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Judicial Review And Courts Act 2022

Contents

Schedules

Schedule 1: Documents to be served in accordance with Criminal Procedure Rules

  1. Paragraphs 1 to 14 amend references to service requirements in existing legislation to enable service of documents to be in accordance with Criminal Procedure Rules (CrimPRs). As a result, service can be effected by whichever means are prescribed in the Rules, including by electronic means.

Schedule 2: Criminal Procedure: consequential and related amendments

  1. This schedule makes various amendments to other legislation consequential on, or related to, sections 3, 4, 6 to 8, 9, 10, 11, and 12.
Amendments in connection with Section 3: Automatic online conviction
  1. The Magistrates’ Court Act 1980 ("the MCA 1980") is amended as set out in -paragraph 1(2) to (6). This includes amendments to section 16A(1) to provide that a magistrates’ court cannot try a case under the Single Justice Procedure (SJP) if the accused has accepted the automatic online conviction option; amendments to section 89 (transfer of fines within England and Wales) and section 90 (transfer of fines to Scotland and Northern Ireland) ensure they apply to a penalty imposed by a virtue of a conviction under 16H of the Act; and amendments to section 150 to clarify the definition of "fine" includes those imposed under the new automatic conviction provisions (paragraph 1(6)).
  2. Section 108 of the MCA 1980 is also amended so that any person convicted under section 16H of that Act may not appeal to the Crown Court against the conviction or sentence, unless they have been re-sentenced by a magistrates’ court under new section 16M(5)(b).
  3. Section 8 of the Road Traffic Offenders Act 1988 (duty to include date of birth and sex in written plea of guilty) which extends and applies to England, Wales and Scotland is amended by paragraph 2 to ensure that this applies appropriately to the new online conviction procedure, which will require the provision of a date of birth by the accused in relation to certain road traffic offences.
  4. Schedule 5 to the Courts Act 2003, which deals with arrangements for the collection of fines and other sums imposed on conviction, is amended as set out in paragraph 3(2) to (10) to apply its provisions as appropriate to those individuals who have been given a notice of conviction and penalty (within the meaning of section 16L of the MCA 1980). The intention is that the enforcement powers available in respect of court-imposed fines will also be available in respect of penalties issued under the automatic online conviction procedure.
  5. Schedule 6 to the Courts Act 2003, which deals with discharge of fine by unpaid work, is amended in paragraph 3(11) to ensure this provision also applies to those individuals who have been given a notice of conviction and penalty (within the meaning of section 16L of the MCA 1980).
  6. The Criminal Justice Act 2003 is amended by paragraph 4(2) to (4) to ensure the provisions apply appropriately to the new automatic online conviction procedure. Section 29 which provides for criminal proceedings to be commenced by way of written charge accompanied either by a requisition or by a SJP notice, is amended by paragraph 4(2) to clarify that a SJP notice may be issued only if the offence is summary-only and non-imprisonable, and where the accused has attained the age of 18 (or is a body corporate).
  7. Section 29 of the Criminal Justice Act 2003 is further amended to require that the SJP notice must also explain, if the specific offence is specified in regulations under section 16H(3)(a) of the MCA 1980 and the relevant prosecutor deems it appropriate for the automatic online conviction option to be offered (see new subsection (2C)), the steps the accused can take if they wish to be offered the automatic online conviction option, and that if they are offered and accept that option, the requirements under the SJP will no longer apply (see new subsection (2D)). New subsection (2E) also provides that the Lord Chancellor can make provisions about the factors that should be taken into account by the relevant prosecutor when considering whether a specified offence is appropriate for the automatic online conviction option.
Amendments in connection with sections 6 to 8
  1. Paragraph 6 amends sections 17A, 18, 22 and 23 of the MCA 1980 to take account of the new ‘plea before venue’ procedures which enable a defendant in an either-way case to indicate a plea (new section 17ZA) and decide allocation (new section 17ZC) in writing or online without the need for a court hearing; and which enable the magistrates’ court to "invite" a defendant, who does not indicate a guilty plea, to indicate whether they would refuse summary trial if this was later offered to them, before the court proceeds with the pending "allocation decision" procedure under sections 19 to 23 of the MCA 1980 (new section 17BA).
  2. Paragraph 6(8) amends section 20 of the MCA 1980 which deals with allocation procedures where a summary hearing is deemed suitable. An indication of guilty plea in writing/online must be confirmed by the defendant at his or her first appearance in person at court. New subsection (7B) provides that, in circumstances where a defendant has indicated a guilty plea online/in writing but then goes on to plead not-guilty at trial, the plea and hearing become void. The court must revisit the allocation decision and ask the defendant whether they would consent to a summary trial. If the defendant consents the court must adjourn and make arrangements for a summary trial. If the defendant does not consent, the court must send the case to the Crown Court for jury trial.
  3. Paragraph 6(11) inserts new subsection (1A) of section 24A of the MCA 1980, which sets out the court process for taking an indication of plea from a child or young person under 18 years appearing before a magistrates’ court and deciding whether the defendant should be sent to the Crown Court. New subsection (1A) means that no allocation process is needed at a hearing where allocation has been determined in writing/online, unless the defendant withdraws the written indication on which the written/online allocation proceedings were based in time.
  4. Paragraph 6(12) amends section 27A of the MCA 1980 to enable a magistrates’ court to transfer a case at any time before or at the beginning of the trial to another magistrates’ court.
  5. Paragraph 8 amends section 50A of the Crime and Disorder Act 1998 ("the CDA 1998") which sets out the process for allocating either-way cases where a defendant appears before the magistrates’ court. It inserts new subsection (6) to disapply this procedure in cases where an adult, or child or young person under 18 years old, chooses to engage with the plea-before-venue process in writing/on-line.
Amendments in connection with section 9
  1. Paragraph 9 makes technical amendments to the MCA 1980 in connection with Section 9 of the Act.
Amendments in connection with section 10
  1. The MCA 1980 is amended by paragraph 10(2) and (3) to reflect the changes made to section 51 and 51A of the CDA 1998; this includes section 24A(1)(b) (child or young person to indicate intention as to plea in certain cases).
  2. The CDA 1998 is amended by paragraph 11(2) and (3) to amend the provisions in section 50A about when related offences are to be considered, in order to reflect that the rules about related offences will in future be set out in the CrimPRs.
Amendments in connection with section 11
  1. Schedule 3 to the CDA 1998, which deals with the procedure where individuals are sent to the Crown Court for trial, is amended by paragraph 12(2) and (3) so as to remove provisions about circumstances in which an offender can be sent back to a magistrates’ court following changes to an indictment. Those provisions are unnecessary in the light of new general power of the Crown Court to remit such cases (as conferred by section 11).
  2. Section 122(1) of the Coroners and Justice Act 2009, which deals with allocation guidelines, is amended by paragraph 13 to reflect that the Crown Court must have regard to any allocation guidelines under new section 46ZA(5)(b) of the Senior Courts Act 1981 and new section 25A(3)(b) of the Sentencing Code.
  3. Section 26 of the Sentencing Code (provision about remission by Crown Court) is amended by paragraph 14 to reflect the addition of section 25A into the Sentencing Code which provides the Crown Court with a new power to remit adult offenders to a magistrates’ court for sentence .
  4. The CDA 1998 is amended as set out in paragraph 15(2) to (4) to clarify that the relevant provisions apply in relation to a case sent to the Crown Court under new subsection (1A) of section 47. This includes section 51D, which deals with the notice to be given on sending to the Crown Court for trial; section 52, which deals with supplementary provisions about sending to the Crown Court for trial; and, Schedule 3, which deals with the procedure where accused is sent to Crown Court for trial.
Amendments in connection with Section 13
  1. Paragraph 16 amends section 133(1) and (2) of the Magistrates’ Courts Act 1980 to ensure that provision about consecutive sentences is read in light of the new general limit in a magistrates’ court.
  2. Paragraphs 17 and 18 amend section 141(5A) of the Environmental Protection Act 1990 and section 113(10A) of the Scotland Act 1998, both of which contain powers to create offences. The amendments provide that any offences created using those powers should carry a maximum term on summary conviction of the general limit in a magistrates’ court.
  3. Paragraph 19 (1) and (2) amends section 155(2) of the Criminal Justice Act 2003 to ensure that this power to change the limit on consecutive sentences set out in section 133(1) and (2) is read in light of the general limit in a magistrates’ court. Paragraph 19 (3) amends section 283 of the Criminal Justice Act to omit the power to create new offences, which is now contained within subsections (8) and (9) of Section 13)
  4. Paragraph 20 omits paragraph 24 of Schedule 22 to the Sentencing Act 2020 and replaces it with paragraph 24A, namely a power to increase the limit on magistrates’ sentencing powers for summary offences only
  5. Paragraph 21 addresses an anomaly in Section 42 of the Gambling Act 2005. It will change the maximum penalty upon summary conviction for the triable either-way offence of Cheating, from 51 weeks, to "the general limit in a magistrates’ court".

Schedule 3: Practice directions for online proceedings

  1. In relation to Part 2, Chapter 2 of the Act, Part 1 of this Schedule allows the Lord Chief Justice or his nominee, with the approval of the Lord Chancellor, to issue practice directions in civil and family proceedings governed by Online Procedure Rules. The Lord Chancellor’s approval of a practice direction is not required where the practice direction consists of guidance about the application and interpretation of the law or the making of judicial decisions. Such directions require consultation with the Lord Chancellor as well as the approval of the Lord Chief Justice. Part 2 of Schedule 3 sets out similar procedures in respect of the First-tier and Upper Tribunals and Part 3 of Schedule 3 sets out similar procedures in respect of employment tribunals and the Employment Appeal Tribunal – save that it is the Senior President of Tribunals (or in some cases a Chamber President, or the President of the Employment Appeal Tribunal or a territorial President who may make directions, and directions under Parts 2 and 3 which require only consultation with (rather than approval of) the Lord Chancellor will require the approval of the Senior President of Tribunals, rather than the Lord Chief Justice.

Schedule 4: Online Procedure: amendments

  1. Schedule 4 makes amendments to the Employment Tribunals Act 1996, Civil Procedure Act 1997, Courts Act 2003 and Tribunals, Courts and Enforcement Act 2007 in relation to the power to make Employment Tribunal Procedure Rules, Civil Procedure Rules, Family Procedure Rules and Tribunal Procedure Rules respectively, and practice directions associated with those Rules, in order to ensure that "standard" Rules and Online Procedure Rules, and their associated practice directions, do not cut across each other. The amendments make similar provision for each Act amended, in each case (a) requiring the Rules to be framed so that they do not govern practice and procedure in "online proceedings" (by which is meant proceedings which have been specified for the purposes of section 19/OP2) except in so far as those proceedings are not, or cease to be, governed by Online Procedure Rules; and (b) making it clear that practice directions made under the powers in those Acts do not apply in relation to proceedings which are governed by Online Procedure Rules.

Schedule 5: Employment Tribunal Procedure Rules: Further provision

  1. Part 1 of Schedule 5 relates to making and content of Employment Tribunal Procedure Regulations. Paragraph 1 inserts into the Employment Tribunals Act 1996 (the Act) the new Schedule A1 which is introduced by subsection (3) of the new section 37QA (inserted by subsection (4) of section 33). The new Schedule A1 makes a range of additional provision in relation to the making and content of Employment Tribunal Procedure Rules (covering such matters as the objectives of the Tribunal Procedure Committee in making Employment Tribunal Procedure Rules, the things Employment Procedure Rules may contain and the process for making Employment Procedure Tribunal Rules), which mirrors the corresponding provisions of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 in relation to Tribunal Procedure Rules, so that the powers and processes for Employment Tribunal Procedure Rules are appropriately aligned with those for making Tribunal Procedure Rules.
  2. Part 2 of Schedule 5 relates to other amendments of the Employment Tribunals Act 1996.
  3. Paragraph 2 is introductory and provides for the Employment Tribunals Act 1996 to be amended as provided in the subsequent paragraphs, many of which simply amend existing provision which operates by reference to Employment Tribunal Procedure Regulations so that it operates instead by reference to "Procedure Rules" (i.e. Employment Tribunal Procedure Rules).
  4. Paragraph 3 makes amendments to provisions about practice directions. Sub-paragraphs (1) to (5) amend the Act to provide for the Senior President of Tribunals and the territorial Presidents to make practice directions about the practice and procedure of employment tribunals. It also provides the power to vary or revoke directions made in exercise of the power, and the power to make different provision for different purposes (including different provision for different areas). Sub-paragraph (6) provides that directions made by the territorial Presidents may not be made without the approval of the Senior President of Tribunals, and the Lord Chancellor.
  5. Paragraph 4 amends the Act to make provision about mediation. Sub-paragraphs (1) and (2) amend the Act to provide that anyone making Procedure Rules or practice directions must give regard to the principles that a) mediation can only take place by agreement between parties and b) the outcome of mediation should not affect the outcome of the proceedings. Sub-paragraph (3) sets out that practice directions may provide for members to act as mediators in relation to disputed matters in a case that is the subject of proceedings; and sub-paragraph (4) that a member may act as a mediator in a case even though the member has been selected to decide matters in the case.
  6. Paragraph 5 makes provision about preliminary hearings. Sub-paragraphs (1) and (2) make amendments to the Act to provide that if Procedure Rules authorise an employment tribunal to carry out a preliminary hearing, Procedure Rules may make provision for enabling the powers prescribed by the Procedure Rules to be exercised in connection with the preliminary hearing; and sub-paragraph (3) makes provision that the Procedure Rules may include provision for authorising any tribunal carrying out a preliminary hearing under the regulations to require a party to the proceedings to pay a deposit of an amount not exceeding £1,000 as a condition of: continuing to participate in those proceedings, or pursuing any specified allegations or arguments; and for prescribing the manner in which the amount of the deposit is determined, the consequences of non-payment, and the circumstances in which a deposit may be refunded or be paid over to another party. Sub-paragraph (4) sets out that Procedure Rules cannot increase the deposit above £1,000; sub-paragraph (5) sets out that Procedure Rules may not enable a power of striking out to be exercised in a preliminary hearing on a ground which does not apply outside a preliminary hearing; and sub-paragraph (6) transfers the power to increase the maximum deposit from the Secretary of State for BEIS to the Lord Chancellor. Sub-paragraph (7) omits the power to include in ET procedure regulations provision for authorising an employment tribunal to hear and determine separately any preliminary issue meeting a description set out by the regulations. Sub-paragraph (9) defines ‘preliminary hearing’ as a hearing in proceedings before an employment tribunal which takes place at a time before a hearing held for the purpose of determining them.
  7. Paragraph 6 makes provision in relation to proceedings in which issues concerning national security arise, so that provision which may presently be made in Employment Tribunal Procedure Regulations by the Secretary of State is made instead in regulations made by the Lord Chancellor.
  8. Paragraph 7 repeals section 10A of the Act, relating to the ability of employment tribunals to sit in private where confidential information is involved, which is covered by more general provisions about the things Employment Tribunal Procedure Rules may (like Tribunal Procedure Rules) contain.
  9. Paragraphs 8 and 9 amend provisions permitting Employment Tribunal Procedure Regulations to restrict publicity in cases involving sexual misconduct and disability respectively so that they permit this to be done by "Procedure Rules".
  10. Paragraph 10 introduces the term "reconsider" as an equivalent to the term "review", to account for equivalent terminology used in the ETs and EATs.
  11. Paragraph 11, similarly to paragraphs 8 and 9, amends provisions about Employment Tribunal Procedure Regulations regulating matters relating to costs and expenses so that they refer instead to "Procedure Rules" regulating those matters; and paragraph 12 likewise amends provisions permitting Employment Tribunal Procedure Regulations to make provision for payments in relation to preparation time to refer to "Procedure Rules" making such provision.
  12. Paragraph 13 makes amendments with the effect of transferring the power to make orders in respect of interest payable in pursuance of decisions of employment tribunals from the Secretary of State for BEIS to the Lord Chancellor.
  13. Paragraph 14 amends provisions permitting the recovery through the county court of sums payable in pursuance of a decision of an employment tribunal in accordance with employment tribunal procedure regulations, to refer to this being in accordance with "Procedure Rules".
  14. Paragraph 15 amends provisions permitting Employment Tribunal Procedure Regulations to make provisions relating to the requirement to contact ACAS before instituting proceedings, to refer instead to regulations made by the Secretary of State.
  15. Paragraph 16 amends provisions requiring Employment Tribunal Procedure Regulations to make provisions relating to conciliations procedures, so as to refer to "Procedure Rules"; and paragraph 16 similarly amends provisions permitting Employment Tribunal Procedure Regulations to provide time limits for an application for a declaration that a settlement sum is not be recoverable under the general law of contract, so they refer to "Procedure Rules".
  16. Paragraph 18 amends provisions relating to Practice Directions for the EAT so that they describe the power to make directions (as to practice and procedure) consistently with other powers to make practice directions.
  17. Paragraph 19 inserts into the Act a new section 30A making provision about EAT proceedings in which issues relating to national security arise. Subsection (1) of the new section permits the Lord Chancellor to make provisions about the composition of the EAT where the proceedings meet the criteria set out in subsections (2) and (3) – subsection (2) covering particular Crown employment proceedings where a Minister considers it expedient in the interests of national security and subsection (3) providing that an order under this section may be made by a judge of the EAT if the judge considers it expedient in the interests of national security. Subsection (4) sets out that the Lord Chancellor has the power to make the same regulations for the EAT as those under the national security provisions contained in sections 10(5), (6) and (7) for ETs; and subsection (5) permits references to things done under the national security provisions contained in sections 10(5) and (6) to be read across to the things done under subsection (4). Subsection (6) sets out that the powers set out in Section 10B to restrict publicity in ET cases involving national security also apply to the EAT. Subsection (7) sets out that references in the national security provisions contained in section 10B are to be read across to subsection (4) where applicable.
  18. Paragraphs 20 and 21 update provisions permitting Appeal Tribunal procedure rules to restrict publicity in cases involving sexual misconduct or disability respectively so that they refer to "Procedure Rules".
  19. Paragraph 22 updates provisions relating to permitting Appeal Tribunal procedure rules to regulate matters relating to costs and expenses so that they refer to "Procedure Rules".
  20. Paragraphs 23 to 26 make amendments to Part 3 of the Act, centred on a new section 37QB of the Act, providing powers for the Lord Chancellor to amend legislation in connection with Procedure Rules (on a similar model to that provided for Tribunal Procedure Rules. Paragraph 23 simply amends the heading of Part 3 to refer to "General and Supplementary". Paragraph 24 inserts the new section 37QB, providing powers for the Lord Chancellor to amend, repeal or revoke any enactment in order to facilitate the making of Procedure Rules or in consequence of the provisions set out in Schedule A1 on the making of Procedure Rules or of any Procedure Rule. It also defines "enactment" as meaning any enactment whenever passed or made, including an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978. Paragraph 25 makes amendments to ensure that any order making amendments to primary legislation must be by the affirmative procedure. Paragraph 26 updates section 42(1) to remove definitions of Appeal Tribunal procedure regulations" and "employment tribunal procedure regulations" and replace them with the definition of Procedure Rules for the ET and EAT. It also removes an extraneous "and" immediately prior to the definition of "trade union". It also inserts a definition of "Tribunal Procedure Committee" to mean the committee of that name constituted under Part 2 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.
  21. Part 3 of the Schedule outlines related amendments of other legislation. Paragraph 27 amends the Employment Rights Act 1996 to provide that, where an ET determines a complaint related to unfair dismissal in the same proceedings as a question around eligibility for or the amount of a redundancy payment, the provisions setting out that the employee shall not, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy have no effect insofar as it relates to the unfair dismissal proceedings.
  22. Paragraph 28 amends the Tribunals, Courts and Enforcement Act 2007 to set out that the Senior President of Tribunals cannot delegate the functions set out in paragraph 2 of Schedule A1 of the Employment Tribunals Act 1996.
  23. Paragraph 29 amends the Tribunals, Courts and Enforcement Act 2007 to provide for additional members to be added to the TPC, increasing the number of persons who may be appointed by the Lord Chancellor to four and requiring that at least one of the appointees must have experience of practice in the ET and the EAT or experience of advising persons involved in ET and EAT proceedings. It also increases the number of persons appointed by the Lord Chief Justice from three to four, one of whom must be a judge, or other member, of the Employment Appeal Tribunal or a member of a panel of members of employment tribunals (whether or not a panel of Employment Judges).

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