Courts and Tribunals Bill (Sixth sitting)

Rebecca Paul Excerpts

Thursday 16th April 2026 Public Bill Committees

I would appreciate the Minister explaining how confident she is that additional delays will not be created by the retrospective action, whether it is lawful to give retrospective effect, and what the decision is likely to be in any individual case. Are the Government unnecessarily opening up an area of burdensome litigation and delaying the process further for victims of crime?

[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.

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[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.

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[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.

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[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]

I know that that would absolutely not happen—

[Rebecca Paul]

Why not?

[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.

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[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.

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[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.