The CBA Briefing: the Courts and Tribunals Bill returns to the Commons tomorrow

Fees Update

We are still awaiting the Government’s decision on the final allocation of the 34 million pounds increase in AGFS funding initially announced in December last year. A full consultation response was submitted by the CBA in August.

The CBA have been provided with an update by the MoJ and we hope to see the outcome within the next few weeks. The consultation response will be published alongside a new set of Regulations in order to ensure swift implementation.

We are continuing to discuss the implications of AGFS changes with the CPS. The DPP has committed to maintain ‘effective parity’ with any increase by the LAA in AGFS rates. A lot of work has already been undertaken within the CPS to study the LAA proposals and the hope on both sides is that we would be able to move forward quickly with matching changes to the scheme.

Criminal Pupillage Matched Funding – Last Chance to Apply

A reminder to all chambers that applications to the Council of Inns of Court (COIC) for matched funding for criminal pupillages closes on 17th October 2026.

Details of the scheme are on the COIC scheme page.

Treasury Counsel Recruitment

Applications for appointment as Senior Treasury Counsel and Treasury Counsel Monitorees are now open.

The application windows for both competitions close at 23:59 on 26th October 2026.

The CPS say this is an exciting opportunity for advocates to operate in an environment where support and personal development are prioritised. Successful candidates for either position would become part of a select team who prosecute some of the most serious and complex cases in England and Wales.

Applications are open to all advocates who meet the eligibility criteria, not just those who currently prosecute. The CPS are positively looking for candidates from the widest possible reach. This includes advocates based outside of London.

The campaign is looking for the brightest and best applications, regardless of background or location.

Barristers applying to the scheme must have been in practice (continuously or non-continuously) for a minimum of:

• 15 years for Senior Treasury Counsel
• 10 years for Treasury Counsel Monitorees

The CPS are also promoting these opportunities through the CPS and AGO websites. They will be circulating details directly to Advocate Panel members.

Application packs are available by request through the link on the Treasury Counsel page, or a recruitment pack can be requested here.

Email queries are welcomed and should be directed to [email protected].

Courts and Tribunals Bill

The Bill returns to the Commons tomorrow (Tuesday 13th October 2026).

Last week we noted the Government’s abandonment of the proposed Crown Court Bench Division, which would have required Crown Court trials with a sentence under 3 years’ imprisonment to be tried by Judge-alone.

The CBA’s campaign on the Bill continues as the focus now shifts to other measures which are designed to remove the right to trial by jury.

The Bar’s joint position on Third Reading

The CBA, Bar Council and Circuit Leaders continue to stand together in opposition to changes which will reduce existing rights to trial by jury. The Bar Council have circulated a briefing note to MPs setting out the Bar’s joint position. A copy of the briefing note is here.

Please share the briefing note with any MP contacts you may have.

The CBA opposes removal of Juries in Fraud and other Complex Cases

The Government has confirmed its intention to press ahead with Clause 4 of the Bill, which removes the right to trial by jury in ‘complex and lengthy cases’.

Commentary has focused on the impact on Fraud cases, which would immediately fall within scope. However, the effects would likely become much wider.

The Government want to be given the power to extend the scope of Judge-only trials to other forms of complex cases in later years. Clause 4 would give them the power to do so by statutory instrument. Only homicide and sexual offences would be out of scope.

Judge-only trials could be extended, for example, to cases of Misconduct in a Public Office where politicians and other powerful people are under scrutiny. It could be expanded to conspiracy cases, to protest cases, to terrorism or to drug trafficking. Complex is not defined.

We have to contemplate not just what the present Government might do with a power of this kind but what future Governments might do. We only have to look to the USA to see the danger in granting executive powers without any Parliamentary check, especially to politicians who may be less respectful of the independence of judges and prosecutors.

The CBA opposes the creation of a two-tier justice system within the Crown Court, whether for fraud or any other offence. However rich or powerful someone should be, people charged with serious crime should face the same process of trial before a jury of their peers. The jury is the democratic element which ensures that justice is done in the interests of the public.

Confidence in the Criminal Justice system would be undermined if certain types of case were seen as receiving special treatment. Scrutiny would become more difficult, with written evidence taken into account without being aired in open court. Conspiracy theories would be encouraged if a single person was taking the decision alone.

An important commentary on the changes came from the City of London Law Society this week. They wrote:

“The City of London Law Society warns that retaining judge-only trials for fraud offences is unprincipled, unsupported by evidence, and risks undermining the rule of law.

The government’s partial retreat on jury trial reform is welcome, but serious concerns remain that there are proposals that “technical and lengthy fraud and financial offences” will still be heard by a judge alone under amendments to the Courts and Tribunals Bill.

…

The response of The City of London Law Society’s Corporate Crime and Corruption Committee to Part 1 of the Leveson Review was unequivocal: “there appears to be no evidence that trial by jury of serious and complex fraud is a cause of, or a significant contributor to, the current crisis

…

The timing of this announcement is particularly troubling given the Supreme Court’s recent judgment in R v Hayes & Palombo — the Libor cases — in which the Court found that successive judges had misdirected juries and that the Court of Appeal had erred in failing to uphold defendants’ appeals.

The Supreme Court’s judgment demonstrates precisely the opposite of what fraud trial reform proponents argue. The Libor cases do not demonstrate that juries cannot handle complex fraud cases. They demonstrate that judges can — and do — make serious errors in directing juries.

Removing the jury does not remove the risk of judicial error; it removes the safeguard of twelve independent minds assessing the evidence, and it removes the defendant’s most fundamental protection against wrongful conviction.

The Committee has consistently argued that the backlog crisis is caused by under-resourcing, disclosure failures in the digital age, reduction in court sitting days, police capacity issues and court infrastructure — not by jury trials. The government’s own announcement acknowledges this, promising millions in technology investment, expanded judicial resources and structural reform.

Those are the right measures. The CLLS strongly supports investment in AI-powered disclosure tools, remote participation for expert witnesses, enhanced preparatory hearings under the Criminal Justice Act 1987 framework, and expanded court sitting hours. These are evidence-based solutions that address the actual causes of delay.

Retaining judge-only trials for fraud — on a justification that has now shifted from backlog reduction to juror convenience — is an unprincipled anomaly that should be removed from the Bill entirely.

The City of London Law Society, Corporate Crime and Corruption Committee

The full article is here.

The Government responds to the Justice Select Committee’s Report

On 5th October 2026, the Government published its official response to the Justice Select Committee’s report on the Courts and Tribunals Bill.

A copy of the original report, published on 10th June 2026, is here, and a copy of the response is here.

The Justice Select Committee (‘JSC’) is an all-party group of MPs which at the time of the report was chaired by Andy Slaughter MP (now the Solicitor General). The members include a number of MPs from the legal professions as well as others with experience of working in the courts. They received written and oral evidence from a range of contributors about the potential effects of the Bill.

The JSC’s report was a detailed critique of the Bill. It highlighted the far-reaching effects of the proposals and questioned the evidence in support. The report raised a number of concerns, including the following:

• Magistrates’ courts will not be able to cope with the additional caseload of more serious, more complex cases which the Government proposes to allocate to them.
• The Government’s plan to recruit 21,000 magistrates by 2029 is unrealistic.
• They expressed concern about the removal of the right to elect and the potential impact.
• They highlighted the importance of appeals to the Crown Court, the fact that they are resolved swiftly and the high success rate of appeals.

The Government have now responded to these concerns.

The CBA’s assessment is that the Government’s response does not do justice to the important questions and concerns raised by the JSC. They undertook a process of careful scrutiny and they deserve cogent answers.

Many of the Government’s answers amount to little more than bluster. Direct questions were asked but straight answers have not been given. We highlight a few examples below.

JSC/1 – Removal of the right to elect and the lack of discretion

The JSC raised concerns about the lack of discretion concerning allocation to the Crown Court if the right to elect is removed. They said:

“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.’

The Government’s response is simply that they ‘do not agree’. They say that the Court will be able to make the decision in accordance with the existing legislation.

The existing legislation is precisely what the JSC were concerned about.

Under existing law, Magistrates do not have a free choice whether to send a case to the Crown Court. The law only allows them to consider two questions:

(1) Will the outcome of the case ‘clearly’ be a sentence in excess of their maximum powers?

(2) Does the case involve ‘unusual legal, procedural or factual complexity’.

Magistrates are not entitled to consider any other factor, such as the previous good character of a defendant. They are not entitled to take into account consequences of conviction such as loss of employment, loss of reputation etc. They are not entitled to consider procedural differences, such as whether the defendant wants the case to go to the Crown Court so that they can make an application to dismiss the case on legal grounds – a procedure which is not available in the Magistrates’ Court.

Under existing law, this inflexibility does not matter because the right to elect serves as a safety valve. In any of those circumstances, a defendant can decide themselves to take the case to the Crown Court. If that right is taken away, we are left with an unjust and inflexible system.

The potential absurdities have been highlighted. It would mean that a defendant with a long record of convictions would qualify for trial by jury, in circumstances where a person with no convictions would be refused.

JSC/4 – The Magistrates Court cannot cope with the additional burden

The JSC were concerned that the Magistrates’ Court cannot cope with additional work, and ambitious recruitment targets are unrealistic. They said:

“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. 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 Government’s response is that they are “currently on track to meet the target to reach 21,000 magistrates in place by 2028-29.”

Unfortunately, the statistics do not bear the Government’s claim. It is bluster, unsupported by evidence.

Yes, the Government have recruited more magistrates, but at the same time many others have left. It is the net gain which matters.

In the past year, the net increase in the number of Magistrates appointed was 600 – less than 4%. To get to 21,000 magistrates they need a 40% increase. Appointing is only the first stage. New recruits also have to be trained, which typically takes a year.

The CBA strongly supports the Government’s ambition to increase the capacity of the criminal courts, but when it comes to justifying the radical changes in the Bill, they need to ground their proposals in reality.

JSC/5 – Changes to appeals should await the outcome of the Law Commissions’ Review.

Clause 7 of the Bill would remove the existing right to an appeal against Magistrates’ decision by way of re-hearing in the Crown Court.

The JSC recommended that any reform should await the outcome of the Law Commission’s review of Criminal Appeals.

The Government’s proposals go against the Law Commission’s provisional recommendations. In particular, the Commission has recommended retaining the automatic right of appeal because there is a high rate of success and the volumes of cases are low.

The Government’s response is that it wants to press ahead now because they believe that the appeals are a burden on the Crown Court, and that many are without merit.

The facts are these:

In 2025/26, there were 2,418 appeals against conviction, of which 672 were later withdrawn. Of the 1,746 contested appeals, 976 were allowed (a success rate of 56%).

In the same period, there were 2,518 appeals against sentence, of which 668 were later withdrawn. Of the 1,850 contested appeals, 1,850 were allowed (a success rate of 64%).

Put simply: the proportion of cases which are appealed is low, but the success rate of appeals is very, very high.

Changing the system will not reduce the burden on Crown Court judges. The Bill’s proposal is for a more complex scheme with multiple stages which will create more work both for the Magistrates Court and the Crown Court. It risks making backlogs worse, not better.

Equally troubling is the Government’s response at JSC/8, which queried whether the Government is going to require Magistrates to provide detailed reasons so that the merits of an appeal can be properly determined.

The Government’s answer is ‘no’. They say that challenges on grounds of adequacy of reasons can already be brought by way of an appeal to the High Court under the Case Stated procedure. They cite R (McGowan) v Brent Justices [2001] EWHC 814 (Admin) in which it was said that Magistrates do not have to give detailed judgments: they simply have to provide enough for a defendant to understand why they have been found guilty, and that can be done ‘in a few sentences’. However, in McGowan one of the justifications for that approach was that an aggrieved defendant can use the Case Stated procedure to obtain more detailed reasons after the event.

The Government is therefore answering the concern about adequacy of reasons by saying that an aggrieved defendant can appeal to the High Court instead, thereby forcing Magistrates to prepare a detailed Statement of Case. That is a much more expensive procedure for all parties, and would place an additional burden on the High Court. It amounts to saying “Let them eat cake”.

The Law Commission have rejected that approach and provisionally recommended the simplicity and low cost of the current system. We agree. One of the key principles of our justice system is that ordinary citizens should be able to access the courts so as to exercise their rights.

JSC/11 – Limited availability of Legal Aid in the Magistrates’ Court

A major concern of the JSC was the limited availability of Legal Aid in the Magistrates’ Court compared with the Crown Court. They recommended that if sentencing powers are to be increased, the discrepancy in availability of Legal Aid needs to be removed. This would affect those cases where the likely sentence is between 12 months and 2 years’ imprisonment.

The availability of legal aid is means tested in both the Crown Court and Magistrates’ Courts, but the upper income limit is much lower in the Magistrates’ Court (a cut off at 22,325 pounds annual disposable income, compared with 37,500 pounds in the Crown Court). This discrepancy has always been justified because the Crown Court deals with the more serious cases. That justification disappears if the serious cases are now going to be tried in the Magistrates’ Court.

The Government have not accepted the JSC’s recommendation to equalise the thresholds. They say:

“We are determined to deliver a system underpinned by fairness. Accordingly, we will be examining the measures currently in place for litigants in person at the magistrates’ court and considering additional options for support.”

In other words – let’s not worry that defendants facing up to 2 years in prison will not have legal representation. The Government will let them defend themselves instead.

What would these additional options to support litigants in person be? Information on a website? A set of FAQs? A helpline?

This is rough justice, 21st century style.

Legal aid for inquests: approved training courses

The Legal Aid Agency has published its final criteria for approving training courses in the new Inquests category of law. The application process for training providers opens shortly.

This matters to anyone thinking of supervising in the new category. There are two ways to meet the legal competence standard: attending an approved course, or inquest case experience. Those without the case experience will need the course, and the criteria are worth reading before committing to one.

The criteria are in the Agency’s news story, and the background to the new category is set out here.