Criminal Justice and Courts Bill
The Committee consisted of the following Members:
Georgina Holmes-Skelton, Matthew Hamlyn, Committee Clerks
† attended the Committee
‘or that the accused did not understand the documents specified in 16(a)(2).’.
Amendment 45 picks up on what we discussed under amendment 40 in what I hope is a slightly more refined way that is therefore more attractive to the Minister, regarding whether someone needs an explicit waiver. He rejected amendment 40 for what I am positive were financial reasons, so amendment 45 puts the proposal in a milder and more reasonable tone.
Just before lunch, the Minister was refining the process of making a statutory declaration, which is uncontroversial. Clearly, if someone is prepared to swear that they did not receive notice of proceedings, those proceedings should be set aside.
We feel that the Minister should go further than that, but only a little: if notice—a summons or the new documentation under the single justice procedure—was received, but for some reason, which is easily imaginable, the defendant did not understand the papers or what they had to do with them, and is prepared to swear to that by statutory declaration, the same rule should apply. That is why we propose to include in the clause the words,
My hon. Friend the Member for Bolton South East spoke this morning about how legal documents may be intimidating or incomprehensible to even relatively educated lay people who receive them but are not used to receiving them. They have to, in many circumstances, follow a particular form, which may not be a common form, or which might not use language or be set out in a way that is easily understandable. The situation would clearly be worse if that person did not speak English as a first language, or if they had literacy problems. Let us imagine that the person being served with a summons had recently come out of prison and been starved of reading
If a defendant has received papers in the normal way and does not deny that they arrived at the address or had been served on them in some way, but did not understand what they were supposed to do and is prepared to make a statutory declaration to that effect, we say that that any proceedings should be voided, and there should be a rehearing.
The reason why that is important is article 6 of the European convention on human rights, which we mentioned this morning. Article 6 concedes—this is the distinction I drew between that and the draft declaration—that there are circumstances in which the right to attend trial may be waived. However, that must be established unequivocally and be attended by a safeguard commensurate with its importance. It must be shown that the defendant understood what the consequences of waiver would be.
The notice must therefore explain proceedings in clear terms, setting out what the single justice process must do. No doubt the legislation and the regulations made under primary legislation would do that. However, as I said this morning, where advice is unlikely to be available and where documentation may be confusing, it seems entirely reasonable to give a second chance to a defendant who says, “No, I did not understand that I was supposed to send the form back or that I was supposed to attend that particular court on that particular date to make representations or put them in writing.”
The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara): It is good to see you in the Chair again, Mr Crausby. There is no requirement to waive a right to trial in open court explicitly under the European Court of Human Rights. The Court recognises that tacit waiver can be compliant with article 6 if, for example, the accused has simply not sought to engage in the process.
Amendment 45 introduces another condition on which a defendant can make a statutory declaration so that, in addition to being unaware of the proceedings, the defendant can state that they did not understand the information contained in the single justice procedure notice and the accompanying documents. The associated documentation sent to defendants under the single justice procedure will be no more complex than the documentation which is currently sent in this type of case; indeed, we are confident that the flexibility offered by this new procedure will enable us to make the whole system for these cases more easily understood by defendants. Enclosed with the single justice procedure notice, the defendant will receive information explaining the offence which has given rise to the proceedings, the options available to them, and the consequences of not responding to the notice.
As with the existing process, prosecutors have developed strategies to identify those who may require further assistance and Her Majesty’s Courts and Tribunal Service are also considering, as part of the implementation planning, how it will continue to discharge its duty to provide assistance to unrepresented defendants.
It should be remembered that a defendant will have the right to request a traditional hearing in open court at any point before his or her case is considered by the
This amendment and amendments 54, 54A, 55, and 56 make clear that a single justice procedure notice will identify a designated officer for a magistrates’ court (the person responsible for administering the process), rather than a specific magistrates’ court, and that any magistrates’ court may deal with a case started in this way.
Clause 27 deals with the sentencing powers of the single justice. I will not repeat the argument we made this morning that two heads are better than one. I am grateful that the list of sentencing options is quite comprehensive, unlike the list of offences, although it reveals what a raft and range of financial penalties a court can impose. We will have an interesting look at that when we come on to clause 29.
We have singled out the last of the options, which is discharging the accused absolutely or conditionally, and said that it should not be within the remit of the single justice. It is right to say that it is not the only non-financial penalty. The same argument could also apply to proposed new subsections (i) and (j), which refer to disqualification and endorsement offences. Absolute and conditional discharge, however, are singled out because they are different in kind, particularly from all the other financial penalties. Of course, there is an informal hierarchy of penalties in which a discharge would come below—that is, it is considered less severe than—a financial penalty. I would argue, however, that that is not always the case and that a discharge imposed by the court can often be a rather more finessed and complex sentence than a financial penalty.
In other words, the Opposition have no quarrel with a single justice being able to impose the different types of financial penalty, and even the disqualifications are likely to be quite mathematical—there will be a look at the driving record or circumstances, and at the defendant’s means. I think most magistrates would say that they have a ready reckoner for dealing with such matters and, subject to means, that there are some index amounts for separate offences depending on the defendant’s record and other matters.
In my experience, however, there may be exceptional circumstances for imposing a conditional or absolute discharge, perhaps even in cases that would appear to demand a more severe financial penalty. Exceptional circumstances might apply to the offence; the bench might find that there is technical guilt but very little culpability. Exceptional circumstances might apply on the part of the offender. For example, I have seen absolute discharges handed down almost certainly or explicitly so that there will be no repercussions under the Rehabilitation of Offenders Act 1974—that is, there will be no need to declare that particular offence. The court perhaps signals that there is a guilty plea, and that an offence has been committed, but that under all the circumstances, which may be exceptional, it has taken that view.
I simply say that there might be cases—not every case, of course—in which a court decides to impose an absolute or conditional discharge in the exercise of a considerable amount of discretion and where that is made more difficult when only a single justice is sitting. I could perhaps use the issue as a stalking horse in order to open up a wider debate, but I do not intend to do so because we have had a good canter over the terrain relating to where single justices are appropriate. I would like the Minister’s response, however, on how the Government can justify absolute or conditional discharge as a sentencing option to be included within the powers of a single justice.
Mr Vara: Amendment 46 would remove the power to discharge the accused absolutely or conditionally from the list of sentences available to a single justice. As the hon. Gentleman said, in many respects we covered this territory earlier, but the intention behind clause 27 is that only defendants intending to plead guilty would be heard under the single justice process if the change were to have effect—although, of course, a single justice could find someone guilty and still discharge them. We covered similar territory earlier, so for the reasons already given, I hope that the hon. Gentleman will withdraw his amendment.
‘of up to 50 per cent of total’.
‘(c) it being just and reasonable to do so in the opinion of the court’.
‘(3A) An order must not be made—
(a) if in the opinion of the court it may affect a decision on plea;
(b) where enforcement costs are likely to amount to more than the value of the charge;
(c) in relation to any part of the hearing for which the defendant was not responsible;
(d) in relation to any appeal; and
(e) before a written means assessment has been carried out.’.
‘(6) The court must give reasons for either imposing or not imposing court charges.’.
Mr Slaughter: We are making some progress—we have already covered more clauses than we did in the entire morning sitting. We may slow down a little now, but this is an important clause and a substantial group of amendments. I see why they have been grouped, because if there is a common theme here it is the issue of discretion, or some mitigation on what appears, subject to what the Minister says to convince the Committee this afternoon, to be an unnecessarily compulsory and draconian power to impose a court charge which, unlike any other financial penalty save for the victim surcharge—the Minister will correct me if I am wrong—is not at the discretion of the court.
for the words, “in respect of”. In other words, it would limit the amount of the charge. That is a somewhat notional figure, because one does not know, of course, what the figure will actually be, but the intent of the amendment is clearly to say that where a court is levying a charge, it should take into consideration the large
This is new territory in a number of ways. One of these is a purely financial way, which is quantifying the level of the charge. There are all sorts of costs associated with court proceedings which may go far beyond the costs of the people who are present in court or the running costs of the court. Her Majesty’s Courts and Tribunals Service is a large bureaucracy, it is a very expensive service to run and if the sole motivation here is to mitigate those costs by getting losing criminal defendants to pay those costs, the Government ought to be clear about that, take one step back and say that it is not reasonable to expect, as the Government expect on the civil side, for all those costs to be recovered.
I shall say more on that in a moment, but it is pretty self-evident. If one is talking about relatively minor offences and if there is a marginal decision to be made, it may well be that faced with the prospect of paying a substantial sum of money, as happens with parking fines where the doubling or quadrupling of parking fines happens with each challenge, the defendant may well decide that they are cutting off their nose to spite their face by going down that route. But that is the wrong approach. People should not be given any inducement to plead guilty when they may not be guilty.
I have received a parliamentary answer from the Minister today which says that the cost of the national compliance and enforcement service for the financial year 2012-13 was £49 million and that the total value of the debt estimated to be recoverable at 31 March 2013 was £320 million. The missing figure there is how much is due to be recovered. If he could provide me with that figure, I would be pleased to hear it. I have heard figures of £1 billion and £1.5 billion and all sorts of many-noughted figures here. The point is a good one. On the one hand there is the cost of the service. We may say a bit more about that when we reach clause 31. There is the actual debt that remains to be paid and then there is the debt that the Government think is recoverable. That appears to be £320 million. In appearing to be tough and punitive on defendants and in running after money that may not be there, the Government should take account of the balance between enforcement costs and the value of the charge.
That is easy to imagine. Parts of criminal trials often occur as procedural matters. It may relate to faults in the prosecution and cases where, as often happens these days, the prosecution has not got its tackle in order and there are delays to the process. If a trial is adjourned through no fault of the defendant and goes over to another day, will the defendant be expected to bear those costs?
I would not like to see defendants discouraged from appealing. One of the rights retained under the new scheme that we discussed this morning is the full right of appeal. It is one of the strengths of the magistrates court system. It is one of the points of rebuttal to those who say that it is in some ways less accountable than jury trial to say that there is always an automatic full right of appeal. If there is to be a charge and no doubt a more substantial charge on appeal, which the clause allows for—this is even more relevant to subsection (a)—it is likely to put off the defendant who is unsuccessful at first instance. I will not say much about subsection (e) as a separate amendment deals better with the issue of means, which is clearly a crucial point here.
Let me develop the argument a little more. If the Minister says that this is low level or de minimis, I beg to differ as my colleagues and I did this morning. This is another substantial change. This may be apocryphal, in which case I apologise to the Chinese ambassador, but after executions in China the family of the executed person was asked to pay for the bullet. That is the first thing I thought of when I heard that convicted defendants, when they had suffered every other penalty that the court had to offer, would be asked to pay for the costs of their hearing.
Mr Slaughter: The Minister says that that says more about me than it does about the criminal justice system. I use the story as an analogy, because I want him to think carefully about the issue. I want to pray in aid not only the people the Government do not like, such as the civil liberties organisations, but people the Government do like, such as the Magistrates Association, which stated:
“The MA advises the Government in the interest of justice to amend the proposals to allow the court discretion in imposing these fees. The court is in the best position to identify in which cases the ordering of payment of court costs would be inappropriate or unreasonable.”
It is polite, as usual, but I would put it in stronger language. It is slightly insulting to the magistracy to say, “We will decide that you must impose this particular charge.” Why should it not, like many other financial penalties, be a matter of discretion? The Magistrates’ Association
“would presume that in prescribing which cases will be exempted from this set of clauses, the Lord Chancellor would consult closely with...stakeholders. In those cases where the ordering of a court charge payment is appropriate, the MA would suggest a detailed and thorough scoping exercise must take place to ensure the systems in place are sufficient to deal with this additional layer of complexity in imposing fines without damaging the efficiency of case management or compromising the judicial duty to ensure sentences are proportionate in the totality.”
“In general, the MA supports the greater flexibility offered in relation to payment of fines which allows response to changes in an offender’s circumstances. However the MA is concerned that an additional layer of complexity is being added to a system at a time when the Government is planning to contract out the Compliance and Enforcement Service.”
“There already exists a wide judicial discretion for costs orders in the criminal justice system in addition to a range of sentences and other post conviction orders that can impose financial liability. Section 18 of the Prosecution of Offences Act 1985 grants Magistrates and Crown Court judges a discretion to award prosecution costs against a convicted person ‘as it considers just and reasonable’,
“Costs can similarly be awarded where a criminal appeal is dismissed in the Crown Court or Court of Appeal. The Practice Direction on criminal costs orders makes clear that costs should be ordered by the Court under section 18 of the POA only where the ‘court is satisfied that the defendant has the means and ability to pay.’ CPS guidance on costs...states that prosecution applications for costs should not be made if in the circumstances of the individual case ‘it would be unmeritorious or impractical.’ The guidance gives examples of where an application for costs would be inappropriate, including where ‘it will cause undue hardship e.g. where it is clear that the defendant suffers from a serious physical or mental illness’ or where ‘the defendant is in such dire financial circumstances that the Court are likely to consider the award of costs as oppressive.’ It further suggests that where a long sentence or a hospital order is made, a costs award need not be made.”
There is no discretion in the clause. It is a mandatory charge, irrespective of the circumstances of the individual or the nature of the case. I agree with Liberty’s view that it will have an oppressive impact. It will act as a disincentive to a not guilty plea. In effect, pleading not guilty means a longer sentence, which is accepted. It might mean a higher amount of prosecution costs and a higher contribution towards legal aid, and now it also means a higher court charge. For all those reasons, we say this is wrong.
I doubt that we will have a clause stand part debate. I am happy to develop my argument in the context of this first set of amendments because they go to the heart of the clause. If we were to have a clause stand part debate, I would wish to draw two points to the Minister’s attention. First, if the Minister is going to impose an additional penalty, is this the right use of the funds? Secondly, how much money does he think that he will get from this? I would like a cash answer, but it is also a rhetorical question. Will this be worth the candle?
I have read some of the briefs and have heard the evidence of some of the witnesses from prisoners’ organisations. Sadly, ex-convicts often come before the courts again, and whether or not they are ex-convicts, they are people of very limited means. I refer the Minister to the evidence of the Prison Reform Trust and the Howard League. The Criminal Justice Alliance evidence includes these comments:
“The imposition of this new charge is in addition to existing penalties and the court’s powers to require offenders to make payments including compensation for victims, the victim surcharge, prosecution costs and fines. Applying yet another charge to those
This charge is an additional burden for offenders and their families and must be seen in the light of recent benefit cuts. Inability to pay is likely to see offenders brought back before the courts and there is a danger of an escalation in punishment through the addition of this extra charge.”
On all the comparators—employment, cost of living and the likelihood of homelessness, of being in debt and of being the victims of crime themselves—offenders, people who are brought before the courts and convicted, are less likely than the public at large to be able to afford to pay the charge. I am sure that the Minister is aware of those points, but they do not seem to have been taken into consideration, as the proposed charge will be compulsory.
My other point is that I think that the Minister is a bit cheeky in taking this money and applying it to pay the courts of Her Majesty’s Courts and Tribunals Service. The Government have been lobbied for years now, certainly going back as far as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and probably long before then, by the legal professions to levy a charge to mitigate the cuts in legal aid. I do not know if he saw the statement last month from the Criminal Law Solicitors’ Association, which rather irately said:
“For years legal aid defence practitioner groups…have suggested in written responses to various MOJ consultations and in high level meetings that a convicted defendant should contribute towards the cost of their legal aid. We said ‘We calculate that with a conviction rate of about 80%, ie 320,000 cases per annum, this measure would result in an annual saving of approximately £55.5 million. That is a saving of £222 million over a four year period.’ This has been repeatedly rejected by the MOJ as impracticable.
We very much welcome the fact that the MOJ suddenly is converted to the view that a contribution from Defendants is a fine idea but what a pity the amount recovered will not be spent towards relieving the hard pressed legal aid fund as we suggested but instead applied in the costs of running the courts.
The very court system that contrives to make legal aid lawyers and their clients lives a misery with expensive delays and inefficiencies that throwing money at will not cure and which abuses we have identified persistently.
We wonder was there any point of an expensive consultation process with legal aid lawyers on the issue of legal aid expenditure if the new potential income streams we identify are diverted to defray other expenditure. Why do the MOJ still insist that a £220 million cut (always an absurd figure) is required when failing to utilise Defendants potential contributions to their own defence?
Having now decided that such a contribution from the convicted is viable for collection we ask the MOJ to reconsider the application of this money and put it towards the relief of the hard pressed legal aid fund as we suggested. This will help maintain public access to Justice for our citizens in the face of State funded prosecutions.”
I do not share that view, as the Minister will understand. I do not think that he will collect very much money at all. I would be interested in his view on whether £55 million is a realistic figure, or what his alternative figures may be. However, I would be most interested in his observations on two points. Given the crisis in legal aid, why does he believe that it is more appropriate to offset the cost of the courts than to compensate in some part for the swingeing cuts that he is imposing on the criminal legal aid system?
Secondly, the proposal sends out terrible signals. I have seen some very sensible proposals, not just from the CLSA, but from the Bar Council and Law Society, both of which make the same point in their representations that the money should not be diverted to the Government; it should go to the legal aid fund.
How will the Government encourage co-operation? They are asking a lot of the professions. They are asking them to find hundreds of millions of pounds in savings as alternatives to proposals that the professions say are unworkable. The Law Society in particular has worked very closely with the Government and received quite a lot of criticism for doing so. If the Government say at the end of the day, “Thank you very much for your suggestions. We will take them and the money anyway, in addition to the cuts that we have made.” That seems to be a breach of faith and counter-productive in the long run, because the Government will get no further co-operation.
I should like the Minister to say, first, why he has chosen to apply an additional court charge and, secondly, whether the figures are accurate or whether he intends to collect some other sum of money. We were very vague this morning on figures for savings from the single justice process, so I hope that the Minister will be more precise.
“since further charges will be sought if a convicted person pursues an appeal, they may be unduly dissuaded from appealing by the potential costs of doing so. A restriction placed on access to a court or tribunal will not be compatible”—
“with article 6(1) ECHR unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved. Without significant justification beyond costs saving, and with little explanation of the operation of the costs recovery scheme, or any safeguards to protect the integrity of the criminal justice system, we consider the demand for court charges to be unprincipled, unjustified and unnecessary.”
A mandatory charge is certainly unnecessary. I made a comparison with the prosecution charge. I note, as others have, that there is no impact assessment. There are lengthy and detailed impact assessments on many parts of the Bill, but I am not aware that there is an impact assessment on this one. If I am wrong, the Minister will correct me. We like impact assessments because they give us a lot of ammunition. It seems bizarre that there is no impact assessment for the provision, which will impose a new and quite heavy financial penalty. Can we have one at some stage? That would be quite helpful.
I wish to make other points, but I think they can be dealt with under other amendments. I repeat that it would be helpful to get an idea of what the overdue debt is. Is it £2 billion? That includes a lot of money in
If the Bill is passed, the charge will be compulsory. The victim surcharge is a compulsory charge. Why would any reasonable court not look at an offender and decide that he or she cannot afford to pay any more? Why would the court not simply waive prosecution costs, attach a small financial penalty or mitigate in some other way? Either the Government will get a pyrrhic victory by imposing an additional charge that they cannot collect, or the overall sum of money to be paid to the state will be no greater, and the system will simply become more bureaucratic. I will come back to that again, if I may, but I have made a number of points that I hope the Minister will reply to.
Mr Vara: I am happy to try to address the various points made by the hon. Gentleman. I confess that, while little of what he says surprises me, I was surprised today because, until recently, he had managed to avoid using the term “legal aid”. My hope that the whole day might pass without those two words creeping from his lips was, I am afraid, not to be.
Regarding legal aid, the charge that we are talking about here is focused on recovering the cost of courts from offenders. We have an established system to recover criminal legal aid costs incurred in a Crown court that requires convicted defendants to pay back up to the full amount of their costs where they can afford to do so. We have recently taken steps to strengthen that system, including with tougher powers to enforce debts.
I can confirm to the hon. Gentleman that the impact assessment is published on the Bill’s website. He has made a number of points regarding finance, to which I will return later in my comments, and I will provide the figures that he has asked for.
This group of amendments seeks to make a number of significant changes to the way in which the criminal courts charge would operate. We have designed the criminal courts charging scheme in such a way that the circumstances in which the charge is imposed are clear and transparent. The charges are clearly set out and reflect the costs reasonably attributable to each type of case. Offenders will be expected to pay at a rate they can afford. As a result, the scheme is straightforward to understand and explain to those affected by it.
Amendments 98, 100 and 102 to 105 would give the court discretion over whether to impose the criminal courts charge on a convicted adult offender. The court would be expected to decide whether it was just and reasonable to impose the charge and give reasons for its decision.
The UK justice system is one of the finest in the world, and our courts must remain independent and impartial. Providing the court with discretion over whether to impose the charge would risk creating a perception that our judges and magistrates were being given the ability directly to influence the funding of the criminal
With no clear indication of what the court should base its decision on, other than the broad definition of the imposition being “just and reasonable”, it could not be guaranteed that every offender would be treated in the same way. To accept the amendment would therefore create a significant risk of unequal treatment of different offenders, with important financial consequences for individuals.
If the concern is to protect offenders who are poor, or on low incomes, I can provide reassurance that a number of protections are already built into our proposals. When setting the rate of repayment for the charge and other court-ordered financial impositions, the court can take the means of the offender into account. Offenders will be able to apply to pay the charge by instalment and, if necessary, request to vary the rate of repayment subsequently, allowing them to manage their repayments and pay the charge back at a rate that is affordable to them. Further, offenders who play by the rules, who comply with payment terms and do not reoffend will be able to apply to have the charge cancelled after a specified period.
On amendment 99, I cannot understand the rationale behind the hon. Gentleman’s proposal to limit the charge to no more than 50% of the total cost that offenders impose on the courts. It seems to me that the Opposition do not object in principle to offenders paying back the costs that they have imposed on the criminal courts to relieve the burden placed on the hard-working taxpayer. If an offender has committed a crime and imposed a cost on our criminal justice system, it is right that they should be liable to pay back the full amount of costs reasonably attributable to that class of case.
Mr Slaughter: I should like the Minister to address specifically the point that I made about whether the costs imposed would be the overall costs of the courts system, which might be much greater than the individual hearing-day costs. I will put to him a point that was put to me by magistrates. This will put a very high penalty on those guilty of motoring offences, because they tend to be the people who have the means to pay. If the Minister is seriously looking at full costs recovery in criminal proceedings, the only people he is likely to penalise are people of means, who will be predominantly people who are guilty of less serious—what he would call more trivial—offences who are probably already the financial victims of the criminal justice system, at least as they would see it.
is that the criminal courts charge takes into account fixed costs such as the cost of running a court building, IT and administration costs, as well as other costs. It is not practicable to calculate the precise cost of each individual case, so we will set the charges to reflect the costs that are reasonably attributable to any class of case.
The Opposition’s concern may be to protect offenders on low incomes from significantly increased payments towards sums imposed on conviction. I have already
Finally, amendments 111 and 112 would change the circumstances in which the criminal courts charge would be imposed. The proposal to specify that an order to impose the courts charge should not be made if doing so would, in the opinion of the court, affect a decision on the plea is unnecessary. The courts charge will be imposed on all adult offenders convicted of an offence and will therefore come into play only once a verdict has been reached on whether the defendant is guilty or not guilty. So the charge will only be imposed long after the defendant has made a decision about the plea and only if he or she is found guilty.
There is also a proposal that the courts charge must not be imposed where the enforcement costs are likely to amount to more than the value of the charge. Given that the charge will be enforced in the same way as existing financial impositions, we think it unlikely that the costs would exceed the charge. Moreover, it would be impossible for the court to anticipate how much enforcement activity will be required to enforce the amounts being imposed. For those reasons, that component of the amendment is both unnecessary and unworkable.
In addition, amendment 112 would exclude from the courts charge costs associated with any part of the hearing for which the defendant was not responsible. The Government take the view that it is reasonable to expect offenders to contribute to the costs incurred by the courts as a result of their actions. The charge will be imposed only on those convicted of an offence, and there is no logical rationale for charging offenders for the costs of some, but not all, of the proceedings that led to that decision. I remind the hon. Members that the charges will be set up to the cost reasonably attributable to the type of case, rather than being based on a costs calculation on each individual case, which would be time-consuming and impracticable.
Under amendment 112, the courts charge would not be imposed in relation to any appeal. The principle underlying our courts charging proposals is that offenders should be expected to bear some of the costs that have been incurred by the criminal courts as a result of their actions. The Government therefore take the view that it is appropriate to charge offenders a contribution towards the cost of an unsuccessful appeal. However, I should stress that an offender who successfully appeals will not have to pay the charge. The amendment would insert a condition that the courts charge could not be imposed before a written means assessment had been carried out.
We already have systems in place to ensure that the court is provided with information about an offender’s means. The court uses this information when deciding whether and how much to impose for existing financial impositions. In future, the court will also be able to use this information to set the payment rate for the courts charge. Given that offenders will be able to apply to the court or fines officers to vary payment rates, we view the additional requirement proposed by amendment 112 as unnecessary.
The hon. Member for Hammersmith asked a number of questions about costs. Currently, about £50 million is spent on the enforcement of financial impositions each year. We have estimated that the criminal courts charge will cost an additional £20 million to enforce. We have modelled two illustrative sets of charges that are broadly based on the average cost for different types of case. We have used a lower set of charges limited to a maximum of £600 and a higher set of charges limited to maximum of £1,000. Those charges and the limits applied are purely illustrative. Exact levels will be informed by further analysis of the cost of each type of case at the point at which the charge is implemented. We expect the charge to be in the hundreds rather than thousands of pounds. We estimate that the policy has the potential to generate a net income of between £60 million and £85 million a year.
Of the financial impositions imposed in the first quarter of 2012, 58% were paid within 18 months of the imposition. I have given a significant number of the figures for which the hon. Member for Hammersmith has asked.
Mr Slaughter: I am grateful to get some figures, but I am alarmed. If I heard correctly, the cost of enforcement for the new charge is £20 million, compared with the current cost of the national compliance and enforcement service of £49 million. It is expected to collect £60 million to £80 million—
Mr Slaughter: So the figure is about three to four times higher. How does that compare with the sum collected at the moment? How much is collected by the expenditure of £49 million on the national compliance and enforcement service?
Mr Vara: The hon. Gentleman seeks to play with figures to suit his arguments, which so far have been demolished. It seems to me, Mr Crausby, that when you deduct some £20 million from £85 million—even allowing for the fact that the £20 million is at current rates and the £85 million is at 2019-20 rates—there is still a significant gain to the taxpayer. For the reasons I have set out, I urge the hon. Gentleman to withdraw the amendment.
Mr Slaughter: I am not trying to attack the Minister. I am trying to get information. Let us say the figure of £20 million, as opposed to £60 million to £85 million, is correct. I was asking for the figure which compares with £49 million, which is the current collection cost. How much a year is being collected by the expenditure of that £49 million? I would expect it to be proportionately larger because it is an additional charge.
Mr Vara: I am happy to give those figures to the hon. Gentleman. He will appreciate that this is a debate specifically on the criminal courts charge. The figures I have are more in line with that rather than charges and
I think the proposal is a mistake. I very much doubt—I will eat my words if it is the case in a year or two—that the Government will collect £60 million to £85 million with the charge. I say that without having any further figures in front of me—I just think that the figure has been given on a wing and a prayer. The Department has been asked to go and rifle every cupboard and think of every ruse to try and achieve the savings target the Lord Chancellor has adopted. This latest ruse is scraping the bottom of a barrel that has already been fairly comprehensively scraped.
We do not say as a matter of principle that there should be no contribution at all. We have reservations about the fact that the Government’s proposal is a departure that will mean an individual paying for a process that is really part of due process. It is a constitutional requirement. The criminal justice system must function properly, fairly and timeously. That is not the responsibility of those caught up in it—that is the caveat.
Mr Robert Buckland (South Swindon) (Con): I am listening carefully to the claim that the measure is a departure. Would the hon. Gentleman not agree that the welcome introduction of the victim surcharge back in 2007—now amended by the 2012 regulations—was in itself a departure because it introduced a fixed charge as part of the proceedings? If he concedes that principle, are we not arguing about detail rather than principle, as he suggests?
Mr Slaughter: As always, the hon. Gentleman makes an attractive argument, but it leads us down a dangerous path. There were specific reasons for the provision to which he refers—I cannot remember them, but I suspect they had support on both sides of the House. It was part of the process that has gone on under both Governments—it started under the Labour Government —of putting the victim more centre stage in the criminal justice system, as well as being a practical redress. It is seen as a part of the punishment or part of the redress element. That is what it clearly is. The Government’s proposal is a money-raising scheme. I am afraid it is a Ponzi scheme—it is a scheme that looks like it is going to raise a lot of money but is probably not going to raise very much money at all.
Mr Vara: I have two points to make. First, may I correct some figures I gave earlier? They are broadly along the same lines. The net income is in the range of £65 million to £80 million and not £60 million to £85 million as I had indicated. The charge will be enforced in the same way as existing financial penalties. We estimate that that will cost up to £20 million, as I said, in addition to the existing enforcement costs.
My second point—I will be brief by way of intervention—is that the hon. Gentleman says the measure is a money-raising thing, but the aim is to ensure that convicts and criminals take responsibility. They have
Mr Slaughter: All sorts of problems are outlined in our amendments, including the unintended consequences that may arise. We have gone through those and I do not intend to pursue that argument. I said that there was a caveat, not that we would vote against the clause. However, we will vote in favour of amendment 98 on discretion. We could continue, but we have had a fairly good canter around the principle of the charge, whether there will be extra money and what should be done with it. I do not accept the Minister’s argument, but we will not die in a ditch over the imposition of a court charge. However, we are concerned that this is once again government by decree. The Government are telling the courts what to do on an issue that is clearly within their competence and should be within their discretion. On that basis, I shall press amendment 98 to a Division.
‘(1A) A reasonable assessment of the defendant’s finances must be taken before a collection date for any court costs is decided.’.
I shall be brief. The Minister touched on this in his remarks earlier. He said he believes there is provision already for means assessment. It is a reasonable amendment and I ask him to accept it. I was inspired to table it by the hon. Member for South Swindon, who, on Second Reading, asked the Lord Chancellor:
“Will my right hon. Friend ensure that when this streamlined procedure is adopted, pre-hearing consultations take place with defendants about their ability to pay a fine? A proper written means test would enable realistic fines to be imposed, and to be much easier to collect than fines imposed by means of an exercise that would be theoretical without such information.”—[Official Report, 24 February 2014; Vol. 576, c. 55.]
That question was not knocked back by the Lord Chancellor—I think he said he would look at it. The argument against the amendment would be that it would be more bureaucratic, but I suspect that in the long run it will be beneficial. If I am right that the additional voluntary charge will be difficult to collect, the Government
In my earlier remarks, I ran through the sort of criteria that the Prosecution of Offences Act 1985 takes into consideration before a contribution to prosecution costs. I would expect to see the same sort of exercise in the Bill, not as to whether a charge should be made at all, because it may be compulsory, but as to what is a fair and reasonable level. I would then expect some of the other matters the Minister accepts to be taken into account, such as the cost of enforcement and whether part of it should be remitted. Those processes are in place for other types of financial penalty and I hope the Minister assures us that they will be in place in relation to his measure. There is no point in throwing good money after bad or in simply setting up large quantities of irrecoverable debt, which is what the Government seem to be doing. Will he give an undertaking and accept the amendment that there should be full attention to means?
Mr Vara: The intention behind the amendment is understandable. An offender should be able to pay back the court’s charge at a rate that is affordable, given their individual circumstances. However, I am confident that the existing practices and legislation for the enforcement of court-ordered financial impositions, which will be extended to cover the enforcement of the criminal courts charge, serve the purpose the amendment seeks to achieve.
When an individual attends a hearing in the criminal courts, they are asked to provide information about their means. The courts also have the power to order convicted defendants to provide a statement of their assets and other financial circumstances. That information can enable the court to set an appropriate payment rate for the charge based on the offender’s income. The court can do that as part of making what is known as a collection order. It will be possible for the court to order that the full amount of the charge be recovered immediately from offenders who are able to pay. However, when an offender does not have sufficient means to pay at the point of imposition, they will be able to apply to pay by instalment. It is important to note that the onus is on the defendant to provide their means information to the court. If they fail to do so, the court is still ordinarily required to issue a collection order, which will outline payment terms for the charge, as courts do for all current impositions.
When an offender has provided information about their means to the court as requested, the court will be able to decide the payment terms for all impositions, including the courts charge. Even when that information is not available, the offender is able to contact a fines officer to present their means and agree a payment plan. In addition, an offender is able to contact a fines officer to request to vary the rate of payment if their circumstances change and they are no longer able to afford to pay at the rate initially set.
The intention behind the amendment might be to ensure that, when an offender has not provided information about their means, the court is obliged to make further inquiries of that offender. I think that gets the balance wrong. Offenders are given every opportunity to provide
The enforcement process as carried out at the moment is all we need effectively to collect money owed to the court, and to take into consideration an offender’s finances in setting repayment terms for the criminal courts charge. I therefore ask the hon. Gentleman to withdraw his amendment.
Mr Buckland: I am grateful to the hon. Gentleman for referring to the question that I asked, which relates to this and to general issues about enforceability. I hear what the Minister says. He is right to outline the existing powers, but it seems that we need to look at how statutory declarations about earnings are made. With respect, I do not think the amendment can answer that, but the question is probably for another day. That is because, once that is done, sanctions could follow for a mis-declaration. My worry is that we could end up stoking up more unenforceable penalties if we do not cover root and branch and look again at how we obtain the information.
The problem occurs not only in the context of courts, but in child support and in many other areas of public life. I am sure that we all deal with constituents who are frustrated by it constantly. There are certain types of people—those who are self-employed, for example—from whom it is difficult to obtain means statements. However, we should not throw our hands up. We should not say, “Let us levy the fines and get on with it.” There has to be some credibility in the process.
‘(6) Where there is more than one defendant the charge shall be equally divided between defendants.’.
The significance of the amendment is that, particularly given the rather senatorial rhetoric of the Minister about recovering money at all costs, there may be a temptation to double-recover—that is to say, particularly if there are a number of defendants and if it is determined
Earlier I gave all the caveats related to the fact that there may be parts of proceedings or costs of proceedings that are no fault of the defendant, innocent or guilty, but which arise due to the inefficiency of the court or because of genuine legal considerations. It would be troubling if the charge was seen as a cash cow rather than as a way of simply adding penalties to someone who had been found guilty.
I will not press the amendment to a vote, but in responding, perhaps the Minister can tell us what he intends to do where there are multiple defendants in a case. What will he do, for example, if a defendant was a tail-end Charlie and played only a minor part in the case? Will that be taken into consideration when a charge is levied? If a lot of the proceedings did not concern that particular defendant, for one reason or another, however the indictment is set out, are those all points of mitigation when imposing a charge?
Mr Vara: The amendment seeks to divide the payment of criminal court costs between defendants where there are two or more defendants convicted by the courts during a single hearing. It would create unnecessary complexity and result in offenders who have committed identical offences paying different amounts. The Bill, as currently drafted, will mean that each offender will be liable to pay the criminal courts charge. The precise amount of charge will be a matter for secondary legislation. Although the power will exist to charge offenders less when they are convicted at the same time as other offenders, the expectation is that each offender will pay the full amount.
Mr Slaughter: Perhaps the Minister is about to answer this point, but I do not know what is in his brief. Of course there is a point to be made on means, but I am talking about how much an individual defendant bears responsibility for the cost of a hearing. That is what the courts charge is. Is the Minister saying that, irrespective of whether I take up half an hour or three days of a week-long trial, I will pay the same amount? That seems grossly unfair.
Mr Vara: We are trying to have a system that is properly enforceable without being unduly complicated. We feel that this system is the fairest approach. Perhaps there would be a case for the amendment if the scheme being designed related to the precise costs incurred in a particular case, but that is not what we are proposing. Such a scheme would be far more complex and costly to administer. Instead, the proposal is for the court to impose preset charge levels at the conclusion of a case. The fairer approach is for a defendant to be charged for the amount associated with their type of case. There can be a range of factors that result in multiple defendants being tried in the same proceedings. The current provisions will be simpler to operate and simpler for offenders and the public to understand, and they will be fairer. I note what the hon. Gentleman says, but I hope he will withdraw his amendment.
Mr Buckland: I am grateful to the hon. Gentleman for giving way. He is ever-patient. Could not his suggestions set an alarming precedent? When one is co-defending a case, one has to read the same amount of material and evidence. It may turn out that one’s respective client is a tail-end Charlie, but if we start differentiating, my worry is that it could start creeping into the fee system. That would not be a welcome development, bearing in mind that each defendant has to face the same evidence. We surely need to hold on to that equality.
Mr Slaughter: I thought the hon. Gentleman was going to say that counsel’s attitude might be affected by the part they play in the trial, which would be adopting my argument about defendants who might be willing either to plead guilty or not to appeal in order to save themselves money. If we are talking about substantial costs, behaviour will be affected. My view is that the charges should be fair. He is perhaps knowingly pushing the analogy too far, but if he is right that the charges could affect the behaviour of professionals and the way in which the system works, it enhances my point that the Minister’s desperate search for cash might have unintended consequences. I think I heard the Minister say that he will go away and consider the matter. I take comfort from that, whether he said it or not.
The amendment would do what it says on the tin: the courts charge would not apply to young offenders. I do not know whether the Minister is in a generous mood and feels like making a concession, but I think the amendment is sensible. I read out some statistics earlier, and I now have some more. A third of people in prison do not have a bank account, more than half have been rejected for a loan and prisoners are 10 times more likely to have borrowed from a loan shark, in addition to all the indices on debt and homelessness. That is true for the offender population generally. I do not have figures for under-21s, but I suspect I can say without fear of contradiction that the statistics are more severe. Young people caught up in the criminal justice system are disproportionately likely to come from care, broken homes or poor homes. They are very unlikely to be in a good position. We used the phrase “whistling in the wind” earlier, and it is even truer in this case. The youth court, or even adult courts when considering younger people, will take everything about the young person into consideration. Having to consider a compulsory charge on top of everything else seems unnecessary. For those practical and social reasons, I suggest that the Minister accepts the amendment.
Mr Vara: The amendment would have the effect of changing the definition of prison for the purposes of remitting the criminal courts charge. Under the amendment, offenders aged 18, 19, 20 and 21 would be
The effect would be to start the clock for the limited payment period for the charge earlier. That would mean that offenders under the age of 22 could potentially have their charge cancelled sooner than offenders aged 22 and over, who are serving time in prison or a detention centre. The intention behind the hon. Gentleman’s amendment appears to be to exempt offenders aged up to 21 from having to pay the criminal courts charge where they are given custodial sentences. Whatever the case, acceptance of the amendment tabled and any amendment intended to have the effect I have just outlined would create an over-complex system for the remission of the criminal courts charge.
I am not convinced that it is right to make it easier for young adult offenders who commit a serious crime resulting in a custodial sentence not to pay the charge. Such offenders would be released from custody to find that the repayment period for the charge had expired, while those who commit a crime with no custodial sentence would be required to pay back the charge once convicted. It could be that the hon. Members are concerned about the rehabilitation of such offenders. I agree that that is an important issue. Indeed, it is one that is reflected in the criteria for remission of the charge. If, after a certain period of time, the individual owing the charge has complied with the payment and desisted from reoffending, the court will be able to cancel the outstanding balance of debt.
The Government are alive to the complex and varied needs of young adult offenders. However, it makes sense that adults are required to pay back the cost that they impose on society. The criminal courts charge and the period for its repayment will be applied to all convicted adult offenders equally. I ask the hon. Gentleman to withdraw his amendment.
Mr Slaughter: The amendment is straightforward; I will speak briefly to it. I said at the beginning—I do not know whether the Minister accepted it—that this process is a departure from current practice. He is clearly wedded to it. He spoke strongly in favour of convicted criminals paying for the costs of their trial. Nevertheless, the provision for review shows that the Government are at least willing to look again at the effect of the process. My query is not whether they do that—obviously, they should—but whether they should do it sooner than after three years. If what we have said today is true, it will become clear sooner rather than later. If the Minister is not persuaded by 12 months, I would be interested to know why he has chosen three years.
I note that the changes will be made by regulation. I am not sure whether that is right either, when one is making these pretty fundamental changes to the criminal justice system, which we believe will have unintended consequences. I assume that they will be subject to affirmative procedure, as per subsection (6). We can live with that, but the time allowed is too long. The Minister may want to consider either justifying the three-year period, agreeing with us or suggesting some compromise.
At present, clause 30 will require the Lord Chancellor to carry out a review of the operation of the criminal courts charge three years after the provisions come into force. Amendment 108 would significantly reduce the period after which there would be a review, from three years to 12 months. The Government are confident that careful implementation planning will enable the policy to be successfully delivered. However, we recognise that the introduction of the charge is new and untested. The duty to review is therefore important, as it gives the Government an opportunity to determine whether the provisions are having the desired effect and providing value for money as anticipated. If the charge is not working as anticipated, there is a mechanism to repeal the provisions.
The intention is that the review will consider a number of aspects of how the policy is operating in practice, including an assessment of the costs of enforcement and the direct income arising from the policy. For these considerations to be robust and reliable, the review must be after a period that will allow the criminal courts charging provisions to bed in and produce reliable results that can usefully inform the Lord Chancellor’s decision. This will simply not be possible if the review is carried out after 12 months. At that point, it will not be possible to assess the cash income from the policy.
For offenders to be liable for the charge, their offence must have been committed after the policy has been implemented, and subsequently they must have been tried, convicted and paid off any other financial impositions before paying their criminal courts charge. The cash income is therefore expected to build gradually, and to analyse whether it comfortably exceeds the costs of enforcement, a three-year period is required. The simple question for the Committee is whether we want an evidence-based review or one based on incomplete evidence and guesswork. I have no hesitation in concluding that it must be an evidence-based review.
Amendment 109 relates to the mechanism for the repeal of the criminal courts charge in response to the review of the charge. The Bill will create a duty on the Lord Chancellor, if appropriate, to repeal by regulations after a review. There is a related power to deal with consequential and transitional matters in those regulations. This amendment would oblige the Lord Chancellor to make such consequential and transitional provisions. It is important that we consider in any repeal process the consequential and transitional issues of doing so. We might, for instance, need to consider whether offenders who have already had a charge imposed continue to make payments, or the case of someone whose proceedings have started but not finished at the point that the charge is repealed. That is a complex exercise, and I can assure hon. Members that any Government exercising the repeal power would consider these issues carefully.
I am not convinced, however, that we need a duty to create such consequential and transitional provisions. Sometimes, after careful consideration of the issues, it turns out that no such provision is needed. The general legal position or the Interpretation Act 1978 might already supply all the answers. If so, a duty to create unnecessary provisions seems wholly wrong. Hon. Members might be more concerned with the duty to repeal rather than the duty to make consequential provision. All I can do here is to point them to the wording used in subsection (3), which says that the Lord Chancellor “must”—not “may”—make regulations to repeal the criminal courts charge. So if the Lord Chancellor concludes that it is appropriate to repeal after having carried out a review, he is under a duty to do so. I cannot see what further reassurance hon. Members want. For those reasons, I urge the hon. Gentleman to withdraw the amendment.
Mr Slaughter: I am broadly satisfied with what the Minister has said. I predict that once the charge is on the statute book, it will probably stay there because Governments are reluctant to forgo income, but I suspect that it will become a discretionary matter in due course. I shall leave it there for today. I beg to ask leave to withdraw the amendment.
‘(7) The power to vary orders under this paragraph may only be exercised by an officer of court directly employed by HMCTS.’.
In addition to related provisions, the amendment would remove all doubt that the function of collecting fines under the clause must be carried out by directly employed staff of Her Majesty’s Courts and Tribunals Service for two reasons. First, we are unimpressed by the Government’s attempts so far to privatise the collection machinery, now going into overdrive. We note the relatively
“Clause 31 allows an offender to apply to a fine office for the payment or reserve terms of a collection order to be varied. PCS notes with concern that the Ministry of Justice is currently considering bids for the outsourcing of the collection and enforcement of fines, costs and compensation. The implications of this are very concerning. This could mean officers exercising the power to vary orders of the court will be the employees of a private company”—
A theme of part 3 is what we might call subsidiarity, for want of a better word—pushing things down to lower levels, to save costs or for proper, functional reasons. In the past, that has meant judicial decisions being pushed out, in an administrative way—something of which the Government are now critical. It now involves the exercise of substantial discretion by court staff. We do not oppose that per se, and we want an effective fines collection service, doing better than it does now, but we are concerned about outsourcing per se and outsourcing to the usual suspects.
We do not need to go over that ground again, because we did so last week. Several members of the Committee made heartfelt speeches expressing concern that we are now dealing not only with organisations that have failed—as Capita, for example, did on the interpretation and translation service—but with organisations that have failed deliberately and have deliberately withheld or extorted money, as happened with tagging and other contracts.
At least until such time as organisations that can be trusted carry out the functions, they should not be entrusted with the responsibility required under clause 31, which will have an impact not only on the judicial system but, as the Minister has quite properly said, on the difficult process of organising the collection of substantial sums of money. If we go to all the trouble of means-testing, of making proper assessments, of working through complex rubrics of what is charged for which part of the offence or what goes to which department and we hand over the administration and collection of that money to people who are not up to the job, that clearly is wholly self-defeating. So I hope—probably more hope than expect—the Minister to agree with me on the amendment.
The amendment would prevent the power to vary an offender’s rate of repayment being exercised by anyone other than an officer of court directly employed by HMCTS. Fines officers already have the power to vary repayment rates for existing financial impositions prior to default. The changes in clause 31 will simply extend
HMCTS has commenced a procurement process to identify an external provider for the future delivery of compliance and enforcement activity for criminal financial impositions. That will improve efficiency and the collection of financial impositions, as well as reduce the cost of the current service. There is nothing inappropriate about an external provider’s performing the powers used by fines officers to vary collection rates. A court will impose obligations to make payments, such as fines, compensation or, in future, the criminal courts charge. Fines officers will merely apply collection measures to satisfy that obligation, which is effective case management.
Moreover, it is firmly in the interests of offenders to empower the fines officer, whether that function is performed by direct employees of HMCTS or by an external provider, to vary the rate of repayment if appropriate in the circumstances. That will give crucial flexibility to adjust payment rates—for example, where an offender’s circumstances have changed, so enabling offenders to pay at a rate they can afford. If an external provider is prevented from exercising these important powers to vary offenders’ payment rates, the alternative will be for offenders to return to court to seek a variation, so incurring additional court costs, or to face the consequences of defaulting on payment, which might include the use of bailiffs.
The amendment may be motivated by a desire to afford sufficient protection to offenders—for example, to ensure that they cannot be required to pay at a rate they cannot afford. I reassure the Committee that the scheme, as amended by the Bill, will have safeguards in place to protect offenders. It will only be possible to vary the payment rate in a way that is less favourable to offenders with their consent; otherwise, the only variations allowed will be on terms more favourable to offenders. In addition, decisions on the variation of payment rates will continue to be appealable to magistrates courts, as they are at present.
The additional powers to vary payment rates under clause 31 will increase the likelihood of recovering a greater proportion of the debt owed by offenders, thereby reducing the burden on the taxpayer of the costs of running the criminal courts. For the reasons outlined, I ask the hon. Gentleman to withdraw his amendment.
Mr Slaughter: I repeat that we think it the height of folly to give sensitive, difficult and at least quasi-judicial functions to organisations that cannot be relied upon to perform relatively simple mechanical and manual tasks. But the Government have got into bed with these organisations, which will no doubt stay there until such time as someone else kicks them out. I beg to ask leave to withdraw the amendment.
‘(3A) Where the “alternative conditions” are satisfied, any party may apply to the Supreme Court for a certificate enabling an appeal to be made directly to the Supreme Court.
(3B) The “alternative conditions” are that a point of law of general public importance is involved in the decision and that—
(a) the proceedings entail a decision relating to a matter of national importance or consideration of such a matter;
(b) the result of the proceedings is so significant (whether considered on its own or together with other proceedings or likely proceedings) that, a hearing by the Supreme Court is justified; and
(c) the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal.’.
Mr Slaughter: This is interesting stuff. We are not opposed in principle to these provisions, save in one respect, which is the ability to leapfrog in Special Immigration Appeals Commission cases. However, we have some reservations about the extent to which the Government are pressing ahead. Leapfrog appeals are not new, but the Government seek to relax substantially the circumstances in which they can take place.
We have concerns about the use the term “national importance”, which I will come to in a moment. In any event, this should be a matter for the Supreme Court to consider. Amendment 116 would allow that to happen more clearly. In other amendments, we seek to narrow some of the criteria for leapfrogging—in particular, on consent.
I am grateful—as I am sure other members of the Committee are—for the briefing provided by Justice and by the Immigration Law Practitioners Association, which has a clear interest in both the tribunal side and the SIAC side. The suspicion is that the extent to which leapfrog appeals are being enhanced is motivated by certain specific cases that have troubled the Government—one might say HS2, or Abu Qatada. I am a great fan of HS2 but not of Abu Qatada, so it is not the result of those cases—
Mr Slaughter: We now find out that the Minister is not a great fan of HS2. We can talk about that outside. I gave those examples to reinforce the point that hard cases make bad law. The Government are reacting to a small handful of cases and saying, “We have to deal with these in a more summary fashion.” There is nothing wrong with the principle of leapfrog appeals or in cutting out stages. There is certainly nothing wrong with speeding up processes that are often too long.
“The Bill proposes to amend the current procedure which applies to leapfrog appeals to expand the circumstances when they will be available, to include cases where the first instance court considers that a case is one of ‘national importance’ and so significant that early consideration by the Supreme Court outweighs the benefits of consideration by the Court of Appeal. The second group of amendments would require an application to be made to the Supreme Court to approve of the use of the leapfrog procedure in these cases. It would also make the criteria proposed cumulative. The current approach in the Bill is modelled on the existing procedure for leapfrog. However, this test will provide for a much expanded set circumstances, more subjectively determined, when a curtailed provision for appeal is deemed appropriate. That the test hinges on a lower court’s assessment of national importance (determined most likely after hearing argument from a Government department or public agency) must be considered carefully.
While the Supreme Court will retain the power to refuse to hear an appeal and a route back to the Court of Appeal is maintained and a route back to the Court of Appeal is maintained, we are concerned that, in these cases, referral will put significant pressure on the Supreme Court to add cases assessed as ‘nationally important’ to its docket. The claims are, by their nature, likely to be subject to a high level of public scrutiny. Whether a route back to the Court of Appeal will realistically remain open in these circumstances is as yet untested. Parliamentarians should ask the Minister”—
“to explain why the existing model for the management of leapfrog appeals is appropriate for the consideration of a much expanded group of cases when the existing requirement for the parties’ consent is removed.”
“the Supreme Court has limited time and resources and must remain in control of its own listings, in order to ensure the fair management of its time and the prompt consideration of the most pressing issues for determination, whether according to the individual impact of an issue or the constitutional significance of any case.”
Also, there is a refining process. The Court of Appeal and the Supreme Court have different functions in the appellate process. Often the Court of Appeal process will define and refine the issues in a way that then makes the job of the Supreme Court not just easier but more pertinent. That is quite likely to be lost under this process.
“The clauses do not require the consent of the parties and clause 32 amends the Administration of Justice Act 1969 so that the need for the consent of the parties will be dispensed with in all cases…The parties are giving up a hearing before a court and should not be forced to do this. There are plenty of incentives for the parties to consent, including cost, speed and ensuring that the case is heard by the Supreme Court. Of particular concern would be cases where one party consents and the other does not.”
That was my earlier point. At the moment, the consent of both parties is needed. This process could, in theory, go ahead with the consent of neither party. However, if one party consents, it is overwhelmingly likely that it
This process will involve the Supreme Court in a lot of preliminary work that is better done elsewhere. We may just be creating a logjam at a different point in the process. Consequently, the Supreme Court should be given more discretion in relation to what cases it takes. Secondly, this provision reminds me of some of the language used in the Justice and Security Act 2013. The point about “national importance” is quite capable of being hijacked, not for political motives, but in a political case where the Government simply wished, perhaps under pressure from the press or members of their own party, to press on with a case when legal consideration said that that should not happen.
I caution the Minister on rushing headlong into this process. I commend our amendment to the Committee. I will not press it to a vote. It is another one of those issues that I would like the Government to respond to today, as far as they are able to, and to look at again. We are not dealing with a huge number of cases. We are talking about the highest court in the land, a court whose time is precious and whose role is specialised. There is a danger that either too many cases will end up there, because of determinations made by a court of first instance, or that the wrong type of cases will end up there, because of the “national importance” criterion in the Bill. I will not detain the Committee further, but those points are made at greater length in some of the briefings we have had. I am sure that those were shared with the Minister and his officials. I ask the Minister to say whether he can agree with our amendment today.
Mr Vara: First, may I clarify for the record and the Official Report that my comments from a sedentary position referred only to Abu Qatada? It is not for the Committee to comment on High Speed 2. I would not want anyone to take anything out of context; I make no comment on HS2. That is not something for the Ministry of Justice to comment on in relation to criminal justice and courts. Having clarified the position, I return to the topic at hand.
Clauses 32 to 35 widen the scope for appeals from the High Court to be made directly to the Supreme Court, missing out the Court of Appeal. These are known as leapfrog appeals. The Government intend to allow a wider range of cases to leapfrog, to ensure that cases destined for the Supreme Court get there more quickly. To achieve this, clause 32 expands the circumstances in which a leapfrog can take place and removes the requirement for all parties to consent, which is essentially a veto on leapfrogging.
The Government consider that in a small number of important cases that cannot currently leapfrog, it is clear that leave to appeal to the Supreme Court will ultimately be sought, because the cases raise issues that are so difficult and important that they are very unlikely to be resolved below the highest level. These cases may take many years to resolve, as they move step by step through the court hierarchy. Those delays add to costs for all sides, and can damage public confidence in the effectiveness of the justice system. I believe that such cases should be determined more quickly and with fewer intermediate steps.
Clause 32 consequently amends section 12 of the 1969 Act to widen the circumstances in which a leapfrog appeal can take place. It would allow a case to leapfrog in three circumstances: first, if it raises issues of national importance; secondly, where the result of the case is of particular significance; and thirdly, when the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal. Under the expanded criteria, it would still be necessary for the appeal to be on a point of law of general public importance, as the case would not otherwise be one for the Supreme Court at all. Consideration must also be given to the nature and implications of the case. Such cases could relate to a nationally significant infrastructure project, to the deportation of a person who is a risk to national security, or to a significant intellectual property issue with huge implications for business.
Mr Slaughter: The Minister has put it much better than I could, but can he not see that the phrase “national importance” puts undue pressure on the courts, including the Supreme Court, to follow a political direction?
Mr Vara: One of the greatest elements of our country is the historical tradition of an independent judiciary. In my dealings with the judiciary in the relatively short time in which I have been a Minister, one thing of which I have been convinced is that they are an independent group of individuals. They will continue to be so, and will do what they feel is right as prescribed by the law. They will not take any leanings of a political nature.
Mr Slaughter: The Minister misunderstands me. Perhaps I used an ambiguous phrase in “political direction”. I did not mean that the Court would behave in a political way, but that it may have to take cases because there is a political imperative on the Government to push those cases towards the Court. It is not a question of what the Court then decides, but a question of whether the Court takes the case in the first place.
Clauses 33 to 35 will extend, as I said, the possibility of leapfrogging to decisions of the upper tribunal, Employment Appeal Tribunal and Special Immigration Appeals Commission. We would not expect leapfrogging to become the norm, and it should be used only in cases of major importance that would clearly reach the Supreme
In the key cases I described, it may be that one party has an interest in seeking delay. That party would be unlikely to give their consent to a leapfrog, even if a swift resolution was in the wider public interest. That is why it is important to remove the requirement for the consent of all parties before a case can leapfrog. The measures will prevent one party from exercising a veto on an appropriate case being expedited, but the court would still be able to take into account the views of the parties.
Our clauses retain the current approach, in which both the judge at first instance and the Supreme Court must consent to an application before a leapfrog can occur. In the Government’s view, the judge at first instance has an important role in this process, and that point was supported by the senior judiciary in their response to the consultation. Amendments 115 to 117 would remove the possibility of the judge at first instance granting a certificate stating that an appeal was appropriate for leapfrog where leapfrog would take place under the new, wider circumstances.
The Government cannot support such a change for the reasons I have given, and because we fear that it might have the unintended effect of the Supreme Court facing an extra burden, not of leapfrog appeals, but of applications to leapfrog requiring oral argument. The Government’s view is that the approach set out in clauses 32 to 35 provides a balanced and sensible new approach to leapfrogging, with adequate safeguards built in. I ask the hon. Gentleman to withdraw his amendment.
Mr Slaughter: I have set out my concerns, but I do not think that they have been addressed by the Minister. We will set out more of our concerns in the next group of amendments. For the moment, I am content to beg to ask leave to withdraw the amendment.
‘(5) In section 15 (cases excluded from section 12) after subsection (4), insert—
(5) No certificate shall be granted under section 12 of this Act in any case where a declaration pursuant to section 6 of the Justice and Security Act 2013 (c. 18) has been made.
(6) No certificate shall be granted under section 12 of this Act without the consent of one or more parties unless by decision of the Supreme Court following an oral hearing.
(7) No certificate shall be granted under section 12 of this Act where one or more of the parties is unrepresented.”.’.
‘(5) No certificate shall be granted under section 12 of this Act in any case where a declaration pursuant to section 6 of the Justice and Security Act 2013 (c. 18) has been made.’.
‘(5) No certificate shall be granted under section 12 of this Act in any proceedings where closed material proceedings under Rule 54 of the Employment Tribunals Rules of Procedure pursuant to Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (S.I 2004/1861) have been used.’.
Mr Slaughter: I think I can deal with our further points in this debate. I give notice that I do not intend to press the amendment to a vote. We want to make clear our position in relation to appeals under the Justice and Security Act 2013. I will not speak to the amendment at great length, but we will want to vote on clause 35.
We set out in amendment 118 three exceptions, or cases in which leapfrog appeals cannot be allowed. We have already dealt with the issue of consent, notwithstanding what the Minister said in relation to that. I have already made the point that there are substantial incentives and inducements for both clients and practitioners to adopt a leapfrog process, where that is suitable. It is where there is an inequality of arms—where one party is allowed to force the other into the process—that it might be unsuitable. An example would be where, given the restrictions on legal aid—it is almost an hour since I mentioned that—arguments cannot be fully presented; one party does not have the same benefit, or strength of arms, as the other. In those circumstances, it may be unsuitable for a case to be leapfrogged before arguments have been properly developed. That is essentially the criterion in relation to representation.
It is increasingly common, even in serious cases, for one party—sometimes both, but I suspect in these cases it is the non-Government party—to be unrepresented. It really is pushing it to say that a litigant in person is able fully to explore the arguments and should, after a first instant decision, have the ability to go straight to the Supreme Court. The Court of Appeal is actually quite experienced in dealing with litigants in person—whether it should be is another matter—and with providing that refining process.
We have mentioned section 6 of the Justice and Security Act 2013 in relation to clauses 32 to 34; it relates to clause 35, too. The amendment would prevent leapfrogging in any case where a court or a tribunal had used the closed material procedure authorised under specific statutory frameworks, or under the 2013 Act. The Government clearly intend the procedure to be available in those cases, but there is concern that removing consideration by the Court of Appeal would inadvertently expand the number of claims subject to the closed material procedure that the Supreme Court is invited to consider. Supreme Court justices have expressed concerns about the use of the procedure. The ability of the Court of Appeal to narrow down a legal issue that requires determination by the Supreme Court is arguably crucial to minimising the number of closed judgments that the Supreme Court is required to make.
I am sure that the Minister is familiar with the judgment and what happened in the case of Bank Mellat; very reluctantly, the Supreme Court determined, I think for the first time, that it should sit in secret, but it decided, having heard the evidence, that that had not been a necessary step to take. It was quite clear from the judgment in that case that the step is severely disapproved of by the Supreme Court, and that it, above all other courts, should maintain the principle of open justice.
I do not intend to rerun arguments from the Justice and Security Bill; we are where we are on that. Partly because of the nature and circumstances of the cases that we are talking about, and because of the inevitable restrictions on one party in presenting its case, inevitably there cannot be a level playing field. The Government concede this, and conceded it in proceedings on the Justice and Security Bill; they just argued the balance differently from us. Under the proposal, there would not be the ability for both sides to develop their arguments in the same way. That point was made clearly, as one would expect, not only in the briefing from Justice, but by the Immigration Law Practitioners Association—very senior practitioners who have experience of all these types of cases.
Given the time, I will not repeat the arguments. For reasons that I have given relating to the inequality of arms point—that is, where one party is unrepresented, one party is pushing for the leapfrog and the other is disinclined, or one party is hampered by the closed material procedure—there should be specific exceptions to the carte blanche that the Bill gives to leapfrog appeals.
Mr Vara: As we have just discussed, clauses 32 to 35 give effect to the Government’s intention of allowing a wider range of cases to leapfrog in order to ensure that cases destined for the Supreme Court get there more quickly by missing out the Court of Appeal.
Proposed new subsection (5) would preclude leapfrogging where a declaration was made by a court that the closed material procedure could be used in the proceedings, pursuant to section 6 of the Justice and Security Act 2013. Amendments 119 and 120 are probably intended to extend an equivalent limitation to the upper tribunal and employment tribunal respectively, though they would not achieve that intention as currently drafted. The Government’s view is that the exclusion would be harmful. Cases in which sensitive material is at issue to the extent that they result in the use of the closed material procedure can be extremely important, and should not be precluded from leapfrogging simply on the basis that such material is or has been at issue. The requirement for the consent of both the judge at first instance and the Supreme Court is, in the Government’s view, a sufficient safeguard against misuse.
Proposed new subsection (7) would preclude leapfrogging in any circumstances where one or more of the parties is unrepresented. That would, in the Government’s view, be unworkable. It would, for example, seem to allow one defendant among many to defeat a leapfrogging application simply by terminating their relationship with their legal advisers temporarily, or where they are fully qualified lawyers representing themselves. I ask the hon. Gentleman to withdraw his amendment.
Mr Slaughter: For the reasons previously given, the Opposition believe that the clause should not stand part of the Bill, at least until the Government have justified why, given the particular circumstances relating to SIAC appeals, the new rules on leapfrogging should apply.
I think that we have reached a low point in the Bill Committee for two reasons. First, the hon. Member for Cambridge made a fleeting appearance to vote in support of secret courts again, which I thought I had seen enough of—[ Interruption. ]. I will tell him when he graces us with his presence again. Secondly, we now come on to a clause that I cannot see the point of.
At the moment courts have, quite properly, discretion in relation to wasted costs. If they cannot have discretion on that, one has to ask where do they have discretion. What is the clause’s effect? Is it simply to restate that discretion, or to give the courts a nudge towards something that otherwise they might not do, or to give them a strong recommendation on not just making an order for costs, but reporting the offending party to the regulator or the director of Legal Aid Agency? I ask the Minister to explain which of those the clause intends to do, and then to explain the purpose or point of the clause. At the moment, we cannot see any reason for supporting it at all.
Mr Vara: The clause forms part of the wider judicial review measures in part 4 of the Bill, which, among other things, intend to address the pursuit of weak cases that overburden public services and delay the progression of meritorious judicial reviews. The amendment would afford the court discretion to decide whether to notify the regulators or the Legal Aid Agency where it considers it appropriate to do so. The proposed amendment is unnecessary as the clause already gives the court discretion on whether it notifies the regulator and/or the Legal Aid Agency. I hope that the Opposition Members can be reassured, so let me briefly explain.
Wasted costs orders make a legal representative personally liable for costs of litigation incurred as a result of their improper, unreasonable or negligent behaviour. Despite such conduct amounting to a breach of duty to the court, there are currently no further formal consequences for the legal representative at fault. The Government’s view is that the implications of receiving a wasted costs order should be strengthened so that legal representatives are encouraged to consider more carefully the decisions they make both in handling claims and in deciding whether to pursue a case.
To be clear, the duty introduced by clause 36 requires the courts, where appropriate, to notify the relevant bodies when a wasted costs order is made. That mandatory requirement—the “must”—goes no further than requiring the courts to notify when they consider it appropriate. The discretion the amendment seeks to introduce is already in the clause as drafted. The question of whether it is appropriate to make such a notification will remain a matter for the court to determine, based on the facts of a case.
The Government are clear that the courts should consider making a notification in all cases in which a wasted costs order is made. We are also clear that it would not be proportionate to require automatic notifications and fully agree that whether or not a notification should be made is a matter for the courts to consider, based on the facts. Clause 36 has been drafted to achieve this and I ask the hon. Gentleman to withdraw his amendment.
does to change the status quo. I am not sure whether this does a great deal of damage, other than perhaps being slightly confusing. With all due respect to the Minister, his explanation did not make me any the wiser. I suppose we ought to vote against the clause for the sake of clear and concise legislation, but I shall not press it to a vote in order to make some progress. I beg to ask leave to withdraw the amendment.
This is quite a nice point, which I have taken from the Newspaper Society. I referred briefly to the society this morning, and it developed the point at length. I will not develop it at length, but clauses 38 and 39—which have our general support—arise from the clear and acknowledged problem of how the law of strict liability and contempt can be adapted to the age of social media and the internet. Both the Attorney-General and the Law Commission have investigated the issue and come up with a practical and relatively elegant solution. Before proceedings are active, the rules will effectively be remain the same, but after proceedings become active a notice would be served on publishers or distributors by the Attorney-General, and because of the much wider availability of written material, publication could then constitute a contempt. That is a reasonably sensible approach.
“From the point of principle, it is a potentially dangerous step for the Attorney General (a member of the Government of the day) to be given the statutory power to dispense notices to anyone—editor, publisher of newspapers, magazines, books or other material in any media, broadcaster, website owner, library, individual—suggesting that lawfully published archive material be removed from public view as a forerunner to court injunction and threat of contempt proceedings, with the service of that notice then removing a defence that would otherwise be available to the recipient if the server of the notice, the AG, chooses to bring contempt proceedings. It appears that it is the service and receipt of the notice, not the validity of the AG’s legal opinion as to contempt, that would actually deprive any or all recipients of any Defence”.
It therefore suggests, and I have drafted, a change that would remove the Attorney-General’s notice from the process. This is a probing amendment, and we do not disagree with the drafting of the clause, but I would like to hear the Minister’s response to those genuine concerns raised by the media. Does he think the amendment would address those concerns?
Mr Vara: The Government cannot agree to the amendment. Our proposals aim to strike a balance between the freedom to publish and a defendant’s right to a fair trial. Clause 37 protects the rights of publishers by ensuring that they do not have to monitor online archives constantly to check whether they contain material that may prejudice a trial that has started since the material was published.
A system is also needed, however, so that material that may prejudice a trial can be removed from the internet or elsewhere. To that end, clause 37 also creates a notice procedure that enables publishers and distributors to be made aware of seriously prejudicial material and to give them an opportunity to remove it so as to avoid proceedings for contempt of court.
Removing the notice procedure would mean that if potentially prejudicial material was available before court proceedings, and remained available after those proceedings began, the publisher or distributor would have a complete defence against contempt of court. It is vital that defendants should be tried by the courts, not by the media. The amendment would result in prejudicial material remaining available, which could increase the risk of an unfair trial. There would be no ability to bring contempt of court proceedings against a publisher. We do not believe that would achieve the right balance between rights. I therefore urge the hon. Gentleman to withdraw his amendment.
Mr Vara: Very simply, it is important to have a balance, and that balance is ultimately decided by the Government Law Officer. We are not trying to take sides in any way; we are trying to see that justice prevails, whether it is a small publisher or a big publisher.
Mr Slaughter: The logic of the Government’s position is that the age should rise with increasing longevity and improved health, and so on. I will not press the amendment to a vote and I am not saying that anybody of any age should be eligible, because that would create certain problems of its own, in terms of mental and physical health. I am asking why 75 is the cut-off and positing the view that this has more to do with saving money than with enfranchising, in the sense of jury service, those aged between 70 and 75.
I put it to the Minister—it is not in my amendment because of financial privilege—that if he is raising money, there will of course be a benefit to the economy generally, as acknowledged in the impact assessment, because there will be fewer people of working age, proportionately, on juries and they will be in productive work. I accept that. But there will also be a saving to the Government, because, on the whole, they will not be paying for loss of earnings to people over 70 who are sitting on juries. I think that that saving would be a significant sum of about £1 million a year. As the Government are looking around for money—they are particularly looking for money for Her Majesty’s Courts & Tribunals Service, because that is why we have the courts charge—so why not say that the money saved will benefit that service?
Mr Vara: I note that this is a probing amendment and hope that the hon. Gentleman is not being unfair to those who may be beyond the present jury age but are active and fit and well able to serve as jurors.
The Government are increasing the age limit to make juries more representative of the adult population and to ensure that juries benefit from the experience and knowledge of those aged 70 to 75. Amendments 125 and 126 would abolish the upper age limit of jurors entirely. I disagree with the amendment, as the Government’s view is that, over the age of 75, an increasing proportion of people would find it difficult to sit as jurors and would therefore be more likely to seek to be excused jury service. Rather than put them through the process of applying for excusal, and spend taxpayers’ money dealing with that additional administrative burden, it is right to set the age limit at 75.
According to the latest figures published by the Office for National Statistics, the healthy life expectancy of both men and women at age 65 in England and Wales is now at least 10 years. The selection of jurors should reflect that fact. That is why it is fair to expect people aged up to and including 75 to sit as jurors if summoned.
The hon. Gentleman mentioned estimated savings. It is currently estimated that the economic net benefit of raising the jury service age limit to 75 is £19 million to £39 million, at 2013-14 prices, over 10 years. That estimate depends on a number of assumptions about the number of people over 70 who will serve as jurors.
Mr Slaughter: I am happy to do so. The Minister did not say whether he wanted to snaffle the money for himself, but I take it from his silence on the matter that he is content to let the Treasury take it, as it does with all things.
We now come to a series of clauses that deal with new offences applying to jurors, several of which arise from the Law Commission report. We have only questions to ask about, or probing amendments to table on, the majority of the clauses. However, we have a particular problem with clause 44, which we will come to in a moment.
We had two interesting witnesses on this subject. One was Professor Ormerod from the Law Commission, who was able to tell us how the Law Commission had come to its conclusions and how far its recommendations had been followed by the Government in drafting the legislation. The other was Professor Cheryl Thomas, who told us, perhaps from a more pragmatic stance, about how jurors behave and how effective the clauses might be in practice.
In the light of the evidence from both those witnesses—and perhaps especially Cheryl Thomas—we thought that we might be being a little heavy-handed with jurors in drafting some of our amendments. Jury service is one of the most important functions that a citizen performs. It places a huge responsibility on people in deciding the guilt or innocence of their fellow citizens. I shall not wax lyrical about it at this time in the afternoon, but I do think that we have to treat jurors as adults. Despite the great explosion in social media, on everything from laptops to iPads—which I see in use around the room now—and mobile phones, it has always been the case that we have had to put our trust in jurors. We have to
Insisting that electronic devices are taken away from jurors, rather than clearly defining the limits of their use, goes against the grain of placing our trust in our fellow citizens performing that job. We heard about the practical considerations, such as building cabinets and other safe storage, and what would happen if a juror received an urgent message, about relatives who are ill in hospital or other important events. The issue could be more easily dealt with by simply instructing jurors clearly that they are not to use mobile devices within the precincts of the court—in the jury room or outside—in any way that is likely to interfere with the trying of the case on exactly the terms that the judge has instructed, which is without any extraneous involvement. It should not be necessary to treat jurors like schoolchildren and deprive them of their devices.
Mr Buckland: The hon. Gentleman makes some reasonable points about the dangers of a blanket approach. It would be wholly undesirable if in every case a judge, as a matter of course, ordered the removal of devices. However, subsection (2) provides that an order may only be made if the judge considers it
Sarah Champion (Rotherham) (Lab): On that point, Professor Thomas said that she was concerned that the judge would be put in a difficult position when he had to make the decision, because it would alter his relationship with the jury. Does my hon. Friend agree with Professor Thomas’s point that what we need is a standard court procedure that operates in every court and deals with jurors’ possession of electronic devices, rather than leaving it to a subjective view?
Mr Slaughter: To be honest, I have sympathy with both points, but we must either have rigid guidelines to be followed or leave it to the good sense and proportionality of the judge. That is what lies behind the amendment. I do fear, notwithstanding what I have just said, that removal could become the norm. It is easier to err on the side of safety. It is a possible distraction or temptation, if any issue is raised by the prosecution or the defence in the case, for the judge to take that course of action rather than risking the possibility of infringement or retrial. That is why I took the view that there should be clear directions rather than physical actions, such as ordering the surrender of mobile devices or, as in the next clause, the search of a juror. Some of the clauses begin to affect the important relationship between judge and jury, which I think is my hon. Friend’s point. If the judge is seen as the cop or the schoolteacher, that does not bode well. I am grateful for the acknowledgment from both sides that that point needs to be dealt with.
Mike Kane (Wythenshawe and Sale East) (Lab): Here we are, with the great honour of being elected Members of this House on a Committee that decides law. That is so important that I think we should give up our electronic devices, each and every one of us. Hands up any Committee members who have not looked at social media today or used an electronic device in that capacity. No hands went up, for the record, so we have all used such devices today.
Most contempt of court comes from the Contempt of Court Act 1981, which, as the Law Commission points out, predates the internet. For anyone who does not know, that is a means of electronic communication between people. That Act was introduced in 1981, and I sent my first e-mail in 1988. That was way before the advent of social media.
Two cases spring to mind when I examine the matter. One is that of Kasim Davey, a 21-year-old juror on a serious trial who indicated on Facebook that he was going to find the defendant guilty. It was wrong to do so, but he was a 21-year-old using social media; he knew no better. It makes me wonder whether the court had pointed that out forcefully enough. Are we educating people, and jurors in particular, forcefully enough about the use or abuse of social media during a trial?
Mr Buckland: The hon. Gentleman is making a good point, but the truth is that judges make those directions day in, day out. The judicial college, as it now is, looks at and revises the way in which judges issue directions to the jury. At the beginning of each trial, judges will warn jurors about the dangers of using the internet, and of substituting that for listening to the evidence in the case. That young man, foolish though he was, would no doubt have been told before he took that step.
Mike Kane: No one over 75 years of age would have made that mistake. In the other case, Joseph Beard was looking up on Google how long the trial on which he was a juror would last. In and of itself, that was probably not disastrous or likely to affect the outcome of the trial, but unfortunately he also came across information on the internet about the number of victims that the alleged fraud had affected, and he imparted that information to his fellow jurors. That is where it all went wrong. The trial had to be abandoned after five weeks, and I dread to think how much it cost. However, I have to agree with the hon. Member for Hammersmith that surrendering mobile devices, in this day and age, is not the way to tackle such abuse and contempt.
Mr Buckland: I will briefly add my comments, serving as I do from time to time as a Crown court recorder. I reiterate point that I just made, that judges will issue strong directions to jurors not to use the internet for the purposes of research or use social media during the trial. That also means the times when they are out of court during adjournments and when the court is not sitting—in the evenings, for example.
I would envisage that the power proposed in clause 40 will be relevant in situations where, for whatever reason, a matter such as the inappropriate use of an electronic device has been brought to the court’s attention and that causes the judge concern about the general effect on the jury. Some parts of a trial are particularly sensitive. The most sensitive is when the jury is in retirement. At that point it is important that jurors’
The measure should be seen as a way of protecting not just the system but jurors themselves from the consequences of the rash and foolish actions of a small minority. Unlike the hon. Member for Hammersmith, given the discretion built into the system I do not think the clause will open the door to the schoolroom scenario that he painted. Judges can be trusted to use their good sense and to build a decent rapport with jurors. Frankly, if a judge does their job properly and builds that rapport, the powers in the clause will be used more rarely than might have been suggested by the tone of this debate.
Mr Vara: I hope very much that by the end of my remarks I will have given comfort to those on both sides of the House who have raised concerns. I believe that “limit the use of”, the phrase in the amendment, would not provide the clarity required in the Bill. It could, for example, mean that a jury is told to switch off any electronic communication devices when in the jury room. That, of course, would allow jurors to retain their devices in the jury room, even in a situation where a judge thought that the interests of justice required that jurors should not be using their smartphones or tablets during deliberations.
The amendment falls short of providing certainty that a device is not available during deliberations. Leaving that open to interpretation would result in uncertainty for the judiciary and for jurors. We agree with the Law Commission recommendation that devices should be surrendered. Judges have discretion to take account of the circumstances when making an order, and can make an order only when one is necessary or expedient in the interests of justice, and is proportionate to that aim.
The order by a judge that devices be surrendered is also limited in the periods it may specify. For example, the order may not remove a device from a juror when they are going home at the end of the day. Therefore, the inconvenience caused to a juror by having to surrender their mobile phone or other device will be limited. There are safeguards in the legislation to ensure that any inconvenience would occur only where it was necessary to ensure that a trial operated fairly.
As I say, the power to order the surrender of devices will be used only to serve the interests of justice, and it is of the utmost importance that those interests are properly served. I believe that can be done only with the certainty that comes from removing devices from jurors. I therefore cannot agree to the amendment and I ask the hon. Gentleman to withdraw it.
Mr Slaughter: I rise to make the same point, which is that the power of search is intrusive. Again, it further erodes the relationship of trust between the juror and the court system, including the judge. Of course I accept what has been said about the provisions being used in extremis, or at least in rare circumstances; I just put that forward as a word of caution. We do not intend to oppose the clause.
Mr Slaughter: There is a varied response to these clauses, which came almost directly from the Law Commission and deal with the matter of research by jurors and the sharing of such research. I think I am right in saying that clause 43 does not come directly from the Law Commission, but Professor Ormerod’s evidence was that it followed logically from clause 42, to which the Law Commission had no objection. We have no objection to it; indeed, I would go as far as to say that, although in other clauses, requiring the consent of the Attorney-General is sensible because it is an additional check, these are clear cases. The issue is not new. It has always been the case that going outwith the jury room and the courtroom is improper. I think that all jurors are made aware of that, but I am not sure why the requirement in clause 42(9) and clause 43(4) is necessary. I am sure that the Minister will enlighten us.
Dr Julian Huppert (Cambridge) (LD): I rise to disagree slightly with the hon. Member for Hammersmith. There is a concern about whether juries will feel that there is so much risk of imprisonment if they do something slightly wrong in one way or another, that people may be dissuaded from serving on a jury. It is important that there are such controls, but they are clearly exceptional. I hope that we will keep the need for the Attorney-General’s consent, to ensure that people are not driven away from serving on a jury.
Mr Vara: The effect of the amendment would be to allow proceedings to be brought following investigation by the police and confirmation by the CPS that a prosecution should proceed. The Attorney-General’s consent to proceed would not be required. As we have made clear, we are concerned that the correct balance between the various rights is maintained. The Attorney-General has long been recognised as the appropriate person to safeguard the public interest, and he has a particular interest in the administration of justice. Jury misconduct is damaging to the administration of justice, and we believe that the Attorney-General should continue to maintain oversight of the public interest where such conduct occurs. Proceedings are rare, and we believe that the close involvement of the Attorney-General in cases of juror contempt should continue when such misconduct is prosecuted as an offence.
The amendment would remove the consent requirement from clauses 42 and 43, but leave unchanged the consent requirement for the similar offence in schedule 7 relating to inquests. There would therefore be an inconsistency between the courts. In the light of the well-established role of the Attorney-General as guardian of the public interest and the role that he already plays in bringing proceedings for contempt, I cannot support the amendment and urge the hon. Member for Hammersmith to withdraw it.
Mr Slaughter: I am sure that if the Minister wished to accept the amendment and there were inconsistencies with provisions relating to inquests or indeed courts martial, they could be rectified by Government draftsmen in the usual manner, so I do not take that point, but they were intended as probing amendments, so I beg to ask leave to withdraw the amendment.
I was delighted to hear the comments of the hon. Member for Cambridge a moment ago because I am sure that, in the light of them, he will be keen to support this amendment. Whereas I think the case for modifying the existing rules on research by jurors is well made out, the clause is not well made out, and I believe that that is also the Law Commission’s view.
I was able to question Professor Ormerod in some detail about this and, although he chose his words carefully, he said in response to my questions 169, 170
“Drafting is a matter for the Committee. I see the advantages of following a definition based on intention.”––[Official Report, Criminal Justice and Courts Public Bill Committee, 11 March 2014; c. 70, Q171.]
I mentioned before, so I will not repeat myself at length, the important role and function of jurors and the trust we place in them. This is not a recent development. There have been cases of jury oppression going back centuries, and the current jury system was established on the basis of jurors who stood out against pressure from the Executive in one way or another. We can all think of those cases when jurors were deprived of meat and drink and told to make a decision when pressure was put on them to come up with a particular verdict. That led to substantial development in the law to enshrine jurors’ independence and the absence of any oppression on them.
I do not want to put the case too strongly, but on something defined as “prohibited conduct”, I would say, if I am generous to the Government, that they are trying to dot the i’s and cross the t’s because they are trying to deal with cases that do not fall into convenient existing boxes, and to look ahead to see other forms of abuse, so they have come up with a catch-all phrase, and that is dangerous.
The amendment may not be perfect, but in the absence of accepting it or an alternative, we should not proceed with the clause. I believe that quite strongly because to preserve jurors’ good will and their independence they should not feel cowed but believe that they can make decisions robustly.
It is self-evident that jurors are instructed, and we have tabled a new clause on the ways in which their roles and responsibilities should be made clearer to them. It is also self-evident that jurors should make their decision based on the evidence in the case and not on other evidence, but what is “prohibited conduct”? In the past, jurors have made decisions that judges and Ministers think are perverse. They have acquitted people when they have been told that there is no basis in law to acquit them. They have made decisions that one might think are political when there have been political protests. The attack on Lady Thatcher’s statue—R v. Kelleher, from memory—is one such example. There are all sorts of reasons why jurors make decisions that do not meet the approval of the establishment. That is part of the jury system.
Julie Hilling (Bolton West) (Lab): Does my hon. Friend agree that the clause pushes against the times in which we live? People expect to get information readily and through means that did not exist in the past. It is a Kafkaesque clause. It says:
Mr Slaughter: From Bushell’s case through to R v. Ponting, there have been many cases in which jurors have stood against the actions of the Executive. I think the clause is the Executive fighting back.
Mr Buckland: How would the clause have applied in the Ponting case? There was no allegation that any of the jurors in that trial misbehaved or behaved in a way that was inconsistent with their oath. We are dealing with a set of members of the public who take an oath to try the case on the evidence they hear. The issue is that the modern media sometimes means that it is problematic for jurors to be consistent with their oath. We are not talking about verdicts that seem perverse according to the law, but about misconduct, which is a different concept.
Mr Slaughter: Let me use another example. I am sure there are cases in this country—there certainly are in other countries—in which jurors acquitted when they believed the penalty was likely to be too severe. That happens in capital cases, in particular. To my mind, that is taking into consideration extraneous factors. My point is that prohibited conduct is a bridge too far. Unless there is a clear definition of intent or a clear prescription, such as the Law Commission recommends, there is a difficulty. We could have an interesting debate on these matters, but I do not think we are going to have it this afternoon. We may be able to return to this issue on Thursday. I simply want to say to the Minister that this is a clause too far. The other clauses in this part of the Bill are sensible, but this clause has not been well thought through. It will allow the law to be too oppressive in defining the conduct of jurors.
Mr Buckland: I will speak very briefly to the clause. I have been listening to the hon. Gentleman, and I am surprised. I do not equate the clause with anything he said about jurors reaching verdicts based on considerations about the sentence, or about whether in the famous example of the Ponting trial there was a perverse verdict. In all those types of case, although there has been much speculation in press about what the jury decided and why, we will never know whether there was a perverse verdict because there is rightly a restriction on jurors telling us how they deliberated in their retiring room and on research into why a particular jury made a particular decision.
It is clear that there may be misconduct. For example, a juror may seek to approach a defendant through a third partly—that has happened, I am afraid—and the judge will rightly want to make inquiries and deal with it. One general point I would make on the criminalisation of all these matters, which I support, is that judges making inquiries of jurors during trials will have to be careful to warn jurors about potentially incriminating themselves in the commission of criminal offences. That new dimension to the work of judges will have to be
Mr Vara: I thank hon. Members for their contributions. The knowledge of those who have practical experience in the courts is showing through. It is not often that the hon. Member for Hammersmith speaks about being generous to the Government, but as he said that in his opening remarks, it would be wrong not to take up the offer. I think he has a point or two on this clause.
The amendment would change the scope of the offence in clause 44, which inserts proposed new section 20C into the Juries Act 1974. As Professor Ormerod, the law commissioner for criminal matters, said in his evidence to this Committee, the proposed offence stems from a case before the divisional court in 2013 where a juror posted on Facebook that he was trying a defendant charged with a sexual offence on a child, and suggested an intention not to try the case fairly.
The Government’s intention in bringing forward the new offence is clear: we want to ensure that proper criminal sanctions and procedures apply where a juror engages in behaviour that can give rise to a suggestion that they will not try the case fairly. Such behaviour brings the jury system into disrepute, leads to the perception of unfair trials and the potential collapse of trials, which must not be allowed.
However, I recognise that, in tabling the amendment, the hon. Gentleman is concerned about the scope of proposed new section 20C. The fact that the Attorney-General must consent to proceedings being brought for the offence provides a safeguard to ensure that the offence is not used unfairly or unjustly, and on that basis we were content with the clause. None the less, I recognise the hon. Gentleman’s concern, and if he agrees to withdraw his amendment at this stage, I will take his suggestion away and give it my full consideration.
Mr Slaughter: I am very grateful for that. I thought that the Minister was going to say, “You can have the Attorney-General and lump it”, in which case I would have pressed the amendment to a vote. In the light of his final comment, however, it would be ungracious and unproductive not to withdraw the amendment. I look forward to what happens here and in the other place in the deliberation of the Bill, as well as the Government’s further thoughts on the matter. We are all keen to correct the abuses and not to limit jury behaviour more than is necessary. I beg to ask leave to withdraw the amendment.
This is consequential on amendments 66, 74 and 75.
Mr Vara: These amendments are purely technical drafting changes, so I do not intend to say much about them. Where a person is entitled to make disclosure of information about jury deliberations, the Bill also allows, as does the current law, a person to ask for and obtain that information. That is a necessary step in allowing any sort of effective disclosure in the first place. If a person is entitled to make disclosure, they have to have someone to make it to. The Bill makes that provision in new sections that also deal with permissible disclosure.
In the light of the amendments we are making to the clauses on jury deliberations, we felt that the Bill would be more user-friendly and clearer if the provisions allowing for the soliciting and obtaining of information were included in a separate section of their own. These are purely drafting changes, with no substantive change in effect. Their purpose is to ensure as far as possible that the legislation is easy to use and understand.
This amendment and amendments 74 and 75 replace subsections (5) and (6) of new section 20E of the Juries Act 1974 and subsections (7) and (8) of new section 20F of that Act with provision to the same effect in a new section 20G.
‘(A1) It is not an offence under section 20D for a person to disclose information to a person listed in subsection (A2) if—
(a) the disclosure is made after the jury in the proceedings mentioned in section 20D(1) has been discharged, and
(b) the person making the disclosure reasonably believes that—
(i) an offence or contempt of court has been, or may have been, committed by or in relation to a juror in connection with those proceedings, or
(ii) conduct of a juror in connection with those proceedings may provide grounds for an appeal against conviction or sentence.
(A2) Those persons are—
(a) a member of a police force;
(b) a judge of the Court of Appeal;
(c) the registrar of criminal appeals;
(d) a judge of the court where the proceedings mentioned in section 20D(1) took place;
(e) a member of staff of that court who would reasonably be expected to disclose the information only to a person mentioned in paragraphs (b) to (d).
(A3) It is not an offence under section 20D for a member of a police force to disclose information for the purposes of obtaining assistance in deciding whether to submit the information to a judge of the Court of Appeal or the registrar of criminal appeals, provided that the disclosure does not involve publishing the information.’.
This amendment and amendment 70 replace subsection (3) of new section 20F of the Juries Act 1974 with provision which additionally allows disclosure of information to a member of a police force in specified circumstances. The amendment also provides that disclosure is only permitted after the jury has been discharged.
Mr Vara: The amendments will make changes to clause 45 and to equivalent provisions in schedules 7 and 8 concerning disclosure of jury deliberations where the disclosure is made to the police by a juror after a trial in the reasonable belief that an offence or contempt has been committed or that there are grounds for an appeal. Introduction of an exception allowing disclosure to the police would implement a recommendation made by the Law Commission in December in its report on contempt.
Clause 45 will make it an offence to disclose juror deliberations because of the need for confidentiality, but sometimes it is in the interests of justice that disclosure be made where there has been an irregularity and it is necessary to deal with the irregularity or its consequences. An irregularity could include an offence or a contempt, or might give rise to concerns that a miscarriage of justice has arisen.
Currently, disclosure to the police can be made where a trial judge or the Court of Appeal has concerns about an apparent irregularity and has asked the police to investigate. Clause 45 already provides for that. We consider it important that any juror who has concerns and wants action to be taken goes to the trial judge during the trial, or the Court of Appeal after the trial.
However, we recognise that sometimes, a public-spirited former juror may have concerns about an irregularity after a trial has been completed and may not know where to go to report it. For example, they may suspect that an offence has been committed in relation to the trial. We understand why, in such circumstances, the former juror might want to go to the police. It might have been a long time since the trial, and they might not recall that they should go to the Court of Appeal. It would seem obvious to report an offence to the police and to explain the evidence for it. We recognise that a former juror doing so wants to do the right thing and should not be charged with a criminal offence in such circumstances.
The amendments will therefore provide an exception to the offence where a disclosure is made to the police by a person in the reasonable belief that an offence or contempt has been committed, or where they believe that there may be grounds for an appeal.
It is also important that the police are then able to take appropriate and reasonable action in responding to the report of an irregularity. For example, they need to establish whether the person making the report is a juror, and if so, to refer to the court where the trial took place. However, the police should not be initiating a full investigation, seeking further information from jurors about deliberations, without leave of the appropriate court.
Where a crime or miscarriage of justice has taken place, it is important that the criminal justice system is able to deal with it. The amendments will assist the police in bringing the matter to the attention of the Court of Appeal, which would then be able to authorise investigation of the reported irregularity, perhaps by bringing in the police, or by referring the matter to the Criminal Cases Review Commission.
This amendment and amendment 69 amend new section 20F(2) of the Juries Act 1974 to ensure that the judge or registrar does not have to contact the defendant or legal representative personally when making a disclosure to enable them to consider whether a juror’s conduct may provide grounds for appeal.
Mr Vara: The amendments are technical amendments that have the sole aim of ensuring that the provisions will work easily in practice. The Bill in its current form will require a Court of Appeal judge or the registrar of criminal appeals, having received information about jury deliberations that might provide grounds for an appeal against conviction, to communicate that information personally to the defendant or the defendant’s legal representative.
The Government wants to ensure that these provisions do not place too onerous a burden on judges, so these amendments have the effect of ensuring that in the situation I have described, the judge or registrar can communicate to the defendant via one of their staff members. The same provision is made in the context of a court martial.
This amendment and amendment 72 amend new section 20F(4) of the Juries Act 1974 to allow disclosure of jury deliberations where someone reasonably believes that a disclosure under section 20F(2) has been made. The disclosure must be for the purpose of considering whether a juror’s conduct provides grounds for appeal.
‘(5A) It is not an offence under section 20D for a person to disclose information in the course of taking reasonable steps to prepare for proceedings described in subsection (5)(a) to (c).’.
This amendment allows a person to disclose jury deliberations where that is a part of reasonable preparations for certain court proceedings.
Mr Vara: The amendments would alter the provisions of the Bill relating to inquests and courts martial, as well as the provisions amending the Juries Act 1974. The amendments provide for a further exception to the offence of disclosing the contents of jury deliberations. This further exception will apply where proceedings have been brought as a result of the disclosure of jury deliberations, such as prosecution of an offence or an
We are permitting disclosure of jury deliberations where such disclosure is in the course of taking reasonable steps to prepare for the kind of proceedings I have described. The Government is satisfied that the amendment is sufficiently narrowly drafted to ensure that it allows for defendants or appellants to conduct their case properly, but without going too far in allowing potentially damaging disclosure of deliberations. For example, it would not be reasonable to publish information about jury deliberations in a newspaper. It would, however, be reasonable for a person to discuss that same information with a barrister defending them.
‘(8A) It is not an offence under section 20D to disclose information for the purpose of allowing approved academic research into jury deliberations.’.
I shall be brief although I think the amendment is quite important. I note that the subject of academic research on jury decision making was debated in the other place as recently as 12 March. Lord Faulks, in response to that short debate, referred to the Law Commission’s recent report, and the fact that it recommended a limited exception to the general prohibition to allow academic research, and said that the Government were considering that recommendation and would respond in due course. I say that because the Minister might well have said that they are considering it and will respond in due course. If so, and if the Minister is prepared to take the amendment on board, we may be able to deal with this condition.
There is at best a lack of clarity and at worst a lack of ability to research juries, which in other countries such as the United States and New Zealand has been allowed for many years. The research is purely academic and is not breaking the sanctity of the jury room other than for wholly beneficial purposes. One statistic came up in the other place, referring to research by Professor Cheryl Thomas, who we know because we heard evidence from her. One of her findings, from talking to 797 jurors, was that only 31% of them understood the directions in law that the judge gave to them at the end of the trial. That, I fear, is a look of consternation on the face of the hon. Member for South Swindon—I am sure that 100% understand such directions in his cases. Not only is that alarming in itself, but it is alarming that we do not know such information. Everyone would benefit from knowing it, and certain remedial actions could be taken, perhaps to put more direction in writing or to impose
There was a good article in “The Law Society Gazette” by Joshua Rozenberg earlier this month. I did not really agree with it, because it went rather further than I would go, although it made the same points as I have made about inflicting new pains on juries. He ended up by making this point: if the view of the Executive is that jurors are behaving in perverse ways, it behoves the Government to find out whether that is the case; otherwise, we are splashing around in the dark and making some of the legislation that we are making here without good cause, or on the basis of one or two cases—important ones, but only one or two. I would feel more comfortable with legislation that restricts the rights of jurors if I knew more about how jurors were behaving and on what it is based. The amendment is designed to achieve that aim.
Mr Vara: The Law Commission recommended that the Contempt of Court Act 1981 be reformed to provide an exception allowing approved academic research into jury deliberations, subject to stringent safeguards. The Law Commission’s recommendation would allow research into the substantive content of jury deliberations. That could include research into, for example, evidential factors, credibility assessments of defendants and factual assumptions that influenced the deliberating process. The Law Commission suggested that such research could be used to inform and undertake reform to improve the jury system while enhancing public understanding of trial by jury.
Importantly, however, research into juries already takes place. Academics are able to undertake meaningful and important research without infringing section 8 of the 1981 Act. Indeed, during the Bill Committee’s public evidence session, Professor Cheryl Thomas, the leading academic on juries, commented that she has never been hampered by section 8. The issue is that academics may not at present research the substance of
Mr Slaughter: I am somewhat disappointed. I will not press the amendment to a vote, but I had hoped for a slightly more open-minded opinion from the Minister and to hear him say more what the noble Lord Faulks said, which was that the Government are actively looking at the matter and may come back with further recommendations. I think that is the situation. The approach of simply restating what has been the historical position is slightly blinkered. The Law Commission clearly thought that the current situation could be improved upon and, as its recommendations have proved sound for elsewhere in the Bill, I suspect that that will be the case here as well. I am disappointed, but I beg to ask leave to withdraw the amendment.
20G Offence of disclosing jury’s deliberations: exceptions for soliciting disclosures or obtaining information
(1) It is not an offence under section 20D to solicit a disclosure described in section 20E(1) to (4) or section 20F(A1) to (6).
(2) It is not an offence under section 20D to obtain information—
(a) by means of a disclosure described in section 20E(1) to (4) or section 20F(A1) to (6), or
(b) from a document that is available to the public or a section of the public.”’.—(Mr Vara.)