Contribution
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.
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.