Criminal Justice and Courts Bill

Written evidence submitted by t he Magistrates’ Association

(CJC 20)

This document provides a briefing for the Public Bill Committee considering the Criminal Justice and Courts Bill 2014. This document covers those clauses of the Bill that are most relevant to the work of magistrates and builds on the Magistrates’ Association’s ( MA ) briefing for the 2 nd reading of the Bill.

The MA welcomes certain provisions, particularly those that reflect concerns that the MA has raised previously (for example restricting the use of simple cautions and raising the age for which an appropriate adult is required for young people); however the briefing does identify some areas that might be suitable for further scrutiny.

Part 1 Criminal Justice

Clauses 14-5: Use of Simple Cautions

The MA welcomes the proposals to restrict the use of cautions in certain circumstances; specifically in cases involving more serious offences or repeat offenders. The MA raised concerns in its response to the Government consultation on Out of Court Disposals , about cautions being used for offences such as domestic violence, hate crime or crimes of violence with injury unless exceptional circumstances applied. The MA would hope that the Secretary of State would take the view that cautions should only be used for low level offending where early intervention can be a deterrent when specifying offences in which a caution may only be given in exceptional circumstances.

The MA would also like to take the opportunity to raise the issue of ensuring sufficient oversight of the use of all out of court disposals is in place; consistency of scrutiny panels continues to be a matter the MA believes should be a priority for the Government.

Suggested amendments:

· Clause 14

Page 15, line 21 insert

(4) If-

(a) the offence is an either-way offence not specified under subsection (3), and

(b) in the five years before the commission of the offence the person has been convicted of, or cautioned for, a similar offence, a constable may not give the person a caution except in exceptional circumstances relating to the person, the offence admitted or the previous offence.

Page 14, line 22 leave out "or an either-way offence"

Rationale

The MA also identified repeat offenders in its consultation response as an area where cautions are not appropriate. The MA is concerned that the proposals do not go far enough; while taking into account relevant offences within two years might be suitable for summary only offences, the MA suggests a time period of three to five years would be more appropriate for all other cases. The court has access to a wider range of information than front line officers and can therefore respond to repeat offenders more appropriately and effectively.

· Clause 14

page 15, line 29 leave out "police officer" and insert "senior police officer of at least the rank of Inspector"

Rationale

The MA would also hope that in specifying the rank of officer able to decide whether exceptional circumstances exist, the Secretary of State would ensure an appropriate level of seniority.

Part 2 Young Offenders

Clause 17: Secure colleges and other places for detention of young offenders The MA welcomes the increased provision for education for young people in secure colleges as low levels of educational attainment and lack of training are features associated with young offenders.

The MA understands the Government’s objective to reduce per capita spend on young offenders in detention, but believes the Government must be mindful of the effect this could have on the standard of provision.

Schedule 4: Part 1: Contracting out provision and running of secure colleges:

Paragraph 1

The MA emphasises if secure colleges are to be contracted out they must have specific targets and be rigorously inspected.

Paragraph 13

The MA believes that the provision that means young people are committing an offence if they ‘obstruct or resist’ a secure college custody officer will need careful scrutiny and monitoring.

Clause 20: Youth cautions and conditional cautions: involvement of appropriate adults

The MA welcomes the provision that 17 year olds receiving a youth caution need to be in the presence of an appropriate adult (previously this was just the case for 10-16 year olds).

The MA emphasises the importance of making sure the appropriate adult is fully equipped to take on this role. This includes their independence, their relationship with and in depth knowledge of the young person and their understanding of the processes involved in youth cautions. The MA hopes an appropriate adult would either be a parent or guardian, a family member with extensive knowledge of the young person or a responsible member of the care team with duty of care or mentoring of the young person.

Clauses 21-23:

The MA welcomes the greater discretion offered to courts within these clauses in relation to referral orders; particularly when the aim set out in the explanatory notes of enabling restorative justice processes to be completed is kept in mind. If the restorative measures constitute work concerning the victim then it is especially important that this work be completed.

Clause 21: Referral orders: alternatives to revocation for breach

The Bill makes provision of fines up to £2,500 for young people breaching a referral order. The MA is not in favour of fines being imposed for breaches of referral order s as the fines often become the responsibility of the parent or guardian and can have little meaning for the young person. This is especially the case for looked after children where the fines may be paid by the local authority or foster carers. It should be borne in mind the inability for some young people to pay these fines currently or in the future and that alternatives such as unpaid work or reparations may be more appropriate

Part 3 Courts and Tribunals

Clauses 24-8: Single Justice Procedures

The arrangements in this Bill to allow a single magistrate to convict and sentence high volume, low seriousness cases where the defendant pleads guilty, agrees to the procedure, or does not respond at all are workable. The MA welcomes the reference in the accompanying explanatory notes to the cases that would come under the remit of these new procedures as offences such as TV licence evasion, various non-imprisonable motoring offences and rail fare evasion. The MA will collaborate with the Government in relation to procedural matters of how the proposed measures could be effectively implemented.

The Bill also permits these cases to be dealt with outside of a public courtroom, which might be an office in the court building, a retiring room or a regular courtroom which is simply closed to the public.

The MA is well aware that few members of the public attend to listen to and observe cases where the defendant is absent. However it is a principle of British justice that cases are heard and the results are made known in public and we would be sorry to see this principle abandoned, even for the cases which this Bill deals with. We would be concerned if the general public perception became that these cases were no longer criminal cases handled by magistrates with the same rigour as every other criminal case.

MPs might like to consider whether these proposals will trigger an adverse public reaction among those who distrust politicians, are increasingly suspicious of police integrity and who say that the Government is at war with motorists. These proposals may present an open goal to tabloid newspapers running campaigns on secret courts and roadside cameras being there for cash generating purposes rather than for road safety.

In the fact sheet which accompanied the single magistrate clauses of the Bill, the Government promised in paragraph 11:

In order to preserve open and transparent justice, magistrates’ courts will continue to publish daily case lists on the day of the appointed hearings. These lists are currently, and will continue to be, available to local media. In addition the court will still be obliged to give certain case information to the public on request, as they are currently.

Paragraph 12 of the same fact sheet speaks of the Government’s wider transparency agenda and its wish to make court processes more transparent to the public.

However, this Bill provides for a single justice procedure notice which does not need to give a place and time for a court hearing and allows cases to be adjourned without notice. The MA would be interested in any proposals that gave reassurance that there is a real commitment to open justice such as in terms of publishing case lists and outcomes.

Suggested Amendments:

· New Clause 24 : Middle tier of jurisdiction

1) Section 154 of the Criminal Justice Act 2003 (General limit on magistrates' court’s power to impose imprisonment) is amended as follows:

2) After "magistrates’ court" insert "constituted with three justices, one of whom is a DJ (MC)"

Rationale:

Section 154 empowers magistrates’ courts to impose a custodial sentence up to twelve months but this clause is yet to be implemented. This amendment would specify that only magistrates’ courts in which two magistrates sat with a District Judge would be empowered to impose a custodial sentence between six and twelve months. This would allow magistrates’ courts to hear cases currently dealt with in Crown Courts.

In 2001 Sir Robin Auld recommended a middle tier of jurisdiction to consider either way offences limited to a set level of severity of possible sentence. The proposal was for this court to constitute two magistrates sitting with a district judge to hear this group of cases. The current Lord Chief Justice raised this suggestion in his speech on "Reshaping Justice" given on 3rd March 2014; saying that "Surely it is time to consider this issue again given the financial circumstances in which we are now placed." He went on to suggest evidence and analysis was need in this area.

In line with the Lord Chief Justice’s suggestion, the MA proposal would allow a safe and limited environment for the use of twelve month sentencing powers to be used in magistrates’ courts; restricted by the availability of DJ(MC)s. This would essentially constitute a pilot study of allowing certain cases for lesser offences to be kept in the magistrates' court. Cases such as middling theft, actual bodily harm, drug offences and a large proportion of dangerous driving could be kept out of the Crown Court in those areas where it has the longest backlog.

· Clause 26

page 25, after line 42 insert;

"(c) information supplied by the DVLA to inform the court of penalty points endorsed on the defendant’s driver record"

Rationale:

The Bill requires the court to try the charge relying only on the documents served on the defendant and any written mitigation supplied by him (page 25 lines 39-42). The court needs more than that to make the right decision about whether it should adjourn the matter, as required by statute, to consider disqualifying an absent defendant from driving. The court needs to know whether the defendant has sufficient points on his record that the current offence will make him a totter (liable to disqualification as having amassed twelve points). There is an automatic safeguard in using such information from the DVLA which was not supplied initially to the defendant with the written charge, because he can make further representations and mitigation in time for the matter to be considered again after the adjournment.

· Clause 26

page 26 lines 7 & 8 leave out "and if a party appears must proceed as if the party was absent"

Rationale:

The MA would not like to prohibit interested parties who might be able to aid the process from participating. An example would be an experienced prosecutor who can be an asset in identifying the relevant evidence in a bundle quickly; therefore ensuring fair and expedient justice.

Clauses 29-31: Court charges and fines collection

The MA has concerns about the new imposition of court charges and how this could be efficiently implemented in practise.

Suggested amendment:

· Clause 29

Page 30, line 7 leave out "must" and insert "may"

Page 30, after line 28 insert:

"(6) Reasons must be given for either imposing or not imposing court charges"

Page 30, line 30 leave out "must" and insert "may"

Page 30, line 43 leave out "must" and insert "may"

Page 31, line 10 leave out "must" and insert "may"

Rationale:

 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.

The MA would presume that in prescribing which cases will be exempted from this set of clauses, the Lord Chancellor would consult closely with relevant 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. It is important that the necessary provisions are in place to ensure the system can ensure effective collection of fines and orders.

March 2014