We believe the potential is there, but we want to understand the statistics on which the Government have based the proposal. However, I will move on now.
Have the Government taken into account the potential increase in appeals? I imagine that could quickly offset the 1.6% saving in sitting days. The increase in sentencing powers is interesting in the context of existing provisions in the Bill, particularly in relation to the new allocation procedure.
As Justice points out, there is a risk that more serious cases
“could proceed without defendants being physically present for a hearing, and as such without the defendant’s informed input as to whether the case should be heard in the Magistrates’ or Crown Court.”
It is also important to consider the proposal in the light of clause 9, which will allow hearings to take place in the absence of the defendant in many circumstances. Can the Minister share any assessment that the Department has made of the potential impact on appeals to the Crown court of introducing the increase in sentencing powers at the same time as the new allocation procedure and clause 9?
As the Minister outlined, new clause 1 will enable the Government to switch off and back on the maximum custodial term that a magistrates court may impose for an either-way offence—in other words, he is taking the power to reverse these new sentences when it suits the Lord Chancellor. I am interested to hear in what circumstances the Minister would want to reduce magistrates’ sentencing powers in future. Will that be triggered by the backlog reaching a certain level, or does he think there is a high risk that there will be unintended consequences, such as those that the CBA, Justice and I have described?
The whole approach suggests that the Government are not too confident that the proposal will be the success that they hope. Until Ministers address the shortages in judges, criminal practitioners and appropriate court space, victims and defendants will continue to suffer excessive waits until their cases are concluded.
I will now move on to the Opposition’s amendments and new clauses, which, as I explained earlier, aim to introduce a number of safeguards into the Bill to ensure that access to justice is not hampered in the drive towards efficiency that online and remote processes can offer.
Clause 3 creates an automatic online conviction and standard statutory penalty procedure, which will provide automatic online convictions as an alternative to the single justice procedure. Through this process, a defendant could opt to plead guilty online, which would result in an automatic conviction without the need for a hearing.
The process rightly already has some limitations. For example, the defendant must consent to use of the process, so they retain the right to opt for an in-person hearing instead. Furthermore, the procedure is only available in respect of non-imprisonable summary offences where the accused was aged 18 or over when charged. The Opposition agree with those limitations, but we think they need to go further. Amendment 20 would require that all accused persons considered for automatic online convictions, as introduced by clause 3, are subject to a health assessment, and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online.
The Equality and Human Rights Commission has recognised that remote justice is unsuitable for disabled people, such as those with learning difficulties, cognitive impairments or mental health conditions. The commission identified that remote proceedings reduced chances to identify a court user’s additional needs and make the appropriate adjustments. I know the Minister will share my anxiety that further roll-out of remote processes without the right safeguards may compound those inequalities even further. A recent criminal justice joint inspectorates report emphasised the need for default screening of all criminal suspects and defendants for disability, including neuro-disability. That proposal was supported by the former Lord Chancellor, who promised action on this issue. I sincerely hope his successors will uphold his promise by supporting this amendment.
I am aware that it is the Government’s intention for online pleas to be entered via the common platform, which potentially provides at least one instance where a court user’s needs can be identified so that adjustments can be made. However, the ongoing chaos with the common platform demonstrates why that would not be a sufficient safeguard in this regard. The pilot and early adopter sites have established that in its present form, at least, the common platform is not fit for purpose. The experience of the pilot courts has been widely reported to the Public and Commercial Services Union as disastrous. Their members have been working late into the evenings in an attempt to record case outcomes, with work often disappearing into thin air. Case outcomes that took a matter of seconds to record in a paper file are now taking in excess of an hour to record, provided the system is even working. Although Her Majesty’s Courts and Tribunals Service has taken steps to address slowness and instability since the intervention of the senior presiding
judge in pausing the roll-out last year, PCS does not accept that those steps have addressed the fundamental design flaws. Results still routinely disappear from the court record.
I am told that confidence in the common platform at the Crown Prosecution Service—the common platform was initially a joint CPS and HMCTS venture—is so low that the CPS has retained its case management system and is using that in preference to the platform. Given the low level of confidence in the system among the professionals who use it, I am sure the Minister can recognise why I do not believe it should be relied on as a safeguard as more remote justice procedures are introduced and rolled out. Instead, he should listen carefully to the EHRC’s findings and introduce meaningful screening measures.
I turn to amendment 21, which would introduce a further safeguard to the automatic online conviction and standard statutory penalty procedure by excluding recordable offences from its purview. When I raised my concerns in Committee about the application of the AOCSSP to recordable offences, the Minister confirmed:
“There is currently no intention to extend the procedure to any recordable offences.”––[Official Report, Judicial Review and Courts Public Bill Committee, 9 November 2021; c. 228.]
The Opposition welcome the Minister’s words, but we would prefer to see that confirmed in primary legislation. The Bill already limits the use of the procedure to summary and non-imprisonable offences, but the consequences of a recordable conviction, even for such an offence, can still be serious. Many people will not understand the impact that a conviction can have on their lives. For example, it can have a detrimental impact on employment prospects in certain sectors.
In its current format, it seems as though the AOCSSP will incentivise people to plead guilty out of convenience, regardless of whether they have an arguable case. I am sure the Minister will agree that it is vital that no one is adversely impacted by pleading guilty without recognising the full impact. If the Government agree with that point, I hope the Minister will confirm that support by limiting the procedure in primary legislation to non-recordable offences.
I now consider amendment 22, which would remove children from the provisions of clause 9. Again, in Committee the Minister provided me with additional briefing on this point, for which we were very grateful. It was not, however, enough to quell my concerns about the fact that courts will be able to proceed if a child defendant is absent from a plea and allocation hearing. In Committee, the Minister confirmed that he recognises that
“in the majority of cases, the courts may not deem it appropriate to proceed”––[Official Report, Judicial Review and Courts Public Bill Committee, 16 November 2021; c. 271.]
in the absence of the child. Given that, I do not know understand why the Government insist on keeping the provision in the Bill. I have spent much time in this role trying to unpick Government proposals that treat children more and more like adults in the justice system, in both this Bill and the Police, Crime, Sentencing and Courts Bill. It is extremely worrying to me that here we have yet another example of the Government failing to treat children in an appropriately distinct way. It is the position of the Opposition that they should be removed from the scope of the clause entirely.
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I now turn to the Opposition’s new clauses and, first, to new clause 2, which clarifies the nature of online procedural assistance. We discussed the Bill’s proposals on online procedure at length in Committee, but again the discussions did not completely allay my concerns, which is why the Opposition have tabled this new clause. Some 16% of the UK population lack basic digital skills and are unable to participate in a digital society. There need to be clear assurances that those individuals will not be left out of the justice system by the Bill. As it stands, there is only a vague duty for the Lord Chancellor to provide digital support
“for those who require it”.
Labour believes that a specific commitment to assist digitally excluded individuals would offer better protection to that 16% of society, and the new clause adds the details that the Bill lacks on who exactly needs to be covered by the Lord Chancellor’s duty.
Finally, Labour’s new clause 3 would mandate the Lord Chancellor to undertake a review of the single justice procedure and, in particular, its appropriateness for use in prosecuting covid-19 offences. I am grateful again for the Minister’s engagement on the issue, which is one I have been particularly interested in over the past year. We have met to discuss some of my concerns about the single justice procedure, and I can confirm that he can expect a follow-up letter very soon. However, Labour felt it was important to bring the clause back for discussion on the Floor of the House, given the topicality of the issues it deals with. There are a number of allegations that members of the Government and those who work with them may have broken covid rules, having met for parties during lockdowns. The allegations are well known and numerous, and I do not intend to go over them again at this time, as we are now aware that there is an ongoing police investigation into some of them.
The allegations have, however, certainly been detrimental to public trust in not only the Government, but the justice system’s handling of covid-19 breaches more generally. Members may have seen the reports from Evening Standard court reporter Tristan Kirk on those cases. Last Wednesday, he tweeted:
“In the latest batch of Covid-19 prosecutions, a magistrate considered 68 cases on a single day, behind closed doors, and within just five and a half hours...The court recorded receiving a plea in just 11 of those cases. Defendants denying the breach were adjourned for trial, guilty parties were sentenced, the rest went through a mini-trial. In all, the magistrate imposed more than £15k in fines.
All these cases were dealt with behind-closed-doors, in the Single Justice Procedure. Details of the allegations are, as yet, sparse. There was no open court hearing, so it’s impossible to say how much care was taken over each case.”
The allegations of Government parties have pushed those prosecutions back up the agenda, as it appears that the rules have not been applied equally. I am not questioning the legality of convictions in individual cases or trying to impugn the decisions of the magistrates, who were applying the law, but I think it will assist in the consideration of the new clause if I share what some of the defendants wrote.
A 66-year-old man from Brockley wrote:
“I am a sick person with heart failure and other problems. I went to the allotment to get some greens as I don’t eat meat. I am a pensioner struggling to pay my way and in debt already. I did not wish to break the law and if you check I have no criminal record since school over 50 years ago”.
He was given a £100 fine. A woman was fined £250 for accidentally breaking the rules when trying to drop off a birthday card at the house of a friend, with whom she was in a bubble. She said:
“I did not realise there would be other people present. I did not enter the property.”
The review mandated by new clause 3 will assess how compatible the single justice procedure is with the principle of open justice. The review would also consider the appropriateness of the SJP for the prosecution of covid offences. The Joint Committee on Human Rights has stated:
“We are concerned that the single justice procedure is an inadequate tool to provide the necessary fair trial protections for people accused of offences that are so poorly understood and lacking in clarity and where so many mistakes have been made by enforcement authorities.”
It is not just members of the public who have a poor understanding of the offences. The Prime Minister himself does not understand them—and he made them up. He does not seem to know when he is at his own birthday party.
I certainly share the concerns of Big Brother Watch, which has pointed out that, in an unprecedented step that acknowledged the complexities of the new offences, the Crown Prosecution Service committed to reviewing all charges made under the Health Protection (Coronavirus) Regulations 2020 and the Coronavirus Act 2020. Those monthly reviews have overturned hundreds of unlawful charges—18% under the regulations and 100% under the Act.
However, the majority of charges made under the regulations and the Act have not been reviewed as they have been brought using the single justice procedure. As we know already, some are incorrect. For instance, 37 people have been prosecuted under schedule 22 to the Act through the single justice procedure. Given that the offences were in relation to a schedule dealing with events and gatherings that has never been activated in England, those prosecutions simply cannot be lawful.
There are errors in about 10% of prosecutions brought under the SJP generally, and I imagine that that number is much higher for covid-19 offences. How we handle the criminalisation of certain behaviours in the pandemic will inform future emergency responses, so it is important that we reflect fully on how the criminal law was used and what lessons there are to be learned. I am sure that many Members will agree with me that the action of the Government on covid rules demonstrates that there is much for them to learn.
To finish, I emphasise again that Labour supports measures that will streamline and build efficiency into the justice system; it is vital that we do so to bring the backlog down. But we cannot compromise access to justice in the name of efficiency, so I hope that the Government will accept the new clause.