The government’s 300-page criminal justice bill currently working its way through the House of Commons is something of a pick‘n’mix; stuffed with a disparate assortment of measures covering many different parts of the criminal law.
From the government’s point of view, the Police, Crime, Sentencing and Courts Bill 2021 (the bill) boasts an appetising selection of reforms, designed to hit the public’s sweet spot. But for many lawyers in the criminal law field, the bill is a collection of ill-thought-through, populist reforms that are bitter on the taste buds, and very hard to swallow.
The jury is out
One element of the bill certainly causing furrowed brows among criminal lawyers is the provision for remote juries. The legislation would enable trials to take place with juries sitting not in the courtroom, but together in another location, watching the proceedings on screen.
This has already been happening in the Scots courts, where the need to accommodate juries of 15 rather than 12 has made it impossible to seat jurors in the courtroom while maintaining the necessary social distancing. North of the border, juries have sat in theatres, watching proceedings on the big screen – presumably without popcorn.
But Ian Kelcey, senior partner and criminal law solicitor at Kelcey and Hall, warns: “This seems to have worked quite well in Scotland; but the courts there have got state of the art technology, and we haven’t. Unless you have got really good technology, the jury could miss the body language of the defendant, which is so important.”
Lawyers also worry about the behaviour of jurors if they are sat remotely. “In the courtroom, you can see when jurors aren’t paying attention – or even if they’ve fallen asleep,” points out Mark Troman, chair of the London Criminal Courts Solicitors’ Association. “But that’s harder to see if the jury is on a video screen high up. Plus, people behave differently when they are attending remotely; they might confer with the person sitting next to them during evidence, for example.”
When might remote juries be deployed? Some commentators have suggested the measures could be misused. A number of Extinction Rebellion protestors were recently acquitted of criminal damage by a jury, despite being directed by the judge that they had no defence. This has led to suggestions that in future, the remote juries provision could be used to ensure similar prosecutions are heard remotely by a “blue rinse” jury in a more conservative part of the country.
Despite the conspiracy theories, however, the provisions are broadly understood to be intended as a “just in case” measure, for use in a pandemic emergency, or potentially to help clear the existing Crown Court backlog – although, in reality, a shortage of judges, rather than any difficulty accommodating jurors, is the real problem there.
But lawyers do worry there’s nothing in the proposed statute that limits remote juries to certain situations. “If it’s a ‘just in case’ measure, then what is it in case of?” asks Bar Council chairman, Derek Sweeting QC. “I don’t think it’s a sinister plot,” he adds. “[But] once it’s on the statute, it can simply be deployed by government.”
The barrister notes that, since the courts of England and Wales have managed to cope with in-person juries during the pandemic, there should now be no urgency to bring in such a significant provision, without evidence of how it might affect trial outcomes. If the measures do become necessary, they could be brought in swiftly as an emergency measure, as we have seen with other covid-related rules. Sweeting adds that the Bar Council supports recent comments made by the Lord Chief Justice that remote juries would turn jurors into spectators, rather than participants in the trial.
Daniel Bonich, chair of the Criminal Law Solicitors Association, agrees. He warns: “As humans, we rely a lot on non-verbal cues, and they can be quite difficult to pick up on video. There’s a real concern that something will get lost in the ether, and we could end up with miscarriages of justice.”
Protesting too much
One issue the government has sought to grab by the throat in the new bill is the growing problem of protests that cause serious difficulties for the public. Recent examples include climate protesters blocking bridges – forcing ambulances to travel extra miles – or barricading printing presses.
The bill seeks to address this type of activity by giving the police powers to impose conditions on marches or static protests where the noise levels could lead to “serious disruption” to the “activities” of a nearby organisation; or if the noise may have a “significant” and “relevant” impact on people in the area.
Under the wording of the bill, police can also impose conditions if noise from the protest might lead to “intimidation or harassment’, or cause “serious unease, alarm or distress” to bystanders. The rules will also apply to a protest by one single individual, who might be marching up and down with a placard.
The worry for lawyers is that, while there is a legitimate public interest in dealing with some of the more extreme forms of protest that we now face, the new law has been drafted much too broadly. In relation to “noise”, for example, unless the protest in question is being held in total silence, any gathering of a few hundred people is likely to meet the low threshold of causing “serious disruption” – the meaning of which is not spelled out in the bill, but instead will be left to the secretary of state to define, without parliamentary involvement.
Sweeting reflects: “There’s a genuine public interest in the balance between the right to protest and the disruption. When ambulances are having to travel miles, you can understand why people may feel these sorts of protests are going too far; and social media makes these protests more fluid.
“But the solution is not to use a hammer to crack the nut. A lot of the provisions are dangerously close to curtailing [rights]. If there is too much discretion for the police, you can end up with something that’s too draconian.”
As recent lockdown experiences have shown, when police are given new powers that are not entirely clear, they do not always get the balance right in terms of how they enforce them.
Sweeting adds: “Many of the things that were seen as disruptive in the past, we now regard as having been in support of fundamental [advances], for example, votes for women. You can end up on the wrong side of history.”
It would have been better if the bill had clearly set out what amounts to a legitimate or illegitimate protest, he suggests.
Bonich adds that the wide drafting of the provisions relating to “noise” and “disruption” means you could argue that the new law would apply to “every protest that’s even been”. He adds: “I’m sure it’s not the government’s intention to ban peaceful protests. But it’s no good the government giving itself wide powers and saying, it’s okay, because we’re benevolent. You can’t rely on your successor being benevolent… The government might say, we’re not going to prevent a protest just because it’s noisy. But lawyers and judges will read what the law says.”
Amid controversy over statues of historical figures being torn down by angry protestors, the government has thrown an amendment into its pick‘n’mix bill, to send a signal that it is toughening up on criminal damage to “memorials”.
Such activity can now be tried in the Crown Court, regardless of the monetary value of the damage, by jurisdiction, if the magistrate considers that the offence goes beyond their limit of six months’ imprisonment, or by election, if the defendant elects for a Crown Court trial. The Bar Council has pointed out that, as the definition of a “memorial” includes any “moveable thing”, raising the spectre that removing a bunch of flowers could lead to proceedings in the Crown Court.
Bonich suggests that while anyone would readily accept that damage to a cemetery, for example, is much more serious than damage to a lamppost, it would have been better to dealt with this distinction by amending the sentencing guidelines for criminal damage. Instead, he warns the government may have scored an own goal, by ensuring that anyone prosecuted for this type of activity can now have their day in the Crown Court – which might be just what they want.
“The government is quite unhappy with the politicisation of the courts,” Bonich muses. “The danger is that you drag the courts into a political argument. It’s easier when people are pulling down pictures of slavers, but where do you draw the line? Some people think Winston Churchill’s statues should be pulled down because of what he did in relation to Burma, but that would be a smaller group. You might find 50 people who find something deeply offensive, but no one else does. Do you want to give them the platform to explain [their political views] in the Crown Court?”
Road to ruin
Away from the more high-profile elements of the bill, a new criminal offence in the road traffic accident sphere has attracted far less publicity, but could potentially affect a great deal more people, very directly.
The bill creates an offence of “Causing serious injury by careless, or inconsiderate, driving”. This means anyone who causes “serious injury” to another by driving “without due care and attention”, or without “reasonable consideration” for others, will now be guilty of a criminal offence carrying a maximum two-year prison term.
At the moment, careless driving can lead to the loss of a driving licence, but – unlike dangerous driving – it is a non-recordable offence, and so does not appear on a criminal record. The new offence will now criminalise momentary breaches, such as a distracted mother who turns around for a moment to ensure her child is secured in their seat.
Troman says: “This will open a Pandora’s Box, bringing in people who have never been to court before. Driving carelessly is something that we all do at some point; I don’t believe there are any drivers out there who haven’t dropped below the standard of the Highway Code for a moment.”
The lawyer adds that a huge number of road traffic accidents will involve the two key ingredients required for the new offence: an element of carelessness, and serious injury, which would include things like fractured bones. “It could mean almost every accident runs the risk of two years’ imprisonment,” warns Kelcey. “It criminalises behaviour that in the past was seen as just an accident… It’s sabre-rattling by government.”
Sweeting adds: “There’s a tendency to put things in the bill that the government thinks have public support. These aren’t unpopular issues. The ‘blue press’ does call for prison sentences where someone injures someone else in a collision, and they only get a fine. And there are a lot of people who are offended by a Winston Churchill statue being attacked.”
Trials of youth
A significant tranche of the new bill is devoted to youth justice – with the stated aim of providing the courts with the tools they need to deliver stronger community sentences, and supporting the welfare of the child while also protecting the public and ensuring that “sentences reflect the severity of offences”.
Measures in the bill include greater monitoring of children serving community sentences, to give confidence that these can more often replace short custodial sentences; and allowing more flexibility in the length of custodial sentences by removing the current fixed lengths.
At the more serious end, children receiving sentences of seven years or more will have to serve at least two-thirds of their sentence before qualifying for automatic release (rather than one half as at present); and for children who have committed murder, the minimum prison term – currently fixed at 12 years regardless of the child’s age – will be based on a new age-based sliding scale, bringing the minimum terms for older children closer to those in place for adults.
For many lawyers who work in the youth justice system, the bill is a disappointment. “The White Paper had talked a lot about recognising children as children, but when the bill came, there are lots more aspects that are punitive, remarks Louise King, director of policy and campaigns at charity, Just for Kids Law. “In the youth justice world, the feeling is that the overall impact of the bill will be detrimental, and will exacerbate problems,’ adds Caroline Liggins, head of the youth team at Hodge, Jones & Allen and chair of the Youth Practitioners Association.
The bill makes a positive change in relation to remand, by bringing in a statutory obligation for courts to record why they ordered custodial remand, rather than a community sentence. But Liggins would have liked to see written reasons being required more broadly, whenever a child receives a prison sentence. “Courts should have to write down their reasons for sentencing at all stages, not just at remand stage,” she insists. This would lead to greater scrutiny of sentencing decisions, and would help with appeals.
For King, one of the biggest frustrations of the bill is its failure to address an obvious unfairness in the justice system – that individuals who have committed an offence as a child, but who have turned 18 before they are sentenced, are currently sentenced as adults. Youth sentences are not available to them, and the “rehabilitation periods” – the length of time before an offence is spent – will also be the longer, adult period. This affects around 2,500 children every year.
King says: “You could have the same crime committed by two children: one whose case is completed while they are 17; the other whose case is completed after their 18th birthday. They can get completely different outcomes – it’s totally unjust.
“For children who end up sentenced as adults, a lot of safeguards are taken away. They have longer sentences and no right to anonymity. And the situation is exacerbated by the pandemic [court delays]. Court hearings should be expedited where a child is approaching their 18th birthday.”
Like many youth justice lawyers, King would also have liked to see the age of criminal responsibility raised from the current age of ten, which she considers “far too young”. The UN committee on human rights, which recommends a minimum age of at least 14, has consistently criticised the position in England and Wales; while Scotland recently raised its criminal age threshold from 8 to 12.
More broadly, King feels the thrust of the bill has missed its mark. “It’s a real missed opportunity to get a proper, welfare-focused approach to children in the criminal justice system,” she laments. “We’re not tackling why the offence was committed. It’s a populist approach”.
There is much in this 300-page bill that has given criminal justice lawyers cause for concern – but their criticisms are likely to fall on deaf ears. Given the government’s sizeable majority, the final Act is unlikely to have undergone any significant transformation by the time it receives Royal Assent – expected to be before the year is out.
Rachel Rothwell is a freelance journalist...