Legislative scrutiny: Courts and Tribunals Bill

Sir Brian Leveson was commissioned by the government to undertake his Independent Review of the Criminal Courts in response to the deepening crisis in the Crown Court. The open caseload has reached a record high of over 80,000 outstanding cases as of December 2025, with some trials now listed as far ahead as 2030. The government should have produced a formal response to Part 1 of the Independent Review of Criminal Courts either prior to or at the same time as the publication of the Courts and Tribunals Bill. The absence of a formal response has inhibited scrutiny of the government’s proposals to reform the criminal courts. (Conclusion, Paragraph 6)

Given the constitutional significance of the bill, it would have been proportionate for the government to have facilitated more meaningful parliamentary scrutiny, in particular, by allowing the Justice Committee to conduct pre-legislative scrutiny. The Impact Assessment states that the provisions in the bill will not be implemented until March 2028 at the earliest. It is therefore difficult to understand why the government has not sought to achieve a broader consensus on these proposals, both within Parliament and outside, before pushing ahead with them. (Conclusion, Paragraph 9) The magistrates’ court

The removal of the right to elect for Crown Court trial will have a major impact on the allocation of cases between the magistrates’ court and the Crown Court. We are concerned by the lack of reliable data on which to base an estimate of the number of cases that will be retained in the magistrates’ court because of the removal of the right to elect. We encourage the government to share much more robust data as soon as possible. It is difficult to predict how magistrates’ courts will approach the allocation of cases under the proposals in the bill, especially as magistrates’ sentencing powers are set to be increased to 18 months, 88 but could also be increased to 24 months. As a result, it is also unclear to what extent the magistrates’ courts will retain cases that fall within their sentencing powers. (Conclusion, Paragraph 22)

The removal of the right to elect for Crown Court trial will make the allocation process less flexible. The allocation of cases will only be determined by the court’s application of the relevant legislative provisions and sentencing guidelines. In our view it is important for the magistrates’ court to be able to consider whether the circumstances of the case, beyond simply the likely possible sentence, would mean that a Crown Court trial is required. (Conclusion, Paragraph 23)

If the right to elect is removed, the government must ensure that the allocation criteria applied by the magistrates’ court are sufficiently flexible to enable the court to consider whether the circumstances of a case warrant a Crown Court trial. (Recommendation, Paragraph 24)

Clause 6 is one of the most radical measures proposed in the bill. It would give the power to the government to double the sentencing powers of magistrates from the current maximum of 12 months to 24 months through a statutory instrument with limited parliamentary oversight. The government has presented this as a moderate measure which simply modifies an existing power. However, there are good reasons to question this. In Part 1 of the IRCC, Sir Brian recommended removing the power to vary the maximum sentencing power of the magistrates’ court and permanently setting it at 12 months. Clause 6 is diametrically opposed to what Sir Brian recommended. Enabling lay magistrates to impose a custodial sentence of 24 months represents a significant shift in criminal justice policy, and we are not convinced that this has been sufficiently justified. Doubling the maximum custodial sentence will lead to more serious and complex cases being tried in the magistrates’ courts, and this will further increase workload pressures on a court which is already experiencing capacity issues. (Conclusion, Paragraph 30)

We can see why the ability to vary magistrates’ sentencing powers according to capacity pressures might be attractive to the government. However, frequent changes to those powers are unlikely to assist magistrates in making consistent and effective allocation decisions. Further, it is possible that a future government might seek to either increase the maximum from 6 months to 24 months or reduce it from 24 months to 6 months for policy reasons alone. Given that is not what the power is supposed to be used for, it would be sensible and proportionate to limit the power to reduce the risk of misuse. (Conclusion, Paragraph 31)

The power in clause 6 must be amended to ensure it contains adequate safeguards. The power must be subject to the affirmative resolution procedure and must also be limited so that it can only be used if the 89 relevant minister considers that it is necessary to address one of the purposes set out in the Delegated Powers Memorandum. (Recommendation, Paragraph 32)

We are not convinced that the capacity of the magistrates’ court can be expanded sufficiently to deal with the potential increases in workload that could result from the changes in the bill. It seems unrealistic to propose that 7,000 magistrates can be recruited in three years and that there will be 21,000 magistrates by 2029. The decline in the number of magistrates and legal advisers is part of a long-term trend which we do not believe can be reversed simply because the government has decided that allocating more cases to the magistrates’ court is the preferred solution to the crisis in the Crown Court. (Conclusion, Paragraph 42)

The government must put forward a plan to significantly increase the number of salaried district judges in the magistrates’ court. The Government must also ensure that the pay of legal advisers is matched with comparable legal roles in the public sector. (Recommendation, Paragraph 43)

The Ministry of Justice and HMCTS must publish quarterly statistics on magistrate recruitment, aligned with reporting to the Justice Performance Board. (Recommendation, Paragraph 44) Appeals from the magistrates’ court

Appeals from the magistrates’ court represent a small and declining proportion of overall Crown Court receipts, with only 0.4% of magistrates’ court decisions appealed in 2025. The Ministry of Justice’s own data does not support the premise that appeals make a material contribution to the Crown Court backlog, and we are not persuaded that this proves a sufficient justification for the scale of reform proposed. Whilst we recognise the impact that a rehearing can have on victims and witnesses, the high proportion of successful appeals suggests that the current right to a rehearing, which allows for both factual and legal issues to be reconsidered, plays an important role in correcting wrongful outcomes. (Conclusion, Paragraph 71)

Given proposals to increase the complexity and seriousness of the magistrates’ courts’ caseload, the government should consider delaying the introduction of any changes to the appeals process. A delay would enable the government to assess the impact of the reforms on the magistrates’ court and to assess whether they had led to an increase in the number of appeals. A delay would also allow the government to take account of the Law Commission’s forthcoming report on criminal appeals. Finally, any 90 changes to magistrates’ appeals should only be introduced once recording of all magistrates’ court proceedings has been introduced and is proven to be operating effectively. (Recommendation, Paragraph 72)

Evidence we received indicates that loss of time orders disproportionately affects those serving short custodial sentences and discourages otherwise meritorious appeals. (Conclusion, Paragraph 77)

The government should set out its justification for the introduction of loss of time orders and explain why it considers them necessary to deter unmeritorious appeals, given that a permission stage is being introduced. (Recommendation, Paragraph 78)

Audio recording of magistrates’ court proceedings will require significant investment in infrastructure, secure storage systems and transcription. Based on recent experience, we are sceptical that HMCTS will be able to ensure that all magistrates’ courts can be readily equipped with the necessary facilities prior to the commencement of the bill. (Conclusion, Paragraph 84)

The government must set out in detail how it expects to introduce audio recording across the magistrates’ court estate and how recordings will be stored, accessed and transcribed to demonstrate that the necessary systems will be fully operational before the provisions come into force. The government must also set out precise costings for the introduction and maintenance of audio recording in the magistrates’ court. (Recommendation, Paragraph 85)

The shift away from appeal by way of rehearing to review will require magistrates to provide more detailed reasons for their decisions and legal advisers to provide robust written advice to withstand judicial scrutiny on appeal. As Sir Brian Leveson himself observed in his 2015 Review, if reasons provided by the bench were subject to greater scrutiny on appeal, “more time would be taken fashioning and deploying them: to that extent, the restriction could be counter-productive”. (Conclusion, Paragraph 86)

The government must clarify whether it intends to require magistrates to give detailed written reasons for their decisions for the purpose of facilitating appeals. If so, the government should specify the extent of the reasons required and set out the training and resources allocated to magistrates to support this. (Recommendation, Paragraph 87)

Sir Brian considered and rejected judge-alone appeals, noting in particular the value of magistrates’ involvement in appeals against sentence and exercises of discretion. The government has not given any explanation for this departure or cited evidence that the participation of magistrates in appeal hearings contributes to delays. (Conclusion, Paragraph 92) 91

The government must set out its basis for departing from Sir Brian Leveson’s recommendation that magistrates should continue to sit alongside judges in appeals. (Recommendation, Paragraph 93)

The youth court occupies a distinct position within the magistrates’ court system, dealing with serious cases involving some of the most vulnerable defendants in the criminal justice system. As 90% of children and young people are tried in the youth courts, any reforms to the magistrates’ court appeal process are likely to disproportionately affect them. Care must therefore be taken to ensure that children and young people are not disadvantaged as a consequence of these changes. (Conclusion, Paragraph 99)

The government must set out what specific consideration has been given to the impact of the proposed reforms on children and young people tried in the youth court. In particular, the government must set out how it intends to mitigate the risk of a child or young person turning 18 during the appeals process. (Recommendation, Paragraph 100)

The government has acknowledged that, as more cases are dealt with in the magistrates’ courts, a greater proportion of defendants are likely to be ineligible for criminal legal aid than would have been had their case been heard in the Crown Court. It therefore follows that more defendants will be required to formulate grounds of appeal without legal representation in order to seek access to the Crown Court. There is a risk that inadequately drafted applications could increase the administrative burden on the Crown Court and the Crown Prosecution Service, requiring additional time to assess grounds that are poorly articulated rather than unmeritorious. (Conclusion, Paragraph 102)

While we welcome the minister’s stated intention to ensure that legal aid provision is “as broad as it needs to be”, we are concerned that the government intends to wait until after the bill has passed before determining whether changes to legal aid provision are required. The government has not confirmed whether it intends to review criminal legal aid eligibility thresholds, nor whether it accepts Sir Brian Leveson’s recommendation that those thresholds should be increased. The government must clarify its position on both issues and set out how it will ensure that defendants are not unfairly disadvantaged in accessing appeal rights as a result of these reforms before the bill is enacted. (Recommendation, Paragraph 103) 92 The Crown Court

The evidence submitted to the Committee indicates that the allocation process in the Crown Court could consume a significant amount of court time and judicial resource. Given that the aim of the bill is to save time in the Crown Court, it is troubling that the provisions on allocation will lead to court time being consumed in considering where the case will be tried rather than deciding cases. The Sentencing Council’s guidelines on allocation will be critical to ensuring that the process works effectively. (Conclusion, Paragraph 117)

The sole reliance on using the likely length of sentence to determine allocation to the Crown Court Bench Division (CCBD) will cause problems. A defendant with several previous convictions is more likely to receive a jury trial than a defendant without any. Children are less likely than adults to receive a jury trial. Sir Brian Leveson recommended that the judge making the determination on allocation should be able to consider “broader issues of legal principle including the likely complexity of the case based on factors such as the number of live witnesses and the volume of expert evidence”. (Conclusion, Paragraph 118)

Sir Brian Leveson originally proposed the three-year threshold alongside his recommendation for magistrates’ sentencing powers to be fixed at 12 months. If the maximum is increased to 24 months, cases of up to two and a half years could be retained by the magistrates’ court, which would appear to leave the CCBD with only a narrow tranche of potential cases. (Conclusion, Paragraph 119)

The evidence received suggests that a system of judge only trials is likely to be fairer and more efficient if defendants can elect for judge only trials. Although this would be in tension with the government’s view that only the courts should decide on allocation, there is merit to considering whether any alternative allocation mechanisms used in other jurisdictions would be fairer and more efficient. (Conclusion, Paragraph 120)

There are likely to be unintended policy consequences that flow from the three-year threshold. For example, when the government is deciding on the proposed statutory maximum custodial sentence for a new criminal offence, it is possible that it may be influenced by the three-year threshold so as to ensure that cases can be tried in the CCBD rather than by jury trial. Similarly, the threshold could have an indirect influence on the work of the Sentencing Council when producing guidelines for specific offences. (Conclusion, Paragraph 121) 93

The government must consider whether relying on the three-year sentence threshold is the right approach to allocating either-way cases to judge only trial in the Crown Court. In particular, the government must ensure alternative criteria are included to enable the judge responsible for allocation to decide that a case with a likely sentence of three years or less should be tried by a jury. (Recommendation, Paragraph 122)

The determination whether to allocate an either-way case to the Crown Court Bench division will have significant implications for the defendant and everyone else involved in the case. The determination will be based on an early assessment of the circumstances of a case and may, in some situations, involve complex analysis and difficult judgments. As a result of both of these factors, it seems anomalous that it would not be possible to challenge the determination by way of appeal. There is also uncertainty as to whether allocation decisions in the Crown Court will be capable of being judicially reviewed. (Conclusion, Paragraph 123)

The government must ensure that the bill clarifies beyond doubt whether allocation decisions in the Crown Court can be subject to judicial review. (Recommendation, Paragraph 124)

The bill should be amended so that cases involving child defendants cannot be allocated to the Crown Court Bench Division. (Recommendation, Paragraph 125)

We are concerned by the potential complexity of the framework for the reallocation of cases in clause 3 of the bill. Some of the complexity appears to stem from the bill’s approach to allocation. If the Crown Court has more discretion to decide when a case should be allocated to a jury trial, that might reduce the instances where the reallocation process would be required. (Conclusion, Paragraph 129)

We accept that the new arrangements should apply to defendants who are yet to be arraigned in the Crown Court. However, in our view, it is unfair to reallocate those cases that have already had their Plea and Trial Preparation Hearing and are expecting to face a jury trial. (Conclusion, Paragraph 134)

The provisions on judge only trials must only apply to cases yet to be arraigned on or after the day on which they are brought into force. (Recommendation, Paragraph 135)

The definition of complex and lengthy cases in clause 4 leaves open a number of important questions that the courts will have to resolve. For example, what level of complexity will be deemed inappropriate for trial by jury, and how long is too long for a trial to be conducted by a jury? (Conclusion, Paragraph 141) 94

Given the difficulty of defining these concepts, in our view, it should be possible to appeal, or challenge by way of judicial review, the decision to make, or not make, an order that a complex and lengthy case should not be conducted with a jury. (Recommendation, Paragraph 142)

The power in Schedule 1 could be used by a future government to add offences which go beyond the dishonesty offences currently listed. (Conclusion, Paragraph 143)

The power to add offences to Schedule 1 should be amended to limit the scope of the power. The power should be limited so that only dishonesty offences can be added to Schedule 1. (Recommendation, Paragraph 144)

Reasoned judgments in the Crown Court will help to make criminal courts more transparent. We accept that in some cases the requirement will not be unduly onerous, but there are likely to be cases where the need to provide a judgment will be an additional burden for the judge that they would not have had if the case had been tried with a jury. It is surprising to us that the government has not sought to quantify how much additional judicial resource the requirement to produce a judgment will require. (Conclusion, Paragraph 151)

The government must work with the judiciary to produce an estimate of the amount of judicial time that will be needed to produce judgments in all judge only trials in the Crown Court each year. (Recommendation, Paragraph 152)

The predicted 20% time saving of judge only trials compared to jury trials has played a significant role in the public debate on the bill. In our view, the government should have put forward a more concrete evidential basis for the time-saving benefits of judge only trials alongside the bill. (Conclusion, Paragraph 157)

It is plausible that judge only trials will prove to be more efficient than jury trials, as the evidence shows they are in Canada. However, to ensure that their operation enhances the overall efficiency of the criminal courts, their introduction must be carefully managed to avoid introducing unnecessary complexity that could undermine any time-savings gained. Under the proposals in the bill, it will be possible for an either-way case with a likely sentence of between two and three years to be subject to two separate allocation determinations, in the magistrates’ court and the Crown Court, before the case is tried. (Conclusion, Paragraph 158)

The Government must include a requirement in the bill that the department review the first year of the operation of judge only trials in the Crown Court. (Recommendation, Paragraph 159) 95 Equality

If the magistrates’ court is given the power to hand down sentences of up to 24 months, the discrepancy in the legal aid thresholds between the magistrates’ court and the Crown Court will need to be reformed. (Conclusion, Paragraph 166)

The government must amend the legal aid means test in the magistrates’ court so that anyone charged with an either-way offence with the possibility of a sentence of 12 months or more in custody is subject to the same threshold that would apply if the case were tried in the Crown Court. The government must ensure that recommendations in the Means Test Review to change the legal aid thresholds in the magistrates’ court are implemented before the provisions in the Bill are brought into force. The government must provide a detailed timeline for when the relevant changes to legal aid eligibility will be made. (Recommendation, Paragraph 167)

We welcome improvements to the diversity of the magistracy made since the Lammy Review in 2017. We are, however, concerned that the removal of the right to elect has the potential to increase mistrust in the criminal justice system among the Black community. (Conclusion, Paragraph 172)

The government must ensure that any new processes for recruiting magistrates focus on recruiting groups that are currently not well represented in the magistracy. (Recommendation, Paragraph 173)

The fact that only 1% of Crown Court judges are Black and that this has not changed since 2015 is shocking. In our view, the lack of progress on the number of Black judges in the Crown Court is evidence that something is seriously wrong with the process of appointing the judiciary. While successive Chief Justices have acknowledged this issue, the persistence of such stark underrepresentation demonstrates that efforts to date have failed to deliver meaningful change. We are not convinced that the current schemes and initiatives will be sufficient. (Conclusion, Paragraph 185)

We recommend that the government works with the judiciary and the Judicial Appointments Commission to develop and formalise clearer progression routes from magistrates’ court and other lower courts and tribunals into the senior judiciary. The government must set itself a clear, national target to achieve a representative judiciary and magistracy by