Courts and Tribunals Bill

Public Bill Committee, 16 April 2026.

Clause 3 - Trial on indictment without a jury: general rule for allocation

Rupa Huq (Labour, Ealing Central and Acton)

I remind the Committee that with this we are discussing the following:

Amendment 39, in clause 3, page 5, line 26, at end insert—

“or,

(c) the defendant demonstrates to the court that the circumstances of his case are such that to be tried without a jury would amount to a breach of the principles of natural justice.”

This amendment would ensure that trials by jury continue for indictable offences carrying a sentence of less than three years in prison if the defendant can demonstrate that it would be in the interests of natural justice.

Amendment 24, in clause 3, page 5, line 28, leave out subsection (5) and insert—

“(5) The conditions in this subsection are met in relation to a defendant if—

(a) the defendant, if convicted of the offence or offences for which the defendant is to be tried, would be likely to receive a sentence of imprisonment or detention of more than three years for the offence or offences (taken together);

(b) the defendant is of good character;

(c) the defendant has not previously been convicted of an imprisonable offence;

(d) the defendant would be treated as a rehabilitated person under section 1 of the Rehabilitation of Offenders Act 1974;

(e) if convicted of the offence or offences for which the defendant is to be tried, would likely suffer significant reputational damage or have their employment or professional qualifications adversely affected;

(f) there are reasonable grounds to believe that the gravity or complexity of the case may increase; or

(g) other exceptional circumstances pertain to the case.”

Rebecca Paul (Conservative, Reigate)

It is an honour to serve under your chairmanship, Dr Huq.

I speak in support of amendments 23, 39 and 24 which, taken together, would do something simple but important: they would build a measure of flexibility back into the clause, so that jury trial is still available where the cause of justice requires it. The Minister should think carefully. As drafted, the clause creates a very blunt regime: unless the court predicts a sentence of more than three years, the trial is to be conducted without a jury. The amendments would go a small way towards softening that rigidity and making the system less arbitrary, more proportionate and hence more just.

With the amendments, two different Committee members take two different approaches to delivering the same outcome of additional flexibility in the clause. Amendment 39, tabled by my hon. Friend the Member for Bexhill and Battle, is broad in nature, setting out an additional condition for jury trial when needed to ensure natural justice, whereas the hon. Member for Bolton South and Walkden takes a more granular approach to the problem by listing the specific circumstances that might warrant the need for jury trial, again to ensure fairness. Both approaches seek to achieve the same thing.

I will speak to each amendment in a little more detail, starting with amendment 23. Clause 3 is currently built on one single condition for preserving jury trial in relevant cases: whether the defendant is likely to receive a sentence of more than three years if convicted. Amendment 23 would change the wording from “the condition” to

“one or more of the conditions”.

This is the gateway to allow amendment 24, which lists various conditions, to work.

The amendment matters because it opens the door to a more sensible approach, in which sentence is not the only thing that counts. That is exactly the right approach. When we deal with a constitutional safeguard as important as jury trial, the Committee should be wary of a system that turns entirely on a single mechanistic threshold. Human beings and criminal cases are not that neat, and Parliament should not pretend that they are. The amendment is therefore modest, tidy, entirely sensible and the necessary first step to add judgment, flexibility and common sense to a clause that has far too little of all three.

On amendment 24 and its list of conditions, the Government’s model under the clause is to ask the court at an early stage to forecast the sentence that would likely be imposed if the defendant were convicted. If the forecast is more than three years, there is a jury; if it is not, there is none. That is far too crude a test to bear the full constitutional weight that the Government want to place on it. The Bill itself exposes the weakness in the logic, because although the allocation decision turns on a prediction about a sentence above or below three years, the Bill also expressly states that nothing prevents a court sitting without a jury from later imposing a sentence of more than three years. In other words, even the Bill recognises that the initial prediction may not tell the whole story; if that is so, why should that prediction be the sole basis on which a person loses the right to jury trial?

Amendment 24 is so worth while because it states that in deciding whether a defendant should still have a jury, the court should not only look at the likely sentence but be able to consider whether: the defendant is of good character; they have previously been convicted of an imprisonable offence; they are treated as rehabilitated; conviction would cause significant reputational or professional harm; the gravity or complexity of the case might increase; and other exceptional circumstances. That does not strike me as radical. It is simply an attempt to make the law reflect reality and be less prescriptive. Additional flexibility makes for better outcomes.

One of the strongest parts of amendment 24 is the recognition it gives to good character and to those who have not previously been convicted of an imprisonable offence. I raise this because the Government’s crude threshold risks producing perverse results. The people who may be hit hardest by clause 3 are precisely those who are newer to the justice system, those of previous good character and those for whom a conviction would be utterly life-changing.

The Bar Council illustrated the point starkly in written evidence with the example of a 19-year-old student charged with possession with intent to supply after a small amount of Spice was found in their room—I am sure Members will remember my reciting that specific example in Committee on Tuesday. Because they are of good character, the likely sentence under the guidelines may be low enough that they lose jury trial altogether, even though the charge could destroy their future. Meanwhile, someone with previous convictions may be more likely to cross the sentencing threshold and so keep the right to a jury. That is exactly the sort of absurdity that amendment 24 tries to avoid.

That is wholly consistent with the broader critique of the Bill. Conservative Members have repeatedly argued that the Government are treating this as an administrative exercise, when in fact people’s lives are at stake. The shadow Justice Secretary, my hon. Friend the Member for West Suffolk (Nick Timothy), put it clearly on Second Reading when he said that the Government were proposing to remove fundamental rights

“without a mandate, without a case and without any evidence”.—[Official Report, 10 March 2026; Vol. 782, c. 207.]

The Opposition also challenged Ministers on taking away jury trial for offences that cost defendants their jobs, their homes and their families. Amendment 24 responds precisely to that point.

I note the inclusion in amendment 24 of cases in which the defendant would likely suffer significant reputational damage or have their employment or professional qualifications adversely affected. That is important because the seriousness of a case cannot be measured by custody alone. A sentence of under three years can still destroy a person’s livelihood, strip them of professional standing, end a career built over decades and permanently alter family life. The Government keep speaking as though anything beneath their threshold is somehow low level. The Opposition have rightly made the point that even where a sentence is below three years, the consequences can be catastrophic. Amendment 24 simply recognises that reality.

There is an obvious point of fairness here, too. If the state wishes to prosecute a person in circumstances where conviction may ruin their livelihood or reputation for life, it is hardly excessive to say that jury trials should at least remain available. That is an ancient constitutional right and the Government should, even now, think very hard before removing it.

I also support paragraph (f) in amendment 24, which deals with cases where there are reasonable grounds to believe that the gravity or complexity might increase. Again, this is simply common sense. Criminal cases often evolve, evidence changes, witnesses come forward, and issues that initially looked straightforward become anything but in the crucible that is the courtroom.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

The hon. Lady is making an excellent point about the complexity of cases changing throughout. A legal professional recently shared with me the story of what was an assault case, but the victim passed away during the trial, so they are now dealing with hearing evidence of potential brain trauma injury. Does the hon. Lady agree that that case deserves the complexity of a full Crown court trial because the case has changed as the trail has developed?

Rebecca Paul (Conservative, Reigate)

I completely agree with the hon. Lady. She has set out a good example of the type of things that happen in reality. Life is not tidy, and unexpected things happen. As we look at the Bill and whether a sentence is over or under three years, it is easy to think in simple terms but, in reality, people who work in the justice system—I have not done so, but I have spoken to people who do—understand the movement and flexibility that is required. That is why amendment 24 works really well by taking that into account. The hon. Member for Bolton South and Walkden, who drafted it, clearly has real-world experience of what actually happens in a courtroom.

The Bill already recognises elsewhere that there can be a relevant change of circumstances requiring the court to revisit allocation, so the Government’s own drafting accepts that these matters are dynamic rather than static. If that is so, why would we not want to build in a bit more foresight at the front end as well? Paragraph (f) in amendment 24 is not some wild departure from the structure of the Bill; it sits comfortably with the Government’s own recognition that allocation decisions can become unsound as a case develops. It is simply a more prudent and realistic approach to cases in which the true seriousness may emerge only over time.

Finally, the reference in amendment 24 to “other exceptional circumstances” is extremely important. No statute, however carefully drafted, can predict every factual scenario. That is especially true in criminal justice, where the facts and human consequences of a case can vary enormously. A residual exceptional circumstances test is therefore not a weakness; it is a mark of maturity in the law. It recognises that Parliament should not force judges into injustice. If the Government truly believe in justice rather than mere throughput, they should have no objection to preserving a narrow, exceptional route to jury trial where justice plainly demands it.

Amendment 39, tabled by my hon. Friend the Member for Bexhill and Battle, deals with the alternative, broader approach to building flexibility into clause 3. It is an especially important amendment because it puts the issue in the clearest possible terms: those of natural justice. The amendment says that a trial should still be conducted with a jury where the defendant demonstrates that to be tried without one

“would amount to a breach of the principles of natural justice.”

That is an extremely modest safeguard. It would not wreck the clause; it would merely build in additional protection through allowing an element of judgment to decide the mode of trial. It would not restore the right to a jury trial in every either-way case; it simply says that where the injustice is plain, a jury trial must remain available. I struggle to see how any Government serious about fairness could object to that.

This is an issue of paramount importance on our side, and I hope on the Government’s side too. My hon. Friend the Member for Bexhill and Battle tabled amendment 39, as well as amendments elsewhere in the Bill—in relation to clause 1, in relation to reallocation under clause 3, and in relation to clause 4—to seek to protect natural justice. We will keep making these points. If Ministers insist on creating judge-only routes, they must at the very least accept a residual safeguard based on natural justice.

For all the reasons I have outlined, I support amendments 23, 39 and 24. They would deliver the additional safeguards needed, so I urge the Government to adopt either the Opposition’s amendment or the amendments tabled by the hon. Member for Bolton South and Walkden.

Siân Berry (Green, Brighton Pavilion)

It is great to have you in the Chair, Dr Huq. I am looking forward to today’s debates. I have not tabled any amendments to clause 3, but I want to talk about some necessary changes to the clause that fit in with this group of amendments. I hope the Committee will have patience with me.

I want to raise again the principle of jury equity, which the Government are effectively abolishing by abolishing the right to elect a jury trial completely. I previously asked whether the Minister had considered the Bill’s impact on jury equity when drafting it, but she did not answer. I also asked whether the Minister could tell us whether we can honestly expect a judge triaging a case under the provisions in the Bill ever to allow a jury trial on the grounds on which some people currently choose one, which is to allow for the possibility of jury equity to achieve real and proportionate justice, rather than the criteria in clause 3.

This issue is complicated, and trying to fix it in the context of a Bill that includes clause 1, which abolishes the defendant’s right to choose, is tricky, which is why I spoke so strongly against it. The principle and the right of juries in respect of jury equity comes out of common law. I mentioned the 1670 case, and the High Court has commented that it has been a well-established principle in common law ever since then. As it is not in statute it is, by tradition, relatively unspoken. I spoke of the case of Trudi Warner, who tested the principle through her desire to make sure that the information about jury equity was seen by people taking part in a protest. She did that not just in case they spotted the plaque in the Old Bailey, but through the demonstration that she passively took part in.

I have not tabled direct amendments to the clause because it is hard to take a common-law principle and write it into statute, but I believe we need to do something. We should properly consider what kinds of cases the judges who make allocation decisions should allocate for jury verdicts based on principles of this kind. It seems to me that Opposition amendment 39, talking as it does about natural justice, might encompass the idea in that broad sense, so this might be the place to raise it.

I have previously focused on how so many protest-related offences fall into the either-way category, and how only one of 200 recent convictions has resulted in more than a three-year sentence. But this is not just about protest offences with sentences below three years, nor am I arguing for any kind of exception to be made for protests. We can all envisage cases where natural justice for defendants might best come from the right of juries to use jury equity—for example, where criminal actions were coerced or came from exploitation and victimisation arising from deeply desperate circumstances, or were otherwise felt to be motivated by necessity in the face of the circumstances. Indeed, that is one of the key reasons why a number of violence against women groups have written to MPs with their concerns about victimised defendants.

Similarly, there are cases in which young people, particularly black young people, might not feel that their challenges to the evidence put forward by police and prosecutors, or the desperate circumstances of their offending, would get a fair hearing without a jury who have this principle at hand. In the case of the postmasters and mistresses mentioned in a previous debate—defendants who were in fact victims of the Horizon scandal—evidence from powerful actors was more likely to be believed by a judge, but a jury might have had, and in some cases did have, a more realistic perspective and attitude towards corporate evidence. Justice hugely needs defendants to have access to the chance of having a jury of their peers take their side against prosecutions brought by the powerful against the underdog.

I ask the Minister to consider whether jury equity might be needed to ensure natural justice in a number of cases, and to open up the discussion more fully. I am not yet convinced that she has taken my point on board, and I do not expect her to give in directly in our proceedings today, but I hope that I have argued and at least given her pause for thought on this matter, and that she will now think about what she is doing to this centuries-old principle of common law, and how together we might remedy it as the Bill progresses.

Kieran Mullan (Conservative, Bexhill and Battle)

It is a pleasure to serve under your chairmanship, Dr Huq.

I want to begin by touching again on the question of necessity. One of the key arguments for clause 3, and one of the reasons why the Opposition think there is a debate to be had, is that we do not feel that the new provisions are entirely necessary to bring down the backlog, and that there might be other means by which we might do so.

We have had a debate about what the figures say, and I have laid out why I think they are important. They are important because the Government accept that, quite plainly, they have not yet implemented the reforms that they think are absolutely necessary to bring down the backlog. While the Government and the Opposition recognise that some steps that might help have been taken, such as the lifting of the cap on sitting days, the Minister herself accepts that even that measure will not have had full effect yet. On other measures, such as on prison transport, there has not been any significant reform or undertakings to do things differently. We are at a very early stage of the approach to bringing down the backlogs in the significant way that the Minister and the Opposition would like to achieve.

In that scenario, given that so little has been done in comparison with what we would hope to achieve—with or without the Bill—if there were some suggestion that backlogs were falling, that would be incredibly important for the Committee to understand. It would give us the confidence to question whether, at this early stage, there is an alternative approach. If we are managing to bring the backlogs down in some parts of the country, we could base that approach on understanding what is happening in those areas and expanding on it before taking the unprecedented step of restricting jury trial rights.

The Minister and I had an exchange about this in an earlier debate. I suggested that there have been positive developments and a reduction of the backlog in some areas. I want to be clear about what I said to the Minister:

“What is happening right now with the backlogs is extremely important to this debate. If the backlogs are coming down in some places without these changes being introduced, it is vital to know and understand that.”

I echoed those points in other parts of the debate. The Minister responded:

“I checked this during the adjournment of the sitting: the CBA’s point relates to new receipts in certain courts, rather than the state of the backlogs, which, as I said, continue to rise. I absolutely welcome the progress in some parts of the country in lowering receipts, which is obviously good news for the courts, but that does not yet reflect any lowering of the backlogs. As we would expect, the investment will take time to kick in.”––[Official Report, Courts and Tribunals Public Bill Committee, 14 April 2026; c. 159.]

In response to my question as to whether the backlogs were coming down in some parts of the country, the Minister told the Committee—on the record—that they were not.

As Members might imagine, I went away and had a further look at the data to ensure that that was the case. My understanding of the latest available published statistics is that the Minister may have inadvertently misled the Committee in stating that the backlogs were not coming down in certain parts of the country. As of December 2025—the latest period for which we have this data is from quarter 3 to quarter 4—there has been a drop in the backlogs in the south-east, the north-west and Wales. We have seen a drop in the backlogs in the quarter-on-quarter data in three parts of the country, and it is extremely important that the Committee understands that.

Alex McIntyre (Labour, Gloucester)

As the shadow Minister has the backlog data to hand—I do not—would he mind sharing with the Committee the data for all the other regions and the overall backlog picture for the whole country?

Kieran Mullan (Conservative, Bexhill and Battle)

In all the other regions and overall, the backlogs are going up. That is why we have to understand what is happening regionally and why I asked the Minister about that. Throughout this Committee, one of the main arguments from Opposition Members, the Criminal Bar Association and other opponents of the Bill has been that if we are able to replicate what is happening in the best parts of the system, we should be prioritising that.

For example, Liverpool Crown court does not have what might be called unacceptable levels of backlog. As Sir Brian and others have pointed out, every Crown court has a backlog in the sense of a trail of cases that are due to be heard. That is a normal and needed part of the process of case management, and no one argues that there is an unsustainable and unacceptable backlog in Liverpool Crown court. If Liverpool and whole regions can get it right, surely we should be prioritising trying to replicate that.

Yasmin Qureshi (Labour, Bolton South and Walkden)

The shadow Minister is talking about the north-west, and I am an MP for that region. The numbers are going down in Preston, Liverpool and even Bolton Crown courts, and one reason for that is that they have taken a proactive approach to case management. They are regularly monitoring cases, and going into courts to judge whether cases are trial ready. That is unlike in some parts of the country, where a case is set for trial in two or three years’ time and nobody looks at it or tries to sort out problems until literally two days beforehand, which then leads to a delay.

Kieran Mullan (Conservative, Bexhill and Battle)

The hon. Member has articulated extremely well that these things can be done differently and have a different outcome. I heard about case management directly from Liverpool Crown court. It has an aggressive approach to case management: it swept the cases and was clear whether it needed to be hearing a case or whether it could do any work to get a plea. It does a lot of work, and if every court was doing that, it would deliver different outcomes. The Minister might rightly point out that different courts have different circumstances, but surely the goal should be to correct those circumstances so that the positive things enabling some courts to bring the backlogs down can be done everywhere.

Linsey Farnsworth (Labour, Amber Valley)

My point follows on from the powerful point the hon. Member is making about the need to look at good practice, which is something we should all get behind. Over my many years of working for the Crown Prosecution Service, I saw various schemes aimed at doing just that, but unfortunately, given that we are here today, they did not sort out the issue entirely.

Does the hon. Member recognise the evidence Sir Brian Leveson gave specifically about Liverpool Crown court, in which he cautioned against suggesting that that case could simply be replicated across the whole country? Liverpool Crown court deals with a single police force and Crown Prosecution Service, and has a very small local Bar that work together well. Although we would like it to be, that is not necessarily the case across the country. Does the hon. Member recognise that those circumstances are unique and may not be possible for the whole country?

Kieran Mullan (Conservative, Bexhill and Battle)

Yes, absolutely. In the NHS, I worked on what we might call change and improvement programmes or quality improvement programmes. We worked hard to replicate the best clinical practice everywhere, but it is simply not possible to directly replicate everything that goes on in every unit, although that is not to say that we cannot do some of what goes on. As the hon. Member for Bolton South and Walkden pointed out, we are not talking about a single court; that is why I was clear about looking at this on a regional basis. I do not think that the data in any of these regions is getting better because of one court that has specific circumstances that cannot be replicated. That is why we have to show a high degree of interest in understanding what can be replicated and in trying those measures.

As we heard from the representatives of the criminal Bar and the circuit, we should give them a chance to try some of these things before we do something so unprecedented that will lead to a curtailment of rights. Nobody thinks that the other, positive parts of the Bill, or the measures that do not even require legislation, take away from anything else; they are just exceptionally positive things we could be doing where we do not pay some kind of price. Surely, we should try those before taking the step proposed in the Bill. Whether or not we think this step is reasonable—Labour Members have made it clear that they do—I doubt they think it will not lead to a loss in relation to jury trial rights.

Rebecca Paul (Conservative, Reigate)

My hon. Friend is making a powerful point about the existing backlog starting to go down, and why it is important that we look at that and understand the impact that other measures are having. Does he agree that the recent change to suspensions for three-year sentences, which went live only a few weeks ago on 22 March, will decrease receipts to court, as it will increase guilty pleas? Whether that is good or bad is a totally separate debate, but it will surely reduce the backlog further.

Kieran Mullan (Conservative, Bexhill and Battle)

Yes, and my hon. Friend did an excellent job of pointing out that although that might have been in some non-statutory documents, we do not know, because we do not have the details. We do not know whether that was included in the impact statement or the modelling that the Government have relied so heavily on to make their case. As I have said, it is extremely important that the Minister said, on the record, that there was no lowering of the backlogs in any of the regions. The data I can see suggests that there has been a quarter-on-quarter lowering of the backlog in three regions.

Alex McIntyre (Labour, Gloucester)

For the sake of clarity for the whole Committee, is it not also true that quarter-on-quarter data generally shows a decrease in backlog between Q3 and Q4 in most years for which we have data, because there is a drop in receipts around that time of year? Does the hon. Member recognise that if we look at the data for the overall year, the backlog has been reduced only in the north-west, and by only 2%? If we reduced the backlog by 2% a year, it would take 50 years to clear.

Kieran Mullan (Conservative, Bexhill and Battle)

I accept the first point. If the Minister had said, “Yes, there is a drop in the backlog in those three regions, but we tend to see that because of this,” citing the points the hon. Member made, we would be having a different discussion, but she did not say that; she said there was no drop.

On the second point, the hon. Member is also right: if that rate of drop was all we were ever going to get, it would not make a material difference to the backlog. That is why I was very clear that, if we are getting a drop, in a context where everybody agrees we are very early in the process and have done a fraction of the things we could do, it is important for us to look at it. If we were at the end of the process and had done all the things we all agree are positive and should be done, and that was the rate of return we were getting, we would be having a different debate. But we are not at the end of it; we are at the start.

That brings me to another point. The Minister may have access to the more recent, provisional data, which we are not able to see, and that may be the basis on which she told the Committee there has not been a drop in the backlog in individual regions. We are past the point, so to speak, of the next quarter’s data—the January, February and March data—but we do not get to see that data until June. We are having a very important live discussion about what is happening with the backlogs, and we have to wait to see that data.

That was not always the case. In Spring 2020, with their absolute focus on what was happening in the Crown courts and under massive pressure to ensure that everything possible was being done to manage them effectively and efficiently—this might be a familiar story now—the previous Government made the provisional data available so that there was a quicker turnaround, enabling people to scrutinise the system. There absolutely were challenges with that. The data would be revised, as is often the case. We in this place are used to provisional statistics being published and then revised at a later data; we are used to managing that and treating data with the necessary caution.

Paulette Hamilton (Labour, Birmingham Erdington)

I thank the shadow Minister; I am listening to what he is saying and I am finding it really interesting. But let us not forget that, until 2019, we had a backlog of something like 40,000, and that has now doubled to nearly 80,000. The Tory party was in power at that time and presided over all this. We are trying to make a difference. It has been said that everything that has been done is wrong, but I ask the shadow Minister why he did not bring in at least some of the preliminary changes that he says we should have brought in. At least then we would have some of those statistics to work from now that we are trying to make changes in the system.

Kieran Mullan (Conservative, Bexhill and Battle)

I draw the Committee’s attention to my remarks at the outset of our proceedings: our judicial system, victims and defendants and how we manage crime in this country are my personal priorities. That is primarily the reason why I sought to be elected to this place, so I will never disagree that justice should get a higher priority than it has historically. I also pointed out that Labour Members more broadly have accepted that justice getting insufficient priority in our political system has gone on for many decades.

The hon. Member for Birmingham Erdington is right in pointing out the backlogs that existed prior to the pandemic, and they were actually lower than those we inherited from the previous Government. If we are talking purely about what happened with the backlogs, our record prior to the pandemic was an improvement on that of the previous Labour Government. That does not mean it is okay; that does not mean we say, “We did a great job,” but it is important, in balancing and understanding the debate, to know that.

In terms of what we did in relation to the covid pandemic and all the challenges it posed, we had uncapped sitting days and Nightingale courts, and we took steps to try to address the backlog. I served on the Justice Committee, scrutinising what the Government were doing at that time. I was very frustrated, because we would visit Nightingale courts and one of the biggest challenges they faced was the lack of certainty about whether they would be renewed in the future. I questioned Ministers at the time about that. To all of us on the Committee, on a cross-party basis, it was obvious that those courts would need to carry on for longer—why not just get on and agree that and let them run in that sustained way? There were many things we could and should have done better. That is not to say that we did not do anything or that, prior to the pandemic, our record did not compare favourably to that of the previous Labour Government.

As I said, in that particular example we introduced the innovation of making the provisional data available earlier. In June, given the challenges with that data being wrong on occasion, a decision was taken to temporarily stop publication, to see if we could close that gap. If that data is significantly different from the revised published data, there is sense in looking again at the methodology and seeing whether the gap between the provisional and final data can be closed. But here we are, almost a year later, and the Government have not chosen to reinstitute the publication of that provisional data. I think everyone on the Committee would benefit from seeing that data, so I would be interested to know whether that is the basis on which the Minister has said the backlogs in some regions are not going down, when in fact, from the evidence and data I have seen, they are.

Our amendments are aimed at delivering a fairer system. Amendment 23 also seeks to achieve that outcome, in a more specific but equally valid way. As my hon. Friend the Member for Reigate said, human beings in criminal cases are not neat, so we need a degree of flexibility. There is not flexibility in all parts of the system at the moment, but allowing a judge, on their own, in these types of cases, to allocate, hear the case, determine guilt and issue a sentence is unprecedented in our judicial system—

Linsey Farnsworth (Labour, Amber Valley)

District judges in the magistrates courts sit alone every sitting day and hear cases and trials. They then go on to sentence if that person is convicted, or to release them if they are acquitted. That happens every day, so there is precedent within our criminal justice system. District judges hear the most serious and complicated cases that go to the magistrates courts. So there is already precedent for this, and indeed in the youth court as well.

Kieran Mullan (Conservative, Bexhill and Battle)

Although not intentionally, the hon. Member cut me off before I made the point I was going to make, which is that this is unprecedented in cases of this nature, with sentences of this length.

Linsey Farnsworth (Labour, Amber Valley)

I am afraid I have to disagree with the hon. Member, because the youth court has powers to sentence people for up to two years, so it already has higher sentencing powers than magistrates. Many of the cases we are talking about in the Crown court bench division would command a sentence of perhaps two years.

Kieran Mullan (Conservative, Bexhill and Battle)

I covered that in earlier remarks, when I pointed out that those people are not adults, so it is a different set of circumstances. If the hon. Member is asking me to be ultra-specific—I am happy to be—what is proposed is unprecedented for cases of this nature, with adults, with these sentence lengths. That is, of course, the vast bulk of our justice system. There are lots of things that we do differently for children than we do for adults in the justice system. I am not familiar with arguments suggesting that those distinctions cannot be made, and that something we do with the youth custodial element or judicial process must therefore be perfectly acceptable with the adult estate. We do not do that.

Linsey Farnsworth (Labour, Amber Valley)

But the hon. Member is happy that youths are treated fairly in the criminal justice system, even if a single judge hears their case.

Kieran Mullan (Conservative, Bexhill and Battle)

Again, we talked about this before. There are degrees of fairness. Specifically on whether a defendant will get a judge who is as fair as possible in terms of representation, understanding their background and so on, I think it is less fair than a jury system. But I made it clear that other factors are given greater weight in the youth court. For example, the intimidation that a young defendant might feel in the adult court versus the youth court is given greater weight. I might think overall that the deal, so to speak, for the youth defendant is fair and reasonable, but that does not mean that I cannot say that the absence of a jury might be less fair for a youth defendant in some regards.

Linsey Farnsworth (Labour, Amber Valley)

I think the hon. Member is saying this is a balancing exercise. It is about having a fair trial, but one that is equipped within our criminal justice system. That is exactly what the Government are doing here. Of course we need fair trials, but we also need a criminal justice system that is fair, and justice delayed is justice denied. That is not fairness. Would the hon. Member recognise that?

Kieran Mullan (Conservative, Bexhill and Battle)

To use the word that the hon. Member used at the start of her intervention, it is a balance. We in the Opposition are clear that the Government have that balance wrong, which is why we oppose the measures. As I said, the Government want to have this both ways: on the one hand, when it suits them, they say that it is a balancing exercise, but on the other hand, when we point out flaws in the balance, they say, “Everything’s fine. You would be just as happy in a trial with or without a jury.”

The Government should be consistent. If the Government just said, “This is a balancing exercise. There will be some detriment to people as a result, but we believe that it is right”, and then stuck to that line, at least it would be intellectually coherent. The Minister might think that makes it a debating point, but I think it is pretty important in politics to be intellectually coherent. We take a different view from the Government.

The other point that we think is different, too, is that the proposal will not achieve the desired outcome. Even if we agreed, in theory, that the balancing exercise was correct and that the trade-off that the Government seek to achieve were a reasonable one to make against the loss of the rights that we are talking about, we do not think that the Government will get those outcomes. We therefore think that the Government’s argument is fatally flawed in two respects, which is why we continue to oppose the Bill.

As I said, fairness is important. We focused on the example where a first-time offender might end up with fewer rights in our judicial system than a repeat offender; in respect of, for example, loss of respect, reputation, employment or income, the person who has more at stake has their rights removed. That is a point made clearly by JUSTICE, which supports our amendment 39. JUSTICE states that the three-year threshold is likely to lead to outcomes that are seen as unfair by those within the system and by the public. Repeat offenders are more likely to qualify for a jury trial, because their previous convictions would push the likely sentence above three years, while first-time offenders committing the same offence may be denied a jury trial.

When we put that to Ministers, as I said, they say that it is perfectly fine for those people to have a trial without a jury, and that is fair. Ministers also say, however, that they are keeping jury trials for the most serious cases—but if they are keeping it for the most serious cases, they must at some level accept that it is a superior system in some way. Otherwise, why keep it for the more serious cases, as they define them? The Government cannot hold both positions coherently.

Absolutely, as I said, the core issue is fairness. The Government want to have it both ways in this argument, but of course the defendants will not get to have it both ways. The defendants will just have what they are told by the judge, without any ability to exercise their rights in the way that they think is fair or consistent with the broader point. We therefore continue to press our amendment 39 and that is why I ask Labour Members to think carefully; this might not be universal, but how many of them would feel happy if they—with their previous good character, and all the damage that could happen to their reputation and income from a conviction—were not allowed to have the option of a jury trial? I cannot say for sure, but potentially some of them might feel differently then.

Sarah Sackman (Labour, Finchley and Golders Green)

It is a pleasure to serve under your chairship, Dr Huq. I thank my hon. Friend the Member for Bolton South and Walkden and the hon. Member for Bexhill and Battle for their amendments. I will address amendments 23 and 24 first.

The test for the clause is framed intentionally framed around a single condition: the likely sentence. We are ensuring that jury trials are preserved for the most serious offences. Under proposed new section 74A, indictable-only offences will always be tried by a jury. In all other triable either-way cases, the likely sentence provides the clearest and most objective way of identifying seriousness, ensuring that cases where the likely sentence exceeds three years’ imprisonment or detention are heard by a jury. That follows recommendation 30 of the independent review of the criminal courts.

That is already a feature of our system—every day, magistrates courts determine allocation by assessing the likely sentence on conviction. The clause applies that well-established approach in the Crown court; it is not, in that sense, a departure from the current system, but a consistent extension of it. We do not exclude broad categories of defendants from such an assessment in the existing system, and nor do we intend to do so under the reforms. Doing so would risk undermining the impact that the reforms are designed to deliver.

As such, the test does not introduce separate gateways based on the personal characteristics of the defendant; it is focused rather on the seriousness of the offending. Introducing such gateways would remove a significant number of cases from scope. Nearly a quarter of those convicted in the Crown court are first-time offenders, and these amendments would carve out even more cases than that, as they include wider defendant-specific factors, thereby undermining the purpose of the creation of the Crown court bench division, which is to ensure more efficient processing of cases to reduce the overall backlog on a sustainable basis.

As a general rule, those defendants are not given automatic priority in procedural decisions; case management decisions, such as on adjournments, disclosure directions and trial scheduling in the Crown court, do not tend to turn on the characteristics of the defendant. The amendments would change that approach by determining mode of trial by a number of independent defendant-specific factors. Every defendant in the Crown court will receive a fair trial, and that is not affected by the mode-of-trial decision. We have confidence in our judiciary, who take a formal judicial oath to act independently, impartially and fairly.

Kieran Mullan (Conservative, Bexhill and Battle)

Why does the Minister think it is important that some cases remain with a jury trial? What are the material differences that she sees between a jury trial and a non-jury trial that cause her to seek to allow some to continue with a jury trial?

Sarah Sackman (Labour, Finchley and Golders Green)

As I have said consistently throughout this debate, we regard jury trials as a cornerstone of British justice. They are part of our legal culture, for all the reasons that Members on both sides of the House have articulated, and we do see a role for citizen participation in our justice system, not least to preserve its legitimacy. But what corrodes the legitimacy of our justice system is a backlog in which we see appalling delays, causing people to lose faith—whether they are witnesses, complainants or indeed defendants—and to pull out of trials. That is corrosive of trust in our justice system. We therefore of course want to preserve juries for our most serious cases. But trust in a system is built on many foundations, and the timeliness and proper administration of that system, including the proper resourcing of the system—which was not the case in the previous 14 years—is paramount when it comes to trust in the system.

Kieran Mullan (Conservative, Bexhill and Battle)

Does the Minister accept that there are elements of a jury trial—not necessarily as a whole, but some elements—that are superior to a trial without a jury?

Sarah Sackman (Labour, Finchley and Golders Green)

The premise of not just these amendments, but amendments that we have already debated, is that other tiers of the system, whether that be the magistrates court or the proposed Crown court bench division, somehow offend the principles of natural justice. The principles of natural justice are essential; they are foundational. They are based on impartiality, freedom from bias and fair process. All those things are guaranteed under our current system in the magistrates court, and would be guaranteed in a judge-only trial, as articulated by my hon. Friend the Member for Amber Valley; district judges make those decisions on a daily basis.

The hon. Member for Bexhill and Battle wants me to say that, somehow, this would be a lesser justice. I will not say that. I am recognising that there is something special about jury trials—of course there is; it is why I have said consistently that they are a cornerstone of our legal system—but we have to deploy what is a very particular resource that demands a great deal of jurors. We have not spoken about jurors all too often in this debate, but there is something called jury burden. That is why, as we will hear when we come to the clauses that deal with judge-only trials for long and complex cases, particularly for fraud, which place a huge burden on jurors, often with cases lasting months on end, we have to use that resource and deploy it carefully.

However, as I have said repeatedly, and I will say it again, the state’s obligation at every level of the justice system, at every level of seriousness, is to guarantee an individual defendant a fair trial that upholds the principles of natural justice, which is what the hon. Member’s amendment actually focuses on. I am firmly of the view, and the Government are firmly of the view, that, whether by lay magistrates, by judge alone or by a judge and jury, our system upholds those principles of natural justice and is therefore fair throughout.

Paul Kohler (Liberal Democrat, Wimbledon)

I have listened patiently to the Minister’s arguments for two sittings. She said something that I really do want to ask her to reflect on. She has talked about jury burden, and about the fact that it is important for confidence that the citizenship takes part in the system. The Minister and the Government are seeking to halve the number of jury trials, and therefore halve the number of times that members of the citizenship will actually take part in juries and in the criminal justice process. Does she not see that that undermines the whole system? Many people will not now have a chance to take part in juries and that is a crucial thing. Talk to anyone who has been on a jury, and they will say that they hated the idea when they were called up for it and loved it afterwards because they have actually taken part in the system. The Government are halving the possibilities of people doing that.

Sarah Sackman (Labour, Finchley and Golders Green)

I do not accept the premise or assumption that everybody has a positive experience of the criminal justice system when they participate in a jury. As the Minister for Courts, I do thank all of those who perform their civic duty. However, when asking people to do that, we must ask them to do it in a way that is fair and proportionate to them, as well as to the other participants in the system—not least the defendants in indictable-only cases and those that, under these reforms, attract a sentence of three years or more.

Cases can and do sometimes evolve as they progress through the courts. Proposed new sections 74B and 74C of the Senior Courts Act 1981 make clear provision for cases to be re-allocated to a jury trial, where the seriousness increases even after a judge-only trial has begun. The basis of these reforms is to ensure that cases are allocated according to the seriousness of offending, with jury trial preserved for the most serious cases.

Paulette Hamilton (Labour, Birmingham Erdington)

I am learning so much from these sessions. I have a question on choice. Many people feel that the removal of choice is a real problem. Can the Minister explain why that choice is not being given to people who feel that they need it because they feel that the system is working against them? How will they feel that they have that choice even without a jury present?

Sarah Sackman (Labour, Finchley and Golders Green)

It is a good question and one that we touched on in our earlier debate in the context of clause 1, where we were discussing the proposal to remove the defendant’s right to insist on their choice. When we step back and look at the entirety of the system, if a person is charged with a summary-only offence that will be considered by the magistrate, there is no choice; you are allocated directly to a trial by the magistrate’s jurisdiction. If a person is charged with an indictable-only offence—a more serious offence—there is again no choice and that person goes to the Crown court whether they like it or not.

Under our system we have this feature of triable either way, where we extend the choice to defendants in a category of cases that we, as a society, have chosen. As I have said, lots of other jurisdictions—and I use the Scottish one as an example because it is proximate—do not have this feature. In many ways, when I came to this debate and to reflect on the policy choices that we might make, driven by the critical—dare I say emergency—context in which we find ourselves, this feature of our system seemed to me quite strange. I cannot deny that it is a choice that people have obviously enjoyed and utilised, with many opting for Crown court trials even when the seriousness of their case meant that it could have been dealt with a lot more swiftly and efficiently in the magistrates court.

We know that people are making those choices, so there must be a reason for that the preference. It might be driven by lots of things: because of confidence and also presumably because people think that they will get some advantage and perhaps a better chance of being acquitted if the trial is heard in the Crown court. However, it is strange when thinking about public services and how we triage and ration what is ultimately a limited resource.

That is why I use the health analogy—and not just because my hon. Friend the Member for Birmingham Erdington is so experienced in that field. When we think about how we triage finite resources within the NHS, we give patients choices around their healthcare, but ultimately the triaging is done by the experts. In this context, the expert is the court. The court knows, based on the seriousness of the offence, what mode of trial is most suitable in the context. Under these reforms, we are saying that it is the court that should decide, rather than the defendant being able to insist on their choice, even if that choice comes at the expense of the complainant, who might end up being the victim in the case, and needlessly dragging things out.

We must be honest and pragmatic. It seems to me a quite unusual feature of our system that it is the defendant that always has the right to insist when, in lots of contexts, the defendant does not get a choice. It is only in this narrow cohort of cases that they do.

Kieran Mullan (Conservative, Bexhill and Battle)

I have a background in healthcare. The Minister has talked about triage being led by healthcare professionals, but there is another side of healthcare where people can insist on choice. This Government have introduced Martha’s rule, where the family member can not only insist on choice, but override what the treating clinical team think is the right course of treatment. They are given a route to go around them, to call someone, to insist that they are wrong and that they fundamentally disagree with them, and to get somebody else in who will challenge what the consultant in charge of the patient thinks is right. The Minister points to one element of the healthcare system where the state has a greater degree of control, but does she accept that there are other aspects of the healthcare system where we allow people to override what the healthcare team want to do?

Sarah Sackman (Labour, Finchley and Golders Green)

I do not want to labour the analogy—forgive the pun—but in many senses, we do allow that. Under this system and the reformed system, we preserve the right of the defendant to appeal. Having allocated the trial to the venue, be it judge-only or the magistrates court, if the outcome is perverse in some way or the defendant takes issue with it, they can appeal the verdict, provided that there is a proper legal and rational basis for doing so.

Tristan Osborne (Labour, Chatham and Aylesford)

The Minister cited Scotland as a good example within the United Kingdom. Scotland has seen a significant drop in the backlog of cases over the last several years, partly as a result of the system that she has explained. Does she think that the modelling within our country—some of the best practice we have seen in Scotland—might be a solution for England and Wales?

Sarah Sackman (Labour, Finchley and Golders Green)

I think there is some consensus here. We are all extolling the virtues of our system. As the Minister with responsibility not just for courts, but for legal services more generally, promoting our legal services and courts around the world, I am very proud of that. Being proud of our system in England and Wales, however, does not mean that there are not things that we can learn from other jurisdictions, particularly where they are producing better outcomes in timeliness or in the treatment of minorities, women, rape and serious sexual offences. It is why I went to Canada to learn from practitioners and judges there. We will take the lessons from wherever we find them. I will pick up later on the point about regional differences, because we must always learn lessons, whether internationally or closer to home.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

We heard oral evidence from Doug Downey, who talked about the Canadian system. He also talked about how the right to elect is a protected characteristic of their justice system. The difference is that they have the right to elect a judge-alone trial. Did the Minister explore the option of maintaining the right to elect, but allowing defendants to choose whether they would like to have their case heard in a Crown court bench division with a judge alone?

Sarah Sackman (Labour, Finchley and Golders Green)

The hon. Member asks a typically great question. We did think about it. I am well aware that the right to elect exists, once a defendant is in the superior court in Canada. We considered whether the right to elect to go before the Crown court bench division should be included as part of the reforms. The reason we did not, and the reason why these reforms are predicated on the consistent principle that it is for the court to determine mode of trial, is partly about the balance we wanted to achieve within the system between defendant rights and the rights of other participants—I am wary of using the word victim—or complainants within the system.

We received representations from many complainants and people who have been victims of crime, and those who represent their interests, such as the independent Victims’ Commissioner and London Victims’ Commissioner. Many felt that it was so often the defendant’s choice and right to insist on choice that was driving the process and was part of an imbalance in the process. There is both a pragmatic element to our choice, because we think that by introducing a new Crown court bench division we will save time and speed up the processing of trials, and a normative principle behind it, which is about who is in the driving seat in these decisions. We think it should be the court and not always the defendant.

Matt Bishop (Labour, Forest of Dean)

We have heard from Opposition Members this morning about how defendants should have confidence in the system and about choice and being fair, whether it is in magistrates courts or Crown courts. On the point the Minister has just made, is it not right that victims and witnesses should also feel confident in the system? The only way to achieve that is by levelling things up, because ultimately victims do not have a choice about which court cases are heard in. Witnesses do not have any choice in the matter whatsoever. By doing both, we could get better confidence among every member of society, rather than just defendants.

Sarah Sackman (Labour, Finchley and Golders Green)

We do think this is the right balance, which is why we brought it forward. It is the test that was recommended to us by the independent review and we think it is a considered, objective and balanced test. We are bringing it forward because we think it is the right one. Expanding the test for—

Paul Kohler (Liberal Democrat, Wimbledon)

Will the Minister give way?

Sarah Sackman (Labour, Finchley and Golders Green)

I am going to make a little progress—

Kieran Mullan (Conservative, Bexhill and Battle)

Will the Minister give way on that point?

Sarah Sackman (Labour, Finchley and Golders Green)

I have to make progress. Expanding the test for eligibility beyond seriousness would dilute the focus and risk undermining both the clarity of the allocation framework and the savings these reforms are designed to deliver. I therefore urge my hon. Friend the Member for Bolton South and Walkden to withdraw her amendment.

Amendment 39 would introduce a new route to jury trial, where the defendant demonstrates to the court that the circumstances of their case are such that to be tried without a jury would amount to a breach of principles of natural justice. As I have already said and sought to reassure the Committee, those principles of natural justice are, I believe, preserved in the reforms. Those include the right to a fair hearing, the rule against bias and the duty to act fairly and to give reasons where required. As such, I do not consider that the amendment would add substantive protection beyond the safeguards already in place.

I want to pick up on one or two of the points raised earlier in the debate. There was an exchange between the hon. Members for Reigate and for Chichester relating to change of circumstances. That is dealt with in clause 3, which makes provision that where a charge is added to an indictment—an indictable-only charge—the case would be reallocated to a jury trial. Similarly, there are change of circumstances provisions where there is material new evidence meaning that the judge can make a decision that a case should be more appropriately heard before a jury. That is provided for and is intended to meet the sorts of complex scenarios that both hon. Members raised.

The hon. Member for Brighton Pavilion raised again with me the issue of jury equity. I have heard the arguments. I have listened carefully to her as she has raised them on a number of occasions and I listened to the witness who raised them as well, but we do not think it is appropriate to make a specific carve-out for a specific category of offences in this context.

Finally, the hon. Member for Bexhill and Battle raised again with me the argument that we either do not need to do any of this, or we should wait to see how our other measures pan out—the huge investment in lifting the cap on sitting days and in legal aid, the workforce and the efficiency drive.

Siân Berry (Green, Brighton Pavilion)

I appreciate the Minister’s comments, but will she clarify what she meant by a particular category of offence? I could not have been clearer in my speech that I did not want to make an exception for protesters. I spoke specifically about people being prosecuted in cases where it was the powerful versus the underdog. Will she clarify what it is she is rejecting?

Sarah Sackman (Labour, Finchley and Golders Green)

I am rejecting the addition of any other carve-outs or exceptions beyond the test of seriousness that we lay down in these measures, which is dictated by the likely sentence, the test proposed by the independent review of the criminal courts.

Kieran Mullan (Conservative, Bexhill and Battle)

The Minister said earlier, and she just said again, that it was the test recommended by the independent review. But if we are being specific, the test that was recommended was two years. The Government have made the test three years, so it is not the test that was recommended. It is important that the Minister does not repeat that inaccurate phrase.

Sarah Sackman (Labour, Finchley and Golders Green)

The point that I was making is that it should be the seriousness of the case that is the sole dictator of the mode of trial, and that likely sentence is the best and most objective test that we have. We must also be mindful of how we administer a system. Sometimes, adding lots of tests not only leads to complexity and introduce uncertainty, but introduces one of the things that we are trying to eliminate—delay. If we have a straightforward, well-understood test that is consistent with the sorts of allocation decisions that magistrates routinely make, we can apply that test consistently.

Returning to another point that the hon. Member for Bexhill and Battle made in relation to necessity, we maintain that we have a serious, nationwide problem. We maintain that that the national overall backlog of 80,203 outstanding cases in the Crown court, as it stood in December 2025, is an emergency. The central projection for the number of sitting days we are likely to need in very short order is 139,000. If I took an optimistic view that the central projection was too high, even in a low scenario we would need 130,000 sitting days. That is not to say that there are not, on a short snapshot basis, parts of the country that are doing better. I have given evidence to the Justice Committee where we have looked at that. Historically, there are parts of the country—Liverpool and Wales are often cited—that have lower backlogs. But there is no doubt that as a national picture—we do not want a postcode lottery in our justice system—the situation needs tackling.

Yasmin Qureshi (Labour, Bolton South and Walkden)

I think I am possibly the oldest person in this room. As somebody who was prosecuting, defending and dealing with criminal cases back in the late ’80s, ’90s, 2000s and so on, I saw the criminal justice system at first hand. When I started practising at the Bar, we had full legal aid at all levels, so whenever defendants appeared in the magistrates court they had proper advice. We had section 6(1) type of committals, where we could test the prosecution evidence and therefore get rid of a number of cases. We had full courtroom sittings; if Snaresbrook Crown court had 15 courtrooms, 14 or 15 of them were running. We had a full capacity of judges running and we did not have a backlog of jury cases. Will the Minister please rethink? The reason we have delays in our court system is not because of the juries.

Sarah Sackman (Labour, Finchley and Golders Green)

If I may say so, and as long as it is not indiscreet, my hon. Friend seems far younger and more energetic than she claims to be. She makes an important point because she does have long-standing experience in this area; before she came to this place she practised for a long time. I do not know when my hon. Friend finished practising, but we know that—it is one of the central insights of the independent review—the average jury Crown court trial is taking twice as long as it did in 2000.

That increase is driven by a greater complexity in cases and the changing profile of crime. As I have said before, we now have forensic and CCTV evidence, and also—this is something to commend people from previous Parliaments for—procedural safeguards put in place over time that rightly create a fairer system, such as the Police and Criminal Evidence Act 1984. All that is adding to the length of jury trials.

As Sir Brian Leveson himself said, juries are not the driver of the problem, but it is true that jury trials and Crown court trials are taking longer and longer. That is not about to change, and it will not be changed by whatever measures one may bring forward in relation to speeding up prisoner transfer or case progression. The fact that jury trials take up 60% of the hearing time within the Crown court is exactly why the independent review asked us to look at it. I understand the picture my hon. Friend paints of the world we want to live in, but the world we live in now has been transformed and it is the job, particularly of progressives, to move with the times and to build a system that is fit for the profile and technology that we now encounter.

Rebecca Paul (Conservative, Reigate)

It is clear that the Minister honestly believes this change will address the backlog. I do not doubt her sincerity—we believe differently, but I understand that that is what she believes. What concerns me is this: how many miscarriages of justice is she happy to accept in order to bring down the backlog? Why on earth, when miscarriages of justice are clearly going to happen as a result of these measures, are they not mentioned in the impact assessment? It makes no mention of one downside being a potential miscarriage of justice. I find that astonishing.

Sarah Sackman (Labour, Finchley and Golders Green)

Miscarriage of justice should concern us all. That is why I am happy to see the responsibility for looking into miscarriages of justice being given to the Criminal Cases Review Commission under the leadership of Dame Vera Baird. She gave evidence to the Committee, and her support for these measures is notable. I am not sure why the hon. Member for Reigate thinks that miscarriages of justice will increase under them; there is no evidence for that. One miscarriage of justice is, of course, one too many, but I do not accept the premise of her question, which is that the reforms introduced by this aspect of clause 3 will somehow lead to an increase in the number of miscarriages of justice.

Kieran Mullan (Conservative, Bexhill and Battle)

The hon. Member for Bolton South and Walkden highlighted the Post Office scandal. She talked about those involved in that case as an example of people who supported the defendants feeling that there was a risk of greater miscarriage of justice, so it is not a proposition that my hon. Friend the Member for Reigate has plucked out of thin air. Other people with direct experience of these matters think that is a risk, so would the Minister at least accept that it is a valid concern?

Sarah Sackman (Labour, Finchley and Golders Green)

The circumstances of the Post Office Horizon scandal are incredibly serious. Part of the reason why they came about is because people were essentially fabricating evidence and using computer evidence in a way that was fundamentally dishonest. However, I do not think that the reform that we are talking about in this context, which is the allocation test, or mode of trial, and allocation to a Crown Court bench division should of itself reduce the confidence that the public can have in the integrity of our justice system. For all those reasons, and the way in which clause 3 is drafted with a focus on delivering swifter justice for victims, witnesses and defendants alike, I urge the hon. Member for Bexhill and Battle not to press amendment 39.

Yasmin Qureshi (Labour, Bolton South and Walkden)

There has been a lot of discussion about the amendments. As I said on Tuesday, I will not be pushing my amendments to a vote. They are meant to be probing amendments, and I hope the Government will still look at them and consider what has been said.

I wish to talk about a few issues that have been raised. We have heard it mentioned that Scotland does not have a jury system, but it has never had a jury system, so we are measuring different things. Scotland also has its own unique system. For example, it has an in-between verdict: there is not guilty, guilty and something in between. Scotland has its own legal system, but our system has been the jury system for hundreds and hundreds of years. We either think the jury system is good and we keep it for either-way or indictable offences, or we think the jury system is so cumbersome and so bad that we should abolish it altogether. Then we can have a different argument, and we do not have to have it even for indictable offences. What we cannot have is indictable offences and either-way offences being dealt with differently. I respectfully disagree with the Minister.

The Minister asked when I last practised. It is fair to say that it was before I became a Member of Parliament, 16 years ago; but having said that I am in contact with all my friends and colleagues. Some are judges now. Some are practitioners, solicitors, and prosecutors. A lot of my friends from over the years are still prosecutors. I have already alluded to my own family members, and I hear them discussing cases on a daily basis.

There have been some changes, in the sense that trials are taking a bit longer, but juries have not caused that problem. It is because PACE has come in properly, as the Minister mentioned. PACE means that more time is taken, and that is not because juries are taking the time. It is because safeguards were brought in for the criminal justice system and, obviously, we have to go through those safeguards. That means that, when someone is before a judge, the jury is sent away for legal arguments to be raised in front of the judge. We talk about certain evidence being admissible and whether certain arguments should be made. I accept that all those extra procedures could cause a trial to be longer than in the old days, when people could get away with anything.

Trials are lengthier, yes, but it is not because the juries are causing the delay. It is because there are many more procedural rules—not only PACE, but a whole lot of new directions on disclosure and how to deal with disclosure, which makes a lot of difference.

When I used to practice, we more or less just gave every disclosure document to the defence, apart from those documents that had to be edited or redacted. We sent a whole bundle to the defence and they could have a look. Now, it is different. The prosecutors were told—I know this because I was prosecuting at the time—that they could not just hand over unused materials. The defence has to make the case about why they should have unused materials, and the prosecutor has to sit there and work out why they should be able to have which documents. Those processes have added time. If the defence disagrees, there is an argument before the court on what should be allowed in or not.

Kieran Mullan (Conservative, Bexhill and Battle)

The hon. Member is doing a good job of highlighting the whole additional set of complexities of the new system. We cannot predict how those are going to pan out. She referenced the separation of what a judge will hear and what a jury will hear, to preserve the fairness of the jury’s sentiment. We are now going to be in a position to a much greater extent—it might happen in other courts and other circumstances—where the judge has to hear material that is not going to be deemed relevant to the finding, and then make a finding. I am sure that there is going to be a whole new set of case law, with challenges where defendants and potentially prosecutors will say, “That clouded the judgment. That made the judgment unsound.” There is unpredictability and greater complexity in using this system.

Yasmin Qureshi (Labour, Bolton South and Walkden)

Yes, absolutely. At the moment, one of the beautiful things we have is that the judge determines sentence and directs on law, and the jury decides on the innocence or guilt of a defendant. It is fantastic, because that also protects the judges.

In a system where judges are going to be dealing with Crown court cases—we will come on later to complex cases and fraud cases, where they are going to be spending months and months on cases—the judges are going to have to write very long decisions. This is not similar to a district judge in a magistrates court, where the average trial takes maybe half a day or a day, two or three at the most. That is normally the limit.

In the Crown court, the average trial date is two to three days or five days to a week. The judge is going to be writing up all that evidence; because he or she will have to make the decision at the end on innocence or guilt, they have to pencil their decision in a very detailed way, covering not just the law, but an assessment of each witness who gave evidence—for example, “I accept the evidence of that witness because of this, this and this; I don’t accept the evidence of that witness because of this, this and this; this witness is unreliable because of this, this and this.”

All of that will have to be included; if it is not, the defendant who is found guilty will want to appeal, and so the judge is going to spend ages writing decisions.

Sarah Sackman (Labour, Finchley and Golders Green)

I appreciate that my hon. Friend was not present for all the evidence sessions, but I wonder whether she would reflect on the evidence we heard from Clement Goldstone, who was the recorder at Liverpool. He said:

“I also do not accept that there will be additional time spent in the writing of judgments. The vast majority of decisions will follow the conclusion of the defence speech”.––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 76, Q161.]

Judges give a route to verdict in any event, so it is all part of the summing-up process.

Yasmin Qureshi (Labour, Bolton South and Walkden)

I understand that in some of the more simple, routine cases of two or three days, but for trials lasting eight, nine or 10 weeks, I respectfully disagree that judges can come to that judgment in just a few days, because they have to go through a whole load of evidence, comment on it and come to a decision.

Joe Robertson (Conservative, Isle of Wight East)

The hon. Member speaks with eloquence and experience. I understand the Minister’s point: she has framed this as simply removing a choice from a defendant, as though this is a benefit that need not exist, but does the hon. Member agree with my analysis that this constitutes the removal of a right rather than a choice—the right to be tried in the Crown court, unless trial in a magistrates court is preferred?

Yasmin Qureshi (Labour, Bolton South and Walkden)

I do agree. It is important to remember which offences are kept in the magistrates court. There was discussion on Tuesday about burglaries and other offences making it to a magistrates court. With respect, burglaries have never been reduced to being tried in a magistrates court.

What happened was the way that motor theft offences were tried was tweaked. What used to happen is that people, particularly youngsters, would take away a car and were charged with the theft of a car, but as everybody knows, the definition of theft includes intention to permanently deprive. Those people never had the intention to permanently deprive; they were just taking the car for joyriding, and they were then going to leave it somewhere else.

That is why a new offence was introduced: it was initially called TWOC—taking without owner’s consent—and then it became TDA, or taking and driving away a motor vehicle without the consent of the owner. That offence went down to the magistrates court, because it was seen as a misdemeanour—something that a young person might do—and was not the same as giving someone a theft conviction. We had to make some changes, which were very sensible changes. Look at all the cases being dealt with in magistrates courts at the moment: any charge that goes to the issue of honesty is still either-way or indictable.

Linsey Farnsworth (Labour, Amber Valley)

Common assault, for example—

Yasmin Qureshi (Labour, Bolton South and Walkden)

That does not concern honesty.

Linsey Farnsworth (Labour, Amber Valley)

No, but it could very well come down to credibility. My hon. Friend is suggesting that no offences in the magistrates court would come down to credibility, or am I misunderstanding her point?

Yasmin Qureshi (Labour, Bolton South and Walkden)

I was giving the example of TDA and theft legislation. I was talking about offences involving dishonesty, such as theft and burglary or defrauding someone. Even producing a fraudulent insurance document is an either-way offence, because it involves dishonesty. Even now, producing a dodgy insurance certificate is not a magistrates court offence; it is still an either-way offence, because of the element of dishonesty—not in the sense of people saying different things but in terms of intent. That is what I am talking about—not what my hon. Friend was saying.

Linsey Farnsworth (Labour, Amber Valley)

I recently introduced the criminal offence of unauthorised entry of a football stadium. That is a summary-only offence. There are examples in the magistrates court where credibility and dishonesty are key points of summary-only offences.

Yasmin Qureshi (Labour, Bolton South and Walkden)

My hon. Friend is comparing apples and pears. Entry of a stadium that someone is not entitled to be in is not the same as being charged with stealing, even in minor instances, such as stealing a bottle of water. They are two different things. For example, entering enclosed premises is dealt with in a magistrates court. There are different elements involved. What is at stake if I steal a bottle of water? That is very different from entering a stadium that I am not meant to be in.

We have had a good discussion. I still ask the Government to look at my amendment. As I have said from the beginning, I will not put it to a vote, but I am asking them to consider it. I beg to ask leave to withdraw the amendment.

Siân Berry (Green, Brighton Pavilion)

On a point of order, Dr Huq. I alerted the Minister earlier to the fact that I was going to say this. I want to ask what can be done to correct the record in respect of the Minister’s comments about a case that I referred to in my speeches on Tuesday and that Tim Crosland referred to during evidence. On Tuesday, the Minister said that

“some of the cases he mentioned, including the Elbit Systems trial, which the hon. Lady mentioned, contained an indictable-only charge, meaning that the case would receive a jury trial, as that one did in fact.”––[Official Report, Courts and Tribunals Public Bill Committee, 14 April 2026; c. 140.]

I am afraid that the Minister was referring to a different case from the one I was referring to. The recent case that has been in the news surrounding a retrial was related to a break-in at Elbit Systems in August 2024. The November 2022 jury acquittal that I referred to was about protesters who threw red paint symbolising blood at the London headquarters of Elbit Systems in October 2020. In that case, none of the offences was indictable-only; they were all related to criminal damage. I just wanted to put that on the record, and I hope that the Minister will accept that correction to her comments.

Sarah Sackman (Labour, Finchley and Golders Green)

Further to that point of order, Dr Huq. I am happy to respond. We were probably at cross purposes. There was obviously a very high-profile case, which is the one that I thought the hon. Lady was referring to when she mentioned Elbit Systems. That did involve the indictable-only charges of aggravated burglary and grievous bodily harm with intent, but if she was referring to a different case and we were at cross purposes, I am happy to correct that aspect of the record.

Christine Jardine (Liberal Democrat, Edinburgh West)

We are now sitting in public and proceedings are being broadcast. I remind Members to switch electronic devices off or to silent, please, and that teas and coffees are not allowed during sittings.

Yasmin Qureshi (Labour, Bolton South and Walkden)

I beg to move amendment 25, in clause 3, page 5, line 38, at end insert—

“(7) The preceding provisions on allocation for trial without a jury do not apply to cases where a defendant has already elected to be tried in the Crown Court prior to the commencement of this section.”

Christine Jardine (Liberal Democrat, Edinburgh West)

With this it will be convenient to discuss the following:

Amendment 12, in clause 3, page 9, line 28, leave out subsections (2) to (4).

This amendment would prevent the provisions on trial on indictment without a jury applying retrospectively to cases where the defendant has elected trial by jury before these provisions become law.

Amendment 43, in clause 3, page 9, line 28, leave out

“trial on indictment of a person beginning on or”

and insert

“cases whose first hearing in the magistrates’ court takes place”.

This amendment would prevent the provisions on allowing judges to try all triable either-way offences with likely sentences of fewer than three years from applying retrospectively.

Yasmin Qureshi (Labour, Bolton South and Walkden)

It is a pleasure to serve under your chairmanship, Ms Jardine.

Amendment 25 relates to the retrospective allocation of cases to the Crown court bench division. I am asking that provisions for the allocation for trial without jury do not apply when election has already happened. The point is that in all jurisprudence in the world, retrospective legislation is bad law and bad jurisprudence, going against the rules of natural justice. Why? Because there is a breach of legal certainty.

A core principle of the rule of law is that an individual should know the legal consequences of their actions. People also have a legitimate expectation of the procedural framework in place at the time of the commission of an offence. Retrospective allocation rules disrupt that expectation and weaken trust in our justice system. It is a selective tightening of procedures by the state, which risks an abuse of legislative power and an inconsistency.

Article 7 of the European convention on human rights argues against retrospective criminal law penalties. While it is correct that with this clause we are not talking about retrospective criminal penalty, I would say that article 7 is being breached, because even if penalties are not increased, legitimate expectations are being undermined. The defence and legal representatives prepare cases based on existing court structures, and on known procedures and practices. Suddenly to set new procedural rules and different evidential expectation is just not cricket.

The state is being given an advantage, because there should be an equality of arms. Administrative convenience should not override fundamental rights. The courts have repeatedly stressed that fairness is more important than efficiency, because it generates among people confidence in the state and in the criminal justice system. That is why—I repeat—our judicial system is recognised to be one of the best in the world.

Kieran Mullan (Conservative, Bexhill and Battle)

It is a pleasure to serve under your chairmanship, Ms Jardine. I rise to speak in support of amendment 43, tabled in my name, and to amendments 25 and 12. Again, on this issue the Opposition and the hon. Member for Bolton South and Walkden have alighted on the same challenge or issue—the same thing we think is unfair. We have gone about our amendments in different ways, but we recognise the same issue. As we heard, the amendments address the retrospectivity built into the Government’s approach.

The Bill makes it clear that the new allocation regime will apply not only to future cases, but to existing Crown court cases that are due to begin on or after the specified day on which the measures are implemented. In other words, cases that are already in the system, in which defendants may have made decisions on the basis that they expect a jury trial, could be reallocated to a judge-only trial. Our amendment 43 would prevent that by ensuring that the new regime applies only to cases in which the first magistrates court hearing takes place after the change, and not to cases already in the pipeline.

The Government say the change is merely procedural and can therefore be applied to ongoing cases, but that understates what is happening. To change the allocation part-way through proceedings would not simply be technical; it would alter the ground beneath the defendant’s feet. In written evidence, JUSTICE shared our concerns, saying:

“The retrospective application of the provisions is contrary to the rule of law.”

It pointed to the House of Lords Constitution Committee’s legislative standards, which state:

“Retrospective legislation is unacceptable other than in very exceptional circumstances”

and

“must have the strongest possible justification”.

It is worth considering that legislative guidance, which states, first, that enacting legislation with retrospective effect should be avoided. Secondly, provisions that have retrospective effect should be drafted as narrowly as possible. Thirdly, individuals should not be punished or penalised for contravening what was, at the time, a valid legal requirement. Fourthly, laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake. Fifthly, laws should not deprive someone of the benefit of a judgment already obtained. Sixthly, laws should not prevent a court from deciding pending litigation according to its merits on the basis of the law in force at the time when proceedings were commenced. Seventhly, retrospective legislation should be used only when there is a compelling reason to do so. Eighthly, a legislative power to make a provision that has retrospective effect should be justified on the basis of necessity and not desirability.

Having heard those points, we can immediately see the issues. On the principle that laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake, it is clear that that liberty is absolutely at stake in these matters.

On necessity, we have repeated throughout the debate that the Government, in our eyes, have completely failed to make the case successfully that the measures in the Bill are the only way to drive down the backlogs. This morning, we debated the fall in backlogs in some areas seen in the latest published data; that happened without the measures in the Bill, and without other measures that we all think are necessary to help to drive down the backlogs. To our eyes, the retrospective element clearly does not meet the test of exceptional circumstances or necessity.

JUSTICE says that, given that the curtailment of jury trials will have a marginal effect on the backlog, it cannot see how retrospective applications can be justified, and I agree. It argues that it is deeply unfair for defendants who elected for a Crown court trial in expectation of a jury to have their cases heard by a judge alone under a process that did not even exist when they made that choice. Defendants who have opted for a jury trial may be incarcerated on remand awaiting trial by jury. Had they known that this would never materialise, they may well have opted for a magistrates trial and already been released.

There is, then, a risk that the reallocation of cases that are already in the Crown court caseload to the bench division will be subjected to judicial review. There is clearly no ouster clause in the provisions. How do we know whether many of those affected might decide that they should challenge the decision in the courts? JUSTICE suggests that it could happen with each and every case in the backlog that is allocated to trial without jury. This would require additional hearings and the preparation of representatives for every affected case already in the backlog, creating further delays and placing unnecessary burdens on the defendants and the prosecution who, as we have all accepted, are already under significant pressure.

What did the Prime Minister say about retrospective measures? We have already covered what the Prime Minister previously thought about the importance of jury trials, which he seems to have forgotten, but what did he say about retrospective measures? He said that

“they are usually a very bad idea”.

That is a direct quote from our Prime Minister. He said they were usually a very bad idea, yet here is his own Government enacting one.

Of course, we know what the Deputy Prime Minister thought about this issue. He appeared before the Justice Committee on Tuesday 16 December last year. He was asked about this issue by my hon. Friend the Member for Solihull West and Shirley (Dr Shastri-Hurst), who said:

“There are currently in the region of 17,500 prisoners on remand in this country. Will these reforms apply retrospectively?”

What did the Deputy Prime Minister say? He said: “No.” The Committee must have to assume that that was his view of the right thing to do at the time. Why else would he have said no? It is reasonable for us to ask the Minister to explain why the Deputy Prime Minister has changed his mind.

Of course, the Minister herself has already been asked about this in the Justice Committee. My hon. Friend the Member for Bridgwater (Sir Ashley Fox) pointed out that a defendant committed to trial in the Crown court will expect a jury trial. He said,

“you will relook at cases that have been committed for trial at the Crown court and push some of them through the swift court—that is what you are telling me.”

The Minister replied:

“I think that is something we have to look at.”

My hon. Friend the Member for Bridgwater said to her:

“So when the Lord Chancellor said it will not be retrospective, that was not a wholly accurate answer.”

The Minister replied:

“I think the answer he was giving was in the context of a question around the impact on remand hearings; I think that was the context in which he may have addressed that.”

My hon. Friend replied:

“No, he said the changes would not be retrospective, and now you are giving me a slightly different answer. If someone elects to go to the Crown court at the moment, it is on the assumption that there will be a trial by jury. What you are saying is that it might not be; they might be diverted to the swift court.”

The Minister agreed with that, saying: “That is right, yes.” That can be interpreted only as a suggestion that there was no difference with or without a jury as they are still in the Crown court—an extraordinary response.

My hon. Friend the Member for Bridgwater said:

“Minister, if you have been committed to trial in the Crown court at the moment, you are expecting to have a jury trial, and what you are telling me is that once these changes take effect, you will divert those people committed but whose trial has not started into the swift court.”

The Minister agreed, saying: “Yes”. My hon. Friend said to her:

“That is not what the Lord Chancellor said before Christmas.”

The exchange concluded with the Minister making this point:

“It is a change in relation to the procedure that applies to those cases. They are still getting a Crown court trial under the new proposals.”

We are back to an argument that we have revisited a number of times. When the Minister is pressed on a disadvantage in one form or another of having a trial without a jury, she insists that it does not make much of a difference as they will still get a trial that, in her view, has all the merits of a trial with a jury, to some extent. We made some progress on that earlier today, when the Minister acknowledged that there is something special about a jury trial. If there is something special about it, she must surely accept that those people who do not get one are missing something special and are therefore in some way disadvantaged.

JUSTICE is not alone in its criticism of the retrospective element of the proposals. As I have said previously, Mr Robertson, the founder of the chambers that the Prime Minister, the Deputy Prime Minister and the Attorney General all practised at—someone they surely give some weight and credibility to—is critical about this. He writes:

“Those charged by police with offences currently carrying a right to elect a jury trial will go through newly devised ‘allocation proceedings’ where they will lose that right if it appears to the court to be more suitable to have a non-jury trial or if it appears to the court that the value of the property involved exceeds a sum to be set by the government.”

By that, I think he means in relation to the severity of the case.

Mr Robertson goes on:

“This means, for all 80,000 cases in the backlog, more time—days perhaps—will have to be set aside for novel pre-trial proceedings featuring arguments about suitability and value of stolen property. There will be legal challenges to the government’s proposal that such legislation should apply to defendants who have already been charged or are awaiting trial. Applying these changes retrospectively amounts to a fundamental injustice, undermining legal certainty and the long-standing principle that individuals should be tried according to the rules in place at the time of the alleged offence.”

He is right, is he not?

Mr Robertson is not alone. The Bar Council says:

“The application of this proposal retrospectively inevitably will face a constitutional challenge. The Criminal Bar Association estimates that up to 30,000 cases will be affected. Not only is this extraordinarily unfair to those who have already elected the Crown Court, understanding that it is a jury trial, it interferes with legal certainty and runs the risk of tying the courts up in appeals, further increasing the backlogs.”

I hope that the Minister can reflect, as always, on those clear views, as well as the views of thousands of other legal professionals, academics and former judges, that provisions in the Bill are not necessary to bring the backlog down, and therefore should not be enacted retrospectively. They are fundamentally unfair, unconstitutional and against the usual practices of this place when it comes to retrospective legislation. I hope the Minister will support our amendment to make sure that the measures are not applied retrospectively.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

Although I have proposed the removal of clause 3 in its entirety—we will come to the arguments for that later in proceedings—I will speak to amendment 12, tabled in my name, which seeks to remove subsections (2) to (4) of the clause. Those subsections provide that cases can be assigned to be heard by a judge alone, even if the case has already been assigned to be heard in front of a jury.

As the shadow Minister just spoke about, we have been on a bit of a journey on this. The Deputy Prime Minister initially stated that the measures in the Bill would not be applied retrospectively, but we then learned from the Minister for Courts that they would. I believe that goes against a long-standing precedent that legislation is not retrospective in its action, and goes against the interests of fairness. Decisions taken at earlier hearings may have been different had the defendant known that they would be tried in front of a judge sitting alone. This action could also have a negative impact on victims and witnesses, who may perceive that their case has been downgraded in some way or is less serious now that they will no longer have it heard in front of a jury.

Estimates suggest that up to 30,000 existing cases could be affected by the proposals. The Criminal Bar Association predict that those existing case could

“become mired in ‘satellite litigation’. In each case, Judges would have to conduct an allocation hearing and decide whether to direct a Judge-only trial. That means a burden of additional hearings…The Court will have to decide whether the reallocation is lawful and fair.”

Those decisions may then

“be challenged by appeals or Judicial Review, leading to further delays while the higher courts determine the legal principles. Similar cases…have been fought all the way up to the Supreme Court.”

I would appreciate the Minister explaining how confident she is that additional delays will not be created by the retrospective action, whether it is lawful to give retrospective effect, and what the decision is likely to be in any individual case. Are the Government unnecessarily opening up an area of burdensome litigation and delaying the process further for victims of crime?

Rebecca Paul (Conservative, Reigate)

It is a pleasure to serve under your chairmanship, Ms Jardine. I am pleased to speak in support of amendments 25 and 12, and particularly in support of amendment 43, tabled in the name of my hon. Friend the Member for Bexhill and Battle.

The amendments all engage with a simple point of fairness. Whatever one’s view of the Government’s wider proposals, it cannot be right to change the rules after a defendant has already elected for a Crown court trial. Such defendants made their choice under the current rules. They did not opt for Crown court for any reason other than the fact they would get a jury trial, so for the court to remove that choice from them without any hearing would frankly be shocking.

Let us keep in mind that some of these people will be innocent, and remember that some may have chosen the magistrates route if they had known that going to the Crown court would not give them the jury trial they seek. The retrospective application of new rules is deeply unfair. Whatever side of the jury trial argument we are on, surely we can all agree that those who have already opted for jury trial should have that decision respected.

The amendments differ slightly in drafting but all try to achieve the same thing: to ensure that where somebody has already elected for jury trial, that choice is respected and the new regime does not operate retrospectively. Amendment 25 would disapply the new allocation rules where a defendant has already elected Crown court trial before commencement. Amendment 12 would strip out the retrospective commencement provisions. Amendment 43 would instead tie the new regime to cases in which the first hearing in the magistrates court takes place after the change in the law. Those are different routes with the same fair and sensible objective.

This should not be controversial. If the state tells a defendant that they have a right to elect for a jury trial and they exercise that right, it is manifestly unfair to turn around later and say that the right has vanished and that their case will now be dealt with under a wholly different system. In fact, to call it unfair fails to make the point seriously enough. It would amount to a violation of one of the most foundational principles of our legal system: that retrospective legislation of this kind runs contrary to basic rule-of-law principles and requires the strongest possible justification.

As JUSTICE, the cross-party law reform and human rights organisation put it in written evidence:

“The retrospective application of the provisions is contrary to the rule of law.”

It went on to state:

“It is deeply unfair for defendants who elected Crown Court trial in expectation of a jury to have their cases heard by a judge alone under a process that did not…exist when they made that choice.”

I always endeavour to see all sides of a given issue, but in this case I honestly struggle to see any argument against those statements. I hope the Minister will agree that retrospective application is fundamentally unfair.

If the Government are not moved by appeals to basic fairness, they should at least be moved by their own stated objective of reducing delay. The Bar Council is unmistakeable in warning us:

“The retrospective provisions may also be subject to numerous legal challenges.”

That is exactly the opposite of what Ministers say they are trying to achieve. If the Government push ahead with retrospective application, they risk drawn-out legal challenge, more hearings and more uncertainty in cases that are already in the system. Measures explicitly brought in to help to reduce the court backlog will, perversely, multiply it. This is exactly the sort of illogical thinking that Committee stage is intended to weed out. I very much hope that the Minister will engage on this point.

Our concern is echoed elsewhere in the written evidence we received. Dr Samantha Fairclough’s detailed submission to the Justice Committee states clearly that the Government’s plan to give the Bill retrospective effect is

“unfair…will create significant additional work in allocating those cases…and likely result in appeals.”

JUSTICE makes a similar point, saying:

“Reallocation of cases already in the Crown Court caseload”

could lead to judicial review challenges, further hearings and additional

“burdens on both defendants and the prosecution”.

Even on a practical level, the amendments are eminently sensible. They seek to diffuse the legal landmine that the Government are in danger of stepping on, and would avoid yet more work for a system that is already under intense strain.

As I have stated, the amendments are nothing other than fair and reasonable—in fact, they are a minimal safeguard. My colleagues and I have been clear that we should not be going ahead with these reforms, but if Ministers insist, the very least they can do is to ensure that they operate prospectively rather than retrospectively. People should be judged and dealt with under the rules in force when they made their election, not have the rug pulled from beneath them halfway through proceedings. That is why I support amendments 25, 12 and 43, and I urge the Government and the Minister to accept at least one of them.

Joe Robertson (Conservative, Isle of Wight East)

To the extent that it is necessary, I declare an interest in that I used to be a solicitor regulated by the Solicitors Regulation Authority and registered with the Law Society. I, too, support amendments 25, 12 and 43. They are not technical or political amendments, but constitutional amendments, and I hope that the Committee will consider them in that spirit.

Let me begin with some facts that I think we can all agree on. There are thousands of defendants who are currently part-way through the criminal justice process having made a formal, consequential and, they thought, irreversible election to be tried by jury in the Crown court. They made that election under the law as it existed when they made it—indeed, as it exists today. If the Bill passes unamended, that election, that choice, that right, which they have already exercised, will be taken away from them before they ever reach trial. It is a bitter irony that they have not yet reached trial because of the situation that the country is in. I accept that it is not this Government’s fault that we are where we are, but the state is the state, and the Government are responsible for it. For those people to be awaiting trial because of the state and then have their rights taken away from them by the state because of this Government’s actions goes far beyond disagreement on the Bill and on the principle of jury trial, no matter how important that is.

Alex McIntyre (Labour, Gloucester)

I am sure that we are all looking forward to a rather long afternoon listening to the hon. Member’s speech. Does he agree that this is also about the victims, some of whom the Committee heard evidence from, who did not have a right not to have their freedoms taken away, did not have a right not to be attacked, do not have a right to elect, do not have a right to speed up the process, and do not have a right to an earlier trial, before it collapses when other people pull out of the process? While he is making a very important point about ensuring that we have a just system for defendants, does he agree that we must also ensure that victims are centred in this?

Joe Robertson (Conservative, Isle of Wight East)

I look forward to spending the afternoon exchanging ideas with the hon. Member. Let me begin by expanding a little on what I had intended to say. I do not agree with the narrative that it is either the defendant or the victim who wins out, not least because not every defendant is a guilty person. I would also say that victims of the worst crimes, when they are waiting for a guilty person to be found as such, already face the backlog. They will not have a choice to go to the magistrates court, because those are not either-way offences.

The jury system will always take longer, and the people who have suffered the worst will always be subject to the longer jury trial. There is a reason why that is right: a jury is asked to take a decision on whether something happened, and its decision could mean that someone loses their liberty for a very long time. The criminal system in this country is tilted in favour of the defendant, so I am afraid that it is tilted in favour of people who commit heinous crimes. However, in our system we must believe that those who commit heinous crimes will be found out, convicted and serve the very toughest sentences.

Yasmin Qureshi (Labour, Bolton South and Walkden)

Does the hon. Member agree that trying to divide our citizens into victims and defendants—the good and the bad—is not the best way forward? Defendants can themselves be victims, and victims can become defendants. It is important that we have a system of principle that applies to everyone. There is an assumption that we should favour of the victim and everything should be stacked against the defendant, but all of us, as individuals, could become defendants.

Joe Robertson (Conservative, Isle of Wight East)

I do. Perhaps I could encourage a Tea Room conversation between the hon. Members for Gloucester and for Bolton South and Walkden, in the hope that her wisdom might rub off on her hon. Friend when it comes to pitching this as a contest between victim and defendant.

Of course, on a technical point, it is not the victim or complainant who brings the case; it is the Crown—the state. Yes, there is a victim who must see justice, but in criminal law, the offence is seen as a crime against the state. In countries where there is not a monarchy, it is the people versus the defendant, because the defendant’s crime is an affront to the people. We have a monarchy in this country, and we know it is the Crown against the defendant.

Kieran Mullan (Conservative, Bexhill and Battle)

Further to the intervention from the hon. Member for Bolton South and Walkden, it might be helpful to remind the Committee of the letter written by dozens of organisations representing women and girls. I was very clear that that letter actually represented women and girls as victims, but it absolutely makes the hon. Lady’s point about the criminalisation that is sometimes attached to women and girls as a result of coercion and other circumstances that they might go through, so they have an interest in ensuring that they have access to a fair trial. As she said, the division between the two is not as black and white as some Government Members seem to want to make it.

Joe Robertson (Conservative, Isle of Wight East)

Yes. Let us get back to principles here. I support what the Government are trying to do in reducing the backlog. Of course, that is the right thing to do, and it benefits both those awaiting trial and the victims and complaints who want to see justice.

On amendment 25, my particular issue here the retrospective application of the law. Even if Members agree with the Government that either-way offences should go and that people who commit or are accused of committing a crime in the future should no longer have the right that people used to, the clause will apply that new law to things that have already happened. That is highly controversial and an affront to the common law legal system in this country.

Clause 3 applies the jury waiver regime retrospectively to defendants who have already exercised their right to elect for a Crown court trial, which is entirely unnecessary to deliver on the Government’s intention to get rid of either-way offences. They can do that as soon as the Bill is passed—we must assume that it will be, at least in some form—without affecting the rights of people who have already exercised their rights.

Alex McIntyre (Labour, Gloucester)

It is refreshing to hear a Conservative Member defending the European convention on human rights. Can he confirm whether it is now the Conservative party’s position to support the ECHR, or is it for withdrawing from it, as it was last year?

Joe Robertson (Conservative, Isle of Wight East)

I continue to be grateful to the hon. Member for hanging on my every word, and I am grateful for the opportunity to expand on that. As I said, it is a basic tenet of English common law, and the ECHR effectively replicates what is already in our legal system. I am very happy to engage in a wide-ranging debate on the ECHR, but I fear that you, Ms Jardine, are also hanging on my every word and may stop me.

Kieran Mullan (Conservative, Bexhill and Battle)

I absolutely think that we should leave the ECHR, because I do not like the mechanism that it operates under, but I absolutely support some of the rights and protections in principle that it advocates. I am struggling to see why there is a contradiction. There are lots of times when we might support elements of proposals without supporting the manner in which they are handed down.

Joe Robertson (Conservative, Isle of Wight East)

Again, I invite a Tea Room conversation —although we may have to meet somewhere geographically in the middle of the Tea Room.

Any measure that materially and detrimentally alters the regime to which a defendant is subject in a way not foreseeable at the relevant time engages article 7. The Government’s own ECHR memorandum on the Crime and Policing Bill of April this year acknowledged that article 7 is engaged where the defendant could not “reasonably have foreseen” the application of a measure “at the material time”. At least we can agree that article 7 is at least engaged. A defendant who elected Crown court trial under the existing law could not have foreseen that that election would be nullified, not least of all because some such defendants have been waiting rather a long time—and that is the issue this Government are trying to deal with. I say again that I support what they are trying to do, although I disagree with some of the means they are using to achieve those aims. This is precisely the kind of unforeseeable retrospective detriment that article 7 exists to prevent.

Christine Jardine (Liberal Democrat, Edinburgh West)

Order. I gently remind the hon. Member not to stray too far from the subject under discussion. We have a lot to get through.

Joe Robertson (Conservative, Isle of Wight East)

I am grateful for that indication, Ms Jardine, and I understand. It had interfered with ongoing legal proceedings in favour of the state, which is exactly what is happening here: legal proceedings are being interrupted in order to favour the state, removing from appellants what would otherwise have been a conclusive ground of appeal without justification by compelling grounds of the general interest.

The Court of Appeal upheld this conclusion, with Lord Justice Underhill emphasising the importance to be attached to observance of the rule of law. Mrs Justice Lang further held that the absence of consultation with the representative organisations, which I say has happened here too, and the lack of scrutiny by relevant parliamentary Committees may have contributed to some misconceptions about the legal justification for the retrospective legislation. She said that the Government’s ECHR statement to Parliament failed to explain that a departure from the legal norm—exactly what is happening here, in my view—was being sought.

Those observations plainly apply with equal force to this Bill. The parallels are direct: the Government are introducing new legislation that will alter the legal position of defendants who are already engaged. As in Reilly, no compelling grounds of the general interest have been articulated for why existing elected cases must also be captured. Lots of arguments have been made about why either-way offences should no longer exist, but not why that must be the case for people who have already made an election in that way.

Christine Jardine (Liberal Democrat, Edinburgh West)

Does the hon. Member intend to wind up shortly?

Joe Robertson (Conservative, Isle of Wight East)

I intend to wind up quite shortly, Ms Jardine.

Christine Jardine (Liberal Democrat, Edinburgh West)

We are straying a bit.

Joe Robertson (Conservative, Isle of Wight East)

I will go on to my next bit, which is even more relevant than my previous bit.

Alex McIntyre (Labour, Gloucester)

I thank the hon. Member for giving possibly the longest wind-up in the history of wind-ups. I have two questions for him. First, does he recognise that both examples of retrospective legislation that he mentions were made by a Conservative Government? Secondly, what number does the backlog need to hit before he deems it urgent that the Government tackle it?

Joe Robertson (Conservative, Isle of Wight East)

I think it is for the Government to set out the state of emergency. I do not accept that there is one; in fact, I do not think the Government are saying that there is one, when it comes to taking away a right that someone has already elected. We are not talking about getting rid of jury trials for a trial for either-way offences. I disagree with that; we have dealt with that, and we will go back to it. In this clause, we are talking about applying that to a number of people who have already made an election. It is for the Government to set out the emergency. I do not believe that there is one, and I think that they have not set it out because they do not believe that there is one.

Kieran Mullan (Conservative, Bexhill and Battle)

As I pointed out, at some point in these proceedings, even the Justice Secretary did not think it necessary. When he was considering these matters, the Justice Secretary agreed that it was perfectly reasonable for it not to be retrospective. We are actually making an argument with which, at one point, the Justice Secretary agreed.

Joe Robertson (Conservative, Isle of Wight East)

The shadow Minister is absolutely right. I invite the Minister to address that point head on in her speech. Even the Government themselves do not seem to be saying it is an emergency, whereas when any previous Government, Conservative or Labour, have tried to enact something retrospectively, they have at least made the case for an emergency. Heinous crimes committed during a war, loopholes that have left the state open to repeat, ongoing litigation into perpetuity—those are the sorts of threshold that have been met in previous times.

I hope that that goes some way to answering the question asked by the hon. Member for Gloucester. Let us hear from the Government why retrospective application in this case is so urgent. The answer cannot be about future cases; it must only be about those who have already elected trial.

I draw attention to a post on the UK Constitutional Law Association blog in July last year, which addresses and objects to the idea of using the Crown court backlog crisis to justify this provision. It is not an adequate justification that it is equivalent to wartime. Jury trials were not suspended even in the first world war, the second world war or the covid pandemic, all of which produced a more acute systemic issue than the one we have today. The present difficulties, however real they are—and I say again that they are real—do not plainly reach that threshold.

The Government’s own stated policy is that they must balance conflicting public interests and consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest with regard to ECHR. The Solicitor General’s answer to a parliamentary question set that out explicitly. For the sake of brevity, I will not repeat that answer. However, whatever views are taken about that balancing exercise, there appears to have been no such exercise on which to take a view. It is apparent in the Bill’s explanatory notes. No compelling justification for retrospectivity is advanced. It should be in the notes, and it should have been done already, but at least the Minister can address it now.

This has not been a case of closing an unforeseeable loophole. It is not an emergency requiring same-day legislation. It is not a response to a systemic injustice in wartime. It is a policy reform that operates perfectly well on a prospective basis if that is what the Government want to do, although I do not agree with abolishing jury trials. But the retrospective reach of clause 3 appears—I hope—to be inadvertent. The amendments would correct it.

The Government’s reform agenda could be delivered even if the amendments are made. Future cases would be fully captured by the new regime applied prospectively. Where defendants have already elected—and there will be relatively few of those over the lifetime of this law, compared with all the crimes that it will capture in future—their cases can be resolved under the existing system. It raises the question of what happens when we take a number of cases and put them straight into the magistrates courts now, rather than allowing the natural wasting away of the election to trial by jury for those who face what, today, are either-way offences.

The cost of honouring the amendments is minimal, even to the Government. The cost of not honouring them is significant. I will not repeat the arguments that I have already made. In my view, the Committee should support amendments 25, 12 and 43. They are constitutionally proper and correct, legally secure and practically proportionate. The Government have offered no principled justification for the retrospective application of clause 3. In the absence of such justification, the presumption against retrospectivity must surely prevail. The Government can still achieve the aims of the Bill, no matter how much I disagree with a number of them.

Christine Jardine (Liberal Democrat, Edinburgh West)

I gently remind Members that we have a lot to get through today. If they could keep their comments succinct and non-repetitive, that would be very helpful to everyone.

Sarah Sackman (Labour, Finchley and Golders Green)

I will endeavour to do just that, Ms Jardine.

I thank my hon. Friend the Member for Bolton South and Walkden and the hon. Members for Bexhill and Battle and for Chichester for their amendments. Albeit with slight variations in wording, the purpose of amendments 12, 25 and 43 is to prevent the new allocation test for the bench division set out in clause 3 from applying to any cases received in the Crown court prior to the commencement of the clause.

Two of the amendments refer to cases in which the defendant has elected for trial in the Crown court. The hon. Members did not think that judge-alone reforms should apply in such cases. To be absolutely clear, clause 3 does not apply to trials that are already under way. It provides that the new provisions will apply to trials on indictment beginning on or after the specified day, which must fall at least three months after commencement. That means that cases in the existing Crown court caseload in which a trial has not yet begun may be considered under the new allocation test for the bench division. Cases already assigned to the Crown court will not be returned to the magistrates court because of these reforms. Where a defendant has elected for their trial to be heard in the Crown court, that case will remain in the Crown court. Cases in which a jury trial has already begun will always proceed with a jury trial.

The question was asked, “Why did the Government choose, through this legislation, to apply the procedural changes to the existing caseload?” The answer is simple, and I regard it as compelling: it will enable us to start tackling the backlog sooner, delivering swifter justice for victims, defendants and witnesses alike, without compromising defendants’ rights or fairness. “Retrospectivity”, which is a word that we have heard a lot in this debate, is a misnomer here. Cases that have already been assigned to one court jurisdiction, whether that is the magistrates court or the Crown court, will not be allocated to another jurisdiction. We will not be returning cases to the magistrates court when a defendant has elected for a trial in the Crown court.

Trials should be tried in accordance with the law as it stands, as at the commencement of trial. Critically, the application of what are procedural changes to existing cases is consistent with long-standing legal practice, as can be seen from judge-only trials for jury tampering under the Criminal Justice Act 2003 and the application of the increase in magistrates court sentencing powers in 2024.

I disagree with the hon. Member for Isle of Wight East: there is no application of article 7 in this context, because we are dealing with a procedural change. We are not engaging the criminal law as it applies to offences and to penalties. As a general principle, a trial should proceed in accordance with the procedural law in force at the time at which the trial begins. That is lawful and consistent with precedent. It is a practical step to ensure that courts can make best use of their available capacity, and it avoids two different procedures running in parallel in the Crown court as a result of arbitrary cut-off dates.

Implementing structural reform in our courts will take time. As I said in answer to the hon. Member for Bridgwater on the Justice Committee, we must pull every lever at our disposal to improve efficiency because the situation is urgent. Yes, on a number of occasions I have used the word “emergency”. A critique put to me by Members of the House, including the hon. Member for Bridgwater, and by the media is, “It is going to take you far too long to get this backlog down.” Well, that is why we must pull every lever, whether on investment, on efficiency or on these structural reforms. We cannot wait years for them to kick into effect. That is why we have made our choice. I urge my hon. Friend to withdraw her amendment.

Yasmin Qureshi (Labour, Bolton South and Walkden)

I will not say any more. I think we have discussed retrospectivity enough. As I have said from the beginning, retrospective legislation is always a bad idea, in any country. People are entitled to certainty about the law. If we start eroding that fundamental principle, God knows where we will stop. I do not intend to press the amendment to a vote, but I hope that the Government will consider the issue further. I beg to ask leave to withdraw the amendment.

Christine Jardine (Liberal Democrat, Edinburgh West)

I remind Members that amendments are voted on at the point they fall in the Bill, so any Divisions on amendments 12 and 43 will come later.

Kieran Mullan (Conservative, Bexhill and Battle)

I beg to move amendment 40, in clause 3, page 5, line 38, at end insert—

“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may appeal that decision if he can demonstrate that the circumstances of their case are such that trial without a jury would amount to a breach of the principles of natural justice.

(8) An appeal made under subsection (7), must not be heard by the same judge who made the original determination.”

This amendment would allow a defendant to appeal the decision to have a judge-only trial on the basis that it is in the interests of natural justice for the trial to be with a jury.

Christine Jardine (Liberal Democrat, Edinburgh West)

With this it will be convenient to discuss the following:

Amendment 18, in clause 3, page 9, line 17, leave out “no” and insert “a”.

This amendment entitles a defendant to appeal against a judge’s decision to allocate the case for trial by judge alone.

Amendment 28, in clause 3, page 9, line 20, after “hearing” insert—

“only if the prosecution and defence have waived their right to the hearing”.

Kieran Mullan (Conservative, Bexhill and Battle)

I rise to speak in support of amendment 40 in my name and to consider other related amendments. At this point, we are considering in more detail the allocation decisions, how they work in practice and the likely legal risks and pitfalls inherent in the new process.

I will begin by laying out the process that will exist. The Bill will introduce a Crown court bench division where cases are tried by a judge alone. To ensure that jury trials remain in place for certain crimes, only triable either-way cases that are assessed as likely to receive a custodial sentence of three years or less will be allocated for trial in a bench division. Indictable-only offences cannot be tried there.

To determine whether a triable either-way case should be allocated for trial in a Crown court bench division, a Crown court judge will assess whether the offence or offences to be tried are likely to attract a custodial sentence of three years or less. That decision will be taken at the first opportunity for the defendant to enter a plea in the Crown court using a plea and trial preparation hearing. If cases involve multiple defendants, judges must assess eligibility based on the highest likely sentence of any one defendant. Offences to which defendants have pled guilty are not included in the assessment of a likely sentence, and youth defendants are not exempt from the bench division.

The bench division will operate as a lower tier in the existing Crown court—that is important. The Bill will not create a separate jurisdiction or intermediate court. The usual Crown court procedures will apply in the bench division, including the appeal route from the Crown court to the Court of Appeal. Judges sitting in the bench division will also retain the full sentencing powers of the Crown court and may impose sentences of more than three years where appropriate, even if the allocation was initially based on the likelihood that they would not do that.

The Bill and explanatory notes are clear that no new appeal route is created for decisions to allocate a case to the bench division. It is important to set out the distinctions between different types of allocation decisions both now and in the future, if these proposals are passed. There are some elements of allocation decisions at present that we would all agree are not subjective, but based on offence classifications. I may be wrong, but I do not imagine there remains much debate about allocation decisions in those scenarios. Summary and indictable-only offences will be heard in the magistrates court or the Crown court based on that classification, though there are some exceptions that I will ask the Minister to clarify later.

Under the Government’s proposed reforms, there are similar black and white scenarios, with summary-only remaining with the magistrates and indictable-only going before a judge and jury. However, we will continue to have decisions on either-way offences, which consider the subjective—the not black and white—consideration of what the likely sentence length is. The consequences for defendants are entirely new territory for criminal defendants for the offences concerned.

Of course, defendants may disagree with allocation decisions at present, and may want to stay in the magistrates court, but the court may decide that they must be heard in the Crown court. However, importantly, as I understand it, a defendant cannot actually legally challenge that decision through judicial review. I am not a legal expert, and if the Minister receives advice that that is wrong, I would welcome that clarification, but as I said, my understanding is that judicial review would not be possible in that scenario. I also understand that it would not be the case in relation to the Crown court where the allocation would take place. Importantly, as I pointed out at the start, this will be taken in the Crown court, not some new or different court, so we should read across the rights and procedures that already exist in the Crown court.

As I understand it, triable either-way offences, if heard in the Crown court, are then in legal terms considered to be a trial on indictment. If a triable either-way offence is tried in the Crown court, it becomes a trial on indictment as if it were an indictable offence as per the other offences that are always indictable. Again, I am happy for the Minister to say whether that is the case, but that is my understanding of it.

Why is it important? Because there are constraints on the use of judicial review in relation to a Crown court trial on indictment. Under sections 28 and 29(3) of the Senior Courts Act 1981, no appeal by way of case stated or judicial review is possible in respect of matters relating to trial on indictment, so it will not be available with regard to any decision relating to the conduct of a Crown court trial on indictment. These measures, in this important way, are specifically taking away an existing legal right: the right to challenge an allocation decision. That cannot be right, fair or reasonable, and I am not even confident, as it is not mentioned, that I have seen in any of the Government publications related to this that it is something the Government have recognised they are doing.

It is also potentially a mistake in another way: in relation to the efficiency and smooth running of the courts that the Minister is seeking to achieve. At conviction, the defendant can apply for leave to appeal in the Crown court. At that stage, is the proposal that the defendant will be prevented from appealing the allocation by the judge, so a defendant might argue that a judge could act unlawfully on allocation with no appeal safeguard?

I have not had my attention drawn to an ouster clause. More generally, there is the provision that there is no specific appeal to the decision in isolation, but not an ouster clause in terms of the appeals that are allowed in the Crown court. I am confident that there will be legal arguments about that, at least to start with, until common law settles the matter. It would be extraordinary for the Government to introduce such a clause. We might find examples where a judge in the Crown court has completely incorrectly and legally unjustifiably allocated a case, and when that is brought up as part of the appeal at the point of conviction, be told that that is not a matter on which the court can have an opinion. I think that would be extraordinary.

Does the Minister think it would be right, if it forms the basis of an appeal against allocation happening after conviction, for the Court of Appeal to be constrained from having the power to return the case for trial by jury if it agrees the allocation decision was unlawful? I cannot believe that she would think that was right. Therefore, we create the exact opposite effect of what we are seeking to do—to make the best possible use of Crown court time—particularly in relation to barristers and other people working across the courts, by not allowing an earlier appeal. That is with regard to both appeals that take place and, more importantly, where a whole new trial may have to be ordered before a jury because it is found that the initial allocation decision was wrong.

Consider the scale on which that may happen—hundreds of cases may suddenly have to be retried. If, for example, the measures are in place for seven, eight or nine months, there is no onus or expectation regarding at what point a defendant—a convicted criminal at that point—might seek legal advice and then successfully choose to challenge an allocation decision. That would then be heard by a court, and then that court of appeal will make a ruling as to whether the circumstances under which that person was allocated were unlawful and a retrial with a jury is required.

If any other case has been allocated under those same circumstances that the appeal court determines are unlawful, every single one of those who had been convicted would have the right to say that the precedent has been set that the way they were allocated was unlawful and has to be retried. That could happen six months, a year or two years in. We are talking about a huge potential reallocation and retrial of all cases if the Minister insists that there should not be an appeal on the right of the allocation decision.

A separate initial safeguard—an appeal against allocation at the stage that it happens—is not only the right thing to do to ensure that an existing right is not eroded, but the more efficient way to approach these things. The amendment is sensible, rational and will provide greater confidence in the new court that the Minister is insisting on creating, and its processes.

I ask the Minister to clarify an important matter of law in relation to the allocation decisions in the first place—just the sort of thing that might be appealed if it is not clarified by the Minister during the passage of the Bill or through amendments to the legislation. We are clear about the idea of summary offences that go to the magistrates court. Indictable-only offences will have a trial with a judge and jury. In a number of cases, however, the offence is triable either way, but provisions that this House has introduced mean that in particular circumstances it can be tried only on indictment.

Some examples of that are three-strikes class-A drug trafficking offences, three-strikes dwelling burglary offences, dwelling burglaries involving violence or threats of violence, and the minimum mandatory sentences for firearms offences. Those were decisions taken by Parliament to say that, while the offence more generally could be tried either way, these cases in those circumstances are too serious to be heard by a magistrates court; they must be heard by a judge and a jury.

What are the consequences of the Bill on those scenarios? Will the Government respect the will of Parliament in relation to considering those cases to be more serious, as the Government accept for those cases that retain a jury trial, and that they should therefore remain with a jury trial? It is important that we have clarity on this issue specifically because, as I said, it is something that would almost certainly be subject to appeal if clarity is not provided.

I finish by reiterating the point that, if the Government refuse to accept our amendment, they will be actively legislating away a right to appeal allocation decisions that currently exists in our system. They will be actively choosing to do that if they are unable to insert a similar right through other means, such as through our amendment or an amendment at a future stage. I think it is important that the Committee reflects on that, and I hope the Minister can agree.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

I will speak to amendment 18, tabled in my name, which seeks to ensure that a defendant has the right to appeal against a judge’s decision to allocate a case for trial by judge alone, whether because of the likely sentence length or because the case is assessed to be complex or lengthy. I will also be supporting amendment 40, tabled in the name of the shadow Minister, and amendment 28, tabled in the name of the hon. Member for Bolton South and Walkden.

As stated, triable either-way offences, with potential sentences of up to three years, could be tried in the new Crown court bench division swift court. I argue that cases where a defendant may receive a sentence of up to three years are not minor offences; we are talking about life-changing sentences. Often in this category, we are talking about possession with intent to supply, actual bodily harm, death by careless driving, or section 20 unlawful wounding or grievous bodily harm, including where there is a grave injury. We must safeguard those sorts of cases against rough justice—an issue that much of the legal profession has warned could arise. It is vital that the Government provide an appeal system against decisions on whether to allocate a case for trial in front of a judge or jury.

I would like some clarification from the Minister: when we talk about summary offences, indictable offences and then triable either-way offences, are the measures being introduced in this Bill removing the concept of triable either-way offences? Are we then moving all those categories of offences into what are described as summary offences—these offences that carry long, life-changing sentences?

Briefly, amendment 28 would add a procedural requirement, but it is an important one because it would mean that the court could not simply decide, on the papers, to move a case to a judge-only trial; both parties would have to have first been given the opportunity to argue the point at a hearing, and only if both sides expressly gave up that right could the court proceed without one.

That goes back to the point that I raised earlier about the Canadian model, which I know the Government have been exploring and have spent time in Canada looking at. There, people have the right to elect a judge-only trial, so there is still an element of choosing what that looks like. That is not what this Government are proposing; they are proposing that there be no choice in the system, and that there be no legal precedent for it. I would appreciate the Minister’s answer to that.

Yasmin Qureshi (Labour, Bolton South and Walkden)

I will speak to amendment 28, regarding page 9, line 20 of the Bill. Essentially, the amendment states that, if the prosecution and defence waive their right to a hearing, the court can then make a determination under proposed new section 74AB of the Senior Courts Act 1981. That proposed new section, which will be introduced by clause 3, contains provisions regarding what the court must look at when determining allocation, such as whether a jury trial is to be declined. It is a fairly self-explanatory amendment, but a vital safeguard.

Rebecca Paul (Conservative, Reigate)

I will speak in support of amendment 40, tabled in the name of my hon. Friend the Member for Bexhill and Battle, amendment 18, tabled in the name of the hon. Member for Chichester, and amendment 28, tabled in the name of the hon. Member for Bolton South and Walkden.

Before I get into my speech, I think that the hon. Member for Chichester raised a really interesting point about whether we will ever really talk about “triable either-way offences” going forward, if these changes go ahead. In effect, we will have the rather strange situation—to take the example of category 2 sexual assault or death by careless driving—of either summary offences or those with a full Crown court and jury. It will be interesting to see how that all flows through in the definitions. That is an interesting debate, but probably not one that everyone wants to have right now. I will move on from such interesting questions, and I can tell that the Minister is delighted that I have decided to do so.

Amendment 40 would give a defendant the right to appeal a decision taken by the court when it can be demonstrated that the circumstances of their case are such that a trial without jury would breach the principles of natural justice. It also sets out that any such appeal must not be heard by the same judge who made the original determination. This is a sensible amendment that would build in a level of protection for the defendant in the event that it is fundamentally unfair for their trial not to be heard in front of a jury.

To understand properly why the amendment is needed, we need to look at what the clause does. Proposed new section 74D(1) provides:

“There is no right of appeal against a determination under section 74A or 74B.”

In plain English, that means no right of appeal against the decision to allocate a case for trial with or without jury. In practice, how will the court make that decision? First, the magistrates will have to make a decision to allocate to the Crown court, as they do today, albeit with their new enhanced sentencing powers. Once that happens, the Crown court needs to decide whether the case will be heard by a judge only or by a jury. That is an additional step from what happens now.

I assume that such an allocation decision will take place at the plea and trial preparation hearing, but I invite the Minister to clarify that, if not. If it is so, during the hearing the judge must accurately decide the likely sentence that the offence will attract in order to determine whether it is for more than three years, which attracts a jury trial, or less, which attracts judge only. Daniel Oscroft set out in written evidence that that

“involves a predictive judgment that is inherently uncertain,”

making

“the absence of any appellate oversight…difficult to justify.”

Linsey Farnsworth (Labour, Amber Valley)

This is a decision that magistrates make every day. Every sitting day, they look at allocation, and they do not put their finger in the air to decide what the sentence might be. The Sentencing Council provides guidelines for each individual offence. I know that the Conservative party does not like the Sentencing Council and has at times called to get rid of it, or Conservative Members have, in particular the former shadow Justice Secretary who has now moved to the Reform party, the right hon. Member for Newark (Robert Jenrick). The sentencing guidelines, however, are used by magistrates every day. Sentencing guidelines are also already available to Crown court judges. Does the hon. Lady accept that this is not something that judges will do willy-nilly? There are guidelines and factors that have to be taken into consideration, which is a safeguard in itself to ensure a fair decision.

Rebecca Paul (Conservative, Reigate)

The hon. Lady is absolutely right that magistrates are doing that now, frequently and—as far as I am aware—fairly well, but we have to remember that they are doing it for low-level cases. In fact, their sentencing powers have increased only recently. The key point is that we will have an additional process. The magistrates do it, but now we will have this additional process at the Crown court level to decide between judge only and jury.

Obviously, the sentencing guidelines and all the things we have just set out would be entirely relevant to that process and will factor in. I will go through a that in a bit more detail, so I hope the hon. Lady will bear with me. I will of course let her intervene—that would be really helpful. She clearly has a huge amount of experience in this area, and I want everyone to feed in. I am asking questions about how this will work in reality, so it would be really good to draw on everyone’s experience. The Crown court deals with sexual assault and other more complex cases and, as she knows, the sentencing has to take into account things such as victim impact, so it is lot more difficult to estimate the sentence. Let us continue the debate, because it is very helpful to have this discussion.

To suggest that a judge in the plea and trial preparation hearing can undertake that assessment accurately and quickly off the back of the information that they have at that point, potentially on a paper determination without a hearing, is unrealistic. That could be very difficult for them. I will give a few examples, and again I am very happy for people to intervene or give their views, because we need to work through the nitty-gritty of how the measure will work in reality.

For category 2 sexual assault, the achieving best evidence full transcripts of the complainants’ evidence are often not available. Instead, the court has to rely on a written summary, but my understanding is that that information is needed to provide an accurate and realistic estimate of the likely sentence. How is it proposed that that will be done in practice for allocation? Will the judge watch the videos of the complainants’ evidence for an hour or two before deciding? If the case hinges on CCTV footage, is it proposed that the judge watch that before making the allocation decision? Those practical points do not appear to have been considered in preparation for the Bill, although the Minister may have all the answers and I obviously look forward to hearing how she thinks the process will work in practice.

It is not sufficient just to say that the judge will decide the likely sentence length without ensuring that they have the information they need to do that properly, particularly given the magnitude of the impact of the allocation decision. I therefore ask the Minister whether anyone has calculated how long it might take for the judge to go through the various videos and footage before the PTPH to get the information they need to make an allocation decision.

It is important to remember that victim impact is often a significant factor in sentencing. Is it proposed that victim impact statements will be relied upon at the point of determining an allocation? What happens if, at that point, the impact is not yet known? For example, the complainant might still be in hospital, medical evidence might remain outstanding or the psychological impact might not be known for many weeks or months.

On the face of it, we probably all thought that a judge deciding whether the likely sentence will be more than three years sounded straightforward. We would think that they just look at the sentencing guidelines, but I am not sure it is that straightforward. Once we start thinking it through and listening to those working in the justice system—I have spoken to people about this—we soon realise that it is far from simple, especially for complex cases such as sexual assault. The judge does not magically know the likely sentence; they need to understand the facts, the detail of the alleged offence and the impact on the victim before they can even begin to do that accurately. If they get it wrong, which is increasingly likely if insufficient information is available to them, that could result in defendants being denied a jury trial when they should have had one.

That brings me on to my next concern. How long will it take on average for the judge to do all this? Has that been factored into the Crown court saving of 27,000 sitting days? Has the increased time that the magistrates will need to spend on this, due to the complexity of cases, been factored into the increased demand of 8,500 sitting days? We also need to bear in mind that the allocation process that the magistrates undertake under the current rules will also get more complex once the sentencing powers increase up to two years. There will have to be allocation decisions for more complex offences such as sexual assault and death by careless driving. Do magistrates have the expertise to accurately assess the likely sentence in those types of cases to adequately assess victim impact?

The Government’s approach sounds simpler on paper, but I hope I have demonstrated that in reality I am not sure it is once we delve into it. These proposals add a not insubstantial amount of work simply to decide where to allocate the trial, essentially undertaking almost a mini trial to review the evidence before the allocation can even be decided. That does not sound time saving to me. It is the wrong way round. We expect the judge to make a judgment on sentence before the trial has even happened, which could change the type of trial the defendant is entitled to. That is fundamentally wrong. It is a flawed approach that will lead to bad outcomes for defendants and complainants.

Linsey Farnsworth (Labour, Amber Valley)

The magistrates court goes through that process. The process of allocation to the Crown court bench division essentially mirrors what already happens in the magistrates court, and that is quite a straightforward procedure. It often takes less than five minutes—virtually always less than five minutes. Because the prosecution makes its representations on the Crown’s case, it sits highest. For the most serious version of the offence, what would the likely sentence be, based on the sentencing guidelines that I have already mentioned? That will be the case in the Crown court. There will be a prosecutor in the Crown court standing up and saying, “The Crown’s case at its most serious does not warrant a sentence above three years. We therefore think it can stay in the Crown court bench division.”

For it to be a big argument, the defence advocate would need to argue that their client deserves a much longer sentence than the CPS says they deserve, if all the most serious elements of the case are proven. That strikes me as a very unusual argument for a defence barrister to make—that they would suggest their client deserves a longer sentence. That is what we are talking about here. How often is a barrister going to argue that their client deserves a longer sentence?

If the defence barrister convinces the judge, the judge might think, “Actually, maybe it does deserve a longer sentence; we will have a jury trial”, and that person is convicted after trial. Then there is the plea and mitigation stage. At that point, the defence barrister will try to argue, “I know the case is now proven, and I know that I said it deserved longer than three years, but actually, even though the case is proven, they deserve less.” That would be a very strange position for a barrister to be in, and I think they would be at risk of misleading the court at some point along the way, which is something they very much would not like to do. I can reassure the hon. Member that in my experience these arguments just do not happen.

Rebecca Paul (Conservative, Reigate)

It is really helpful to hear the hon. Member’s perspective from her in-depth knowledge and experience, but I would challenge one aspect of her point: I might argue for a longer sentence if it meant I was more likely to get a jury trial and be found not guilty. Allow me to give an example. If I had created an offensive social media post, I would know that, if I could make my case to a jury, they would be much more likely to use their discretion and compassion and accept the human foibles that we have. They might well say, “This person did not intend to cause any harm—not guilty”. I therefore disagree with the hon. Member; I think she will find herself in a situation where—it sounds bizarre—people will argue that they should get a longer sentence in order to go to jury, so that they have a chance of being found not guilty and clearing their name.

Linsey Farnsworth (Labour, Amber Valley)

I know that that would absolutely not happen—

Rebecca Paul (Conservative, Reigate)

Why not?

Linsey Farnsworth (Labour, Amber Valley)

Please allow me to finish.

It is because barristers have a duty not to mislead the court. If they are saying to the judge, “I know my client is not really going to get more than three years, but I am going to argue that they are because I want the jury trial,” then that would be very much against the requirements on barristers.

Rebecca Paul (Conservative, Reigate)

That is not the case. The hon. Lady has just set out that it is about setting out the worst possible cases with respect to the sentence—so they absolutely could do that. It is exactly what will happen. They will always be looking to achieve the best for their client—particularly if their client is not guilty. Let us remember that we are talking about some people who will not be guilty.

Again, they know that if they have done a social media post—and we have seen that people have gone to prison for these things—they are much more likely to not go to prison if they end up in front of a jury. However, if they end up in front of a judge—my goodness me—there is a much higher chance that they will go to prison.

Kieran Mullan (Conservative, Bexhill and Battle)

As I said at the outset, there is a fundamental safeguard of people being able to have a judicial review of the allocation decision. It is all well and good for the hon. Member for Amber Valley to talk about the scenarios where it sails plainly, everyone is in agreement and it is all good. However, if it did not, at the moment, a defendant has a right to a judicial review of the decision to allocate. If these proposals go through, they will lose that right and have no ability to question legally the decision to allocate—even if it was a factual error of the law. We are not even talking about a subjective element. Let us say that the judge just gets it completely wrong, misunderstands the facts presented to them and allocates incorrectly. At the moment with magistrates that person could go straight to judicial review and the case does not proceed as was intended. However, we would now lose that right.

Rebecca Paul (Conservative, Reigate)

I thank my hon. Friend for making that important point. Returning to this debate, we are going to see real problems from this approach to allocation. I am glad that the hon. Member for Amber Valley thinks that it is not an issue—it sounds as if she thinks that all the issues I am raising are not issues. However, she will find that there are some KCs out there that will say that some of the things I have raised are actually very much going to be issues.

I ask the Minister in her summing up to go into some of the detail about how this would work in practice. As I said, it sounds really straightforward—“Oh, we just decide whether it is more or less than three years”. However, it is just not that straightforward.

We also have to bear in mind that sometimes, as a case develops, the prosecution might substitute a lesser charge for trial, as sometimes happens—for example, a section 20 grievous bodily harm instead of a section 18 GBH, an affray instead of a violent disorder, or handling instead of robbery—and that changes everything.

What happens when they do that? Will it go back through the reallocation procedure every time? If so, has that been factored into the estimates on sitting day savings? I am sure that the Minister is very much enjoying me constantly going back to the estimates and impact assessment, but it is really important that we are clear about what has been factored in and what has not.

In the light of the number of questions about how this will work in practice, it is surely plain to see why it is so important that the defendant has, as a bare minimum, a right to appeal any such allocation decision by a judge. There is so much scope for error in having a judge perform a sentence estimate at a point before all the facts and evidence are known, or without giving them sufficient time to digest the information, that it would be completely unfair to not include an appeal route. Even better still, I would urge the Government to rethink the whole Bill and not do away with the right to elect for a jury trial at all; then we would not really have to worry about any of what I have just raised.

Sarah Sackman (Labour, Finchley and Golders Green)

Once again, I thank the hon. Members for Bexhill and Battle and for Chichester and my hon. Friend the Member for Bolton South and Walkden for tabling the amendments. I will seek to address each of them in turn, as well as the other points raised, in particular by the hon. Member for Reigate.

On amendment 40, let me begin by emphasising that I do share the view of the hon. Member for Bexhill and Battle that we have to uphold the principles of natural justice in our system, which encompass the right to a fair hearing, rules against bias and the duty to act fairly. He well knows that I regard timeliness as an important aspect of fairness and the effective administration of justice. Unnecessary delay places strain on all court users, which is what the Bill—primarily in clauses 1 to 7—is designed to address.

Members will have also heard me say that the fairness of the trial—the fundamental elements of fairness and natural justice—does not depend on the mode of trial chosen. I reject the characterisation by the hon. Member for Chichester of a judge-only trial as rough justice. A trial conducted without a jury is no less fair by reason of that alone.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

I accept that it might be a mischaracterisation to describe it as rough justice, but does the Minister agree that in this case it will be summary justice, which by its very definition is rougher around the edges, because it is summary?

Sarah Sackman (Labour, Finchley and Golders Green)

I am happy to sit down with the hon. Member again to clarify what she means by summary. There is no curtailment of the trial. All the elements of the trial happen in exactly the same way: the prosecution presents its evidence; the defence presents its evidence; witnesses are cross-examined; the evidence is tested. It is not summary in that sense—but if she wants to come back on that, I am happy to give way.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

I appreciate the opportunity to come back on that. That poses another question: if judge-only trials are going to take the exact same amount of time, how will this speed up the court backlog?

Sarah Sackman (Labour, Finchley and Golders Green)

As we have heard extensively in evidence, whether from Sir Brian Leveson, the three experienced judges or our international comparators, including the Attorney General for Ontario, it does save time in a number of ways. The most compelling characterisation I heard was from Clement Goldstone, the recorder of many years’ experience from Liverpool. He said:

“in my experience it is wrong to confine the savings, or the assessment of the savings, to empanelling and swearing in a jury. That is where it begins.

Every sex case, I suspect probably nationally, now comes before the court with a direction that there will be no witnesses before 2.15 pm on the first day or, if the case is starting at 2.15 pm, until 10.30 the following morning. If there is no jury, there is no bar to the evidence starting within 10 or 15 minutes... Half a day, at least, will be saved on every sex case that is heard in the Crown court. That is before you start with time lost as a result of jury sickness, or a juror being delayed”.

He went on to say—and we heard this from the Canadian witness as well—that

“It is also easier to call a witness out of order if you are not trying to take a jury through in the order in which the evidence would otherwise be called.”––[Official Report, Courts and Tribunals Bill Public Bill Committee, 25 March 2026; c. 76, Q161.]

He said, in terms, “I do not accept that there will not be a significant amount of time saved.”

It is not right to call a judge-only trial summary. It is not right to call it rough justice, and it is also not right to say that time will not be saved. Substantial time will be saved.

Sarah Sackman (Labour, Finchley and Golders Green)

I am going to make some progress.

Amendment 40 seeks to introduce an appeal route. The practical effect would be adding an additional interlocutory stage to proceedings, increasing the risk of delay. That risks undermining the efficient progression of cases without providing any corresponding benefit in terms of fairness. As I have stated when discussing similar amendments tabled by the hon. Member for Bexhill and Battle, decisions about mode of trial are procedural case management decisions rather than determinations of guilt. As a general rule, such decisions are not subject to a specific route of appeal, in order to promote procedural finality and to avoid delay.

Kieran Mullan (Conservative, Bexhill and Battle)

I hope the Minister will go on to clarify whether it is actually subject to judicial review.

Sarah Sackman (Labour, Finchley and Golders Green)

There is no specific ability to appeal, but of course, a decision in relation to mode of trial could be subject to judicial review. Those familiar with the judicial review process know that that is a high bar. We are talking about public law grounds of vires—whether it is within the scope of the statute—and rationality. It is a high bar, but there is no unique route of appeal. That is in order to promote procedural finality and to avoid delay when we are talking about the allocation decision itself.

I reiterate that several important safeguards are in place to ensure fairness and transparency. Both parties will be able to make representations on mode of trial decisions, and judges will give reasons for their decisions. Of course, the wider system of appeal—that is, to the substantive determination on a verdict and, indeed, on sentencing—remains in place.

Kieran Mullan (Conservative, Bexhill and Battle)

I think the Minister would accept that it is a high bar, but also that it is sometimes successfully crossed. Allocations are sometimes successfully challenged, which demonstrates just how important this provision is. If it is there and is used when things have gone so significantly wrong as to meet that high bar, it is vital that the same test is available in extreme scenarios, but it will not be available in relation to allocation by the Crown court.

Sarah Sackman (Labour, Finchley and Golders Green)

I think I have been as clear as I can be. If a mode-of-trial decision is so out of order or unlawful that it is challengeable by way of judicial review, it can be challenged in that way.

Kieran Mullan (Conservative, Bexhill and Battle)

This is very important. I have read the legislation to the Minister, and highlighted the point that a non-conviction element of the Crown court proceedings cannot be taken to judicial review. The Minister should either say that I am wrong about that and that something like an allocation decision in the Crown court can be judicially reviewed, or that I am right and that what she has just said means there should be something that is not there. The whole Committee needs to know whether I am correct in saying—I believe I am—that that sort of hearing from a Crown court cannot be judicially reviewed.

Sarah Sackman (Labour, Finchley and Golders Green)

My understanding, and I will happily correct the record if I am wrong, is that there is no bar to judicial review in that context. However, there is not a specific route of appeal, which is what amendment 40 seeks to allow. To reiterate, several important safeguards are in place to ensure fairness and transparency.

Kieran Mullan (Conservative, Bexhill and Battle)

Will the Minister give way on that point?

Sarah Sackman (Labour, Finchley and Golders Green)

I am going to make some progress.

Both parties will be able to make representations as I have said. We also recognise that cases can and do evolve as they progress through the courts and a number of examples were raised. Clause 3 makes clear provision for cases to be reallocated between the bench division and jury trial where the seriousness changes. That process is set out specifically in the legislation, and for that reason I urge the hon. Member for Bexhill and Battle to withdraw the amendment.

Paul Kohler (Liberal Democrat, Wimbledon)

The point is that judges can make mistakes. That is why the Attorney General can appeal unduly lenient sentences. Why are the Government saying there cannot be a challenge in this case when a mistake has been made? Why are they not allowing an appeal when a mistake has been made as to how long the maximum sentence might be?

Sarah Sackman (Labour, Finchley and Golders Green)

As I am about to come on to, not least to address the very fair questions raised by the hon. Member for Reigate—she knows that I do not mind answering questions, because we have a constructive approach—the assessment designed to take place at the PTPH is to give an indicative assessment of sentence; it is not a final determination of sentence. That final sentence may exceed the estimate that is reached, or it may be lower. This is not intended to be a mini-trial, and that is consistent, as we heard from my hon. Friend the Member for Amber Valley, with what happens in the magistrates court every day.

Paul Kohler (Liberal Democrat, Wimbledon)

Mistakes can be made. All I am asking is why the Government are saying that when a judge or magistrates have made a mistake, there can never be an appeal—mistakes happen.

Sarah Sackman (Labour, Finchley and Golders Green)

Of course nobody is infallible in this process, and mistakes are made. But I caution that there is a distinction between taking a decision that is totally outwith the legal authority the statute provides the decision maker with and an indicative assessment of likely sentence, which turns out not to be the precise result that we end up with. That does not invalidate the initial assessment or necessarily mean it is mistaken based on the representations that were before the judge at that time. We therefore think that introducing a specific route of appeal to the allocation decision—I am not talking about appeals to the ultimate verdict —introduces a needless interlocutory stage that will only add to delay, in a system where we are trying to bring them down.

Kieran Mullan (Conservative, Bexhill and Battle)

Will the Minister give way on that point?

Sarah Sackman (Labour, Finchley and Golders Green)

I am going to make some progress.

Amendment 18 would introduce a new right to appeal allocation or reallocation determinations made under proposed new sections 74A and 74B. The Government do not consider that necessary or appropriate. As I said, mode-of-trial decisions of this kind are procedural case management decisions. They are intended to ensure that cases are tried efficiently and fairly and managed proportionately. As a general rule, such decisions are not subject to a unique route of appeal.

I also note that, although the explanatory statement from the hon. Member for Chichester refers to appeals against allocations to judge-alone trials, the amendment goes further, and would permit appeals against any determination under proposed new sections 74A and 74B, including decisions to allocate a case to jury trial. In practice, that means that a defendant allocated to jury trial could appeal on the basis that a judge should have instead concluded that the likely sentence falls below the three-year threshold. That could invite routine challenge to what are intended to be efficient, clear and decisive case management decisions, encouraging tactical appeals to delay proceedings rather than resolving them, which is what we want. Members should also note that judges making mode-of-trial decisions will be required to give reasons, ensuring transparency and accountability.

Appeals in the Crown court will otherwise remain unchanged, and introducing a separate right to appeal against a mode-of-trial decision would, as I said, add an additional procedural layer, increasing the risk of delay and uncertainty in exactly the types of complex cases where timely resolution is most critical. That is further delay that the system cannot afford.

Kieran Mullan (Conservative, Bexhill and Battle)

Just so we are really clear, I have met Supreme Court judges and they tell me that they go back through discussions and debates about legislation to understand the intent or will of Parliament. The Minister said there will not be a separate route of appeal and referred to existing and ordinary rights to appeal. Does she therefore think that it is the will of Parliament that people at the point of conviction should be able to raise questions of allocation, or that judges at the point of conviction should not consider questions of incorrect allocation?

Sarah Sackman (Labour, Finchley and Golders Green)

I am not quite sure, in that hypothetical, where those arguments would take us. As I said, the allocation—whatever the constitution of the Crown court, it is still the Crown court—guarantees a fair trial. So I am not sure what this proposal does in that context to underline the fairness of what has been determined.

What I would say to the hon. Member for Reigate is that the intention here is that this process is neither new nor complex. As others have said, it broadly mirrors the allocation exercise in the magistrates court, which already requires a balanced assessment of the case, including matters properly advanced by the defence. The hon. Lady is absolutely right that the judge at the PTPH stage in the Crown court will hear the prosecution’s summary of the alleged facts and apply the relevant defence-specific sentencing guidelines to assess harm and culpability to determine in what category that places the case. When one examines the sentencing guidelines, although they are rich in detail, it is often pretty black and white as to whether someone is within the three-year territory or quite obviously above it in cases that are not themselves indictable-only. The judge will then consider any clear aggravating or mitigating features, which will allow the judge to determine where the case will likely fall within the sentencing category range. Inviting representations from the parties at PTPH is not an open-ended process, a mini-trial or a sentencing hearing. As I said, we are trying to give an indicative assessment of likely sentencing length, not what the actual sentencing length will be.

Rebecca Paul (Conservative, Reigate)

I apologise if the Minister is about to come to this, but is she saying that she does not expect this process to take very long?

Sarah Sackman (Labour, Finchley and Golders Green)

It is not just me saying that; Sir Brian Leveson and the independent review of the criminal courts take that view, as did the three senior judges we heard from in Committee, who thought that allocation and reallocation decisions—this is in relation to reallocation decisions, but in some ways there are parallels—could often be appropriately made on the papers, as the judge would have sufficient information in front of them, including written representations from the parties.

The hon. Lady asked how we factor in assessments of the time savings. That is predicated on the idea that this is not a mini-trial and is not intended to be a mini-hearing in any sense. In the magistrates court, there is an indicative assessment that informs the applications of the sentencing guidelines to an allocation decision, and the same thing will happen in much the same way here, with highly experienced judges. That will happen as part of the PTPH, so this is part of a hearing that already happens. The hon. Lady was right to ask me about that, because there was some confusion or challenge over the idea that we are introducing a new hearing or a new stage. We are trying to make this efficient, so that is not the intention at all.

Rebecca Paul (Conservative, Reigate)

Is the Minister saying that judges will not be required to review CCTV footage or understand the impact on the victim? Is she saying that that is not required in this process?

Sarah Sackman (Labour, Finchley and Golders Green)

I will not stray into judicial discretion about how they would do this, but I think that that is highly unlikely. One is assuming that the prosecution’s facts in their case summary are in their favour. That does not require looking behind every element of the evidence to substantiate whether the facts are proven or not; that is for the trial. However, the judge may want to look at something when the parties present their case on allocation, and I am not going to gainsay that. But I think that what the hon. Lady describes is highly unlikely.

As I said, appeals in the Crown court will otherwise remain unchanged. I have dealt with that, and I ask the hon. Member for Chichester not to press her amendment.

Amendment 28, tabled by my hon. Friend the Member for Bolton South and Walkden, would add into the reallocation test in clause 3 the ability for parties to require the court to hold a hearing. That would be inefficient. I refer again to the three senior judges who told this Committee that reallocation decisions can often be made appropriately on the papers. Why should judges be required to use up court time where that may not be necessary? This is simply not going to be the laborious process that has been suggested.

Forcing judges to hold hearings if they are considering reallocation runs counter to the intent of the clause. Delays to proceedings can and should influence a judge’s decisions over whether to reallocate a case, and by forcing hearings and delays, parties would effectively be tying a judge’s hands. There is also nothing to stop a party requesting a hearing in that context.

It is fundamental to the proper functioning of the courts that judges can make decisions impartially and independently. Like others across the House, I have full faith in our judiciary to make those informed and robust decisions. I therefore urge my hon. Friend not to press her amendment.

Kieran Mullan (Conservative, Bexhill and Battle)

We are now being asked to vote in a totally unsatisfactory situation when it comes to the facts of how this legislation will operate in two very important regards. I put it to the Committee that there will be an erosion of the right to judicially appeal an allocation decision that currently exists in respect of magistrates. The Minister said she thinks that that is wrong, but we will have to vote one way or the other on the basis that either the Minister is correct or I am correct. A Member said from a sedentary position—this is not a criticism of him—that the Minister will come and correct the record, but we will have already voted when the record is corrected. The Minister has given a view that there will be a right of appeal through judicial review to an allocation decision in the Crown court, and that is a fundamentally different scenario to one where someone does not have that right. However, we will be asked to vote on that today, without having absolute certainty, and we will perhaps be told afterwards, “Oh no, you don’t actually have that right.” I am not sure how Labour Members are comfortable or confident voting against a right that we are seeking to give people, without having absolute clarity about what the Minister has said and whether she is correct. It is extremely unsatisfactory for this Committee to be asked to vote on that matter without absolute clarity.

Secondly, similarly, the Minister did not clearly answer whether, as a consequence of that, people would be able to pick the issue up in an ordinary court of appeal. To another point raised by Opposition Members, the Minister said that we are not talking about errors in the law or where judges have clearly strayed outside of legislation. How does she know that? How does she know what future mistakes a judge might make? A judge may do exactly that, and allocate a decision completely and utterly incorrectly, outside of the law and what Parliament intended, and the Minister will not tell us whether that could be picked up in a court of appeal.

That, again, has important consequences, not just for the rights of the person who may be subject to that kind of egregious mistake in a legal proceeding without any route of recourse; it will also undermine the whole system if people are appealing and challenging these decisions and there is all this uncertainty.

Paul Kohler (Liberal Democrat, Wimbledon)

I hate to break the consensus on the Opposition side, but I really do not see how we can say that judicial review is an appeal, and therefore why it is caught by this legislation at all. Judicial review is not an appeal of a decision; it is a review of a process. I do not think it is a concern.

Kieran Mullan (Conservative, Bexhill and Battle)

As I said, our preference is for an appeal. The Government could say, “We are not going to add additional rights that do not exist; you do not get a right of appeal on allocation by a magistrate, but you do have a right to judicial review.” But the Minister cannot say with confidence that we do or do not have that. That is extraordinary.

Sarah Sackman (Labour, Finchley and Golders Green)

I did say that.

Kieran Mullan (Conservative, Bexhill and Battle)

Sorry—with confidence. The Minister says she is happy to go away and double-check. She should know for certain whether people have a right to a judicial review of an allocation decision in the Crown court, as in the magistrates court. She should be able to tell us that with absolute certainty.

I have been the Parliamentary Private Secretary for a Minister, passing notes between officials and the Minister. That is why debates are structured in the way they are: earlier in the debate, someone raises a point of importance in their opening remarks, and that gives time to the Minister, working with their officials. I absolutely accept that the Minister will not always have things at the tips of their fingers, but that is why the officials are there, to liaise with the Department. I am not criticising the officials, but why have we not had a direct note so that the Minister can get up and say, clearly and confidently, with absolute certainty, that there is a right of appeal to a Crown court allocation decision?

Siân Berry (Green, Brighton Pavilion)

I have to add my voice to the point that this is an unsatisfactory situation. We have heard time and again from the Minister that the decision about allocation will be made based only on the length of sentence, but in proposed new section 74C(7)(a) to (g) on reallocation—(g) allows for any other matters—there are many points that are quite subjective where decisions could be made on reallocation, and that could have a similar impact on someone’s life. I do not think we have all the answers we need about how this will work.

Kieran Mullan (Conservative, Bexhill and Battle)

I absolutely agree. We will go on to discuss reallocation, and the hon. Member anticipates the points I was going to make. The reallocation decision is even more of a minefield, with all sorts of subjectivity and challengeable elements. I look forward to discussing that.

The PPS muttered earlier that I am patronising the Minister, but I think the Opposition are being patronised. We are being asked to vote on something where we have not had absolute clarity.

Sarah Sackman (Labour, Finchley and Golders Green)

I appreciate that the Opposition disagree with what we have decided to do in this legislation. There is no specific route of appeal to challenge the mode-of-trial allocation decision. If a defendant and their representatives consider it to be so egregious as to be unlawful, they can challenge that by way of JR, but I would suggest that that will be a very difficult threshold to reach and unlikely to get permission in the administrative court. The mode-of-trial allocation exercise involves an indicative assessment of likely sentence—a judgment on the basis of indicative factors—so establishing that the conclusion that has been reached is so irrational is unlikely.

I do not think I am being unclear. The hon. Member for Bexhill and Battle has heard it three times; he does not like it. I am doing my best.

Kieran Mullan (Conservative, Bexhill and Battle)

Perhaps the Minister is sincerely—not deliberately—misunderstanding the point I make.

Melanie Ward (Labour, Cowdenbeath and Kirkcaldy)

She is being very clear.

Kieran Mullan (Conservative, Bexhill and Battle)

Does the PPS want to intervene? No, I did not think so.

As we have agreed, judicial review exists for an allocation decision by the magistrates. The Minister has quite rightly set out that that is a very high bar and is not a right of appeal. In that regard, the Minister is fair to say that our amendment is not directly comparable. I put it to the Minister, and I made this point earlier, that it would be the Crown court making an allocation decision. It is not allowed, as it is in a magistrates court, to use judicial review to challenge a decision made, like at the PTPH, on allocation. That is an incredibly important point that all Members must understand. If the Minister is going to say that people are not allowed a general right of appeal—we do not agree with that, but it is a legitimate argument—that is one thing. But if the Minister is saying that people are going to lose the high bar of challenge that exists at the magistrates court, that is incredibly important. We need to understand that because, as I have said, it is a high bar, but it exists for a reason.

In all the time that I have been in Parliament, I have not ever heard an argument made for the ouster of the ability of a defendant to take the allocation decision to judicial review. I have never heard the argument that, “It is completely inappropriate, you shouldn’t have that right and we’re going to take that right off you.” We have allowed that right to exist and chosen not to take it away from people. We are introducing a new mode of court with a potentially higher degree of seriousness as regards those allocation decisions, and the Minister cannot even commit to ensuring there is parity. We are not asking for enhancement, but the Minister cannot even tell us whether there is parity on the right to judicial review.

I have been advised that there is not the same right to judicial review, and that is why it would be important to have a route of appeal.

Paul Kohler (Liberal Democrat, Wimbledon)

Although judicial review of a Crown court decision is limited, Crown court decisions that are not part of the trial by indictment can be reviewed. I am sure an allocation decision can be reviewed.

Kieran Mullan (Conservative, Bexhill and Battle)

We went through this at the start. A triable either-way decision becomes a trial on indictment, but I have been told by a leading KC that in pre-trial hearings—the sort of matters we are considering today—people will not have that same right.

Paul Kohler (Liberal Democrat, Wimbledon)

But aspects of a Crown court decision that are not the trial by indictment can be reviewed. Other aspects of decision making can be reviewed, so I cannot see why an allocation decision could not be reviewed.

Kieran Mullan (Conservative, Bexhill and Battle)

Again, this is why the Minister needs to clearly articulate whether or not we can—[Interruption.] The hon. Member for Amber Valley is saying that the Minister said that we can. But what will the Minister do if we all vote tonight on the basis that the allocation decision can be judicially reviewed? The Minister is asking us not to have a view on it, not to consider it, but to vote on the question of appeal in relation to allocation decisions on the basis that she has told us that they can be judicially reviewed. Will the Minister think that that is in any way satisfactory if what she has told us proves wrong? I do not see how she could possibly think that that would be satisfactory.

Alex McIntyre (Labour, Gloucester)

The Minister has been really clear in her response. This morning, the shadow Minister was extolling some intellectually coherent arguments that the Conservative party has now discovered. I wonder whether he might return to them for this afternoon’s session.

Kieran Mullan (Conservative, Bexhill and Battle)

I think that wanting defendants to have the ability to challenge allocation decisions as they stand under a new court is pretty intellectually coherent. I am arguing that these are potentially significant, consequential decisions for defendants, and at the moment, as the Minister has explained, we all agree that there is a high bar for judicial review. I am not confident, and the Minister has not given me confidence, that the judicial review element absolutely exists.

The Minister has talked about appeal; she is right that there is no right of appeal for the allocation decision at the magistrates court, but there is a right to judicial review and I am not sure that there is in this clause. It is unsatisfactory that we may have to vote on it.

Paulette Hamilton (Labour, Birmingham Erdington)

I am no expert, but I find this argument fascinating. What would it take to make the shadow Minister believe what the Minister is saying? I do not understand this subject, except for everything that I have read, but the Minister has been absolutely clear. What does the shadow Minister need to make it clear so that we can move on to another point?

Kieran Mullan (Conservative, Bexhill and Battle)

If the Minister wants to intervene on me and say, “I am absolutely certain that there would be a right to judicially review the allocation decision by a Crown court,” I will be satisfied. I am asking for the Minister to stand up and say that she is absolutely certain.

Sarah Sackman (Labour, Finchley and Golders Green)

If, at a PTPH, a judge makes an error of law, that is amenable to judicial review. Full stop.

Kieran Mullan (Conservative, Bexhill and Battle)

I welcome that clarity; it will be interesting to see what happens as a result of that. I take what the Minister has said in good faith, and assume that she would not say that unless she was certain.

That point is about the question of judicial review. The Opposition believe that there should be a right of appeal separate to that, for two reasons. First, it is fair to the individual, and, secondly, if we do not have an initial right to appeal, and these matters are then considered in appeal at point of conviction, we will create more issues, backlogs and legal uncertainty and defeat the point. Our amendment would make the system more, not less, streamlined. It would help the Government meet their objective, not hamper them. On that basis, I will push it to a vote.

Kieran Mullan (Conservative, Bexhill and Battle)

I beg to move amendment 41, in clause 3, page 5, line 38, at end insert—

“(7) Where a court has determined in accordance with this section that a trial is to be conducted without a jury, the defendant may request a different judge to preside over the trial than the judge who made the determination that the case was suitable to be tried without a jury.”

This amendment enables the defendant to request a different judge to try the case than the judge who determined that the case was eligible for trial without a jury.

The amendment draws into acute focus the challenges with public confidence and the risk of clouding judicial decision making that the proposals of a new judge-only court bench division will create.

It is important to set out the distinctions between different types of allocation decisions both now and in the future, if the proposals are passed. It is important to restate that we have summary-only cases based on the offence type rather than anything subjective, and then we have the indictable-only offences, again based on the offence type. In our previous debate on allocation, I pointed the Minister to grey cases, such as drug dealing and burglary offences, that are triable either way. At the moment, if it is about three of those offences, they have to go to the Crown court. I ask the Minister for clarity at some point about how they will operate.

Presently, we have what I sometimes call a clear and distinct separation of powers—a separation between those anticipating sentencing outcomes and those deciding sentencing outcomes, and a powerful safeguard for where that is not the case. Under the Bill, those lines will be blurred in a new and novel way, because the judge anticipating sentence length in the Crown court can then determine guilt and sentence length, and potentially issue a longer sentence of more than three years. That is important for the defendant and, in certain scenarios, for the victims and bereaved.

The hon. Member for Amber Valley, with her expertise, earlier described the fact that allocation and sentencing take place in the magistrates court, but importantly, the defendant can elect, and say no to their being involved in that process. They can say, “I want a jury trial; I want the judge who passes the sentence to be separate from the people involved in allocation.” Of course, the scenario is one in which a defendant is unlikely to have a reasonable claim of bias against their interests in relation to the sentence.

We discussed why someone may prefer a jury trial, even if the sentence might be higher. However, if we are talking about the defendant’s ultimate view about the judge, it is unlikely that someone in the magistrates court—if the case stays in the magistrates court—will say, “You chose to keep me here because of a shorter sentence, so I think you are biased in giving me a longer sentence.” They already have a positive disposition about the view of the sentencing.

More importantly, there are strict limits on the sentence length if a case stays in the magistrates court. It cannot go beyond what the initial judgment was. If the court decides, during or at the conclusion of the trial, that the sentence should be higher, it is up to someone else to pass that sentence. It goes to the Crown court for sentencing.

Linsey Farnsworth (Labour, Amber Valley)

It is true that the case has to go up to the Crown court, but it is not for the purposes that the hon. Member would like, as it were. It is because the magistrates’ maximum sentencing powers have been reached, and therefore they do not have the power, as opposed to it being preferable that the case go to somebody else.

Kieran Mullan (Conservative, Bexhill and Battle)

That was not the point I was seeking to make, so I thank the hon. Lady for clarifying.

I sometimes wonder what victims think. Do they sometimes follow a case, hear the evidence and then think it should be getting more than the magistrates’ limits? Do they question whether the magistrates, who have a preliminary view about whether the case will hit a certain maximum at the outset, have come to the trial with some degree of bias about what outcome might be? Do they think the magistrates would therefore have some reluctance, even having heard the evidence in full, to pass a sentence that is beyond their powers and send the case up? Of course, magistrates do reallocate sentencing. As we have said, just because I feel there is a risk of a perception of bias does not mean I think we should scrap the whole lot and never let magistrates pass a sentence, but seeing that things are not perfect on balance does not mean that we accept them.

These proposals will add a degree of seriousness because of the potentially significant differences between possible sentence lengths. The sentencing guidelines for the offences are narrower than we will perhaps see with triable either-way cases, which have already been curtailed at a certain level of seriousness and might go up to an even greater level of seriousness.

If the clause passes unamended, the scenario could be as follows. A Crown court judge will receive an outline of the case, and make an initial judgment on the likely sentence outcome. They will decide, for a triable either-way offence, whether a sentence is likely to be more than three years. That same judge could then hear that case. That is the same judge whom a victim or bereaved family member could reasonably—perhaps not correctly, but reasonably—perceive on some level had already made a decision about the case, because of course they have: they have taken an initial view of the case and on what the outcome was likely to be. Importantly, that is not something that happens in any way shape or form with the jury trial system, where the two things are separate.

We all agree that perception as well as reality is important in our justice system. It is possible that some victims or bereaved family members might question whether the judge, who formed a view, is not best placed to then objectively and fairly decide what the actual sentence should be, if it should be longer than three years. They might even be concerned that passing a sentence of more than three years would suggest that they had got it wrong in their initial view. Again, we do not have to form a view about how likely or unlikely that is; we should form a view on what the perception of that will be. As politicians, we are very used to the concept that perception is important. Even if someone has not necessarily done something wrong, whether the public perceive that they might have done something wrong is important.

All that can be readily and simply avoided through our amendment, which would introduce a separation of powers, as I have described it. This is a modest and narrow amendment. It will provide a greater degree of confidence in the new system; even if the Minister is happy to proceed with the system, I am sure she would accept that it has generated questions and debates about rights and impartiality. This amendment is a very simple and modest way in which the Minister can minimise that. I know she wants maximum possible confidence in the new system, so I hope our amendment achieves that and that she can support it.

As we are still discussing allocations and who will or will not be allocated to different parts of the court, I would also be grateful if the Minister could provide clarity on triable either-way offences, such as drug dealing and burglary offences, where multiple versions go into the Crown court at the moment. What will happen to those cases in relation to allocation as part of the new division?

Joe Robertson (Conservative, Isle of Wight East)

Evidently, I support the amendment in the name of the shadow Minister. As he set out, this is about confidence in the trial when it gets under way. It is about understanding what a judge, in exercising their procedural decision making, may have seen prior to the trial getting under way and the evidence being heard. As I see it, the amendment would go some way to at least mitigating what is lost in the Government’s abolition of jury trials for certain offences: that is, the objectivity of jury trials, where a jury decide on the conviction—guilt or innocence, effectively—and the judge decides on the sentencing.

In jury trials, there is separation between a judge’s procedural decision making about how the trial runs, including throughout the trial, and the facts of the case—whether someone is guilty or not—being decided on by the jury. When a trial is heard by a judge, the judge makes both those decisions. The disadvantage there, of course, is that when either party to proceedings—the defence or the prosecution—wishes to make representations about the way a trial is being conducted or about the evidence in a jury trial, the jury get sent out of the room. They do not see that argument, and their minds are not clouded by what is discussed in the courtroom on a procedural matter that a judge may rule is inadmissible in the hearing. Frequently in trials, that would be a dispute over evidence, such as whether a certain bit of evidence should be brought before a jury. The jury will not hear that discussion; if a judge says no, the jury come back in and they never see it. In a judge-only trial, where the judge is also deciding innocence or guilt, they have to decide whether a piece of evidence is relevant and, if they decide it is not, they have to effectively pretend that they never saw it and to disregard it.

Our judges are capable of doing that because of their training, career, expertise and experience. I would suggest that judges in this country are among the best in the world; as I have said before, I believe our common law English legal system is the best, and I believe our judiciary is the best. But it is simply the case—it is human nature—that when someone has seen something they cannot unsee it. That is precisely one of the arguments for why we have jury trials in this country.

This is about the arguments a judge hears and assesses when it comes to allocation. They could be fairly contested and, of course, the decision made by a judge could be controversial—not necessarily wrong, but controversial—and against what the defendant is seeking. When a judge chooses a judge-only trial, the defendant’s wishes are not disregarded but considered and set to one side, and the judge then hears the facts of the case. The argument is that the judge may be clouded in their view of a defendant, given the robust, perhaps sometimes controversial, arguments the defendant is making about where they want the trial to be heard. That may then unfairly cloud the judge’s view of the defendant when hearing the case itself. In the vast majority of cases, judges have a professional separation as they move on from an important single decision about where to hear the case to hearing the case itself.

It is not just about whether a judge was clouded by the earlier decision-making process. In truth, in the vast majority of cases we can never know. We do not want to get into philosophy here, but some philosophers may argue that judges themselves do not realise when they are clouded. Probably more relevant in practice, though, is the confidence that the defendant has in the judge’s decision.

If there has been a highly contentious, contested argument about where the trial should be held, if the defendant did not get their way, which in my view they should have, because I do not agree with this legislation, and if the defendant does not believe that their case is being tried properly and sees bias in the judge, that will make the trial harder to run even if it is not a reasonable view to hold. It could lead to defendants, some of whom may be representing themselves and giving evidence, not being able to set aside their disagreement with the judge. There will therefore not be a fair, objective process with a judge and a fair-minded defendant who at least has confidence in the system.

Of course, not every defendant will have objective confidence in the system, but at least we can assist the process by not creating an opportunity for the defendant to disagree with a judge’s allocation decision and then have to face the same judge making a decision on their innocence or guilt in the trial itself. I use the analogy of juries, because that is what we are discussing, albeit not under this amendment.

An important example arises in the family courts, when two people are contesting finances during a divorce. That is an area I am more familiar with, as a former family practitioner, and the principle is similar. I apologise if the language I use to describe the proceedings is slightly out of date; it has been a few years since I practised. A financial dispute resolution hearing is effectively an interim hearing before people get to a final hearing; they are seeking to avoid the final hearing by having a financial dispute resolution hearing. A judge hears the arguments made at that hearing and tries to assist the parties to at least narrow the areas of dispute, or indeed resolve their dispute and come up with an agreement by consent. If consent is not reached at that hearing, the FDR judge will not hear the final hearing, because they have seen things that they cannot unsee and heard things that they cannot unhear. The perception is that the judge has been unable to assist in the settlement, they will be unable to hear an objective final hearing and make a decision.

The principle runs through not just criminal courts and jury trials, but family courts and the civil courts. It is a fundamental principle, in this country, that judge who makes a final decision should be as unclouded as possible by earlier arguments or decisions of a more procedural nature. For those reasons, I support the shadow Minister’s amendment. It would not drive a coach and horses through what the Government want to achieve in the Bill. I have already said that I disagree with a lot of the Government’s intentions, but the Government can still do what they want to do while taking the amendment on board. I hope that they will at least consider accepting some amendments. If not, what is the point of scrutiny of a Bill? What is the point of the process?

Sarah Sackman (Labour, Finchley and Golders Green)

Let me begin by making it absolutely clear that the deployment of judicial resource is properly a matter for the independent judiciary. Under proposed new sections 74A to 74D of the Senior Courts Act 1981, judge-alone trials will operate in the existing Crown courts and any judge of the Crown courts will be eligible to sit in the new division. Creating a statutory entitlement to require reassignment following a request of the kind outlined in the amendment would, in the Government’s view, encroach on that judicial responsibility.

Let me be clear that, like the hon. Member for Isle of Wight East, I am firmly of the view that our judiciary are among the best in the world. That is why the Government are prepared to put our faith in them to deliver this reform. They are best placed to determine how and where to deploy their resources.

The amendment implies that, to safeguard fairness and impartiality in our courts, different judges must preside over the allocation decision and the trial. Let me address that concern directly. There is no basis for suggesting that a judge who has made an allocation decision would be unable to approach a trial with full independence and objectivity. We have confidence in our judiciary, who are independent and highly trained, to do so. Judges receive training throughout their careers, including on structured decision making and the fair treatment of court users. They are accustomed to managing complex cases and to ensuring that trials are conducted fairly. That is their job.

What the Bill proposes is consistent with well-established practice. Across our systems in the civil courts, judges routinely make a range of procedural and case management decisions before trial without that depriving them of their impartiality at trial. The Government are committed to upholding the highest standards of justice, which is why we have ensured that the judiciary have the funding that they need to deliver the training and guidance required to support these reforms.

I reassure the Committee, the House at large and the public watching at home that every defendant in the Crown court will receive a fair trial, and that that is not affected by the mode of trial or by the particular judge presiding over the case. In the magistrates court, justices and district judges routinely make decisions about the admissibility of evidence, including bad character evidence, and other preliminary points of law and then go on to determine guilt without any loss of impartiality. In the Crown court, judges already deal with instances of contempt of court that they witness themselves, sometimes those directed at them personally, without being disqualified from continuing to try the case. That position was affirmed by the Court of Appeal only last year.

Requiring a different judge to preside over the trial would encroach on judicial independence and introduce unnecessary complexity and inefficiency to the system without any evidence that such a safeguard is needed. I urge the hon. Member to withdraw the amendment.

Kieran Mullan (Conservative, Bexhill and Battle)

We are still no further forward on understanding the three-strikes cases that I talked about.

Sarah Sackman (Labour, Finchley and Golders Green)

I am sorry: I did have that question noted down. The hon. Member will get an answer.

Kieran Mullan (Conservative, Bexhill and Battle)

Would the Minister like to intervene?

Sarah Sackman (Labour, Finchley and Golders Green)

Let me intervene, because the omission was certainly not deliberate. I am trying to make progress, for the sake of the Committee, but the hon. Member has fairly put the question. To be as clear as I can, the court considers the mode of trial by reference to the sentencing guidelines. According to the sentencing guidelines, a third domestic burglary offence is triable only on indictment.

Kieran Mullan (Conservative, Bexhill and Battle)

Again, there is no pressure on the Minister to answer immediately, but I presume the same is true for the other cases.

Sarah Sackman (Labour, Finchley and Golders Green)

In fairness to the hon. Gentleman, and so that we can make progress, if he gives me a list of those cases at the end of the day, I will come back and give him chapter and verse on each of them at our next sitting.

Kieran Mullan (Conservative, Bexhill and Battle)

To return to the heart of the matter, I will pick up on the comments made by my hon. Friend the Member for Isle of Wight East on an issue that I had not talked about. I talked about how one forms a view of the sentence and how one gives a sentence, and about the ways in which the interaction is unhelpful, but my hon. Friend helpfully points out that other things will happen at the pre-sentence hearing, including the submission of evidence that is then ruled out of order, that might lead to a certain perception.

The Minister rightly referred to precedents relating to judges’ capability, but I do not think that she really engaged with the Opposition’s concern about perceptions that the system is unfair. The Minister highlighted examples in which that might be a risk already. There might already be times when people argue that the perception is wrong. We accept that. I had anticipated that point, which is why I made it clear that the fact that the existing system is not ideal or has undesirable features does not mean that when we get to design a new system from scratch and from the ground up, we should say, “Yes, this is undesirable in these areas, but it exists and we are not going to get rid of it.” When we are designing a new system, we should design out the less desirable elements. Our amendment puts forward the best possible approach. I suspect that it would make it less likely that either defendants who have been convicted and sentenced or victims will be concerned.

On the unduly lenient sentence scheme, as the hon. Member for Wimbledon pointed out, there is proof of that there are questions about the perception of judges passing the correct sentence. I have not seen the Government seeking to repeal the unduly lenient sentence scheme, which allows a judge’s decision to be challenged. In fact, I have worked with the Government; the Solicitor General and I worked together successfully to overturn an unduly lenient sentence from a judge. The Government have worked with me to expand the role of the unduly lenient sentence scheme, so we know that the public want the scheme and use the scheme. Judges’ sentencing decisions are consistently—not often, but consistently—overruled. If the Government’s legal adviser says that a sentence looks unduly lenient, they can go to the Court of Appeal and get it overruled.

We are not putting forward an abstract suggestion. This already happens in another context, which is why it would be sensible for the Government to take a modest step to enable us to minimise the risk of concern, particularly for victims who might feel that sentences are hampered by the fact that a judge might have had some bias at the outset.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

I beg to move amendment 19, in clause 3, page 6, line 25, at end insert—

“(4A) A trial conducted without a jury will be heard by one judge and two magistrates.”

This amendment implements the recommendation of the Independent Review of the Criminal Courts to have cases heard in the Crown Court Bench Division by a judge and two magistrates.

Sir Brian Leveson and the Minister, on the many occasions on which we have discussed this issue, have been very clear that the proposals set out in the independent review of the criminal courts were not to be treated as a pick and mix. Sir Brian was clear that it was meant to be a package of reforms, alongside stating that juries are not the cause of the backlog; I want to make sure that that is on the record.

But the Government have indeed chosen to pick and mix from Sir Brian’s recommendations, because he never proposed a judge sitting alone in the Crown court bench division. He proposed including a lay element, with two magistrates sitting with the judge; the magistrates would have equal decision-making authority on matters of fact, evidence and sentencing, while the judge would retain responsibility on rulings of law. The purpose of having two was to enable them to outvote the judge on matters of fact and, importantly, to maintain public participation and legitimacy in the absence of a jury.

Sir Brian referred to that in part 1 of his review. He said:

“In a similar vein, the inclusion of two magistrates in the composition of the bench would also ensure that the CCBD would satisfy the expectation of”

being judged by “one’s peers.” He continued:

“I...will not revisit those arguments here. I do, however want to acknowledge the diversity of the current magistracy, which I believe goes some way to satisfying this expectation and would help ensure a fair and balanced representation in the CCBD.”

The magistracy has done an excellent job of improving its diversity, although one could argue that there is still more work to do. A former Lord Chief Justice, Lord Burnett of Maldon, has said:

“It seems to me that if one is going to reduce the involvement of the general public, as members of a jury, in the relatively low-level cases that go to the Crown court, maintaining public involvement through the magistracy is a good course to follow. It also has the great advantage of simply replicating a constitution and jurisdiction that exists in the Crown court at the moment. When there is an appeal from the magistrates court against conviction or sentence, including an appeal against conviction in an either-way case, it is heard in the Crown court by a judge and two magistrates.”––[Official Report, Courts and Tribunals Public Bill Committee, 25 March 2026; c. 75, Q159.]

The Government cannot shirk their commitment to fair justice free from bias. If these changes are to be implemented, they should include the safeguard of two magistrates in the Crown court bench division. I would appreciate the Minister’s outlining why the Government have departed from Leveson on the point. Is it because there is a concern about finding enough magistrates to fill the roles? Is it because the magistracy will already be overwhelmed by the additional cases given to it as a result of the new sentencing powers outlined in this Bill? Or is it because the Government believe that having the lay element provides no additional safeguard in the interests of fair justice? Through the amendment, we seek to implement the recommendation of Brian Leveson’s review of the criminal courts.

Joe Robertson (Conservative, Isle of Wight East)

The hon. Member for Chichester has set out the reasoning behind her amendment very well. If the amendment were agreed to, it would not go anywhere near restoring jury trials, but it would plainly be an improvement. The leading argument in its favour is that it is what Sir Brian Leveson recommended. The Government have repeatedly cited Brian Leveson’s review, and rightly so—that is what the Bill flows out of—but as the hon. Member for Chichester says, it cannot be a pick and mix. The Government cannot cite Leveson on the one hand and ignore him on the other.

Quite aside from the fact that the opinion expressed in the independent review has been ignored here, there are objectively good reasons why a trial heard by a judge and two magistrates is preferable to a trial heard by a judge alone. For a start, there would be three decision makers rather than one; with a jury there are 12, but clearly three is better than one. But it is not just a matter of numbers. Magistrates could be viewed, and certainly have been viewed, as a hybrid of jurors and judges. They are not judges, and they are not legally qualified people. They bring the quality that jurors bring—varied life experience—to the decision-making process. Of course, in a magistrates court, they are guided in the law by a legally qualified clerk.

It is fairly obvious that magistrates as a group are less diverse than the population of the United Kingdom, from which jurors are drawn, but at least they represent a greater diversity and variety of experience than judges. Judges all share one thing: they went to law school, they are legally qualified and they have had a career that is privileged—that is not a criticism, but I do not think it is an unfair word to describe a judge’s career. Magistrates have a greater variety of life experience. To bring magistrates into the decision making alongside a judge, as Sir Brian Leveson envisaged, would be to bring at least some element of a jury trial: the quality of being unjaded by a career in law and being unencumbered by the experience of being a well-paid legal professional.

I struggle to support the amendment, because it does not go anywhere near maintaining the system that we have today, but it would at least be a small improvement. It is an obvious point, but judges sit alongside magistrates today; it is a tried, tested and understood approach, not an obscure or novel one. Indeed, appeals are often heard in that way, as I understand it, because there is added rigour in having a magistrate sitting alongside a judge.

Of course, having a judge sitting alongside magistrates is an improvement on having magistrates alone, because judges bring professionalism from their legal training and experience of the law as part of the judiciary. There is a benefit there, although of course the benefit is already delivered by the Government’s own amendment, notwithstanding that it is worse than what we have today.

I commend, or at least understand, what the hon. Member for Chichester is trying to achieve. It comes from a good place, but unfortunately—this is not her fault, but the Government’s—it does not go anywhere near maintaining the status quo, which in my view is plainly greatly preferable both to her amendment and to the Government’s approach.

Kieran Mullan (Conservative, Bexhill and Battle)

I welcome the opportunity to speak to amendment 19, tabled in the name of the hon. Member for Chichester. As my hon. Friend the Member for Isle of Wight East pointed out, this one of those challenging situations; we will not vote for the amendment, because it would indicate that we support or endorse a judge trial with two magistrates as opposed to a jury trial, which is not the case. But it is an extremely helpful probing amendment to point out the broader challenges and weaknesses with the Government’s proposal and the differences we would have seen had they followed the proposal by Sir Brian Leveson.

The amendment also draws close attention to a matter that I have spoken about frequently: the Government’s willingness both to say that great credibility should be placed on the reforms that they are proposing because they have come about as a result of the work of the independent review by Sir Brian Leveson, and at the same time to reject proposals by Sir Brian. When we discussed this matter before, the Minister argued that our concern was not valid because Sir Brian had said in his report that the Government could go further. In my view, it is quite the leap to say of our criticisms that specific proposals lack the authority that Ministers claim because they were not recommended by Sir Brian that the proposals would in fact, in some way, be recommended by him anyway.

While I think it is a weak point, it is probably stronger in relation to the decision by the Government to set the test for removing the jury from a Crown court trial at a sentence length of three years rather than Sir Brian’s recommendation of two years. I do not know whether he would support that—one might think he would have said so if he did—but there are what we might call matters on the continuum, where the prospect of Sir Brian’s suggestion of going further on a continuum of sentence length as the test is somewhat understandable. I do not think that argument is at all viable in relation to the measures relating to amendment 19.

There is a distinct, what we might call, category difference between the recommendation to have a judge sit alone and to have a judge sit with two magistrates. We have discussed a number of the drawbacks of a judge sitting alone compared with having a jury. I will take them in turn. First, there is the question of bias—of concerns raised in relation to different outcomes, for example for women or ethnic minorities. We have discussed this before, but I want to draw attention again to the comments of Geoffrey Robertson KC. He said:

“The determination, by 12 citizens of evidence tested by prosecution and defence, is a surer guide to the right result, reflecting common sense and common values, than the personal view of a judge”.

He also said:

“A diverse jury, usually with a few representatives of ethnic communities, serves as some guarantee of fairness and non-discrimination in dispensing justice.”

We have been leaning very heavily on the Bar, but the Criminal Law Solicitors Association says:

“Jurors, drawn from all elements of society, take jury service very seriously. Our Vice-Chair sat on a jury last year and saw his fellow jurors, without exception, treat the process with the gravity and respect that it deserves. Limiting jury trials reduces public engagement in the process and weakens democratic participation in criminal justice.”

Sir Brian was not the only person tasked to consider in detail proposals for a reform of the courts who has settled on similar views about the decision to reduce jury trials, which, as I have said, we do not support. They have also agreed that a judge with two magistrates is the way to do it. Lord Justice Auld’s 2001 independent review of the criminal courts in England and Wales recommended the creation of a new district division, with a unified criminal court structure designed to handle either-way cases that were too serious for the magistrates but did not require, in his view, a full jury trial. He proposed that the court would consist of a professional judge sitting with two experienced magistrates. He said in his report that there is a

“middle-range of cases that do not warrant the cumbersome and expensive fact-finding exercise of a trial by judge and jury, but which are sufficiently serious or difficult, or their outcome is of such consequence to the public or defendant, to merit a combination of professional and lay judges”.

That was a specific choice to say that there was merit in lay as well as professional judges taking part.

Sir Brian Leveson was also clear that he had specific reasons to include magistrates in his proposals. In his report he says:

“My proposal for two magistrates in the constitution of the CCBD would ensure that this branch of the Crown Court retains community participation, in the absence of a jury.”

He expands on that by saying:

“In a similar vein, the inclusion of two magistrates in the composition of the bench would also ensure that the CCBD would satisfy the expectation of providing a judgement of ‘one’s peers’.”

As we have talked about, the Opposition do not necessarily agree with that. We think that the merit test for the judgment of one’s peers is ideally met through the use of a jury, but Sir Brian was clear and specific in saying that he felt that it was an important element to maintain. Sir Brian also said:

“I do, however want to acknowledge the diversity of the current magistracy, which I believe goes some way to satisfying this expectation and would help ensure a fair and balanced representation in the CCBD.”

Picking up on the issue of diversity, Sir Brian was very clear on the role that magistrates could play in tempering the criticism of, and adverse outcomes that could flow from, having a less diverse judiciary. I do not know whether the Minister has asked Sir Brian and knows for certain that he supports the removal of the two magistrates from his proposals, or perhaps prefers it, but I doubt that. We agree that while we would prefer to retain the existing right to a full jury trial, a judge with two magistrates at least has fewer of the disadvantages and negative hallmarks and more of the advantages of a jury trial.

We are clear in our ongoing criticism of the Government for wanting to have it both ways. On point after point, they cite Sir Brian to the Opposition—and it is not just to us that they do that. We heard it in the evidence session when members of the criminal Bar criticised the Government’s proposals; one of the Minister’s challenges to them was that they did not know better than Sir Brian, and that is why the Government are right to proceed. At the same time, the Government then say that they know better than Sir Brian, and are going to take forward their own measures.

On both fronts, the amendment does a good job of highlighting the flaws in the arguments the Government have made regarding this part of the Bill, and the legislation as a whole. I welcome that the hon. Member for Chichester gave us this opportunity to drive that point home.

Sarah Sackman (Labour, Finchley and Golders Green)

I thank the hon. Member for Chichester for tabling amendment 19. I reiterate how grateful we are to Sir Brian Leveson and his team for their thorough review, which has directly shaped the measures in the Bill, including the one we are discussing. I also thank our magistrates, who are volunteers and do a fine job in hearing 90% of the trials in this country, providing a lay element. I say this on the day that the Government have launched the magistrates recruitment taskforce, which is part of our endeavour to boost the number of magistrates in the country.

Part of the relevant backdrop to the debate that we are having about the policy choice that the Government have made in this provision is the sufficiency, experience and availability of the cadre of magistrates. The fact is that the number of magistrates in this country halved under the previous Government. That is not an easy thing to turn around overnight. For us to implement and see the benefits of these reforms, the Government are undertaking a huge recruitment drive, but of course it takes time to train magistrates.

As discussed in relation to previous clauses, we are also, as part of this reform package, diverting appropriate cases to the magistrates court and enhancing magistrates’ sentencing powers. That is a big job of work. The hon. Member rightly challenges us and says, “Is that sustainable?” It will be sustainable if we recruit the requisite number of magistrates and train them sufficiently, but there is no doubt that a pressure needs to be met because of the legacy that we inherited, so of course that practical consideration has informed the policy choice. I accept, of course, that magistrates would add a community element and community participation in judge-only trials, in the constitution that the IRCC proposed. But it is also true to say that, on page 274 of the report, the practical realities and the point about sufficiency in the number of magistrates were expressly acknowledged by the independent review, so of course the numbers of magistrates and what they have to do are an important consideration.

I am again grateful to Members from across the House for recognising not just the contribution that magistrates make, but the diversity of the magistracy. For example, 31% of magistrates in London are drawn from black and minority ethnic communities. That is in keeping with the diversity of the city.

Paulette Hamilton (Labour, Birmingham Erdington)

The Minister makes such a brilliant point. She is right: 31% of those who have become magistrates are from an ethnic minority group. But when we look outside London, we see that we are unable to recruit in the numbers that we need in big cities such as Birmingham. Would consideration ever be given to paying younger magistrates, because they are struggling to get employers to give them time off to do this important work?

Sarah Sackman (Labour, Finchley and Golders Green)

As ever, my hon. Friend raises a very good point. Overall in the country, 14% of our magistrates are drawn from black and minority ethnic communities. The picture is not bad in the midlands, which my hon. Friend takes a particular interest in. The reality is that we are not in a position to pay our magistrates, but it touches on another consideration in this context. As I have said, I fully accept that magistrates would add a community element to the Crown court bench division, but it is also true to say that in relation to longer and more complex matters, which necessarily are what we are talking about when we are talking about the Crown court bench division, the type of magistrate who can give up their time for the length of time needed to hear longer trials—for weeks at a time—is, I would suggest, inevitably skewing towards the less diverse end of the magistracy.

The other point to make, in addition to the practical one, which I have been transparent about throughout, is the normative one. If I can put it colloquially, the Government make this policy choice because we believe our judges can do it. We believe they can do it for the reasons that I have reiterated in earlier parts of the discussion: their integrity, impartiality and ability to manage the court efficiently. And we see parallels—international comparators. I will again draw on Canada, where this is done to good effect while maintaining the fairness and integrity of the trials.

Introducing a requirement for magistrates to sit alongside judges would risk delaying the implementation of these reforms and, with that, delaying the benefits to victims, defendants, complainants, witnesses and the wider justice system. The Government’s view is that in that time the backlog would continue to grow and remain unresolved, and we cannot have that. I therefore urge the hon. Member for Chichester to withdraw her amendment.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

I recognise the comments made by the hon. Member for Isle of Wight East. I agree that the amendment would not go towards restoring jury trials, and I will continue to push for jury trials to remain at their current thresholds. However, in the absence of the Government budging on that issue, I will continue to table amendments as we go through this process, and I know that the hon. Member for Bexhill and Battle echoed those points.

The Minister rightly talked of the pressure in the system that must be met. We all feel that deeply across the House; no party represented on the Committee thinks the status quo is acceptable, or that a good version of justice is being served for anyone who is sitting in that backlog, or who is being told that their case will not be heard until 2029. However, the Minister also recognised that the lay element is really important, which surely strengthens the argument that she would not be doing this if she had capacity in the magistracy. If the magistracy was running at full volume, or at its numbers from 15 years ago, she would be including that lay element in the Crown court bench division.

There is a balance to be struck, and the balance should not see our fundamental justice system reduced or degraded in any way. It is something that we should be proud of in this country, and we should protect its core principles. I will push the amendment to a vote.

Yasmin Qureshi (Labour, Bolton South and Walkden)

I beg to move amendment 26, in clause 3, page 8, line 36, at end insert—

“(h) fairness when considering the rights and circumstances of the defendant;

(i) the interests of justice.”

Christine Jardine (Liberal Democrat, Edinburgh West)

With this it will be convenient to discuss amendment 44, in clause 3, page 8, line 36, at end insert—

“(h) whether it is in the interests of natural justice for the defendant for the trial to be conducted with a jury.”

This amendment would ensure that where the decision for a judge-only trial is being considered for reallocation following a change in circumstances, that the judge must consider whether it is in the interests of natural justice for the defendant to have trial with a jury.

Yasmin Qureshi (Labour, Bolton South and Walkden)

The amendment would add to proposed new section 74C of the Senior Courts Act, which concerns matters that must be taken into account when determining allocation in cases that are already set to have a jury trial. Amendment 26 would add two further conditions that must be considered when making such allocation decisions. First, it would add

“fairness when considering the rights and circumstances of the defendant”,

and secondly, whether the decision is in

“the interests of justice”.

Those two additional grounds would constitute an important safeguard for a defendant, especially given that these provisions are being applied retrospectively to cases that are already listed. We do not know what the criteria will be for reallocating existing cases in the system. For example, will it apply to those in custody, those very near to their trial time or those who are set down for trial within a short period of the Bill commencing, whenever that may be? No clear guidelines have yet been published on how the allocations will be dealt with.

We also do not know whether the decision to reallocate will be made by the resident judge of a particular Crown court, or whether a court’s listed cases be dealt with by the court administrators who are just doing the list, which is how many things are dealt with. We do not know what the procedure is going to be—we have no idea how the allocation process is going to work—so we are asking for these two particular provisions to be added to the Bill to ensure that there is a proper safeguard in the system.

Kieran Mullan (Conservative, Bexhill and Battle)

I rise to speak in support of my amendment 44 and related amendments, which brings us to consider the issue of reallocation in more detail for the first time. It was touched on briefly this morning in the discussion about allocation, but there are distinct differences in the processes.

We must remind ourselves what the allocation process will be initially through proposed new sections 74A to D of the Senior Courts Act 1981. My understanding is that the reallocation provisions are intended to operate in the following way. First:

“The court must, at the prescribed time or times, determine”

in accordance with proposed new section 74A

“whether the trial is to be conducted with or without a jury.”

It is important to note that “prescribed time” is not defined in the Bill, but would be covered by the existing provisions in sections 84 to 87 of the Senior Courts Act, which refer to prescribed matters being specified in the criminal procedure rules. The explanatory note does not appear to provide any further detail on what the criminal procedure rules are likely to prescribe in terms of timing, so it would be helpful if the Minister could tell us what she expects that to be.

Whatever the prescribed time is defined to be, the court must say that the trial is to be conducted with a jury if either the offence, or any of the offences, is triable only on indictment or if the court considers that the defendant, if convicted of the offence for which they are to be tried, would be likely to receive a sentence of imprisonment or detention of more than three years. In any other case, the trial is to be conducted without a jury.

We have covered this initial decision at some length, but the proposed legislation also says that if a trial is to be conducted without a jury but there is a relevant change of circumstances, the court may—and in some cases must—reallocate the case to a jury trial. A relevant change of circumstances is defined in proposed new section 74B(8), and will occur if either the defendants to be tried, or the offences for which they are to be tried, have changed since the court’s last determination on allocation, or it appears to the court that there is new evidence that would or might affect whether the condition in proposed new section 74A is met, and that condition relates to a likely sentence of imprisonment of more than three years.

This is something to which we must give close consideration. The Bill does not define the term “new evidence”, and I am not aware of it being defined elsewhere in legislation. We can look to the explanatory notes to try to better understand what is meant here. In paragraph 206, the notes say:

“This is intended to capture significant new material indicating that the offending is more serious, or less serious, than originally understood. It is not intended to require the court to redo the full allocation exercise each time new evidence emerges, but simply to note where new material might alter the earlier likely-sentence assessment so as to justify reconsideration under section 74B.”

The explanatory notes are helpful, but we must remember that they are not legislation and that the courts are more likely to seek to interpret differently what may or may not be said in an explanatory note from something that is given clear direction in legislation.

The explanatory notes actually leave us with not just one but two new terms. Again, as far as I am aware, “significant new material” is not defined in legislation; there is certainly no case law for it in these specific circumstances, as these courts have never operated before. I do not think we can know in practice how it would be obvious that something amounted to new evidence for the purposes of proposed new section 74B(8); the Bill, as I have said, is silent on this point.

Do we have to assume that that will become a matter of judicial interpretation or discretion? I think we do. It might be evidence that was not already set out in the initial details of the prosecution case or in a defence statement. While the explanatory notes say they do not expect this process to be done on a rolling basis, I assume that the prosecution and defence would be able to invite the judge to consider whether evidence amounts to “new evidence” whenever it was brought to the attention of the court as part of the general conduct of the trial. Again, this is not specified in the Bill, but it is certainly not ruled out.

If there has been a relevant change of circumstances meaning that the case involves an indictable-only offence—for example, if new evidence emerges that results in a charge of theft being recharged as robbery, or a charge of sexual assault recharged as rape—the judge must reallocate it to a jury trial. To be clear, that is in relation to offence-based things. If there has been a relevant change of circumstances, but the aforementioned process does not apply—for example, if there is new evidence that means a custodial sentence of more than three years is likely—the judge may reallocate that to a jury trial. The use of “may” is important, because may is not must.

I draw Members’ attention to the wording of the initial process of allocation. Perhaps to the frustration of some, I took the time to read it, because it is important. The initial wording on allocation with regard to sentence times is “must”—if the court thinks a sentence of more than three years is likely, it must allocate a jury trial—but as I pointed out, on reallocation the court simply “may” reallocate. I hope it is immediately obvious to Government Members that that is a less stringent test, which creates an inherent unfairness.

At the outset, if a judge thinks that a defendant or accused is likely to receive three years, that jury trial is guaranteed. Let us remind ourselves that the Government accept that that is a benefit or a right—although they do not accept it is an absolute right—if the outcome is potentially a sentence of more than three years, yet some people will not get that benefit, even though the Government accept that it is desirable, because the Bill states that the judge has discretion to continue conducting the trial without a jury despite the relevant change of circumstances.

The judge has that discretion if any of the following applies. First, they have that discretion if the condition in proposed new section 74A—a likely custodial sentence of more than three years—is not met in relation to the defendant. Secondly, and this is the important bit, in proposed new section 74B(3)(b), they have that discretion if

“the court considers that it would not be appropriate to reallocate the trial”,

taking into account the matters set out in proposed new section 74C(6) and (7). Those include representations by the prosecution and defence; the extent to which the new likely sentence differs from the three-year threshold sentence; the interests of the alleged victim; the desirability of avoiding the need for witnesses to give evidence again; any delay to proceedings; any actual or potential wasted costs; the effect of reallocation on other court business; and any other prescribed matter set out in the criminal procedure rules.

Thirdly, the judge has that discretion if, as proposed new section 74B(3)(c) states,

“the prosecution and the defendant or defendants each consent to the trial being conducted without a jury.”

Therefore, if the defendant is happy to carry on without a jury, even though they risk the higher sentence, the trial can continue—and similarly for the prosecution.

Some of those examples set out in proposed new section 74C(6) and (7) could legitimately deny a defendant a right that they would otherwise have had if the evidence had been available at the start of a trial. It could be something that has nothing to do with them—for example, a witness might not give the same evidence in their statement as they do at trial. Another example is the effect of reallocation on other court business—so simply because it would be challenging for the court to allocate or reallocate the case, a right that the Government deliberately set out to preserve for those people at initial allocation could not be exercised at that point. Again, in essence, those are all new legal tests.

We have a whole range of factors, many of them subjective matters that must be weighed, rather than objective ones. They may all be factors that we might reasonably agree should be given weight, such as—to go back to some of the factors—the interests of the alleged victim. If an alleged victim has had a traumatic experience of giving evidence, it is not unreasonable for people to consider that. That does not mean, however, that it will not lead to circumstances in which a defendant is substantially disadvantaged.

Let us take, for example, a case related to injury. In a case of assault occasioning actual bodily harm, the sentencing range for this offence, triable either way, can include a sentence of up to four years. That is a good example of where we might see a change in circumstances, based on the evolving medical consequences of an alleged assault.

A more concrete and simple example than a medical injury that might evolve from an assault, which is complex, is a person who is originally on trial for grievous bodily harm or attempted murder, but the victim dies during the trial or at a much later date, which can happen, and the person can be retried for a further offence. We know that the medical consequences can take time to materialise and can make a material difference to the charge. There are other borderline cases where the likely sentence at the point of the initial allocation decision was considered to be just under three years.

To give another example, the sentencing guidelines for the most serious harm or culpability form of theft suggest a starting point sentence of three years and six months, with a suggested range of two years and six months to six years. That is absolutely within the scope of not being allocated a jury trial, but if the medical consequences were to evolve, that would change and push it to a sentence of up to six years, which would require a jury trial.

As the hon. Member for Amber Valley, with her expertise and experience of the CPS, pointed out in relation to things that already happen in a magistrates court, we know that magistrates have to undertake this sort of intellectual exercise. They must be mindful that if the circumstances change, the trial must move to the Crown court. I understand that is quite unusual, however, and as we have talked about before, the stakes are likely—not always—to be lower when we are talking about a potentially much wider gap in possible sentence length.

Strangely, this may be an example of something that magistrates do but, as I understand it, Crown court judges do not normally do; Crown court judges do not have to have it constantly in their mind throughout a trial whether their view has changed on the likely sentencing outcome. As I have alluded to, the legislation therefore risks creating a whole raft of legal challenges over potentially many years until there is a settled common law understanding of how all the different measures interact, and until higher courts set out the methodical tests and boundaries that are absent from it.

The obvious test will arise when someone does actually end up receiving a longer sentence, and the obvious challenge will be that the judge should have realised and reallocated the case because of something considered materially new. That will be highly arguable. Let us say, for example, a complainant, when giving evidence, identifies a more profound psychological impact of a crime on them that was apparent from the initial statements disclosed—something that is to some extent subjective. The judge might listen to the evidence being given and not consider it to be materially different from the statements on which they based their initial summation, but I can absolutely imagine a defendant and their legal representatives feeling that a witness did say something that indicated something materially different. That is another more complex decision than the one made by the magistrates courts in a different way.

As we have heard again and again, although magistrates court trials can be long, they are often shorter. Weighing up the impact of restarting that trial, of discounting the work that had been done and of re-sending it to another court, is very different from making that decision after weeks and weeks of a Crown court trial.

There is also another risk in terms of public confidence in the process. As we have touched on before in relation to the initial allocation and sentencing, the judge will have already made a decision and given a view on initial allocation. There would be a risk that a defendant feels that their right to a jury trial, if the circumstances are such that they would have been concerned that the sentence would be greater than three years, might inhibit a judge from reallocating in the way that they would have ordinarily wanted to.

As we have covered, the judge will be able to pass that higher sentence, which is another important difference with the magistrates, who, as I have talked about before, are constrained in their ability to go beyond that initial judgment. There will be no constraints, so it would be perfectly possible for a judge who had an initial view to end up passing a sentence much higher than they had anticipated and much higher than the defendant was advised would be the likely outcome. Again, that would give serious impetus for a defendant and their legal representatives to make the point that the judge had erred in their reallocation.

It is not just a question of the fair thing to do. I explained earlier in relation to other allocations that I do not think it is the fair thing to do, but again it is a matter of efficiency and process. If we end up with repeated appeals over, as I have said, many different factors that will all individually need to be clarified in case law, that will again take up the time and energy of court staff, and particularly legal representatives, who work between all the different courts in a way that judges do not.

Amendment 44 would help to balance that by opening up the widest possible interpretation of whether a reallocation is the right thing to do. We think talking about it in the interests of justice will give the maximum possible room to defendants to be sure that the trial they receive without a jury, and the decision taken to deny them a jury, are as fair as they possibly could be.

Sarah Sackman (Labour, Finchley and Golders Green)

I thank my hon. Friend the Member for Bolton South and Walkden, who is no longer in her place, and the hon. Member for Bexhill and Battle for their amendments.

I will begin with amendment 26. The defendant’s interests are already embedded into decision making on mode of trial reallocation. Parties are given the opportunity to make representations on reallocation, meaning the defence can draw the court’s attention to how the factors in the Bill intersect with a defendant’s interests, including the impact of delays to proceedings. Parties are also able to override a judge’s decision to reallocate to a jury trial if they both consent to remain in front of the Crown court bench division judge-alone, allowing, for example, a consensus for swifter justice to prevail.

At the same time, clause 3 requires the court itself to have regard to the interest of complainants—victims—when deciding whether reallocation would be appropriate. Those interests would be properly weighed by the court alongside the other factors set out in the Bill.

Finally, an additional “interests of justice” factor would be superfluous, not least because many of the factors that already fall under an “interests of justice” test, such as delays to proceedings and the impact on witnesses, are already taken account of. Introducing such a broad and undefined factor would risk undermining the structured and calibrated framework that Parliament is being asked to approve. It would also reintroduce uncertainty into the decision making that the clause is designed to make clear and workable in practice—not just the clause, but any accompanying criminal procedure rules. I have faith in our judiciary to make informed and robust decisions on the mode of trial reallocation. As such, I urge my hon. Friend to withdraw her amendment.

Turning to amendment 44, where an indictable-only offence is added to a bench division case, it will always be reallocated to jury trial. Where a jury trial has started, it can never be reallocated to the bench division. The principles of natural justice encompass the right to a fair trial, the rule against bias and the duty to act fairly. All of those elements are preserved in these reforms. The amendment would not add any substantive protection beyond those safeguards already in place.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

On a point of clarification, in the instance where a jury trial may begin but the case is adjourned for any reason, could it be reallocated to the Crown court bench division at a later date when it is rescheduled, or would it continue to have a jury trial?

Sarah Sackman (Labour, Finchley and Golders Green)

Under the provisions, where a jury trial has started, it cannot be reallocated to the CCBD.

Jessica Brown-Fuller (Liberal Democrat, Chichester)

I am just trying to get some clarification about when a jury trial “has started”. If a jury trial is listed on a day but the case is adjourned, it does not go ahead. Cases can be adjourned for many different reasons—the defence or the prosecution could not be ready. In that instance, where the case is adjourned to be relisted on a different day, would the defendant maintain their right to a jury trial or could it be reallocated to the bench division?

Sarah Sackman (Labour, Finchley and Golders Green)

What circumstances does the hon. Member envisage would trigger that reallocation? The allocation has been made—it has been allocated to a jury trial. She is right that it has not yet commenced, which is the point I was dealing with, but the circumstances we are dealing with here fall into two broad categories: first, where the nature of the offences in question changes; or secondly, where new evidence comes into play mid-trial, which is so material as to lead to an application to reallocate, or even to a judge of their own volition deciding that the seriousness necessitates reallocation. I cannot see, where it has been allocated already but has not yet commenced, why that would be triggered. But maybe I have missed something.

Kieran Mullan (Conservative, Bexhill and Battle)

I talked about how the medical picture can evolve in a worsening situation. We can also get that situation in reverse. For example, in A&E, the A&E consultant’s interpretation of an X-ray, to determine whether someone has broken a bone, can be a key fact in deciding the classification. But when that goes to a radiologist, sometimes two or three weeks later, they have that more expert view. This happens quite regularly: they review the X-ray, CT scan or whatever it might be and say, “Actually, no, there isn’t a fracture here.” That would then drop down the injury to a different category. In that intervening period, which could be a matter of weeks, there would be a change to the nature of the charge.

Sarah Sackman (Labour, Finchley and Golders Green)

What I am seeking to be clear on is that when we are talking about the trial being commenced—a perfectly good question—I am saying that if the trial has started and there has been the first day, and then for whatever reason there is an adjournment, in those circumstances we would never see such a trial reallocated to the bench division.

I suppose there may be circumstances in which there is an adjournment and new evidence could come to light, or a new offence or a new charge could be added to the indictment or withdrawn, which I suppose might trigger a reallocation decision, but the trial itself would not have commenced. In those circumstances, I think I am right in saying that it is possible that it might get reallocated at that point. I will come back to the hon. Member for Chichester if anything I have said on that point is inaccurate.

Amendment 44 would not add substantive protections, because the defendant in every Crown court trial, irrespective of whether it is Crown court bench division or before a jury, would be considered to receive a fair trial. The mode of trial itself has no bearing on the fundamental fairness of the proceedings.

We have designed the test for mode-of-trial allocation in clause 3 to ensure that the relevant interests are properly balanced by the court. Parties are given the opportunity to make representations on allocation and the court must have regard to the interests of victims when deciding whether reallocation would be appropriate.

I make one final point. The hon. Member for Bexhill and Battle raised a concern about rolling applications throughout the course of a trial. I think the Government’s view is that that is unlikely to be the case, because while new evidence is a feature of trials commonly, it is not all that often that such new evidence alters the fundamental seriousness of the case to such an extent that it would engage the tests that are here. I am not sure that it is quite the concern that the hon. Member suggests, and I urge him to not press amendment 44 to a Division.

Christine Jardine (Liberal Democrat, Edinburgh West)

As the hon. Member for Bolton South and Walkden is not here to press amendment 26, is everyone content for that amendment to be withdrawn?

Kieran Mullan (Conservative, Bexhill and Battle)

I beg to move amendment 42, in clause 3, page 9, line 23, leave out subsection (4) and insert—

“(4) Where a court has determined in accordance with section 74A that a trial is to be conducted without a jury, the court cannot pass a sentence of imprisonment or detention of more than three years on a person convicted of an offence.

(4A) Where a person is convicted of an offence and the court considers that the appropriate sentence is more than three years’ imprisonment or detention, the court must refer the case for retrial by jury.”

This amendment prevents a judge sitting alone from sentencing a defendant to more than three years in prison, and requires that if this is the likely sentence, the case must be remitted for trial by jury.

It is my pleasure to speak in support of amendment 42, tabled in my name, which really drives at the heart of the question of fairness in relation to this new system. It would prevent a judge, sitting alone, from sentencing a defendant to more than three years in prison, and requires that, if that is the likely sentence, the case must be remitted for trial. Again, related to the important points I made earlier, it also introduces the element of “must”.

Again, we have to revisit the process of allocation; triable either-way offences will be allocated on the basis of sentence length. That is the important part for us to consider here. The Government have agreed that the suitable manner in which to allocate offences to trial with or without a jury is based on sentence length. We can only conclude, therefore, that the Minister accepts that the possible consequence—the possible time in prison—is intrinsically linked to the fairness, reasonableness, desirability or however the Minister might want to describe it of remaining with a jury trial.

In this case, if criminals—because they will have been convicted at this point, we can say criminals rather than defendants—ended up with a sentence of more than three years, they would have a reasonable basis on which to say that their treatment was not in keeping with the Government’s own decisions about what would be preferable in relation to fairness. Let us be clear: I spend a lot of time working with victims and campaigning for longer sentences for offenders, and I think that, across the board and for many decades, our sentencing regime for convicted criminals has been insufficiently punitive and has given insufficiently long sentences. But that does not mean that I do not think that there is a fair and proper way of going about that.

I agree with the Government that sentence length is inherently related to fairness in regard to whether someone gets a Crown court trial with or without a jury—although, in my view, it should always be a jury trial—but a convicted criminal now will look at this and say that he has a sentence greater than he otherwise should have expected to get, and that, if the judge had anticipated correctly that sentence at the outset, he would have had a jury trial. That would be his reasonable conclusion.

Linsey Farnsworth (Labour, Amber Valley)

On that point, what are the hon. Member’s thoughts in relation to a magistrates court where a magistrate has made a decision that a case is suitable for summary trial but then they have the opportunity—or the right if you like—to commit somebody for sentencing at the Crown court if the offence turns out to be more serious than had originally been envisaged? Actually, the safeguard for the expectation of the defendant is dealt with at an early stage—at the allocation stage—when the defendant is told of the decision that the case will stay in the magistrates court, but they could be committed in due course to sentencing in the Crown court.

The rest of the debate is in Hansard.