Covid-19 and the Courts (Constitution Committee Report)

Lord Faulks Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Faulks (Non-Afl)]

My Lords, it is a privilege to follow the noble and learned Lord, Lord Hope, and our past, distinguished chair, the noble Baroness, Lady Taylor. I look forward to all contributions in this debate, including from our new chair, the noble Baroness, Lady Drake, who has followed so ably the noble Baroness, Lady Taylor, in her task.

I do not want to repeat what is in the report although, on re-reading it after a little time, I have to say that it seems to make some cogent points. It has been excellently summarised by the noble Baroness, Lady Taylor. The committee was absolutely right to consider that the effect of Covid on the courts was, and is, a constitutional issue. Why is this so? In civil cases, the ability to bring a case to court within a reasonable time is a critical part of a functioning legal system and thus of the rule of law. In jurisdictions where long delays are endemic, people avoid paying debts, often driving creditors into penury, and can by delays render justice an almost unattainable goal. In criminal law, delays are even more serious, if that is possible—for defendants, some of whom may be in custody, for witnesses and, generally, for the ability to have a fair trial.

Covid took, or seemed to take, the world very much by surprise. It is not, of course, over. Another variant—or even another virus altogether—should, I hope, find our courts system much better prepared. The Minister has already been asked a number of questions and, no doubt, in the rest of the debate will be asked many more. Of course, some are posed by the report itself. Although the problems with the criminal justice system long predate his appointment as a Minister, I know that he will answer questions in his usual careful and informative manner. Can he tell the Grand Committee what preparations have been made in the event of a further outbreak of some sort?

As the committee has pointed out and has been drawn to the attention of the Grand Committee, there was already a substantial backlog. I am sure that the Minister will tell us how the courts system is now coping. We were very critical of the backlog and the response to the pandemic, but I acknowledge, as have previous speakers, the considerable efforts that were made by HMCTS to adapt. What, though, is now the position? What is the average wait in a rape case between charge and trial, or in a fraud case?

The use, albeit limited, of Nightingale courts and remote jurors—even in cinemas, as we heard from the noble and learned Lord, Lord Hope—were all attempts to mitigate the backlog but there was no alteration to the fundamental right to trial by jury, a jury of 12 members. The infrastructure and cost of jury trials is considerable. The complications involved in having them in a pandemic cannot be overestimated. We welcomed the greater use of hearings online, which was happening pre the pandemic anyway. We also recommended piloting remote jury trials as having the potential to reduce the backlog.

We considered the question of altering the norm of having juries of 12. There was the possibility that they might be reduced to six or seven, or that defendants with legal representation should be allowed to choose a trial by judge or a panel of judges without a jury. A suggestion was made by the noble and learned Baroness, Lady Hale, of two lay people and a judge instead of a jury, while the noble and learned Lord, Lord Phillips, advocated judge-only trials in response to the pandemic, but only when chosen by the defendant in question. There was also the possibility, ventilated by the Lord Chief Justice, of a judge and two magistrates, which would be much easier to manage than any jury. Labour’s shadow Lord Chancellor suggested having perhaps juries of seven.

There has been precedent for using other than traditional jury trials: in the famous Diplock courts, of course, and during the Second World War. We cover all this at paragraphs 221 to 225 of our report. However, I must point out that, notwithstanding canvassing these options, the committee came to the conclusion that any change to the jury system should take place only after careful consideration by Parliament, with full parliamentary debate preceded by evidence.

Personally—I do not speak for the committee—I think the time has come to think carefully about the future of jury trials. Other countries with mature legal systems do not find them necessary. More than 90% of our criminal cases are, in fact, heard by district judges or trained magistrates assisted by a legally qualified clerk, but for the most serious offences we leave the matter to 12 randomly selected members of the public.

There has inevitably been very little research on what juries think about in how they approach cases, the exception being that of Professor Cheryl Thomas QC. I am happy to assume that the vast majority of jurors approach their task conscientiously and will often come to the right result, or at least a fair result, but we do not know why they convict or acquit. If a judge were to decide the matter, perhaps assisted by magistrates, lay persons or assessors, they would have to give reasons for their decision, which would be capable of analysis on appeal. Appeals in jury cases have to rely on a misdirection by the judge, the admission of some new evidence not available at the trial or a perverse verdict. Incidentally, reasons for a decision are much more compatible with the European Court of Human Rights’ approach, in particular to Article 6.

Let us not forget that all personal injury cases were heard by jurors until relatively recently. That is the biggest volume of civil cases. Until 2013, defamation cases were all tried by juries too. I have not heard it much suggested that justice in these cases has been compromised by the fact that they are decided by judges alone.

Abolishing or reducing the right to trial by jury should certainly not be done without careful consideration by Parliament. Perhaps it could be done incrementally. I suggest that fraud cases would be a good place to start. In 1986, Lord Roskill, a former Lord of Appeal in Ordinary, and his committee made a recommendation along these lines following a number of failed prosecutions in fraud cases. His suggestions were not adopted by the Government, although various other recommendations he made for improvements in criminal procedure were.

We are unfortunately living in a very fraudulent age. The estimated scale of fraud relating to the various financial consequences of Covid grants is quite extraordinary. In the last two weeks the Government introduced the long-awaited economic crime Bill, which recently went through your Lordships’ House. Apparently, economic crime Bill 2 is shortly to be brought to Parliament, with a number of other provisions contained in it. Unfortunately, there is fraud in almost every aspect of society. The Government have set up a kleptocracy unit, while the fallout from sanctions is likely to give rise to a great deal of fraud prosecutions.

It is a feature of fraud cases that the prosecution has to simplify a case to make it digestible for a jury, but it is in the defence’s interest to obfuscate. The question then comes for a jury at the conclusion of a case: “Can you really be sure, in view of this immense complication, of the guilt of the defendant, having regard to all this uncertainty and this huge accumulation of documents?”

Juries, however conscientious they are, are often simply not well equipped to decide these cases. Nor is it—I emphasise this—consistent with the rule of law to wait five or 10 years for a case to come to trial.

I hope that Covid will have the effect of encouraging better investment in our courts system, in the future of the legal profession in the criminal sphere and in the imaginative and creative use of courts, but can it also be a catalyst for thinking seriously about the future of jury trial? The National Crime Agency, the Serious Fraud Office and other agencies are very short of funds and resources, hampering their ability to prosecute cases effectively. The need for a timely and fair prosecution in many of these cases is clear. Covid has exposed the general vulnerability of the criminal justice system. I can only hope that, following the experience of Covid, there will be a general reassessment of what is in the interests of justice and of a better-functioning criminal justice system.