Courts and Tribunals Bill (Tenth sitting)
Sarah Sackman Excerpts(4 days, 14 hours ago)
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Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to have you guiding us through the second part of the proceedings today, Ms Jardine.
Clause 9 is part of a rolling set of clauses about the admissibility of evidence. Our task is to ensure that, while we protect complainants from being retraumatised by intrusive lines of questioning, we also maintain a legal framework that is clear, workable and consistent with the fundamental right to a fair trial.
Clause 9 specifically addresses the use of evidence regarding compensation claims made by complainants in sexual offence cases. Under current practices, complainants are sometimes discredited or have their credibility attacked simply because they have sought compensation for the harm they say they have suffered. It is entirely fair and reasonable, and a valid part of our law, for someone to pursue a criminal case and also seek financial compensation. But sometimes there is an underlying misconception that the act of seeking compensation, on its own and without any more evidence, means that the original criminal complaint may have been fabricated.
To address that, clause 9 introduces the following measures: a leave requirement, which means that evidence about a compensation claim cannot be introduced without the court’s explicit permission, and an admissibility threshold, under which a court may admit such evidence only if it has “substantial probative value” in relation to a matter of “substantial importance” to the case as a whole. The goal is to ensure that irrelevant or purely prejudicial material is excluded, while still allowing genuinely probative evidence to be heard when the interests of justice require it. The law must guard against unfair insinuations, but the admissibility test must be applied with precision and discipline. While the objective of protecting complainants from unfair discredit is welcome, there are practical and legal implications that require clarification.
As I have said to the Minister, some of my questions will be consistent throughout the clauses. Can she elaborate on how she expects the courts to interpret the terms “substantial probative value” and “substantial importance”, and outline how the Government will seek to ensure that the restriction does not prevent a defendant from exploring the full circumstances of the case?
Is the Minister confident that the current drafting provides judges and practitioners with a clear enough structure to apply the principles consistently across different courts without creating a postcode lottery? In terms of monitoring and evaluation, what work will the Government do to ensure that these new measures have the desired impact?
Clause 9 is straightforward: its premise is that a victim should not be put on trial for seeking the compensation they are entitled to under the law. Excluding irrelevant and prejudicial material can help ensure that the trial remains focused on the actual evidence of the offence. However, we must be diligent in our scrutiny to ensure that the drafting delivers those protections without compromising the procedural rigour that a fair justice system demands.
The Minister for Courts and Legal Services (Sarah Sackman)
As with the previous debate, I will set out the rationale for clause 9 and then turn to the amendments tabled by my hon. Friend the Member for Easington (Grahame Morris).
Clause 9 will create a high admissibility threshold for evidence about a complainant’s compensation claims in sexual offence prosecutions. That could include evidence that a victim has made a compensation claim in relation to the offence being tried, the amount of money awarded as compensation, details of the claim or the fact that compensation was refused. The Law Commission report made clear that compensation claim evidence is disproportionately requested in sexual offence cases, and that, in some instances, it is used by the defence to insinuate that a victim has fabricated an allegation for financial gain. That kind of reasoning lacks a legitimate basis and risks unfairly undermining victims.
This measure will ensure that such evidence cannot be admitted when its sole purpose is to introduce or perpetuate misconceptions about why survivors come forward. Instead, a judge will be able to admit compensation claim evidence only when it has substantial probative value to a genuinely important issue in the case. These reforms therefore strengthen protections for claimants while maintaining the defendant’s right to a fair trial.
I will respond to the questions from the hon. Member for Bexhill and Battle. He fairly raises the issue of how we can assess that these tests are being applied fairly and consistently. That will obviously take time as they bed in, but, in many ways, the precise rationale behind these changes is to codify, clarify and simplify tests that already exist for the treatment of evidence in these cases and to assist our judges to use them fairly. There is no doubt that future Ministers and others with responsibility for this issue will want to know that it is working as intended. No doubt studies can be undertaken in the future. I commend clause 9 to the Committee.
I turn to amendment 68. The Law Commission’s review made clear that compensation claim evidence is disproportionately requested in sexual offences cases, as I have said. That is precisely why we have introduced the high admissibility threshold in the Bill. The amendment asks for a threshold of merely “relevance”, which is lower than the statutory threshold we propose. If we were to accept it, it would not give complainants any additional protections above the current status quo, despite the Law Commission identifying a clear issue with how this evidence is currently being requested and used. For those reasons, I urge my hon. Friend the Member for Bolton South and Walkden to withdraw the amendment.
Amendment 69 focuses on the disclosure of evidence to the defence before an application is made to admit that evidence to the courtroom. However, the clause does not change the test that the prosecution must currently apply when considering whether to disclose details of a complainant’s compensation claim to the defence. Instead, it focuses on the stage after the prosecution and defence have reviewed the evidence, and asks the judge to consider whether the evidence indeed has substantial probative value and can therefore be relied on in court.
As the clause stands, the case will remain that the prosecutor must disclose to the defence any material that might be considered capable of undermining or assisting the case of the accused—that is only fair—and that includes the compensation claim evidence. The defence, in cases involving sexual offences, can then consider how they wish to bring that forward. For those reasons, I urge my hon. Friend the Member for Bolton South and Walkden not to press the amendment to a vote.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 ordered to stand part of the Bill.
Clause 10
Evidence about previous false complaints relating to sexual offences
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
Clause 10 sets out that evidence or questioning about a victim’s previous allegation of a sexual offence may be admitted only when there is a proper evidential basis for doing so. It also clarifies that certain facts do not, by themselves, mean that a previous allegation was untrue. Those include: if the victim did not report the offence to the police; where an allegation did not result in a charge or conviction; and where a victim withdraws from proceedings.
The Law Commission’s report, alongside the sector campaign “Bad Experiences, not Bad Character”, identified inconsistencies in how courts currently approach previous allegations in sexual offence trials. There have been instances where previous unproven allegations have been raised to suggest, without evidence, that a victim is unreliable by insinuating that such allegations were false. That risks reinforcing myths and misconceptions, making the trial process a traumatic one for the complainant.
This measure will maintain a defendant’s right to a fair trial. Judges will still be able to admit evidence about a complainant’s previous allegations when there is a proper evidential basis for doing so. The clause simply creates a clearer and more consistent statutory test to ensure that such decisions are based on sound evidence rather than speculation. Victims should feel confident that a previous allegation will not be unfairly used against them in the courtroom. Clause 10 strengthens the integrity of the trial process while supporting complainants and survivors to come forward and engage in the justice system.
Dr Mullan
As the Minister said, we are considering the next iteration of the question of admissibility, which addresses the evidentiary rules regarding previous false complaints in sexual offence cases. This is a sensitive area of criminal law where the pursuit of truth must be carefully balanced against the need to protect complainants from unfounded attacks on their character. The primary objective is to ensure that trials remain focused on the actual facts of the case at hand rather than being diverted by speculative allegations that a claimant has made false allegations in the past. The Law Society and Bar Council have indicated their support for this measure; they recognise that it brings clarity to the statutory framework governing bad character and credibility.
The central feature of clause 10 is the introduction of a requirement for a “proper evidential basis” before any suggestion can be made that a complainant has previously fabricated an allegation of sexual offending. Currently, there is an ever-present danger that the defendant may attempt to undermine a complainant’s honesty by pointing to past allegations that simply did not result in a conviction. That is related to the challenges that we discussed in the debate on clause 8 regarding the difficulty of complainants when it comes to seeing a case through to the end—either because of the delays in the courts, which we are all concerned about; challenges with the police; or fears or concerns they might have about how their case was treated in the courts. There could be a whole series of reasons why a complainant does not pursue an allegation through to its fullest conclusion, none of which have anything to do with the allegation being false.
Under the clause, the following factors are explicitly excluded from being used as sole proof of a false complaint: the fact that a previous allegation was denied; the fact that a previous case did not lead to a charge or result in an acquittal; any delay by the complainant in reporting the previous matter; and a complainant’s decision not to pursue or support prosecution in the past. By codifying those exclusions, the Bill aims to eliminate the use of unsupported assertions and ensure that the court does not rely on assumptions or stereotypes that are frequently used to imply that a complainant is untruthful. This is a helpful step in reforming the trial processes by ensuring that a defendant’s conduct and not the complainant’s history remains the focus of the jury.
While the principle of clause 10 is sound, its success depends on how the courts interpret and apply the proper evidential basis test. We must ensure that this framework is robust enough to shield victims from speculative and prejudicial questioning while still being fair to the defendant.
I have some questions for the Minister. Can she provide the Government’s thinking on what a proper evidential basis will look like? Do the Government envisage it requiring independent, objective proof of falsity, such as a previous conviction for perverting the course of justice, or will a lower standard suffice? Is the Minister confident that the current wording provides a road map clear enough to prevent judges from applying different standards? I want to address the gap in the data and understand how the measure will be implemented.
In relation to previous complaints, very sadly there are victims of violence against women and girls who have been affected hundreds of times. Will the Minister explain what would happen if some of these “for exclusion” criteria had occurred at an extraordinary rate? If a complainant’s decision not to pursue or support a prosecution relating to a crime that happened hundreds of times, that could in itself be relevant. It would not necessarily be so—they may have chosen hundreds of times not to support a prosecution. However, unlike other elements of the Bill, the clause is highly specific in what it is excluding, so I want to check whether there is any flexibility for the judge so that, in extremis, they can still admit the evidence, or whether there is a hard no, regardless of circumstances.
Jess Brown-Fuller (Chichester) (LD)
Rape Crisis has pointed out that current practice ignores the fact that women are often subjected to multiple instances of sexual violence in their lives. Survivors have told Rape Crisis that they feel disbelieved, blamed and retraumatised when they simply try to seek justice. SafeLives and End Violence Against Women are both in favour of the reforms in clause 10. It is worth pointing out that black and minoritised women are disproportionately harmed in the criminal justice system by misuse of bad character evidence.
Office for National Statistics data shows that one in two adult survivors of rape have been raped more than once. The National Police Chiefs’ Council strategic risk assessment 2023 identified that 25% of victim survivors were repeat victims of violence against women and girls. The drafting of clause 10 reflects calls from a coalition of women’s rights groups for section 100 to be amended in this way. It was drafted and supported by the Centre for Women’s Justice, and the Liberal Democrats are pleased to support it.
Sarah Sackman
I welcome the support from Members across the Committee for clause 10. A proper evidential basis is defined in the Bill as ensuring that there is material before the court that shows both that the complainant made the previous allegation and that the previous allegation was false. I do not want to elaborate on the test, and thereby in any way tie the hands of the judge hearing the evidence in the case. The tests and the clear structure set out in the Bill will enable and empower the judge to test whether there is an evidential basis for the claim and whether it has probative value and relevance to the issues at hand. The judge will then be able to take a view on whether it can be included and put to a witness.
There will always be cases where the evidence is relevant to the proceedings, both for the prosecution and for the defence. There is certainly no hard rule excluding it altogether.
Dr Mullan
Contrary to our other interactions, I think it reasonable for the Minister just to write to me. I read the Bill to mean that these types of things cannot be included at all, so could she at some point to clarify whether that is the case or whether there is some flexibility at the edges?
Sarah Sackman
I am very happy to do that. I will make that correspondence available to all members of the Committee and the wider public because it is important that, when judges and others are looking to apply the test, they understand the Government’s rationale and understanding of the provisions.
For reasons that others have articulated, this is an important clause, which recognises something that women’s groups and others have been campaigning on for an awfully long time. It can help to change the culture in our criminal justice system for victims of sexual violence.
Rebecca Paul (Reigate) (Con)
I would appreciate some clarity from the Minister on the deviation from the recommendations of the Law Commission—again, just so that we are clear. To refresh her memory, the Law Commission, in its written evidence, states that
“Clause 10 does not implement our recommendations in two key respects.
(1) It does not implement our recommendations regarding distinguishing the different categories of evidence and the thresholds that should apply where there is a previous allegation of sexual offending. Nor does it address the confusion about whether FAE should be subjected to the BCE or SBE frameworks”—
that probably means more to the Minister than to me. It goes on:
“As set out above, in our view, if the evidence of an allegation does fall within the definition of ‘sexual behaviour’, the SBE framework should apply. If not, then the bad character framework will apply, or the relevance threshold will apply if the evidence of an allegation is not said to be false or is not alleged to be misconduct.
(2) It does not address the concern that within the BCE framework there is currently no express provision for consideration of the particular risks associated with the sexual nature of previous allegations, as we recommended.”
Sarah Sackman
I will set this out in writing so that, again, the hon. Member and the public have it, but I can say, in essence, that although we agreed with the spirit of the entirety of the Law Commission’s recommendation, our view was that stage 1 of the test, which is effectively reflected in the Bill, already sets a high bar. We thought that that was sufficient in the context and that stage 2— I was asked about this previously—would not add materially to the way in which the test operates. However, I will take the opportunity to give a response to the question that the hon. Member has just asked so that she can interrogate that over time.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Evidence of propensity to commit offences involving domestic abuse
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
Clause 11 will ensure that if a defendant has a previous conviction for domestic abuse—of any type and against any victim—it can be taken into account as evidence of bad character in a further domestic abuse case. That will help courts to recognise relevant patterns of behaviour that might otherwise fall outside narrow offence category boundaries. We know that domestic abuse can take many forms and that patterns of domestic abuse do not always map neatly on to a single type of offending. Recognising those patterns can help juries to understand the context of the offence.
The clause therefore allows previous domestic abuse-related convictions to be admitted as propensity evidence when the statutory test is met. That will include cases in which the previous conviction involved coercive or controlling behaviour, and the current allegation involves a different form of domestic abuse, such as sexual assault against an intimate partner. Our aim is to ensure that courts can consider relevant patterns of abusive behaviour when they provide important context on the issues in the case while maintaining the full range of safeguards that protect a defendant’s right to a fair trial.
Clause 11 completes the package of evidential reforms set out in clauses 8 to 11. Taken together, the measures provide greater clarity, consistency and coherence to the rules governing sensitive evidence. They help to improve the experience of victims—particularly victims of sexual offences—in the criminal justice system while ensuring that trials remain fair and balanced. I urge that clause 11 stand part of the Bill.
Dr Mullan
We now go to the other end of the spectrum and look at this from a different direction by addressing how courts handle evidence of a defendant’s propensity to commit domestic abuse. The provision acknowledges that domestic violence is rarely a series of isolated, vacuum-sealed events; rather, it is often characterised by established patterns of coercion, control and escalation over time, repeated across relationships, although potentially in different ways. When thinking about the precedent in our system, it brings to mind Clare’s law, which we brought in for the very purpose of allowing members of the public to know someone’s domestic abuse history, because we recognised just how common it was for abusers to move from victim to victim.
The primary function of clause 11 is to clarify the rules regarding admissibility in respect of past domestic abuse offending. It establishes that a defendant’s previous conduct can be used to demonstrate an inclination to commit similar crimes, even in instances when the earlier and later offending take different forms. That ensures that the law recognises the underlying reality of abusive relationships, where the specific method of harm may change while the dynamic of power and intimidation remains constant. As we have discussed previously, the prevalence of such behaviour is so great that we have to do whatever we can to support victims.
The Bar Council has noted that while much of such material might already be admissible under existing bad character provisions, clause 11 provides statutory clarity for judges. Of course, the court’s duty is to ensure that a jury does not convict a defendant for a specific charge simply because they have behaved poorly in the past. The evidence has to remain relevant and fair, and to be assessed within the unique context of the case. Nothing about introducing that information stops that from happening, as the jury or judge can weigh it up as they see fit in that regard.
How do the Government intend to ensure that propensity is defined narrowly enough to prevent juries from using a defendant’s past as a shortcut to a verdict? Given the Bar Council’s view that that might already be covered, what did the Minister see as the key gaps between how the law operates at present? What are the direct benefits of clause 11 beyond how things currently operate?
I am personally more hard-line when it comes to bad character admissions and previous convictions. I think the whole system should be much more flexible. We have a tough, rigorous way of finding out if someone is guilty, and we know that previous offending is a massive indicator, across many offence fields, of a propensity to offend again. It is part of natural justice. We all understand that if someone has been found to have done the wrong thing on other occasions, it is quite natural and reasonable for people to give that considerable weight when determining that person’s credibility and reliability, and if they can be trusted.
A lot of court cases come down to the likelihood of something happening—how probable it was that someone did something. The fact that someone has done something similar before is clearly going to weigh heavily on any reasonable opinion former’s mind when deciding whether that person has done the same thing again. We support the clause, which has great merit.
Sarah Sackman
I will be brief. What we have tried to do with the definition of propensity—we think this is the benefit—is to provide clarity and a structured process for judges. Of course, it is important to remember that a trial is not a likelihood test. As we all know, it is a test of the criminal standard of proof beyond all reasonable doubt, whether it is a judge-made decision or a jury directed by a judge. It is really important, even in the context where bad character evidence is admitted—the issue of propensity is there—that juries are reminded that they have to be absolutely sure that the offence did happen.
A decision cannot be based on the fact that a person did something before and therefore probably did it again. The jury has to be absolutely sure. None of that changes. That standard of criminal proof does not change as a result of clause 11. We hope that, in line with the Law Commission’s recommendations, the measure provides a clear, structured and, above all, consistent series of tests so that, irrespective of where a trial happens in the country, the same approach is taken and there is a shared understanding among judges, juries and practitioners as to what the test is.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Use of screens etc
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
We now come to a series of clauses that deal with what happens during the course of trials and the use of special measures—the architecture, so to speak, of what takes place to ensure fairness for all participants. Clause 12 makes an important clarification to the operation of screens in our criminal courts. At present, section 23 of the Youth Justice and Criminal Evidence Act 1999 allows for screens to prevent a witness from seeing the defendant. However, it does not make it explicit that the defendant should be unable to see the witness. In practice, that is almost always how screens are used. When I visited Harrow court, which I am pleased to say recently reopened after three years, I saw that in operation. However, the Law Commission has highlighted that the absence of clear statutory wording has, at times, led to confusion among complainants and practitioners as to who is entitled to what.
Jess Brown-Fuller
Clause 12 stipulates that when a direction allows evidence by live link or pre-recorded cross examination, screens must also be provided unless that would be contrary to the interests of justice, such as due to preventing the adequate testing of evidence. It also clarifies under a special measure direction that a screen may be used to prevent either the witness from seeing the accused or the accused from seeing the witness. The Liberal Democrats welcome the clause.
Vulnerable and intimidated witnesses are entitled to a number of additional measures to protect them from defendants. When the Law Commission conducted a review of these measures in relation to sexual offences cases, it came up with a number of recommendations, although the Government have chosen not to take forward some of them, such as introducing automatic entitlement for sexual offence complainants or providing complainants with independent legal advice on their entitlement to special measures.
It would be helpful to understand from the Minister why the Government chose not to introduce those recommendations, which would have turned special measures into almost standard measures. The blanket introduction of these measures would save administrative time and cost. I recognise that this is anecdotal, but the judges I have spoken to have said that if they get a request for special measures, they never refuse it.
Surely by reversing the onus and introducing the special measures as standard, we would still provide an opportunity for victims to opt out of those measures if they have a particular desire to see, or to look into the eyes of, their defendant, but if they did not wish to do so, they would be, at the very minimum, provided with protections. If this was the standard approach, it would also give more women—this affects mostly women—the confidence to come forward knowing that their court experience is going to protect them.
On a recent visit to Chichester Crown court—I thank the Minister for committing to reopening that court fully—His Majesty’s Courts and Tribunals Service talked about creating videos for those who are coming to give evidence, with the opportunity to have a virtual walk-through of the court. If vulnerable witnesses and victims were able to watch a walk-through to see exactly what measures could be put in place as standard to protect them, I imagine that would provide much more reassurance than saying, “This is what you are seeing, but there are also additional special measures that you can apply for.”
Introducing these measures as standard would also take away the stigma of being associated as a vulnerable witness. We talk a lot about victims. Some victims do not want to be described as victims; they want to be described as survivors. We talk about vulnerability. If we had these measures as standard, we would be acknowledging that vulnerability is expected, but that there is no stigma around it and that the courts have mitigated it, without being asked to do so.
The measures are backed by various victims groups, such as Women Against Rape, and by the Victims’ Commissioner. It would be helpful if the Minister could highlight whether the Government plan to go further and make these special measures standard.
Sarah Sackman
I thank the hon. Member for Chichester for the points she raised. In many respects, they are well made, and they consider people’s choice architecture—for want of a better phrase—their understanding of what they might be entitled to request, and whether we should default to providing all the special measures or maintaining, as we say we should, a tailored case-by-case assessment of the needs of the witness or the complainant. It is a tricky one.
We want to make sure that, where there is a proper basis for it, special measures can be provided to those who need them and where the judge agrees that they are needed. The hon. Member is right that in the vast majority of cases, the request for special measures or to give evidence by video link is approved— it is almost always approved—but there might be cases when, for reasons of trial fairness, that is not the case. The tailored approach is one that we regard as proportionate.
This also relates to the points made by the hon. Member for Bexhill and Battle about court layout and some of the physical constraints that exist within some of our Crown courts. We do not want a postcode lottery. We want consistency, which is what so much of the Bill is designed to achieve. However, we also have to acknowledge that in some of our Crown court centres, the physical constraints are real. That does not necessarily relate to screens, but it might relate to the entrance and exit. For example, there are limitations on the ideal situation of a complainant being able to avoid having to pass a defendant, which might be undesirable for all sorts of reasons. There are some courtrooms in which that simply is not possible without huge capital investment to change the physical structure.
Hon. Members have raised legitimate points and I understand the thinking behind them. We think that in the circumstances, and given that victims have a wide range of needs, a tailored approach, based on a detailed needs assessment, is the most effective approach, but we will continue to consider the situation.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clause 13
Witness to be accompanied while giving evidence
Yasmin Qureshi
I beg to move amendment 70, in clause 13, page 27, line 37, at end insert—
“(7) Disclosure of the details of any connection between the independent supporter and the complainant is required prior to seeking the court’s agreement of the independent supporter.”
This proposed addition is simple. The clause centres on witnesses being accompanied while giving evidence. Essentially, it states that if somebody wants another person to accompany them, they should be able to do so if the court is satisfied that they meet the various criteria. The amendment proposes a seventh criterion requiring that the independent supporter must not be a connected person—that is, a friend, a member of the family or a relative. That is for an important reason: we know that in offences involving domestic abuse or sexual offences, the victims and witnesses can be traumatised, distressed and vulnerable, in which case they can be suggestible when it comes to comments, ideas or suggestions about something that they might not even have seen. That is why the person accompanying the witness should be independent.
I shall illustrate that argument by explaining what happens to children’s evidence when taken as evidence in chief. Often, a specialist lawyer, police officer or even psychologist is present when children give evidence. Sometimes, photographs, diagrams or pictures are shown to the children so as to elicit the best evidence out of them. Whenever such a trial takes place, the notes that a psychologist or other trained person has taken, and the pictures they may have shown to the child to get the best evidence, are adduced in court. There is always a suggestion that the person carrying out the interview may deliberately or inadvertently have put an idea in the head of the child, who may end up saying something that did not actually happen or emphasise that something was stronger than it was.
This small amendment says that this approach should apply to adults as well. It says that the connected person must not be family, a friend or a relative. Often, the first person a victim will talk to will be a friend or family member. I do not think that that would be very good. At the end of the day, we want to make sure that convictions are safe and that the best evidence comes through.
Sarah Sackman
First, I thank my hon. Friend the Member for Easington for tabling the amendment and my hon. Friend the Member for Bolton South and Walkden for moving it today. While I recognise the concern that the amendment is seeking to address—specifically, the transparency about the relationship between complainants and independent supporters—the Government do not consider it necessary to include an express requirement in the legislation to disclose that relationship at the point of application.
Witness supporters are already an important and well-established feature of court proceedings. The court environment can be daunting for many vulnerable and intimidated witnesses. The presence of a trained professional supporter, such as an independent domestic violence adviser or an independent sexual violence adviser—an IDVA or ISVA—can play an important role in helping them feel more at ease while giving evidence.
Clause 13 places that established practice on a clear statutory footing by recognising the use of a professional supporter as a distinct special measure, alongside a presumption that it may be used by a vulnerable, intimidated witness where the supporter is a professional. In practice, details of the proposed independent supporter, including their relationship to the witness, are disclosed to the court before permission is granted to them to accompany the witness. A professional supporter must have no connection to the case in question, and cannot themselves be a witness. That approach will continue unchanged when the use of a supporter is formalised as a special measure.
As clause 13 makes clear, the court must also be satisfied that a supporter’s presence is not contrary to the interests of justice—an assessment that includes consideration of any potential adverse effects that the supporter may have on the fairness of the proceedings. Against that backdrop, we do not think that the amendment would add any substantive value or additional protection, given that all that information already forms part of a court’s decision-making process as to whether to permit the witness supporter. The term “independent supporter” is defined in the Bill, and the courts retain full discretion as to who can act in that capacity based on the factors that I have alluded to and while maintaining trial fairness. For those reasons, we do not think that the amendment is additive. I urge the hon. Member to seek to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
Clause 13 introduces an important new special measure, which will make a real and tangible difference to vulnerable or intimidated witnesses who come before our courts. It enables them to be accompanied by a supporter when giving evidence to reassure them and help them to give their best evidence. Crucially, it creates a rebuttable presumption that a trained professional such as an IDVA or ISVA will be allowed to accompany the witness. These specialists play a vital role in helping witnesses navigate an often stressful and emotionally demanding experience. A presumption helps ensure that this is consistently accessible across our criminal courts.
While section 24 of the Youth Justice and Criminal Evidence Act 1999 already permits witnesses giving evidence via a live link to be supported in this way, and the Criminal Procedure Rules 2025 create a presumption in favour of support from IDVAs or ISVAs, the Law Commission has highlighted that practice on the ground remains inconsistent.
Despite existing provisions, some witnesses who would benefit from the presence of a supporter are still unable to access that assistance. Such inconsistency both undermines witnesses’ confidence and risks adversely affecting the quality of the evidence that they can provide. By improving access to supporters, clause 13 improves the experience of vulnerable complainants and witnesses, while helping to maximise the quality of the evidence that they can give. I commend clause 13 to the Committee.
Dr Mullan
I ask the Minister to think about everything I said about the previous amendment. The Minister mentioned that there is a definition in the Bill. However, “definition” is open to interpretation. The Bill just says:
“an individual who performs a role which involves the provision of support to witnesses in criminal proceedings or victims of criminal conduct, where the support relates to those proceedings or that conduct.”
It seems to me that that could be anyone who says that they perform a role in supporting a witness. It is extremely open. The Minister rightly pointed to two specific roles that are well recognised and understood. However, the Bill does not say that—it does not say “IDVAs or ISVAs”; it just says an “independent supporter”. Questions about the previous amendment also apply here: what in the definition means that it could not be someone’s family member? There is not any kind of specification.
My understanding was that there might be further definition in secondary legislation. Could the Minister clarify whether there will be an attempt at further definition, either in secondary legislation or in criminal practice rules? I do not think that the definition is suitably robust at present. The Minister is not using it—because when the Minister is talking, she refers to the two very well-established and recognised roles that we all understand. However, that is not what is happening in the clause.
We are minded not to oppose the clause, but it appears to suggest that anyone can be an independent supporter. It does not even say that the court must test that; it suggests that if someone says they are an independent supporter, they are in. That cannot be what the Government intended. To avoid an unnecessary vote, perhaps the Minister could offer further clarification, unless I have misunderstood and there will be secondary legislation that provides further definition.
Sarah Sackman
I seek to assist the Committee, as I do not want us to get this wrong. The purpose of the definition is to exclude non-professional supporters or those who do not habitually perform a role in supporting witnesses. That is the intent. The fact that the court must also be satisfied that the support is not contrary to the interests of justice is an important protection in relation to who can and cannot perform the function. I do not think that necessarily excludes the fact that one could, in theory, have a relative perform it. I am, again, happy to provide that clarification so that there is no issue with the Committee not having the full information.
Dr Mullan
I wonder whether the Minister might reflect on that. I think there would be good reason to say that the supporter should not really be a family member. That is not how the system has been operating at present; it has been operating with professionals. I take the Minister’s point about the preceding clause, but the Government should perhaps be clearer about what they expect. I would not be neutral about whether a family member should sit with someone in that situation.
Sarah Sackman
I understand the point. In the circumstances, I would prefer to take officials’ advice and check that the legislation is doing what it intends to—providing a consistent practice of professional witness support, while maintaining trial fairness. I do not want to misdirect myself or the Committee.
Jess Brown-Fuller
My understanding of the legislation is that an independent supporter would be a recognised professional, but that does not exclude someone who may have a relationship outside their recognised profession with the person they are independently supporting. I wonder if clarification could be introduced—similar to what I think amendment 70 tried to achieve—to ensure that any relationship outside the professional role would have to be declared in front of the court. That would make it clear that, ideally, the only relationship between a witness and the independent supporter should be a professional one, and that any other one would have to be declared.
Sarah Sackman
I think all of that is right, but I would prefer to take the matter back to the Department and check that we have a common understanding. I do not want to do this on the hoof if I do not have the full information before me. I think that is the intention—the presumption is that it applies only to professional supporters. I suppose it is ultimately up to the court if a family member sits with the person, if that is deemed necessary in the interests of justice.
Sarah Sackman
I am more than happy to accede to that. This has been useful, and I am very happy to provide that clarity.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14
Exclusion of persons from court
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
This clause represents an important and balanced step forward in strengthening the support available to intimidated complainants in our justice system. It will make it easier for courts to exclude individuals who may be causing distress or intimidation from the public gallery, while fully preserving the principle of open justice.
Section 25 of the Youth Justice and Criminal Evidence Act 1999 already permits the exclusion of the public from the courtroom while a complainant gives evidence, yet the Law Commission has observed that the power is rarely used in practice. Concerns about its perceived impact on open justice, particularly the requirement that only a single member of the press can remain, means that courts are often reluctant to apply it. At the same time, we know that individuals present in the gallery, including supporters of the defendant, can on occasion create an atmosphere that is distressing for intimidated witnesses. My hon. Friend the Member for Lowestoft (Jess Asato), who has huge amounts of experience in this area, told me of an egregious example affecting a constituent of hers who was giving evidence while friends of the defendant were creating an intimidatory atmosphere in the gallery, yet nothing was done about it.
The clause offers a practical and proportionate solution to that sort of situation. It will broaden the categories of individuals who may remain in the courtroom when the public gallery is cleared, allowing accredited members of the press, approved academic researchers and one supporter for the complainant to stay. It directly addresses concerns about transparency and open justice by allowing those reporting or researching the case in the public interest to remain. That is not a novel approach: comparable provisions already operate in Scotland and Northern Ireland, where courts can restrict public attendance while members of the press and a limited number of individuals remain in their place. Their experience demonstrates that it is entirely possible to restrict public access during particularly sensitive evidence without compromising the integrity or openness of the proceedings.
The clause will encourage courts to take a more flexible approach, excluding only those likely to intimidate the witness, where it is not necessary to clear the public gallery entirely. This will increase the likelihood that the measure can be used where appropriate, while maintaining open justice. I commend the clause to the Committee.
Dr Mullan
As the Minister points out, this clause interacts with the issue of transparency in the justice system. I recognise that the Minister thinks it attempts to strike a balance by clarifying the categories of people who may not be excluded, such as representatives of news organisations, witness supporters and approved researchers. The aim is to ensure that, while a witness may be shielded, the trial remains professional and legitimate.
However, we do not want the measure to have the unintended effect of narrowing public scrutiny, including by ordinary members of the public, who the Minister will accept are not necessarily there to intimidate or have any impact on the witness—they might not be even connected to the case. It should be assumed that people in this country can just turn up to a courthouse and watch a case, as they currently can, and as I have in the past.
Sad to say, but we have seen recently that practical transparency can be very difficult to achieve. We had the whole debacle with the Courtsdesk archive, which hugely assisted transparency in our legal system. The Opposition certainly do not feel that the Government’s initial response to that demonstrated that they were as committed to transparency in the justice system as they should be. It was only the effort of Opposition Members and media campaigners that secured a U-turn. We must ensure that these powers are used only when the interests of witnesses genuinely outweigh the public’s right to witness proceedings—although I note that the clause does not create an automatic entitlement for persons to be excluded.
We have discussed the availability of transcripts, and it would not be unreasonable to link the two issues. If people are excluded, I do not see why that could not become a trigger for making available those elements of the evidence that the public are for that reason unable to hear at first hand. I do not think the Minister is suggesting that the people in the gallery cannot hear the evidence; it is just about the impact on the witness of them being there. If that is happening and we accept that that is a break from the norm, it would be reasonable to say that transcripts of the elements that were not open to public scrutiny should be more widely available.
If the powers are enacted, it is important that the Government monitor their use going forward. They should have a clear position that they would be open to reforming or even removing the powers if they think they are not operating as intended.
We will not oppose these measures, but the Lords will want to look at them and ensure that we are excluding as little as possible. I accept the Minister’s point that, at the minute, nobody is getting excluded because of worries about how the provision operates, but that does not mean that we should just accept a new way of doing things when it could be better refined. If the Minister could clarify the point about transcript availability, it would demonstrate some good faith by ensuring that people can see for sure that we are not attempting to stop people from hearing what is going on in a courtroom.
Jess Brown-Fuller
I seek clarification from the Minister about the reference in clause 14 to
“representatives of news gathering or reporting organisations”.
Earlier, the hon. Member for Reigate raised the practice of live tweeting from court proceedings. I would appreciate it if the Minister set out her understanding of who would come under “a representative of a news gathering or reporting organisation”. With the rise of social media, and with more people getting their news online on things like X, we can have lots of news organisations with self-professed journalists or online commentators who are acting in the interests of providing online journalism, but who do not hold any form of accreditation or any official role as a journalist. It would be helpful if the Minister could explain who legitimate members of the press will be under this measure. Will they have to be recognised journalists? Will they have to have a press pass? Or can they say, “I’m here, in the interest of journalism, to live tweet the events because I am a self-employed journalist”?
Sarah Sackman
I am grateful for those questions and comments, because, through clause 14, we are seeking to strike a balance. At the moment, in the instance that I gave an example of, the balance is all one way. Of course we want open justice, but that is not the same, as can be the case, as having essentially a mob of people in the gallery whose mere presence is almost certainly intended to intimidate witnesses. Empowering the court to exercise discretion, while retaining the presence of at least one person connected to the defendant and protecting those representatives of newsgathering or reporting organisations, strikes the right balance.
On the question about everyone being a citizen journalist now, subsection (4)(b) refers to
“representatives of news gathering or reporting organisations”.
It refers to those who carry accreditation because they are a member of an organisation, not those who are self-appointed. I am happy to come back to the hon. Member for Chichester with clarification about that. When we talk about reporting restrictions and how they operate, they generally operate in connection with qualified journalists who are subject to the codes of conduct that go with that job. Indeed, that is something that arose with some of the issues in relation to Courtsdesk, because those who make use of that facility and that information, as opposed to the material that the public are entitled to see, are investigative journalists. I am happy to come back to the hon. Member with clarification, and if we think the legislation needs tightening up for the reasons she has outlined, then that can be looked at in the future.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clause 15
Editing of video recorded cross-examination and re-examination
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 28—Use of video recorded evidence in chief—
“(1) Section 27 of the Youth Justice and Criminal Evidence Act 1999 is amended in accordance with subsections (2) and (3).
(2) After subsection (1), insert—
‘(1A) Evidence in chief admitted in accordance with subsection (1) may include transcription of any video recording, provided that such a transcript is not admitted in place of the recording.’
(3) After subsection (5) insert—
‘(5A) Where a witness is called in accordance with section (5)(a), the court must make arrangements so that the witness is not, in the course of proceedings, obliged to watch the video recording of the evidence in chief.’
(4) Section 28 of the Youth Justice and Criminal Evidence Act 1999 is amended as in accordance with subsections (5).
(5) After subsection (2) insert—
‘(2A) Where the direction provides for any cross-examination or re-examination of the witness, or reexamination, any questions that the accused or legal representatives representing to the accused intend to put during cross-examination or re-examination must be provided to the witness—
(a) within six months of the date on which evidence video recorded evidence in chief is submitted to the court under section 27, or
(b) 14 days before a cross-examination is due to take place under this section, whichever is the sooner.’”
This new clause amends the Youth Justice and Criminal Evidence Act 1999 to prevent vulnerable witnesses from repeatedly watching their video testimony during court proceedings, and to require those witnesses to be provided with cross-examination questions in good time ahead of any cross-examination.
Sarah Sackman
Let me start by thanking the hon. Member for Brighton Pavilion for tabling new clause 28. But before I come to that, I will set out the rationale for clause 15.
The clause clarifies the Youth Justice and Criminal Evidence Act 1999 by confirming that courts have a statutory power to direct the editing of pre-recorded cross-examination recordings under section 28 of the 1999 Act when material is inadmissible or where including it would not be in the interests of justice. That clarification matters because section 28 recordings capture the natural flow of their recollection under the pressure of cross-examination. Inevitably, that can sometimes include long periods of silence where the witness needs a break or material turns out to be inadmissible or prejudicial to the fairness of the trial.
Without an explicit power enabling the court to direct appropriate edits, there is a risk that either the edits are not made—potentially compromising the integrity of the trial and wasting court time—or that the edits made become a point of contention, requiring additional hearings or appeals to resolve. Additionally, in the event of a retrial, the pre-recorded evidence may require editing to ensure that it covers only the charges for which a retrial has been ordered.
Although the current criminal procedure rules already allow for editing of section 28 recordings, the Law Commission has highlighted that the absence of a specific statutory provision has created uncertainty and, once again, inconsistency in practice. The clause addresses that by placing the power on a firm statutory footing, ensuring that practitioners have a clear and consistent understanding of the power of the courts in this respect.
It is important to emphasise that the clause does not introduce a new process, nor does it expand judicial powers; it formalises the careful, limited editing that already occurs to ensure trial fairness and integrity. Witnesses can be assured that the substance of their evidence will remain intact. Only material that is legally inadmissible or wholly irrelevant to the issues in the case will be removed. I commend the clause to the Committee.
I will now turn to new clause 28, tabled by the hon. Member for Brighton Pavilion. Before I come to the substance of the new clause, I want to begin by recognising the immense courage it takes for the vulnerable and intimidated witnesses we are talking about to come forward in the first place and give evidence. For many, recounting their experience is traumatic enough. Being asked to relive it by watching back their video-recorded police interview—known as their achieving best evidence interview—can be a great deal more challenging. It can bring distressing experiences flooding back. However, we must be careful not to reach for legislative change where it is not necessary or helpful. Prosecutors may suggest that a witness watches their ABE interview to refresh their memory before cross-examination, but there is no legal obligation to do so. For some, watching the recording is manageable; for others, it is not, and the law already accommodates that reality.
Where a witness does not wish to watch the recording, a written transcript can be provided for them to read instead. For some, that is a more accessible way of engaging with the material. Prosecutors make decisions about how and when memory refreshing should take place on a case-by-case basis, taking into account practical considerations, such as the length of the transcript and the witness’s ability to read and process it. However, I recognise that the achieving best evidence guidance for interviewers does not explicitly reference that practice. That omission will be addressed. The Ministry of Justice owns that guidance and will ensure that clarification is included in the next revision. Any future clarification to the ABE guidance will also be reflected in the relevant Crown Prosecution Service guidance and communicated to all prosecutors.
Let me now turn to the proposal to introduce a time limit for the defence to submit questions to the witness. I must be clear: cross-examination questions cannot, under any circumstances, be shared with witnesses before they give evidence. However well intentioned the proposal may be, it risks undermining the very integrity of the process it seeks to improve. Exposing a witness to questions in advance may influence, whether consciously or unconsciously, how they respond. Beyond that, it risks undermining the defendant’s right to a fair trial. If there is any suggestion that a witness’s evidence has been prepared or influenced in advance, the credibility of the whole process is jeopardised.
There are also practical implications to consider. Requiring counsel to finalise all cross-examination questions within six months of the ABE being submitted to court, or 14 days before cross-examination—whichever is soonest—would be unworkable in many cases. Defence questions evolve as new material is disclosed. Such a process would undermine the fairness of proceedings and the effectiveness of case preparations. For those reasons, I urge the hon. Member not to press new clause 28 to a Division.
Dr Mullan
As we have heard, clause 15 clarifies the use of pre-recorded evidence for cross-examination and re-examination, which is often referred to as section 28 evidence. Our courts frequently rely on recorded testimony to spare witnesses the trauma of a live trial, so the rules governing the editing and presentation of that evidence must be clear and robust.
Clause 15 provides clarification on the circumstances under which a video recording may be edited before it is admitted as evidence in a trial. Editing may be required if certain procedural requirements were not met during the recording being taken, or if specific portions of the material are deemed inadmissible or contrary to the interests of justice. The clause requires the court to perform a delicate balancing act, weighing any potential prejudice towards the accused against the desirability of presenting the whole, or substantially the whole, recorded examination.
A clearer statutory footing for editing is welcome, but it must be applied with consistency and transparency. If recorded evidence is to protect witnesses properly, the rules for its use must be as rigorous as those for live evidence. We must acknowledge, as we discussed earlier in respect of screens, the highly variable state of court technology. In my time on the Justice Committee, I visited courts and heard that they sometimes did not have the screens necessary to show evidence. There is a huge difference between a poky little TV of low granularity and a proper screen for showing video evidence to the jury.
Sir Brian Leveson’s review and others have highlighted that malfunctioning or substandard equipment can derail trials or create grounds for appeal when it comes to the use of pre-recorded evidence. Without reliable hardware and skilled technical staff—I also heard about the challenge when something goes wrong and there is no one available to fix it—the legal clarification in clause 15 will remain theoretical rather than practical.
My final point is about the guidelines, which the Minister talked about. We must ensure that they are sufficiently detailed, rigorous and standardised, so that, notwithstanding the further clarifications in the clause, they are suitably consistent in their application.
What are the Government’s current plans to address the technological challenge on the court estate in relation to section 28 recordings? What steps will be taken to ensure that all parties have time to review and potentially challenge edited versions of recordings before they are played to a jury? The ability to challenge is vital to ensuring consistency and fairness.
Sarah Sackman
On the hon. Gentleman’s last point about the reliability of the kit in courtrooms, that is critical not just for evidence via video. We have an ambition for greater use of video right across our criminal justice system, not just for vulnerable witnesses but in other ways that have been touched on. We have talked a lot about prisoner transportation being a challenge for the system; one way to address that is by having less demand for it, unless it is needed in the interests of justice and fairness.
The increased use of video could be of real benefit but, of course, it has to be reliable. That is why the Government’s capital investment in increasing the budget for His Majesty’s Courts and Tribunals Service—I saw some of that equipment in action in Harrow court—will make such a difference.
When we are talking about vulnerable witnesses, who are given the option of section 28, the quality of their evidence can be impacted if it is inconsistent or glitchy, or if the way it appears in a courtroom is somehow distorted because it is too big or too small, or whatever. All those things will be important, which is why the significant investment agreed with the judiciary through the concordat process over the next three years will make such a difference, and why all the court transformation and reform measures are being accompanied by significant inward investment, as announced by the Deputy Prime Minister.
I should say that HMCTS, the performance of which I routinely review with the Deputy Prime Minister, conducts regular audits of facilities and brings that to our attention so that we can see where the roll-out is happening, which courts are lacking facilities and which need to be prioritised for investment.
Sarah Sackman
I am very happy to provide that information, to the extent that we hold it.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16
Application of special measures to victim personal statements etc
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
The clause makes it clear in legislation that special measures are available when a victim chooses to read their victim impact statement aloud at sentencing. This is a moment of real significance for many victims—the point at which they are able to explain, in their own words, the impact of the offending on their lives. Although special measures can already be used for this purpose, that entitlement is not explicitly set out in legislation.
As the Law Commission has explored, the lack of a clear statutory basis can create uncertainty about what victims may rely on, adding avoidable stress at a time when they are already managing the emotional weight of addressing the court. Clause 16 removes that uncertainty. It ensures that victims can rely on the same special measures at sentencing as they can when giving evidence, whether using screens, a live link or some other appropriate measure.
By placing the provisions on a clear statutory footing, clause 16 gives victims greater reassurance that their voice can be heard at sentencing and that they will have access to the support needed to participate effectively. It will enhance their overall experience of the justice system, and strengthen the quality of information available to the court when determining a sentence. I commend the clause to the Committee.
Dr Mullan
I have spent a lot of time working on the issue of victim personal statements, often referred to as victim impact statements, in work on other Bills. We are talking today about someone’s ability to give an effective statement, but the Opposition have also been concerned about restrictions on what people can actually say, and have tabled amendments to other Bills on that issue.
I have worked with a number of victims. The people who come to mind are the parents of Violet-Grace, a four-year-old girl who was hit and killed by a stolen car going 80 mph on a 30 mph road while she was crossing with her grandmother. The criminals involved fled the scene—they came back to step over her body as they grabbed the drugs they had left in the car—and then fled the country. Her grandmother suffered massive injuries and will never be physically the same. Violet-Grace’s parents, two amazing individuals who are part of the Justice for Victims campaign group, talked about their experience of what they wanted to say in their victim statement being interfered with.
I have also had the pleasure of meeting and working with Sarah Everard’s parents, who tell the same story of having wanted to say certain things. Of course, the Opposition do not think it should be a free-for-all, and people should say whatever they want in an impact statement, but surely the onus should be on allowing victims to have their say.
There is a need to reform what these statements are for. In statute, it is there purely as a way for victims to talk about the impact of the crime on them. That is helpful, but in other jurisdictions it is an opportunity for the victim to say what they want about what has happened—importantly, this is at the point of conviction, when someone has been found guilty. We will therefore continue to push for broader reforms to impact statements.
On screens, this one of those things we read and thinks, “Why wasn’t this thought of at the time?” It seems self-evident that everything is put in place for witnesses during a trial—before someone has even been convicted, when the state has not yet decided through the courts whether someone is guilty—but this is after the trial. Surely the protections for people taking part at that stage should have been included in the original envisaging of the use of screens. We wholly support the relevant measure. We have discussed physical infrastructure already, but I am sure there is something the Government can do on that.
I do not think the Minister is responsible for the content of statements—I think that lies with the Minister for Victims—but we would appreciate her lending support to her ministerial colleague in relation to further expanding what people can say in their statements. The clause seeks to ensure that they have their moment in court from a physical point of view, but that will be undermined somewhat if what they are allowed to say is not as expansive as we can possibly make it.
Sarah Sackman
I think we all agree that the victim impact statement, and that moment when victims read or speak aloud about the ways in which they have been impacted, is critical. Their ability to speak at all may depend on the consistent provision of the special measures in clause 16. All that can be done without compromising the fairness of what is to follow, which is the sentencing exercise in which a judge must engage in respect of the defendant. Clause 16 seeks to enable that, because there may be victims who simply cannot bring themselves to do it absent those special measures. That is why it is a really important clause.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17
Welfare of the child: repeal of presumption of parental involvement
Rebecca Paul
I completely agree with the hon. Member. I appreciate the fact that she has tabled these amendments and that she recognises that it is not easy to strike this balance, particularly when we are trying to address abuse and alienation cases and it is sometimes hard to know what situation we are dealing with.
We are trying to come up with a system that protects as many people as we possibly can, but I think we also have to acknowledge that it will never be perfect. If anyone thinks that we can change one bit of law and then all of a sudden nothing horrible will ever happen again, I am afraid to say that these awful things will always happen, and things will always go wrong. It is about trying our best to have a framework that gets the balance right.
I will stop there—I have probably made my point. This has been a really good debate, and I look forward to hearing from the Minister about some of the points I have raised.
Sarah Sackman
I thank all hon. Members for their contributions. I will set out the rationale for clause 17 and then address the central argument presented by Opposition Members about the repeal of the presumption —the Government do not overclaim for it; is not a silver bullet for the problems and challenges of child protection in this country and will not solve all the challenges in our family court—and why we nevertheless think that it is the right thing to do. I will then address the amendment and new clauses.
The Government’s intention through clause 17 is to repeal the presumption of parental involvement from the Children Act 1989. The child’s welfare must always be the court’s paramount concern when making decisions about a child’s life, and that principle is enshrined in the 1989 Act. The Children and Families Act 2014 amended the 1989 Act to introduce a presumption that, in certain private law proceedings, the child’s welfare will be furthered by each parent’s involvement, unless evidence shows otherwise.
We know that, in most families, both parents play a vital role in a child’s life. However, although the legislation clearly states that the presumption is rebuttable and does not apply where a parent poses a risk of harm to the child, it has none the less faced serious and sustained criticism. To echo what others have said about the testimony and campaigning work of Claire Throssell, ably supported by her MP, my hon. Friend the Member for Penistone and Stocksbridge (Dr Tidball), Women’s Aid and a whole host of survivors of domestic abuse and those who represent them, the presumption contributes to a pro-contact culture in the family courts that too often prioritises parental involvement over child welfare.
We published our review of the presumption in full last October, and its conclusion was that unsupervised and face-to-face contact was the most common outcome in child arrangements cases, even where there were allegations or findings of domestic abuse. To give some context, the Domestic Abuse Commissioner has presented evidence of her own that proven allegations of domestic abuse arise in 80% of those cases. This is prevalent. Those cases come to the court in the way they do because, by definition, family relationships have broken down and there is conflict—that is the nature of these cases, and domestic abuse is already an issue in so many of them. The review demonstrates that, although the presumption is not the sole driver, it can be a contributory factor to a culture in family courts that prioritises parental involvement, even in cases of abuse, which means that, too often, decisions are putting children in harm’s way.
I want to be really clear about that, because we are not overclaiming that the repeal of the presumption will change everything overnight, and we are certainly not saying that it will keep everybody safe. There has been a lot of criticism of the family court, but one thing I do know is that those tasked with making these decisions are trying, through their professionalism, empathy and training, to keep children safe. I do not doubt their good faith. I struggle to imagine the burden of having to make those decisions. We are talking about the devastation of loved ones who have lost children—but imagine being the judge who made that decision, and living with that. I do not think for one second that they would have intended that consequence, and I suspect that, where a child is harmed or even killed as a result of a child arrangement, they regret those decisions every single day.
Through clause 17, we are seeking to ensure that judges approach the application of the law and the welfare checklist, which we regard as really important, with an open mind. The danger with the presumption is that they start with just that: a weighted approach to the consideration of the child’s best interests. We do not think that repealing the presumption is a silver bullet, but it will send a signal to the system—to the leadership of the family court and to everybody who sits within it— that the way to approach this is purely with an open mind, focused on the child.
Sarah Sackman
The hon. Gentleman makes a good point. Obviously, we have appeal systems and, in some family proceedings, the nature of them can be iterative; as family circumstances and the facts change, it might be that there are provisions in directions to come back and relitigate some of those child arrangements. In other cases, they are final. Accountability is really important to us as a ministerial team, and the Secretary of State does not shy away from it. While of course respecting separation of powers, the judicial complaints process must be important as well, not just in family courts, but right across the piece. Where judges fall short of the standards we require of them, they should be held accountable.
I want to make a point about transparency and the publication of family court judgments. That is happening more and more, and it is important because it holds it up and says, “That is what a good judgment looks like”. It also exposes where there is decision making that is either faulty, poorly reasoned or simply not justified, so that that cannot happen.
The other thing happening is not just the publication of those judgments, with all the support that transcription allows, but also opening up—again, where appropriate—to journalists and the public to come and see how those hearings operate.
Dr Mullan
The Minister has pointed to complaints, and that is an important element, but there is something in between complaints and legal appeal. Again, from my own experience, working extensively on trying to make quality improvements in healthcare, these are incredibly complex things that we expect experts to do. Someone might not have done the wrong thing but, when we look at their practice as a whole, it does not compare favourably with that of other clinicians. That is what we recognise as the manner in which we drive improvement.
Some of the high-profile statisticians who I have worked with in that regard and who speak publicly on these matters have looked at court decisions say that they can find similar patterns of what we might call outliers—for example, regarding how likely people are to grant parental custody. Any one of those decisions might not be a decision that would be legally wrong or warrant a complaint—but we might see that they are 10 times more likely than all the other judges to award custody. Again, that is not to say that they are wrong to do so; but, just as clinicians are forced to do, we should at the very least be forcing them to reflect on that internally within the judiciary, and say, “Why is it that you are awarding custody to both parents in so many more circumstances than all your peers?”. It is not about complaints or legally wrong actions, but someone’s practice as a whole.
As the Minister has said, there is a very important separation: it should not be the Minister responsible saying to that person, “I don’t like your rate of referral”, but there should be something else within the judiciary—something that is not complaints and is not legal challenge, but that just says, “You all have to be a bit more accountable for the decisions you take”. To give another example in sentencing, if we could consistently see that a judge’s sentencing was consistently very far away from their peers’, that is not something that we should just accept as a society. This is not a Government issue, but a society issue.
Sarah Sackman
The hon. Gentleman is making a fair point. I have no doubt that, not just in the context of this clause—where we are talking about family law—but more generally in other conversations that we have had around the criminal justice system, the Judicial Office and judicial leadership will be following these proceedings quite closely and will be hearing these exchanges. That is why—in a different context—the discussion that we had regarding the amendment tabled by my hon. Friend the Member for Birmingham Erdington is so important, with that specific mischief in mind. Judicial performance is something that the judicial leadership ought to want to scrutinise and evaluate, and—where it falls short of the high standards that our judiciary so often deliver— remedy.
This measure, not in and of itself, but through clause 17 and alongside our wider reforms, such as the national roll-out of child-focused courts—the new name for what some hon. Members might know as Pathfinder—over the next three years will signal a step change in putting children’s safety and welfare back where it belongs, at the heart of every family court decision.
I do not want to digress, and this is not in the script but, for those unfamiliar with the Pathfinder programme—I am now told that I have to call them child-focused courts, and that is quite right, because that name describes exactly what they are—having been to observe those courts and spoken to judges, practitioners, social workers and families who have been through them, they are a really good model. They require the production up front of all the expert reports and all the assessments of the children, and there is much less conflict in the way that they operate. Judges like them; practitioners like them; families like them. They also go a whole lot faster. Of course, we must get to the bottom of things and make sure children are protected—but, if they are in an unsafe situation, we want them out of that unsafe situation sooner rather than later. We think that Pathfinder, coupled with the effects of clause 17, will be really important and I commend the clause to the Committee.
Amendment 14, tabled by the hon. Member for Chichester, would require the Lord Chancellor to lay a report before Parliament within six months setting out the level of legal aid provision, judicial capacity, specialist training and investment in the family court estate and in the technology needed to support the repeal of the presumption. Although all those things are essential, fundamental blocks of a well-functioning family court—the availability of legal aid, the judicial training, the specialism and the quality of the estate are all going to be important to producing better decisions and supporting families through an inherently difficult process—the Government do not consider the amendment necessary because the repeal of the presumption does not, in and of itself, alter what is going on within the courtroom. It alters the weighting that a judge gives in his or her decision making, but our endeavours to ensure that family courts are adequately resourced to make sure that children and victims are protected have to happen regardless. We do not need the amendment to achieve that.
As I said, we are already taking forward significant reforms to ensure that the family court system supports survivors of domestic abuse and delivers the right outcomes for survivors and their children. We have existing processes in place to monitor family court resourcing. All that work is led by my colleague Baroness Levitt.
Jess Brown-Fuller
I recognise that the amendment is limited in scope because the Bill is limited in scope, especially when it comes to the family court. Perhaps rather cheekily, I was trying to get a report on the general health of the family court system because so many organisations tell Members across the House that they are really concerned about a lot of the systems sitting in the family court, not just the parental responsibility piece. I remain hopeful that we will see family court legislation introduced, as the Minister will be aware that I have requested in multiple oral questions in the Chamber.
I am aware that the report required by the amendment would be specifically about the repeal, but we need a health check of our family court system because a lot of people are sounding the alarm about the concerns they have with that system.
Sarah Sackman
The family justice strategy, which will be forthcoming in July, will address a lot of what the hon. Member asks for. It will set out where the Government think reform is needed, and it will bring together what we are already doing with our child-focused courts programme, which is accompanied by a £17 million investment. We believe in that model, which we think has huge merit. It will be available to people regardless of where in the country they live.
More generally, we are introducing the funding that the Lord Chancellor has allocated to sitting days for family hearings, the targeted recruitment of more judges, more fee-paid judges, the greater use of virtual hearings—which can be a supportive measure for people giving evidence, not just an efficiency measure—and training.
The hon. Member for Chichester will know that the Domestic Abuse Commissioner has also undertaken detailed work in this area through her “Everyday business” report, which talks to some of the resourcing constraints faced by the family court. That work forms part of the commissioner’s report on a family court reporting mechanism, which is designed to provide ongoing evidence-based scrutiny of the family court’s response to domestic abuse in particular, and to highlight where systemic improvements are needed, so we have other accountability measures shining that light. If the hon. Member for Chichester awaits the strategy—she will no doubt want to take a look and critique parts of it—I think a lot of it will address some of the concerns she raises.
As I said, before proposing the repeal of the presumption, we carefully assessed the impact it would have. We do not overstate it, but it is important because the change affects the judicial process, not the underlying reasons why families come to court. Because we do not expect it to increase case volumes, case length or demand for legal aid, we think that the current arrangements can meet it, but there are so many other improvements that we want to drive.
The Chair
With this it will be convenient to discuss the following:
Government amendments 72 to 96.
Schedule 3.
Sarah Sackman
I will begin by addressing clause 18 and schedule 3 together before moving to Government amendments 72 to 96.
Clause 18 makes significant reforms to the leadership of tribunals, a change strongly supported by the senior judiciary. This is a key step in the One Judiciary programme, which was set up to achieve the long-standing shared ambition of the judiciary and the Ministry of Justice to have a single, unified judiciary across the courts and tribunals of England and Wales.
As the Lady Chief Justice recently noted, the reforms recognise the unity of judicial work across jurisdictions and will support more flexible deployment of judges, common standards and a more inclusive culture. Lord Justice Dingemans, the Senior President of Tribunals, endorsed this legislation in his annual report.
Clause 18 reforms the role of the Senior President of Tribunals and brings tribunals and their judiciary in England and Wales within the Lady Chief Justice’s leadership responsibilities. It gives effect to schedule 3, which reallocates the SPT’s existing England and Wales functions to the Lady Chief Justice. The SPT will continue to exercise statutory responsibility for some tribunals in Scotland and Northern Ireland, and the territorial extent of tribunals will remain as now.
The reformed office will retain the title of Senior President of Tribunals and will be equivalent to a head of division role. The provisions also bring the SPT role into line with heads of division by mandating a transparent appointment process, removing the option of a fixed-term appointment and providing for the SPT to be an ex officio member of the Court of Appeal of England and Wales.
The Bill also creates a new statutory post of deputy head of tribunals justice, similar to the statutory deputy head roles that exist in respect of criminal justice and family justice. The LCJ will become the statutory owner of the SPT’s current functions relating to tribunals operating under the Tribunals, Courts and Enforcement Act 2007 in England and Wales. There are powers for the Lady Chief Justice to delegate those functions and, in practice, it is expected that most of them will be delegated to the SPT.
The provisions amend the Tribunals, Courts and Enforcement Act to set out how the territorial split will operate for different statutory functions. Generally, they will reallocate functions by territory, so that the SPT will retain the functions in relation to judiciary or staff working primarily in Scotland and Northern Ireland, or to cases to be heard there, while the Lady Chief Justice will assume the functions in the same way for England and Wales.
However, there are some nuances to this approach to safeguard operational flexibility and to support consistency across pan-UK tribunals. For some functions—for example, appointing chamber presidents for cross-UK chambers or approving practice directions—the Bill enables shared decision making. The schedule makes similar changes in respect of the employment tribunals, where required.
The reforms will provide a modernised, unified leadership structure for our tribunals, which will encourage morale, recruitment and career development for the tribunals judiciary, and will support better use of flexible deployment and consistent practice. I should say that since I have been the Minister for Courts, I have had the privilege and pleasure of working with two remarkable Senior Presidents of Tribunals, Lord Justice Lindblom and Lord Justice Dingemans.
I have responsibility for tribunals, which form a huge part of where many of our citizens interact with our legal system, whether that is the employment tribunal, the special educational needs and disability tribunal, the social security tribunal or the property tribunal—I hope I have not forgotten one. I therefore welcome the introduction of this modernised structure to enable the best possible leadership, and to support our tribunal judges working within it. I commend clause 18 and schedule 3 to the Committee.
Dr Mullan
I had considered thinking of a question for every single amendment, but I elected against that. I speak in support of clause 18 and schedule 3. While the provisions may not generate the same level of public debate and scrutiny as the Bill’s earlier clauses regarding the restriction of jury trials, they carry significant institutional and constitutional weight within our judicial hierarchy.
The clause and schedule will bring the leadership of tribunals in England and Wales more firmly within the unified judicial structure, placing them under the overarching leadership of the Lady Chief Justice. In practical terms, this involves a title change for the Lady Chief Justice, who will become the president of the courts and tribunals of England and Wales. They also involve the transfer of specific leadership responsibilities that are currently vested in the Senior President of Tribunals.
The Government’s primary justification for the reform is administrative coherence and systemic flexibility. By reconfiguring the office of the Senior President of Tribunals, as the head of tribunals justice, the Bill attempts to create a more integrated and seamless judicial pyramid. In theory, such integration should allow for better co-ordination across different jurisdictions, ensuring that the tribunal judiciary is viewed not as a secondary or isolated branch of the law, but as an equal partner in the modern administration of justice.
The Opposition offer support for this move towards unity, acknowledging that a more cohesive leadership structure can streamline high-level decision making and improve the deployment of resources. However, that support must be tempered with a request for scrutiny. Unification should not be used as a tool for uniformity. Tribunals are substantially and culturally distinct from the traditional courts; they were designed specifically to be more accessible, specialist and often less formal in their proceedings. Their value to the public lies not only in their final adjudication of a dispute. Whether it is social security, immigration or employment, I am sure that we as MPs have all been contacted by constituents who have gone through, or expect to go through, a tribunal process.
Leadership arrangements are never merely technical; they shape the culture, training priorities and institutional identity of the body they lead. The Government have stated that practical leadership will continue to be exercised through a system of delegation back to the reconfigured office of the Senior President of Tribunals. While we recognise that this appears workable on paper, we must be satisfied that it will not allow creeping deprioritisation, a lack of focus, or a watering down of tribunals’ particular culture when they become part of this unified leadership. Will the Minister therefore assure us that thought has been given to ensuring an absence of uniformity, because we have specifically designed the courts not to be uniform, but different in their own way?
Sarah Sackman
That reflects the clause as drafted and the intention behind it, from speaking to our judicial leadership. In my experience, I have certainly found our judicial and tribunal leadership to be progressive, reforming and more open to cultural change, scrutiny and improvement than perhaps might previously have been the case. I welcome that, because it is as it should be. The hon. Member is right, of course: tribunals are different. They are meant to be informal and feel different from going to the High Court, which is all terribly alienating to the ordinary person who is untrained. A tribunal is supposed to involve a relatively cost-neutral and more relaxed process so that the individual can participate in it. Our proposals do not cut against that, but bring the judiciary across England and Wales into the notion of unity, with a lot of the benefits of being under a single leadership—sharing best practice and deploying judges across different jurisdictions—being enhanced, so that everyone can benefit without bleeding out the differences that rightly exist in our different courts and tribunals.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Schedule 3
Leadership of tribunals
Amendments made: 72, in schedule 3, page 68, line 4, after “may” insert
“, subject to the following provisions of this section,”.
This amendment is intended to clarify that the Lord Chief Justice’s general power under section 7A(1) of the Tribunals, Courts and Enforcement Act 2007 (inserted by the Bill) to delegate functions relating to tribunals is qualified by subsequent subsections of that section.
Amendment 73, in schedule 3, page 68, leave out line 5.
This amendment would remove redundancy in the drafting of new section 7A(1) of the Tribunals, Courts and Enforcement Act 2007 (inserted by the Bill).
Amendment 74, in schedule 3, page 68, line 9, at end insert—
“(1A) A function of the Lord Chief Justice may not be delegated under subsection (1) to a person who—
(a) is a judge, or other member, of the Upper Tribunal or First-tier Tribunal only by virtue of the person being a relevant Scottish office-holder or a relevant Northern Ireland office-holder, and
(b) is not a Chamber President, or a Deputy Chamber President, of a chamber of the Upper Tribunal or of a chamber of the First-tier Tribunal.”
This amendment, together with amendment 75, would prevent the Lord Chief Justice of England and Wales delegating functions relating to tribunals to a person who is a judge of the Upper Tribunal or First-Tier Tribunal only because the person holds a particular judicial office in Scotland or Northern Ireland.
Amendment 75, in schedule 3, page 69, line 6, at end insert—
“(8A) For the purposes of subsection (1A)—
(a) a person is a ‘relevant Scottish office-holder’ if the person is—
(i) a judge of the Court of Session,
(ii) a sheriff in Scotland,
(iii) the President of Employment Tribunals (Scotland),
(iv) the Vice President of Employment Tribunals (Scotland), or
(v) a member of a panel of members of employment tribunals (whether or not a panel of Employment Judges) established for Scotland;
(b) a person is a ‘relevant Northern Ireland office-holder’ if the person is—
(i) a Lord Justice of Appeal in Northern Ireland,
(ii) a puisne judge of the High Court in Northern Ireland,
(iii) a county court judge in Northern Ireland,
(iv) a district judge in Northern Ireland,
(v) the Chief Social Security Commissioner, or any other Social Security Commissioner, appointed under section 50(1) of the Social Security Administration (Northern Ireland) Act 1992, or
(vi) a Social Security Commissioner appointed under section 50(2) of that Act (deputy Commissioners).”
See the explanatory statement to amendment 74.
Amendment 76, in schedule 3, page 69, line 21, after “may” insert
“, subject to the following provisions of this section,”.
This amendment would make a change to the drafting of new section 7B of the Tribunals, Courts and Enforcement Act 2007 (further delegation of functions of the Lord Chief Justice) corresponding to the change made by amendment 72 to the drafting of new section 7A of that Act.
Amendment 77, in schedule 3, page 69, line 25, at end insert—
“(1A) A function of the Lord Chief Justice may not be further delegated under subsection (1) to a person who—
(a) is a judge, or other member, of the Upper Tribunal or First-tier Tribunal only by virtue of the person being a relevant Scottish office-holder or a relevant Northern Ireland office-holder, and
(b) is not a Chamber President, or a Deputy Chamber President, of a chamber of the Upper Tribunal or of a chamber of the First-tier Tribunal.”
This amendment would impose a limitation on the power to further delegate a function of the Lord Chief Justice under new section 7B of the Tribunals, Courts and Enforcement Act 2007 corresponding to the limitation imposed in relation to new section 7A of that Act by amendment 74.
Amendment 78, in schedule 3, page 69, line 28, leave out from “to” to end of line and insert
“a person appointed as—
(a) Deputy Head of Tribunals Justice, or
(b) Chamber President of a chamber of the Upper Tribunal.”
This amendment would enable functions of the Lord Chief Justice under paragraph 1(1) or 2(1) of Schedule 2 to the Tribunals, Courts and Enforcement Act 2007 that are delegated to a senior judge to be further delegated to the Deputy Head of Tribunals Justice.
Amendment 79, in schedule 3, page 70, line 2, at end insert—
“‘relevant Scottish office-holder’ and ‘relevant Northern Ireland office-holder’ have the same meaning as in subsection (1A) of section 7A (see subsection (8A) of that section);”.
This amendment is consequential on amendment 77.
Amendment 80, in schedule 3, page 70, line 7, leave out “(1)(b),” and insert
“(1)—
(a) in the words before paragraph (a), after ‘may’ insert ‘, subject to the following provisions of this section,’;
(b) in paragraph (b),”.
This amendment would make a change to the drafting of section 8 of the Tribunals, Courts and Enforcement Act 2007 (Senior President of Tribunals: power to delegate) corresponding to the change made by amendment 72 to the drafting of new section 7A of that Act.
Amendment 81, in schedule 3, page 70, line 8, at end insert—
“(2A) In subsection (1A)—
(a) for ‘paragraph 1(1) or 2(1) of Schedule 2’ substitute ‘any of the provisions listed in subsection (1B)’;
(b) for ‘a Chamber President of a chamber of the Upper Tribunal’ substitute ‘a person appointed as—
(a) Deputy Head of Tribunals Justice, or
(b) Chamber President of a chamber of the Upper Tribunal’.
(2B) After subsection (1A) insert—
‘(1B) The provisions are—
section 7(7);
section 7(8B) and (9);
paragraph 1(1) of Schedule 2;
paragraph 2(1) of Schedule 2;
paragraph 2(1) of Schedule 3;
paragraph 7(1) of Schedule 3;
paragraph 2 of Schedule 4;
paragraph 5(1) and (3) of Schedule 4;
paragraph 5(5) to (8) of Schedule 4;
paragraph 5A(3A) of Schedule 4.’”
This amendment would insert provision amending section 8 of the Tribunals, Courts and Enforcement Act 2007 to enable the Senior President of Tribunals to delegate to the Deputy Head of Tribunals Justice or an Upper Tribunal Chamber President certain functions to which subsection (1) of that section does not currently apply.
Amendment 82, in schedule 3, page 70, line 9, leave out sub-paragraph (3) and insert—
“(3) For subsection (2) substitute—
‘(2) Subsection (1) does not apply to functions of the Senior President of Tribunals under any of the following—
section 29B;
section 29D;
section 46;
paragraph 3 of Schedule 5;
paragraph 2 of Schedule A1 to the Employment Tribunals Act 1996.’”
This amendment is consequential on amendment 81.
Amendment 83, in schedule 3, page 70, line 21, at end insert—
“18A After section 8 insert—
‘8A Delegation: supplementary
(1) Where a function is exercisable, in a particular case, by the Lord Chief Justice and the Senior President of Tribunals, acting jointly—
(a) so far as the function is exercisable by the Lord Chief Justice, it is to be treated for the purposes of section 7A as a relevant tribunal function and may be delegated under that section, and further delegated under section 7B, accordingly (including to the Senior President of Tribunals);
(b) so far as the function is exercisable by the Senior President of Tribunals—
(i) it is to be treated for the purposes of section 8 as a function the Senior President of Tribunals has in that capacity and may be delegated under section 8 accordingly, but
(ii) it may not be delegated under that section to the Lord Chief Justice.
(2) Where a person (“the delegator”) has a power to delegate a function under section 7A, 7B or 8—
(a) any requirement that the delegator may exercise the function only with the concurrence of another person (“P”) does not prevent the delegator from delegating the function to P, and
(b) if the delegator delegates the function to P, any such requirement is to be disregarded so far as the function is exercised by P.
(3) In this section “the Lord Chief Justice” means the Lord Chief Justice of England and Wales.’”
This amendment would insert provision intended to clarify the effect of delegation powers under the Tribunals, Courts and Enforcement Act 2007, inserted or amended by the Bill, in cases where the function being delegated is exercisable jointly with, or with the concurrence of, the person to whom it is delegated.
Amendment 84, in schedule 3, page 75, line 6, leave out “senior judge” and insert
“person who holds high judicial office”.
This amendment would enable functions of the Senior President of Tribunals to be exercised during any vacancy or incapacity by a holder of high judicial office in Scotland or Northern Ireland (as well as in England and Wales).
Amendment 85, in schedule 3, page 75, leave out lines 12 and 13 and insert—
“‘high judicial office’ has the same meaning as in Part 3 of the Constitutional Reform Act 2005 (see section 60(2)(a)of that Act);”.
This amendment is consequential on amendment 84.
Amendment 86, in schedule 3, page 88, line 9, at end insert—
“32A In Schedule 8 (tribunals and inquiries: consequential and other amendments), in paragraph 41, omit sub-paragraphs (3) and (6) (which insert into the Employment Tribunals Act 1996 provision repealed by this Act).”
This amendment would repeal provisions of the Tribunals, Courts and Enforcement Act 2007 which insert into the Employment Tribunals Act 1996 provision repealed by the Bill.
Amendment 87, in schedule 3, page 92, line 38, at end insert—
“Agriculture Act 1947
43A In Schedule 9 to the Agriculture Act 1947 (constitution etc. of tribunals etc.), in paragraph 15A (which provides for a member of the First-tier Tribunal to act as a member of the Agricultural Land Tribunal)—
(a) in sub-paragraph (1), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) after sub-paragraph (1) insert—
‘(1ZA) In sub-paragraph (1), “the appropriate office-holder” means—
(a) in relation to a member of the First-tier Tribunal who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’
Lands Tribunal Act 1949
43B In section 1 of the Lands Tribunal Act 1949 (which makes provision including provision about selecting a surveyor for the purposes of section 58 or 106 of the Lands Clauses Consolidation Act 1845)—
(a) in subsection (6), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) after subsection (6) insert—
‘(6ZA) In subsection (6) “the appropriate office-holder” means—
(a) in relation to the determination of compensation to be paid in respect of land in England or Wales, the Lord Chief Justice of England and Wales;
(b) in any other case, the Senior President of Tribunals.
(6ZB) Section 7A of the Tribunals, Courts and Enforcement Act 2007 (Lord Chief Justice: power to delegate) applies to any function of the Lord Chief Justice under subsection (6) as it applies to a relevant tribunal function within the meaning of that section.
For provision enabling the delegation of any function of the Senior President of Tribunals, see section 8 of that Act.’
Rent Act 1977
43C In Schedule 10 to the Rent Act 1977 (rent assessment committees), in paragraph 5A (which provides for a member of the First-tier Tribunal to act as a member of a committee in Wales)—
(a) the existing text becomes sub-paragraph (1);
(b) in that sub-paragraph, for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(c) after that sub-paragraph insert—
‘(2) In sub-paragraph (1), “the appropriate office-holder” means—
(a) in relation to a member of the First-tier Tribunal who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’”
This amendment would insert provision amending provisions of the Agriculture Act 1947, the Lands Tribunal Act 1949 and the Rent Act 1977 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 88, in schedule 3, page 93, line 12, leave out paragraph 46 and insert—
“46 In section 9 (assistance for transaction of judicial business)—
(a) in subsection (1), in the Table (judges deployable to certain courts), in column 1 of entry 4A (the Senior President of Tribunals), after ‘Senior President of Tribunals’ insert ‘, if not an ex-officio judge of the Court of Appeal’;
(b) omit subsection (1ZA).”
This amendment would enable a holder of the office of Senior President of Tribunals who is an ex-officio judge of the Court of Appeal to act on request as a judge of the Crown Court (like all other judges of the Court of Appeal).
Amendment 89, in schedule 3, page 93, line 29, at end insert—
“Mental Health Act 1983
48A In Schedule 2 to the Mental Health Act 1983 (Mental Health Review Tribunal for Wales), in paragraph 5 (which provides for certain members of the First-tier Tribunal to act as members of the tribunal)—
(a) in sub-paragraph (1), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) after sub-paragraph (1) insert—
‘(1ZA) In sub-paragraph (1), “the appropriate office-holder” means—
(a) in relation to a member of the First-tier Tribunal who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’
Landlord and Tenant Act 1987
48B In section 33 of the Landlord and Tenant Act 1987 (acquisition order where landlord cannot be found)—
(a) in subsection (2)(a), for ‘the Senior President of Tribunals’ substitute ‘the Lord Chief Justice of England and Wales’;
(b) after subsection (3) insert—
‘(4) Section 7A of the Tribunals, Courts and Enforcement Act 2007 (Lord Chief Justice: power to delegate) applies to the function of the Lord Chief Justice under subsection (2)(a) as it applies to a relevant tribunal function within the meaning of that section.’
Local Government Finance Act 1988
48C In Part 1 of Schedule 11 to the Local Government Finance Act 1988 (the Valuation Tribunal for England), in paragraph A18A (power for member of First-tier Tribunal to act as member of the Tribunal)—
(a) in sub-paragraph (2)(a), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’;
(b) in sub-paragraph (9), after paragraph (a) insert—
‘(aa) “the appropriate office-holder” means—
(i) in relation to an FTT member who exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals, and
(ii) in any other case, the Lord Chief Justice of England and Wales, and’.
Social Security Act 1998
48D (1) Section 15A of the Social Security Act 1998 (functions of Senior President of Tribunals) is amended as follows.
(2) For the heading substitute ‘Confidentiality in the First-tier Tribunal’.
(3) In subsection (1), for ‘The Senior President of Tribunals’ substitute ‘The appropriate office-holder’.
(4) After subsection (1) insert—
‘(1A) In subsection (1), “the appropriate office-holder” means—
(a) in relation to the First-tier Tribunal in England and Wales, the Lord Chief Justice of England and Wales;
(b) in relation to the First-tier Tribunal in Scotland or Northern Ireland, the Senior President of Tribunals.’”
This amendment would insert provision amending provisions of the Mental Health Act 1983, the Landlord and Tenant Act 1987, the Local Government Finance Act 1988 and the Social Security Act 1998 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 90, in schedule 3, page 94, line 1, at end insert—
“49A The Crime and Courts Act 2013 is amended as follows.”
This amendment is consequential on amendment 92.
Amendment 91, in schedule 3, page 94, line 2, leave out “the Crime and Courts Act 2013, in”.
This amendment is consequential on amendment 90.
Amendment 92, in schedule 3, page 94, line 3, at end insert—
“50A In Schedule 13 (judicial appointments), omit the following provisions (which insert into the Tribunals, Courts and Enforcement Act 2007 provision repealed by this Act)—
(a) paragraph 30(3);
(b) paragraph 43;
(c) paragraph 44(2);
(d) paragraph 45(2) and (4);
(e) paragraph 46(2) and (6);
(f) paragraph 47(4) to (6), (8), (9), (11) and (12).
50B In Schedule 14 (deployment of the judiciary), in paragraph 12, omit sub-paragraph (2) (which inserts into the Employment Tribunals Act 1996 provision repealed by this Act).”
This amendment would repeal provisions of the Crime and Courts Act 2013 which insert into the Tribunals, Courts and Enforcement Act 2007 and the Employment Tribunals Act 1996 provision repealed by the Bill.
Amendment 93, in schedule 3, page 94, line 3, at end insert—
“Wales Act 2017
50A (1) Section 63 of the Wales Act 2017 (cross-deployment of tribunal members and judges) is amended as follows.
(2) In subsection (1), for the words from ‘if’ to the end substitute ‘—
(a) in England and Wales, if the Lord Chief Justice of England and Wales asks the member to do so and the President of Welsh Tribunals agrees to the request being made;
(b) in Scotland or Northern Ireland, if the Senior President of Tribunals asks the member to do so and the President of Welsh Tribunals agrees to the request being made.’
(3) In subsection (2), in the words after paragraph (b), for ‘the Senior President of Tribunals’ substitute ‘the appropriate office-holder’.
(4) After subsection (2) insert—
‘(2A) In subsection (2), “the appropriate office-holder” means—
(a) where the tribunal member exercises functions wholly or mainly in Scotland or Northern Ireland, the Senior President of Tribunals;
(b) in any other case, the Lord Chief Justice of England and Wales.’”
This amendment would insert provision amending provisions of the Wales Act 2017 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 94, in schedule 3, page 94, line 3, at end insert—
“Courts and Tribunals (Judiciary and Functions of Staff) Act 2018
50A In the Schedule to the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 (authorised court and tribunal staff: legal advice and judicial functions), omit paragraph 40 (which inserts into the Tribunals, Courts and Enforcement Act 2007 provision repealed by this Act).”
This amendment would repeal provision of the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 which inserts into the Tribunals, Courts and Enforcement Act 2007 provision repealed by the Bill.
Amendment 95, in schedule 3, page 95, line 4, at end insert—
“Judicial Review and Courts Act 2022
54 The Judicial Review and Courts Act 2022 is amended as follows.
55 (1) Section 32 (judicial agreement to certain regulations) is amended as follows.
(2) In subsection (1)(a)—
(a) omit the ‘or’ at the end of sub-paragraph (i);
(b) at the end of sub-paragraph (ii) insert
‘, or
(iii) relevant tribunal proceedings in England and Wales;’.
(3) In subsection (1)(b)—
(a) in sub-paragraph (i), after ‘First-tier Tribunal’ insert ‘in Scotland or Northern Ireland’;
(b) in sub-paragraph (ii), after ‘Upper Tribunal’ insert ‘in Scotland or Northern Ireland’;
(c) in sub-paragraph (iii), after ‘employment tribunals’ insert ‘in Scotland’;
(d) in sub-paragraph (iv), after ‘Employment Appeal Tribunal’ insert ‘in Scotland’.
(4) After subsection (2) insert—
‘(3) In this section, “relevant tribunal proceedings” means proceedings in—
(a) the First-tier Tribunal,
(b) the Upper Tribunal,
(c) employment tribunals, or
(d) the Employment Appeal Tribunal.’
56 (1) Schedule 3 (practice directions for online proceedings) is amended as follows.
(2) In Part 2 (proceedings in the First-tier Tribunal and Upper Tribunal), in paragraph 7 (giving practice directions)—
(a) in sub-paragraph (1), for ‘The Senior President of Tribunals’ substitute ‘The Lord Chief Justice and the Senior President of Tribunals, acting jointly,’;
(b) after sub-paragraph (1) insert—
‘(1A) The Lord Chief Justice may give practice directions under paragraph 5 in relation to proceedings in a Chamber of the First-tier Tribunal or Upper Tribunal whose business involves only the application of the law of England and Wales.
(1B) The Senior President of Tribunals may give practice directions under paragraph 5 in relation to proceedings in a Chamber of the First-tier Tribunal or Upper Tribunal whose business involves only the application of the law of Scotland or Northern Ireland.’;
(c) in sub-paragraph (2), for ‘The Senior President may not give practice directions’ substitute ‘Practice directions may not be given under sub-paragraph (1), (1A) or (1B)’;
(d) in sub-paragraph (4)—
(i) omit the ‘and’ at the end of paragraph (a);
(ii) after paragraph (a) insert—
‘(aa) the Lord Chief Justice, if the business of the Chamber to which the directions relate involves the application of the law of England and Wales, and’;
(iii) in paragraph (b), after ‘Tribunals’ insert ‘, if the business of the Chamber to which the directions relate involves the application of the law of Scotland or Northern Ireland’;
(e) in sub-paragraph (6)—
(i) for ‘the approval of the Senior President of Tribunals if’ substitute ‘any approval’;
(ii) for ‘sub-paragraph (4)(b)’ insert ‘sub-paragraph (4)(aa) or (b)’.
(3) In Part 3 (proceedings in employment tribunals and the Employment Appeal Tribunal), in paragraph 11 (giving practice directions)—
(a) in sub-paragraph (1)—
(i) for ‘The Senior President of Tribunals’ substitute ‘The Lord Chief Justice and the Senior President of Tribunals, acting jointly,’;
(ii) for ‘any proceedings’ substitute ‘proceedings in the Employment Appeal Tribunal’;
(b) after sub-paragraph (1) insert—
‘(1A) The Lord Chief Justice may give practice directions under paragraph 9 in relation to proceedings in employment tribunals in England and Wales.
(1B) The Senior President of Tribunals may give practice directions under paragraph 9 in relation to proceedings in employment tribunals in Scotland.’;
(c) in sub-paragraph (2), for ‘The Senior President may not give practice directions’ substitute ‘Practice directions may not be given under sub-paragraph (1), (1A) or (1B)’;
(d) in sub-paragraph (5), for the words from ‘of—’ to’ the end substitute ‘of the Lord Chancellor’;
(e) after sub-paragraph (5) insert—
‘(5A) The President of the Employment Appeal Tribunal may not give practice directions without the approval of—
(a) the Lord Chief Justice, and
(b) the Senior President of Tribunals.
(5B) The President of Employment Tribunals (England and Wales) may not give practice directions without the approval of the Lord Chief Justice.
(5C) The President of Employment Tribunals (Scotland) may not give practice directions without the approval of the Senior President of Tribunals.’;
(f) in sub-paragraph (6), for ‘sub-paragraph (5)(a)’ substitute ‘sub-paragraph (5)’;
(g) in sub-paragraph (7)—
(i) for ‘sub-paragraph (5)(a)’ substitute ‘sub-paragraph (5)’;
(ii) for ‘the approval of the Senior President of Tribunals if’ substitute ‘any approval’;
(iii) for ‘sub-paragraph (5)(b)’ substitute ‘sub-paragraph (5A), (5B) or (5C)’.”
This amendment would insert provision amending provisions of the Judicial Review and Courts Act 2022 so as to confer on the Lord Chief Justice of England and Wales certain functions currently conferred on the Senior President of Tribunals.
Amendment 96, in schedule 3, page 95, line 4, at end insert—
“57 In Schedule 5 (employment tribunal procedure rules: further provision)—
(a) in paragraph 3, omit sub-paragraphs (3) and (6) (which insert into the Employment Tribunals Act 1996 provision repealed by this Act);
(b) omit paragraph 28 (which inserts into the Tribunals, Courts and Enforcement Act 2007 provision repealed by this Act).”—(Sarah Sackman.)
This amendment would repeal provisions of the Judicial Review and Courts Act 2022 which insert into the Employment Tribunals Act 1996 and the Tribunals, Courts and Enforcement Act 2007 provision repealed by the Bill.
Schedule 3, as amended, agreed to.
Clause 19
Lay justices’ allowances
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
The clause will make it easier to make changes to the types of expenses that can be reimbursed so that we can more nimbly react to what the magistracy requires. It is right that our valued magistrates are reimbursed for reasonable expenses and should not feel out of pocket for serving their community.
Section 15 of the Courts Act 2003 sets out three specific categories of reimbursable expenses: travel, subsistence and financial loss. However, those statutory categories are, in effect, over-prescriptive. The provisions in the Bill follow the recommendation of the independent review of the criminal courts to move the categories of magistrates’ expenses which may be reimbursed from primary to secondary legislation, which will provide the flexibility to update them more quickly and to respond to changes in the evolving needs of magistrates’ expenses.
I turn now to the detail. Proposed new section 15(1) of the 2003 Act replaces the existing statutory categories of magistrates’ expenses with a delegated power enabling the Lord Chancellor to specify, in regulations, the categories of expenses or financial loss for which a magistrate can be reimbursed in connection with the performance of their duties. The power also enables regulations to provide for reimbursement of expenditure incurred or financial loss suffered as a result of those duties.
Subsection (2) outlines what matters may be addressed in the regulations and sets out what is and is not to be treated as the performance of a magistrate’s official duties, the circumstances under which expenditure of financial loss can be considered to arise from the carrying out of those duties, and administrative arrangements for making and determining claims.
I realise that the clause sounds a little dry, but it is really important. We have talked about the important role that our magistrates play in our criminal justice system. Whatever one’s view of the Government’s reforms, they are being given more responsibilities and work to do, and we will need to attract more people.
I think that the hon. Member for Chichester raised the important issue of magistrate retention. For every magistrate we recruit and train up and who must gain experience, we are seeing people leave the magistracy, partly because we are not supporting the important role they provide society and supporting them to remain magistrates for longer. That is about expenses and recognising people’s service, which is why we are looking to provide rewards and outward recognition through a long service medal. Those are all important.
Although the clause is technical, when I spoke to the Magistrates’ Leadership Executive and the Magistrates’ Association, they were delighted by it. They know that their members need to feel valued. Part of that is not making them feel undervalued by leaving them out of pocket. Even if the system were not reformed, this would be a good measure. If there is to be reform and we are to attract the magistrates we need, it is a really good thing.
John Slinger (Rugby) (Lab)
The Minister is quite right to point out that the clause is somewhat technical, but it speaks to the importance of we as a society and we as a Parliament—as legislators—making sure that, although we do not seek to professionalise the magistracy entirely, we give them the support that professionals would expect. If we want to attract people into the magistracy, this is exactly what we need to do. They certainly deserve an update to the system of expenses and more.
Sarah Sackman
I could not agree more. That is precisely why we are doing this, and it is why I commend the clause to the Committee.
Dr Mullan
I rise to speak in enthusiastic support of the clause. If we were starting from scratch, would we deal with this issue in primary legislation? I expect not. I do not know the history of why the approach of the time was followed, but it seems that the matter should be addressed flexibly via regulations. Members will have heard us argue vociferously against the use of both positive and negative regulations in different contexts, but it seems appropriate in these circumstances. The proposal reflects the changing nature of how people work, interact and fulfil their role as magistrates. We want to support and accommodate that in a way that is not over-rigid.
Of course, there will be opportunities for scrutiny of the legislation to come. Even though we have talked about the significant limitations of the negative procedure, scrutiny is still an option in theory if something were proposed that that we really were not happy about. Considering the stakes of this issue, that is a proportionate approach.
Sarah Sackman
That is true. We should be doing what is set out in this good clause and I have nothing more to add.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Special provision when Crown Court sits in City of London
Question proposed, That the clause stand part of the Bill.
Sarah Sackman
Clause 20 concerns the statutory title “Central Criminal Court”, which has been on the statute book since 1834 and refers, in practice, to the Old Bailey. Under existing legislation, the title applies to the Crown court sitting within the City of London. Historically, the only Crown court located within the City has been the Old Bailey, so the provision has operated without difficulty. From next year, however, I am absolutely delighted to say that the City of London Corporation’s new courts complex at Salisbury Square will open. It is fantastic; I have been to seen it—I had to do that politician’s thing of wearing high-vis and a hard hat.
The complex is an amazing facility for London’s justice system, with modern courtrooms. It is a brilliant resource, providing much needed additional Crown court capacity following more than £600 million of investment. Without legislative clarification, however, both the Old Bailey and the new courts at Salisbury Square would automatically be designated as the Central Criminal Court. That would cause operational confusion for court users and practitioners. Clause 20 therefore clarifies that the statutory title will continue to apply only to the Old Bailey.
The clause also maintains the long-standing statutory entitlement of the Lord Mayor and aldermen of the City of London to sit as judges when the Crown court sits within the City. In practice, and as a matter of convention, they do not assert that entitlement in order to sit in hearings in criminal cases. The clause does not alter how that entitlement is exercised in practice; it ensures that the historic statutory entitlement continues to apply consistently when the Crown court sits in more than one location within the City.
The City’s historic relationship with the Central Criminal Court does not affect judicial independence or integrity, and all judicial business will continue to be conducted by independent, legally qualified judges. I commend clause 20 to the Committee.
Dr Mullan
I rise to speak in support of clause 20, which is a technical and geographic provision necessitated by the significant infrastructure developments currently under way in the City of London. As new law courts are developed, specifically at the Salisbury Square site—we mentioned the specialist fraud court earlier in the Committee, and I do not know if that is included in the site—the law must be updated to clarify how historical designations, sitting rights and traditional roles are to be maintained in a changing physical landscape. The clause is a matter of ensuring that our legal terminology catches up with the physical reality of the court estate.
The primary objective of the clause is clarity and the avoidance of ambiguity. It ensures that the prestigious and globally recognised designation of the Central Criminal Court remains attached exclusively to the historic Old Bailey site. “Old Bailey” is a phrase that many people will be familiar with, and it acts as a tourist draw for our visitor economy. It is important to ensure that the title is not diluted or confused as additional Crown court capacity is brought online at other locations within the City boundaries.
Simultaneously, the clause ensures that the historical sitting rights of the Lord Mayor and aldermen of the City of London are maintained and extended to any Crown court site within the City. That is a respectful preservation of the unique judicial heritage of the City of London Corporation, ensuring that ceremonial traditions and historical roles are not inadvertently extinguished by modern building projects.
The Opposition support clause 20 as a necessary administrative measure. It is a fundamental principle of good lawmaking that technical clauses should be explained clearly to the Committee so that their practical effect is well understood. I thank the Minister for doing that today.
Sarah Sackman
There is only one Old Bailey, and as a result of clause 20, there will only ever be one Old Bailey. I invite all members of the Committee to join together on a group tour of the new facility in Salisbury Square when it opens, hopefully in a year’s time.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Stephen Morgan.)
Courts and Tribunals Bill (Ninth sitting)
Sarah Sackman ExcerptsThursday 23rd April 2026
(4 days, 14 hours ago)
Public Bill CommitteesRead Full debate Courts and Tribunals Bill 2024-26 View all Courts and Tribunals Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 23 April 2026 - (23 Apr 2026)
The Chair
With this it will be convenient to discuss the following:
Amendment 63, in schedule 2, page 38, line 33, leave out from “only if” to the end of line 35 and insert
“the Crown Court considers that—
(a) the appeal has a realistic prospect of success, or
(b) there is another compelling reason for the appeal to be heard.”
This amendment would broaden the test for granting permission to appeal from magistrates’ courts, so that appeals may proceed where they have a realistic prospect of success or where there is another compelling reason for the appeal to be heard.
Amendment 64, in schedule 2, page 38, line 33, after “appeal” insert “against sentence”.
This amendment is consequential upon Amendment 66.
Amendment 65, in schedule 2, page 39, line 1, after “(3)” insert “and (5)”.
This amendment is consequential upon Amendment 66.
Amendment 66, in schedule 2, page 39, line 10, at end insert—
“(5) There is a right to renew an application for permission to appeal orally.
(6) Grounds for appeal may raise issues of procedure and fact arising in the trial as well as law.”
This amendment ensures a right to appeal orally, and provides that grounds for appeal include procedure and fact, as well as points of law.
Amendment 54, in schedule 2, page 39, line 16, leave out from “if” to end of line 18 and insert
“the defendant has made one.”
This amendment would require the Crown Court to allow an appeal if the defendant makes one.
Amendment 55, in schedule 2, page 42, line 15, leave out “magistrates’ court” and insert
“jury in the Crown Court”.
This amendment would allow the Crown Court to order a retrial by jury in the event that it allows an appeal against a conviction or sentence in the magistrates court.
Amendment 56, in schedule 2, page 47, line 13, leave out “magistrates’ court” and insert
“jury in the Crown Court”.
This amendment would allow the Crown Court to order a retrial by jury in the event that it allows an appeal against a conviction or sentence in the magistrates court.
Amendment 57, in schedule 2, page 49, line 36, leave out from “Court” to end of line 39 and insert
“must allow an appeal under section 108 if the defendant makes one.”
This amendment would remove the provision limiting appeals to specific grounds and instead ensure the Crown Court allows appeals if one is made.
Schedule 2.
Amendment 37, in clause 26, page 35, line 19, at end insert—
“(3A) The Lord Chancellor may not make a statutory instrument containing regulations under subsection (3) bringing section 7 into force until he has undertaken an assessment of the rate of upheld appeals on convictions and sentences handed down in the magistrates’ court in the previous two years.”
This amendment would prevent the restriction of right of appeal against magistrates court decisions unless the rate of successful appeals from the magistrates courts has been below 10% in the previous two years.
The Minister for Courts and Legal Services (Sarah Sackman)
It is a pleasure to see you in your place, Dr Huq. I thank the hon. Members for Blackburn (Mr Hussain) and for Bexhill and Battle, and my hon. Friend the Member for York Central (Rachael Maskell), for tabling the amendments in this group.
I will come to the amendments, but first I will take the opportunity to set out the rationale for the clause and schedule 2. The existing position for criminal appeals from the magistrates court is this: when an appellant wishes to appeal a conviction or sentence in the magistrates courts, they proceed to a full rehearing of their case in the Crown court. They do not have to state why they wish to challenge their conviction or sentence, nor produce any grounds for appeal. They simply lodge an appeal and obtain a full rehearing in the Crown court.
In many cases, there is no justifiable reason for that, yet the impact on victims and witnesses, who are often required to go through the ordeal of a second trial, in the Crown court, can be significant. Indeed, we heard from victims in the Committee’s evidence sessions that going through a trial was so traumatic that they would have probably dropped out if the case had been appealed to the Crown court.
Part of the evidence that persuaded Sir Brian Leveson to make recommendations 21 and 22 in his report, in respect of appeals, was that
“many minor sexual assaults that were dealt with in the magistrates courts or the youth courts, which could include rape, almost automatically went to appeal to the Crown court, on the basis that the victim would not turn up the second time and be prepared to go through the whole process again.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 9, Q11.]
This situation is unique in our criminal justice system. Magistrates courts are the only criminal court in which there is an automatic right to appeal without filter. In every other criminal court, including the Crown court, the appellant must obtain permission to appeal, they must provide their grounds, and the court has the opportunity to review appeal applications to determine whether there are sufficient grounds to warrant reconsideration.
The purpose of the clause and the provisions in schedule 2 is to bring magistrates courts appeals in line with other criminal appeals processes, and thereby reduce the number of unnecessary hearings that progress to the Crown court. That has the dual benefit of reducing the burden of appeals on victims and witnesses, and ensuring a sensible use of court resources, reserving Crown court time for the most serious cases.
Let me be clear on the data. Of all the cases in the magistrates court, which we know can be hundreds of thousands, only 1% get appealed to the Crown court. This to me is indicative of a system that generally commands confidence. I understand the concerns about access to justice, but to be clear, the right to appeal in magistrates courts remains. Defendants will still be able to appeal a conviction or sentence in magistrates courts, but with a straightforward permission stage, as already exists elsewhere, so that appeals with arguable grounds continue to receive a full appeal hearing. Appellants will retain the ability to seek a judicial review of a refusal of permission in the High Court, and applications to the Criminal Cases Review Commission remain possible where there have been alleged miscarriages of justice.
The clause also mandates the recording of trial and sentencing proceedings to support the evidential record for appeals. This is a significant step in making our courts more transparent and open to scrutiny, and it provides an opportunity to go further than in the current criminal procedure rules. The clause is proportionate and targeted. It will filter out unmeritorious, weak applications, helping to increase efficiency across the criminal courts and reduce the burden of appeals, which we know is born by witnesses and victims, while maintaining fairness and access to justice.
Amendment 63 was tabled by the hon. Member for Blackburn; I seek your guidance, Dr Huq, on whether it has actually been moved.
Sarah Sackman
Thank you, Dr Huq. Amendment 63 seeks to broaden the test for allowing an appeal from magistrates courts under the new reforms. The amendment expands the existing test so that permission will be granted where there is some other compelling reason. That is a test used in civil proceedings in the Court of Appeal civil division. There is not equivalent test for appeals in the Court of Appeal criminal division, which is what our new process for appeals in the magistrates courts is based on.
One reason why a court might hear an appeal due to some other compelling reason is to seek an authoritative binding judgment on a particular issue. A Crown court cannot provide a binding decision as to the law on magistrates courts generally, whereas the High Court can. If the appellant wished to appeal for this reason—in other words, in order to seek a binding judgment on a point of law—they could achieve that by using the existing process of appeals by way of case stated to the High Court. In short, we do not think it would be appropriate for there to be appeals to the Crown court in this context.
Instead, we have replicated the existing grounds for appeal in the Court of Appeal criminal division: whether it is reasonably arguable that an appeal will be allowed. An appeal of conviction will be allowed if it is unsafe, which can be the consequence of the incorrect application of the law, procedural irregularities, or the introduction of fresh evidence. An appeal against sentence will be allowed in the same circumstances as in the Court of Appeal: where a sentence is manifestly excessive or otherwise wrong in law or principle. These are well-established tests.
We are committed to ensuring that we create a fair appeals system that provides adequate safeguards for summary justice. In the event that appellants feel an incorrect decision has been made in respect of their application for permission, they have the opportunity to seek a judicial review of that decision to the High Court. I remind the Committee that, as I said earlier, the introduction of recording equipment into magistrates courts to accompany the change in the appeals process will increase the ability to scrutinise the decisions of magistrates courts. I hope I have reassured the Committee of our commitment to a fair and accessible criminal appeals process, and I urge that amendment 63 not be pressed to a Division.
Amendments 64 to 66, tabled by my hon. Friend the Member for York Central, relate to the right to renew an appeal for permission to appear at an oral hearing if the appeal has been refused on the papers. I will deal with these matters sequentially.
The right to renew an application for permission at an oral hearing when it has been refused on the papers does exist in appeals from the Crown court to the Court of Appeal. We decided not to replicate the provision for appeals from the magistrates courts. There will be occasions when an oral hearing may be regarded as necessary in order for a Crown court judge to determine whether to grant permission to appeal. For that reason, we have included a provision in proposed new section 108A of the Magistrates’ Courts Act 1980, so that judges can hold an oral hearing if they feel it is necessary or for the purpose of making a determination more expeditiously.
However, the key is whether an oral hearing is necessary in the context. We are keen to avoid an influx of applications to renew permission to appeal at an oral hearing where that is unnecessary. That is particularly important when we consider the high volume of cases that our magistrates courts already consider, and the higher volume of cases that we anticipate they will be considering after the other reforms in the Bill come into play. The volume of appeals from magistrates courts to the Crown court will therefore be higher, proportionally, than the volume of appeals from the Crown court to the Court of Appeal. If we include provision for appellants to renew an application for permission that has already been refused, we risk creating a higher volume of unnecessary oral hearings than in the Court of Appeal, thereby placing a significant and unnecessary strain on Crown court time.
I understand that the amendment is driven by the desire to ensure that adequate safeguards are built into the process, and I hope my hon. Friend will be reassured that, as I have said, refusal of permission can still be challenged by applying to the High Court for judicial review.
The second part of the amendment provides that the grounds of appeal may be based on issues of procedure and fact arising in the trial, as well as on points of law. I want to reassure my hon. Friend that the grounds for appeal as currently drafted in the Bill capture the points raised in the amendment. An appeal of conviction will be allowed if it is unsafe, which can be the consequence of an incorrect application of law, procedural irregularities or fresh evidence.
Appeals of sentence could also be successful on the basis that the magistrates court has made a mistake as to the facts of the case or made a procedural error, as long as, by virtue of that mistake, the sentence was manifestly excessive or wrong in law or principle. The amendment would not change that position.
For the reasons I have set out, I urge Members not to support amendments 64 to 66. In essence, they are already covered by the Bill.
I thank the hon. Member for Bexhill and Battle for tabling amendments 54 and 57, which would provide that whenever an appeal against conviction or sentence is made from the magistrates court to the Crown court, the appeal must be allowed, irrespective of whether there is any merit in the appeal. I suspect that was not the intention behind the amendments. If I read them in the spirit that I imagine they were tabled, I think they were designed to remove the permission test, rather than indicating to the Court that it should allow all such appeals.
Dr Kieran Mullan (Bexhill and Battle) (Con)
I am grateful to the hon. Member for Wimbledon, who is not in his place, for the advice received in relation to amendment 54, which was drafted with the assistance of the Clerks. The Minister is right that our intention was to unpick the barriers at the permission stage that the Bill introduces. I think her point applies just to the first amendment; the other amendments fit because they are about what happens after a successful appeal and how it might be re-instigated. On that basis, I will not press amendment 54 to a vote. We will table a suitable amendment at a later stage.
Sarah Sackman
I am grateful to the hon. Gentleman for that clarification. I was pretty sure that that was what he must have meant and that it was not his intention to suggest that we should, essentially, allow and uphold all appeals as an automatic right. I understand, though, his intention to debate the merits of the permission test in the Bill.
I should make one point about the consequence anticipated in the amendments, in terms of appeals being directed automatically to a jury trial. To be clear, that is not how appeals currently operate, whereby a judge sitting with magistrates rehears the case on appeal in the Crown court. The effect of the amendments together could mean that we would see large numbers of appeals of conviction being allowed and sent to the Crown court for a retrial by jury, absent any permission test or filter. That could mean, for example, that low-level summary-only offences, such as being drunk and disorderly, are added to the Crown court caseload and, by extension, the backlog, which would only increase the waiting times for the more serious offences, which we want to get on with more expeditiously.
I am grateful for the hon. Gentleman’s correction, but we take issue with not just the effect of the amendment but the fact that it would mean that appeals would go to a jury trial, because that would extend the right to, or access to, a jury trial, which we do not want to encourage in this context. I anticipate that the intention was to expand the grounds for permission, so that instead of applying a test, any application for permission would be allowed. This would essentially remove the permission filter and return us to the status quo, where there is an automatic right to a rehearing on appeal, absent any filter for the merit of an appeal.
Sarah Sackman
I am grateful to all the Members who have spoken for the points they have raised. Without repeating myself, they have focused on a number of areas. The first is the concern around access to justice under the new process. We had a good debate on the question of the availability of legal aid in an earlier sitting. As I have said, the Government are committed to fair and accessible routes to legal aid. There are mechanisms such as passporting for those on universal credit. An example given was that the vast majority of prisoners do not have an income. The real picture is that the vast majority of them, unless they have personal wealth, do access legal aid and therefore would be represented and supported by those who are able to give legal advice in what are, of course, high-stakes situations.
As I mentioned in the earlier debate, a hardship mechanism is available where the matter necessitates greater complexity and expenses. I recognise that, where there are litigants in person, there is more to do, and part of the implementation and delivery of these reforms will involve looking at what support can be given to those who find themselves in that position. At the moment, litigants in person in the Crown court on appeal to the Court of Appeal are given targeted information and forms that allow them to formulate grounds of appeal and that make it user-friendly and intelligible to a lay person. That sort of thing will have to be put in place if a permission stage is extended to the magistrates court.
The points that have been made are valid, but I also want to present a realistic picture of the fact that the majority will continue to access legal aid. As I said earlier, the Department has committed to review the position once we know what the final shape of the Bill looks like to ensure that we are not creating a problem in respect of access to justice. However, in the event that there are litigants in person, we also know that we need to strengthen support for them more broadly across the system, not just in the context of these reforms. That will be a vital feature of the implementation.
The second issue raised was about the trade-offs between the efficiency savings versus the introduction of a permission filter to match the sort of permission filter that already exists in the Crown court. While I recognise that the current volume of appeals, in the context of the volume of work that the magistrates undertake, is small, that will grow as the volume of work that the magistrates undertake grows.
The sorts of appeals where success is achieved are precisely the ones that will not be prevented by this appeal test, because it is a low bar; all that has to be shown is reasonable arguability, and a court can identify that straightforwardly. It is not as if, all of a sudden, a huge risk to access to justice is created. However, what is permitted is the filtering out of wholly unmeritorious appeals, the volume of which may grow as the overall volume of cases within the magistrates court expands.
Dr Mullan
I direct the Minister to the report from the Law Commission, which said that there was no significant evidence of people abusing the system or lots of unmeritorious appeals. The point is that someone has looked at this in detail, on an independent, non-party political basis, and they do not support the suggestion that there are lots of appeals going through that should not be in there.
Sarah Sackman
I will say two things to that. Obviously, that report—as is typical from the Law Commission—is non-partisan, but it predates the reforms we are proposing in the Bill, which will inevitably increase the volume of cases we are talking about. It goes back to the point that, where we have finite resources, if the permission stage filters out only a relatively small number of cases—in fact, that is how I anticipate it will work—then that is all to the good, because even those take up a disproportionate amount of Crown court resources that we can ill afford to have directed to wholly unmeritorious appeals. That is what we are getting rid of.
The other thing is that this test is focused on specific grounds, much in the same way as exists in Crown court appeals. The treatment of that appeal can be directed towards the issue that has been the cause of the appeal, rather than having the whole thing looked at again, which is currently the case.
Dr Mullan
It is about the combination of those concerns, along with the fact that there are unrepresented people. The Minister is right to say that people who have representation, if their appeals are valid, will be able to carry on, because they will continue to meet the test. The reason the Opposition support the broader approach is because there are people who do not know the detail of the law or how to make a successful application. That is why there should be a freer approach. The concern is about those two things combining.
As my hon. Friend the Member for Reigate pointed out, not only are things being made more consequential—longer sentences and a lower likelihood of a jury trial—but at the same time it is becoming more difficult in the other direction. That feels counterintuitive and not in line with what the Government are saying about making the system fairer. On that point, the Government are moving in directly opposing directions.
Sarah Sackman
I have heard that argument, but I do not accept it. I do not think the provision makes it less fair. But I accept that there is work to be done, which does not necessarily need to be reflected in the Bill, to support litigants in person, and to examine the approach and the structure to legal aid, to narrow the gap for those who do not have access to it. That way we can reduce the number of people who have to navigate the system without legal representation.
I will not repeat the arguments that I made earlier. For those reasons, I commend the clause and schedule 2 to the Committee.
Question put, That the clause stand part of the Bill.
Sarah Sackman
I thank the hon. Member for Chichester for tabling the amendment. As she acknowledged, there has been fruitful cross-party working on the issue. I am really pleased to see the progress that we have made, both as a matter of open justice, because timely justice must be fair and transparent, and, candidly, because technology is our friend here and is enabling progress. It must be robust and tested, because the ability of AI to enable redactions where needed has to be properly studied, which is why we have initiated an AI study. But I am pleased with the progress that we have been able to make and that, as a Parliament, we will continue to make.
Dr Mullan
I have always struggled somewhat with the question of redaction. If reporting restrictions are in place, what can be shared and so on will be controlled, but anybody can sit in a court and listen to the whole thing, unredacted. I am not quite sure that I understand the absolute focus on transcripts being redacted. If someone could have sat in that court and written down what was said, word for word, why are we worried about its being redacted? The judge is the person who can say, “You can’t report that, beyond what you’ve heard,” but, separately, why are we so much more concerned about transcripts than we would be about open court, where everyone can hear the whole thing?
Sarah Sackman
It is context specific, which is exactly why we have a study: to test the level of accuracy. Accuracy is really important; we do not want a lot of judicial time to be taken up reviewing the accuracy of transcripts before they can be put out. That would not be a good use of judge time, which should be spent running trials and getting them concluded. In some contexts, most obviously in family law, redaction is really important.
Jess Brown-Fuller
On the shadow Minister’s point, does the Minister agree that, especially for victims of serious crime, there can often be things in court transcripts that might, without giving addresses, clearly describe the location where something happened? Although the shadow Minister is right to say that anybody can attend a trial, that could be used subsequently to retraumatise somebody, because they would be aware of exactly where something happened. It could also identify someone’s address, for example if it refers to the corner shop at the end of their road: even if the address may be redacted, the detail is not always. Does the Minister agree that redaction plays a really important part in protecting vulnerable witnesses and victims?
Sarah Sackman
Yes, I do. This is why we have to get this right. As I say, we are firmly committed to improving transparency across the system and making a success of it, but those changes have to be balanced against the operational realities and the financial realities in which our court system operates.
Proposed new section 108S of the Magistrates’ Courts Act 1980, to be inserted by schedule 2 to the Bill, will already provide the power for the rules of court to provide free transcripts to any person the Secretary of State directs. The amendment is therefore not required, as the intended effect will already be achieved under the current drafting.
We have taken significant steps to strengthen transparency, including expanding transcript provision, so that all victims who want them will be able to request free transcripts of Crown court sentencing remarks directly relevant to their case from as early as spring 2027. That is a meaningful step forward for victims. In cases of public interest, Crown court sentencing remarks are already published online, and broadcasters are able to film sentencing remarks in the Crown court with the agreement of the judge.
We are focused on driving improvement for the longer term, exploring how technology, including AI, can reduce the cost of transcript production in future and make it more widely available. That is why we are undertaking a study into the use of AI transcription in court hearings. All this work will provide this Parliament and future Parliaments with an evidence base for future decisions about how transcript provision could be expanded in a way that is operationally sustainable and delivers real-world benefits for victims, including in the magistrates court, over time, as recording capability expands.
Rebecca Paul
One thing I have increasingly noticed, particularly in high-profile cases, is that people live-tweet, setting out exactly what is going on. That is another thing to bear in mind. I very much welcome the progress that the Minister has set out, but in the world of social media it is important that people, and particularly victims, can get an accurate transcript as easily as possible, especially if something inaccurate has been tweeted out.
Sarah Sackman
The hon. Lady raises a valid point. All sorts of work needs to be undertaken about the use of social media in courtrooms, whether by juries or other participants, and where that is and is not appropriate, particularly in the context of reporting restrictions that are put in place for a good reason. But on this point, we think that the amendment is not needed. We can continue to make progress informed by an evidence base. For those reasons, although we are in real consensus on the principle of this, I urge the hon. Member for Chichester to withdraw her amendment.
Jess Brown-Fuller
I appreciate the Minister’s constructive collaboration on this issue, but as it is my job to hold the Government’s feet to the fire, I will press amendment 17 to a vote.
Question put, That the amendment be made.
Sarah Sackman
I am grateful to my hon. Friend the Member for Easington (Grahame Morris) for tabling amendment 67.
The speech that the hon. Member for Reigate just made was not only helpful and constructive, as is so often the case, but really compelling. At a societal level, we have been on a journey with regard to how we approach rape and serious sexual violence. There is a recognition that for far too long not only has the court been in danger of becoming a site for re-traumatisation, but frankly the response of our entire criminal justice system has been inadequate to meet what is now widely recognised to be an epidemic of violence against women and girls in our society. Unless we send a message at the very pinnacle of the criminal justice system that that is unacceptable and we cannot tolerate it, and get serious about conviction rates, the amount of charging decisions and the number of cases that come to court, we will not deter people from this kind of behaviour. Her speech setting that out, and some of the work that was done before this Parliament to get here, was very valuable.
Let me begin by setting out the rationale for clause 8, and then turn to amendment 67. Far too many victims of rape are dropping out of the justice system because they feel that they are the ones on trial. That needs to stop. Following the Law Commission’s careful consultation, the Bill will stop rape myths and misconceptions entering our court rooms. Clauses 8 to 11 will raise the threshold so that a victim’s past sexual history or previous allegations can be used only when necessary and relevant. The reforms will also prevent the defence from insinuating that victims are lying or motivated only by money just because they claimed compensation or reported a previous offence. We will also allow patterns of domestic abuse, of any type and against any victim, to be shown to the court in cases where they indicate a propensity for further offending.
All those measures sit alongside the Government’s wider efforts to improve the victim experience of the justice system. This Government have already implemented special protections for victims’ counselling records. We have commissioned a new project led by Professor Katrin Hohl to bring Operation Soteria into the courtroom. We are rolling out trauma-informed training for not just judges but all court staff, and we have dedicated £6 million, to be invested over the next two years, to deliver independent legal advice for rape victims. Taken together, these measures are transformative.
Clause 8 reforms the framework that governs when sexual behaviour evidence about a complainant may be introduced in criminal proceedings. Section 41 of the Youth Justice and Criminal Evidence Act 1999 sets out important protections intended to prevent irrelevant or prejudicial material about a complainant’s previous sexual behaviour from being placed before the court. The Law Commission’s consultation found that the current provisions are complex and difficult to navigate, and that they are not being applied consistently across cases. That speaks to the point made by the hon. Member for Bexhill and Battle about monitoring the new framework, but some of this has been driven by the monitoring of the existing framework, and ensuring, by codifying the test, greater consistency of practice.
As a result of that complexity and inconsistency, there are some instances where sexual behaviour evidence about a victim’s previous sexual behaviour is admitted to a court and heard by a jury, despite it having no real bearing on the case. Simplifying the law will help judges to apply a clearer and more coherent test. Clause 8 replaces the existing statutory gateways with a clearer admissibility test. It will continue to be the case that sexual behaviour evidence should not be admitted into the court unless approval is granted by the judge. Judges must consider whether the evidence has substantial probative value. The clause also requires judges to consider a series of statutory factors, including whether the evidence relies on improper inferences, rape myths or misconceptions.
These reforms clarify the law, rather than altering the threshold per se. They reflect principles that are already applied by courts but set them out in a more structured way, which will improve consistency and transparency. We will also extend the new threshold to all offence types, not only sexual offences. This is because issues relating to a victim’s past sexual behaviour may occasionally arise in other trials, and complainants in those cases should benefit from the same safeguards and be treated equally.
The purpose of the clause is not to prevent a defendant from having a fair trial or to exclude evidence that is genuinely relevant; it is to ensure that decisions about admissibility are based on proper evidential reasoning and not on prejudicial assumptions. For that reason, I commend the clause to the Committee.
Amendment 67, which was tabled by my hon. Friend the Member for Easington, seeks to exclude from the proposed admissibility threshold any sexual behaviour evidence that took place prior to the charge, but that is connected to the offence. That goes against the purpose of the clause, which as I have said is to ensure that sexual behaviour from a victim’s past is admitted only when it has clear relevance to a significant issue in the case or is important explanatory evidence. That is to prevent evidence that relies solely on perpetuating rape myths and misconceptions from being used against a victim.
The amendment, which as we have heard has support from across the combating violence against women and girls sector, would significantly broaden the amount of sexual behaviour evidence that the defence could bring to court without any consideration from the judge, including evidence that neither has substantial probative value nor is important explanatory evidence.
Sexual behaviour evidence connected to the event itself could, for example, include any previous sexual behaviour between the same two parties, even though we know that the majority of sexual violence occurs within a relationship. That would allow a huge amount of sexual behaviour evidence to be brought into court entirely unscrutinised and unfiltered by the judge. Insinuating that because a victim has previously engaged in sexual behaviour of the same kind or with the same defendant they are somehow more likely to have consented to the events on trial is a well-known misconception.
Whether or not that was the intention of my hon. Friend the Member for Easington in tabling the amendment, the effect would be to perpetuate this narrative, and we cannot accept it. I therefore urge my hon. Friend the Member for Bolton South and Walkden to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned.—(Stephen Morgan.)
Courts and Tribunals Bill (Seventh sitting)
Sarah Sackman ExcerptsTuesday 21st April 2026
(6 days, 14 hours ago)
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The Chair
With this it will be convenient to discuss new clause 29—Review of impact of provisions of section 3—
“(1) The Lord Chancellor must lay before Parliament a report containing a review of the impact of the provisions of section 3 during each relevant period.
(2) For the purposes of subsection (1), the relevant periods are—
(a) before the end of 12 months, and
(b) no sooner than 35 months but no later than 36 months
beginning on the day on which section 3 of this Act is commenced.
(3) Reviews under this section must consider the impact of the provisions of sections 74A to 74D of the Senior Courts Act 1981, as inserted by Section 3 of this Act, on persons who—
(a) are from any ethnic minority background;
(b) are White British and live in lower income households.”
This new clause requires the Lord Chancellor to review, after one year and three years, the impact of the provisions of section 3 on people who are from ethnic minority backgrounds, and on White people from lower-income households.
The Minister for Courts and Legal Services (Sarah Sackman)
It is a pleasure to see you in the Chair once again, Ms Jardine.
As Members will have heard me say on countless occasions, the pressures on our criminal courts are unprecedented. I do not intend to rehearse arguments that have been made many times in the House. There is a broad consensus that urgent action is required, and it is in that context that I turn to clause 3, which provides for trial by judge alone in cases likely to attract a custodial sentence of three years or less.
Clause 3 introduces a new judge-only division of the Crown court—the so-called bench division—to hear less serious cases without a jury. This does not create a separate jurisdiction; one’s case will still be heard in the Crown court if assigned to the bench division. The same appeal route that is currently available from the Crown court will still be available. The clause operates to provide that certain either-way cases defined by the seriousness threshold in the legislation will be tried by a judge sitting alone in a Crown court.
The evidence we heard in Committee is that sitting with judge alone saves time. A former Lord Chief Justice, Lord Burnett of Maldon, told us he was convinced that
“the time saving will be enormous if the relatively low-level cases are tried by a new constitution.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 76, Q161.]
Similarly, Doug Downey, Attorney General of Ontario, said in evidence to us that there is “no question” but that judge-alone cases are “faster”, and that that is borne out by the data there.
Let me be clear, as I have tried to be clear a number of times: jury trials will remain in place for the most serious crimes. Indictable-only offences such as murder, rape, armed robbery, grievous bodily harm with intent and arson endangering life will never be heard without a jury. But it remains the case that while jury trials are not at fault for the delays, although jury trials only account for 3% of all criminal trial cases they take up approximately 60% of Crown court hearing time, and the independent review’s findings show that jury trials take twice as long now as they did in 2000.
As Sir Brian Leveson told the Committee, trials have become longer and more complex for many reasons, due to the high volume of digital evidence now central to many prosecutions, and the consequence is clear that the delays are rising, and victims and defendants alike are waiting longer for justice. The independent review of the criminal courts estimates that judge-only trials can reduce hearing time by at least 20% and save Crown court time—a figure that Sir Brian himself describes in his review as “conservative”—and those savings will generate more capacity for jury trials where they are most needed.
Critics have said that this measure would produce no time saving at all, but the Committee heard from respected members of the judiciary that that is not the case, and that judge-only trials would save time in practical and important ways, by encouraging more realistic guilty pleas, by avoiding the delays inherent in empanelling and managing a jury, by allowing evidence to begin earlier in the day, and by reducing the disruption caused by juror absence or delay.
As I have set out, the application of these changes would apply to cases in the existing backlog where a trial has not already commenced. It is because we must tackle the mounting caseload in the Crown court as soon as we can that we are implementing the measures in this way. The clause allows cases in the current open Crown court caseload where a trial has not yet begun to be considered under the new allocation test. Trials should take place in accordance with the law as it stands, and applying the new regime to cases in the open caseload will help us begin to reduce delay from the outset. This is a practical step to ensure that the courts can make the best use of available capacity.
The clause also provides safeguards in the form of reallocation provisions, as we have debated. Cases can, and sometimes do, evolve as they progress through the courts, and the clause makes clear provision for cases to be reallocated to a jury trial where the seriousness increases, even after a judge-only trial has begun. The intention of the clause is not to remove jury trials for the most serious cases in our justice system, and where an indictable-only offence is added to a bench division case, it will always be reallocated to a jury trial.
The Government have been clear: we have made the investment in courts that people have been calling for, by uncapping sitting days as well as investment in our workforce through legal aid, but investment alone is not enough. The pressures on the system require structural reform, because it was not designed to withstand the challenges of both the present backlog and the profile of modern criminal trials. We are seeing a growing number of remand cases entering the system, and those cases must be prioritised for hearing in order to meet statutory custody time limits. That in turn pushes other serious cases where the defendant is on bail, including rape and serious sexual offences, further down the list.
The consequences of those delays are not abstract. Longer waits mean longer periods in which the accused may remain on bail, which places greater pressure on policing and monitoring, while victims and complainants endure prolonged uncertainty and distress. Persistent delay, as we have learned, also distorts behaviour across the system, encouraging defendants to postpone guilty pleas in the hope that witnesses, and sometimes victims, will lose confidence as cases drift further into the future. That cannot be right. That is not justice, and it is not sustainable.
The failings of our system were laid bare, not just by the independent review but by the Committee, when we heard most powerfully from victims of crime themselves. We need a more modern model of criminal justice that serves those affected by these failings, and clause 3 is an important part of delivering that change.
I would like to hear from my hon. Friend the Member for Birmingham Erdington, and hear the debate in Committee, before I set out the Government’s position on new clause 29. It may be convenient, therefore, Ms Jardine, to hear from my hon. Friend at this juncture.
Courts and Tribunals Bill (Sixth sitting)
Sarah Sackman Excerpts(1 week, 4 days ago)
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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.
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
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?
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
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.
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.
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.
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.
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.
Courts and Tribunals Bill (Fifth sitting)
Sarah Sackman Excerpts(1 week, 4 days ago)
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Dr Mullan
To use the word that the hon. Member used at the start of her intervention, it is a balance. We in the Opposition are clear that the Government have that balance wrong, which is why we oppose the measures. As I said, the Government want to have this both ways: on the one hand, when it suits them, they say that it is a balancing exercise, but on the other hand, when we point out flaws in the balance, they say, “Everything’s fine. You would be just as happy in a trial with or without a jury.”
The Government should be consistent. If the Government just said, “This is a balancing exercise. There will be some detriment to people as a result, but we believe that it is right”, and then stuck to that line, at least it would be intellectually coherent. The Minister might think that makes it a debating point, but I think it is pretty important in politics to be intellectually coherent. We take a different view from the Government.
The other point that we think is different, too, is that the proposal will not achieve the desired outcome. Even if we agreed, in theory, that the balancing exercise was correct and that the trade-off that the Government seek to achieve were a reasonable one to make against the loss of the rights that we are talking about, we do not think that the Government will get those outcomes. We therefore think that the Government’s argument is fatally flawed in two respects, which is why we continue to oppose the Bill.
As I said, fairness is important. We focused on the example where a first-time offender might end up with fewer rights in our judicial system than a repeat offender; in respect of, for example, loss of respect, reputation, employment or income, the person who has more at stake has their rights removed. That is a point made clearly by JUSTICE, which supports our amendment 39. JUSTICE states that the three-year threshold is likely to lead to outcomes that are seen as unfair by those within the system and by the public. Repeat offenders are more likely to qualify for a jury trial, because their previous convictions would push the likely sentence above three years, while first-time offenders committing the same offence may be denied a jury trial.
When we put that to Ministers, as I said, they say that it is perfectly fine for those people to have a trial without a jury, and that is fair. Ministers also say, however, that they are keeping jury trials for the most serious cases—but if they are keeping it for the most serious cases, they must at some level accept that it is a superior system in some way. Otherwise, why keep it for the more serious cases, as they define them? The Government cannot hold both positions coherently.
Absolutely, as I said, the core issue is fairness. The Government want to have it both ways in this argument, but of course the defendants will not get to have it both ways. The defendants will just have what they are told by the judge, without any ability to exercise their rights in the way that they think is fair or consistent with the broader point. We therefore continue to press our amendment 39 and that is why I ask Labour Members to think carefully; this might not be universal, but how many of them would feel happy if they—with their previous good character, and all the damage that could happen to their reputation and income from a conviction—were not allowed to have the option of a jury trial? I cannot say for sure, but potentially some of them might feel differently then.
The Minister for Courts and Legal Services (Sarah Sackman)
It is a pleasure to serve under your chairship, Dr Huq. I thank my hon. Friend the Member for Bolton South and Walkden and the hon. Member for Bexhill and Battle for their amendments. I will address amendments 23 and 24 first.
The test for the clause is framed intentionally framed around a single condition: the likely sentence. We are ensuring that jury trials are preserved for the most serious offences. Under proposed new section 74A, indictable-only offences will always be tried by a jury. In all other triable either-way cases, the likely sentence provides the clearest and most objective way of identifying seriousness, ensuring that cases where the likely sentence exceeds three years’ imprisonment or detention are heard by a jury. That follows recommendation 30 of the independent review of the criminal courts.
That is already a feature of our system—every day, magistrates courts determine allocation by assessing the likely sentence on conviction. The clause applies that well-established approach in the Crown court; it is not, in that sense, a departure from the current system, but a consistent extension of it. We do not exclude broad categories of defendants from such an assessment in the existing system, and nor do we intend to do so under the reforms. Doing so would risk undermining the impact that the reforms are designed to deliver.
As such, the test does not introduce separate gateways based on the personal characteristics of the defendant; it is focused rather on the seriousness of the offending. Introducing such gateways would remove a significant number of cases from scope. Nearly a quarter of those convicted in the Crown court are first-time offenders, and these amendments would carve out even more cases than that, as they include wider defendant-specific factors, thereby undermining the purpose of the creation of the Crown court bench division, which is to ensure more efficient processing of cases to reduce the overall backlog on a sustainable basis.
As a general rule, those defendants are not given automatic priority in procedural decisions; case management decisions, such as on adjournments, disclosure directions and trial scheduling in the Crown court, do not tend to turn on the characteristics of the defendant. The amendments would change that approach by determining mode of trial by a number of independent defendant-specific factors. Every defendant in the Crown court will receive a fair trial, and that is not affected by the mode-of-trial decision. We have confidence in our judiciary, who take a formal judicial oath to act independently, impartially and fairly.
Sarah Sackman
As I have said consistently throughout this debate, we regard jury trials as a cornerstone of British justice. They are part of our legal culture, for all the reasons that Members on both sides of the House have articulated, and we do see a role for citizen participation in our justice system, not least to preserve its legitimacy. But what corrodes the legitimacy of our justice system is a backlog in which we see appalling delays, causing people to lose faith—whether they are witnesses, complainants or indeed defendants—and to pull out of trials. That is corrosive of trust in our justice system. We therefore of course want to preserve juries for our most serious cases. But trust in a system is built on many foundations, and the timeliness and proper administration of that system, including the proper resourcing of the system—which was not the case in the previous 14 years—is paramount when it comes to trust in the system.
Sarah Sackman
The premise of not just these amendments, but amendments that we have already debated, is that other tiers of the system, whether that be the magistrates court or the proposed Crown court bench division, somehow offend the principles of natural justice. The principles of natural justice are essential; they are foundational. They are based on impartiality, freedom from bias and fair process. All those things are guaranteed under our current system in the magistrates court, and would be guaranteed in a judge-only trial, as articulated by my hon. Friend the Member for Amber Valley; district judges make those decisions on a daily basis.
The hon. Member for Bexhill and Battle wants me to say that, somehow, this would be a lesser justice. I will not say that. I am recognising that there is something special about jury trials—of course there is; it is why I have said consistently that they are a cornerstone of our legal system—but we have to deploy what is a very particular resource that demands a great deal of jurors. We have not spoken about jurors all too often in this debate, but there is something called jury burden. That is why, as we will hear when we come to the clauses that deal with judge-only trials for long and complex cases, particularly for fraud, which place a huge burden on jurors, often with cases lasting months on end, we have to use that resource and deploy it carefully.
However, as I have said repeatedly, and I will say it again, the state’s obligation at every level of the justice system, at every level of seriousness, is to guarantee an individual defendant a fair trial that upholds the principles of natural justice, which is what the hon. Member’s amendment actually focuses on. I am firmly of the view, and the Government are firmly of the view, that, whether by lay magistrates, by judge alone or by a judge and jury, our system upholds those principles of natural justice and is therefore fair throughout.
Mr Paul Kohler (Wimbledon) (LD)
I have listened patiently to the Minister’s arguments for two sittings. She said something that I really do want to ask her to reflect on. She has talked about jury burden, and about the fact that it is important for confidence that the citizenship takes part in the system. The Minister and the Government are seeking to halve the number of jury trials, and therefore halve the number of times that members of the citizenship will actually take part in juries and in the criminal justice process. Does she not see that that undermines the whole system? Many people will not now have a chance to take part in juries and that is a crucial thing. Talk to anyone who has been on a jury, and they will say that they hated the idea when they were called up for it and loved it afterwards because they have actually taken part in the system. The Government are halving the possibilities of people doing that.
Sarah Sackman
I do not accept the premise or assumption that everybody has a positive experience of the criminal justice system when they participate in a jury. As the Minister for Courts, I do thank all of those who perform their civic duty. However, when asking people to do that, we must ask them to do it in a way that is fair and proportionate to them, as well as to the other participants in the system—not least the defendants in indictable-only cases and those that, under these reforms, attract a sentence of three years or more.
Cases can and do sometimes evolve as they progress through the courts. Proposed new sections 74B and 74C of the Senior Courts Act 1981 make clear provision for cases to be re-allocated to a jury trial, where the seriousness increases even after a judge-only trial has begun. The basis of these reforms is to ensure that cases are allocated according to the seriousness of offending, with jury trial preserved for the most serious cases.
Paulette Hamilton
I am learning so much from these sessions. I have a question on choice. Many people feel that the removal of choice is a real problem. Can the Minister explain why that choice is not being given to people who feel that they need it because they feel that the system is working against them? How will they feel that they have that choice even without a jury present?
Sarah Sackman
It is a good question and one that we touched on in our earlier debate in the context of clause 1, where we were discussing the proposal to remove the defendant’s right to insist on their choice. When we step back and look at the entirety of the system, if a person is charged with a summary-only offence that will be considered by the magistrate, there is no choice; you are allocated directly to a trial by the magistrate’s jurisdiction. If a person is charged with an indictable-only offence—a more serious offence—there is again no choice and that person goes to the Crown court whether they like it or not.
Under our system we have this feature of triable either way, where we extend the choice to defendants in a category of cases that we, as a society, have chosen. As I have said, lots of other jurisdictions—and I use the Scottish one as an example because it is proximate—do not have this feature. In many ways, when I came to this debate and to reflect on the policy choices that we might make, driven by the critical—dare I say emergency—context in which we find ourselves, this feature of our system seemed to me quite strange. I cannot deny that it is a choice that people have obviously enjoyed and utilised, with many opting for Crown court trials even when the seriousness of their case meant that it could have been dealt with a lot more swiftly and efficiently in the magistrates court.
We know that people are making those choices, so there must be a reason for that the preference. It might be driven by lots of things: because of confidence and also presumably because people think that they will get some advantage and perhaps a better chance of being acquitted if the trial is heard in the Crown court. However, it is strange when thinking about public services and how we triage and ration what is ultimately a limited resource.
That is why I use the health analogy—and not just because my hon. Friend the Member for Birmingham Erdington is so experienced in that field. When we think about how we triage finite resources within the NHS, we give patients choices around their healthcare, but ultimately the triaging is done by the experts. In this context, the expert is the court. The court knows, based on the seriousness of the offence, what mode of trial is most suitable in the context. Under these reforms, we are saying that it is the court that should decide, rather than the defendant being able to insist on their choice, even if that choice comes at the expense of the complainant, who might end up being the victim in the case, and needlessly dragging things out.
We must be honest and pragmatic. It seems to me a quite unusual feature of our system that it is the defendant that always has the right to insist when, in lots of contexts, the defendant does not get a choice. It is only in this narrow cohort of cases that they do.
Dr Mullan
I have a background in healthcare. The Minister has talked about triage being led by healthcare professionals, but there is another side of healthcare where people can insist on choice. This Government have introduced Martha’s rule, where the family member can not only insist on choice, but override what the treating clinical team think is the right course of treatment. They are given a route to go around them, to call someone, to insist that they are wrong and that they fundamentally disagree with them, and to get somebody else in who will challenge what the consultant in charge of the patient thinks is right. The Minister points to one element of the healthcare system where the state has a greater degree of control, but does she accept that there are other aspects of the healthcare system where we allow people to override what the healthcare team want to do?
Sarah Sackman
I do not want to labour the analogy—forgive the pun—but in many senses, we do allow that. Under this system and the reformed system, we preserve the right of the defendant to appeal. Having allocated the trial to the venue, be it judge-only or the magistrates court, if the outcome is perverse in some way or the defendant takes issue with it, they can appeal the verdict, provided that there is a proper legal and rational basis for doing so.
Tristan Osborne (Chatham and Aylesford) (Lab)
The Minister cited Scotland as a good example within the United Kingdom. Scotland has seen a significant drop in the backlog of cases over the last several years, partly as a result of the system that she has explained. Does she think that the modelling within our country—some of the best practice we have seen in Scotland—might be a solution for England and Wales?
Sarah Sackman
I think there is some consensus here. We are all extolling the virtues of our system. As the Minister with responsibility not just for courts, but for legal services more generally, promoting our legal services and courts around the world, I am very proud of that. Being proud of our system in England and Wales, however, does not mean that there are not things that we can learn from other jurisdictions, particularly where they are producing better outcomes in timeliness or in the treatment of minorities, women, rape and serious sexual offences. It is why I went to Canada to learn from practitioners and judges there. We will take the lessons from wherever we find them. I will pick up later on the point about regional differences, because we must always learn lessons, whether internationally or closer to home.
Jess Brown-Fuller
We heard oral evidence from Doug Downey, who talked about the Canadian system. He also talked about how the right to elect is a protected characteristic of their justice system. The difference is that they have the right to elect a judge-alone trial. Did the Minister explore the option of maintaining the right to elect, but allowing defendants to choose whether they would like to have their case heard in a Crown court bench division with a judge alone?
Sarah Sackman
The hon. Member asks a typically great question. We did think about it. I am well aware that the right to elect exists, once a defendant is in the superior court in Canada. We considered whether the right to elect to go before the Crown court bench division should be included as part of the reforms. The reason we did not, and the reason why these reforms are predicated on the consistent principle that it is for the court to determine mode of trial, is partly about the balance we wanted to achieve within the system between defendant rights and the rights of other participants—I am wary of using the word victim—or complainants within the system.
We received representations from many complainants and people who have been victims of crime, and those who represent their interests, such as the independent Victims’ Commissioner and London Victims’ Commissioner. Many felt that it was so often the defendant’s choice and right to insist on choice that was driving the process and was part of an imbalance in the process. There is both a pragmatic element to our choice, because we think that by introducing a new Crown court bench division we will save time and speed up the processing of trials, and a normative principle behind it, which is about who is in the driving seat in these decisions. We think it should be the court and not always the defendant.
Matt Bishop (Forest of Dean) (Lab)
We have heard from Opposition Members this morning about how defendants should have confidence in the system and about choice and being fair, whether it is in magistrates courts or Crown courts. On the point the Minister has just made, is it not right that victims and witnesses should also feel confident in the system? The only way to achieve that is by levelling things up, because ultimately victims do not have a choice about which court cases are heard in. Witnesses do not have any choice in the matter whatsoever. By doing both, we could get better confidence among every member of society, rather than just defendants.
Sarah Sackman
We do think this is the right balance, which is why we brought it forward. It is the test that was recommended to us by the independent review and we think it is a considered, objective and balanced test. We are bringing it forward because we think it is the right one. Expanding the test for—
Sarah Sackman
I have to make progress. Expanding the test for eligibility beyond seriousness would dilute the focus and risk undermining both the clarity of the allocation framework and the savings these reforms are designed to deliver. I therefore urge my hon. Friend the Member for Bolton South and Walkden to withdraw her amendment.
Amendment 39 would introduce a new route to jury trial, where the defendant demonstrates to the court that the circumstances of their case are such that to be tried without a jury would amount to a breach of principles of natural justice. As I have already said and sought to reassure the Committee, those principles of natural justice are, I believe, preserved in the reforms. Those include the right to a fair hearing, the rule against bias and the duty to act fairly and to give reasons where required. As such, I do not consider that the amendment would add substantive protection beyond the safeguards already in place.
I want to pick up on one or two of the points raised earlier in the debate. There was an exchange between the hon. Members for Reigate and for Chichester relating to change of circumstances. That is dealt with in clause 3, which makes provision that where a charge is added to an indictment—an indictable-only charge—the case would be reallocated to a jury trial. Similarly, there are change of circumstances provisions where there is material new evidence meaning that the judge can make a decision that a case should be more appropriately heard before a jury. That is provided for and is intended to meet the sorts of complex scenarios that both hon. Members raised.
The hon. Member for Brighton Pavilion raised again with me the issue of jury equity. I have heard the arguments. I have listened carefully to her as she has raised them on a number of occasions and I listened to the witness who raised them as well, but we do not think it is appropriate to make a specific carve-out for a specific category of offences in this context.
Finally, the hon. Member for Bexhill and Battle raised again with me the argument that we either do not need to do any of this, or we should wait to see how our other measures pan out—the huge investment in lifting the cap on sitting days and in legal aid, the workforce and the efficiency drive.
Siân Berry
I appreciate the Minister’s comments, but will she clarify what she meant by a particular category of offence? I could not have been clearer in my speech that I did not want to make an exception for protesters. I spoke specifically about people being prosecuted in cases where it was the powerful versus the underdog. Will she clarify what it is she is rejecting?
Sarah Sackman
I am rejecting the addition of any other carve-outs or exceptions beyond the test of seriousness that we lay down in these measures, which is dictated by the likely sentence, the test proposed by the independent review of the criminal courts.
Dr Mullan
The Minister said earlier, and she just said again, that it was the test recommended by the independent review. But if we are being specific, the test that was recommended was two years. The Government have made the test three years, so it is not the test that was recommended. It is important that the Minister does not repeat that inaccurate phrase.
Sarah Sackman
The point that I was making is that it should be the seriousness of the case that is the sole dictator of the mode of trial, and that likely sentence is the best and most objective test that we have. We must also be mindful of how we administer a system. Sometimes, adding lots of tests not only leads to complexity and introduce uncertainty, but introduces one of the things that we are trying to eliminate—delay. If we have a straightforward, well-understood test that is consistent with the sorts of allocation decisions that magistrates routinely make, we can apply that test consistently.
Returning to another point that the hon. Member for Bexhill and Battle made in relation to necessity, we maintain that we have a serious, nationwide problem. We maintain that that the national overall backlog of 80,203 outstanding cases in the Crown court, as it stood in December 2025, is an emergency. The central projection for the number of sitting days we are likely to need in very short order is 139,000. If I took an optimistic view that the central projection was too high, even in a low scenario we would need 130,000 sitting days. That is not to say that there are not, on a short snapshot basis, parts of the country that are doing better. I have given evidence to the Justice Committee where we have looked at that. Historically, there are parts of the country—Liverpool and Wales are often cited—that have lower backlogs. But there is no doubt that as a national picture—we do not want a postcode lottery in our justice system—the situation needs tackling.
Yasmin Qureshi
I think I am possibly the oldest person in this room. As somebody who was prosecuting, defending and dealing with criminal cases back in the late ’80s, ’90s, 2000s and so on, I saw the criminal justice system at first hand. When I started practising at the Bar, we had full legal aid at all levels, so whenever defendants appeared in the magistrates court they had proper advice. We had section 6(1) type of committals, where we could test the prosecution evidence and therefore get rid of a number of cases. We had full courtroom sittings; if Snaresbrook Crown court had 15 courtrooms, 14 or 15 of them were running. We had a full capacity of judges running and we did not have a backlog of jury cases. Will the Minister please rethink? The reason we have delays in our court system is not because of the juries.
Sarah Sackman
If I may say so, and as long as it is not indiscreet, my hon. Friend seems far younger and more energetic than she claims to be. She makes an important point because she does have long-standing experience in this area; before she came to this place she practised for a long time. I do not know when my hon. Friend finished practising, but we know that—it is one of the central insights of the independent review—the average jury Crown court trial is taking twice as long as it did in 2000.
That increase is driven by a greater complexity in cases and the changing profile of crime. As I have said before, we now have forensic and CCTV evidence, and also—this is something to commend people from previous Parliaments for—procedural safeguards put in place over time that rightly create a fairer system, such as the Police and Criminal Evidence Act 1984. All that is adding to the length of jury trials.
As Sir Brian Leveson himself said, juries are not the driver of the problem, but it is true that jury trials and Crown court trials are taking longer and longer. That is not about to change, and it will not be changed by whatever measures one may bring forward in relation to speeding up prisoner transfer or case progression. The fact that jury trials take up 60% of the hearing time within the Crown court is exactly why the independent review asked us to look at it. I understand the picture my hon. Friend paints of the world we want to live in, but the world we live in now has been transformed and it is the job, particularly of progressives, to move with the times and to build a system that is fit for the profile and technology that we now encounter.
Rebecca Paul
It is clear that the Minister honestly believes this change will address the backlog. I do not doubt her sincerity—we believe differently, but I understand that that is what she believes. What concerns me is this: how many miscarriages of justice is she happy to accept in order to bring down the backlog? Why on earth, when miscarriages of justice are clearly going to happen as a result of these measures, are they not mentioned in the impact assessment? It makes no mention of one downside being a potential miscarriage of justice. I find that astonishing.
Sarah Sackman
Miscarriage of justice should concern us all. That is why I am happy to see the responsibility for looking into miscarriages of justice being given to the Criminal Cases Review Commission under the leadership of Dame Vera Baird. She gave evidence to the Committee, and her support for these measures is notable. I am not sure why the hon. Member for Reigate thinks that miscarriages of justice will increase under them; there is no evidence for that. One miscarriage of justice is, of course, one too many, but I do not accept the premise of her question, which is that the reforms introduced by this aspect of clause 3 will somehow lead to an increase in the number of miscarriages of justice.
Dr Mullan
The hon. Member for Bolton South and Walkden highlighted the Post Office scandal. She talked about those involved in that case as an example of people who supported the defendants feeling that there was a risk of greater miscarriage of justice, so it is not a proposition that my hon. Friend the Member for Reigate has plucked out of thin air. Other people with direct experience of these matters think that is a risk, so would the Minister at least accept that it is a valid concern?
Sarah Sackman
The circumstances of the Post Office Horizon scandal are incredibly serious. Part of the reason why they came about is because people were essentially fabricating evidence and using computer evidence in a way that was fundamentally dishonest. However, I do not think that the reform that we are talking about in this context, which is the allocation test, or mode of trial, and allocation to a Crown Court bench division should of itself reduce the confidence that the public can have in the integrity of our justice system. For all those reasons, and the way in which clause 3 is drafted with a focus on delivering swifter justice for victims, witnesses and defendants alike, I urge the hon. Member for Bexhill and Battle not to press amendment 39.
Yasmin Qureshi
There has been a lot of discussion about the amendments. As I said on Tuesday, I will not be pushing my amendments to a vote. They are meant to be probing amendments, and I hope the Government will still look at them and consider what has been said.
I wish to talk about a few issues that have been raised. We have heard it mentioned that Scotland does not have a jury system, but it has never had a jury system, so we are measuring different things. Scotland also has its own unique system. For example, it has an in-between verdict: there is not guilty, guilty and something in between. Scotland has its own legal system, but our system has been the jury system for hundreds and hundreds of years. We either think the jury system is good and we keep it for either-way or indictable offences, or we think the jury system is so cumbersome and so bad that we should abolish it altogether. Then we can have a different argument, and we do not have to have it even for indictable offences. What we cannot have is indictable offences and either-way offences being dealt with differently. I respectfully disagree with the Minister.
Yasmin Qureshi
Yes, absolutely. At the moment, one of the beautiful things we have is that the judge determines sentence and directs on law, and the jury decides on the innocence or guilt of a defendant. It is fantastic, because that also protects the judges.
In a system where judges are going to be dealing with Crown court cases—we will come on later to complex cases and fraud cases, where they are going to be spending months and months on cases—the judges are going to have to write very long decisions. This is not similar to a district judge in a magistrates court, where the average trial takes maybe half a day or a day, two or three at the most. That is normally the limit.
In the Crown court, the average trial date is two to three days or five days to a week. The judge is going to be writing up all that evidence; because he or she will have to make the decision at the end on innocence or guilt, they have to pencil their decision in a very detailed way, covering not just the law, but an assessment of each witness who gave evidence—for example, “I accept the evidence of that witness because of this, this and this; I don’t accept the evidence of that witness because of this, this and this; this witness is unreliable because of this, this and this.”
All of that will have to be included; if it is not, the defendant who is found guilty will want to appeal, and so the judge is going to spend ages writing decisions.
Sarah Sackman
I appreciate that my hon. Friend was not present for all the evidence sessions, but I wonder whether she would reflect on the evidence we heard from Clement Goldstone, who was the recorder at Liverpool. He said:
“I also do not accept that there will be additional time spent in the writing of judgments. The vast majority of decisions will follow the conclusion of the defence speech”.––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 76, Q161.]
Judges give a route to verdict in any event, so it is all part of the summing-up process.
Yasmin Qureshi
I understand that in some of the more simple, routine cases of two or three days, but for trials lasting eight, nine or 10 weeks, I respectfully disagree that judges can come to that judgment in just a few days, because they have to go through a whole load of evidence, comment on it and come to a decision.
Siân Berry
On a point of order, Dr Huq. I alerted the Minister earlier to the fact that I was going to say this. I want to ask what can be done to correct the record in respect of the Minister’s comments about a case that I referred to in my speeches on Tuesday and that Tim Crosland referred to during evidence. On Tuesday, the Minister said that
“some of the cases he mentioned, including the Elbit Systems trial, which the hon. Lady mentioned, contained an indictable-only charge, meaning that the case would receive a jury trial, as that one did in fact.”––[Official Report, Courts and Tribunals Public Bill Committee, 14 April 2026; c. 140.]
I am afraid that the Minister was referring to a different case from the one I was referring to. The recent case that has been in the news surrounding a retrial was related to a break-in at Elbit Systems in August 2024. The November 2022 jury acquittal that I referred to was about protesters who threw red paint symbolising blood at the London headquarters of Elbit Systems in October 2020. In that case, none of the offences was indictable-only; they were all related to criminal damage. I just wanted to put that on the record, and I hope that the Minister will accept that correction to her comments.
Sarah Sackman
Further to that point of order, Dr Huq. I am happy to respond. We were probably at cross purposes. There was obviously a very high-profile case, which is the one that I thought the hon. Lady was referring to when she mentioned Elbit Systems. That did involve the indictable-only charges of aggravated burglary and grievous bodily harm with intent, but if she was referring to a different case and we were at cross purposes, I am happy to correct that aspect of the record.
Ordered, That further consideration be now adjourned.—(Stephen Morgan.)
Courts and Tribunals Bill (Third sitting)
Sarah Sackman Excerpts(1 week, 6 days ago)
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Dr Mullan
Indeed. I hope that the Minister can start to address the figures from the Criminal Bar Association, in particular, and to articulate whether she agrees or disagrees with them. If she disagrees, why? As the Criminal Bar Association makes clear, if the Government had sight of that data—they would have known ahead of the Committee’s evidence sessions, and potentially some of the earlier stages of the Bill, that those figures were coming down—why did they choose not to make such potentially important information available to those of us considering the Bill? It is not helpful for Members to quote waits of four or five years for people to get to trial when, in fact, those figures can relate to the delay between the alleged offence and sentencing. Yes, waits for trial from the point of charge are too long, but that is just part of the picture.
Of course, the obvious weakness in the Government’s arguments that this is a measure to tackle what we should all consider to be a temporary problem—getting back to our historical court waiting times—is that these measures are permanent, without any plan to reverse them when the backlog is down to pre-pandemic levels. As I have said, we have precedent for that. During world war two, when we made changes to the number of people sitting on juries, we reversed those changes when the crisis was resolved.
The Government have announced an intention to recruit and train a further 2,000 magistrates in the next financial year. That is welcome, but recruiting and training magistrates takes time, and, in fact, the delays in the magistrates courts themselves loom over us. On the other hand, the Bar Council rightly points out how many barristers have left the profession. Those are trained, ready-to-go professionals, choosing not to practise criminal law, who could quite easily return to criminal practice, compared with having to train a magistrate from scratch.
What is missing from the Government’s approach is any serious attempt to make the most of the capacity that we already have. Court sitting days are still being wasted. Yesterday alone, 58 out of 515 Crown courtrooms sat empty—that is 11%. I am sure that, as we go through the day and proceedings move forward, we will get the figures for today. I imagine that those will be in line with every other day that the Idle Courts X account, which I think those of us following this debate have become great admirers of, shows day in, day out: Crown courtrooms sitting empty.
Trials also still collapse due to basic administrative failures. None of the problems are solved by curtailing the right to elect. As I have said, only a few years ago the Justice Secretary described jury trials as fundamental to our democracy—a sentiment that every Member of this House must share—yet now, in office, he appears willing to curtail them in the name of expediency.
This proposal also was not in the Labour manifesto at the election. A change of this nature—an unprecedented erosion of a fundamental right that we have all enjoyed for hundreds and hundreds of years—was not in that manifesto. I think that makes it extremely difficult for the Government to insist, particularly in the Lords, where I am sure very many Members will have serious concerns, that they have any kind of democratic mandate to push through these reforms.
Of course, we have been here before. In what will come as little surprise to many Members, just as with Labour’s current proposals to fatally weaken the punitive elements of our justice system by letting serious violent and sexual offenders out of prison earlier, Jack Straw, the then Justice Secretary, also proposed removing the right to a jury trial in either-way offences when Labour was last in office. As is the case today, Members across the House and stakeholders fought against, and successfully defeated, those proposals.
We can therefore do away with the pretence that this is entirely the workings of an independent figure in Sir Brian Leveson. Although I have no doubt that he came to his conclusions independently, I imagine that those old proposals had been sat in the Ministry of Justice, waiting for the right Minister for civil servants to press this idea on, and they found that in our Justice Secretary and our Prime Minister.
We would be right to fear that it is the thin end of the wedge. Often such arguments are hypothetical: we say, “Well, we think this is the thin end of the wedge; some future Government or future Minister will want to go further.” Thanks to the plans being leaked, we know what the current Justice Secretary wanted to do. He wanted to go much further than even the proposals we see before us by removing jury trials for offences carrying sentences of up to five years—five years! Where will the Government go next if they succeed with these proposals?
Sir Brian Leveson’s review made clear that the estimate of a 20% reduction in trial times is subject to what he described as “very high levels of uncertainty”. That uncertainty reads across to the other measures, including clause 1, which we are considering today. He said that it was very important that the Government undertook further detailed analysis before moving ahead with those proposals. When I put that to him during evidence, he simply said—I am paraphrasing but I think it is a fair and accurate description—that that is now a matter for the Government, and he was not willing to be drawn on whether they had actually done that further detailed analysis.
I brought up the main additional piece of analysis that the Ministry undertook, which was a stakeholder engagement exercise—not a typical one that seeks to measure and come up with firm outcomes. It found that the time saving was between 10% and 30%, so there is a huge variation in what the Government may or may not achieve, and, fundamentally, it is potentially very different from what even Sir Brian recommended.
Jury trials are not an obstacle to justice; they are a safeguard against its abuse. They ensure that the most serious power that the state holds—the power to convict and imprison—is exercised, where possible, with the consent and involvement of the public. If we allow that safeguard to be weakened, we should not be surprised when public trust in the justice system continues to erode. The answer to a justice system in crisis is not to strip away centuries-old protections; it is to make the system work as it should. That is why the proposals are wrong and should be opposed.
If the Government are serious about reducing backlogs, there are obvious steps they could take that do not involve weakening constitutional safeguards. I will come back to those at further stages, but I draw Members’ attention to the evidence given by the operations director in His Majesty’s Courts and Tribunals Service—the civil servant in charge of making our courts run more smoothly, efficiently and productively. I asked him what he thought were the priorities for bringing down the Crown court backlog. He mentioned lifting the cap on sitting days. He welcomed that and said it made a big difference. The other examples he gave were improvements to prison transport and to listing. None of those priorities had anything to do with jury trials. The man charged with making our system run more efficiently, when asked to list his key priorities, did not say anything to do with jury trials in his first four points. As I have said, a second report from Sir Brian goes through a whole range of measures that will improve the efficiency and productivity of our courts. We have some further amendments for later stages to tease out some of those, and I look forward to considering them.
Let us be clear. The burden on this Government is extremely high, as it should be, to make the case for unprecedented changes to halve the number of individuals able to have a jury trial. The Government could have spent time—two or three years—hammering the uncontroversial things that have political consensus and are able to make a difference. They could have looked at Liverpool Crown court, which does not have a historical backlog. As Sir Brian said in his evidence, to some extent, every court has a backlog of cases waiting to be heard, which is helpful for managing those cases, but there are normal levels of waiting time that are accepted without people having to go back to the judge and ask for more time.
As I understand it, the Minister has not visited Liverpool Crown court in the last 12 to 18 months. She can correct me if I am wrong. I do not think the Deputy Prime Minister has visited Liverpool Crown court either.
The Minister for Courts and Legal Services (Sarah Sackman)
I have visited lots and lots of courts.
Dr Mullan
Indeed, but, as I said, I do not think the Minister has actually visited the court that is most successfully managing and dealing with these issues, which is somewhat odd. I would have been visiting that court and trying to understand and replicate, in detail, every single thing that it does. If, in the end, the Government had found something that made the difference we all want, there could have been a different conversation, but they chose not to do that.
As I put to the Minister during our evidence sessions, politicians and Departments have only so much capacity and political attention, and only so much they can do with their time. Instead of investing that time, energy and attention into the detailed work of doing things better and improving the system, the Government are embarking on a reform programme that I suspect will end up overwhelming the Minister’s time. It will be a huge distraction from the very hard and detailed work that she needs to lead. I accept that she will try her absolute best to continue to deliver across the spectrum, but the political reality will be very different.
We oppose clause 1. We tabled an amendment that would, to some extent, limit the damage that it does, but we are clear that it should not proceed at all. The Government have completely failed to articulate robustly, and with clear, reliable data, the impact that it will have. They have not answered the very many criticisms put forward by those practising in the system every day about what will have an impact, and they have not secured the Opposition’s support for the curtailment and erosion of a fundamental right that has been with us for hundreds of years.
Rebecca Paul
I thank the shadow Minister for that point; I share his concerns. There is also a question regarding whether unpaid volunteers will even want to take on such a serious role that involves handing out two-year sentences—that is quite a responsibility.
The outstanding caseload in magistrates courts has been increasing in recent years. In September 2025, the outstanding caseload was around 373,000, which was a 74% increase compared with pre-pandemic levels in September 2019. The shift of cases from the Crown court back into the magistrates court is simply moving the issue to a less suitable court to deal with it. It is simply moving the problem around, rather than actually addressing it.
Summary trial through the magistrates court was always designed for the purpose of swift justice in low-level cases. By removing the right to elect for a jury trial, in combination with increasing magistrates’ sentencing powers to two years’ imprisonment and removing the automatic appeal against conviction, important protections are being removed, and the groups that will be impacted most detrimentally are ethnic minorities.
Magistrates are unpaid members of their local community who volunteer to act as magistrates. There is no requirement for them to be legally qualified. That may well be fine for summary-only offences, such as low-level motoring offences and minor criminal damage, but it is not appropriate for more serious offences. Many magistrates do an excellent job and give up their time selflessly for the benefit of their community. In spite of that, I do not believe that they should have the power to send someone to prison for two years. Let us all remember that magistrates can be as young as 18.
In closing, I want to make one last point. This change was not in the Labour manifesto; indeed, there is no mention of any changes to trial by jury at all. Only one such commitment was made, which Government Members appear to have forgotten. To quote from the Labour manifesto:
“Labour will fast-track rape cases, with specialist courts at every Crown Court location in England and Wales.”
That is on page 67, if anyone needs to refresh their memory. That is what the British people voted for. The Bill could have been so different if clause 1 had started with that, instead of jeopardising fair justice for many defendants. It is such a shame that a Government with such a historic majority have so quickly forgotten the change they promised, and whom they fight for and represent.
Sarah Sackman
Let me begin by saying that the Bill has been prepared with precisely the people and communities who elected us and gave us our mandate in mind. The Labour party manifesto contained one word on the front cover: “Change”. It was not an acceptance of the status quo—a brittle criminal justice system with record and rising backlogs, which we inherited from the previous Government.
Rather than sit idly by, we are a Government who govern by choosing, and the choice we make is that, when we see a problem, we set about fixing it. We do so in a way that is informed by our values of equality, fairness and social justice. We also do so in an evidence-based way, which is why we commissioned an independent review of the criminal courts, led by Sir Brian Leveson and ably supported by Professor David Ormerod and others. They produced a detailed and comprehensive analysis that spoke to the depth of the crisis in our criminal justice system and the impact that the delays are having across the piece, not just on those impacted by crime but on those defendants on remand languishing in jail, whose lives have been put on hold, perhaps for crimes they did not commit. They spoke to the long-term challenges in our criminal justice system and the changing nature of evidence in our system, involving more digital and forensic evidence, all contributing to a picture in which trials are now more complex and take twice as long as they did in 2000.
In that time, there has been no reform of our criminal justice system; instead, as we have heard from a number of Members today, there has been a chipping away of the Department’s budget, underinvestment, the stripping back of not just legal aid but sitting days, the closure of more than 40% of our courts and people leaving the Bar in droves, all of which have driven the backlogs—and there is consensus that we need to do something about them.
I was interested in the remarks made by the hon. Members for Chichester, for Brighton Pavilion, for Bexhill and Battle and for Reigate, and my hon. Friend the Member for Bolton South and Walkden, all of whom called on this Government to pull every lever at our disposal. Here is the thing: I agree. We should be doing all those things, and indeed we are. We are not waiting to begin on the efficiency drive so desperately needed and called for by Sir Brian’s report and by those across the criminal justice system.
Sarah Sackman
The hon. Member started with a long digression into trial by ordeal. I hope this Committee will not become a trial by ordeal, but I find the brass neck approach to this from the Opposition surprising, given that they cut the Department’s budget in real terms, while we have invested in record levels of sitting days and have, I am proud to say, announced that we are lifting the cap on sitting days next year. I intend to get back to my point, but, interestingly, we are beginning to see the progress that our measures have made. Last quarter’s figures show that the backlog continues to rise—it is a snapshot—but we are starting to see the impact of the investment in a record number of sitting days and the lifting of the cap, which we know will be beneficial.
We have been clear from the start, following the expert recommendations of the independent review of the criminal courts, that three things will be needed: major investment in sitting days, the £92 million in criminal legal aid for solicitors that we invested in the early days of this Government and the committed uplift of £34 million to advocates fees, and a record settlement for the CPS.
Sarah Sackman
I will not take any more interventions; I want to make progress. The point is that we are already beginning to see the investment aspect of this.
The second pillar of how we address the backlog, which many have commented on, is efficiencies, and we have part 2 of Sir Brian’s report. In his speech on his vision for the justice system, the Deputy Prime Minister committed to a number of measures that are already under way. We will get blitz courts in London and the south-east under way this month, aggressively listing cases to get through them more efficiently. A pilot for AI-driven listing, working with the judiciary towards a national listing framework so that we end the postcode lottery on listing and list more efficiently, investment committed to case co-ordinators and driving case progression so that we are using the limited resources at our disposal most efficiently are all examples of taking forward greater efficiencies, which are desperately needed.
Sarah Sackman
I will just conclude this point. The central insight of the independent review of the criminal courts, in direct answer to the hon. Member for Reigate, borne out by the modelling, which has been externally verified and which we presented in the impact assessment, is that efficiency—however optimistic we are about it—and investment alone will not turn the tide on the rising backlog. That is because of the inheritance from the previous Government, coupled with the long-term challenges and changes in our justice system that the IRCC outlined. That is why we need all three things: efficiency, investment and reform.
Rebecca Paul
In my speech, I asked a specific question about the impact assessment. One of the options was to do nothing, and it would be helpful if the Minister could clearly articulate what was included in that option. Did it include the impact of uncapped sitting days, or of the three-year custodial sentence? Did it include all the other things that she was talking about, and that are being done anyway, or was the option literally to do nothing? If it was to do nothing, that is not a fair comparison.
Sarah Sackman
The hon. Lady will have seen that with the presentation of the Bill, as is right and appropriate, a suite of documents and material was made available to Members of this House and the wider public. The factsheet that accompanies the Bill includes a series of scenarios, one of which is literally to do nothing, and looks at the forecast of the projected caseload coming into the Crown court. There is another scenario, which asks what maximum investment would do to bring down the backlog—maximum investment being maximum, uncapped sitting days. The factsheet shows that that would mitigate the growth, but would not begin to bring down the backlog. We then project what maximum investment coupled with efficiencies would do. That would have a further dampening effect, but again, it would not even begin to get into the backlog, such is its scale—standing at 80,000 today. The factsheet supports the central insight of the IRCC: that it is only by pulling all three levers—investment, efficiencies and reform—that we begin to get down the backlog in this Parliament.
I have been pushed in the Chamber, by the Justice Committee and in the media by people saying, “Minister, you are saying that the backlog is only going to start to come down by the end of this Parliament,” as if to say, “Can’t you do more?” We are pulling every single lever even to get that effect, such is the growth of the backlog, which is due to the factors I have outlined.
Matt Bishop
I am proud to stand with the Minister and the Government on the Bill. Members on the Committee and in the Chamber have often used the terminology of “abolishing” jury trials. The definition of “abolishing” is formally ending, cancelling or getting rid of something completely, usually by law or official decision. Will the Minister clarify that none of the three points she has made is about abolishing jury trials?
Sarah Sackman
Of course that is right. No one is talking about the abolition of jury trials. We have said, and I will say repeatedly, that juries are a cornerstone of the British legal system and of our legal culture. We are preserving jury trials for the most serious cases. By seeking to tackle the shameful delays in our criminal justice system, we are seeking to ensure that, where jury trials are appropriate and very much necessary, they happen in a timely fashion. There is no point in having a jury trial if it comes one, two or three years after the fact, when witnesses are pulling out, the quality of evidence has worsened, people’s memories fade, and quality justice is simply not delivered. The state’s fundamental obligation is to deliver a fair trial.
Under our existing system, as a society we have already made a threshold choice about who accesses a jury trial and who does not. Currently, 90% of cases in this country are tried—fairly, robustly, rigorously and independently—without a jury. This debate is about where that threshold should be, not about a complete abolition of jury trials. It is about a pragmatic and proportionate threshold change to respond to the issue of timeliness, which is currently detrimental to the state’s delivery of a fair trial to all.
Sarah Sackman
I am not sure who to give way to, but I will give way first to the hon. Lady—I will try to be as fair as I can.
Siân Berry
We are debating clause 1, which as I understand it will completely remove defendants’ right to elect; the rest of the Bill puts in place procedures whereby other people—judges—will decide whether a jury trial is held. The right to elect a jury trial is being completely abolished. Is that not correct?
Sarah Sackman
The hon. Member is right. Where currently a defendant charged with a triable either-way offence has the ability to choose trial by jury in the Crown court, even in a scenario in which a magistrates court has accepted jurisdiction over their case, that ability to choose is removed by clause 1. Currently, defendants do not need to justify that choice; presumably they choose it because they consider that they will derive some advantage from it. The reform that we are making is to remove that ability to choose and, rather, to place the responsibility with the court to allocate the mode of trial according to the seriousness of the offence.
There was much discussion raised by the hon. Member for Bexhill and Battle, and I believe one or two others, about the approach, and whether we should have an approach driven by the characteristics of a particular defendant—whether they are of good character, whether they have previous convictions—but that is not the approach we have chosen to take. The approach we have chosen to take is one in which it is the expert court, independently, that is triaging the case and allocating mode of trial based on the seriousness of the case. The best and most objective proxy for that is the likely sentence and the allocation guidelines, much in the same way as magistrates currently allocate trials in their mode of trial hearings.
Dr Mullan
The Minister is an extremely articulate individual. Will she just confirm that she agrees that, as the hon. Member for Brighton Pavilion pointed out, the Government are abolishing the right to elect, so it is perfectly reasonable for individuals to use the term “abolish” in relation to some of these reforms—because they are abolishing the right to elect?
Sarah Sackman
For those watching on TV—which is probably my mum—I will be absolutely clear: the Government are not abolishing jury trials. The Government are preserving jury trials for the most serious cases, and we are working in this way to ensure that those trials are fair and timely.
Sarah Sackman
What clause 1 does is remove the ability of a defendant to choose where they are tried, which, at the moment, they have a right to insist on. So we have—
Sarah Sackman
Let me finish my sentence; you asked me the question. We are removing the right to elect, and removing it completely. The right to elect means, notwithstanding the fact that under our current system—by the way, the right to elect does not exist in Scotland. I do not think any of us here would suggest for one minute that Scotland does not have a fair and independent justice system. It operates in a different way. The right to elect does not exist in a whole host of jurisdictions that have far lesser uses of jury trials than ours. What we are removing is the ability of the defendant to insist on their choice of trial, notwithstanding the seriousness of the case.
The CPS data shows that last year, under the current system, that happened in some 4,000 cases where the magistrates courts had accepted jurisdiction. In other words, under the magistrates courts’ existing sentencing powers, which currently stand at 12 months, they could hear that case and hear it fairly. They could also hear it more promptly because, as we know, the backlog is less in the magistrates court, and when the same trial that could be heard in the magistrates court is heard in the Crown court it takes four times as long, so there is swifter justice in that sense. Under the right to elect, the defendants in those 4,000 cases said, “I want a jury trial.” Under the current legislation, they can insist on that choice.
Some Members may say, “Actually, we think that is really important,” and I understand that that is the position of the Green party and the Opposition. We say something different for two reasons—one pragmatic, one principled. The pragmatic point is that, under the status quo—which we all agree is failing everybody, and we are implored to do something about the backlog—it is pragmatic and proportionate that cases that can be heard more swiftly and more proportionately, and be retained in the magistrates court, should be. It should be the court that triages that, in the same way as—to use the health analogy—if I went to A&E on a Saturday night with my child, and my child had a graze that could be dealt with by a nurse, if I insisted that it had to be seen by a specialist consultant, the answer would be, “Well, no; the person who needs to be seen by a specialist consultant is the person who has a specialist condition.” The triaging is done by the experts.
Paulette Hamilton (Birmingham Erdington) (Lab)
The Minister is making some important points, but I must bring her back to what she said about the fairness of jury trials, and about people feeling that they are fair. At the moment, many minority groups and working people of a lower socioeconomic level feel that if a trial is moved to be heard by just a judge and magistrates, it will not be fair. The Minister needs to clarify that. I absolutely agree with what she says about the need for change, but we must bring the public along with us. If the judge is a white middle-class man, the magistrates are white middle-class men and we cannot get variety, how will we get fairness? Remember, your mum is watching.
Sarah Sackman
My hon. Friend is absolutely right. We often use the old adage about justice needing not just to be done, but to be seen to be done. That is vital, and again comes back to the language that people use about our courts. The suggestion that a person gets a rougher justice in the magistrates court is inaccurate, and we have to ensure that there is confidence in every tier of our justice system, including in our judges.
My hon. Friend is also right, not only about the perceptions of, but the real-world impact on minority communities and those who have historically had negative experiences with criminal justice. We know that disproportionality exists, whether in charging practices, sentencing outcomes or the amount of black and minority ethnic men on remand. Black and minority ethnic communities are disproportionately the victims of crime, and a person who is black is four times more likely to be a victim of homicide than a person who is white, which is a grave injustice.
That is why it is so important that the Deputy Prime Minister has committed that the Government will, in due course, introduce an amendment to the Bill to provide for a review to properly monitor the impacts of the reforms, and of wider justice measures, on precisely the communities and individuals that my hon. Friend spoke about. We have to enrich our understanding of the issue and ensure that the reforms command the confidence of all the communities that we represent.
Sarah Sackman
I will make a little progress. As I have said, where a magistrates court has determined that an offence is suitable for summary trial there, clause 1 removes the ability of a defendant to insist on their choice of venue. The decisions about venue and mode of trial will rest with the court. That allocations process ensures that decisions about jurisdiction are made solely by the courts, so that cases are heard in the most appropriate venue according to their severity and complexity. There are thousands of cases in the Crown court caseload where the magistrates court has indicated that it has sufficient sentencing powers to hear the case, but a defendant has elected for jury trial.
Dr Mullan
I wish to pick up on a point the Minister made earlier, as interventions from other Members hampered me from doing so at the time. She hinted in her earlier remarks that although the total backlog is rising, there have been some improvements. I wonder whether she was attempting to address my questions around the Criminal Bar Association saying that the backlogs are falling in a number of areas. Could the Minister clarify whether the MOJ accepts that the backlogs are already falling in a number of courts? If it does not, what is the gap between what the CBA says and the Government’s position?
Sarah Sackman
I was coming to that point, but as the hon. Member has raised it, I will address it now. First, I put it on record that any suggestion that the Ministry of Justice or I have sought to bury good news is totally false. I would be the first person to be screaming it from the rooftops if our measures and our investment, which we made in contrast to the previous Government, were actually working. The fact is that at the last projected figures, in December, the backlog still stood at over 80,000 and it continues to remain high—slightly up from the previous quarter.
Rebecca Paul
I thank the Minister for that point. This goes back and links to the question I raised on the impact assessment. It is really important that we get clarity from the Minister on the impact assessment. The interpretation I am taking from her answer to me on whether existing measures like the suspension of three-year sentences and the uncapped sitting days were taken into account, is that, no, those are not in the “do nothing” scenario. I am struggling with why that would be. Surely, in the impact assessment you need to be showing the reality in order to do a fair comparison? It is reassuring to hear her say that she has looked at these numbers, but why are they not included in the impact assessment so that we can all clearly see them and see why she is taking the decision she is around limiting jury trials?
Sarah Sackman
I refer the hon. Member to the summary factsheet that was produced, which shows all of what I have described very clearly. I will ensure that every Committee member has a link. There was also a helpfully produced website by the MOJ, which synthesises all of these facts, all of the modelling, which demonstrates all of these things. I understand that she is looking at the formal impact assessment, but if you go on the website and look at the factsheet—all of which has been shared with stakeholders and the media, and I will ensure that she has the model she seeks—I can assure her that on the MOJ’s forecast of the growth in the backlog, even with maximum investment and ambitious efficiency we do not begin to reduce the backlog. That is our analysis, and it is what supported the IRCC’s analysis. It is only when you do all three things—investment, efficiency and structural reform—that you bring down the backlog.
Dr Mullan
I think even though the Minister did not directly and clearly say it, there was an acceptance there that the backlog is falling in a number of areas. A question that flows from that: what analysis has been done on why? I imagine this is something that the Ministry of Justice is all over like a rash. It is having to do something that is opposed by many people. Even if the Minister thinks it is the right thing to do, the Minister will accept it is a reduction in the rights of citizens, even if she thinks it is justifiable. If the Government’s main argument—that this will not work without removing jury trials—is not being demonstrated in a number of Crown courts, why is that? What has the Minister done rapidly to understand why they are coming down and what is transferable, right now, to the other courts?
Sarah Sackman
Just to be absolutely clear, I have not accepted the CBA figures. What I have told you, and everyone here, is that on the last published figures, the backlog continued to rise between September 2025 and December 2025. I accepted that it may be that in some courts there are signs of improvement—
Sarah Sackman
Let me just finish the point on clause 1, if I may. As I was saying in answer to a colleague’s question, the approach here on clause 1 and the approach to these structural reforms is pragmatic, driven by the necessity to bring down these backlogs, following the central insight of the IRCC; but the approach in clause 1 to remove the ability of the defendant to insist on their choice is also a principled one. We heard in Committee from crime victims—I think I am using that word appropriately in that context—that the ability of the defendant to insist on their mode of trial, notwithstanding the seriousness of the offence, in their view tilted the balance excessively towards defendants’ rights to drive the criminal justice process. In a criminal court, the Crown is on one side, represented by the prosecution, and the defendant is on the other. The complainant, who may turn out to be a victim of crime, is not represented. In this scenario—in keeping with other jurisdictions such as Scotland—it seems that the right to have the defendant drive the process, irrespective of the proportionality or the suitability of that mode of trial, is in principle an odd design choice.
Joe Robertson
It seems that the Minister has perhaps momentarily forgotten that the entire legal system in this country is tilted in favour of the defendant. The defendant is innocent until the prosecution makes its case, and it cannot just make a good case, because the case has to be beyond reasonable doubt. The whole system is tilted in favour of the defendant, and rightly so. It is slightly strange to hear her use the argument that the defendant should not have freedom and liberty to elect when they are innocent people until convicted—and many of them are never convicted.
Sarah Sackman
I am well versed in how our legal system works. I am well versed in the principle of the idea of innocent until proven guilty, and the criminal standard of proof. That is all important, as are the other safeguards that this reform system would retain. However, I make no apologies for the approach that we take in reforming this system, which, as I have said, is not just driven by necessity and pragmatism but by principle, and for the case repeated by myself and the Deputy Prime Minister—that we are a Government who will centre victims of crime. I also make no apologies for the investment we make in victim support services, or for the recalibration we are making in terms of how mode of trial is determined. Determining mode of trial is driven not just by the severity of cases, by creating an objective test to be applied by the courts, but the pursuit of timeliness. Timeliness, by the way, helps not only complainants and victims of crime but those accused of crime. If I were accused of a crime, I would want to clear my name as quickly as possible, so timeliness helps everybody across the criminal justice system.
Yasmin Qureshi
I understand the point that the Minister is making about victims and I am obviously concerned for them, but we are also talking about defendants’ rights. She will be aware that 900 postmasters and postmistresses from the Horizon scandal have all said, “Please do not abolish jury trial,” and the reason is that when they were being charged with those offences, many of them were told to plead guilty by lawyers who thought that a public jury would find it difficult to believe that a Government organisation had made a mistake. However, some of them did elect Crown court trials and were acquitted. That is 900 potential defendant/victims. Lord Hain and my hon. Friend the Member for Poplar and Limehouse (Apsana Begum) mention the importance of the jury trial. I do think that the victim and defendants have a right to elect, and I think that we should abandon restricting the jury trials.
Sarah Sackman
Of course, the Post Office Horizon scandal was one of the great miscarriages of justice of recent times. However, it is important to remember that we are discussing the whole system and that, of course, for the most serious crimes under a reformed system, we would be retaining jury trial. It is also important to remember, as I think even those representatives from the criminal Bar accepted, that there is no constitutional, absolute right to a jury trial. If that were so, the 90% of people whose cases are dealt with in the magistrates court would have a right to insist on a jury trial. This whole debate is centred around the appropriate way to treat that cohort of cases in the middle—between summary-only, which stay the same, retained by the magistrates, and all the indictable-only cases, or indeed anything likely to receive a sentence of over three years, which retain a jury trial.
Sarah Sackman
Let me just finish my sentence. This whole debate is located around a relatively narrow group—although we are still talking about thousands of cases—of triable either-way cases and those likely to receive a sentence of three years or more. It is why the question about jury equity, posed by the hon. Member for Brighton Pavilion, interestingly relates somewhat to—
Courts and Tribunals Bill (Fourth sitting)
Sarah Sackman Excerpts(1 week, 6 days ago)
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The Minister for Courts and Legal Services (Sarah Sackman)
It is a pleasure to serve under your chairship, Ms Butler. As I was saying earlier, when I was cut off mid-flow, clause 1 supports a more efficient use of court resources by preventing cases of lower-level seriousness from escalating unnecessarily to the Crown court. I was responding to the point made by the hon. Member for Brighton Pavilion about jury equity. Her comments and those of others, most notably the hon. Member for Bexhill and Battle, concerned the question of whether one should look at the characteristics of the defendant when allocating the mode of trial, rather than the seriousness of the crime, which is the objective test we have included in clause 1.
In essence, the approach taken is an objective one, and it adheres to the principle of equality of treatment when it comes to the mode of trial, because it is driven by the seriousness of the crime. The hon. Member for Brighton Pavilion made a point about freedom of expression and the right to protest, and they of course make up a cornerstone of our democracy, but some public order offences, depending on their seriousness, are currently heard in the magistrates court and some will be heard with a jury trial. That will remain the case, although of course some, depending on their seriousness and the likely sentence, might be heard by the Crown court bench division.
Siân Berry (Brighton Pavilion) (Green)
Tim Crosland’s point was that the Government are, in effect, abolishing the principle of jury equity. Can the Minister tell us that we cannot ever expect a judge to triage a case based on the fact that the true interests of justice might lie with a defendant relying on the principle of jury equity? Will she admit that the principle of jury equity is being abolished by the clause?
Sarah Sackman
I heard the evidence from Tim Crosland. I put to him that some of the cases he mentioned, including the Elbit Systems trial, which the hon. Lady mentioned, contained an indictable-only charge, meaning that the case would receive a jury trial, as that one did in fact. Some cases will go to the Crown court bench division and will therefore be heard in front of a judge.
The point is that the seriousness of the offence and the likely sentence make up the applicable test under the Bill, rather than who the defendant happens to be, their past history or the particular type of offence. The objective test is the same, regardless of whether the defendant is a young person from a working-class background, a young person of colour from a particular marginalised community, a practising solicitor or an environmental campaigner. Under the processes, they will all be treated equally. We are not creating carve-outs for particular types of offences or particular kinds of defendants; the seriousness of the case is determined by the court through the application of the test, and that is what determines the mode of trial.
Alex McIntyre (Gloucester) (Lab)
This morning, we heard a passionate and important contribution from my hon. Friend the Member for Birmingham Erdington about monitoring the proposals’ impact on minority communities. She has tabled an amendment so that we can discuss that question, and I look forward to debating it. Although I understand what the Minister is saying about jury equity, can she assure the Committee that the Government are committed to reviewing it in the light of my hon. Friend’s argument?
Sarah Sackman
Absolutely; the comment from my hon. Friend the Member for Birmingham Erdington was really important. In fairness, the hon. Member for Reigate also made the point about the equality impacts. The way that the measures in the Bill, and indeed our current justice system, impact on different communities in differential ways rightly concerns the Government. It is precisely why we committed to an independent statutory review, and it is why too I am grateful to my hon. Friend the Member for Birmingham Erdington for tabling her amendment, so that the Committee will have an opportunity to discuss those important issues on a cross-party basis.
We need to ensure not only that we have the right safeguards, monitoring and data collection, but that the reforms in the Bill do not entrench a status quo that has sometimes fallen short of our collective aspirations for justice and equality, so that they can command the confidence of all communities as we implement, monitor and refine them in future, if needed.
Jess Brown-Fuller (Chichester) (LD)
The Minister is making an impassioned plea for trying to equalise the system. Does she not share my concern about the Government’s proposals? Person A could be accused of sexual assault on the tube, and have never been in any criminal justice situation, while person B could have had a string of offences that they have been charged with and ended up serving prison time for. They would get a jury trial because of their past offences, but somebody of previous good character would not, under the Minister’s proposals.
Sarah Sackman
It would depend on the facts of the case. First, I do not entirely understand the rancour behind the examples. If someone has committed a serious crime that could attract a six, seven or eight-year sentence, those are indictable-only offences. I think we all agree that we would want them to have a jury trial, which they would under the proposals in the Bill, because anything likely to get a sentence of three years or more will receive a jury trial.
In the scenario the hon. Lady described in respect of the person of good character, it is right that at the plea and trial preparation hearing—the mode of trial allocation phase—the likely sentence depending on the seriousness will be looked at. In that process, the likely sentence would no doubt take into account—albeit it is a high-level assessment, in line with the sort of assessment that magistrates courts make every day—the mitigating factors, which might include the person’s good character. In bringing forward the reforms, I believe that that person will get a fair trial wherever they get it: in a magistrates court, in the Crown court bench division or, indeed, at a full jury trial if the crime is likely to get a sentence of three years or more. It is not about the person who has done the more serious crime enjoying greater rights. It is because it is a more serious crime that it gets a jury trial. That is a proportionate use of the resources in our system.
Jess Brown-Fuller
The Minister may have misunderstood my point. If person A and person B have committed the exact same offence—they might have done it a day apart, in the same place, in the same circumstances—but person B has previous record, they are more likely to be heard in front of a jury trial. With person A, who is of good character, the offence remains the same, but the fact that person B has had previous offences means they are charged with a higher offence. The case and the evidence might be exactly the same, but they would end up with a different type of trial. Does the Minister think that is fair?
Sarah Sackman
We have an obligation to guarantee a fair trial. I believe that wherever cases are heard in this system, they will be heard fairly. It will be a different mode of trial, but it will be heard fairly. Ultimately, it comes back to a fundamental difference between us. The view has been taken by those on the Opposition Benches that, somehow, what one gets in a magistrates court—where 90% of our trials are heard—is less fair. That is in front of not just lay magistrates but district judges hearing cases. Some of the most serious civil matters such as the decisions around care proceedings—to remove children from their parents’ care—are determined by single judges. I believe that a single judge can determine cases fairly and impartially. That is the system that exists in different jurisdictions, including our own, and it works well and fairly. It is not unfair for somebody to be allocated a trial type based on the seriousness of the offence they are alleged to have committed.
Dr Kieran Mullan (Bexhill and Battle) (Con)
The Minister is to some extent varying her argument. Earlier in the debate, she accepted that these things are a matter of gravity and of weighing up, and inherent in saying that is that the Minister must accept that there are less and more fair ways of doing things. The point the Minister is now making is that it is an equally fair system. If the Crown court backlogs are the absolute priority, why not therefore make all trials magistrates trials? If there is no difference between the two, and the Minister cannot accept the point, made by the Opposition and other Members, that there is a difference in their value, why not extend the magistrates’ sentencing powers and let everything be done by magistrates?
Sarah Sackman
We do think that jury trials are a cornerstone of British justice. It is not inconsistent to say that the most serious cases—all cases in which the likely sentence is above three years—should be heard at a jury trial. If we turn the hon. Gentleman’s argument on its head, everybody should get a jury trial, because otherwise they are not getting a fair trial. We do not think that.
As a society, we have for centuries made a threshold choice about who can access a jury trial. We are having a debate now about where that threshold should be drawn. Our proposals strike the right balance between the rights of the different participants in the system. We think they secure fairness because of the other safeguards in the system—the giving of reasons by a judge in the Crown court bench division and the transparency measures we are bringing in—but we also think they are proportionate use of court resources. The hon. Members for Reigate and for Bexhill and Battle both made the point that somebody getting a criminal conviction in the magistrates court, which may attract a six-month custodial sentence or less, is a pretty serious thing in itself. For some people, that may mean, reputationally, that they can no longer pursue their career. These things are serious.
I do not think any of us is saying that the status quo, whereby magistrates and district judges hear those cases, is not inherently fair. It is fair. What is not fair is the status quo whereby the scale of the delays is detrimental to the quality of justice we are able to provide to the public, whether in jury trials, judge-only trials or magistrates trials. The delays are such that they are undermining law enforcement, the quality and recency of the evidence, and people’s memories. It is undermining the calibre of the justice that the system is able to mete out. Dealing with the delays is not just an efficiency question; it is inherent to the question of fairness itself.
We keep repeating the old adage that justice delayed is justice denied. It is a powerful one because there is truth in it: the older the vintage of the cases, the less fair they become. That is not fair on anybody. It is not fair on the defendant on remand or fair on the complainant. It is not fair on the witness, who may have just had the misfortune of passing by a criminal incident, and is being asked to recall what happened a year or two years ago, when they would like to move on with their lives. When it comes to fairness, timeliness is critical.
Sarah Sackman
I have to make a little progress.
Let me turn to the detail of clause 1. Part of its function is to ensure consistency across the statute book. To ensure consistency in that way, the clause makes a series of consequential amendments to remove references to a defendant electing for a Crown court trial. That includes amendments to the uncommenced written plea and allocations provision inserted by the Judicial Review and Courts Act 2022. Those uncommenced written procedures would allow defendants to indicate a plea without attending court. Their inclusion does not signify that the Government are intending to commence them. The clause ensures that if those provisions were brought into force in future, they would operate consistently with the removal of the defendant’s ability to choose the mode of trial. Defendants will still be able to indicate a plea in writing, and both parties may still make representations on venue. That decision on mode of trial would rest with the court.
The clause also updates the remittal power in section 46ZA of the Senior Courts Act 1981. Currently, where a case is already in the court, a judge may remit to the magistrates court only with a defendant’s consent. Clause 1 removes the requirement to obtain that consent, ensuring that remittal decisions, like allocation decisions, are made on the basis of the court’s assessment of suitability.
Dr Mullan
The Minister is somewhat chopping and changing her arguments. I can stand up and say that if budgets and resources were no issue, I would prefer every case to go to a jury trial. I can say that; I can be consistent that that is my preference, because I think they are, in some respects, a superior form of justice to magistrates courts. That is not to say that magistrates courts are totally inadequate or unable to do the job, but they are less preferable than a jury trial, and we have covered many of the reasons why.
On the one hand, the Minister says that she agrees with that to some extent, that these are weighing exercises and that there is a preference. But when she is pointed to a specific element of unfairness that that creates, she reverts to saying, “Well, all these things are equal and there is no difference between the two.” That is an inconsistency in her position that we do not have on the Opposition Benches. We are very clear: our preference would be for the superior jury trial in every circumstance, but we accept that that is not always practical; we are fighting the curtailment of that and the further shifting of the dial in the other direction.
What is the Minister’s view? Are these things absolutely equal? Is a magistrates trial just the same as a jury trial? Does she have no issues with that? If so, why not go further, as the Secretary of State wanted to, in respect of five years, for example? Or does the Minister accept that a magistrates court is, in some respects, inferior and less fair, and that there is therefore a rational argument for people to say that they would rather be in the Crown court?
Sarah Sackman
We know that people would rather be in the Crown court because, when they have a right to elect, some opt for that. I have acknowledged that fact, but this is not a debating contest. There is an air of unreality about the way the hon. Member put his arguments. He says that if he could choose, everyone would get a jury trial. I do not know of any jurisdiction in the world that has that. We know what the Conservative party would have done. It had the chance, over 14 years, to run the justice system, and we are now living with the consequences: prisons running hot, courts with record backlogs, legal aid gutted and 40% of our magistrates courts closed.
Since the Crown court was created in 1971, there has been no substantial criminal justice reform, despite broad societal changes, technological changes and the fact that, as the independent review of the criminal courts pointed out, the profile of crime and criminal evidence in this country has changed, which means that Crown court trials now take twice as long as they did in 2000, just because forensic and CCTV evidence makes them more complex. We would expect a public service to evolve with that societal change. We have always made that threshold decision; it is a decision that is taken in other common-law jurisdictions as well. The idea that we will talk in hypotheticals about being absolutist, and about having all jury trials or not—
Sarah Sackman
No, it has a total air of unreality. If we look at the current system, I think we all agree that it is not working for any participant in the system. It cannot be when there is a backlog of 80,000 and above and we hear the stories we are all familiar with, which hon. Members have put to me, whether they are supportive or not, about the delays in the system, the creaking courts and the more than 1,000 trials that did not go ahead on the scheduled day because of an absence of either a prosecuting or a defence barrister. We are trying to rectify that with our investment in the workforce.
We have to make decisions about the system as we find it, not as we might dream it to be in some academic seminar. The fact is that we have all made a choice, because 90% of trials in this country are already undertaken by magistrates. As I said, I do not think anyone is seriously suggesting that those are not fair. The state’s obligation is to guarantee a fair trial. Whether those trials are heard by lay magistrates or by a district judge, they uphold principles of natural justice. I do not understand why anyone would say that the trials that take place day in, day out in our magistrates courts do not uphold principles of natural justice and article 6 of the European convention on human rights—which, by the way, includes the obligation to conduct criminal trials within a reasonable time. The importance of timeliness, and the inherent importance of timeliness to a fair hearing, is enshrined explicitly in article 6.
The state’s obligation is to ensure that fair trial—it is not a jury trial in every case—and we have always made that threshold decision. The removal of a defendant’s ability to insist on their choice of trial venue does not change that. The right to elect does not exist under the Scottish legal system, for example, and no one would seriously suggest that the Scottish legal system offends the principles of natural justice. Our justice system is rightly respected around the world, irrespective of where a case is heard.
Siân Berry
The Minister has made many points about magistrates court hearings being as fair, but she seems to have forgotten the amount of evidence we heard during the oral evidence sessions. Witnesses acknowledged that magistrate court hearings were “rough and ready” and “rough around the edges”, that mistakes may be made, and that the Bill later removes the automatic right to appeal, which is an important safeguard against what she must admit is the slightly inferior justice that can be found in the magistrates courts. Will she not admit that and talk more about the appeals situation?
Sarah Sackman
No, I will not accept that it is inferior. I maintain the position that it is proportionate to the severity of the cases currently dealt with in the magistrates court. When asked why they want to retain jury trials, and timely jury trials for the most serious crimes, the Opposition seem to be arguing that one of the virtues of the jury system is citizen participation. But our lay magistrates are also citizens. An amendment that we will come to later argues that magistrates should be in the Crown court bench division. The rationale that lay participation would be better lies behind that, but—
Several hon. Members rose—
Sarah Sackman
Let me finish my point. I find it incongruous and arguably inconsistent when I hear Members say that the ideal form of the system is citizen participation in the form of a jury, only to then, all of a sudden, describe lay magistrates hearing summary-only trials—which they do fairly, day in, day out—as somehow inferior, because that is also citizen participation. [Interruption.] I do not know if the hon. Member for Brighton Pavilion is asking me to give way again, but I shall do so.
Siân Berry
Apologies to the Minister for heckling. The point about the right of appeal is absolutely key. If mistakes are made in the magistrates court, it is currently the case that they are corrected at quite a rate. We heard evidence on that. Those two things give Opposition Members genuine and legitimate cause for concern.
Sarah Sackman
On that specific point about appeals, a tiny fraction of cases—I do not have the figure in front of me, but I am happy to share it later—are appeals to the Crown court. The hon. Lady is right that we heard evidence that a significant proportion of those— I think it is around 40%—are successful. I expect them to continue to be successful under the reformed system, which introduces a permission filter. All the permission filter does is root out unarguable cases in a way that is consistent with the appeals process in the Crown court and in civil jurisdiction.
Sarah Sackman
I am going to make a little progress.
The point is that our magistrates court, trials before district judges and the Crown court bench division will continue to uphold those principles of natural justice. Both the prosecution and defence will continue to be able to make representations on whether a case should be heard in the Crown court, and the court must take into account those representations in reaching its decision. As with all cases heard in the magistrates court, defendants retain the right of appeal to the High Court and the Crown court against conviction or sentence. Even with a permission stage for certain appeals, those safeguards remain in place.
On amendment 38, tabled by the hon. Member for Bexhill and Battle, principles of natural justice are preserved in our reforms. We heard evidence from victims of crime and former judges alike about the detrimental effect that delays are having not just on people’s lives but on the quality of justice that can be administered. It is difficult to argue that the current system is consistently meeting our obligation to ensure a fair trial where, as I have said, justice delayed is justice denied. That reflects a structural failing and one that points to a system in urgent need of investment and modernisation. That is why clause 1 as drafted is focused on delivering swifter justice for all participants in the system.
The right to a fair trial is, as I have said, protected under article 6 of the European convention on human rights and reflected in long established common-law principles. Removing the defendant’s choice of venue does not change the procedural fairness of proceedings, nor the defendant’s ability to participate effectively in their case. Defendants will continue to receive fair and impartial justice, regardless of where their case is heard.
Rebecca Paul
I thank the Minister for her generosity in taking interventions. I think it may well be a timely point at which to deal with a quick question I raised earlier, about legal aid. Clearly, a defendant is potentially less likely to secure legal aid in the magistrates court than they are in the Crown court. I am sure the Minister will not be comfortable with that situation, so will she be looking to address that inequality that comes from the changes?
Sarah Sackman
I am glad to hear the Conservatives’ concern about legal aid and, yes, of course I am, as the Minister responsible for legal aid. We do under the current regime have a means test for criminal legal aid. The vast majority of those who apply for legal aid in the criminal context can access it. One of the things we want to do as a Government is wait to see precisely what forms the eventual product here take before analysing how we ensure that legal aid provision is as broad as it needs to be. Access to justice is fundamental not just to the individual concerned but to the efficient administration of justice; that is so important. We know from the civil jurisdiction, where so much legal aid was stripped out, that civil or criminal courts being confronted with vast numbers of litigants in person who are struggling to navigate the system is not just a detriment to them, but to the whole administration of justice. So of course we are looking at that, but it is important to make sure that the plans match precisely what form the Bill takes when it has come through Parliament.
As I said, decisions on mode of trial will be taken by judges and magistrates, who are independent office holders who take a formal judicial oath to act impartially and fairly. That oath is binding and accords with natural justice. Mode of trial decisions continue to be guided by the independent Sentencing Council’s allocation guidelines, which provide a clear and structured framework for allocation decisions. Further to that, magistrates courts are already required to give brief reasons for their allocation decisions, reflecting a long established common-law duty. That requirement will extend to the Crown court in relation to the mode of trial allocation decisions, so someone will know why they were allocated to a venue. That understanding is important for litigants and the transparency they require.
Amendment 38 does not add further protections beyond the safeguards that already exist. A defendant’s trial in the magistrates court does not breach those principles of natural justice and the existing legal protections already ensure procedural fairness in summary proceedings. The Committee will remember well the powerful testaments we heard from many, but in particular the victims who gave their evidence at a public session and their view that the system is weighted heavily towards the defendant. Not only do our reforms restore some of that balance, placing decisions over allocations in the hands of the court rather than those of defendants, but they make a material difference in addressing the backlogs. I am afraid that amendment 38, by contrast, is a defence of a failing status quo. For these reasons, I urge the hon. Member for Bexhill and Battle to withdraw the amendment.
Dr Mullan
I will move on to a more directly relevant point.
When we talk about the challenges in the courts and what was inherited, the Government would do themselves a much greater service and reflect accurately the debate and the challenges if they more regularly sought to speak fairly and freely about what actually happened in relation to Crown court backlogs, and the reason why the amendment was tabled. Prior to the pandemic, Crown court backlogs were lower under the Conservative Government than they were under the previous Labour Government.
Every time the Government highlight the real challenges with the Crown court backlogs and omit to recognise that the historically unprecedented level of the backlogs was almost entirely driven by the covid pandemic, they do a disservice to the complexity and reality of what went on in our court service. Every time they talk in isolation about a lack of investment in the period of 14 years, they fail to understand that Members on Labour’s side, who have been highly critical of the Conservative party, actually recognise that over many decades, prior to the Conservative Government, as other Labour Members said on Second Reading, there has been a lack of investment—an investment lower than I would want—in our court service.
I have been clear since taking up the position of shadow Justice Minister that I would have wanted a higher degree of protection for the justice system than that in the decisions taken at the time. The Opposition have not been afraid to say that or to own the responsibility for it, as we have in a number of other areas where we wish things had been done differently. I have explained that, for me, courts and the criminal justice system is one of the reasons—if not the main reason—why I sought election to Parliament, so I am always going to say that we should invest more strongly in the justice system.
Just last week, I did an interview on Times Radio about our work on whole-life orders, after I successfully appealed a case in which someone had not got a whole-life order; the Court of Appeal gave them a whole-life order. The presenter asked me why we do not have more whole-life orders, and why more is not done about it. I explained that, in reality, as a politician I might have my priorities, and other individual MPs might have their own priorities, but inevitably the decisions of the Treasury, what goes into the manifesto and what the Government commit to are a matter of the public’s priorities. As someone who campaigns strongly on behalf of victims of crime, I understand the enormous impact that crime has. I also must accept that most people, most of the time, are not victims of any crime, let alone serious crimes, so convincing the public at large to vote for parties that will invest seriously in and improve our criminal justice system is difficult. In polling, the criminal justice system is not at the top of the list of the public’s priorities, as much as I might wish it were.
The Government and Labour Members would do better to more accurately reflect the history of what has happened in the criminal justice system, and particularly in relation to Crown court backlogs. I do not recall that when Labour were last in government—I have looked through Hansard for this—Labour MPs got up and complained about Crown court backlogs that were higher than those we delivered in Government, prior to the pandemic. That is the reality of what happened: the pandemic had an unprecedented impact on our criminal justice system. The vast majority of the historically unprecedented situation that we are dealing with is directly related to the pandemic. If, every time they talked about this, hon. Members made that point, the Opposition would be able to take their criticisms of our record more seriously.
To pick up on some remarks, I welcome those of the hon. Member for Brighton Pavilion, who drew attention to the issue that we considered in the evidence hearings about the not guilty pleas that some of us are uncomfortable with. As I said, I strongly objected to some of those. On the Colston statue, behind the scenes I was one of the MPs lobbying for the Attorney General to do as she did—to seek clarification from the Court of Appeal to stop that from happening again.
I very much resent some of those things—but is that not the point? We have a system that allows for that, that allows for MPs to have a view, to be unhappy or to criticise something that a judge sitting on their own would say, “Look, this is obvious. This is absolutely a guilty—no question”, but a jury might find a different outcome for reasons of their own. I have to admit that, before this debate and the Bill coming before the House, I had only ever viewed this issue through the prism of frustration, wanting to understand how it works and how we might even curtail this, supporting the Court of Appeal declaratory ruling on that judgment. This whole process, however, has made me reflect on the broader role of juries in civil liberties and in curtailing the power of the state.
Even if Parliament wants something done in a particular way, a jury of ordinary people retains the right—as frustrating as that might be, but it has been clarified repeatedly in case law—to say, “Look, we understand all the facts, and we might even agree privately that the law has been broken, but for this reason or that we are going to offer that as not guilty.” Our system has been asked explicitly whether that is something that should happen, and we have been told explicitly that that is something that our system deliberately holds on to. On the balancing, every time we shift more cases into the magistrates court, again we are minimising that, reducing it as an important part of what we might call an informal constitutional settlement.
I welcome the remarks by the Lib Dem spokesperson, the hon. Member for Chichester, who helpfully drew our attention to the gaps between what Sir Brian recommended and what the Government are doing. That is another major hole in the Government’s argument. The example that the hon. Member articulated was about his suggestion of two years going back to magistrates ending up as the Government’s three years. We will also discuss the issue of a Crown court bench without any magistrates, so in two major ways, the Government are not doing what Sir Brian recommended.
In evidence, the Minister even put to some of the witnesses from the Bar Council:
“What do you know that Sir Brian…does not?”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 43, Q81.]
That question, I am afraid, can be turned right back around to the Minister, who is also not doing what Sir Brian recommended. What does she know that Sir Brian does not? If it is so important that we listen carefully to Sir Brian, because he has done such an exhaustive piece of work and put so much time into developing detailed, specific and concrete proposals, why are the Government happy just to disregard the elements of that that they do not agree with?
We cannot do the same. We cannot say, “Actually, we don’t think the evidence is there. We don’t think the case has been made”, but the Government can. They want to say that about a fundamental element—this is not a minor element—which is whether a judge sits on their own or with two magistrates. That is a major difference. In fact, the most radical element of the proposals is the judge sitting on their own in those types of cases, but the Government do not agree with what Sir Brian said about it.
Sarah Sackman
Does the hon. Gentleman recognise that Sir Brian, in his report, gave scope for the Government to go further than his recommendation, should we need to? Can he comment on why no Conservative MP went to Sir Brian when he offered to engage with them today?
Dr Mullan
The Minister is factually incorrect. The engagement session was not today, but yesterday. I met Sir Brian, my hon. Friend the Member for West Suffolk (Nick Timothy) met Sir Brian, and Conservative shadow Ministers met Sir Brian during his review. It is completely incorrect for the Minister to suggest that we did not engage with him. We were happy to agree, as he was, that we would continue talking to him, so I am afraid that the Minister has failed slightly with her intervention. She might want to send a note to ask whoever gave her that information to try harder next time.
Sarah Sackman
What about what Sir Brian said in his report? Is it not right that the report specifically gives the Government scope to go further than his recommendations?
Dr Mullan
It absolutely does—but the Minister is not doing what Sir Brian recommended. She is rejecting his approach, but when we want to reject his approach, she asks how we can possibly question what Sir Brian has to say on such matters. That is the reality of what is happening. It is a consistent flaw that the Government cannot undo.
My hon. Friend the Member for Reigate did a good job of illustrating the nature and seriousness of so many of the offences we are considering. She also sought a firm answer on, for example, the modelling of the increases in guilty pleas that we might expect owing to the increase in the length of suspended sentences.
We had a debate about, “Well, it’s in the explanatory notes, not in the impact assessment,” as if that was just immaterial. The Minister and her officials will know very well that there is a big difference between what goes into an impact assessment, given the statutory nature of that document and everything that the Government have to do before they put things into it, and what a Government can put out in what is effectively a non-statutory document. They could really put anything in there that they wanted to.
Of course we would expect the Government to be fair, frank and honest, but the reason why we have impact assessments—and the reason why, when Labour Members were in opposition, they hammered the Conservatives repeatedly about what did or did not go into an impact assessment in particular, as opposed to broader documents—is that it has a statutory footing and is important in its own way. I think my hon. Friend the Member for Reigate did a good job of illustrating what was absent from that impact assessment.
We talked about the Crown Prosecution Service, and there was an attempt to say that what a senior member of the management said, one would assume—
Dr Mullan
Yes, and I will be writing to the CPS about that, because commenting in the way that it has was extremely unusual. I would hope that it has a very clear explanation as to how it has been able to formulate that position, because, of course, the CPS is just articulating a particular viewpoint. As has happened, when a Government-funded agency does that, it gives it a certain weight that is not necessarily appropriate. That is why ordinarily non-departmental Government bodies are not expected to do that sort of thing. It is something we should think about more carefully.
We also talked this morning about public confidence among members of minority communities, as was raised by the hon. Member for Birmingham Erdington. The group JUSTICE has put forward its views and concerns about this. It notes that the equality statement for the Bill also notes that black, older and female defendants historically elect for a Crown court trial at higher rates. In 2022, 26% of black defendants elected for a Crown court trial, compared with 15% of white defendants—a very significant gap. In 2017, the right hon. Member for Tottenham (Mr Lammy) also concluded that many individuals from ethnic minorities opted for trial in the Crown court whenever possible, as they had more confidence in the fairness of jury trials compared with magistrates.
As the Bill is written by the person advocating for those changes, we should consider what the right hon. Member said very carefully. He said:
“Juries are a success story of our justice system. Rigorous analysis shows that, on average, juries— including all white juries—do not deliver different results for BAME and White defendants. The lesson is that juries are representative of local populations—and must deliberate as a group, leaving no hiding place for bias or discrimination.”
Would Government Members put it to the right hon. Member for Tottenham that he was in any way denigrating magistrates in making that point, or that he was saying magistrate trials were not fair? I do not recall any Labour MP making that point at the time that his report was published. The review found that BAME defendants often had lower confidence in the fairness of magistrates courts and, as I have said, therefore opted for a trial in the Crown courts. Because of that lack of trust, BAME defendants were also thought to be more likely to plead not guilty in magistrates court and push for a Crown court trial, which resulted in them missing out on the one-third sentencing reduction offered by early guilty pleas. These things have real-world consequences for the individuals concerned.
While the report found that BAME defendants were not disadvantaged compared with white counterparts at the jury trial stage, they faced harsher outcomes elsewhere in the system. I want to quote again from the Lammy review:
“The way that juries make decisions is key to this. Juries comprise 12 people, representative of the local population. When a jury retires to make a decision, its members must consider the evidence, discuss the case and seek to persuade one another if necessary. This debate and deliberation acts as a filter for prejudice—to persuade other jurors, people must justify their position. In the final decision, power is also never concentrated in the hands of one individual.”
What did the right hon. Member have to say about magistrates courts? He said:
“This positive story about the jury system is not matched by such a clear-cut story for magistrates’ verdicts. The relative rate analysis…commissioned for this review found that decisions were broadly proportionate for BAME boys and girls. However, there were some disparities for adult verdicts that require further analysis and investigation. In particular, there were some worrying disparities for BAME women.”
As a table in the report showed,
“of those women tried at Magistrates’ Court, Black women, Asian women, Mixed ethnic women and Chinese/Other women were all more likely to be convicted than White women.”
Again, would Government Members say that the right hon. Member was therefore advocating for the abolition of magistrates hearings? Of course not, and neither are we. We are simply making clear the trade-offs for such an unprecedented shift in their use—for such a significant curtailment of the use of the system of juries that is so well regarded and trusted by our constituents—and are arguing that the case has not been made.
JUSTICE also raised concerns about unrepresented defendants. My hon. Friend the Member for Reigate made that point in relation to legal aid. The equality statement for the Bill acknowledges that if more cases are dealt with in the magistrates court, a greater proportion of defendants may be ineligible for legal aid compared than if their case were heard in the Crown court. That is because the income eligibility threshold in the magistrates court of £22,325 is significantly lower than that in the Crown court, where it is £37,500.
An increase in unrepresented defendants risks undermining fairness. For example, defendants may receive harsher sentences if they do not know how to effectively offer mitigation. This is especially concerning where expanded magistrates’ sentencing powers will leave defendants facing trials for offences carrying a sentence of up to two years unrepresented.
Additionally, the Institute for Government has highlighted that unrepresented defendants in magistrates courts are also likely to prolong hearings and therefore erode any of the anticipated efficiency gains. It estimates that, for every additional hour in the average length of a trial, estimated savings will fall by more than one percentage point.
I also want to address the issue of youth courts, which was debated this morning. Government Members posited the fact that these courts hear more serious cases such as rape as some form of proof that curtailing jury trials in a similar adult case could be acceptable. That ignores the fact that each court and each setting has its own balances and goals and its own weighing exercise, with different considerations, where different conclusions will be reached.
Youth court trials generally do not have a jury because they are designed to be less formal and more focused on rehabilitation than punishment, with cases heard by specially trained youth magistrates rather than ordinary magistrates alongside district judges. These courts prioritise specialist knowledge and child-friendly proceedings over public proceedings, and aim to ensure that a child understands what is happening, with less intimidating atmospheres than adult Crown courts. Youth courts are closed to the public, which is not possible with a jury trial.
This is the trade-off we make, but these are trade-offs that, for decades and decades, we have not considered suitable in adult courts. We have considered the extra, additional vulnerabilities and the need to focus on rehabilitation in youth courts, so we carry out a different balancing exercise and make a different trade-off. That does not mean that we can read that across to an adult court without considering the benefits, the conclusions and the additional factors that we seek to mitigate—that we can just say, “Well you can just do the same for adults as you do in a youth court.” Different scenarios have different tests.
We also know that the choice of trial by jury is not the only reason some defendants elect for trial by jury. In fact, there are important procedural differences in the two courts. An application to dismiss is a legal request made by the defence to have some or all of the charges thrown out before the trial begins. This application is available only in Crown court cases and applies to indictable offences or cases that have been sent from the magistrates court to the Crown court.
An application to dismiss in the Crown court is a pre-trial request to throw out charges, according to rule 3.2 of the Criminal Procedure Rules 2025, and earlier versions. It must be made in writing after the prosecution serves evidence but before arraignment, arguing that a reasonable jury could not convict.
It is true that formal applications to dismiss are relatively rare compared with other ways in which a case might end, mainly because the legal bar for success is very high. While specific numbers for rule 3.2 applications are not always separated in basic reports, wider court data gives a clear picture of how often cases are dropped or stopped before a full trial. In recent quarters, up to late 2025, the figures available to me show that approximately 17% to 18% of defendants in for-trial cases had their cases dropped by the prosecution or stopped by the court before a verdict.
Why are formal dismissals that are available in the Crown court less common? The Crown Prosecution Service knows it is legally required to keep cases under constant review. If the evidence is truly weak enough to be dismissed by a judge, the CPS will usually discontinue the case or offer no evidence to avoid a wasted hearing. We know that is a very common occurrence. Are we confident that we know how much of that happens because of the availability of that legal test? The CPS knows that if it does not do that and if it does proceed in an inappropriate manner, it will face the legal test that it does not face in the magistrates court. If the Government have access to evidence that can reassure us, they should present it, but I could not find anything that leads me to be confident that cases dropped in the Crown court might proceed in the magistrates court, and perhaps they should not.
The provision of disclosure in the Crown court is much more robust. We have all seen cases where trials collapse because of exchanges related to disclosure. Crown court disclosure is strictly governed by the Criminal Procedure and Investigations Act 1996, which requires formal staged disclosure. In magistrates courts, disclosure is often more streamlined, focusing on the initial details of the prosecution case. In the Crown court, a defence statement is mandatory. In the magistrates court, a defence statement is generally voluntary, although recommended. Once the prosecution discloses unused material, the defence has 28 days in the Crown court to serve a defence statement. In the magistrates court, the time limit is 14 days.
Crown court prosecutors must provide schedules of all unused material. Magistrates courts typically use, as I have said, streamlined disclosure certificates, which are not as extensive. We know there are problems with disclosure at times. The independent review of disclosure and fraud offences was officially announced by the UK Government on 23 October. Led by Jonathan Fisher KC, the review was commissioned as part of the fraud strategy launched in May 2023 to address the digital age challenges in criminal cases. It is the first of its kind since the 1986 Roskill report. Jonathan is a leading King’s counsel in financial crime, proceeds of crime, fraud and tax cases. He has been a visiting professor in practice at the London School of Economics and he holds a PhD, which was awarded by the LSE following his research into money laundering cases and the relationship between the obligation to report suspicious activity and corporate rights. Clearly, this is someone who speaks with a great deal of authority and experience in relation to the operation of criminal law.
Part one of the review, on disclosure, was published on 21 March 2025. It is helpful for us to reflect on it, given some of the exchanges we have had during debates. As I have said, Government Members sought to dismiss any suggestion that the magistrates courts were less fair or a less appropriate place to hold a hearing and suggested that everything is rosy in the magistrates court, so there is no possible reason why someone might not want to go to a magistrates court. They wanted to frame this as a purely binary choice between fair and unfair.
As I pointed out to the Minister, every time we point out some of the unfairnesses, the Minister says that everything is fair and it is all fine. But then when we ask the Minister to articulate why, if everything in the magistrates courts is just fine and dandy, we therefore keep jury trials for more serious cases, there is literally no rational or logical conclusion. The Minister says this is not a debating chamber, but the Minister is presenting a Bill with underlying political and legal principles, and if she cannot come up with a consistent set of those principles as a basis on which to articulate the arguments she is making, that is not a great advert for the Bill.
I can happily say that I think Scotland’s legal system is less fair, and I think the magistrates courts are less fair. I am perfectly happy to say that, but that does not mean that I want to get rid of them or curtail them. It is just part of the reality, and I am consistent in that regard. So let us talk about what Jonathan Fisher can do to assist us.
Sarah Sackman
I have never sought to sugar-coat the situation in our courts. Does the hon. Member think that one of the reasons why magistrates courts are struggling in parts of the country is because the number of magistrates halved under the last Government?
Dr Mullan
Yes, absolutely, which is why I said earlier that I regret some of the changes undertaken while we were in government. I have made it very clear that justice and all the issues we are debating are a real political priority for me. That is why, in large part, I wanted to become an MP. Members will rarely hear me disagreeing with arguments that need to be made in government about which Department gets priority. I absolutely welcome the success that the Minister and her colleagues have had in making arguments for resources.
But again, that is no answer to the public about what the Government are doing now. They are in charge. There is a constant harking back to decisions we took, but the Government have to stand on their own merits. The point we have made again and again is not that we should not do something. It is not that there is not a problem. Our argument is purely that we do not think this is the way to do it, and we do not think the trade-offs that the Government are setting out and what they are asking us to lose will translate into those benefits.
Dr Mullan
Sometimes I wish that Government Members would pay more attention to what is being said. I mentioned “some” cases and “some” of these people. That is the difference in how we tackle these issues. We do not get up and talk about “every victim” and I specifically did not say that. I went out of my way to say that among hundreds and hundreds of accusations, some people would inevitably be guilty. That is completely different from what, some of the time, some Government Members have been doing: assuming that everyone who claims to be a victim is one. That is very particularly what I did not do.
I finish this particular point with something else Jonathan Fisher said:
“Notwithstanding the vital need for further quantitative analysis, I am not convinced that, regarding the Crown’s duties, the disclosure regime is working as intended in the magistrates’ courts.”
That is an extremely serious consideration. He is not convinced that the disclosure regime is working as intended in the magistrates courts; he did not make that point about the Crown courts. I ask Government Members to reflect on that and then say there is no rational reason why some people might be concerned about more cases—and more complex, serious cases—being heard in the magistrates court. What that report alone says about our magistrates courts gives plenty of people a rational and reasonable basis to say that what happens in magistrates courts is less fair and potentially less effective than what happens in the Crown court. Government Members would do well to concede that important point.
I finish with a pretty extraordinary exchange with the Minister about the figures on the backlogs themselves. Let us remind ourselves of the central premise and argument: we all agree that the backlogs are too high. The Government say that they cannot be brought down to historic levels without the erosion of our jury trial rights. Opponents of the Bill are varied in their views, but perhaps most common is the view that other things can, and should, be done instead. What is happening right now with the backlogs is extremely important to this debate. If the backlogs are coming down in some places without these changes being introduced, it is vital to know and understand that.
Sarah Sackman
I checked this during the adjournment of the sitting: the CBA’s point relates to new receipts in certain courts, rather than the state of the backlogs, which, as I said, continue to rise. I absolutely welcome the progress in some parts of the country in lowering receipts, which is obviously good news for the courts, but that does not yet reflect any lowering of the backlogs. As we would expect, the investment will take time to kick in.
Dr Mullan
Clearly, if new receipts into the Crown court are coming down, we will not immediately see a reduction in the backlogs—we need time for the trials to come down. I am glad that the Minister has admitted that new receipts are coming down, because that is an extremely important insight into whether the backlogs themselves may then come down at a later stage. We also have to note that this potential improvement in the backlogs is happening without the introduction of changes to jury trials.
Sarah Sackman
Does the hon. Gentleman recognise that the central insight of the independent review—independent of Government—was that, absent reform, these backlogs will not come down? To confirm the point, the so-called do-nothing option includes the maximum investment of uncapped sitting days, so it already reflects the impact we can have on the backlogs with maximum investment. If that is the case, does he accept that nothing short of reform, efficiency and investment will bring the backlogs down?
Dr Mullan
As we heard from the Criminal Bar Association and others during the evidence sessions, we do not accept that the Government have sufficiently justified that modelling. Modelling is not perfect, and the IFG could not be clearer that the modelling used to justify the Government’s case, as the Minister has just done, is based on highly uncertain assumptions. If the Minister could actually produce some rock-solid modelling, so there was absolutely no way to dispute it, we would be in a different place. However, the Minister cannot produce modelling that even the IFG does not think is full of uncertainties.
Sarah Sackman
Does the hon. Gentleman accept that the very same sentence that he is quoting, which admits the fact that there is a degree of uncertainty—we are, of course, looking at a forecast—also accepts that our modelling assumptions, which the IFG itself pursued, are sound? In the same sentence, it recognises that the approach we have taken is sound, and as sound as it can be. What is not sound is doing nothing.
Dr Mullan
Let me think of a directly relevant example that shows just how important and meaningful that distinction is, in a way that the Minister is seeking to blur. We all follow political polls that are based on models. Those models are probably all sound, but they are all different and produce completely different results based on the assumptions—on voter turnout, for example.
I might speak to some Government Members and say, “Look, we have this poll that shows you’re going to smash it at the next election. You’re under no threat from Reform or the Lib Dems.” However, I might also say, “As part of that poll, we have assumed that 99.9% of the people who intend to vote Labour are going to come out and vote Labour.” Would Government Members then say, “Oh, great news! Absolutely, I’m going to smash the next election.” No. They would say, “Well, that assumption is fundamentally flawed.” The model may be correct, including the factors being considered, but inserting the assumptions into a model is what actually counts. That is what actually determines the outcomes, and the IFG is very clear about that.
Again, the Government are asking us to erode the important right to a jury trial, based on assumptions that the IFG says are highly uncertain. The Opposition’s position is quite clear. What is not uncertain is the fact that improving prisoner transport will help deliver improvements; that improving case management will deliver outcomes, which nobody disputes; or that improving access to early legal advice by reforming legal aid will help reduce the backlogs.
There is a whole slew of things that are not uncertain. Surely, the sensible and balanced thing to do is to get those things done first. Then, if the Government show that they really have done everything they possibly can, there could be a different discussion with MPs and the public about why they had chosen to erode and curtail an historic right that we have had for hundreds of years.
The reason why the data from the CBA is so important—the Minister accepts this—is that it is showing an improvement into the input. If the input is improving, then in theory the output will improve; I have not heard the Minister say that we will not get an improvement in the outlook at some point. If fewer cases are coming in, then surely there will be less of a backlog down the line. That is happening already—prior to the changes on jury trials and, more importantly, prior to all the other things having embedded in, as the Minister has herself admitted.
We have not even touched prison transport and we are getting an improvement; we have not even touched legal aid and we are getting an improvement—I could go on and on. The point was powerfully illustrated, in terms of priorities, by the representative from the HMCTS. I asked him about his priorities for reducing the backlogs and improving the situation. Jury trials did not even come close to the list of things that he thought were important. Surely we need to deliver on those elements successfully and consistently, but we all know that that is going to be extremely hard work.
I made the point to the Minister this morning. I do not doubt her sincerity on this, but being a Minister is about driving through major reform and change while having to manage day-to-day improvement in the system. She might think this an unfair comment, but I asked her this morning about what was happening with the inputs into the Crown courts. She is the Minister in charge of our backlogs, but when I asked for a clear answer about some of the statistics in regional variation, the Minister did not have them, did not know or was not able to answer. She had to go away at lunch time to answer a question about those key statistics. That is a bit like me asking the Health Secretary what is happening with regional variation in waiting times and the Health Secretary saying, “Well, I know overall waiting times are going down, but I don’t know the answer to that. I will have to go away and look and see what is happening in different parts of the country.” It is a giveaway.
Sarah Sackman
Given that the hon. Gentleman is besmirching my reputation, I should say that the equivalent is saying, “Health Secretary, what are the waiting list times in the UK—and what is the snapshot in Romford infirmary right now? I won’t afford you the opportunity to go away and get that figure over the break.” I think the hon. Gentleman is being a little unfair.
Dr Mullan
I do not think I am being the least bit unfair. I did not even ask the Minister to give a list or specifics; I just asked whether the statistics were going down in some parts of the country. That is a very broad and open question. I am flabbergasted that the Minister did not know whether things were improving, given that the main priority of the Bill is to get Crown court backlogs down. The Minister did not even know a topline figure.
One of the thrusts of the argument of the very many people who oppose the Bill is that if the good things happening in some areas were replicated everywhere, we would not have this issue. At the heart of some of the criticisms of the Government’s approach is the idea that we must understand that some places are getting this right. For the Minister not to know whether things are already getting better reflects poorly on the credibility of the case that this is the only way to do things. If it were me, I would want to know on a daily basis whether we were delivering this downward trend in some places. I would want to visit every single one of those places and drive forward that change.
The modelling is also important. The Government will already have modelled the period that we are in right now. I have to assume that the Government modelling gave some view as to whether there would be ups and downs in particular places. If we now know there are downward trends in particular places and the Government modelling did not account for that, that adds further reinforcement to the idea that we cannot rely on the Government modelling to make these decisions. It may well have got wrong the period that we are in right now, which makes things very uncertain when we want to look further in the future.
We are going to revisit these issues. As I said this morning, it is extremely important for the Government to be absolutely transparent at later stages about what is going on in the places getting lower receipts, as the Minister now accepts is happening. Why is that happening only in some places? What can be done to make sure it happens in other places? What does the Government expect would happen to the backlog if that was replicated across the country? As I have said, and as I will keep repeating, we are clear that the status quo is absolutely unacceptable for victims. We are clear about the role we played in that, and some Labour Members in the wider debate have accepted the role that Labour Governments, over the decades, have played in getting us to this place.
We want something to be done about the situation, but we also care about jury trial rights. I remind Government Members that there are victims’ representative groups that also do not want jury trial rights to be eroded. The idea that the issue is all about victims on the one side and opponents on the other is completely untrue—a point that the Minister accepted. To go down this particular road and erode our jury trial rights, the Government need a watertight case for why it is absolutely necessary, but they have completely failed to articulate, in any credible way, why this is the only thing they could possibly do and that there is nothing else they could do.
Sarah Sackman
The clause sits alongside clause 1 and ensures that the new allocation framework will operate coherently following the removal of the right to elect. It deals specifically with the written guilty plea route, which has not yet been commenced, created by the Judicial Review and Courts Act 2022. Clause 1 removes a defendant’s choice to select the mode of trial in the Crown court in either-way offences. Once that choice is removed, it is necessary to make consequential amendments to the written allocation procedure so that it does not preserve a right that no longer exists in open court.
Clause 2 amends section 17ZB of the Magistrates’ Courts Act 1980, which governs the procedure following a written indication of a guilty plea. Although those provisions have not been commenced, it is important that they are amended now, so that when they are brought into force, they operate consistently with the new allocation framework. Section 17ZB allows the defendant or the prosecution to object to the case being sent to the Crown court for conviction and sentencing where the magistrates court considers that its sentencing powers would be insufficient. Such an objection would prevent the court from sending the case unless the objection is withdrawn or a guilty plea is entered at an in-person hearing in the usual way.
Clause 2 will remove that ability to object. Instead, the magistrates court will have to invite written representations from both parties on whether its sentencing powers would be adequate and, having considered those representations, decide whether to send the case to the Crown court under section 51 of the Crime and Disorder Act 1998. That means that when a defendant engages with allocation in writing, the magistrates court will determine venue in the same way as it would at an in-person hearing.
As with clause 1, clause 2 does not remove existing safeguards. Both the prosecution and the defence will continue to be able to make representations, ensuring that the court has all the relevant information before making its decision. That will preserve fairness and ensure that all relevant factors, including seriousness, complexity and sentencing powers, are properly considered by the court before determining venue.
Taken together, clauses 1 and 2 will ensure that cases that are suitable for summary trial or sentence can be retained in the magistrates court, while cases that require Crown court sentencing are sent there efficiently, without unnecessary hearings. I commend clause 2 to the Committee.
Dr Mullan
I thank the Minister for explaining the measures as she understands them. I do not mind admitting that some of the explanations in the explanatory notes and the information from the Library have left us with questions about how the measure will operate. The clause refers to written indication of guilty plea, and the explanatory notes refer to this as being available to those who are pleading guilty. I do not mind admitting that the Minister is much more directly experienced with the legal system than I am, as are other members of the Committee, but I do not quite understand the idea of someone choosing the mode of trial after they have pleaded guilty. If they have indicated at the outset that they are going to plead guilty, will the hearing not be about sentencing, rather than trial? My remarks will be focused on that.
The obvious thing to ask is this. If this measure is purely about sentencing, why would anyone who has pleaded guilty ever elect to have a sentencing hearing in the Crown court, where they know there could be a higher sentence, rather than in the magistrates court, where they know there will be a cap on what sentence can be passed? Our arguments have been about the process of the trial itself, and I have touched on some of the elements other than sentencing. That is not to say that there may not be perfectly reasonable grounds for someone to object if they think the decision made was wrong. Again, these are people who have admitted guilt, so we can clearly say they are criminals. Some of them may have spurious reasons for wanting to approach the system in that way, by seeking not to go to the Crown court, but they may also legitimately think that the decision was wrong or not fair. They may well have legal advice that the decision was not consistent with the sentencing guidelines, and that they would have been expected to have stayed in the magistrates court. As we discussed this morning, a significant number of the appeals in the magistrates court are successful, although I accept that those who seek an appeal are in the minority. We all accept that the magistrates courts make mistakes.
It is important that we understand how this measure will work in practice. Can the Minister tell us how many people are objecting and using the mechanism at the moment? That is also confusing, because the explanatory note says that these provisions are not yet in place, but what is her projection of the difference this will make? What will be its material impact? The provisions have not been commenced, but the Government and civil servants must have a view about how objections would have operated and what they would have achieved, versus the right to make representations. What is the difference between those two mechanisms? A guilty person cannot insist on being sentenced in a magistrates court. If the magistrates think that someone is going to hit a higher tariff and should go to Crown court, the person can, in theory, object, as I understand it, but they cannot stop it. Before we vote on the clause, I want the Minister to explain in detail exactly how this will be different from what the Government envisioned was going to happen.
Is there a risk in theory that more things will go to the Crown court? If the Government are saying, “You can’t object,” they must think that at the minute, in theory—if the provisions were to be commenced—some people would be kept in the magistrates court inappropriately. The Government must want more of those people to go the Crown court. If they thought everyone was just going to stick in the magistrates court anyway, why would they be doing it?
Dr Mullan
I do. In the other direction, the Institute for Government highlights that
“only around 30% of sentences of 6-12 months were handed out by magistrates”
since their sentencing powers increased from six months to 12 months. That indicates a hesitation in the magistrates courts to award higher sentences. If the Government have the objective of sending these cases to the Crown court, but there is evidence to suggest that magistrates hesitate when it comes to higher sentences, ultimately this measure will not change that.
I want to be clear, because I think that there is some confusion about what is written in the Bill and the explanatory notes. The explanatory notes say:
“The amendments remove the ability of the defendant or the prosecutor to object to the case being sent to the Crown Court for sentence”.
We are talking about sentencing, but that is not exactly what the Minister said or what the Bill seems to say. Before we are asked to vote in support of the clause, the Government need to clear this up, so that we can all understand what exactly this change will achieve that is different in theory from what was going to happen.
I appreciate that this is challenging because we are discussing changes that have never been put into operation, but that is not really an excuse. The Government should have a view of how things were going to operate, and therefore must have formed a view about how they want them to operate differently as a result of this change.
Sarah Sackman
I appreciate the complexity. We are slightly in the realm of the hypothetical. To be absolutely clear, the purpose of clause 2 is to align the uncommenced written plea and allocation provisions with the wider reforms in clause 1, which removes the right to elect. There is no intention at the current time to revisit the online plea and allocation system, so these written procedures have not been commenced, and they are not going to be commenced. The envisaged impact of those measures, which were part of the previous Government’s Judicial Review and Courts Act 2022, albeit that they have not been commenced, will have been assessed at that time. We have no intention to commence them.
Sarah Sackman
Does the hon. Gentleman agree that the 1% to 2% refers to the time savings achieved by the Crown court bench division? The IFG recognised that the totality of the package achieved a 10% saving. The Ministry of Justice’s modelling—externally verified—shows a 20% saving, which is highly material.
Joe Robertson
I accept the Minister’s statement to the extent that it is a statement of fact of people’s evidence. To address the issue of taking cases out of one court to give to another, however: that is a small minority of cases. Indeed, that is the argument that the Government make, certainly to their own Back Benchers when they are worried about the Back-Bench view of their proposals: “Don’t worry. Most cases are heard in the magistrates court anyway, and only a tiny percentage are being taken out of the Crown court.” The Government cannot have the argument both ways: when speaking to their own Back Benchers, “Don’t worry, this is not going to be meaningful,” and when speaking to the rest of the world about tackling backlogs, saying that that in itself is a meaningful change.
Sarah Sackman
I do not want to interrupt the hon. Gentleman because he is making important points, but the point was well made a moment ago that in line-by-line scrutiny the intent is to go line by line. Clause 2 deals with making what were uncommenced online procedures consistent with the changes made in clause 1 to the current ability of a defendant to choose venue. The hon. Gentleman is making a wide-ranging speech on whether one can appeal the mode of trial decision, and the permission to appeal. That will come later when we get to clause 7. I venture that these are all valid points that we will want to debate, but that might be the appropriate place to discuss those matters, because right now we are looking at clause 2. I am happy to reclarify the points I made in relation to clause 2, but if we range on to clause 7 in the scope of clause 2, we are not going to get the line-by-line scrutiny that we all want to achieve.
Joe Robertson
I thank the Minister for rather politely encouraging me to come towards the end of my speech. I will finish by addressing the idea that somehow, because something does not happen in Scotland, it must be okay not to happen in England. That plainly has nothing to do with politics or even football—not that I am suggesting the Minister thought it did. I am happy to say, as a proud citizen of the United Kingdom, that I think the English and Welsh legal system is the best in the world. The common-law system is the foundation, it has been adopted all around the world, and is by far the most widely-used legal system. It is possibly our greatest export, along with the English language.
Sarah Sackman
While I am very proud of our legal system, I do not necessarily take the view that ours is best and we cannot learn from other systems. Indeed, some of the places that we have exported to, such as Canada, are the places that we are looking to learn from when seeking to ameliorate our own system. Does the hon. Gentleman agree that, with its strong foundations, one of the strengths of our system is our fiercely independent judiciary? Much has been said about the judiciary, but does he agree that it is a fundamental pillar of our outstanding legal system and we should seek to defend it—and when judges are called enemies of the people, we should call it out?
Joe Robertson
I am very happy to say that I agree with all the things the Minister said. I also agree with learning from other systems. Plainly, the English legal system, like the English language, has been successful in its ability to adapt and evolve. Without going back to the beginning of my speech, started just a few minutes ago, for the reasons I have set out, I believe that this is an evolution—or arguably a revolution. [Interruption.] Was that another intervention? I think these measures are a stage too far.
Sarah Sackman
I will address clause 2 and respond to some of the remarks the hon. Member for Isle of Wight East made about the equalities impact, as well as the point about efficiencies and the time scale over which they can be realised to address the problem that we all say that we want to address: the backlogs.
Clause 2 changes uncommenced provisions in section 17ZB of the Magistrates’ Courts Act 1980 so that appropriate guilty pleas are sent to the Crown court for sentencing. To answer the question that the hon. Member for Reigate asked about the meaning of the word “court”, in this context, it refers to the magistrates court, which is where the first hearing takes place. I hope I have clarified that. It was before my time but, as I understand it, the measures aimed to provide the defendant with the chance to indicate a plea at the earliest possible opportunity and to enable allocation decisions to be made without the need for an initial in-person hearing. They will not change anything around the allocations procedures moving forward.
On the shadow Minister’s question about why we do not just do that, it is not a priority for the now, as we have a lot of other priorities. System readiness is essential for the commencement of an online plea and allocation procedure and we do not have a date for that commencement, so there is an air of the hypothetical here. However, clause 2 aligns with what we spoke about in the debate on clause 1 so that, should this or a future Parliament choose to implement the online plea and allocation procedures, the measure is clear.
To answer the question asked by the hon. Member for Chichester, no, the Government do not think that the measure would alter behaviour around early guilty pleas, although she is absolutely right that one thing we are striving to do—through not just these legislative reforms, but our approach to the reform of legal aid fees—is to change behaviour in the criminal justice system to achieve the early guilty plea rates that we saw before the backlog raced out of control, at the very least. The sooner we get those early guilty pleas, the more efficient the process is, for the system and for people’s ability to move on.
Currently, when a defendant has indicated a guilty plea and the magistrates court considers its sentencing powers to be inadequate, the court cannot commit the case to the Crown court for sentencing without the consent of both the defence and prosecution. Clause 2 removes both parties’ ability to object. Instead, the magistrates court must invite written representations from both parties on whether its sentencing powers would be adequate, and then, having considered those representations, decide whether to send the case to the Crown court under section 51 of the Crime and Disorder Act 1998.
Under the process as amended by the clause, should the provisions be commenced, defendants would continue to indicate their plea in writing, but decisions about the appropriate venue for trial would, as a consequence of the changes under clause 1, be made by the court alone. The Committee debated the merits of those changes in our significant and lengthy discussion on clause 1, but the policy decision in the clause is that the court rather than the defendant should make the decision on the venue of trial.
The hon. Member for Isle of Wight East commented on the impact of the current system, and of any reformed system, on minorities, which, as I indicated earlier, is really important. That topic is an important aspect of the Committee’s work and, as we reflected on earlier, it will be an important part of our future discussions. I genuinely look forward to the debate we will have on the amendment tabled by my hon. Friend the Member for Birmingham Erdington, which will no doubt lead to important discussions across both sides.
I want to pick up on a figure that the hon. Member for Isle of Wight East cited. I heard him say—I wrote it down—that someone is 40% more likely to be convicted if they are an ethnic minority defendant in the magistrates court than in the Crown court. That is not a figure that I recognise and it is not one reflected in the equality impact assessment that accompanies the Bill, which cites the Ministry of Justice’s data. What our data shows is that someone is not more likely to be convicted if they are an ethnic minority defendant in the magistrates court. In general, conviction rates are 15% higher in the magistrates court compared with the Crown court for triable either-way offences or equivalent offences, but that is consistent across ethnicities.
I do not take issue with the hon. Member’s point that many who currently elect for a jury trial, including those from black and minority ethnic backgrounds, may well do so because they think they will get a fairer hearing or some other advantage by going before a jury. There is also no doubt that juries command a higher degree of confidence in those communities. I am sure that that will be teased out in the debate that we will have, but it is important that we are as careful as we can be. I am not suggesting that he was not being careful, but I do not recognise that 40% figure.
A statutory review mechanism for the ongoing monitoring of and response to racial disparities, whether in relation to sentencing outcomes, conviction rates or disproportionality in the CPS, is important. It is also important that where we see improvement and get things right, we talk about that, too. How will we command the confidence of our diverse communities unless we also talk about the improvements that are being made? I think sunlight is the best disinfectant. We need to be candid about the issues that exist in our current system and the status quo, and how that in many regards fails some of our communities. But if we seek to improve it, we have to be really clear on the data. I just wanted to clarify the statistic on conviction rates, which, as I said, is higher across all ethnicities, but of course that will include black, minority ethnic and mixed race defendants as well.
I want to say something about the efficiencies. Everyone agrees, not least as the backlogs have raced out of control, that the system has become more and more inefficient. It becomes a vicious cycle. Common themes have been raised and I agree that there are areas that need focus, such as prisoner transfers. Members will have heard about initiatives that the Government have already set in train in terms of opening up bus lanes. The Prisons Minister in the other place and I have established a prisoner escort and custody services prisoner transfer oversight board. I was at Wandsworth prison the other day. I got in a Serco van and talked to some of the prison officers and Serco people about how it operates and where there is grit, as it were, in the system. We are looking at it from end to end, as we must, including by engaging—this might come as a surprise—with the likes of the Bar Council. I have regular constructive engagement with it because it has lots of first-hand evidence of prisoners failing to turn up on time in court, sometimes because they have not left the prison and sometimes because they are in the cells in the court and there is no one available to bring them up. Getting to grips with those problems is really important.
I must bring Members back to the very clear evidence of Sir Brian Leveson’s review team. Although we must deal with the recommendations—indeed, we are doing so in real time, even before this Bill makes it on to the statute book—they will not be sufficient to reduce the backlog. One of the challenges consistently put to me stings pretty hard: “Even with everything you’re doing, Minister—even with the 20% savings that you say this will realise, even with the efficiency drive, and even with uncapping sitting days—you only begin to get the backlog down at the end of this Parliament. In the meantime, all the defendants on remand, all those complainants and all those actual victims of crime have their lives on hold. It is not happening nearly fast enough.” That is why we are choosing to pull every lever, including the levers in this Bill, which, by the way, includes clause 2. I commend clause 2 to the Committee.
Question put, That the clause stand part of the Bill.
Dr Mullan
I rise to speak in support of amendment 39 tabled in my name. As I touched on earlier this morning, along with amendments 23 and 24—which are driving at the same point, but in slightly different ways—we are revisiting the discussion that we in the Opposition framed as a broad categorisation of principles of natural justice. We do so with the hope that it allows flexibility and expandability for the courts to interpret and give weight to that clause in a common-law system. However, it is also perfectly legitimate to approach the issue in a more defined way, as amendments 23 and 24 do. Every one of those examples is something we would agree with.
Amendment 24 states that the relevant conditions would be met in relation to a defendant if:
“the defendant, if convicted of the offence or offences for which the defendant is to be tried, would be likely to receive a sentence of imprisonment or detention of more than three years”
or if
“the defendant is of good character”.
It was helpful for the hon. Member for Bolton South and Walkden to use her expertise to explain that that is not just an idea of someone’s character; good character has a very specific meaning in law and exists for a reason. It exists because the judicial system, in various ways, thinks that that is important and it has a material impact on how someone should be treated within the legal system. Amendment 24 also specifies that the conditions would be met if
“the defendant has not previously been convicted of an imprisonable offence”,
or if
“the defendant would be treated as a rehabilitated person under section 1 of the Rehabilitation of Offenders Act 1974”.
Again, we go out of our way to put those provisions in place to say that rehabilitated offenders, as defined by the 1974 Act, should be treated differently from other types of offenders. We are building on the already established idea that we do not all experience the judicial system in the same way in relation to our previous convictions and offences—in both directions, because if someone has convictions, but they have moved past those convictions, we would seek to treat them differently again.
Amendment 24 would also apply to a defendant who,
“if convicted of the offence or offences for which the defendant is to be tried, would likely suffer significant reputational damage or have their employment or professional qualifications adversely affected”.
I talked about that issue this morning, and I welcome the hon. Lady’s references to Members of Parliament. Surely we can relate to that in a very profound way when we face a conviction. MPs are one such example, but there are many others. I gave the example of a solicitor this morning, and there are also doctors—my professional background—and police officers; there are a whole range of people who would suffer a very particular and specific set of consequences because of their job.
That would perhaps not be universal, and we would have to tease out whether someone might want the magistrates’ sentencing restrictions or the Crown court’s route to guilty—we will probably have to separate those two things. Some people might prefer a magistrates court, not because of the plea but, as they are likely to be found guilty, because of the sentencing restrictions. However, I agree with the hon. Lady that—if not universally, certainly overwhelmingly—people would want their guilt to be determined by a jury, even if they might prefer a magistrate’s restricted sentencing powers.
Finally, amendment 24 would apply to defendants where
“there are reasonable grounds to believe that the gravity or complexity of the case may increase; or…other exceptional circumstances pertain to the case.”
Those examples fit neatly with the aims of Opposition amendment 39.
As I said earlier, of all the provisions in the Bill, clause 3, which these amendments would alter, probably represents the profoundest and most unprecedented change to our legal system. We had a debate this morning about other changes that have been made, such as changes to which offences are summary, triable either way or indictable. Although it is true to say that there have been variations, and there has been that narrowing, I was very clear that the scale and unprecedented nature of these changes stand apart.
What we are talking about here is a completely different approach to determining guilt for adults in criminal cases, entirely removing the lay element. Again, we debated this morning about the fact that we cannot fairly describe magistrates as being entirely distinct from the local population; we very clearly heard all the reasons why they are not the same as having 12 ordinary members of the public on a jury, but they are not professionals. What we are talking about here, with the introduction of this new bench division, is removing every possible element of lay involvement.
On Second Reading, when we had a broader debate about the Bill, Government Members criticised the fact that the debate was dominated by white, older male barristers—maybe they did not say older, but certainly white and male. The criticism was, “This debate is being dominated by white, male barristers. This isn’t fair. This isn’t reflective of all the voices and different views we need to hear.”
But what will these changes do? They will give more power and influence to people who are white and male and who, historically, have almost certainly been barristers. We are doing the exact opposite of addressing those Government Members’ concerns, including their concerns about who has a say in all these issues compared with ordinary members of the public. Clause 3 removes those ordinary members of the public.
Under proposed new section 74A to the Senior Courts Act 1981, any case sent to the Crown court must be tried without a jury unless one of two things applies: either an indictable-only offence is involved, or the court considers that, if convicted, the defendant would be likely to receive a sentence of more than three years’ imprisonment or detention. In all other cases, the default becomes a judge-alone trial.
We are introducing a whole new idea that an individual person—a magistrate, not a jury—can sentence someone to six to 12 months. We are introducing the idea that a single person, on their own, can sentence someone to three years’ imprisonment, without any involvement of the wider public. The question for the Committee is not whether the jury trial remains available in some cases, as we have discussed—we absolutely accept that it should. Instead, the question is whether Parliament is content to create a new statutory presumption that, for a wide range of classes of Crown court cases, the citizen will no longer be tried by a jury of their peers, but by a judge sitting on their own.
Again, as we talked about this morning, this is not what Sir Brian recommended—he was specific in his recommendation. This morning, the Minister talked about going further, which I would interpret as referring to what offences and timelines are used. I am not sure that we can extend that suggestion of going further to creating an entirely new set-up that Sir Brian did not recommend. He did not recommend that a judge sit on their own and sentence someone to up to three years in prison.
Sarah Sackman
Of course, judges sitting alone do sentence. I understand the point the hon. Member is making in relation to the Crown court bench division, but it is important that my mum, watching at home, understands that judges hand down sentences.
Dr Mullan
I thank the Minister for picking me up on that; I meant that they are determining the guilt of individuals who can then face up to three years in prison. It undermines the veracity and importance of Sir Brian’s recommendations that the Government do not have the support of his report on this, the profoundest and most unprecedented change that they are making. That cannot be understated.
The Bill makes clear that in all cases falling below the threshold sentence of more than three years, a trial must take place without a jury. That is not at individual discretion, but a hard and fast rule. The Committee should note that the threshold is assessed prospectively, on a likely sentence basis. That means that at an early stage, the court is being asked to make an evaluative judgment about the likely sentence before a trial, and to use that judgment to determine whether the oldest safeguards in our system are available at all.
The Minister may, quite rightly, say that making estimates or anticipating likely sentencing outcomes is part of our system—but never in this way, and never with the consequences that will flow in terms of who determines an individual’s guilt as a result of that estimation. The consequences are profound.
Yet for all the Government’s reliance on the three-year threshold, proposed new section 74D makes clear that a judge sitting alone retains the full sentencing powers of the Crown court and may impose a sentence of more than three years where appropriate. That will allow a judge to determine guilt on their own, and potentially to sentence someone for many years—more than three—for an offence. Those two issues interact. The Minister was right to call me out for blending the two measures, but they are linked in the real world, and they certainly will be linked in the minds of defendants and the wider public. That relates back to the confidence issue. If a defendant sees that the person whom they think was inappropriately asked to determine their guilt is also then allowed to give them a sentence beyond what they were expecting to get, and beyond the thresholds that were designed for the imposition of a sentence, that creates real challenges for public confidence.
There is a tension in the Government’s remarks around this issue, because they have emphasised throughout that all these reforms will not be used for the most serious cases. That is how they have described it. That is largely determined by taking into account the sentencing length that is available—it is not a direct read-across, but more serious offences inevitably have longer sentence lengths, so someone will potentially be directly affected by these reforms around the same sentence lengths that the Government say are not appropriate for different types of offences. The Government might say that they are not choosing certain types of offences with very long sentences, but someone could end up with exactly the sort of sentence that someone else might receive for something like a rape offence. The Government think that that is acceptable but, again, it is inherently contradictory.
The Committee should also be concerned by the structure of the reallocation under proposed new section 74B. Cases can move from jury to judge alone and then from judge alone to jury following changes of circumstance or the emergence of new evidence. Such decisions may profoundly affect how justice is perceived, yet the Bill provides no right of appeal against them. What the Government are doing here is not simply adjusting or tinkering; they are creating a new mode of criminal trial in the Crown court by allowing a single judge to determine guilt in a substantial class of cases, allowing that decision to be revisited during proceedings, permitting it in some circumstances without a hearing and then insulating those decisions from appeal.
The Government’s case for doing all that relies heavily on efficiency, but this is precisely where the clause remains weak. The wider criticism of the Bill has always been that the backlog is being treated as if it were caused by jury trials rather than case management failures, workforce pressures, poor productivity and court capacity. We talked a lot about the IFG’s criticisms of the modelling and the data that the Government put forward to justify their clauses, but the IFG is not alone in thinking that the Government’s claims around the benefits are unsubstantiated. The London School of Economics submitted in written evidence what it thought about the Government’s approach to modelling. It said:
“Sir Brian Leveson stated that the modelling on which his recommendations were based is ‘uncertain and should be viewed as indicative’ and that the MoJ should ‘carry out more detailed modelling on the operational and financial impact of the recommendations’.”
I brought that up in the evidence session with Sir Brian and put it to him that he had said that further work should be done; he did not feel that it was for him to comment any further than that. The LSE says:
“Given the range of reforms suggested by the Independent Review of the Criminal Courts, their complex interrelation, and the lack of rigorous modelling by independent research groups, we are not confident that the evidential basis for curtailing jury trial has been established.”
Both the IFG and the LSE think that the modelling case has not been successfully made, so there are a number of different questions on that. This is important because Parliament is being asked to accept the removal of a fundamental safeguard, not because the Government have shown that jury trials are causing the delay, but because it has chosen to pursue structural reform before exhausting operational solutions.
The real constitutional innovation here is not only that some cases may be tried without a jury, but that Parliament is being asked to enact a statutory presumption in favour of a judge-only trial for a broad range of Crown court cases, with very limited, if any, safeguards once that allocation has been made.
The Committee should also consider the wider context in which these proposals are brought forward. Sir Brian Leveson’s review did not present the removal of jury trials as a stand-alone solution; it sets out a broader programme of reforms aimed at improving efficiency, capacity and case management across the system, and yet the Government have chosen to bring forward the most constitutionally significant elements of that review, those that limit access to jury trials, while leaving much of the operational reform agenda unimplemented.
We have visited this point a number of times today: the Government have not done the things they say they will do that will make a difference. They cannot realistically claim that those things will not have the necessary impact if they have not tried to implement them.
Sarah Sackman
Does the shadow Minister recognise that, in the IFG’s report, one of the central insights was that the key drag on court productivity was workforce shortages? We are making that investment, but does he accept that it will take years to build back the criminal Bar, the number of prosecutors and people practising criminal legal aid to the level we would need to deal with these cases?
Dr Mullan
The Minister put that question very succinctly, in exactly the same way, to members of the criminal Bar, who know much more about this than me; they were very clear that they did not accept her point. She is contrasting a magistrate or a police officer, who must be trained from scratch, to barristers, who practise in all different parts of the law, and they have clearly pointed out that the welcome changes that the Government have made around sitting days are seeing people coming back. They have not stopped being barristers because they have not practised over the last few years; they are practising other types of law.
I was on the Justice Committee in the previous Parliament, and we discussed in detail the challenges around the criminal Bar strike action and so on, and they were very clear that these people had not gone anywhere—they were the same people, but they were choosing not to practise criminal law. I would lean heavily on their view that these people want to come back.
If the Government want to put forward an analysis and tell us the figures for all the people who are out there who could be practising criminal law and are choosing not to, and if they produced a gap analysis showing how many they think they need on top of that, then we would have a different discussion. However, I do not know that the Government have produced any analysis or figures for how many practitioners are due to come back, or likely to come back, or what we need to get them to come back and so on. The Minister may well be right to just say, “They’re not there, we can’t do it,” but we keep coming back to the same point: where is the basis for making such strong decisions?
Sarah Sackman
But does the shadow Minister accept that these things take time? His party is a great believer in the force of the market, and the market here has decided that it wants to go and work in other markets. The point is that, on whatever the analysis, these things take time. That is why the Government have not just put forward major investment in terms of legal aid fees but matched funding for pupillages to create the pipeline. But the training of criminal barristers capable of taking on these trials will take years, and all the while the projections show the backlog rising. Does the shadow Minister accept that any realistic view or analysis shows that it will take years to build back the Bar to what it needs to be, both from the bottom up and at the higher levels that those criminal barristers were talking about?
Dr Mullan
The point I am making is that we actually do not know that, because we do not know how many people used to practise who could now practise again. I absolutely agree with the Minister that there might need to be a further wave of people that will potentially exhaust the people who could be succinctly brought back into practice, but we have time in that regard. We might find that we bring sufficient professionals back into the profession for the next few years, at the same time as the Minister is investing in the future.
Again, I would welcome the Government publishing an analysis seeking to interrogate in detail how many people are out there who could and would come back, and what it would take. The Minister could then get up and say confidently, “We have looked at this and we know that there are this many people who previously practised criminal law, or could come back to criminal law, and this is what we expect them to do over the next few years. We think we need this many people. We think we will train x number, and that still leaves us with a gap.”
As with so many of these issues, the Minster has a case with her argument and interpretation of things, but if we are going to do something as profound as introducing a whole new way of determining guilt by way of a single judge on their own—something that has never been done in this country—then the evidence threshold on which the Government need to deliver their arguments is so much higher than what we are getting. That is the case on this and so many other issues.
Sarah Sackman
We do not necessarily accept that that is why. There may be all sorts of reasons, which need to be unpacked, and that is the kind of thing I hope will be enriched by a statutory review. There may be all sorts of reasons why conviction rates for all ethnicities are higher in the magistrates court, not least because people may want to enter a guilty plea in a jurisdiction where the sentencing powers are lower. That may be a perfectly rational reason why there are higher conviction rates in the magistrates court across the board. We accept that premise, although I also accept that BAME defendants and communities have less confidence in the magistrates than in the jury system.
Dr Mullan
Yes, and I have made that point in other debates on this issue: we cannot say that with absolute certainly. The Deputy Prime Minister is clear—I think his phrase was that we have to explain why these things exist. The point is that we certainly cannot rule out that explanation, and it is certainly not an unreasonable conclusion to draw, which is why so many campaign groups that represent BME defendants are clear about why they think the disparity exists. The Minister is right that it is not proved definitely; the issue is that we have not done the work that the Deputy Prime Minister asked us to do in bottoming that out. We still cannot confidently say, and the Minister cannot say, that that disparity does not exist because of prejudice. It may well exist because of prejudice. We are not in a position to say that that is not the case, yet if that is the cause, we are heading in a direction that might encourage and make the disparities even more frequent.
In relation to sentencing in the youth estate, where we have over-representation of BME individuals, I have made the point that we have to look at offending patterns and so on, which vary among different ethnic minority groups, but we cannot rule the explanation out. However, having failed to rule it out, as the Deputy Prime Minister said we should, he is going to shift more of the weight towards those risks. Again, if we accept as a possibility the premise that this is about a narrowing of individuals’ backgrounds and life experiences versus the experiences of those they are judging, then that becomes a very reasonable hypothesis for what is happening.
If that is a reasonable hypothesis and we have not been able to exclude it, and if it is then correct, then we are doing something that supercharges that effect. If that hypothesis is correct, and this is to do with background and diversity of opinion, then we are narrowing that down even further, to the view of one individual—to the life history and life experience of just one person. What the Government are proposing could not be further from what the jury trial system delivers, and this at a point when we cannot say with confidence that it will not have an adverse impact on BAME individuals.
Sarah Sackman
Does the shadow Minister accept, though, that the legislation as drafted contains a number of guardrails? They include the provision of reasons that will need to be given by a judge, the fact that judges will have gone through judicial training and also the equal treatment handbook. Obviously, juries do not go through such training. Indeed, the statutory review that is being proposed is another guardrail. Does he accept that those are all safeguards with merit and that, as I said earlier, sunshine is the best disinfectant?
Dr Mullan
Yes, I accept that, to a degree, the Government have attempted to put in place safeguards. The question is: what weight can be given to those safeguards? We had a discussion earlier today about judicial accountability and whether we think the decisions made are good decisions. Family courts are a helpful comparator because they make decisions on their own, in an area that they should be expert and practised in. They do that all the time, yet the Government are choosing to legislate to restrict—or to modify—the way in which judges are asked to make decisions. That is despite the Government’s own impact assessment saying that it really should not make much of a difference and despite the fact that, in the other direction, the campaign groups do not agree with them.
The Government accept that individual judges sitting in a particular way do not always make the right decisions for the welfare of a child. Those judges are trained and have all the things that the Minister mentioned, but that does not mean that the Government do not think that they sometimes make the wrong decisions. Those safeguards will be helpful and will hopefully hedge things back in the other direction if this is related to prejudice; the point we keep making is that we do not think that the proposition that the Government are putting forward is sufficiently weighted to get the outcome they want.
Dr Mullan
I will just finish my point.
If we were confident that this would deliver the outcome that the Government claim it will, then things would be different, but we question whether it will achieve the result they want, whether the safeguards are in place and whether the alternative options have been sufficiently secured. We are also highlighting the gravity of the consequences for individuals and the gravity of the change to our judicial system. Again, we need a little more than just, “We’re going to try these safeguards,” when we cannot be confident that they will guard against this issue, especially when we know—if it is prejudice—how difficult and recalcitrant it has been.
This is not a new discussion or a new debate. The Minister will probably want to make the criticism that it was not sorted during our period in office, but equally I would not expect her get up and say that she is confident that she will get to the bottom of it in the next few years, sort it all out, and make sure there is no prejudice in our judicial system, in the magistrates court or among the judges who she is asking to sit and determine these cases on their own. I am pretty confident that the Government will not give us that guarantee, so again, the thresholds for these decisions are not being met.
Did the Minister want to intervene? I do not know if the moment has passed.
Dr Mullan
We have talked about the issue of safeguards against prejudice, and it is not a view just shared by people such as the Secretary of State for Justice. The CBA commissioned an independent survey of criminal barristers. Of the 2,029 respondents, 94% raised concerns about the lack of diversity in the proposed criminal courts bench division and 88.5% were against the introduction of the criminal court bench division. We know that the public have great confidence in the verdicts of juries. The British public have been surveyed about that, and a YouGov poll following the Government’s announcement in December 2025 found positive support for trial by jury, especially among those who had served on juries.
I do not know whether this is something that I have to declare as an interest, but I have served on a jury. Serving on a jury gives those who do it an amazing insight, which those who have not done it might not have, and helps them to understand the importance of the discussion, deliberation and exchange of views that simply cannot happen with an individual judge sitting on their own.
Sarah Sackman
I accept that it cannot happen, but equally we do not know what happens in jury deliberation rooms. We do not know how the jury arrived at a verdict. All that a defendant ever finds out is whether they have been acquitted or convicted. One advantage of the Crown court bench division is that the defendant will have the judge’s reasoning and an explanation of what findings of fact have been made and on what basis a decision has been reached. Can the hon. Gentleman not see some benefit in that?
Dr Mullan
That potential benefit has to be weighed against what we discussed earlier. For a very good reason, our system explicitly prevents the jury’s inner working from being subject to scrutiny. The system was deliberately designed in that way, and we will be taking that away in some cases. Of course, at a cursory glance, we would probably all welcome being able to better understand why decisions are being taken, but if we start doing that, we would lose the ability for the jury to decide something that we are not comfortable with, and which a prosecution barrister might have a field day with.
As I said, I get frustrated with those sorts of decisions. I was very frustrated when a jury did not convict the Colston four. I did not get to know why they did not do that, but the system is deliberately designed that way. The Minister has to accept that. That is almost proving the point that others have made—in particular, the hon. Member for Kingston upon Hull East has said this both publicly and privately. Judges are forced to be much more constricted in their decision making. If the facts are a, b and c, they just have to go along with those facts.
Sarah Sackman
Is the shadow Minister seriously saying that the giving of reasons, constrained by the legal tests that judges have to apply—meeting the criminal standard of proof and applying a logical route to verdict, free from bias and procedural unfairness—is not desirable? I find that an extraordinary proposition.
Dr Mullan
As I said, it is about weighing the benefits that the Minister has rightly articulated against the loss of the benefit of safeguarding individual people who are perhaps erring from a strict interpretation of the law. Again, this is not happenstance. The idea that a jury might do that has been tested repeatedly in appeals and judgments. It has been repeatedly affirmed that it is for a jury to go away and make up their own minds, having heard all the evidence.
Sarah Sackman
I think the shadow Minister misunderstands me. I am not critiquing our jury trials which, as I have said, are a cornerstone of British justice. I am trying to understand why he has so little faith in the judges of this country.
Dr Mullan
I have explained why I have concerns about whether the judiciary is sufficiently accountable for the decisions and positions that it takes under the current system. I am not shying away from that. The reality is that I do not think it is sufficiently accountable. I think judges sometimes make poor decisions; we have to get away from the idea that politicians cannot say that.
The Justice Committee visited the Supreme Court and got to sit with Supreme Court judges. The portrayal is sometimes that they would be absolutely appalled by MPs criticising their judgments and not thinking they had made the right decision, but they were perfectly relaxed about that. They said it is absolutely the role of politicians and MPs to have criticisms and be concerned about the decisions that they make.
Sarah Sackman
I do not think we are disagreeing about the importance of judicial accountability or the need for a more diverse judiciary. The Deputy Prime Minister is making huge progress on that and has been a real proponent of that, both when he was in opposition and now in government. What I am talking about is the process for which these structural reforms provide, whereby a judge will give a reasoned judgment for their verdict. If that verdict proves to be unsound, arbitrary, unfair or biased in some way, the person knows what the reasons are and can appeal it. Is there not merit in that process?
Dr Mullan
We have to run with the idea that some judges might have some prejudices. We do not know for sure that they do, but there is certainly every reason to believe that might be an issue, particularly when we look at the disparity in their backgrounds and so on. The Minister is asking us to consider that when a judge has a prejudice, particularly unconscious bias, he is going to sit down and write in his reasons: “I thought this person was more likely to be guilty.”
Dr Mullan
They are working very hard, as the Minister says, but the work is not complete. We have not done what the Under-Secretary of State for Justice said we should, which is do the stretching and have it all dealt with before we consider curtailing jury rights. We are proceeding when that has not happened, and the Deputy Prime Minister made similar remarks.
There are other individuals to whom one might think the Prime Minister gives a lot of credibility and weight. Geoffrey Robertson, the founder of the Prime Minister’s barristers’ chambers, condemned the plans to restrict jury trials in England and Wales as
“a betrayal of the values for which Labour purports to stand.”
It was not just the Prime Minister who practised with that individual. Maybe they were working with him under the cosh or they had the view that the chambers they chose to work in were founded by someone they did not give weight and credibility to.
The Deputy Prime Minister also worked in the chambers of this individual. Who else, Ms Butler? Richard Hermer, the current Attorney General, also practised in the chambers founded by this individual, who said that
“attacking juries must be regarded as a betrayal of the values for which Labour purports to stand…How have they come to betray a principle that has been so important over the centuries for those who have dissented or stood for progress?”
He adds that, given the Labour party’s
“record of support for progressive causes, for free speech and peaceful political protests, the Bill does seem a betrayal of Labour traditions…MPs who vote in favour will be on the wrong side of their party’s own history.”
That is from the person with whom the Prime Minister, the Attorney General and the Deputy Prime Minister all enjoyed practising the law for many years in the chambers on which they sought to rely.
This morning we covered the right to appeal. As we discussed, the rate of successful appeal in the magistrates court is higher than might be expected. We do not know how that figure and the difference in respect of jury trials will translate if cases are taken down to a single judge. The Minister stated that reasonings will be laid out and that that will make the system more transparent; of course it will to some degree, but the drawbacks do not make that trade-off worth while.
We are also going to see, with the new Crown court bench division, a whole new series of ways in which defendants seek to appeal sentences. The Minister talked about the fact that there are not enough barristers; how do we know that some of those trials and appeals are not going to draw from barristers’ time? We do not.
I return to the central argument about the value and weight of jury trials in the public perception. The issue is not just about how the public perceive jury trials. Jury trials are the most important way in which the public are part of our judicial system: the public are part of the process; it is not a process separate from us. We have talked about magistrates as a halfway house for representation and diversity of opinion, but the same arguments apply in relation to the participation of the citizenry from their point of view. That is not the point of view of the defendant and the decisions that they might take, but that of the individual citizen participating in the judiciary, versus that of the magistrates.
All the same arguments that I made in relation to the perception of potential prejudices apply to the question of introducing the new division, which will even more greatly extract the citizen from our judicial system. That extraction is important because it goes back to the original question of whether we feel that the judicial system is ours and we have a role to play in it, or that it is what would have been, in the old days, the King’s judicial system. It was the King’s system: justice was in his name, for him, or—as I talked about this morning—in God’s name, for God, with individual citizens excluded from the process.
Although the Opposition oppose clause 3, our amendment 39 at least attempts to curtail some of the issues with it. I note that when we discussed it this morning, the Minister would not engage on the direct, specific question of whether, looking at the examples in isolation, she thinks it is fair that somebody of good character who stands to lose an enormous amount—their job and their reputation—is going to lose access to a jury trial whereas a repeat, recalcitrant, more serious offender will not. We are clear that that is not fair, so we have attempted, with a similar aim but in a manner different from the hon. Member for Bolton South and Walkden, to introduce some safeguards, but we are opposed to the proposal in clause 3 in its entirety.
Sarah Sackman
As I think I am hearing from the Opposition, given that clause 3 is really meaty and has lots of aspects and that, I suspect, all hon. Members, including myself, have prepared on the basis of the groupings in the selection list, a lot of the detailed points on which hon. Members want answers may get lost if we try to debate them all in one go. If we keep to the groupings, that might be efficient.
Ordered, That the debate be now adjourned.—(Stephen Morgan.)
Courts and Tribunals Bill (First sitting)
Sarah Sackman ExcerptsWednesday 25th March 2026
(1 month ago)
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The Minister for Courts and Legal Services (Sarah Sackman)
Q
Sir Brian Leveson: Yes. At the moment, there are undeniably defendants who are gaming the system. They are charged with a crime, they are told their trial will not be until 2028 or 2029, and they are happy to put it off.
I gave an example in a debate on this subject. I said that in 1970 I would say to defendants in around November, “Well, this is a very strong case. If you are guilty, you are much better admitting it. You get a discount for pleading guilty and you can explain it, which will contain litigation.” More than once defendants would say, “Well, Mr Leveson, I am guilty, and I will plead guilty, but I want to spend Christmas with my kids, so I will plead guilty in January.” Now they can say, “I would like to spend Christmas 2028 with my children.” That was an anecdote from me, but after the debate a defence solicitor from London came up to me and said, “That example you gave—I am having that conversation every day of the week.”
We need people to confront what they have done. I do not want anybody to plead guilty who is not guilty and has seen the evidence. I am not asking to change the guilty plea rate, but in the early days, you pleaded guilty on the first or the second occasion you appeared at the Crown court—now there are many examples of that happening on the fifth or the sixth occasion you are in the Crown court. Each one of those takes a considerable amount of time. That is what is sucking up part of the time.
There are lots of other challenges to the system, which if you have had what I do not say is the benefit or privilege of reading both parts 1 and 2 of my review, you will see that I try to elaborate on there. I am concerned that we need to change the dynamic so that people address allegations that are made against them at the first opportunity, rather than hoping that the victim will withdraw, the witnesses will forget or the case will just fade away. That is the point I am talking about with cultural change.
Sarah Sackman
Q
Sir Brian Leveson: No, I do not. I have spent my life trying to improve the efficiency of criminal courts, from the time that I was senior presiding judge in 2007. I have spent a lot of time trying to improve efficiency. It has deteriorated for all sorts of reasons, which I elaborate on in my review. It will be difficult to get that moving. It can be done. The money going into the system has been dramatically reduced over the years. The MOJ was not a protected Department, and has really suffered as a consequence. Do I believe that money and efficiency will do it? No, I do not, because that will not change the cultural dynamic.
Sarah Sackman
Q
Sir Brian Leveson: The reason why I started to think about that was that I have long been of the view that it would be valuable, as technology has improved, to record magistrates court proceedings—in other words, to have a record of what is said in the magistrates courts. Once one is doing that, there is no reason why one should not introduce the same sort of approach to appeals as the one used in the Crown court and the Court of Appeal criminal division.
I was particularly impressed—I use the word impressed, but I was concerned—by an argument that I heard that many minor sexual assaults that were dealt with in the magistrates courts or the youth courts, which could include rape, almost automatically went to appeal to the Crown court, on the basis that the victim would not turn up the second time and be prepared to go through the whole process again. That is a serious problem. To require victims to go through the experience of giving evidence and being cross-examined twice is unfair on them. Everybody needs to be able to move on with their lives, and that is victims and defendants as well.
Although I have talked about defendants gaming the system, I do not ignore defendants who are determined to pursue a not guilty plea because they do not feel they have done anything wrong, but whose lives are on hold for years until their trials happen. I had an example of a young man who was at university and charged with rape. His university career is long since gone, and he could not get a job because he had to tell potential employers, “I’m due to be tried for rape.” The system has to change. That is what I believe, but of course it is for you to decide whether it does.
Jess Brown-Fuller (Chichester) (LD)
Q
Sir Brian Leveson: That is easily answered: there are just too many of them. My view is that nobody should be a circuit judge unless they are capable of trying serious sexual crime—nobody. The empathy required to deal with victims is not just restricted to rape and serious sexual crimes. The make-up of cases going to the Crown court has changed over the last 10 years, so what might have been a good idea 10 or 15 years ago when there were fewer such cases does not cut it now. There are just too many cases, and that is why I did not recommend a specialist rape court.
Sarah Sackman
Q
Professor Hohl: The measures in the Bill that address sexual offences broadly fall into two groups. The first group clarifies and tightens admissibility rules around sexual history evidence and previous reports of sexual violence that may be portrayed as so-called “victim bad character”, tightening that threshold to better protect victims from unnecessary, intrusive and unfounded lines of questioning. We very much welcome those.
There is also a set around special measures, which effectively clarify how they should apply. Those are also very welcome, and my understanding is that they are largely uncontroversial; they seem to be welcomed across the board.
Sarah Sackman
Q
Claire Waxman: Thank you. First of all, victims are not a homogeneous group, and they do not always agree on everything, but the majority of victims, who are so desperate to get out of these long waits, are looking to you—to Government and to parliamentarians—to provide that reassurance that hope is on the horizon. As Sir Brian laid out this morning, and in all his analysis work, we need some structural reform in order to take the pressure off the overburdened court system. That is what we need to be looking at to alleviate what victims have to experience.
That sector letter is talking about a really serious failing of our criminal justice system, but it is about the criminalisation of victims. They should not even be coming into court. We need to be dealing with that way earlier in the process. We need to be looking at diversion, better identification of victims and pushing them into trauma-informed responses and support.
I do not want to see victims coming into the system as defendants, but we cannot ignore the many victims I speak to—and there are victims who will speak to you directly today—who are in as complainants rather than as defendants. They are waiting years to give evidence. We know that when they wait years, there is a chance that they will withdraw; if they do not, the wait impacts the quality of their evidence. The impact of delays on memory will understandably affect their evidence. Inconsistencies naturally arise and that becomes very challenging for victims giving evidence years after the offence.
Jess Brown-Fuller
Q
“also stress important safeguards: tackling the lack of diversity on the bench, and ensuring judges are robustly trained in the dynamics of abuse and trauma.”
You know that over many years many different parliamentarians have tried to legislate to ensure that everyone in the judiciary has mandatory training on those important safeguards. You also know that we are always told that, because the judiciary is independent, we cannot legislate to mandate that training. What would you like to see in the Bill to ensure the important safeguards that victims have reflected to you?
Claire Waxman: I have made that point for years, regardless of these reforms. We have to improve and get reassurance around judicial training, including training on cultural competency, on understanding bias and prejudice and on the dynamics of abuse. We still see issues around coercive control, post-separation abuse and stalking. I need to be reassured that judges are being trained to the level that will give assurances to victims and to myself that they understand what is coming in front of them. We need reassurance from Government on that. I would suggest more investment in judicial training. We saw, over years—Vera will remember more than me when it happened—that the training on rape went down from three days to two days for judges. That was meant to be a temporary measure; I do not think it has gone back up. We need to make sure that we have good, robust training for judiciary and magistrates.
Dr Mullan
I am really sorry for the experiences that you have had, and certainly for any role that we played in government in not better addressing these delays and the challenges that you faced. The consequences of that are really powerfully illustrated by the things that you have talked about, so thank you for sharing that. I really hear all the evidence that you have given.
Sarah Sackman
Q
Charlotte, I wanted to pick up on something that you said. You talked about transparency and about the benefit that the recording of proceedings in the magistrates court would have. We are committed, as part of these reforms, to recording all proceedings in the magistrates court. Can you describe and explain what difference you think that might have made in cases like yours?
Charlotte Meijer: Definitely. After I gave my evidence in my trial, I left. The gallery was not somewhere I could sit safely. It was a tiny bench. His best mate and his sister were sat there, so I could not really go and sit between them.
I had said to the CPS and the police that I might want to come and hear the verdict. I was not given that opportunity, unfortunately. I got a call from my independent sexual violence adviser to say that the verdict had been made and that he was found not guilty. From that day, I really wanted to understand what had happened. For me, it was a very clearcut case of coercive control. I cannot go into too much detail, because he was found not guilty, but there was a huge age difference and there was a power imbalance and so forth, so I never understood how he was found not guilty.
The judge also made some comments. She said that, because I waited eight months to report, I was unreliable, and that I had clearly spoken to other victims of domestic abuse, so I knew what to say. Those comments really stuck by me. For my healing, and for me to be able to move on, I just needed to understand what was said in court, so I went to ask for the transcripts, of which of course in the magistrates courts there are none. It is definitely twofold: I wanted to understand what happened for my healing, but I also still want to hold that judge to account, because the things she said are not true and should not be said by someone who should be in a position of power and education.
I also think there is an important argument to be made around transparency, because people do not feel that the system is transparent—and to be fair, if it is not recorded, it is not. If you cannot sit in the gallery, if no one can watch and if there are no transcripts, then it is not. It is important to have the ability to record everything so that people can listen back, whether that is for their healing or for their understanding, or to hold people to account. We need to be able to hold people who are in power to account.
Sarah Sackman
Q
As you have heard from previous witnesses, the primary thrust behind the Government’s measures in the Bill is to address the unacceptable delays that you have all described. However, we also have a responsibility to build back a better system. One choice that the Government made was to remove the right to elect, so that it is the court that allocates cases to the appropriate venue. We think that that makes things quicker and more efficient, but there is also a normative idea behind it that it is the court that should triage cases; you mentioned that in your remarks, Charlotte. What is your view on that reform? From a victim’s perspective, do you see sense in it, or not?
Charlotte Meijer: Definitely. Throughout the system, the victim is always on the back foot. You get told a day later—or, depending on the service that you receive, two days, three days, four days or a month later—what has gone on, but the perpetrator always knows exactly what goes on, because they have to be present and able to make decisions. Why is the perpetrator the one who can make these decisions? It makes it feel like they are in control, and that, as a victim, you are running behind to catch up.
That was exactly the case for me when I found out that he had selected a court. All of a sudden, I got a call to say, “Your perpetrator has picked a magistrates court, so that is now what will happen.” I had no choice in it. I had already had no choice for three years when he was controlling me; I had no choice for three years when he was raping me; and now I had no choice for two and a half or three years when I was in the system.
Jess Brown-Fuller
Q
Farah Nazeer: Thank you for the question. There are a few things around presumption that could make a big difference. One is training for the entirety of the court staff, because the stories that we hear and the experiences that we support women and children through are frankly appalling. The staff are not trauma-informed and there is no understanding of what a victim is going through. The courts are weaponised and survivors are brought back to the courts repeatedly. It is an appalling process. No policy area that you work on at Women’s Aid is a picnic, but this is the worst. People describe the trauma that they go through in the family courts as worse than the trauma that they endured through the abuse that they experienced.
One thing is for the court system to understand domestic abuse, understand sexual violence, understand coercive control and be trauma-informed. That means having processes in which a survivor knows what is happening, understands what the next steps are and is supported through the system, and having separate places where a survivor can be. Some of it is quite basic, but it is really important to improving the survivor experience.
Another thing is the regulation of experts. We often have unregulated experts coming into the family courts to provide expertise and advice to the judge on what is happening in a relationship. You would not have unregulated experts in any safeguarding context; it is absolutely wild that you would have that. One thing we really want to see is regulated experts: psychiatrists and psychologists who are regulated by the appropriate body, rather than, seemingly, people who are just not.
The last thing that I want to focus on is the concept of parental alienation, which is often invoked in family courts. It is a concept that is not evidenced and is not recognised in psychiatric or medical practice, but it is often invoked as a concept to defend against claims of domestic abuse. What needs to happen is a child’s safety being put at the heart of the decision by a regulated expert, by a trained judge. If you get that right, you immediately improve the experience for survivors and children, and you improve the safeguarding around survivors and children. Those three things are absolutely critical to changing the culture and the experience and to ensuring safety.
Sarah Sackman
Q
Oral Answers to Questions
Sarah Sackman Excerpts(1 month, 1 week ago)
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Liz Jarvis (Eastleigh) (LD)
The Minister for Courts and Legal Services (Sarah Sackman)
The Courts and Tribunals Bill puts victims at its heart and aims to deliver faster, fairer justice for all victims. In addition, we are increasing transparency and support for victims in the criminal justice system, funding victim support to the tune of over half a billion pounds, consulting on a new victims code, and enhancing special measures.
Liz Jarvis
My constituent was appalled that character references were read out during the sentencing of a man found guilty of attempting to engage in sexual communication with a child. The Minister will be aware that Queensland, in Australia, introduced reforms last year to restrict the use of character references in the sentencing of sex offenders. Does the Minister agree that all victims should be at the heart of sentencing, and will she review the admissibility and weight of character references in sexual offence cases?
Sarah Sackman
I thank the hon. Lady for raising an important point. The starting point is that judges decide what evidence is admissible and what weight to give to that, but we are interested in how evidence is being used in criminal trials. The Courts and Tribunals Bill will make changes—for example, to defendants’ bad character evidence. This will clarify that if a defendant has a previous domestic abuse conviction, the judge can say that this shows that they have a propensity to commit further domestic abuse offences, but I am happy to work with the hon. Lady on what further changes might be beneficial.
Steve Witherden (Montgomeryshire and Glyndŵr) (Lab)
Andrew Cooper (Mid Cheshire) (Lab)
The Minister for Courts and Legal Services (Sarah Sackman)
This Government are dedicated to increasing transparency in our courts. We are expanding free Crown court sentencing transcripts to all victims who request them and rolling out recording to all magistrates courts, so that all criminal cases heard in open court will now be recorded. We are also working with our judiciary to see where we can go even further on transparency.
Andrew Cooper
The Courts and Tribunals Bill seeks to increase the transparency of court proceedings in several important respects, but conducting empirical research into how real juries make decisions will remain illegal in England and Wales. Researchers have had to rely on mock juries in their research, which has shown a link between the attitudes of jurors and verdict decisions, in particular in rape trials. Does my hon. and learned Friend agree that we must break down barriers to jury research so that we can develop appropriate reforms to address this problem?
Sarah Sackman
Of course, there are good reasons for the protection of jury deliberations, which ensures that they can happen in private. The Government in Scotland have recently legislated for a tightly controlled exception to support research into jury deliberations, and my officials are working with the Scotland Office to see what lessons we can learn from that vital work.
Katie Lam (Weald of Kent) (Con)
In February, the Government ordered Courtsdesk to delete the largest archive of court records in the country—an essential tool for transparency in the justice system. The Government changed their minds about that, which was incredibly welcome, but we do not yet have a clear sense of what they intend to do with that archive or how they intend to move forward. Could the Minister assure us today that Courtsdesk will not be compelled to delete its archive in the future and confirm whether it will be allowed to continue operating its services?
Sarah Sackman
I will start by reminding the House why we suspended the operations of Courtsdesk. It was because of its handling of sensitive data in breach of the agreement it had with Government. Of course, we recognise the importance of transparency and the service provided by Courtsdesk, which I recently met. The hon. Lady will know, as I have updated the House, that we intend to bring forward new licensing arrangements to make court listings and registers available to more people—for journalists in particular—and we will bring forward plans as to how Courtsdesk and others can bid for those new licences.
Munira Wilson (Twickenham) (LD)
Peter Lamb (Crawley) (Lab)
The Minister for Courts and Legal Services (Sarah Sackman)
It is the prosecution and the defence who decide what evidence to put forward in a criminal trial, including deciding whether to put forward evidence from automated enforcement technology. Once that evidence has been put forward, the magistrates and the judge have a duty to ensure that only admissible evidence is presented to a jury.
Peter Lamb
The Government are to be commended for the largest ever investment in police technology, including facial recognition to catch serious offenders, and a drone squad to crack down on waste crime. However, the rules around admissibility of some high-tech evidence, such as the six-month crime rule, are holding back enforcement, which could enable us to stamp out low-level crime and antisocial behaviour. Can the Minister commit to reviewing these rules to ensure that the latest technology can be used to protect our communities?
Sarah Sackman
We will keep the rules relating to the admissibility of evidence under review. When considering whether evidence is admissible, the magistrates and judge will consider its relevance, competence, materiality and probative value.
Sir Edward Leigh (Gainsborough) (Con)
The Minister will have heard, as I did, the very moving speech of the hon. Member for Warrington North (Charlotte Nichols) last week. She really moved the House with her testimony of the terrible experience that she had had as a rape victim, and her experience of delays. She will also have heard her say that, according to the Government, abolishing jury trials will save perhaps only a week. So my positive question to the Government is this: why do we not proceed on the basis of the Labour manifesto? It has its merits and it promised specialist rape trials. Why do we not set up courtrooms in every single courthouse with specialist lawyers and really deal with the backlog now?
Mr Speaker
I am not quite sure whether the right hon. Member’s supplementary is relevant to the main question. [Interruption.] No, I think it is not.
Gill Furniss (Sheffield Brightside and Hillsborough) (Lab)
The Minister for Courts and Legal Services (Sarah Sackman)
Before answering the question, I extend my condolences to the family and friends of Jeff Blair, a county court bailiff who was killed last week doing his job. It was a shocking incident, and violence against our hard-working staff is completely unacceptable.
Turning to the question, the Government support the work of the Enforcement Conduct Board to raise standards in the enforcement industry and to ensure, in particular, that vulnerable people are treated fairly. We have consulted on establishing an independent regulatory framework to build on the ECB’s excellent work, and we will announce next steps in due course.
Gill Furniss
I welcome the Government’s commitment to legislating for a statutory bailiff regulator. Research by StepChange and others has uncovered shocking cases that show why that is urgently needed, including a bailiff pushing someone through their front door and then laughing when they said that they had mental health issues. Will the Minister tell the House when we can expect that legislation to reach the statute books?
Sarah Sackman
I join my hon. Friend in endorsing the work of StepChange, in particular, in this campaign. The indignity that she describes, which many suffer as a result of the abusive actions of some, and only some, unregulated bailiffs, reinforces why we need legislation in this area. We have consulted on how we will legislate, and as I have said, we will announce our next steps in due course.
Sir Gavin Williamson (Stone, Great Wyrley and Penkridge) (Con)
I very much associate myself with the Minister’s words on the sad loss. She touched on the important issue of the vital role that court bailiffs play. Many small businesses are struggling to recover money because of a lack of court bailiffs. What actions are the Government looking to take to increase the number of court bailiffs, in order to help small businesses recover the money that they are owed?
Sarah Sackman
As much as we want to protect debtors, we also have to ensure that creditors who are owed money are able to recover those funds, whether they are small businesses or, indeed, the public purse. That is why we plan to uplift fixed fees for enforcement agents, so that we have a sustainable and effective enforcement sector. Ultimately, better regulation helps everyone, creditor or debtor.
Melanie Onn (Great Grimsby and Cleethorpes) (Lab)
Dan Carden (Liverpool Walton) (Lab)
The Minister for Courts and Legal Services (Sarah Sackman)
The Renters Rights Act 2025 represents the biggest expansion of renters’ rights in a generation, but of course, rights are not worth the paper they are written on unless they are enforceable. That is why the role of appeals, including to our property tribunal, is so important. My hon. Friend will know that court fees are a feature right across our system, but we will ensure that fees do not represent a barrier to access to justice.
Jess Brown-Fuller (Chichester) (LD)
I associate the Liberal Democrats with the Secretary of State’s condolences to the family of Jeff Blair. Strategic lawsuits against public participation, known as SLAPPs, have been used by the rich and powerful to silence victims and undermine the free press in this country. Anyone engaging in public-interest activities can be a target of SLAPPs. Powerful individuals who are exploiting the justice system in this country should not be shielded from scrutiny, so when can we expect legislation from this Government to address this?
Sarah Sackman
I entirely agree that the profound financial and psychological impact of SLAPPs, and the chilling effect that they have on public-interest journalism, pose a threat to our democracy. The Government commenced the SLAPPs provisions in the Economic Crime and Corporate Transparency Act 2023 in June 2025, and we recently saw the first case that engaged those provisions. While this is a positive first step, I am keen to consider all options for how we might take this further, and I look forward to working with Members right across the House on how we do that.
Harpreet Uppal (Huddersfield) (Lab)
Mr Will Forster (Woking) (LD)
Sarah Sackman
I thank the hon. Member for his question and his tireless advocacy, which is a way of honouring Sara, who was brutally murdered at the hands of the very people who should have been protecting her. Of course, it is essential for justice that all court users understand what is happening in hearings. We believe that Sara Sharif’s birth mother was entitled to an interpreter, but she did not request one. However, we need to look into what should have been done to guarantee that she had an interpreter. We make over 200,000 interpreter bookings every year to ensure that people can understand proceedings, but I look forward to working with him to see what more we can do to implement that review.
Dame Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
Sarah Sackman
We are maximising the number of judicial sitting days in the immigration and asylum chamber. We are recruiting more judges in this area, as well as working with the Home Office to develop proposals for a new independent appeals body that would handle appeal types currently heard in the immigration tribunal, all of which I hope will benefit my hon. Friend’s constituents.
Alison Bennett (Mid Sussex) (LD)
Sarah Sackman
I am sorry to hear about that case. These sorts of delays mount trauma on trauma for many of those going through sensitive family court proceedings. We have to get this right. Because of the sensitive nature of family proceedings, there has to be judge approval of transcripts, and they have to meet the rigorous requirements of the secure transcription unit. We cannot compromise on accuracy and quality, but we do need to get the delays down.
Brian Leishman (Alloa and Grangemouth) (Lab)
Mr Jonathan Brash (Hartlepool) (Lab)
Ministers will be aware of the campaign to make all court and tribunal transcripts available for free. Fees can run into the thousands, effectively acting as a paywall to justice. Do Ministers agree that access to the law cannot be based on wealth alone, and what will they do about it?
Sarah Sackman
My hon. Friend is right: we are seeking to increase transparency and reduce barriers to justice. That is why we are legislating to make sentencing remarks available to all victims upon request, free of charge. We want to go further by creating more opportunities for broadcasting court proceedings and by working towards the greater availability of proceeding transcripts.
Calum Miller (Bicester and Woodstock) (LD)
One of my constituents has been waiting since September for a three-day fact-finding hearing in the family court. A hearing scheduled for February was cancelled at only a few days’ notice because no judge was available. My constituent had to pay nearly £2,000 in legal fees for preparation and representation, even after their barrister reduced their costs. Will the Minister reform the system so that families facing delays caused by the courts are not left bearing the financial cost of failures in the system itself?
Sarah Sackman
The impact of delays, as the hon. Gentleman rightly points out, is a feature of not just our criminal courts, but our civil and family courts. The financial impact, and, if an individual has been waiting, the build-up to the nerve-racking prospect of a trial in court, can be absolutely devastating. We are working to maximise capacity in every jurisdiction and hiring more judges to improve timeliness. I will continue to work with colleagues across the Department to deal with delays in the family court.
Rachael Maskell (York Central) (Lab/Co-op)
I refer to my entry in the Register of Members’ Financial Interests. I have met the academics behind the University and College Union reports on the prison education service, which highlighted the real challenges around the wellbeing and mental health of educators, as well as their safety, especially with the racism they have been experiencing. Will my hon. Friend look at carrying out a complete review of the prison education service to ensure it is fit for purpose and able to do the job it was designed for?
Gideon Amos (Taunton and Wellington) (LD)
Given the massive immigration tribunal backlog left by the previous Government, would it not make more sense to lift the cap on non-salaried tribunal judges who are already recruited, and invest in court venues such as Taunton, instead of abolishing their role and doing massive damage to morale?
Sarah Sackman
Plainly, we have to address the backlogs in our immigration and asylum chamber. It is why we are maximising capacity in terms of sitting days and traditional recruitment. I had the pleasure of visiting the immigration and asylum chamber on Rosebury Avenue recently, and I saw the commendable work being done by the resident judge. We are focusing on a new appeals body, working with the Home Office. We think that is the better plan, and we will make sure it is properly resourced.
Asbestos-related Lung Cancer: Compensation Act 2006
Sarah Sackman Excerpts(1 month, 1 week ago)
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The Minister for Courts and Legal Services (Sarah Sackman)
I thank my hon. Friend the Member for West Dunbartonshire (Douglas McAllister) for securing this debate. We have all been treated to a fine and thoughtful speech. He is without doubt a tireless advocate for his constituency—for Clydebank, Dumbarton, and the communities ravaged by the diseases that he has described. I extend my sympathies to all those who have suffered with asbestos-related diseases, made sick by their places of work and the conditions in which they should have been kept safe.
This is no doubt an incredibly important issue, which involves a complicated area of law where the common law and legislation have developed a complex and nuanced set of rules. I will set out the general position on causation and liability in negligence claims. The usual test for causation in negligence cases is the “but for” test—that is, whether the claimant’s harm would have happened but for the defendant’s breach in the duty of care owed to the claimant. If the claimant proves on the balance of probabilities that it would not have occurred without the breach, causation is established. Causation in industrial injury litigation that involves exposure to asbestos can be particularly complex, given that normally the claimant’s condition will have been caused by prolonged exposure to asbestos, involving many incidents and several different employers.
When determining liability and compensation, the courts draw a distinction between divisible and indivisible injuries. In England and Wales, liability and compensation for divisible industrial diseases, which is where the condition worsens with long-term exposure, is apportioned between previous employers, with each defendant liable only for the period of negligent exposure they caused. In the context of industrial injuries, indivisible diseases are conditions where the harm is treated as a single whole injury, because it cannot be medically or causally divided between different workplace exposures. It is usually impossible to know which specific exposure caused the injury. Under the normal rules, that would mean an employee who worked at different companies would likely fail in any legal claim because they cannot prove which employer caused them harm. Mesothelioma, for example, is treated as an indivisible disease.
As my hon. Friend eloquently set out, there have been a number of legal developments in recent years regarding liability and compensation for mesothelioma. In Fairchild v. Glenhaven Funeral Services Ltd, the House of Lords created a special rule for cases such as mesothelioma, where a claimant has been negligently exposed to asbestos by multiple employers but cannot prove which exposure caused the disease. In such cases, if an employer negligently exposed a worker to asbestos and thereby materially increased the risk of mesothelioma, they can be held liable even if the claimant cannot prove that that employer’s exposure actually caused the cancer. In short, the “materially increased risk” test replaced the “but for” test.
However, in Barker v. Corus, the House of Lords accepted that the Fairchild exception—that is, the materially increased risk test—still applied, but it also addressed the consequences of that liability. The court held that defendants were not jointly and severally liable, as had previously been understood, but instead liable only on a proportionate basis, reflecting their respective contributions to the overall risk.
In response, Parliament acted with cross-party consensus to enact the Compensation Act 2006, which reversed the effect of Barker v. Corus for mesothelioma claims. Section 3 of the Act reinstated the principle that victims could claim full compensation from any liable party, who can then seek contributions from others responsible for the exposure. That is vital in mesothelioma cases specifically, as it is not possible to establish which workplace fibres triggered the process of carcinogenesis. Equally, there is no action an individual can take that increases or decreases their chances of developing the disease. At the time of passing the 2006 Act, the broad political consensus was that due to the unique pathology of mesothelioma, the Barker ruling had to be reversed. Otherwise, there was a real risk of claimants being unable to seek the compensation that they deserved. As such, it was decided that as a unique disease, mesothelioma required a distinct legal remedy.
However, as we have heard, in terms of the life-changing effects and ill health that asbestos-related lung cancer can bring, in reality, the situation for many sufferers is little different for other non-mesothelioma claims, and the Barker ruling still applies to them. That was affirmed in Heneghan v. Manchester Dry Docks Ltd, in which it was held that the materially increased risk test of Fairchild applies to those claims, while the joint and severally liable principle introduced by section 3 of the Compensation Act 2006 is limited to claims relating to mesothelioma. Broadly, the courts accept that the materially increased risk test is proven for those claims if medical evidence shows that the asbestos exposure more than doubled the relative risk.
This area of law is a mix of devolved and reserved matters. The Scottish Parliament agreed via a legislative consent motion to UK-wide legislation that became section 3 of the Compensation Act. I want to assure my hon. Friend and the House that the UK Government are committed to ensuring that necessary support is available to all individuals suffering from asbestos-related conditions, including asbestos-related lung cancer. Eligible individuals can receive industrial injuries disablement benefit—a weekly no-fault payment for work-related diseases such as asbestos-related lung cancer. The Scottish Government plan to replace the IIDB with employment injury assistance, and work is under way to manage that transition.
Although the UK Government have no immediate plans to review the current legal framework in England and Wales, which has been the subject of much detailed analysis and determination in the senior courts, I am grateful to my hon. Friend for the attention that he has put on this issue. He and I have had the chance to speak outside the Chamber about how the law might be developed. I am grateful to him for securing the debate and giving me the opportunity to set out the UK Government’s position on what is, without doubt, a complex and intricate area of law, but one that has a significant impact on the lives of those who suffer from industrial-related diseases. In response to his question—or, dare I say, challenge—I will of course meet him and relevant organisations to discuss how the law might be reviewed to ensure that sufferers and their families can be treated fairly. I think that that is the right and careful approach, and I look forward to working with him.
Question put and agreed to.