My Lords, I will first deal with the general argument for Clause 3, not least because the noble Baroness, Lady Chakrabarti, gave notice that she would oppose the Question that Clause 3 stand part of the Bill.
As we have heard, Clause 3 creates an alternative new automatic online conviction and standard statutory penalty procedure for some single justice procedure cases. I should say at the outset that it comes with a number of safeguards. I assure the noble Baroness, Lady Jones of Moulsecoomb, that, as the noble Lord, Lord Ponsonby, fairly said, we all want to see the system work well. This is about putting in place a system that is appropriate and fair.
The procedure would provide defendants aged over 18 and companies that wish to plead guilty to specified offences the additional option of accepting a conviction and pre-agreed standard penalty online without the involvement of the court. Importantly, prosecutors will offer this to defendants only in cases that they consider can be dealt with appropriately through this procedure. It is unlikely even to be offered in cases where, for example, there are aggravating factors or the defendant is a habitual offender.
The procedure is entirely optional on the part of the defendant. Defendants can choose to have their case heard in court at any time before they accept a conviction. Defendants who opt in to using this procedure will be guided through the process and provided with all the information they need to make an informed decision, including—the noble Lord, Lord Marks, made this point—the consequences of accepting a conviction and the full details of the prospective fine. I will say a little more about that in a moment.
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Finally, the Criminal Procedure Rules will make provisions for a short cooling-off period to allow defendants to withdraw their conviction if they later change their minds. Separately, the court will have power to set aside a conviction or penalty if it is unjust, for example, in the event that the defendant plainly did not understand the consequences of their decision to accept the conviction.
With that background, let me turn to the amendments. First, I will pick up the points made by the noble Lord, Lord Marks. He raised a number of aspects and asked whether these measures have been properly considered. I assure him that they have. I will try to respond to his points now, but I am conscious that we have had some engagement on these matters before today and I am happy to continue with that if specific questions remain after today, but I will try to deal with them.
The noble Lord asked whether the defendant will receive information about the consequences of a conviction. The answer is yes. Defendants will be provided with all the information they need to make an informed decision, including details of the evidence against them, the potential consequences of choosing this route and the full details of the prospective fine and additional elements, such as the surcharge, costs, compensation and, if appropriate, penalty points. As the noble Lord, Lord Ponsonby, mentioned, they will also receive the details of the enforcement regime, which is part of the decision-making process.
Amendment 24 would require the Secretary of State to commission an independent review of the potential impact of the new automatic online conviction and standard statutory penalty process on defendants and the criminal justice system. Although I recognise people’s concerns about making sure that this works properly, I suggest that we need to see the process work before we can assess its impacts. We are proceeding with caution. As the noble Lord, Lord Pannick, said, only three offences will initially be selected for Clause 3: failure to produce a ticket for travel on a train; failure to produce a ticket for travel on a tram; and fishing with an unlicensed rod and line. These offences have been carefully selected because they are relatively straight- forward and simple to prove, with no complex grounds and a high degree of consistency in sentencing. Against the background of those offences, this enables us to monitor the way the procedure works and look at it carefully before we consider applying it to any other offences. I will come to the point made by the noble Lord, Lord Pannick, a little later but I have it.
Amendment 25 aims to provide for an additional safeguard against fraud for convictions accepted under the new automatic online conviction and standard statutory penalty procedure. It has always been the case that someone could submit a guilty plea while claiming to be the defendant; in fact, there are examples of this even under the current procedures. Defendants who are offered the option of having their cases resolved through this new online procedure will receive a notice that is similar to the existing single justice procedure notice. That will include a unique case number that defendants will be asked to provide when logging on to the online system alongside various personal details, such as their postcode and date of birth. Whenever any of those details are subsequently altered, the case will be flagged for an HMCTS adviser to check. Turning to the point made by the noble Lord, Lord Marks, in the event that a malicious third party managed to obtain a defendant’s case number and personal information, pled guilty and accepted the conviction all without the defendant’s knowledge, the court would have a statutory power to set aside that conviction.
With respect to the amendment, I mentioned earlier there is also the cooling-off period. That will give defendants who have either pleaded guilty or find out that somebody else has done so in their name, the opportunity to withdraw their agreement to accept a conviction. That, plus the general power of the court to set aside a conviction where it is unjust, is a sufficient response to and protection for that scenario.
Amendment 26 would require all defendants considered eligible for this new automatic online procedure to undertake a physical and mental health assessment. Prosecutors will offer defendants this option only once they have considered all the facts of a case and the circumstances of the defendant. As I said, the court also has the power to set aside a conviction if a defendant did not understand the consequences of their decision to accept it.
This amendment would be completely at odds with current practice. There is no obligation or requirement for a physical and mental health assessment under the single justice procedure or for a traditional hearing in court. One thing that we know about mental health in particular is that a person can seem perfectly okay between 10 am and 11 am but they are actually suffering from a significant mental health issue. We therefore do not have that built into our procedures in every case at the moment. The unintended consequence of this amendment would be to make it more difficult to access what is meant to be a simpler and more straightforward way of resolving a case.
Amendment 27 would require all defendants to have engaged a legal representative. Our intention here is that the procedure should be sufficiently simple for people to use without legal assistance. I suggest that the amendment is unnecessary. It would contradict current practice. Generally, cases of this type do not qualify for or attract legal aid and the vast majority of defendants in these cases already represent themselves, whether under the single justice procedure or in court.
I can assure the noble Lord, Lord Ponsonby, that defendants will be advised of their right to obtain legal advice under this procedure and will be entitled to request a full trial and obtain legal representation—usually at their own expense if there is no legal aid—at any time during the process.
Amendment 28 would restrict the application of this procedure to non-recordable offences, as the noble Lord, Lord Ponsonby, said. In this context, “recordable offences” means an offence for which the police are required to keep a record on the police national computer. We have already specified in legislation that for an offence to be eligible under this new procedure it will have to be summary-only and non-imprisonable. It would also have to be relatively straightforward and simple to prove, with no complex grounds and a high degree of consistency in sentencing.
We have no intention of extending this procedure to any recordable offences, which are inherently unlikely to be suitable to meet these criteria in any event. The three offences initially proposed are all non-recordable offences. The appropriate place for specifying further eligible offences is secondary legislation, which would need to be debated and approved in Parliament.
This might be a convenient moment to respond to the point from the noble Lord, Lord Pannick, about concurrence with the Lord Chief Justice. The short answer to that point is that, as with the single justice procedure, it is for the Government and not the judiciary to determine which offences are included under the new procedure. However, when it comes to implementation, we will continue to work with the judiciary on this and many other matters in the Bill. I respectfully do not
accept that it would be right to pass the pen either on a concurrence or any other basis to the Lord Chief Justice when deciding which offences to include.