My Lords, I am grateful to all noble Lords who have taken part in this debate. It covers a number of different points, but,
essentially, it focuses on the procedure for triable either-way cases and the recent announcement that the Government intend to extend magistrates’ courts’ sentencing powers from six months to 12.
Let me start with amendments to Clause 6 —Amendments 31, 32 and 33. They all seek to add further safeguards to Clause 6, but I hope to explain why the Government consider them to be unnecessary. I share the concern of the noble Lord, Lord Ponsonby, to ensure that defendants are able to seek legal representation in criminal proceedings at the earliest opportunity. The central point here is that a defendant is unable to proceed with the new online procedures without the support of a legal representative. That is because the online procedures we are dealing with here are made possible through the common platform, which is currently not accessible by individual defendants. So, as currently, legal representatives would be needed to access the platform, and they will then be able to help identify whether a defendant has particular vulnerabilities or does not understand the process even after explanation.
Defendants, as in a previous group, will be under no obligation to accept an invitation to proceed online. They can choose to discuss these matters at a traditional court hearing if they should so wish. Where a defendant fails to take up the offer of engaging online, the proceedings will simply default back to a normal court-based procedure. Furthermore, the court itself will be able to stop an online proceeding and call an in-court hearing if it has any concern or would like the defendant, for whatever reason, to attend court in a contested case. That would include cases where, for example, the court had concern about a defendant’s mental health or mental capacity, or where, for any other reason, the court considered online proceedings inappropriate.
Amendment 33 would require that defendants are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. Of course, getting a criminal record is not something that should ever be taken lightly, but Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea.
Where a defendant does decide to proceed with the online procedure, all the communication that would take place between the parties and the court to facilitate effective case management, which would otherwise take place in court, can take place online. A defendant will, for example, still be able to seek an indication of whether a custodial sentence would be likely if they were to plead guilty and were dealt with at the magistrates’ court. Further, any online indication of plea—and that is what we are dealing with, an indication of plea—will remain just that, an indication. A defendant is able to withdraw it at any time before their first appearance at a hearing in court. They will still need to enter a binding formal plea before the court at that hearing and any online indication of plea cannot be admitted as evidence in later proceedings. So I suggest that we have enough safeguards in place to ensure that defendants are appropriately supported.
Given that there has been some recent press coverage of the online procedure, I reiterate the important point I made earlier: the principle of open justice will be maintained for cases dealt with under this new online procedure. Magistrates’ courts will publish the result of these proceedings in the usual way and, and I said earlier, various measures in the Bill will actually mean that the press get more material here than they would from a traditional format.
Amendment 34 to Clause 9 would prevent the courts having a power to proceed with trial allocation decisions for children who fail to appear at their hearing without an acceptable reason and where it would have been in the interests of justice to progress the case. It is important that all cases, but particularly cases involving children, are progressed as expeditiously as possible, so that interventions to tackle offending are not delayed. This provision recognises that with the increased vulnerability of child defendants there will need to be additional safeguards.
Clause 9(5) creates a new, but clearly defined, set of circumstances that would enable a court to allocate a child’s case in their absence. A point to underline is that these conditions are far more stringent than those prescribed for adults, even though children cannot elect for jury trial.
There are essentially five conditions. The first is that the child has been invited, but failed, to provide an online indication of plea and that, in accordance with Clause 14, the court should, where appropriate, have made sure that the child’s parent or guardian was aware of the written proceedings. The second condition is that the child has then also failed to appear at the subsequent allocation hearing. The third is that the court must be satisfied that the child was served with adequate notice of the hearing or had previously appeared at a hearing and was therefore aware of the proceedings. The fourth condition is that the court does not consider that there is an acceptable reason for the child’s failure to appear. The fifth is that the court must be satisfied that it would not be contrary to the interests of justice to proceed to allocate the case in the child’s absence. There are a number of other existing safeguards—I will not go through them all—for example, when a child is arrested, the law requires that a parent or guardian must be notified as soon as possible. For prosecutions initiated by summons or postal requisition, the notice is also sent to the child’s parents or guardian.
Amendment 35 would add a sunset clause, which would essentially switch off the provisions in Clauses 6 to 9 two years after Royal Assent, unless Parliament passed a resolution to prevent it. I understand that the intention is to ensure that defendants are not disadvantaged, but I suggest it is unnecessary for three reasons.
First, as the Committee will appreciate, magistrates’ courts already have powers to allocate in the defendant’s absence. The online procedures are already used effectively in magistrates’ courts; we are simply extending the circumstances in which these powers can be used. Secondly, these measures do not replace current tried and tested procedures; they offer more options to defendants to save time and reduce the number of unnecessary appearances at court. If a defendant does not want to go online, the proceedings simply default
to the usual court-based proceedings on their allotted hearing date. Thirdly, as I have said, there are safeguards to protect defendants who need protection, particularly children but also others, recognising that we have a distinct youth justice system.
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Like all procedures, these measures will be closely monitored and subject to regular review by the Criminal Procedure Rule Committee. I agree with the noble Lord, Lord Ponsonby, that it is essential that the defendant is fully engaged with all stages of the criminal justice process, and we think these procedures will enable that still to happen.
The noble Baroness, Lady Chakrabarti, spoke to Amendment 36 on magistrates’ court sentencing powers. I have read the briefing from Justice on this and the other measures in the Bill. Amendment 36 would remove Clause 13, which provides a power to vary the limit on the length of sentence that a magistrates’ court may give in the future to either six months’ or 12 months’ imprisonment. This amendment seeks to prevent the extension of magistrates’ court sentencing powers through existing provisions in the Criminal Justice Act 2003 and the Sentencing Act 2020.
The extension of magistrates’ court sentencing powers will enable more cases to be retained in magistrates’ courts, enabling those cases to be heard more quickly. We estimate that this will free up around 1,700 sitting days in the Crown Court each year. Since I was asked, I will say a little more about that. First, we estimate it will move up to 8,000 sentencing hearings from the Crown Court to the magistrates’ court, resulting in a reduction in the Crown Court backlog of about 1,700 cases. Secondly, because those 8,000 cases no longer have to be heard in the Crown Court, it would free up for other work over 1,700 sitting days a year, which, if used for trial work, would provide for an extra 500 jury trials a year. I am conscious that I used the number 1,700 twice in different contexts, but I have checked and that is deliberate and correct. The modelling is based on the number of sentencing hearings that would now be retained in magistrates’ courts, estimated at about an hour each, which amounts to about 1,700 sitting days. That is based on current election and appeal rates. Further detail will be published in the impact assessment when the extension is switched on.
I assure the noble Baroness, Lady Chakrabarti, that nothing here undermines jury trial. We had a separate discussion in the human rights context about the importance of jury trial, and I have made my and the Government’s position clear. Just as I thanked the magistracy, I should also thank all those people who turned up during the pandemic to sit as jurors and the court staff who enabled those trials to take place. They went above and beyond. This jurisdiction was one of the first—perhaps the first—in the world to reinstitute jury trials during the pandemic. We should be proud of that in our criminal justice system, and a lot of people put a lot of work into that to make it happen—court staff, judiciary, jurors and legal professionals.
Clause 13 allows the flexibility to reduce the maximum sentence that may be given by the magistrates’ court back to six months, if it looks like there are adverse impacts. We are not pressing ahead regardless. I listened
carefully to the points made by the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Deben, but let us put this in context. As outlined in the allocation to Crown Court guidance and good practice, magistrates, subject to issues of complexity, can already keep the cases affected by these measures for trial. The extension of sentencing powers will therefore serve primarily to increase the number of cases the magistrates’ court can sentence. Because we are increasing magistrates’ powers only in relation to individual triable either-way offences, tried summarily, there is no change to the maximum penalty available for these offences, just to which court can give sentences between six and 12 months in length.
As to the Secretary of State’s powers to switch it on and off, we believe that it is necessary to take this power to ensure flexibility in the future should significant unsustainable pressures arise as a direct result of extending the sentencing powers of magistrates’ courts. We set out in the delegated powers memorandum that we think it is appropriate to take a power to increase the limit back to 12 months again to allow the benefits of the policy to be maintained if solutions can be found to address any pressures.
The noble Baroness, Lady Chakrabarti, asked about training for the new powers. I assure her that we will revise sentencing guidelines for magistrates’ courts, and magistrates, district judges and legal advisers will also receive additional training. That is, of course, designed by the Judicial College, not by government Ministers, and is rolled out by HMCTS. On the point made by the noble Lord, Lord Marks, about short sentences, the sentencing guidelines continue to apply. We all know what that means: you cannot give a custodial sentence unless there is no other proper option and, even when you give a custodial sentence, you have to suspend it unless an immediate custodial sentence is the only option. Those are the protections built in.
Amendment 36A seeks to require reporting to Parliament every four months on the operation of the increased sentencing powers, including data on the impact on sentencing outcomes and a breakdown of outcomes for those with protected characteristics. There is a drafting point here. Clause 13 does not actually commence the sentencing powers, but provides the power to reduce the limit down to six months or increase it back to 12 again in the future, but that is a drafting point. The two main points here are, first, that the increase in sentencing powers does not change the maximum penalty available for each offence: it is only which court can give a sentence of up to 12 months’ imprisonment. Defendants will also retain the right to elect for trial in the Crown Court. Secondly, we will monitor the impact of the extension. That will be ongoing and regular. So far as data is concerned, and on the point made by the noble Lord, Lord Pannick, we publish quarterly data on custodial sentences and average sentence length in criminal courts and will continue to do so. There is now further relevant data in the public domain, which he may not have had time to pick up yet. In particular, I refer to the cross-criminal justice system scorecards, which are now published each quarter, and criminal justice outcomes data, which is also released quarterly. With that additional data, therefore, on top of the data that we published
historically, we believe it would be disproportionately burdensome to publish the additional data suggested by this amendment.
Finally and briefly, I turn to the proposal that Clauses 8 and 14 should be removed from the Bill. Clause 8 would provide a defendant under 18 years of age with the option of indicating a plea and determining mode of trial in writing online. Clause 14 would require the involvement of a parent or guardian. I have already set out the various safeguards for children, and, where a child chooses to provide an indication of plea online, courts will have to make sure at the first hearing that the child has understood the decision and confirms a written indication of plea before proceeding any further with that case. That is an important safeguard at the very first court hearing. I hope that I have set out why the Government believe the amendments are unnecessary, and I invite noble Lords not to press them.