Trial or sentencing in absence of accused in magistrates’ courts

I beg to move amendment No. 202, in clause 57, page 37, line 18, at end insert—

‘( ) In each of subsections (3) and (4), for “A magistrate’s court” substitute “In proceedings to which this subsection applies, the court.”’.

With this it will be convenient to discuss Government amendment No. 203.

As I—[Interruption.] There is some coughing in the Committee, and I hope hon. Members with coughs feel better as we go on into this afternoon and evening, or whenever. We are in the hands of others in that regard.

As I began with mea culpas, may I admit that when the Bill was introduced, two short subsections were accidentally omitted from clause 57? Their purpose was to qualify section 11 (3) of the Magistrates’ Courts Act 1980, which prohibits magistrates courts from imposing a custodial sentence in an offender’s absence, and subsection (4), which restricts the circumstances in which a court could impose disqualification. The missing provisions would have limited those prohibitions to cases initiated by

“an information, where a summons...and...by a written charge” and requisition.

In other cases, the most important category of the measures relates to a situation in which a defendant has been bailed to appear in court. In such a case, the prohibition would be lifted on the basis that he would know that he was due to appear in court, but that is not  always so when cases are initiated by information and summons. It does not necessarily follow that a court would consider it appropriate to impose a custody in absence, but that would not justify statutory prohibition. The amendments will put the missing subsections in the Bill, and I hope that the Committee will make them.

I welcome the Minister’s mea culpa—long may that continue. These belated provisions to amend the Bill are welcome, but they raise a question similar to one asked earlier about the magistrates courts’ citation and concern about legislation. The Committee will remember that during an evidence session, magistrates said that they were not properly consulted, and that practitioners such as themselves and others who deal with absent clients and defendants day in, day out, could have given clear advice to deal with the problems that the amendments will address. Any magistrates court could say clearly that there is a need to ensure that proceedings

“instituted by an information, where a summons has been issued; and...proceedings instituted by written charge” were necessary prerequisites when they deal with cases involving absent clients. That illustrates what we heard in evidence sessions and outside the political process—that practitioners such as magistrates and others would want to be fully informed, engaged and consulted when proposals are put forward, so that they can ensure that mistakes do not occur.

I hear what the hon. Gentleman says. It is not that the provisions were not written and ready to be included in the Bill; that they were not included owes more to an administrative issue than to a lack of consultation. I heard what he said, but I would be grateful if the Committee allowed the amendments to be made.

Amendment agreed to.

Amendment made: No. 203, in clause 57, page 37, line 25, at end insert—

‘“(4A) Subsections (3) and (4) apply to—

(a) proceedings instituted by an information, where a summons has been issued; and

(b) proceedings instituted by a written charge.’.—[Maria Eagle.]

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss the following: New clause 23—Protection of vulnerable persons following conviction

‘(1) The Magistrates’ Courts Act 1980 (c. 43) is amended as follows.

(2) After section 11 insert—

“11A Protection of vulnerable persons following conviction

(1) Where a court has proceeded in the absence of an accused under section 11 and following conviction the court or its officers are informed or discover that the convicted person falls into a vulnerable category as laid down by page 9 of the National Standards for Enforcement Agents, no further steps under a fines collection order or enforcement measure shall be taken until the court has held an inquiry into the means and circumstances of the convicted person in his/her presence.

(2) When conducting an inquiry into means and circumstances of the convicted persons under subsection (1) the court shall also consider whether any other occupant of the property in which the convicted person resides falls into a vulnerable category.

(3) Where on having conducted the inquiries required by subsection (1) in the presence of the convicted person who is subject to the fine, and having considered the situation of any other occupant required by subsection (2), the court may vary the level of fine imposed on the convicted person or substitute it with another penalty it considers appropriate.

(4) Where, on having conducted the inquiries required by subsection (1) in the presence of the convicted person and having considered the situation of any other occupant as required by subsection (2), the court may place such restrictions on enforcement as it sees fit and amend any fines collection order as it sees fit, including withdrawing or cancelling the order.

(5) Where the court or its officers are informed or discover that a convicted person falls or is likely to fall into a vulnerable category any warrant of distress issued will be suspended and returned to the court for further consideration.”’.

I tabled the new clause on behalf of the Zacchaeus 2000 Trust. Representations were made to me by Rev. Paul Nicolson, the chairman of the trust. He makes a good case that relates to the treatment by the courts of vulnerable people and, beyond that, by bailiffs. There is a great hole in the current procedures that mean that vulnerable people are treated extremely badly.

Clause 57 will amend section 11 of the Magistrates’ Courts Act 1980 with respect to criminal trials that start in the absence of the person who was summonsed. It reduces the discretion of justices to decide whether to proceed in the absence of the accused. Vulnerable people are fined in their absence and, for many reasons, fail to pay the fine. They might be illiterate, ill, confused or a busy lone parent on benefit with several children to look after all at once with no one else to look after them if they go the court. There are myriad reasons why poor people do not attend court. They rarely receive advice or legal support in a fines court unless the magistrates are minded to imprison them. They are in a vulnerable position in the courts, and that is not taken properly into account.

If the magistrate has no defendant, he invariably imposes the largest fine available to him, which is disproportionate to the means of the people who I am describing, especially those on the lowest incomes. It is incredibly difficult when that happens to get the case back to court. The Zacchaeus 2000 Trust said that a case in which it was involved was fraught with difficulty. Since March 2006, when the relevant part of the Domestic Violence, Crime and Victims Act 2004 came into force, the magistrates have no responsibility for enforcing a fine after the case is heard and the level of the fine is set. The collection order is given to the fines support officer who administers its enforcement. If the defendants are in court, they invariably make an agreement to pay, but if they are not, the matter ends up in the hands of the bailiff who still has draconian powers and can break into houses without reference to the court.

The trust said that the 2004 Act gave bailiffs even more power. It overturned the previous common law controls. It has found that the bailiffs completely ignored the national standards for enforcement agents, especially the relevant standards on page 9 of its  document, which outlines a procedure for returning such cases to magistrates for reconsideration in the light of a means statement. It is not in the bailiffs’ interest to get the case returned to the court. They are not interested in that. They just want to push ahead with enforcement.

The Zacchaeus 2000 Trust was effectively told that once a case has been handed to the bailiffs, it could not be withdrawn. Whatever the letter of the law says—even some of that is not very adequate—that is the real position that many vulnerable people find themselves in. Despite the advice of the Ministry of Justice, which says that such cases can be returned to the magistrates, that does not seem to be the case in reality.

Lord Justice Simon Brown interpreted the law in the case of R v. Hereford and Worcester magistrates court, ex parte MacRae 1999, which held that a distress warrant cannot be withdrawn once it has been issued. That approach has been further enshrined in other legal documents.

The amendment does two things. First, it puts a common-sense procedure into statute, so that when a vulnerable situation is encountered, the magistrate can provide a just level of penalty for the case. Secondly, it tries to give some teeth to the national standards for enforcement agents—the point is made on page 9—which calls bailiffs to account when they are dealing with vulnerable households and individuals.

One final point is that the Home Office added a last minute amendment to the Domestic Crime, Crime and Victims Act 2004, which allowed bailiffs to break into domestic premises to enforce a fine. That comes into force in March 2006. When it did that, it said that the measure would be used as a last resort, but it is not difficult to imagine how, and under what circumstances, it has been operating in practice.

When the Zacchaeus 2000 Trust sought information, the Ministry of Justice refused to provide it. The trust was sent 30 pages of guidance from magistrates, with 15 of those blacked out. That is not right. I know from own constituency that a lot of people suffer from heavy-handed action, and in those circumstances it is reasonable for a pressure group such as the Zacchaeus 2000 Trust, and those who wish to control the activities of bailiffs and hold them to account, to be able to look at the papers and see how the law is operating. It was good of the Rev. Paul Nicolson and the Zacchaeus 2000 Trust to bring the matter to our attention, and I am pleased to move the amendment and to get a response from the Minister on the matter.

I am grateful to the hon. Member for Leyton and Wanstead for introducing the new clause to which I have added my name and that of my hon. Friend. It raises an important issue. I would also like to deal briefly with the clause stand part and the general circumstances in which the clause moves towards a presumption of a trial in absentia, rather than the occasional disposal that the courts already have available. The matter raises some issues.

I hold no brief whatsoever for those who delinquently absent themselves from court. They must be made to realise that when they are summonsed to appear in court, it is a serious matter and they must appear. There are far too many court cases that are  delayed or adjourned due to the non-appearance of defendants or other key players, and it is not in the interests of the administration of justice for that to be the case. However, I still have concerns about people such as those to whom the hon. Gentleman referred—vulnerable people who are wrestling with extremely difficult problems who may not be intentionally delinquent but are chaotic. We all know of these people from our surgeries, and we all know the extent to which small problems can escalate into huge ones simply by their not doing what is expected of them by the system. They find themselves getting into deeper and deeper trouble, and eventually turn up at our advice surgeries, but we find it difficult to give them adequate advice because of the difficulties in which they find themselves.

That happens also in court. It happens with people who have chaotic lifestyles of one sort of another, or who have difficulties in their personal circumstances, which can occasionally result in them not appearing in court. It gives me cause for concern that those factors may not be recognised by the court. It is also gives their representative lawyers a problem because of the competing responsibilities of the solicitor to his or her client and to the court as an officer of the supreme court. They therefore have the responsibility of ensuring that the trials take place in an appropriate way. I would prefer, if possible, to avoid such conflicts of interests.

Having said that, the problem mentioned by the hon. Gentleman is a real one. Much concern has been expressed in recent years over the way in which bailiffs carry out their duties. Despite everyone’s best intentions, and despite guidance, it often seems that they carry out their duties aggressively and inconsiderately and in a way that shows little regard for the circumstances of the person upon whom they are levying the distress warrant. We should be concerned about that. We should be concerned about precisely the sort of people referred to by the hon. Member for Leyton and Wanstead earlier, which is the principle concern of the Zacchaeus 2000 Trust in its work with such people.

We want some sort of process of referral back or repechage, not to enable people to evade their responsibilities to the court but to ensure that the procedure takes cognisance of their situation and acts accordingly. We do not want an escalation of costs or penalties; it is in no one’s interests if all we do is make a poor person poorer still, or take away essential items from a household that is already deprived. It is not a bleeding-heart liberal issue; it is about common humanity, and not dealing badly, as is sometimes the case, with people who are not able to look after themselves or who cannot even see what actions on their part would be in their best interests. That, sadly, is too often the case.

I support the new clause, and I look forward with interest to the Minister’s response.

I commend the hon. Member for Leyton and Wanstead on the intentions behind the new clause.

I commend the Zacchaeus 2000 Trust on its tenacity and persistence and for Paul Nicolson’s concern for the vulnerable. In many ways, we are talking about legislation, but organisations such as the Zacchaeus 2000 Trust are at the sharp end, dealing with vulnerable people in a noble way. I wish to commend Mr. Nicolson on bringing to our attention his concerns about young people, especially those who, for instance, face bailiffs at the door. It is a worrying situation for many, as they do not know how to deal with such situations. However, they seek some justice, to the extent that they want their inability to pay fines to be brought to bear.

I would like the Minister to respond to the legislative and practical concerns at the heart of new clause 23 about the effectiveness and teeth of the national standards for enforcement agents. Page 9 of the national standards refers to the need for enforcement agents to recognise their

“role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with”,

and emphasises the need for an appropriate use of discretion when dealing with vulnerable people.

I understand that the Zacchaeus 2000 Trust and Ministers have debated the definition of vulnerable people, and that concern was expressed about the difficulty of defining vulnerable people during the passage of previous legislation. Further concern was expressed about the need to give teeth to the national standards during the passage of the Consumer Credit Act 2006 and the Tribunals, Courts and Enforcement Act 2007. Section 12(2) of the Consumers, Estates and Redress Act 2007 provides a definition of a vulnerable person, to which reference is made in the national standards.

Will the Minister assure the Committee that there will be proper and robust enforcement of the national standards? From my experience as a practitioner, and particularly as a duty solicitor, I know that in such situations, there are ways to get the warrant withdrawn and to ensure that true account is taken of the young person’s means. That often means that the fine is remitted to a level that can be paid. No one is suggesting that that young person should be let off the fine, just that it should be appropriate to their circumstances, and certainly we should be able to deal with those situations when taking enforcement action against absent defendants. It would be preferable if we could enforce those national standards properly without additional legislation. Will the Minister give the necessary assurance?

Clause 57 creates a presumption that if a defendant fails to attend a trial in a magistrates court without good cause, the magistrates will use their powers to try them in their absence and sentence them if convicted. However, magistrates have that discretionary power already, which they often use appropriately and subject to existing case law, such as R v. DPP, in which the High Court emphasised that the discretionary power to commence a trial in the absence of a defendant should be exercised with the utmost care and caution.  Furthermore, magistrates have an eye on article 6 of the European convention on human rights, which ensures a fair trial.

Advocates might seek to persuade magistrates to exercise their discretion with care and not to proceed in the absence of a defendant, but often they exercise their discretion and proceed anyway. In fact, it is now common practice, whenever a trial date is fixed, to remind the defendant that if he does not attend, the magistrates will proceed in his absence. Why is it necessary, therefore, for this Bill to seek to enforce what is happening already? By building in a presumption when there is good cause, are we not getting close to infringing article 6? Has the Minister satisfied herself that the clause complies with the article? When magistrates are using their discretion on a case by case basis, taking into account the circumstances of the defendant and any case history, they are often in the best position to decide whether to proceed in the absence of the defendant, without the need to create a statutory presumption in that favour.

I begin by congratulating my hon. Friend the Member for Leyton and Wanstead on introducing the new clause, and I will seek to reassure him. Perhaps I should warn the Committee that 3.30 is my worst time of the day, but we still have that to come. I join my hon. Friend in congratulating the Zacchaeus 2000 Trust and the work that it does. I do not think that there is an hon. Member, and certainly not a solicitor, who has not come across the kind of vulnerability that we are discussing out there in the world, in our advice surgeries, in court or in forums where we seek to assist members of the public. I do not think that there is disagreement between any members of the Committee about the need to ensure that there are relevant protections for vulnerable people in such circumstances. The issue is whether this new clause is the best way of achieving that.

New clause 23 would force magistrates, fines officers or clerks to magistrates to suspend, pending a means inquiry, warrant enforcement procedures, reconsider how the fine is being enforced and potentially re-sentence an offender where the offender, or some other person present at the property where a magistrates court warrant is being executed, may be vulnerable, as defined by page 9 of the national standards for enforcement agents, which states:

“Those who might be potentially vulnerable include: the elderly; people with a disability; the seriously ill; the recently bereaved; single parent families; pregnant women; unemployed people; and, those who have obvious difficulty in understanding, speaking or reading English.”

Later I will say something about the national standards, but I want to set out for the Committee why I do not think that the new clause is necessary in order to provide that level of protection, although I do not comment on individual cases that my hon. Friend may have been referring to and which have been the subject of some correspondence.

There is a well-developed body of law—statute law, case law, practice directions and so on—in the magistrates courts that ensure that every defendant’s right is upheld, and that is certainly the intention. Section 11 of the Magistrates’ Courts Act 1980 says that the court may proceed in the absence of the  accused. Guidance on proceeding in the absence of the defendant has been given in the criminal consolidated practice direction of 2002. It directs that the decision to proceed in the absence of the accused must be exercised judicially, with proper regard to the principle that a defendant is entitled to a fair trial; that must include a fair opportunity to be present and/or be legally represented. However, the principle that the defendant should have a fair opportunity to be present does not amount to an unlimited opportunity. If it were to do that, the defendant could indefinitely postpone the proceedings by not turning up at the relevant time. The intention of the clause, on the basis of an extremely long list of vulnerability, is to require the court to reconsider, sometimes at length, what it is doing in any particular case.

I do not accept that that level of prescription is necessary. The court always retains the right to take a judicial decision on how to proceed. This can range, in appropriate cases, from withdrawing a warrant to re-hearing the entire case. Cases can be returned to the court and considered by the magistrates again if the situation warrants it, and there may be individual circumstances in which that is the right way forward. Enforcement officers can already be prevented from continuing with the execution of a distress warrant by the withdrawal of the warrant. The court’s power to do that is discretionary and it can be found in section 142(1) of the Magistrates’ Courts Act 1980, which states:

“A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.”

That provides an extremely wide discretion for the court to deal with individual circumstances of the kind described by my hon. Friend and referred to by Opposition Members.

New clause 23 may give rise to a situation in which some people are able to benefit from repeatedly not attending court. An offender could halt all enforcement procedures by refusing to attend court. I know that that is not my hon. Friend’s or anyone else’s intention. They seek to protect those who are vulnerable, but I am arguing that sufficient protections are in place. If the circumstances are not all known at the time at which the original order is made, it is possible for the court to revisit it in view of receiving correct information.

The hon. Member for Somerton and Frome in particular referred to the activities of bailiffs. I remind the Committee that the Ministry of Justice is consulting on the regulation of bailiffs, in conjunction with the Home Office, to ensure that there is a regime which prevents the abuses that sometimes take place, about which many members of the Committee will have heard from their constituents, and which can be the real cause of some of difficulties which have been referred to today. Responses to the consultation are currently being considered, and, in due course, we will release the outcome of that process and, hopefully, we will be able to bring in a better regulatory regime for the activities of bailiffs.

The hon. Member for Enfield, Southgate raised the question of the ECHR implications of the clause. I can  reassure the hon. Gentleman that my right hon. Friend the Minister of State has certified the implications, in respect of the entire Bill. He certainly would not have done so had he been of the view that those matters were not compliant.

In relation to the clause stand part debate, it is quite right that the magistrates currently have a discretion, which is used widely in some parts of the country. However, it is not used uniformly and, in other areas, courts have seemed especially reluctant to proceed in absence. That is why putting a presumption in the legislation, with the appropriate safeguards that I have set out, ought to level out that sort of uneven activity.

My hon. Friends might be further persuaded if I were to say that this is a manifesto commitment. That might not help Opposition Members, but they ought at least to acknowledge the fact that it is perfectly reasonable for a Government to try to implement its manifesto commitments.

With that clinching argument, I support the clause but I ask my hon. Friend not to press new clause 23.

I am grateful for that clarification. I was not sure whether it was I or the hon. Member for Somerton and Frome who said that it is important that people should attend court, but I want to make clear that that is my view. The courts should facilitate attendance if the individuals are vulnerable, and they are still a long way from doing so.

I was also grateful for the Minister’s assurance that such cases can be returned to the court. I hope that that message will go out clearly to the courts and that that will then happen in actuality. I also hope that the courts, having that discretion, exercise it to recall the warrant in cases involving vulnerable people. The consultation on the regulation of bailiffs is also very welcome and I hope to see a good outcome from that.

That is all that I wanted to say. I thank the Minister for his response. I shall not press for the new clause to be added to the Bill.

Question put and agreed to.

Clause 57, as amended, ordered to stand part of the Bill.