Criminal Justice and Courts Act 2015 Explanatory Notes

Part 3 - Courts and Tribunals

55.Part 3 of the Act introduces provisions about the proceedings and powers of courts and tribunals, provisions introducing court charges for convicted adult offenders and provisions creating offences in relation to jurors.

56.Trial by single justice on the papers - The Act introduces a new single justice procedure whereby proceedings against adults charged with summary-only non-imprisonable offences can be considered by a single magistrate, on the papers. This will be without the attendance of either prosecutor or defendant. The defendant will be able to engage with the court in writing instead of attending a hearing; as neither prosecutors nor defence will be attending, the case will not need to be heard in a traditional courtroom.

57.The purpose of this new procedure is to deal more proportionately with straightforward, uncontested cases, involving offences such as failure to register a new vehicle keeper, driving without insurance, exceeding a 30mph speed limit, and TV licence evasion. In many of these cases the defendant is not present in court, either because they have chosen not to engage with the process or because the defendant has sent a written guilty plea. In such cases, the hearing takes place in an empty courtroom with only magistrates, prosecutors and court staff present. This procedure offers an alternative form of proceedings to help ensure that these cases are brought before the court at the earliest opportunity and dealt with more efficiently.

58.Cases which prosecutors identify as being suitable for this process will be commenced by a written charge and a new type of document called a ‘single justice procedure notice’. This notice will give a defendant a date to respond in writing to the allegation rather than a date to attend court; it will also be accompanied by the evidence or a description of the evidence which the prosecutor would be relying on to prove the case.

59.If a defendant pleads guilty and indicates they would like to have the matter dealt with in their absence, or does not respond to the notice, then a single magistrate will consider the case on the basis of the evidence submitted in writing by the prosecutor, and any written mitigation from the defendant. The magistrate can dismiss the charge, or convict and sentence as appropriate.

60.If a defendant wishes to plead not guilty, or otherwise wants to have a hearing in a traditional courtroom, they can indicate their wishes and the current arrangements will apply. Sections 46 to 50 and Schedule 11 implement these changes.

61.Time limits for prosecuting offences of making improper use of public electronic communications networks. Section 51 increases the time limit for bringing prosecutions for offences under section 127 of the Communications Act 2003 to allow more time for investigation of such offences.

62.Low-value shop lifting: mode of trial – Section 22A of the Magistrates’ Courts Act 1980 made theft from a shop of property valued at £200 or less a summary offence. The defendant’s right to elect was nonetheless retained, and section 52 makes clear that when a defendant elects that is to be treated in the same manner as an either-way offence in which the defendant has elected.

63.Committal for sentence of young offenders convicted of certain serious offences - The present arrangements for magistrates’ courts to commit defendants under 18 to the Crown Court for sentence are different from those that apply to adult defendants, and rather more limited. The power to commit for sentence is available only –

• where the young defendant is charged with one of the serious offences listed in section 91(1) of the Powers of Criminal Courts (Sentencing) Act 2000, and he or she indicates a plea of guilty at the outset and the magistrates’ court considers that a Crown Court sentence is required; or

• where the court considers that the case satisfies the criteria for the imposition of an extended determinate sentence set out in section 226B of the Criminal Justice Act 2003.

64.A case that does not fall within either of these situations cannot be committed to the Crown Court for sentence and must be dealt with using the magistrates’ court’s own sentencing powers.

65.Section 53 amends section 3B of the Powers of Criminal Courts (Sentencing) Act 2000 so that the power of a magistrates’ court, including a Youth Court, to commit a child or young person to the Crown Court for sentence for a serious offence listed in section 91(1) of the 2000 Act ceases to be limited (as it is at present) to where an indication of a guilty plea was given at the outset. This amendment provides that the power is available in any case where a magistrates’ court summarily convicts an offender under 18 of one of these offences and is of opinion that a Crown Court sentence is required.

66.The creation of a criminal courts charge to be applied to convicted adult offenders to recover some of the costs of their criminal court case – Courts currently have a number of powers to require offenders to make payments – including compensation for victims, the victim surcharge (which funds victims’ services), prosecution costs and fines. Currently, there is no power to make offenders contribute to the cost of the court.

67.The Act will require courts to impose a charge on all adult offenders who have been convicted of a criminal offence, subject to any exemptions prescribed by the Lord Chancellor. The level of the charge will be set by the Lord Chancellor. In setting the charge the Lord Chancellor expects to have regard to factors likely to affect the cost of proceedings, including the type of offence (summary, either way or indictable only), the court at which the case is heard (magistrates’ or Crown) and the plea (guilty or not guilty). The bands of charge will be set to ensure the convicted defendants will not pay more than the costs reasonably attributable to a particular type of case. The charge will be collected after other financial impositions – compensation, victim surcharge, prosecution costs and fines – have been paid off. The offender has the opportunity to pay at a rate they can afford. Offenders will be able to apply to pay by instalments and to vary the rate of payment if their circumstances change. Sections 54 and 55 and Schedule 12 implement these changes.

68.Linked to this are provisions that enable fines officers to be able to vary fine repayments  following default by the offender; and to vary the repayment terms to make them less favourable to the offender (for example, if their financial circumstance improve)  with the offender's consent. This will enable HM Courts and Tribunals Service to take account of an offender's circumstances and adjust repayments accordingly. Section 56 implements this change.

69.Fundamentally dishonesty in civil proceedings relating to personal injury - Under the current law as determined by the Supreme Court in Fairclough Homes v Summers(13), a civil court has power to strike out a statement of case in a personal injury claim as an abuse of process even after a trial at which the court has held that the defendant is liable in damages to the claimant in an ascertained sum. However, the Supreme Court held that the court should do so only in very exceptional circumstances. Section 57 changes the law to provide that in any personal injury claim where the court finds that the claimant is entitled to damages, but is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the claim, it must dismiss the claim entirely unless it is satisfied that the claimant would suffer substantial injustice as a result. This provision applies both where the claimant is dishonest in the “primary” claim (for example where the claimant grossly exaggerates his or her own claim) and where the claimant is dishonest in a “related” claim (for example where the claimant colludes in a fraudulent claim brought by another person in connection with the same incident or series of incidents in connection with which the primary claim is made). The provision extends to England and Wales only.

70.Banning inducements to bring personal injury claims - Sections 58 to 61 make provision to prohibit legal services providers from offering benefits to potential clients as inducements to make personal injury claims. The Act defines what is to be considered an inducement; makes provision about the routing of offers of inducements through third parties; and requires regulators to monitor and enforce the ban on solicitors and other legal services providers.

71.Appeals from the Court of Protection – Section 62 rectifies an omission in relation to appeals from decisions at lower levels in the Court of Protection which was not addressed when the range of judicial office holders able to sit as judges of the Court of Protection was expanded in the Crime and Courts Act 2013. The need for the amendment has been highlighted by the 2014 decision of the Supreme Court in what has become known as the ‘Cheshire West’ case(14). That decision required a radical reassessment of cases in which it may now be considered that a person who lacks mental capacity to consent to care arrangements is deprived of liberty as a result of those arrangements, so that the authorisation of the court is required for such deprivation of liberty. A significant increase in the number of cases coming before the Court of Protection for declarations authorising deprivation of liberty is therefore predicted.

72.Section 62 makes good the omission and aligns the provision for appeal routes with the wider range of judges of the Court of Protection, enabling appeals from deputy district judges and judges from other jurisdictions who are acting in the Court of Protection to go to a higher tier of judge within the Court of Protection. The judges whose decisions may be appealed within the Court of Protection, and the higher judges to whom appeal against those decisions will lie within the Court of Protection, will as now be specified in rules of court, namely the Court of Protection Rules.

73.This is intended to prevent the Court of Appeal from being unnecessarily burdened by a significant increase in cases and allows the Court of Protection the flexibility to deal with resources efficiently. This, in turn, is intended to reduce delays and the need for cases to be transferred to a different court, also providing greater consistency with how appeals are managed across other jurisdictions.

74.Extending the scope for appeals to be made direct from the High Court or tribunals to the Supreme Court (“leapfrogging”) - Leapfrogging refers to the process by which a case can jump directly to the Supreme Court from certain courts, bypassing the Court of Appeal. The Government’s view is that some cases which it is clear will not end in the Court of Appeal but will involve a further appeal to the Supreme Court should get there more quickly. As outlined in the consultation ‘Judicial Review: Proposals for further reform’ (published 6 September 2013)(15), the Government wants to extend the scope for certain cases of major significance to leapfrog to the Supreme Court without being heard in the Court of Appeal.

75.The current powers and procedures are governed by sections 12 to 16 of the Administration of Justice Act 1969. At present, a case may be appealed directly from the High Court in England and Wales or Northern Ireland to the Supreme Court if the High Court grants a certificate, for which the conditions in section 12 must be met.

76.The Act amends the 1969 Act to widen the circumstances in which a case may be considered suitable to “leapfrog” from the High Court of England and Wales to the Supreme Court, missing out the Court of Appeal, and to remove the requirement for all parties to consent to “leapfrogging”. It also extends the possibility of such leapfrog appeals to decisions in certain tribunals which have High Court equivalent jurisdiction. These changes are not limited to appeals in judicial review cases, but apply (as does section 12 of the 1969 Act) to civil and administrative proceedings generally. These changes do not apply to criminal proceedings. Sections 63 to 66 implement these changes.

77.Creating a new duty for a court which makes a wasted costs order to consider whether to notify a legal representative’s regulatory body and/or the Director of Legal Aid Casework - The power for a court to make a wasted costs order is set out in section 51 of the Senior Courts Act 1981. Such an order makes a legal or other representative personally liable to pay any costs of litigation which were caused unnecessarily by their improper, unreasonable or negligent conduct, and which it is unreasonable to expect the litigant to meet. Section 67 amends section 51 of the Senior Courts Act 1981 to put a duty on the court, if it makes a wasted costs order, to consider whether to notify the legal representative’s regulator and/or the Director of Legal Aid Casework.

78.Increasing the upper age limit for jury service to 75 - Anyone registered as an elector and aged 18-70 who has been ordinarily resident in the UK, the Channel Islands or the Isle of Man for any period of at least five years since the age of 13 is qualified to serve as a juror. The only disqualifications are for people who are liable to be detained under the Mental Health Act 1983, resident in hospital with a mental health disorder as defined by that Act, subject to guardianship or a community treatment order under that Act; people who lack capacity within the meaning of the Mental Capacity Act 1985 to serve as a juror; and people on bail or who have received certain criminal sentences.

79.In coming to the decision to increase the upper age limit, this Government took into account the responses to the previous Government’s consultation on changing the upper age limit. The current upper age limit, last set by way of the Criminal Justice Act 1988, does not reflect changes in life expectancy and “disability free life expectancy” over the past 25 years. Section 68 implements these changes.

80.The introduction of 4 offences (research by jurors, sharing research with other jurors, jurors engaging in other prohibited conduct and disclosing jury’s deliberations) and a power for a court to order temporary removal of electronic communications devices from jurors - During 2011 there were a number of cases involving the law of contempt which raised concerns that the current law did not reflect modern developments, particularly in relation to technology, the internet and media behaviour.  These concerns had been raised by the Attorney General in a number of speeches and in Parliament. The Government consequently referred the matter to the Law Commission to examine the law of contempt.

81.The Law Commission launched their review of the law of contempt of court in 2012. Following a consultation on four areas of contempt, the Commission published a report(16) in December 2013 which included recommendations on juror contempt (a second Law Commission report on court reporting was published in March 2014, but does not require legislation). Sections 69 - 77 and Schedules 13 and 14 implement recommendations from the December 2013 report by creating four offences of juror misconduct, and introducing related measures. They have effect in England and Wales. The provisions cover misconduct by jurors in the criminal, civil and coroners’ courts, and also misconduct by members of the Court Martial.

82.Section 75 and Schedule 13 make provision in respect of juries at inquests. They amend Part 1 of the Coroners and Justice Act 2009.

83.Section 76 and Schedule 14 make equivalent provision for the service justice system (for the armed forces). New service offences are created in respect of each new civilian juror offence (and will apply to all lay members of the Court Martial whether they are subject to service law, civilians subject to service discipline or otherwise), and for one of the offences (disclosing information about members’ deliberations) there is a further new civilian offence created. These provisions are intended to mirror the developments in the civilian justice system, with necessary adjustments for the service courts.

84.There is no jury in the Court Martial, the service justice system’s broad equivalent to the Crown Court. The finders of fact in the Court Martial are called lay members, and they may be either service personnel or civilians depending on the status of the defendant. These new service offences will apply to the lay members to ensure the defendant’s right to a fair trial is equally well protected in the service justice system.

85.Providing lifelong reporting restrictions for victims and witnesses under the age of 18 in criminal proceedings and extending the scope of youth reporting restrictions applying to under-18s to include online content - Reporting restrictions applying specifically to under-18s end automatically when the individual the subject of the reporting restriction order reaches the age of 18. This interpretation of the law has been confirmed in two High Court decisions(17). Most recently in JC and RT v the Central Criminal Court and others the President of the Queen’s Bench Division commented that “it is truly remarkable” that legislation provides for discretionary lifelong reporting restrictions for adult witnesses but reporting restrictions for under-18s end at the age of 18. He went on to say that “victims and witnesses need individual and tailor-made protection within the criminal justice system” and that “it is for Parliament to fashion a solution: the problem requires to be addressed as a matter of real urgency.”

86.Section 78 therefore provides any criminal court in England and Wales (or any service court) with the discretion to order a lifelong reporting restriction in respect of a victim or witness who is under the age of 18 during the criminal proceedings. Sections 79 and 80 make adjustments to the scope of certain reporting restrictions already applying to under-18s so that they apply to on-line content as well as print and broadcast media.

87.Representations to Parliament by the President of the Supreme Court –Section 81 amends section 5 of the Constitutional Reform Act 2005 to allow the President of the United Kingdom Supreme Court to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Chief Justice(18) of any part of the United Kingdom can make representations about the judiciary and the administration of justice.  Section 82 amends section 39 of the Constitutional Reform Act 2005 to give the United Kingdom Supreme Court the flexibility to appoint judges to the Supplementary Panel within two years of their retirement, providing they are under the age of 75.  This gives the UK Supreme Court greater scope and flexibility to appoint recently retired judges when they need to use judges from other courts.

88.Correcting an error in the Crime and Courts Act 2013 regarding the test applied to applications for permission to appeal from the Upper Tribunal in Scotland - The Crime and Courts Act 2013 enabled rules of court to introduce a second appeals test for applications for leave to appeal from the Upper Tribunal to the Court of Session following a court decision that declared the court rules introducing such a test ultra vires (that is, beyond power). Due to an error the words ‘or practice’ were omitted from the provision providing that an appeal cannot be granted unless it raises a point ‘of principle or practice’. Section 83(2) corrects that omission.