Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

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

[Baroness Butler-Sloss (CB)]

My Lords, although we have equality—quite rightly—there is no doubt that women need to be dealt with differently from men in their situations of going to prison and in prisons. There is no reason not to be tough on crime, but there is every reason to follow these two admirable amendments from the noble Lord, Lord Marks of Henley-on-Thames. It is time that women’s very special situations were recognised, partly as the mothers of children—we have had some appalling stories of women in prison who are pregnant—but partly, as the noble Baroness, Lady Jones, just said, to stop them offending and to find the best way to deal with them. It may well be that prison is necessary for some of them, but it may well not be necessary for some of those who actually do go to prison if this new board were in place and could provide some of the services that are so admirable in the youth justice system. So I strongly support these two amendments.

[Lord Pannick (CB)]

My Lords, I add my support to these amendments. Will the Minister, when he comes to reply, agree that the application of the justice system to women poses especial challenges for everyone involved in the justice system, from the Secretary of State downwards? Does he agree that, at the moment, regrettably, there is a crisis of confidence as to how the criminal justice system in particular, but also the civil justice system, addresses the needs of women? Does he therefore accept, as has been suggested by previous speakers, that the creation of a women’s justice board would focus much-needed attention on these important topics?

[Earl Attlee (Con)]

My Lords, my role as a loyal government Back-Bencher is to help my noble friend the Minister, and I think I can do that best by strongly supporting these amendments.

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[Earl Attlee (Con)]

My Lords, I oppose the Question that Clause 165 stand part of the Bill; I seek not to add but to remove something from the Bill. Section 9B of the Juries Act 1974 gives the judge the power to consider whether a disabled person can undertake their duties as a juror when there is doubt on the part of court officials. New Section 9C requires the judge to consider whether a British Sign Language interpreter would enable the juror to be effective. The rest of the clause is concerned with sensible, consequential provisions.

The Committee should note that the judge is involved only if there is doubt on the part of officials. A potential juror with an effective hearing aid would not go through the Section 9B process since there would be no doubt that they could be effective. I undertook jury duty many years ago, long before arriving at your Lordships’ House. It was indeed interesting to me, but I regarded it as a duty or an obligation. It is not a right or a privilege in addition to being a duty, as, for example, voting in a general election is. Therefore, I see no requirement to make these special provisions so far as a completely deaf juror is concerned.

I accept that many deaf people can also lip-read, which would no doubt supplement the assistance of a BSL interpreter. My concern is surely that many cases turn on the credibility of the witness and, sometimes, which witness is not telling the truth. Suppose in a case involving an expert witness, counsel is asking searching questions and makes a provocative suggestion. The expert witness might calmly respond, “No, that is not correct”, knowing full well that opposing counsel will return to the matter later. However, what the deaf juror inadvertently could pick up is, “No, that’s wrong”, which might appear to be the counsel having the witness on the ropes, when that is far from the facts.

A further difficulty might arise in the jury room when deliberating the verdict. I have been in the jury room. Discussion could be fast and furious, and I cannot see how the interpreter could possibly keep up. It would be possible to slow the proceedings down, which might be beneficial, but since we do not research how juries operate we cannot tell what the effect would be. The other jurors may simply ignore the deaf juror.

Finally, the clause also, quite properly, makes consequential provisions that put the interpreter under the same obligations of confidentiality as the other jurors. However, he or she is not a decision-maker and will still be in a different position, and we cannot know what, if any, chilling effect on discussions may arise from the interpreter’s presence. I expect noble Lords supporting me will come up with far better arguments than mine, but I oppose the Question that Clause 165 stand part of the Bill.

[Lord Pannick (CB)]

I have added my name to the noble Earl’s opposition to Clause 165. I understand that jury service is a civic duty and there are strong equality arguments that a deaf person should not be disqualified because they cannot proceed without an interpreter. I also understand that the judge has discretion over whether the nature of the issues in the case makes it appropriate for a sign language interpreter to retire with the jury, and that the clause makes it very clear that the interpreter will have a duty not to interfere in or influence the deliberations of the jury. I understand all that, but I have concerns about the consequences of allowing a 13th or 14th person to sit in the jury room. I say 13th and 14th, because there will be a need for at least two interpreters, as any one interpreter is going to struggle to perform this task for more than 30 minutes at a time.

The first set of concerns relates to the effects on the dynamics of the jury. A jury depends on effective communications between the 12 persons serving on it. To ensure that the interpreter performs their role effectively, he or she may need to intervene in the deliberations to prevent people from talking over each other; and the interpreter may need to ask people to repeat themselves or to clarify what they are saying. This will have an effect on the dynamics of the jury room. There is also the potential problem that what is said by the interpreter to the deaf person cannot be understood and monitored by the rest of the jury.

That was the first set of concerns. The second type of concern is that Clause 165 makes provision only for a subset of otherwise excluded members of a jury. We are not making any provision for potential jurors who have insufficient command of English to participate effectively, or persons who cannot read relevant documents because of a low level of literacy or poor eyesight. The clause also makes no provision for deaf or hearing-impaired people who do not use British Sign Language but instead use text communication systems. It is a bit odd to make provision only for deaf persons, and then only for a subset of deaf persons.

My third concern is that, as I understand from helpful discussions with the Minister, provisions similar to Clause 165 have been the subject of testing in other jurisdictions, but no modelling has been done with shadow juries in this country. The noble Earl mentioned that we cannot do research with real juries, but research is often done with shadow or model juries. I ask the Minister whether it would not be sensible, before such a significant change to jury trial is introduced in this country, to conduct some research with shadow or pretend juries to see how this is going to work.

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[Lord Wolfson of Tredegar (Con)]

My Lords, this was an especially thoughtful and constructive debate. I agree with the words that the noble Lord, Lord Ponsonby of Shulbrede, used to describe the debate. His reference to the magistrate was interesting, but the problem with all analogies is that they are different. I am going to focus specifically on the jury issue because I recognise that a number of Members of the Committee have made particular points about jurors.

I will start with the point made by the noble and learned Lord, Lord Hope of Craighead, who referred us to the Equality Act; that is an important starting point for the debate, although it may not be the finishing point. We must ensure that the services of the courts are accessible to everyone, including those with disabilities. We must pay due regard to the need to eliminate discrimination and advance equality of opportunity wherever possible. That, in a nutshell, is why Clause 165 is part of the Bill. Having said that, and because I know that this will be a debate that is looked at by those outside this House as well as by those inside it, let me place on record what need not be said but I am going to say it anyway: that everybody in this Committee shares that aim. We heard a very personal example from the noble and learned Lord, Lord Judge, of Lady Judge’s work in this area. Again I say this for the avoidance of doubt where there should not be any: I am proceeding on the basis that all who have questioned or opposed our proposals do so with the very best of motives and certainly not for any other reason.

Trial by jury is a fundamental aspect of our criminal justice system, and serving as a juror is one of the most important civic duties that anyone can be asked to perform. I agree with my noble friend Lord Attlee that it is a duty and not a right, but the Government and I want to ensure that as many people as possibly can perform that duty. Reasonable adjustments can be made by our courts to enable most people with disabilities to complete jury service. This, importantly, includes deaf jurors who can lip-read. I invite the Committee to reflect very carefully on the position of the deaf juror who can lip-read and to consider it in respect of each of the objections that have been put. I will come to some of them to which this would not apply, but a number of the objections would potentially apply to a juror who is deaf but who can lip-read. Nobody else in the court is likely to know how good the lip-reading is, whether the lip-reader gets every nuance, or how lip-reading affects the dynamics either in the jury box or in the jury retirement room.

That is the first point we get from the deaf juror who lip-reads, but there is another point as well: it underlines the proposition that there is no bar in principle to a deaf person serving on a jury. This is about one issue only, which is the 13th—I will come back to the 14th—person in the jury retirement room. That is why we need the legislation, because at the moment it is 12 and no more; I put the jury bailiff to one side. The issue at the moment is that, unlike a lip-reader who, if the judge considers that they can effectively discharge their duties as a juror—which I will come back to—can serve on a jury, a juror who needs a British Sign Language interpreter is unable to get that assistance because entry to the deliberation room is limited to the jurors, and no one else may enter. The essential point that this clause focuses on is permitting the BSL interpreter to go in, thereby enabling that juror to fulfil their duty.

I recognise that there have been what I might call practical, and almost philosophical, principled objections and concerns raised about the proposal. I note that the Bar Council of England and Wales has expressed its support, subject, it is fair to say, to the right safeguards, which I believe we have in place. I reassure the Committee that we considered the safeguards very carefully in developing the legislation. We looked at research and current practice in the USA, New Zealand, the Republic of Ireland—which is planning to legislate for this form of interpretation—and Australia, where provision is already made for BSL interpreters or the equivalent in its jury systems.

I will first deal with the philosophical or principled objections. I understand the reservations that this might undermine the jury deliberation process, and I understand the argument, although I do not accept it, that interpreters could unduly influence or impact the dynamic of the discussions. There has been a lot of research, particularly in New South Wales, to explore whether deaf people can sufficiently access court proceedings and make informed decisions as jurors. The research suggests that deaf jurors are not hindered from speaking during deliberations and that other jurors seemingly have no issue with the presence of the interpreter or interacting with the deaf juror.

We have put safeguards in the Bill to help to address these issues. Offences relating to research and sharing research during the trial will apply as much to the interpreter as they do to the jurors. As has been pointed out, there is a new offence whereby an interpreter intentionally interferes in or influences the deliberations of the jury or proceedings before the court. I have said “interpreter”, but I accept, as the noble Lord, Lord Pannick, pointed out—I acknowledge my gratitude to him and others for sparing time to discuss this with me—that there will be two BSL interpreters present in the jury deliberation room, not only because they need to switch over as it is a very intensive process for the interpreter but because it has the benefit that they will be able to monitor each other and maintain a consistently high quality of interpretation. To take the point of the noble Lord, Lord Thomas of Gresford, I say that the nuances will be as much picked up by the sign language interpreters as we can anticipate—or not—that they will be picked up necessarily by a lip-reader.

I agree with the noble and learned Lord, Lord Judge, that the jury room is not just confidential but also private; those things are different, and it is both. There is no intention to allow the academics or the researchers in. There is certainly no intention to move from what I think in the judicial review context is called “the judge over your shoulder” to the Minister standing over the juror’s shoulder. We are certainly not going there.

The interpreters will be bound by a confidentiality agreement and be bound by law, and there is an offence to keep everybody honest. They will also be required to swear an oath or affirmation to that effect, alongside their existing interpreter’s oath or affirmation.

I turn to the practical concerns around the nature of evidence and whether a deaf juror will be able to interpret facial expressions, together with audio evidence, effectively. Again, I heard the example from the noble and learned Lord as to how something was said in a tone of complete resignation. The word used in the Act, and in this clause, is “effectively”. The judge would have to decide whether the juror could effectively discharge their role as a juror. This provision does not require judges to admit such jurors on to the jury; it simply removes the blanket ban that would otherwise be present. It means that jurors who need a BSL interpreter can be considered alongside other jurors for whom other reasonable adjustments might be required.

The ultimate decision will be for the trial judge, who will take into account the nature of the case and the nature of the evidence that is going to be heard. No doubt he or she would want to hear submissions from the parties, although they would not be bound by them. As I have said, none of this is new. Again, I ask the Committee to consider how the trial judge should deal with a juror who says, “Well, I lip-read.” The trial judge, again, would have to consider what the evidence in the case was going to be and whether they were going to be able to fulfil their role effectively. There is no difference in principle, and the test and approach of the judge would have to be the same.

I accept that there will be cases where a deaf person would not be able to serve on a jury. I expect that there will be cases where a lip-reading juror might not be able to serve on a jury—for example, if the evidence is audio only and there is nobody to look at; there is just a telephone call playing.

[Lord Pannick (CB)]

I ask this question out of ignorance. Can the Minister confirm what the noble Lord, Lord Thomas of Gresford, said, which is that a BSL interpreter does not interpret in the way that a foreign-language interpreter would, but rather attempts to summarise the gist or essence of what has been said?

[Lord Wolfson of Tredegar (Con)]

I was going to come to that point, but let me deal with it now. BSL is treated as a language. It has its own grammatical structure and syntax; it is recognised as a minority language in the UK. There is not a sign for every word, but words can be spelled out where a sign is not possible. The noble Lord and I have both had cases where we have had simultaneous foreign language interpretation. It is also the case that not every word in every language is easily translatable into another language. Certainly, we have looked at that point, and we do not think that that should be a bar to a deaf juror effectively participating in a jury. For these purposes, BSL is sufficient to enable the juror to participate effectively, but depending again on the nature of the case, that may be a factor in a particular case which the judge would want to take into account.

It is important to start from the proposition that everyone should be able to serve as a juror unless there are good reasons to believe that they would be unable to do so effectively. I underline that word “effectively” in the instant case. I come back to the fact that deaf jurors who can lip-read serve successfully, and we do not believe that there is a reason why there should be a blanket ban on jurors who need BSL interpreters to serve.

Picking up some other points, the noble and learned Lord, Lord Judge, asked about the obligation point and whether there would be a special dispensation. No, there would not be a special dispensation. Like any other juror, the deaf juror who needed a BSL interpreter would have to ask for permission to be excused. Of course, given that the judge would also be considering whether they could effectively participate, perhaps the anterior question would be their effective participation, and then the question would arise as to whether they could be excused. That would also apply, of course, to any other juror who was a lip-reader. One would imagine that a judge would be sympathetic to a lip-reading juror who might say to the judge, “I know that I can serve, but I am very concerned that I might miss something. My lip-reading is good, if not 100%, but I would rather not serve.” Ultimately, however, that would be up to the judge. There would not be a special dispensation.

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[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments in my name make two straightforward revisions which will allow these provisions to operate more effectively and support the principle of open justice across our courts and tribunals. Let me divide them into two groups.

Amendments 243, 244, 245, 248 to 261 inclusive and 325 expand the scope of Clauses 167 and 168 so they apply to all of our courts, tribunals and all bodies that exercise the judicial power of the state, with the exception of the Supreme Court, for which there has already been separate provision, and devolved courts and tribunals, for obvious reasons. This is an important amendment. It ensures that all jurisdictions may use these powers to provide transmissions of proceedings to remote observers in order to uphold the principle of open justice, subject, of course, to further regulation, guidance and judicial discretion.

Digital technologies have become mainstream, even in our smaller and what might be called more obscure jurisdictions. It is now evident that these powers should not be limited to HMCTS courts and tribunals but would be best made effective in all courts and tribunals. Importantly, that also ensures that the offence of making unauthorised recordings or transmissions of proceedings is applied universally across our entire justice system and not just in specific jurisdictions. This will shorten the length of the Bill by around six pages by removing the need for a distinct schedule for tribunals. I was going to add, “making this legislation simpler”, but that might test the patience of the Committee.

Ensuring that our courts and tribunals are as open and transparent as they can be is an ongoing task. The president of the Family Division, Sir Andrew McFarlane, recently published his review of transparency in the family courts. With respect to the president, it is right to say that that was a phenomenal piece of work, which has been well received. The remote observer clauses in this Bill are in harmony with his recommendations, as the Bill allows transparency by permitting journalists to observe family hearings remotely if they cannot attend in person.

The second part of this group of amendments, Amendments 246, 247, 262, 324, and 329, provide technical amendments so that the secondary legislation to enable these powers may be introduced on time. Let me explain what I mean by that. The remote observation provisions in the Bill are intended to replace the temporary and less extensive powers in the Coronavirus Act. They have been vital in allowing our courts to administer justice effectively and transparently during the Covid-19 pandemic.

We want to make sure that there is no gap in the legislative cover. It has therefore become necessary to ensure that these new powers can be enabled in secondary legislation before the date that the existing legislation expires. With this Bill now not expected to receive Royal Assent until only shortly before that date, these amendments take the necessary step of allowing the enabling secondary legislation for these powers to be introduced by the made affirmative procedure. These amendments therefore provide that legislation is continually in place to uphold open justice in remote hearings.

As this morning, I am aware that the group contains amendments from other noble Lords, so I will pause there to allow them to introduce their amendments. I beg to move.

[Lord Pannick (CB)]

I shall speak to Amendment 259B in my name and those of the noble Lord, Lord Marks, and the noble and learned lord, Lord Judge.

Clause 169(2) would allow a jury to be in a different physical location from the judge, so long as all 12 members of the jury are in the same place as between themselves. I am very concerned about this proposed power. In order to ensure the effective management of a criminal trial, a judge needs to be in the same room as a jury. The judge needs to be able to communicate effectively with the members of the jury. The judge needs carefully to watch the jury to see that they are focused and ensure that their needs are addressed. The judge needs carefully to watch the relationships between the 12 members of the jury. The jury needs to be able to communicate speedily and easily with the judge if it has any particular issue that it wants to raise. Members of the jury need to be able to study the witnesses giving evidence—what they say, what they do not say, and their body language and facial expressions while doing so. All this is so much more difficult through a computer screen, as we have all discovered, whether through court proceedings or parliamentary proceedings, during the pandemic.

I have had very helpful discussions with the Minister about this matter, and I am very grateful to him and thank him for those discussions and the time that he has devoted to them. I understand from him that the Government have no plan to encourage the use of remote juries. Instead, as I understand it, the Government believe that this would be a useful power essentially for three reasons: we may be afflicted by another pandemic; there may well be advances in technology; and, in any event, this power may be useful today if a judge and lawyers, for example, go on a site visit and one or more members of the jury is physically disabled, in which case the site visit can be watched by the whole jury online. That is the example that the Minister gave me.

I have to say that I find these justifications unpersuasive. I am always suspicious of broad powers being taken in legislation “just in case”. I certainly do not doubt the Minister’s good faith, but his assurances as to what is intended to be done under this proposed power do not bind—cannot bind—his successors in office to what he has done; they may have very different proposals or intentions as to the use of these powers. With great respect, the site visit example is, I think, very far-fetched. I am not aware of any such problem in any case in recent years, if ever.

In any event, if Ministers think that provision should be made for such a limited, specific use of remote hearings, with juries in a different place to the judge and the defendant, let it be made clear in the drafting of the clause that a remote hearing cannot take place with the jury in splendid isolation from the judge, the witnesses and the defendant in relation to the hearing of oral evidence, the submissions of counsel or the summing-up by the judge.

Although they have not yet been spoken to, I express my support for Amendments 259A and 259B, both of which concern aspects of the proposed power to be conferred on the court to require a person, including a defendant, to take part in proceedings by audio or video link. I can well understand that this may be a useful power for a preliminary hearing, but not for a substantive trial, unless the defendant consents to that. I am very unhappy about this in relation to young persons.

There are real issues as to whether a defendant would have effective access to a hearing, were his or her presence to be remote, and real concerns as to whether they could effectively communicate with their legal representatives. The Ministry of Justice may be hoping to save some money if it does not need to transport defendants from prison to court, but I am doubtful that it will save much money because it will need to invest in very high-quality computer systems. In any event, I fear the price will be a reduction in the quality of justice, and that price is too high.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful again to the Committee for a very interesting and wide-ranging debate. I thank my noble friend Lord Deben for the most back-handed compliment I have ever received and assure him that, when it comes to justice, I absolutely subscribe to the proposition that justice must be not only done but seen to be done. That reminds me to underline what Clauses 167 and 168 are about: they are about justice being seen to be done. These clauses do not mandate remote hearings; that is for a judge to decide. What they do is permit remote observation of those hearings, which underpins open justice.

When we look at issues such as this, we need to bear in mind that the days when the local newspaper would send people to sit at the back of the Crown Court or magistrates’ court are long gone. In the real world, you will have greater transparency if you have a live feed to journalists from the courtroom than if you say, “You’ve got to come along and take a note”. They simply do not any more, and I am concerned with making sure that we actually have open justice and that it is not just something we talk about.

Amendments 245A and 245B seek to prohibit those transmissions being made to remote observers in all cases where a child is among the parties. Amendment 259A similarly seeks to remove children from the application of Clause 169, which is about video and audio links in criminal proceedings. It would prevent the court, as a blanket ban, from making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings.

I absolutely agree with the intention of safeguarding children in our courts. We have debated that point in a number of areas of this and other Bills, but I suggest that these amendments are both ineffective and unnecessary. They are unnecessary because we already have in place sufficient tried and tested legislation and guidance to safeguard the privacy of children in these proceedings. Section 47(2) of the Children and Young Persons Act 1933 prevents anyone being present at a youth court hearing except members of the court, parties and participants, accredited media representatives or specifically authorised persons.

In other courts, procedure rules provide that it is legitimate to hold a hearing in private

“to protect the interests of any child or protected party”.

Courts have a statutory duty to have regard to the welfare of children. Judges, magistrates and tribunal members retain judicial discretion over whether a case is to be heard in private, with full consideration of their duty to protect minors or other vulnerable parties, where necessary. The ineffective or counterproductive point is that there may be cases where it is beneficial for a child, whether as a witness or a defendant, to participate by live link. If one is focusing on cases where children can be affected, one also has to bear in mind that there are lots of cases which affect children where a child is neither a party, nor a witness, nor physically involved at all.

Clause 169, as drafted, gives courts the flexibility to make decisions to direct remote participation where it is considered in the best interests of child participants to do so. I draw the Committee’s attention to the word “may” in the first line of subsection (1) in new Section 51. It is vitally important that we continue to protect children. That is why we have built these safeguards into our provisions.

Amendment 259B, which I think the noble Lord, Lord Pannick, spoke to first, seeks to exclude juries from the provisions in Clause 169 that enable a jury assembled together to participate in a trial through a live video link, where appropriate and deemed to be in the interests of justice. The Committee is entitled to a clear statement from the Dispatch Box and I will make one: there is absolutely no intention for this to become a regular feature of trials, with the jury sitting in one room and the judge and the witnesses in another room. As the noble and learned Lord, Lord Hope of Craighead, reminded us, Scotland did put that provision in during the pandemic—I think cinemas were used, so that everything was on a big screen and the audio was very good. That was done in response to the pandemic, and this measure is a future-proofing measure.

I hear what my noble friend Lord Deben says about that and about civil servants tapping Ministers on the shoulder, but, since the pandemic, we have witnessed big changes in how we run our jury system. We have seen —and here I pay my respects again to judges and all others involved in the justice system, who have worked extremely hard to do this—suitable procedures put in place. But we have also seen how legislation tied our hands during an emergency and impeded our ability to progress quickly and make full use of the technological options open to us. We do not want that to happen again. Clause 169 is designed to provide courts with the flexibility to keep pace with new technology as it develops.

As the noble Lord, Lord Pannick, said, that is the second reason for this clause. Technology is developing in ways that we could not have imagined a few years ago, and we have no idea where it will take us in the future. We want to be sure that we have a statutory basis to take advantage of technology as it develops, so that we can provide a justice system that is fit for the century that we live in and for the way that people live their lives. Those are the two main justifications for Clause 169.

I gave the noble Lord the example of a site visit. Again, I make clear that this is not the main justification for it, but it is important if one has a jury with a disabled person on it. The idea is shocking that, in 2021 a disabled person could be told that they cannot sit on a jury because, at some point during the three-week trial, it will look at the locus in quo, which is a room at the top of a winding staircase, and they cannot climb the stairs. The whole thing could be done very effectively via video, and so that is not a reason to stop them serving on a jury.

[Lord Pannick (CB)]

I am grateful to the Minister. Can he say whether there has ever been such a case?

While I am on my feet, I have another question. The Minister mentioned that technology may develop. I think the concern from those of us who have doubts about this proposal is not advancing technology but human communication. However good the technology becomes, there is still a vital distinction between watching proceedings on a screen and being in the same room as other people. I suggest to the Minister—this is certainly my experience and, I think, the experience of most lawyers and judges—that, although the courts have worked wonders during the pandemic, they have recognised the inferiority of any system that is within our contemplation by means of technology compared with being the same room. The ability to communicate and have an interchange with other people is manifestly weakened by having to do it over a screen.

[Lord Wolfson of Tredegar (Con)]

Absolutely. I do not disagree that face to face is better; no doubt that is what we all feel in this Committee—that it operates much better when we are in the same room than it did when it was all on screens. I absolutely accept that. Let me give an example. Before I became a Minister, I did a three-week trial entirely on screen, with witnesses around the world. After about a day, you forget, and you get used to the new system.

I am not saying that we want this clause here because screens are better; we want this clause in the Bill because screens may be necessary if we have another pandemic and because we do not know where technology is going to go. I do not want to get too techy about it, but there is a very real difference between watching a screen in the sense of a computer monitor and some of the things that I have seen in banks, where there is a big screen down the middle of a table and six or seven of you sit in a row and look at it, while the people you are talking to have the same thing in their office. After about half an hour, you really feel that they are on the opposite side of the table to you. Again, I am not suggesting that that is suitable for courts, but it is an example of how technology can, and will, develop. We want to future-proof it, as I have said.

Amendment 259BA would require anyone taking part in any sort of criminal hearing via live link to submit to a prior assessment of their physical and mental health before the court could consider whether it is appropriate for them to take part in criminal proceedings over a live link. I share the concern of the noble Lord that we must ensure that audio and video links are used appropriately. Again, we have built safeguards into Clause 169, setting out procedures and guidance that courts must follow. The court must decide whether it is in the interests of justice; that includes taking the views of the person who would attend by live link on whether they can participate effectively in the proceedings. The clause also requires that the parties have an opportunity to make representations to the judge.

I also point out that, although the intention behind the amendment is understandable, perhaps even laudable, in practice, it could prevent or deter some people from using a facility that could help them to participate in hearings with as little distress, inconvenience and delay as possible. I therefore urge noble Lords not to press their amendments.