Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

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

[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.

[Lord Falconer of Thoroton (Lab)]

We on this side of the Committee strongly support these excellent amendments. The Youth Justice Board was set up in 1998. Its first chair—a Member of this House, the noble Lord, Lord Warner—gave it a really good start. The whole point is that it gives real drive, not as part of government but within the state, to make changes, because everybody recognises that children and young people have different needs, both to divert them from the criminal justice system and when they are there. Similarly, in respect of women, this is a real opportunity; give it drive.

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Moved by

[Earl Attlee]

241: After Clause 164, insert the following new Clause—
“Training for offenders
(1) The Sentencing Code is amended as follows.(2) After section 276, insert—“276A Detention for Training at Her Majesty’s pleasure for offenders aged at least 18 but under 27(1) A sentence of Detention for Training at Her Majesty’s pleasure is available to a court dealing with an offender for an offence where—(a) the offender is aged at least 18 but under 27 when convicted,(b) the offence is punishable by that court with imprisonment in the case of a person aged 21 or over,(c) the court is not required to pass a sentence of—(i) detention during Her Majesty’s pleasure (see section 259), or(ii) custody for life (see sections 272 and 275), and (d) the court is satisfied the offender would benefit from the training that would be provided.(2) The power of the court to impose such a sentence is not subject to section 230 (threshold for imposing discretionary custodial sentence).(3) Section 244 of the Criminal Justice Act 2003 (duty to release) is not applicable to a sentence of Detention for Training at Her Majesty’s pleasure.276B Term of sentence of Detention for Training at Her Majesty’s pleasure(1) The maximum full term of Detention for Training at Her Majesty’s pleasure that a court may impose for an offence is the same as the maximum term of imprisonment that it may impose for the offence in the case of a person aged 21 or over.(2) The minimum term of a sentence of Detention for Training at Her Majesty’s pleasure is 12 months.(3) The term of a sentence of Detention for Training at Her Majesty’s pleasure must be the term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with—(a) the seriousness of the offence,(b) providing enough time for the three stages of Detention for Training at Her Majesty’s pleasure to be effective, and(c) providing a sufficiently strong incentive for the offender to be motivated to meet the improvements in conduct, training, education and performance determined under section 276C in order to move onto Gradual and Safe Release under section 276I.(4) In forming its opinion for the purposes of subsection (3), the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors.(5) The pre-sentence report requirements in section 30 apply to the court in relation to forming that opinion.(6) See section 232 for additional requirements in the case of an offender suffering from a mental disorder.(7) The court may impose a sentence of Detention for Training at Her Majesty’s pleasure only if it is satisfied that the offender would benefit from it.276C Improvements in conduct, training, education and performance(1) When imposing a sentence of Detention for Training at Her Majesty’s pleasure, subject to subsection (2), the court must determine what objectively measured improvement in conduct, training, education and performance is to be achieved by the offender before being considered for the final stage of training (gradual and safe release).(2) When making the determination mentioned in subsection (1) the court must set improvement requirements that—(a) are demanding but achievable,(b) can be objectively measured using the system mentioned in subsection (3),(c) take into account the capacity of the offender to improve, given sufficient incentive,(d) take into account the seriousness of the offence in question,(e) take into account the needs of the offender,(f) take into account the availability of training offered by the Secretary of State, and(g) significantly improve the chances of the offender exclusively engaging in legitimate employment. (3) The Secretary of State must devise and implement an objective system for measuring the offender’s improvement in education, training and conduct.276D Location and security of training and electronic communications(1) The Secretary of State must locate the necessary training centres in rural locations sufficiently remote to—(a) sever the trainees from malign gang influences,(b) eliminate trainees’ access to illegal substances,(c) eliminate trainees’ access to mobile phone signals and illegal electronic equipment,(d) provide the necessary security by means of remoteness rather than physical security, and(e) minimise expenditure on physical security.(2) Subject to subsections (3) and (4) the Secretary of State may—(a) direct telecommunication companies to take steps to have the effect of electronically isolating trainees, and(b) make a drone exclusion order and emit electronic signals designed to cause any drone to crash or to come under the control of the Secretary of State.(3) Before making any direction under subsection (2), the Secretary of State must individually consult every adult resident directly affected by the requirements of any such direction.(4) The Secretary of State may offer inducements and compensation to residents adversely affected by directions made under subsection (2).(5) The Secretary of State may conduct the training mentioned in sections 276G and 276H in such locations as he or she sees fit.276E Training teams (1) The Secretary of State may arrange for trainees to undertake their training as part of a team.(2) The Secretary of State may arrange for training teams to be composed with trainees from multiple regions.(3) The Secretary of State may arrange that the teams are competing against each other, especially in exercises.(4) The Secretary of State may arrange that a team can be disadvantaged in terms of privileges and conditions for the team if—(a) the team does not predominate in a training exercise, or(b) a member of the team commits misconduct. 276F Components of Detention for Training at Her Majesty’s pleasure(1) There are to be three stages of Detention for Training at Her Majesty's pleasure—(a) Basic Compliance Training;(b) Employability Training;(c) Gradual and Safe Release.(2) Trainees must be required to pass out on each stage of training before attempting a later stage of the training.276G Basic Compliance Training(1) The Secretary of State must structure Basic Compliance Training to instil—(a) hope,(b) pride, and(c) discipline.(2) The components of Basic Compliance Training must include, but are not limited to— (a) hope for the future,(b) appearance, dress and bearing,(c) teamwork,(d) nutrition and cooking,(e) basic literacy and numeracy,(f) map reading,(g) first aid training,(h) personal conduct and anger management, both theory and practice, and(i) field craft and camping.(3) The purpose of Basic Compliance Training is to allow the Secretary of State to take greater risks with the trainee and to give the trainee increased personal responsibility for his or her actions.276H Employability Training(1) Employability Training must be composed of trade training, education and personal development.(2) The Secretary of State must structure Employability Training to minimise the probability of re-offending and maximise the offender’s chances of securing permanent good quality legitimate employment.(3) The components of Employability Training must include, but are not limited to—(a) hope for the future,(b) dress and bearing,(c) teamwork,(d) nutrition and cooking,(e) basic literacy and numeracy,(f) map reading,(g) first aid training for a First Aid at Work Certificate,(h) personal conduct and anger management, both theory and practice,(i) adventure training,(j) training in basic fire fighting,(k) training in safe operation of hand-held power tools,(l) training in basic risk assessment,(m) training to acquire a basic construction skills certificate,(n) training to operate a forklift truck,(o) training to erect a prefabricated aluminium access tower, and(p) training exercises both long and short, to test and practise skills.276I Gradual and Safe Release (1) The Secretary of State must structure Gradual and Safe Release to minimise the probability of re-offending and maximise the offender’s chances of securing accommodation and permanent good quality employment.(2) The components of Gradual and Safe Release must include, but are not limited to—(a) arrangements for safe accommodation, not necessarily in the area where the offender was previously resident,(b) arrangements for employment to suit the capability of the offender,(c) requirements not to visit designated areas or places,(d) curfew requirements,(e) abstinence from substance abuse requirements, and(f) tagging requirements. 276J Release on temporary licence for offenders Detained for Training at Her Majesty’s pleasure(1) The Secretary of State may grant Release On Temporary Licence (ROTL) to any offender serving a sentence of Detention for Training at Her Majesty’s pleasure subject to the conditions in subsection (3).(2) When granting ROTL the Secretary of State may require the offender to—(a) wear an approved tag,(b) adhere to geographical limits,(c) adhere to sobriety requirements,(d) not engage in substance abuse,(e) not use an unauthorised mobile phone or other types of electronic equipment, and(f) not meet or communicate with certain persons or classes of persons.(3) The conditions mentioned in subsection (1) are—(a) an offender who has not passed out on Basic Compliance training can be granted ROTL only in exceptional circumstances,(b) ROTL can be granted for weekend leave,(c) ROTL can be granted to enable an offender to travel from one training location to another, and(d) when the offender is on the final stage of Gradual and Safe Release, ROTL can be granted to attend work or live away from prison facilities for extended periods.276K Effect of non-compliance or not engaging with training(1) Where the conditions mentioned in subsection (2) are met, the Secretary of State may apply to the court to have the remaining part of the offender’s sentence converted to a sentence of imprisonment for the remaining portion of the sentence.(2) The conditions mentioned in subsection (1) are that the offender sentenced to be Detained for Training at Her Majesty’s pleasure consistently—(a) fails to make reasonable efforts to comply with the training requirements,(b) makes little or no attempt to address areas for improvement identified by the court under section 276C, or (c) fails to honour the terms of ROTL under section 276J.276L Appointment of mentor for offenders Detained for Training at Her Majesty’s pleasure(1) The Secretary of State must appoint a mentor to each offender Detained for Training at Her Majesty’s pleasure.(2) The role of the mentor is to provide—(a) a positive male role model for the trainee,(b) a lay person with the necessary skills to look after the interests of the trainee,(c) a person to whom the trainee can complain about any mistreatment, perceived or real,(d) a person who can skilfully deal with bureaucracy on behalf the trainee when on Gradual and Safe Release, and(e) a person who can attend any passing out or other events.(3) The Secretary of State and prison governors must engage constructively with any mentor appointed under this section when the mentor is undertaking these duties.””

[Earl Attlee (Con)]

My Lords, I have already sent a detailed paper to most noble Lords. I would like to make it clear that I will not seek the opinion of the Committee or the House at any point. When we debated short sentences and Amendments 212 and 213, I think that most of the Committee was sure that the current prison system was largely ineffective at preventing reoffending. After looking closely at our penal system during 2018 and 2019, I would say that the current system is not able, or even designed, to secure an improvement in education, training and conduct. Without improvements in these areas, reoffending is inevitable. Noble Lords frequently berate Ministers for the poor state and ineffectiveness of our prisons. Rather fewer noble Lords have been prepared to suggest significant reforms and how we could do very much better.

Internationally, we need to be an exemplar rather than a laggard in prison reform. Although there are many areas of potential improvement in our prison system, none is as pressing or potentially beneficial as the management of prolific minor offenders, or PMOs. I am sure that the Committee will accept that it is almost impossible for a functionally illiterate or innumerate young person to secure legitimate employment. At YOI Feltham, I have seen high-quality, well-motivated teachers with good facilities struggle to get illiterate offenders even to sit down in a classroom, let alone learn. I am not convinced that a conventional classroom environment is the right one for these youngsters. Furthermore, they need exceptionally strong incentives to improve their standard of education as well as their conduct. Unfortunately, there can be cultural issues pulling in the opposite direction.

Several factors militate against securing an improvement in their education, training and conduct. Most significantly, within conventional prisons, there is a drug and gang culture with a huge illicit economy, coupled with an illegitimate hierarchy. All this is facilitated by illegal mobile phones. In recent years, I have come to hugely admire prison officers and governors for their work. They do their very best, but it is the regime we ask them to operate that is a problem.

With my Amendment 241, I propose a new sentence for PMOs, and that is detention for training at Her Majesty’s pleasure, or DFT. Release would be dependent upon achieving the required, objectively measured improvements in education, training and conduct, and the level of improvement required would be set by the courts. If the offender fails to make reasonable efforts to comply, the court would be able to require the whole of the rest of the sentence to be served in the conventional secure estate. That is a very strong incentive.

I would like to be clear that this is not a rehash of “short, sharp shock”, a scheme that was designed to be beastly to offenders in order to deter them from reoffending; nor is it a boot camp. With the former, little was done to improve offenders’ skills, so it was not surprising that they continued to reoffend.

The training would be undertaken in remote rural locations in order to sever connection with local gangs, drugs and illegal mobile phones. The remoteness would provide the security rather than the secure estate, with its forbidding stone walls. The training would be undertaken as part of small, multiregionally composed teams, and being a leading light in the Peckham Warriors would not cut much ice. Since the training would be demanding and fulfilling, at the end of the day the trainees would be more interested in sleep than drugs or getting up to mischief.

I will not weary the Committee with too much detail, as it is set out in my amendment, mainly on page 14 and 19 of the Ninth Marshalled List, as well as in my paper. However: the first component is what I call “Basic Compliance Training”, which is designed to instil hope, pride and discipline. Hope is extremely important, because we currently have a suicide rate in the prison system of at least one per week. The purpose of BCT is to allow greater risks to be taken at later stages of the training. One of these could include the use of ROTL, if appropriate, to comply with the recommendations of the noble Lord, Lord Farmer, with respect to contact with families.

The employability training phase is self-explanatory. The point is that trainees need to be given some useful qualifications to make them employable. Take construction work: you cannot just put on a pair of safety boots and walk on to a construction site as a labourer. You need to have a basic construction skills certificate to be safe and competent. DFT would provide the necessary training and testing. This is just an example. Why are we not already providing PMOs with that training—universally and not just in one or two lucky cases?

At the risk of enraging the Daily Mail, I can assure the Committee that there would be elements of fun in the training. This could be especially so in exercises which might be held in an international aid scenario. In my experience, fun is essential to motivate trainees within a disciplined organisation.

The final stage is “Gradual and Safe Release”, which is essentially a glide path to full release rather than what we talked about at Amendment 210, which is a binary “in or out” situation and often doomed to failure. The Committee has already discussed UC and accommodation problems associated with release. There is also provision for a mentor to prevent a variety of adverse outcomes and help the trainee deal with bureaucracy on release.

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[Lord Hope of Craighead (CB)]

My Lords, I have some sympathy for the noble Earl’s amendment because of two experiences of mine. First, I had to undergo 10 weeks of basic compliance training when I did my National Service. It had many of the elements listed here. Hope for the future was there. Certainly, a lot of attention was paid to dress and bearing, teamwork, first aid training, conduct and anger management, fieldcraft and so on. I underwent that for 10 weeks as a recruit. Later in my national service, having become a commissioned officer, I was responsible for training recruits, and I noticed a remarkable difference in their behaviour and appearance between the beginning and the end of the 10 weeks. That impressed on me the value of the training that the Army was then able to provide.

At a later stage in my life, when I was prosecuting criminals, usually in Glasgow High Court, a lot of those who were being prosecuted I could see in my mind’s eye as people who might have been among my platoons of people undergoing training. My great regret was that we had not been able to get hold of them before the gang fights took place that led them to being prosecuted and ultimately going to prison. There is a lot of force in what the noble Earl has suggested. In those days—I am talking about my national service days—there was an enormous force available within the Army to conduct all these procedures. This is not easily managed. You are required to train the trainers and you must have the facilities. However, the philosophy and thinking behind the noble Earl’s amendment has a great deal to recommend it. He is talking about people who have already been convicted, but it would be lovely if one could intercept them before they got into the criminal system in the beginning. We cannot do that but, at least if they have been convicted, we can do something to prevent reoffending, which is what I think his amendment is driving at.

[Earl Attlee (Con)]

My Lords, perhaps I may respond to what noble Lords have said. The noble Baroness, Lady Jones of Moulsecoomb, mentioned young offender institutions. When I was getting educated by Frances Crook, I asked her, “How often do inmates at a YOI get taken out on camp?” She said to me, “John, you should ask how often they are taken out of their cells.”

In response to the noble and learned Lord, Lord Hope of Craighead, I am not proposing conscription or a national service-type solution. However, the points that he makes are absolutely what is informing my thinking. He made a valid point about the need for instructors and I am not proposing the use of the military to provide that function. Prison officers ought to be taking up that role and I envisage, among other things, youngsters who trained as Outward Bound instructors who cannot necessarily get particularly well-paid employment then training as prison officers and being double-hatted. There are a lot of things that we could do if we wanted to do them.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will not address the detail of the noble Earl’s amendment, but I agree with the noble Baroness, Lady Jones, and the noble and learned Lord, Lord Hope of Craighead, that there is a great deal of merit in the call for more and better training within the penal system. We have long taken the view that training within prisons in particular is inadequate, poorly arranged and often unavailable. We therefore commend the noble Earl for the thrust of his amendment and certainly commend him for the care and dedication that he has given to setting it out in detail and in the briefing that he circulated.

We are not convinced of the need for a new sentence of detention for training at Her Majesty’s pleasure but we agree with the heart of the amendment, which is the focus on skills to train for future employment, for which there is a great need. The classroom-style of training does not always work. What is needed is training for skills on the job and for soft skills because, as the noble Baroness, Lady Jones, pointed out, not everyone is suitable for the basic training that perhaps the noble Earl has in mind. There should be a combination of practical, soft and technological skills. We are all for better training. However, we seek the Government’s work to be directed towards the provision of that sort of training—better training and more of it—within the criminal justice system and overcoming the barriers to prisoners being work-ready by the time they finish their terms of imprisonment because, at the moment, there is a serious deficiency in that area.

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I hope that what I have said will reassure my noble friend that we take the issue seriously. We think we are doing quite a lot of what underpins his proposal, and we very much welcome proposals such as this because they stimulate debate and thought. None the less, for present purposes, I invite him to withdraw the amendment.

[Earl Attlee (Con)]

My Lords, I am very grateful for the response of all noble Lords in this short debate. I would tease my noble friend the Minister and invite him at some stage to read a recent report to the Chief Inspector of Prisons that stimulated some of my thinking.

The noble Lord, Lord Marks, mentioned soft skills, which are extremely important. I know that anger management training is done within the prison system, but one thing I envisage is on exercises: the trainees have to practise anger management scenarios where they are faced with someone being stroppy and have to respond in the right way, and you can really only do that in an exercise outside the ghastly prison environment.

That takes me on to the point made by the noble and learned Lord, Lord Falconer, about isolation. The inside of a prison is absolutely ghastly. If you have youngsters who are already mentally fragile, having had a ghastly upbringing, which everyone in this Committee knows about, and then stick them in a conventional prison, it is the worst possible environment. That is why I am proposing that, to try to rebuild these youngsters, we need to do it in the beautiful countryside, not inside a ghastly prison. But I am extremely grateful for the response of the Committee and I beg leave to withdraw my amendment.

Amendment 241 withdrawn.

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[Earl Attlee (Con)]

My Lords, I had a very sheltered upbringing: I do not know where I could get any recreational drugs. If I went to a pub, I would probably find myself trying to buy recreational drugs from an undercover police officer. The one way I could certainly get some drugs is to get myself sent to prison on remand, because I could get drugs in a prison. I would like to hear from my noble friend the Minister what he is doing to stop drugs getting into prisons. It would be very helpful to understand how drugs get into prisons. Who is bringing them in? That is why my previous amendment referred to “remote” and “rural”, because it would be virtually impossible to import drugs into that establishment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this amendment from the noble and learned Baroness, Lady Butler-Sloss. As she said, there is a cycle of offences for vulnerable people with drink and drug problems. In many ways it forms the vast majority of cases that we see in magistrates’ courts. I have come from Westminster Magistrates’ Court today and I can assure her that I dealt with as many drug and alcohol cases as I usually do. To use the word of the noble Baroness, Lady Brinton, the numbers are stuck where they are. Things are not getting better.

The noble Baroness, Lady Brinton, gave a very full and insightful summary of the statistics. I have been a long-standing member of the drugs and alcohol all-party group. This is an intractable problem that we see throughout the criminal justice system.

The initiative from the noble and learned Baroness, Lady Butler-Sloss, is to have a residential rehabilitation unit at the start, essentially, of any potential custodial sentence, and if people dropped out, they would then get a custodial sentence. It might work and it may well be worth a try. I will make one comment—I hate doing this, because one of the consequences of being a magistrate is that one becomes a sceptic, but nevertheless I will say that I think drug therapies work better when people do them voluntarily. I often say to people when I release them on bail on a drugs offence, whatever the offence, “If you can engage voluntarily in drug rehabilitation”—very often those are the same services that they are statutorily required to go to—“then any sentencing court when you come back to be sentenced will look on it more favourably.” Sometimes that message gets home.

Despite that note of scepticism, I still support the noble and learned Baroness’s amendment. It is another approach. There needs to be a multitude of approaches to address this scourge, and this particular approach is worth a try.

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Debate on whether Clause 165 should stand part of the Bill.

[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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Maybe it is going further when you are talking about the 12 people in a jury room and then a 13th and 14th. Maybe that is different; I understand that argument and I look forward to the Minister’s response. But I will just make the point that a colleague of mine is deaf and sitting as a magistrate. I also understand that she sits on other tribunals as well. Having said that, I will reserve judgment and listen to what the Minister says, and I will see what the noble Earl, Lord Attlee, has to say about what he intends to do with this amendment.

[Earl Attlee (Con)]

I would like to quickly pick up on one thing the noble and learned Lord, Lord Hope, touched on, which was the position of a blind juror. I would have no problem at all with a blind juror. I expect that there are blind jurors and that the current legislation in Section 9B already provides for that without any difficulty.

[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.

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I am grateful to the noble and learned Lord, Lord Hope of Craighead, for drawing specific attention to the Scottish research. We were aware of some of that, but we will look at it now in more detail. I am very grateful to him and I have already passed that on to officials. However, for the reasons I have set out, I invite the Committee to permit Clause 165 to be part of the Bill. I suggest that it is right in principle and we can make it work in practice.

[Earl Attlee (Con)]

My Lords, first I pay tribute to my noble friend for his response to our concerns. When I read the Bill, as all noble Lords do, I read it carefully and this clause immediately attracted my attention, because I thought it would be of interest to your Lordships. I think the best course of action is to incorporate this clause into the Bill and then recognise that this matter is far beyond my pay grade and we should perhaps leave it to other noble and learned Lords to pursue it at a later stage if they think it is necessary. I think we should put the question.

Clause 165 agreed.

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[Earl Attlee (Con)]

My Lords, I agree with everything that has been said. One of the most obvious applications for restorative justice would be in the aftermath of a road traffic accident. I touched on this during our debates on road traffic offences. The difficulty is that, in motor vehicle insurance, the contract prohibits the parties from discussing the accident at all, making it impossible to use restorative justice for road traffic offences related to accidents. Can my noble friend the Minister consider this and write to me on the point? I do not expect a reply right now.

[Viscount Brookeborough (CB)]

Restorative justice is a very wide issue, and one should not think that because it does not work for road traffic accidents it does not work. Furthermore, it is done only with the agreement of the parties involved.