Police, Crime, Sentencing and Courts Bill

Debate between Lord Judge and Lord Thomas of Gresford

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.

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Debate between Lord Judge and Lord Thomas of Gresford

Wednesday 22nd January 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, I shall be very brief; following the remarks of the noble and learned Lord, Lord Garnier, there is not much more to be said. However, I wish to underline, first, that I very much hope that we will have a commitment today from the Minister that the Government do not intend to hold back on the enactment of a sentencing code. We have been through the whole of that process. It was cut short by the general election but it is an absolute imperative, as the Minister well knows and as anybody who has ever listened to the discussions on these issues fully understands. If we are to have changes to prison regimes, let them be done by amendments to an existing code rather than being introduced piecemeal and added on so that we are still looking through 17 volumes of laws to find out what the appropriate level of sentence might be.

My second point is much more general. The Minister’s introduction suggested—and it is perfectly obvious that it is right—that this is just the beginning. The Government are committed to a wholesale investigation of whether sentencing levels and dates for release are appropriate, and so on and so forth; this is a mere first step.

Speaking for myself, I find it alarming that we have started this process by secondary legislation. The issues raised, as the eloquent speech of the noble and learned Lord, Lord Garnier, made clear, are immensely significant to the entire way we run our punitive system in this country. Yet we are to have secondary legislation for this and, I suspect, a piecemeal series of secondary legislation as the Government’s thinking develops. A very good example—for once I am not looking at the Conservative side; this was Labour legislation—is the Criminal Justice Act 2003, which gave the Minister amazing powers to come to Parliament by way of a statutory instrument and effect enormous changes in our arrangements for prisons. Please, can we be more cautious about dishing out these powers?

[Lord Thomas of Gresford (LD)]

My Lords, the policy change to increase the release date of prisoners sentenced to more than seven years to two-thirds of the sentence has been brought forward far too quickly and without proper consideration. It is not evidenced-based. Before the election, the Lord Chancellor wound up the rhetoric and gave the reason for ensuring that the most serious violent and sexual offenders would face longer behind bars, as he put it, as restoring “public faith in sentencing”—sentiments that the noble and learned Lord, Lord Keen repeated. By contrast, the impact assessment attached to this statutory instrument says:

“Research into victims’ views on sentencing and time spent in custody is limited. However, a 2012 study found that victims of sexual offences (who will be more likely to be affected by this policy) were unclear on what the sentences handed down by the court meant in practice.”


There is no other study on which this change of policy is based and, as the noble Lord, Lord Ramsbotham, pointed out, there has been no public consultation. There have been only newspaper headlines in the popular press.

Before spending £440 million in construction costs and £70 million a year for 10,000 new prison places, as envisaged by the impact assessment, it would have been far better for the Government to take their time to form a proper evaluation of experience to date. In 2014 permission was granted for the Berwyn training prison to be built on the industrial estate of my home town, Wrexham. I know the area well; in my youth I worked on that very site as a member of a railway gang replacing wooden wartime sleepers with concrete ones. I learned how to use a pick and shovel, drink very sweet tea and place a bet—matters of great importance.

As I watched the buildings go up, to open in February 2017 at a cost of £250 million, I noted that it was the largest operational prison in the UK and the second largest in Europe. Here, I thought, was the opportunity, with modern design and facilities, really to do something to tackle attitudes, change people’s lives and turn prisoners away from crime. All rooms, as the cells are called, have integral sanitation, a shower cubicle, a PIN phone and a UniLink laptop terminal. It is designed to hold up to 2,106 prisoners serving four years or more. There have been criticisms. In particular Frances Crook, the chief executive of the Howard League, told the Welsh Affairs Committee, which reported on prison provision in Wales in April 2019, that it was built in a way that even Victorians would not build. She said:

“It is going to be the most disgusting prison in Europe within 10 years.”


She was concerned in particular that only 30% of the accommodation is single-cell, to save money, in flagrant disregard of the recommendations of the Mubarek inquiry into the murder of a young man by his racist cellmate.

As the prison was going up, a local rugby player, an experienced prison officer from a Merseyside prison, told me that, despite attractive offers, no regular trained officers would be attracted to work there. “It’ll be full of newbies,” he said. “You need to know who you’re dealing with, who’s standing next to you.” He was right: the report of the Welsh Affairs Committee revealed that 89% of the prison staff were in their first two years of training. The Prison Officers’ Association says that the recruitment pool in north Wales is exhausted and that

“we see very young inexperienced officers joining … with very few experienced staff to guide them.”

An inmate released last May told the Daily Post that

“it’s being run like a youth club.”

Neighbourhood Planning Bill

Debate between Lord Judge and Lord Thomas of Gresford

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Grand Committee

[Lord Judge (CB)]

It is the lion that represents Millwall, is it not? I shall be brief, but not as brief as perhaps I should be because, with respect, this clause is totally flawed. I shall not go over the debate I had with the Minister over what is now the Wales Act, but we still have to face the fact that under the clause as it now stands following the debate on Amendment 129, the Secretary of State in London will be empowered to overrule the legislation of the elected Assembly. There is no arguing; that is what it says, and that is what it means. I understand that the Minister would have no intention of telling us anything other than how he envisages this power being used, and of course I accept it from him, but the power is being given to wipe out the enactments of the National Assembly for Wales without so much as a reference to it.

In my respectful submission, it is subsection (2) of this clause that is so unacceptable: the Henry VIII clause, the legislation that will set aside the legislation. It will give power to the Secretary of State to say, “I don’t like this legislation any more” or “I don’t like this part of this legislation any more, I’m going to get rid of it”. That is what we are empowering if we allow this to go through.

With Henry VIII clauses, you have to ask whether they are justified. Here, you ask the question: how is it justified? The answer to that question is that it is not justified. I looked through the Explanatory Notes. They state:

“Part 3 Final Provisions … Clauses 37-40”—


that covers Clause 38—

“and 42 are self-explanatory”.

That is it. No doubt the clause is self-explanatory, but, with great respect, so what? Self-explanatory is no sort of justification. It is not even an attempt to justify.

Assiduously, I hunted further and found what the department’s memorandum tells us the clause is for:

“There are a number of consequential changes being made by the Bill, particularly those flowing from the addition of a new procedure for modifying neighbourhood plans, restricting the imposition of planning conditions, and amendments to compulsory purchase legislation”.


That is a very neat summary of a very complex piece of legislation, but this is the justification that the department advances:

“It is possible that not all such consequential changes have been identified in the Bill. As such it is considered prudent for the Bill to contain a power to deal with these in secondary legislation”.


Is that any sort of justification?

Going back to the wording, if,

“the Secretary of State considers appropriate”,

is an entirely subjective discretion, entirely uncontrolled in any way by the legislation. Is that really what the department wants? Well, the department may want it, but we are being invited to give powers to a Secretary of State years down the line to repeal an Act of Parliament, the whole Act, the Act that noble Lords have spent four days working on in this Committee. By this provision, if it comes into force, it can all be wiped out. That is what Henry VIII means.

I repeat that I totally accept the good faith of the Minister, I accept it completely and utterly, but he will not be the Minister 10 or 20 years from now, and the list of legislation that the noble Lord, Lord Cameron, gave us reminds us of how long this legislation could last. So because the department thinks there is a vague, undefined possibility that may arise in the future, I respectfully suggest that we are being landed with a hugely dangerous piece of legislation because it is totally unjustified. Of course the future is unsure. We all know that; Shakespeare told us that. It is the most important line he wrote. We know that the future is unsure, but it is not a justification for giving literally sweeping—sweeping away—powers to the Executive. That is not how we should operate.

[Lord Thomas of Gresford]

I wholly support everything that the noble and learned Lord, Lord Judge, just said, and what the noble Baroness, Lady Cumberlege, said in introducing this debate. The matter that concerns the Delegated and Regulatory Reform Committee is on page 9 of its report, at paragraph 54. Not only is the power “very wide” in scope, but it,

“is to make whatever provisions—including ones amending and repealing Acts of Parliament … We note that it has become standard practice for provisions of this type to be included near the end of a Bill”.

This is appearing all the time. It is really an insurance policy: “We might make a mistake, and if we make a mistake we do not want to have the trouble of admitting it; we will just get some secondary instrument through Parliament, and that will be all that we have to do”. That is not a sufficient justification for such a wide power.

The committee suggested that at the very least, the power could be restricted by some type of objective test of necessity: to where it is necessary—to “where we have made a mistake” if you like—or to where something important has been omitted. We need something that gives substantive limitation to such a widely expressed power.