuse the noble Lord, but those days are not departed. In fact, it is far more common for the defendant not to be able to produce a driving licence at all.

[Lord Faulks]

I defer to the noble Lord’s experience in that regard, although the new format of the driving licence makes it slightly less destructible than its predecessor. I maintain nevertheless that the courts do have access to the DVLA records, so, when trying a motoring offence, a single justice will have the information even if the defendant does not produce a driving licence at all. I am therefore confident that the safeguards we have built into this procedure make the amendment unnecessary.

Amendment 50AA would remove the provision that a court can decide a case under the single justice procedure other than in open court. That would undermine one of the main drivers behind this policy. We consider the time wasted and costs incurred in requiring magistrates to sit in open court and decide cases disproportionate in the type of straightforward, low-level cases that this procedure will apply to. Safeguards are in place to enable a prosecutor to ensure a case is heard in open court by issuing a requisition and a defendant to ensure the same by indicating his or her wishes in response to the single justice procedure notice. I reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure that proceedings are open and transparent. The press and public will continue to have access to information about these cases, as they do now.

Amendment 50C would allow a single justice to hear and consider evidence from a party to the case if they turn up when the single justice is considering the case. In practice, parties will not know when a case will be considered by a single justice under this new procedure, so it is extremely unlikely that this situation would occur. However, there is a risk that it could be seen as encouraging prosecutors to turn up and assist the court. That could be perceived as unfair and unequal, particularly if the case was being heard other than in open court. We could not allow evidence to be heard by a magistrate when a single justice was making a decision, as that would lead to unfairness if the other party had not been given the opportunity to consider that evidence. In any case, there is clear provision in the Bill stating that when a person wants to be heard by a magistrates’ court, they are perfectly able to request a hearing.

Amendment 51B would introduce a legislative requirement to publish in advance details of cases to be heard under the single justice procedure and to publish the outcome of these cases. It is, of course, vital that the media and the public continue to have access to information on these cases under the new single justice procedure. However, the appropriate place for such provisions is within the Criminal Procedure Rules. Those make it clear that certain specified information must be made available to journalists and other members of the public on request. The rules also allow the court to make certain additional case information available to third parties on request. The Criminal Procedure Rule Committee will be invited to review the Criminal Procedure Rules to make sure that they are fit for purpose for the single justice procedure.

I can reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure the proceedings are open and transparent. The press and public will continue to have access to information about cases, as they do now. There is a protocol in place between Her Majesty’s Courts and Tribunals Service, the Newspaper Society and the Society of Editors whereby magistrates’ courts routinely make written lists of cases and results available to local media, most often by e-mail. This arrangement will continue.

Amendment 52A introduces another condition on which a defendant can make a statutory declaration so that, in addition to being unaware of the proceedings, the defendant can state that they did not understand the information contained in the single justice procedure notice and the accompanying documents. This deals with the point made by the noble Lord, Lord Beecham, about things such as language difficulties. The associated documentation sent to defendants under the single justice procedure will be no more complex that the documentation which is currently sent in this type of case; indeed, we are confident that the flexibility afforded by this new procedure will enable us to make the whole system for these cases more easily understood by defendants. As with the existing process, prosecutors have developed strategies to identify those who may require further assistance and Her Majesty’s Courts and Tribunals Service is also considering, as part of implementation planning, how it will continue to discharge its duty to provide assistance to unrepresented defendants. The provisions, as set out, provide magistrates’ courts with the flexibility they need to operate the single magistrate procedure effectively while ensuring that the rights of defendants are protected.

I will say a little more about the suggestion put forward by the noble Lord about the availability of information on case outcomes. I agree that the information should be available as soon as possible after the trial has concluded. In both cases, the noble Lord suggests that this should be within 21 days. However, such detailed procedure should not be contained within the legislation itself. As I said earlier, the appropriate place for such detail is within the Criminal Procedure Rules.

We know that journalists and the general public seldom attend to watch this type of hearing and this is the reason behind the protocol to which I referred. As to the listing, we accept that it is vital for there to be access to information and we anticipate that cases will initially be listed in the same court buildings as they are at the moment. This arrangement with local media will replicate exactly what currently happens in practice. In future, we will want to take advantage of the fact that consideration of cases in writing can happen anywhere, and maximise the efficiency that can be derived from this greater flexibility. In doing so, we will want to maintain flexibility and transparency.

There are opportunities, as part of the criminal justice system digitisation agenda, to look more radically at how we can use the opportunities of digital to preserve and perhaps enhance open justice. It is our intention to make case information available on a self-service basis and enable the press and public to access cases in real time and follow the progress of the digital process online in a more meaningful way than they can at present. The rule committee will be invited to review the rules to ensure they are fit for purpose for the single justice procedure. I am sure that such a review will want to take into account the proposals made by the noble Lord, Lord Ponsonby. Any necessary amendments can be made, subject to annulment by either House of Parliament in the usual way.

I hope that, in the course of rather too long a response to those amendments, I have been able to allay any concerns and explain the thinking behind the single justice procedure. With that reassurance, I hope noble Lords will not press the amendment.

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[Baroness Howe of Idlicote]

My Lords, I, too, have had correspondence from those very concerned about this issue. I do not intend to take up your Lordships’ time by going further into this whole matter, but in as far as this is not already in place it clearly needs to be, and the sooner it is put into effect the better. I am still rather surprised that it does not exist automatically as a natural procedure in court.

[Lord Ponsonby of Shulbrede]

My Lords, first, I apologise to the noble Lord, Lord Low, for not being in the Chamber for the whole of his contribution. I wish to make a couple of points. The first is that this is good practice within magistrates’ courts at the moment. Certainly, every court I have sat in has made these inquiries. Nevertheless, I take the point that it may not be universal practice and it may not be a statutory requirement.

Secondly, I wanted to pick up the point made by the noble Lord, Lord Blair, about informing the schools and so on. It seems to me that this amendment does not go that far; all it does is allow the defendant to make a telephone call. Some of the defendants I see in front of me would make a telephone call, but one might not have confidence in the telephone call that they made. Therefore, I think there needs to be a more active inquiry by, for example, social services or the probation service about the possibility of dependants at home. Nevertheless, I agree with the objectives of the amendment. I look forward to the Minister’s response about the practicalities and also whether the amendment goes far enough.

[Lord Kennedy of Southwark (Lab)]

I am delighted to support the amendment in the name of the noble Lords, Lord Low of Dalston, Lord Blair and Lord Hodgson of Astley Abbotts. With their wide range of experience they have correctly identified that, despite the best of intentions, the support of the Courts Service and of charities, in too many cases courts are not making sufficient checks with regard to the immediate welfare needs of children and dependent adults. The amendment seeks to put in the Bill what should happen at present but has clearly not been delivered in many cases, and that is a matter of much regret. I agree with the noble Lord, Lord Blair, that this is a fairly small measure but it deals with an important issue that needs to be addressed.

My noble friend Lord Touhig told the House of a number of young people and children who were put into difficult situations because simple provisions were not in place. I agree also with many noble Lords when they said that the children of prisoners were a highly vulnerable group of people who need to be looked after.

As the noble Lord, Lord Low of Dalston, explained to the Committee, the amendment will require the courts to inquire of a defendant who has been sentenced or remanded to prison whether they have dependants and whether arrangements have been made for them. If they have not, they would be allowed to make a phone call to make arrangements or, where that is not possible, the court could direct someone to take action before the defendant leaves court.

People sometimes need to be sent to prison. All this amendment does is to seek to ensure that adequate immediate provision is made for dependants. As the noble Baroness, Lady Benjamin, said, all we are requesting is for two simple questions to be asked. I do not think this amendment in any way places a burden on the courts that could not be handled. If the noble Lord, Lord Faulks, is going to say that, I hope he will explain very carefully why he thinks that is the case and answer the point that I and other noble Lords have made in this debate, which is that the voluntary provision has failed and that continued failure is likely to cost far more to dependants and to their welfare.

I see the provision working fairly simply. When I sat in court as a magistrate, although that was some time ago, courts adjourned for all sorts of reasons. It is very easy for questions to be asked and action taken. It is also true that in many cases, especially if the defendant fully expects to receive a custodial sentence, arrangements for dependants will have already been made.

All we are looking for is a clear set of proportionate responses to come into play with the welfare of the dependants of someone who has received a custodial sentence at their heart. I hope that the Government can either accept this amendment or at least look at this issue again and the problems that have been identified before we come back to it on Report.