1: Clause 1, page 1, line 10, leave out “by the Crown Court”
Member’s explanatory statement
This amendment probes the rationale behind restricting the power to order offenders to attend a sentencing hearing to only the Crown Courts.
My Lords, this group of amendments in my name relates to Clauses 1 and 2. I start by observing that we on these Benches are broadly supportive of most of the provisions in the Bill. Many of the amendments tabled in my name, save one or two exceptions, have the aim of strengthening the Bill’s existing provisions rather than removing them. The use of reasonable force to compel attendance at sentencing hearings was a measure first proposed by the previous Conservative Government in the Criminal Justice Bill, which fell at the Dissolution of Parliament. It is, therefore, a policy that we on these Benches strongly support.
As the Government have consistently said, victims and their families deserve to see justice done. They deserve to hear directly those remarks which explain the court’s reasons for the sentences that are being imposed, and they deserve the chance to face their offenders and have their own voices heard in open court. In that spirit, many of the amendments in my name probe details of Clauses 1 and 2, and question how they would operate in practice. These clauses set out the statutory powers for judges to order an offender to attend court for their sentencing hearing, by reasonable force if necessary. As we have heard previously, offenders who refuse to attend their sentencing hearing thereby insult their victims. Offenders should not be able to undermine the final moment of justice in such a way. The amendments in this group ask the important question of why the Government are not taking this opportunity to expand the applicability of Clauses 1 and 2, given their upcoming and substantial court reforms.
I understand that the application only to the Crown Court in these clauses is the same as the approach taken in our Criminal Justice Bill, but I point out a crucial difference between the positions of the last Government and this Government. When this clause was originally proposed, there were no plans to alter the sentencing powers of the magistrates’ courts. However, this Government are now proposing to increase magistrates’ sentencing powers to three years, thereby shifting a large number of cases away from the Crown Court towards magistrates. As such, magistrates will hear a much greater proportion of increasingly serious cases, which surely throws into question the application and scope of Clauses 1 and 2.
My Lords, I will make a brief observation about the amendment. The exercise of this power by a judge is never going to be easy, and we should be very cautious about the way this is introduced. Let us first see how it works with people who have the experience of handling what, in the circumstances, will be a very difficult position before we move on to doing it in all courts. This power must be confined to those cases where it is really necessary, because I think that a number of us who have had experience of this would be very worried indeed if this power came to be routinely deployed.
My Lords, I appreciate that the noble and learned Lord is probing at this stage and I am with him in wanting to see procedures from the point of view of victims, but I simply do not know whether magistrates have the same powers as Crown Court judges. When we debated this issue before, we were told about the powers that judges have now, without the need for an extension.
The noble and learned Lord, Lord Thomas, came quite close to my question. Magistrates come from a very different background. Do they currently have the same powers as the judges who will be covered by this legislation, quite apart from the powers that are given by the Bill, in dealing with recalcitrant—if that is the right word—defendants?
My Lords, I am very grateful to the noble and learned Lord, Lord Keen, for the way in which he has explained these amendments. I am also extremely grateful to the noble and learned Lord, Lord Thomas, for injecting a note of caution and to my noble friend Lady Hamwee for injecting a note of questioning about the proposed amendments.
In their explanatory statement, the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst, state that the amendments in this group probe
“the rationale behind restricting the power to order offenders to attend a sentencing hearing to only the Crown Courts”.
The noble and learned Lord explained why he suggests that there is no difference, for the purpose of this power, between the Crown Courts and the magistrates’ courts.
I should make it clear that we on these Benches start from the position that defendants should be obliged to attend court for their sentencing hearings. But the fact that they are obliged to attend court does not lead to the conclusion that the courts ought to have the power to get them to court however much they wish to resist.
It is, of course, important from the victims’ point of view—this is a point that the noble and learned Lord, Lord Keen, made—that the defendants who have committed offences against them are in court for the occasion when they are brought to justice. It is appropriate, therefore, that in the right cases, the court should have the power to order them to do so.
The noble and learned Lord, Lord Thomas, pointed out what a serious power this is. It is particularly a serious power, as I will come to say, because the use of force is sanctioned to get defendants to court. We have heard tell, in the press and in the House of Commons, from some of the wilder speeches—if I may put it that way—of, in effect, the court having the power to order that offenders be brought to court by considerable force and in chains. I am quite clear that that is not the way the Bill puts it; it puts it in terms of the use of force being reasonable, proportionate and appropriate. Nevertheless, it is a very serious power.
My Lords, this group of amendments in the names of the noble and learned Lord, Lord Keen of Elie, and the noble Lord, Lord Sandhurst, explores the reasons for limiting this power to the Crown Court.
Before I begin, I am sure that the whole Committee will wish to join me in paying tribute to the families of Jan Mustafa, Henriett Szucs, Sabina Nessa, Zara Aleena, and Olivia Pratt-Korbel—whose mother and aunt sit below the Bar today. Their tireless campaigning has brought about this change. They have persuaded the Government that when a cowardly offender refuses to attend court, it causes anger and upset, which can feel like a final insult to victims and their families, who have sat through the trial waiting for the moment when they can tell the world—and, importantly, the offender—about the impact their crimes have had. Many of them want the opportunity to look the offender in the eye as he or she hears about the effects of what they have done.
Offenders are expected to attend court for sentence, and the overwhelming majority do so. Because magistrates’ courts hear less serious cases, offenders are more likely to be on bail, and where an offender is on bail, the courts have powers to compel attendance by issuing a warrant. When a warrant is issued, the defendant is brought before the court in custody for the warrant to be executed, and the judge can add an additional sentence for the offence of failing to surrender to bail, which will appear on their record in future.
However, in the Crown Court, which deals only with the top level of serious crime, offenders are much more often remanded in custody, and so court powers to get them physically into court are more restricted. That is why the Government have acted by bringing forward this legislation which gives three powers that can be used in relation to recalcitrant—that is the right word, as used by the noble Baroness, Lady Hamwee—offenders: first, authorising the use of reasonable force, except in the case of children, because we are a civilised country, and this Government do not believe in using force on children; secondly, for offenders who still refuse to attend, or for those who are disruptive once they are there, the power to add an additional sentence; and, thirdly, the power to impose the same kinds of prison sanctions as a prison governor can impose.
My Lords, I thank noble Lords for their thoughtful contributions to the debate, and indeed the observations with regard to the timing of any extension of these powers.
I would observe, with respect to the submissions made by the noble Lord, Lord Marks, that if these provisions help victims in the Crown Court, it is not clear why they would not help victims in magistrates’ courts.
The Minister talked at length of the difficulty of implementation with regard to these provisions, but that would apply equally in the Crown Court and the magistrates’ courts. Indeed, the appearance of serious offenders in the magistrates’ courts will of course be an immediate development with the changes under the Sentencing Act, which extend the sentencing powers of magistrates to three years.
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Of course, the question before us today is not whether these powers are necessary—on that the Committee appears to be agreed—it is the scope and application of the powers that are being considered. In that context, I have highlighted the way in which these proposals have undergone, as it were, something of a sea change in view of the proposed changes in sentencing power and the transfer of increasingly serious cases from the Crown Court to magistrates’ courts.
I respectfully suggest that limiting these powers to one jurisdiction risks sending the wrong message to victims and causing confusion for victims, who are not hidebound by jurisdictional boundaries between the Crown Court and magistrates’ courts. If attendance matters, for all the reasons outlined by the Government, the principle does not end at the doors of the Crown Court but extends across the courts system.
It is important to consider—no doubt the Government will come back on this—the impact of these powers on the Crown Court, and indeed on magistrates’ courts. If resources are the concern, for example, that needs to be addressed expressly.
We remain supportive of these clauses in the Bill and intend only to strengthen them and make the benefits accessible to a wider cohort of victims. I therefore urge the Minister to reflect on the potential inconsistency created by restricting these powers to the Crown Court when sentencing powers are in the course of amendment, transferring increasingly serious cases to the magistrates’ courts, and the risk that that entails of creating a two-tier system of justice for victims.
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In fact, this is a different contextual background from not only that of the previous Government but that of this Government. The Bill was introduced in the other place before the Government announced their court reforms. So, as published, Clauses 1 and 2 would have permitted the compulsory attendance of an offender for sentences between one year and three years. Now, however, if the Bill is unamended, and the Government’s court reforms go ahead, a person convicted in a magistrates’ court for an offence that would have previously been heard only before a Crown Court will not be required to attend their sentencing hearing.
If it was previously the Government’s view that offenders facing between one and three years’ imprisonment should be subject to compulsory attendance at their sentencing hearing, why have they not made the necessary amendments to the Bill? Perhaps that is because they have changed their mind, in which case the Minister should be clear about that. If it is the Government’s position that the scope of offenders who should be compelled to attend their sentencing hearing should remain the same as when the Bill was introduced, they must surely accept these amendments. The question that then arises is: why stop at the Crown Court, when extending these powers to other courts could make a meaningful and positive difference to the victims of other crimes?
We should not dismiss the experience of victims of, for example, burglary. Requiring an offender to attend their sentencing hearing may give those victims just as much closure. Conversely, an offender refusing to attend could cause just as much insult, if this series of amendments is not accepted. If anything, by reserving these powers for the Crown Court only, we risk playing down the significance of other crimes by signalling that offenders do not have to face their victims. Extending these powers to other courts would not only provide greater consistency but show that no crime is more permissible than another, or that one victim’s experience is not more or less important than another’s. If the rationale is one of practicality or resource, the Government should make that case. If, however, there is no compelling reason, whether it be legal, procedural or financial, the Bill presents an ideal opportunity to address a gap, rather than requiring further primary legislation later on down the line after court reform has been implemented.
If the Government’s intention is to strengthen victims’ confidence in the criminal justice system, surely consistency must be at the heart of that ambition. Victims do not experience crime through the lens of jurisdictional boundaries. They experience the indignity of being wronged and they rightly expect the justice system to deal with offenders in a manner that recognises that harm each time, regardless of which court is sentencing. It is for these reasons that I believe the Government should revisit the decision to confine these powers solely to the Crown Court; otherwise, the Bill risks creating a two-tier system, where the victims of some crimes are afforded the closure of seeing justice done in person, while others are denied it for reasons that are administrative rather than principled.
I would be grateful if the Minister could also clarify what consideration has been given to victims’ expectations and their confidence in the justice process when limiting these powers to the Crown Court. I hope that the Minister will reflect on these points and consider whether there is scope for a more ambitious and comprehensive approach. I look forward to her response and to working to strengthen this legislation for the benefit of all victims. I beg to move.
It is also important from the offenders’ point of view that they should come to court, first, to hear what the court says about their offences as well as what their counsel and the prosecution say about their offences. It is also important because their attending court and listening, hopefully with some care, to what goes on at their sentencing hearing may be taken as a sign of their understanding of the import of the hearing. If an order is made, the breach of such an order to attend court for a sentencing hearing is a sign of a lack of remorse on the part of the defendant. A lack of remorse will usually involve a court treating a defendant more severely than it might treat a defendant who does show remorse for the offences that they have committed and an understanding of the impact of those offences on the victims.
The scheme of this Bill is to bring in a very strong regime of compulsion with a specific incorporation of provisions about contempt of court and significantly, as I adumbrated, about the right to use force to bring defendants to court who are unwilling and refuse to attend their sentencing hearings. The conditions for the new regime, as set out in the Bill, are that the defendant has been convicted and is in custody awaiting sentencing by the Crown Court. That brings into play the kind of reservation that the noble and learned Lord spoke about. This new regime is designed to deal with serious offences. A third condition is that the offender has refused or is likely to refuse to attend the sentencing hearing.
It follows that the code for punishment for contempt should be confined to adult offenders. The amendments seek to make this procedure and all its features applicable to a wider group of offenders, and to magistrates’ courts as well as Crown Courts. I ask the Minister and the noble and learned Lord when they close how far a change to include magistrates’ courts will help victims. One can see how it is justified and might help victims in serious cases, but I question how far the use of force will ever be in the public interest. One must question the purpose of the use of force. It could be twofold. It could be to force offenders to face up to their offences and help them to avoid reoffending. It could be to help the victims by letting them see that those who have committed offences against them are being brought to justice. There may be force in that.
However, there is also a risk, which may be important, of forced attendance becoming a means for defendants to get publicity for themselves, their offences and their resistance to justice: to portray themselves as public martyrs and, in some cases, to make political gestures that could be thoroughly undesirable. If these orders became the norm, those dangers would be real. If it is to have a positive effect, this power is likely to be much more effective for serious cases in the Crown Court than it is for cases in the magistrates’ court. Of course we take the point that the scope of hearings in magistrates’ courts has been increased over what it was before the distinction was changed. Nevertheless, I will be very interested to hear the Minister’s response on the distinction. Our position at the moment is that the distinction is plainly justified.
However, getting an unwilling and often disruptive offender to court is by no means straightforward, and it inevitably causes a delay to the sentencing hearing for the following reasons. At the outset, the judge will have to hear submissions from prosecution and defence counsel, as well as possibly from the prison and escort staff, as to whether the offender has a reasonable excuse for non-attendance and, if not, whether to exercise these new statutory powers. Then the judge will need to give a ruling, giving reasons as to why, in the circumstances of that particular case, it would be necessary, reasonable and proportionate to use reasonable force to get the offender to court.
Then the prison and transport staff will have to go and get the prisoner from the place, whether it is a prison or a court cell, which they are refusing to leave. The prison and transport staff will then have to use their judgment as to how best to execute the judge’s ruling, including what degree of force to use. Finally, if the offender is forced into court and is then disruptive, this is likely to cause more delay while the judge decides what to do next.
There is probably one thing we can all agree on: the criminal courts do not need any additional delays. Judges will need to weigh up carefully whether and when to use their new powers. The noble Baroness, Lady Hamwee, raised the question of the inherent powers that courts already have. Both the Crown Court and magistrates’ courts have inherent powers to deal with a non-attendance as a contempt of court, but these are used sparingly because, as the noble and learned Lord, Lord Thomas, pointed out very powerfully, it is far from straightforward.
For these reasons, the Government’s view is that this new legislation is appropriately restricted to Crown Court sentencing. It represents a reasonable and proportionate response to the problem, because it is the Crown Court where these powers are needed. Operational arrangements are already in place for producing the most serious and violent offenders at the Crown Court, managing the risks that that involves and, where necessary, using proportionate force. So, for these reasons, we consider that expanding the power to magistrates’ courts might create legal and operational uncertainty and unnecessary delay to court proceedings. I therefore invite the noble and learned Lord to withdraw his amendment.
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