Police, Crime, Sentencing and Courts Bill

Lord Judge Excerpts

Lords Hansard - part two & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Lord Judge (CB)]

My Lords, I participate in this debate and support this amendment with personal reluctance. I think I am allowed to say this: my wife spent the whole of her professional working life treating children born with genetic or birth injuries. Her whole ambition was that that little boy or girl should be able to lead a full and complete life as a member of the community. Some of them did lead absolutely full lives, but some were too—to use the word that was used in the days when she was working—disabled to do so. I know from her experience how crucial it is that opportunities are available to people who have either been born with or acquired disabilities of this kind so, on a personal level, I am reluctant.

However, on a professional level, I must remember that I served as a barrister, doing many jury trials, then as a judge, also doing many jury trials. I have dealt with interpreters of language and interpreters for the deaf. I will not say much more than Mr Pannick—the noble Lord, Lord Pannick—did, but I do want to say one or two things.

First, this paper misses that one of the most crucial facts in what a jury must decide is an analysis of who is telling the truth. It is obvious in almost every case. May I draw noble Lords’ attention to a case I had to deal with? A man was charged with rape. There was a long record; it was just after tape recorders were introduced and before the police had learned to realise that you do not bully people into confessions. There on the tape recorder was a clear admission: “I admit I raped her.” The counsel for the defendant gets up and says, “I want the jury to hear the tape recording.” “Why?”, asked the judge—me. “Have you not checked that it is correct?” “Yes, I have, my Lord”, said the defence. “That is why I want the jury to hear the tape. I shall be submitting to the jury that, if they hear the tape, they will realise that the admission that is plain on the paper simply was not a true confession.” Of course, I agreed. The case unfolded and the tape recording was heard. I have no idea what the 12 members of the jury thought about it but, to me, it was perfectly obvious that, after he had been told about 23 times that he had in fact committed the rape, the man said, “All right, I admit it”, in a tone of complete resignation. His mind was not going with an admission; he was just fed up with the fact that the police had not listened to him.

Can we pause and think of that case in the context of the proposal here? What is to happen to a deaf juror who cannot hear the resignation in the admission? The interpreter cannot do it. They cannot say how it is said—for example, “I think that he was reluctant” or “I think that it is a true confession”. The interpreter cannot help the juror, or they become part of the jury. What happens then? What happens in that case is simply a more vivid example of what happens in just about every single criminal case: someone, as the noble Earl suggested, is lying. It may be the defendant. It may be the witness. Perhaps a kind way to put it is that somebody is badly mistaken, if it is a witness. However, the analysis of who is right and who is wrong is a long, drawn-out process in which the jury must see and hear the witness and observe any hesitations or changes of expression. There are all sorts of little clues about how to make the decision on credibility. With great respect, somebody interpreting using sign language is not going to be able to get across the tone in which the evidence is given. It is simply not possible.

I move to another point—the noble Lord, Lord Pannick, has made it already. Go with me into the jury room. I have seen jurors who are very cross and upset. You can tell that when they come back, because they are not agreed on their verdict and there they are: heated, anxious and worried. That is because every member of a jury, or virtually every member, I ever came across was determined to exert himself or herself to fulfil their public responsibility to reach a true verdict, so if they disagree about whether somebody is guilty, of course they are going to get steamed up. How will the dynamics work? Is it really being suggested that, within the jury room, the 12 of them should be together and that every time any one of the 11 who is not deaf makes a contribution, whether a comment, a long sentence or a paragraph, nobody can respond until such time as the interpretation has finished? I do not think that is real. I also think that, with the presence of interpreters—there will undoubtedly be at least two because half an hour of that work is extremely arduous—there will be at least 14 people. Go to any meeting that you are involved in and if somebody is there who is not actually involved, not responsible for what is going on, it changes the dynamic for all.

Let me leave the 13th or 14th person in the room and come to my fundamental objection. It will be the first time, as far as I am aware, when a jury room’s sanctity will be broken. We have always worked on the basis that what goes on in the jury room is private—not just confidential—to the 12 members of the jury. This is a very serious step for us to be taking. I can assure you that the next stage will be, as the noble Lord, Lord Pannick, suggested, “Well, somebody is not able to speak English but has a citizen’s obligation. He or she should serve on a jury with a language interpreter.” I can assure you too—and this is perhaps more urgent—that there will be a whole series of academic professors dying to get into the jury room to see how juries reach their verdicts. So far, we have resisted it—in England, at any rate. What will happen to the confidentiality and privacy of the jury system if we let this door open?

That seems a fundamental issue of principle; it is not a matter of practical possibilities—as things improve, as science and technology get better. We are setting a very serious precedent. Although, of course, we cannot imagine it ever happening, I cannot help feeling in my remote dreams that, one day, a Secretary of State for the Home Department may say, “Why are these people being acquitted? It is a very good thing for us to have somebody in the jury room just to make sure that they are following the judge’s directions to them.”

I have three further points to make. The first is the language point—I have made that. Secondly, what is the role of the deaf juror in the context of his or her obligations to do jury service? If somebody turns up at court who can use or understand sign language, will it be compulsory that he serves on a jury? Everybody else has to turn up; there has to be a very good reason—there is an obligation to act as a juryman. Do we say, “Well, in the case of the deaf person, there’s a special dispensation?” In which case they are not being treated like everybody else. We need to examine that, because I would have thought that there is many a deaf person who would be willing to serve on a jury, but there will be quite a lot who would not.

Finally, while we are examining the proposal made by the noble Lord, Lord Pannick, about possible shadow research, why are we not looking at the technology that is available? It is at least possible that my objection in principle could be addressed through technology. We all know that any time we turn on our television and some extraordinary language from the Baltic countries is being used, little lines come up to tell us what is being said. All members of the Bar with successful practices—and I never did have one—work in courts where all the evidence emerges on a screen as it is given. Why is that not being looked at? Why in relation to the principal issue are we not finding ways that a deaf juror can be accommodated within the jury room without any interpreters being present at all?

[Lord Thomas of Gresford (LD)]

My Lords, I ask the Committee to forgive me for using legal language. Some years ago, I had a case in Newport. It was a murder trial in which the victim was profoundly deaf, the defendant was profoundly deaf and four or five of the witnesses were profoundly deaf. This trial proceeded with three sign language interpreters always in the courtroom: one for the defendant, one for the witness and one behind the judge, positioned so that everybody, including the many profoundly deaf people in the public gallery, could see what was happening.

When I first looked at this provision, I thought, like everyone else would, that surely a person who is profoundly deaf should be entitled to carry out their public duty. But the practicalities of it make that an impossible idea. For a deaf juror, there has to be a succession of people interpreting what is going on in the court in sign language. First of all, that is an immense burden on him—he is different from everyone else; and, secondly, while what is said in the court can be heard by everyone else, we do not know whether the person doing the signing gets it right. Nobody can really tell if that is the case, unless, as in my case, you have someone familiar with sign language in the box with the defendant.

How can we be sure that that juror understands the nuances of a summing-up, in which the judge sets out the law that the jury is to apply? Can it be the case that some other person who knows sign language checks that the proper interpretation is being made of what may be very technical language? As I learned, the sign language interpreter is not translating word for word but is conveying ideas. During that case I also discovered that sign language interpreters and witnesses who give their evidence by signing are quicker than people using ordinary speech. It is not a slower procedure, rather it actually speeds things up; the rest of the court have to hold the sign language interpreters back.

However, in the jury room, there is no way in which a profoundly deaf person can follow the arguments being made—passionate and otherwise: nobody can be sure that every nuance of what the other jurors are saying is being transmitted, and nobody can be sure that an interruption or question from a profoundly deaf person is being accurately translated and represents his thoughts.

I take the argument of principle that the noble and learned Lord, Lord Judge, put forward, but from a practical point of view, and from my experience of that trial, it is impossible for a fair trial to take place.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I do not wish to be taken as suggesting that what works well in Scotland should necessarily be applied in England and Wales, but I think I am right in saying that there has been some attempt in Scotland to allow juries to be remote. The problem one has is that a judge cannot be in two places at once. I think it was thought more appropriate that the judge should be close to the place where the evidence was being taken, with the juries remote in some other room because of the need for social distancing and so on. My point is simply this: I suggest once again, with great respect, that the Minister should find out what has been happening in Scotland and what the experience has been. They may have decided, for the reasons given by the noble Lord, Lord Pannick, that it should not be continued. I simply do not know, but it is worth exploring to find out exactly what the position is.

[Lord Judge (CB)]

My Lords, despite Covid—I know it is not over yet, but despite the 18 months we have had—I have not heard it suggested that one solution to the problems that the courts face is that juries should act remotely. We have trial by judge and jury. I agree with what the noble Lord, Lord Pannick, said, but I want to be just a bit more down to the realities of it. What happens in court when the jury is unhappy with itself or with some of its members? The judge has a most delicate task to perform. On my old circuit—I am sorry to say that the Midlands circuit has this—one juror smelled; he stank, and the jury were extremely unhappy about it. Can all that be done remotely, when the judge is responsible for looking after the interests and needs of the jury as a whole? Do we send messages down the line? How is it accommodated? It requires huge tact, skill and, I think, the personal touch.

My other concern about this provision was touched on by the noble Lord, Lord Pannick—it is the usual one, I am afraid; you have all heard me talk about it. Why should we give these huge powers when we do not need to give them?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there are a number of amendments in this group to which I would like to speak. The noble Lord, Lord Pannick, made the overarching point that he is suspicious of broad powers being taken in legislation. It seems to me that those amendments which are not the Government’s address the broad powers which the Government are seeking to take in this group.

Amendments 245A and 245B, in the name of my noble and learned friend Lord Falconer and supported by the noble Lord, Lord Pannick, would remove children from the application of Clause 167, providing that remote observation and recording of court proceedings may not occur in cases where a party to the proceedings is a child under the age of 18.

Under Amendment 259A, also in the name of my noble and learned friend, a court may not give directions for live links in criminal proceedings where a party to them is a child under the age of 18. The amendment in my name, Amendment 259BA, would require that all defendants who might appear on a video or audio link from a location outside the court should be subject to a health needs screening. Screening information must be made available to the judge responsible for listing before the listing is finalised.

We have all had a variety of experiences of dealing with remote links. I have done it many times over the last 18 months and in a number of jurisdictions. I was pleased that the Minister referred to Sir Andrew McFarlane’s report about trying to increase the transparency of family courts. I have read that report and it is interesting. There is the idea there of permitting journalists to observe family courts remotely. However, there is another side to this coin. Yes, we pat ourselves on the back for getting through a difficult situation—I have done it myself—and we have all managed to make the various parts of our lives work, including this House, but I do not think that anyone would say that the manner of getting through things within the court system or within this House or this Committee is as good as doing it in person.

The amendments I have spoken to look at arguably the most vulnerable people who potentially proceed through the criminal system and at whether there should be a form of review around whether that is indeed suitable. The amendments I have referred to talk about people under the age of 18, but there is a wider point, because there has been criticism of the way in which we in the family court system have proceeded remotely. I have literally taken away a child from a mother remotely, by telephone. It was the best thing to do in the circumstances, but nobody would argue that that was the best way to proceed when the court system and other forms of support should be in place and available.

There are overarching and broad powers being sought through this group of amendments. The amendments in my name and those in the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, are basically looking for exceptions to this, where the situation is so sensitive that these overarching powers should not be taken and there should be further research and assessment of their appropriateness. The amendments in my name deal with young people under the age of 18. I have had a number of hearings with such young people. Sometimes they go okay; sometimes they simply switch off and do not have a clue what is proceeding within the court system.

I hope that, when the noble Lord comes to sum up, he will be able to say something about ongoing reviews of particular appraisals of young people being able to participate in these types of hearings, and that there will not be a blanket approach, as is proposed in his group of amendments.