Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

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

[Baroness Williams of Trafford (Con)]

I will most certainly do that. So this is offences where the knife is not actually deployed and the person with the individual with a knife in their pocket would not have known that the knife was in their pocket. Without getting myself into further trouble, I would say that the courts would take those facts into consideration—but I will elect to write to noble Lords with as many permutations and combinations as I can possibly think of before Report.

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

I have no wish to get the noble Baroness into more difficulties, but the problem arises because she said that the court would have to consider the relevance of the carriage of the knife to the offence, and that is quite simply wrong. I would be very grateful if the noble Baroness, before any examples are produced, would concede that, and then discuss whether these amendments are not very important in light of the answer. There is the weakness—the lack of the nexus between the carriage of the knife and any offence that is proved.

[Baroness Williams of Trafford (Con)]

I think I need to reflect further on what noble Lords have said. I will try to answer the noble Lord’s question in a letter before we start talking about examples. We are, after all, in Committee, and I am learning, like other noble Lords, as we go along.

Amendments 226, 226A and 226B would remove the provisions that enable a court to issue the SVRO if two or more people commit an offence but not all of them used or were in possession of the weapon—that is slightly going back on what we were discussing. When a knife offence or offensive weapon-related offence is committed, it is not always the case that all the offenders had the weapon in their hands—as the noble Lord, Lord Paddick, pointed out—during the commission of the offence. But if the court is satisfied that a person knew or ought to have known that another person committing the offence had a knife or an offensive weapon during the commission of the offence, and this person committed an offence arising out of the same facts, we think it would be appropriate for an SVRO to be available. Again, I will put the various permutations and combinations to noble Lords in a theoretical way. This would allow SVROs to be made in relation to all the individuals who were involved and were convicted of such an offence, should the court consider an SVRO to be necessary in respect of those individuals.

This provision intends to cover situations such as a robbery or a fight where a weapon was used by one individual, but where other individuals convicted of offences related to the same facts knew, or ought to have known, that a weapon was being used or carried by another person involved in the offence, even if they themselves were not carrying the weapon. This is very similar to the point made by the noble Lord, Lord Paddick, except that that individual was brandishing the weapon.

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

My Lords, I propose to deal with just one amendment, Amendment 233, which is concerned with the defence of reasonable excuse. I concentrate on that because my noble friend Lord Paddick has covered the ground in this group. But it seems to me—and I agree with what my noble friend and the noble Lord, Lord Coaker, have said—that this group offends against principles of our criminal law and rides roughshod over them, because the overall purpose of the Bill seems to have taken precedence over any degree of thought being given to the detail of what is actually being done.

Amendment 233 in the names of my noble friend Lord Paddick, the noble Lord, Lord Moylan, and the noble Baroness, Lady Meacher, would permit a reasonable excuse defence to an offence committed where an offender subject to an SVRO tells a constable that they are not subject to such an order. The Liberty briefing, for which we are all very grateful, points out that an offender may have committed the proposed offence of telling the police constable falsely that they are not subject to an order even where they honestly and even reasonably believe that the order—the SVRO—is no longer in force, or where they do not understand the question because English is not their first language, or for any other reason.

Looking at the proposed offences under new Section 342G(1), the reasonable excuse defence is presently available only in respect of offences under (a) or (b) of that subsection. The first is if the offender

“fails without reasonable excuse to do anything the offender is required to do by the order.”

The second is where the offender

“does anything the offender is prohibited from doing by the order.”

But there is no reasonable excuse defence available for any of the other three offences. Under (c), I think “notifies the police” means providing to the police,

“in purported compliance with the order, any information which the offender knows to be false”,

while (d) covers denying the order which is the subject of Amendment 233m which I have addressed, and (e) is where the offender

“intentionally obstructs a constable in the exercise of any power conferred by”

the legislation. None of the last three has a reasonable excuse defence available.

In thinking about this proposed section, one is reminded that reasonable excuses may arise in odd and unpredictable ways. Legislation ought to avoid criminalising any behaviour for which the citizen has a reasonable excuse, because criminalising behaviour in these circumstances brings the law into disrepute. If there is no reasonable excuse, the offence is committed and conviction will follow—but if there is a reasonable excuse, there ought to be no conviction.

We have only to remind ourselves that there may be a reasonable excuse for disobeying police officers’ requirements. Tragically, Sarah Everard was persuaded to enter Wayne Couzens’s car, with awful results, because he purported to have the right to require her to do so. We should be open to the view that automatic obedience to the requirements of a police officer is not always sensible, and that offenders, even though subject to SVROs, might well have reasonable excuses for non-compliance with police officers’ requirements.

I suggest that the Minister and her colleagues ought to think about whether reasonable excuse should not be a defence to all these offences. Initially, they might consider that there would not be many cases where a citizen would have a reasonable excuse for non-compliance. But they might also wish to reflect that that does not mean that, in those cases where citizens do have a reasonable excuse, they should be found guilty of a criminal offence. This is an important lacuna in the proposals made here—that reasonable excuse will be no answer to conviction.

[Baroness Williams of Trafford (Con)]

My Lords, as the noble Lord, Lord Paddick, has explained, this group of amendments deals with further aspects of the new serious violence reduction order. Amendments 231A and 231B would remove the requirement for an offender subject to an SVRO to notify the police of their home address; any changes to their home address; the address of any other premises at which the offender regularly resides or stays; or the address of any place they decide to live in for a period of one month or more.

We included notification requirements in the legislation in order to help officers to identify those subject to an order in their area. It is a common feature of other offender management regimes, including in relation to sex and terrorism offenders, so we are not breaking any new ground here. We stated in the draft statutory guidance that the police should use the notification stage to engage with the offender and clarify the effects of an SVRO: that is, to explain to the offender in ordinary language the requirements and effects of an SVRO and what offences may be committed if they breach the order. This, along with an up-to-date description, could be used to assist with future identification when conducting a stop and search. It is therefore important that we keep the notification requirement as currently drafted to ensure that officers are able properly to identify those subject to an order.

Amendment 233 would create a defence so that an offender can tell an officer that they are not subject to an SVRO if they have a reasonable excuse to do so. I do not see any circumstances where it would be reasonable for an offender not to tell an officer that they are subject to an SVRO if they are asked. It may be that the noble Lord wants to cover circumstances where an offender subject to an SVRO has a reasonable excuse for carrying a knife. In such circumstances, it would be for the police, and ultimately the courts, to decide whether the reasonable excuse defence was made out in the event that the offender was arrested and then charged with an offence in relation to the possession of a bladed article or offensive weapon.

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Moved by

[Lord Marks of Henley-on-Thames]

240A: After Clause 163, insert the following new Clause—
“Women’s Justice Board
(1) There is to be a body corporate known as the Women’s Justice Board for England and Wales.(2) The Board is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board’s property is not to be regarded as property of, or held on behalf of, the Crown.(3) The Board must consist of 10, 11 or 12 members appointed by the Secretary of State.(4) The members of the Board must include persons who appear to the Secretary of State to have extensive recent experience with women in the criminal justice system.(5) The Board has the following functions, namely—(a) to meet the particular needs of women in the criminal justice system;(b) to monitor the provision of services for women in the criminal justice system;(c) to advise the Secretary of State on—(i) how the aim in subsection (5)(a) might most effectively be pursued;(ii) the provision of services for women in the criminal justice system;(iii) the content of any national standards the Secretary of State may see fit to set with respect to the provision of such services, or the accommodation in which women are kept in custody; and(iv) the steps that might be taken to prevent offending by women;(d) to monitor the extent to which the aim in subsection (5)(a) is being achieved and any standards met; (e) for the purposes of paragraphs (a) to (d) above, to obtain information from relevant authorities;(f) to publish information so obtained;(g) to identify, make known and promote good practice in—(i) meeting the particular needs of women in the criminal justice system;(ii) the provision of services for women in the criminal justice system;(iii) the prevention of offending by women;(iv) working with women who are, or are at risk of becoming, offenders;(h) to commission research in connection with such practice;(i) with the approval of the Secretary of State, to make grants to local authorities and other persons for the purposes of meeting the aim in subsection (5)(a) and the provision of services to women in the criminal justice system, subject to such conditions as the Board considers appropriate, including conditions as to repayment;(j) to provide assistance to local authorities and other persons in connection with information technology systems and equipment used or to be used for the purposes of the aim in subsection (5)(a) and the provision of services to women in the criminal justice system;(k) to enter into agreements for the provision of accommodation for women in the criminal justice system, but no agreement may be made under this paragraph in relation to accommodation for women in the criminal justice system unless it appears to the Board that it is expedient to enter into such an agreement for the purposes of subsection (5)(a);(l) to facilitate agreements between the Secretary of State and any persons providing accommodation for women in the criminal justice system;(m) at the request of the Secretary of State, to assist in carrying out the Secretary of State’s functions in relation to the release of offenders detained in accommodation for women in the criminal justice system; and(n) annually—(i) to assess future demand for accommodation for women in the criminal justice system;(ii) to prepare a plan setting out how they intend to exercise, in the following three years, the functions described in paragraphs (k) to (m) above, and any function for the time being exercisable by the Board concurrently with the Secretary of State by virtue of subsection (6)(b) below which relates to securing the provision of such accommodation, and(iii) to submit the plan to the Secretary of State for approval.(6) The Secretary of State may by regulations made by statutory instrument—(a) amend subsection (5) above so as to add to, subtract from or alter any of the functions of the Board for the time being specified in that subsection; or(b) provide that any function of the Secretary of State which is exercisable in relation to women in the criminal justice system is exercisable concurrently with the Board.(7) The power of the Secretary of State under subsection (6)(b) includes power—(a) to provide that, in relation to any function that is exercisable by the Secretary of State in respect of particular cases, the function is exercisable by the Board only— (i) where it proposes to exercise the function in a particular manner, or(ii) in respect of a class of case specified in the order, and(b) to make any supplementary, incidental or consequential provision (including provision for any enactment to apply subject to modifications).(8) No regulations under subsection (6) may be made unless a draft has been laid before and approved by a resolution of each House of Parliament.(9) In carrying out their functions, the Board must comply with any directions given by the Secretary of State and act in accordance with any guidance given by the Secretary of State.(10) A relevant authority—(a) must furnish the Board with any information required for the purposes of subsection (5)(b), (c) or (d) above; and(b) whenever so required by the Board, must submit to the Board a report on such matters connected with the discharge of their duties as may be specified in the requirement.A requirement under paragraph (b) above may specify the form in which a report is to be given.(11) The Board may arrange, or require the relevant authority to arrange, for a report under subsection (10)(b) above to be published in such a manner as appears to the Board to be appropriate.(12) In this section “relevant authority” means a local authority, a chief officer of police, a local policing body, a local probation board, a provider of probation services, a clinical commissioning group and a local health board.(13) Schedule (Women’s Justice Board: further provisions) has effect.”Member’s explanatory statement
This new Clause makes provision for the establishment of a “Women’s Justice Board”, along the lines of the Youth Justice Board. The drafting closely follows the form of the provisions establishing the YJB in the Crime and Disorder Act 1998.

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

My Lords, Amendments 240A and 259C in my name and that of my noble friend Lord German, who has had to leave, call for the establishment of a women’s justice board. It has been pointed out in Committee that these are very long amendments. I understood from the noble Viscount, Lord Hailsham, that the second of them may be the longest in what is still, on day 9, an extremely full Marshalled List, but the drafting is modelled on the drafting of the legislation establishing the Youth Justice Board for England and Wales in the Crime and Disorder Act 1998. I do not propose to spend any time considering its detail.

However, it is widely acknowledged that the Youth Justice Board for England and Wales has been a great success. It has benefited from the effect of concentrating effort, research, learning and resources on youth justice. It has focused on recognising and addressing the difficulties of young offenders in the criminal justice system and on helping children to achieve their potential while aiming to minimise the harms that follow from young people’s contact with the system.

Perhaps most significantly, it has had the outcome of the number of children entering the youth justice system reducing year on year. Between March 2006 and 2020, the population of under-18s in custody in England and Wales fell from 2,832 to an average of 780 in the year 2019-20. Of course, the remaining cohort represent the most intractable cases and present the most difficulties. Nevertheless, that success in reducing youth offending has been remarkable. It is the aim of these amendments to establish a women’s justice board that can produce similar successes.

Much has been attributable to the success of the Youth Justice Board in attracting extremely effective and committed leadership. On these Benches, we are very proud of the work that has been undertaken by my noble friend Lord McNally, but the leadership of successive chairs, such as Frances Done and Charlie Taylor, as well as the current chair, Keith Fraser, has been a major factor in the board’s success. Establishing a women’s justice board on similar lines would also be likely to attract effective leaders, who would bring immeasurable benefit to women in the criminal justice system.

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I will add two further points. First, I am concerned about, and conscious of, the time it would take for a new body to be set up and establish relationships with the relevant organisations that would make a real difference. As we have the advisory board up and running, I would rather work with—and improve if need be—the organisations that we currently have. Secondly, there is a cost implication. As a point of comparison, if we are going to look across to the Youth Justice Board, its staff costs alone in the 2019-20 accounts were £5.5 million. I really do not want to divert any money from our primary task of fully delivering the female offender strategy. For those reasons, therefore, which I think are a blend of principle and practicality, I invite the noble Lord to withdraw his amendment.

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

My Lords, I am very grateful for the support of noble Lords from around the House for the proposal to establish a women’s justice board. I pick on two points made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Pannick, arguing that women have very special needs. Those are sufficient justification for considering the establishment of a women’s justice board.

I then move to what the noble and learned Lord, Lord Falconer, said about the establishment of the Youth Justice Board. He talked about how it gave “drive” to the consideration of the needs of young offenders and the assistance and help given to them; I should have mentioned the work of the noble Lord, Lord Warner, as the board’s first chair because it was extremely important. It provides some answer to the point made by the Minister, who picked up on the issue of time. The Youth Justice Board was established in 1998. Under the chairmanship of the noble Lord, Lord Warner, it started work in that year. It is 23 years since then, and every one of those years has been a success. That is extremely important. In the view of those who spoke in favour of this amendment, we could get equivalent drive and movement in catering for the special needs of women through the establishment of a women’s justice board. It is entirely artificial to draw a distinction between youth justice, where there is certainly a separate structure, and women’s justice, where there is no separate structure and women offenders are treated as part of the adult population.

The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Brinton drew attention to the family needs of women and the devastation produced for women and their children by contact with the criminal justice system. When it is acknowledged that women in the system have very particular needs, as the Minister did fairly, it is enough for me to say that the distinction he drew is artificial. I also accept my noble friend Lady Brinton’s point that the women’s justice board would deal with family court issues as well as criminal court issues. Although I have talked about the criminal justice system, the wider justice system and its help for women are also seriously in need of the extra drive of which the noble and learned Lord, Lord Falconer, spoke.

Saying that, I detected some flexibility in the Minister’s speech. I hope that, in discussions with him between now and Report, we may find some room for movement. On that basis, even if he does not admit that flexibility now, I beg leave to withdraw the amendment.

Amendment 240A withdrawn.

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[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.

[Lord Falconer of Thoroton (Lab)]

My Lords, I join noble Lords in commending the noble Earl for the effort and work that he has put into this and the fact that he has thought it through. I also commend what the noble and learned Lord, Lord Hope of Craighead, said. It was obviously not a detention for training centre that he was passed to, but his experience was successful in diverting him from the criminal justice system. That is an indication that it worked, even if he ended up in the criminal justice system as the Lord President of the Court of Session and a member of the Supreme Court.

I very much agree with what the noble and learned Lord, Lord Hope, the noble Lord, Lord Marks, and the noble Baroness, Lady Jones, said. There are parts of this that we would all agree with. However, we on this side would not support this as a separate sentence. If one looks at the detail, it requires the setting up of a number of rural detention centres. The right thing is for the Government to look at the elements aimed at trying to rehabilitate those in the criminal justice system and use them in the existing system, rather than setting up a whole new network. We admire the noble Earl’s work but think that this is not the appropriate way forward.

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I can see where the Minister is coming from, but one has to ask whether there is a realistic prospect of any judge applying his or her mind to the interests of justice ever giving sanction for this to take place—in which case, it may be that this clause is simply not worth the paper it is written on.

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

My Lords, this is a very difficult issue and one on which I would normally expect to find myself on the side of assisting persons with a disability, for precisely the reasons given just now by the noble and learned Lord, Lord Hope of Craighead, but also by the noble and learned Lord, Lord Judge, at the beginning of his speech. That would be assisting persons with a disability such as deafness to take a full part in jury trials, even as members of a jury, so I completely share the reluctance of the noble and learned Lord, Lord Judge, in finding myself opposing the Government’s proposals and wishing to restrict the assistance proposed for people with the disability of deafness.

One has every respect for the fact that similar proposals were considered in Scotland in 2018, as explained by the noble and learned Lord, Lord Hope, but I have come to the conclusion that it is simply incompatible with a fair trial by jury for one or more of the jurors to be assisted by one or more sign language interpreter—it is an important point that it may take more than one to give coverage throughout a trial. It seems to me that the presence of an interpreter in the jury room would raise a number of questions that are simply impossible to answer in a way that is compatible with this new proposal. The questions may reflect some of the concerns that noble Lords and noble and learned Lords have expressed in this debate.

The first is: would the interpreter be bringing a personal view of the evidence and the discussions to bear on the juror concerned, for whom he or she was interpreting? The associated question is: how would we know that the interpreter was bringing that personal view to bear on the juror concerned? The next question is, in one sense, the converse of that: would the contribution of the juror concerned to the deliberations of the jury as a whole genuinely reflect the contribution which that juror would have made had the interpreter not been present? That, of course, affects not just the juror concerned but all the other members of the jury as well.

Then there is a third and very obvious point, made as a result of the speed with which jury deliberations necessarily take place and which reflects the points made by my noble friend Lord Thomas of Gresford: how accurate is the interpretation that is achieved in any particular case? Again, the second point that arises from that is: how is that accuracy to be monitored? How do we know how accurate the interpretation is? Of course, it is not just the interpretation of the contributions to the deliberations that that particular juror has to make, but also the interpretation to that juror of what all the other jurors who might agree or disagree with that juror’s point of view may be saying.

Also, how far would the contributions of other jurors be affected by any actual or perceived views of the interpreter? We come back to the questions raised by both the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, of the dynamics of the jury room. We all know from experience that people gathered together carry different degrees of forcefulness, persuasiveness and believability. It is almost impossible, it seems to me, to rule out forcefulness or persuasiveness on the part of the interpreter, as distinct from the part of the juror concerned.

So I agree with the noble Earl, Lord Attlee, on the principle and with other noble Lords who have spoken on the dynamics of the jury room. I also agree with the noble and learned Lord, Lord Judge, on the point he made about the centrality of privacy in the jury room. We have always believed and held to be cardinal that jury deliberations are private and nobody else should be involved. The noble and learned Lord took the Kafkaesque point that maybe the Government would ultimately want a representative in the jury room. Even if we do not go that far, the principle is there to protect the privacy of jurors. The presence of third parties—or 13th and 14th parties—weakens that. I also take the point that many potential jurors who are deaf may not wish to serve on a jury and may see the effect of their disability as something that cannot be overcome by recourse to an interpreter.

These difficult questions are recognised in Clause 165 by the proposed new Sections 9C(4) and 20I of the Juries Act 1974, which create a new offence of an interpreter intentionally interfering with or influencing the deliberation of the jury. For my part, I cannot see that those proposed provisions could ever provide a satisfactory answer to the problems. The difficulties come not from the risk of intentional interference or influence but from the actual effect of unintentional and unintended interference or influence by a forceful interpreter, or a jury that did not follow what the interpretation was affecting.

Our system depends on the interaction between the views of 12 independent jurors, who have all listened to and considered the same evidence in the same way during the course of the trial. Each and every one of those jurors will have weighed up the truthfulness and accuracy of the evidence given by witnesses giving oral testimony and will have been influenced, partly at least, by the way in which that testimony was delivered. They will have formed their own views of that before they ever get to the jury room.

In this context, Section 10 of the Juries Act requires the discharge of potential jurors with insufficient understanding of English to enable them to act effectively as jurors. They need that understanding in order to interact with and understand the meaning, force, style and believability of the evidence, as they must. As the noble Lord, Lord Pannick, pointed out, no foreign language interpreters are permitted, for obvious and good reasons, and I am entirely unpersuaded that the interests of justice would be best served by permitting interpreters of any language, including sign language, to accompany jurors into the jury room.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there have been some very strong speeches from some very eminent lawyers, talking about the underlying principles of the jury room. Set against that, as the noble Lord, Lord Pannick, said, there are very strong equality arguments in favour of the proposal by the Government.

I served on a jury many years ago, but I want to talk about my experience as a magistrate. Magistrates are both judge and jury. About two years ago, the Greater London Family Panel of magistrates recruited a deaf magistrate. As far as I know, she has been sitting successfully for the last two years. I am in a position to know because I am currently chairman of the Greater London Family Panel and would be told if there were any complaints or observations related to the way she was performing. I have not heard any and, as far as I know, it is absolutely fine. She sits with a regular interpreter, who is familiar to her, and with the other magistrates when they are determining these very sensitive issues.

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[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

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

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

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

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

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

My Lords, I am sorry to speak after the noble Lord, Lord Ponsonby. I wanted to hear what he had to say about his amendments and those in the name of the noble and learned Lord, Lord Falconer.

I speak first to the amendment to which I have put my name, Amendment 259B—on which I entirely agree with what the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, said—about excluding jurors from the operation of the provision permitting participation in criminal proceedings by remote live links.

The proposal in the Bill is that the problem of jurors taking part in criminal proceedings by live link should be dealt with by a requirement that all members of a jury taking part through a live link should be present at the same place. So the suggestion is that, by being present at the same place, the jurors would be able to decide a case whether or not they were physically present at the trial. I do not believe that suggestion is accurate or that it responds adequately to the difficulties posed by the proposal that jurors should be able to attend remotely.

In the last group we considered how important it is for jurors to be able to see and hear witnesses giving their oral testimony live, with a view to assessing the truthfulness of those witnesses and the accuracy of the evidence they give. That involves a very personal judgment about credibility and reliability. Reliance upon that judgment—the independent judgment of 12 citizens, as distinct from the individual judgment of a professional judge—is what marks out the jury system. I believe it is what has given the public confidence in the system that we all have. I do not believe that that judgment is capable of being reliably made by live link.

Post Covid, we can all see the attractions of remote hearings. As a barrister, I have appeared in many such hearings over this period, as I dare say others have—certainly the noble Lord, Lord Pannick, has. For hearings before judges alone, or before arbitral tribunals, they generally work well. Indeed, for many civil hearings, I suspect we will not go back to the system of all-oral hearings for a significant percentage of our work. That will be a matter for individual judges, arbitrators and lawyers, depending upon the particular circumstances of the cases before them.

However—this was the case that the noble and learned Lord, Lord Judge, made—even during the pandemic and despite the pressures of increasing trial backlogs, we have not gone down the road of holding jury trials without jurors being physically present to hear the evidence and being in the same place as the judge. In my view, that is for good reason, so I invite the Government to think again and to accept Amendment 259B.

On the other amendments, having heard the noble Lord, Lord Ponsonby, explain his amendment about the need for health-needs screening, I agree with the noble Lord and invite the Government to accept that, too. As for the amendment in the name of the noble and learned Lord, Lord Falconer of Thornton, I fully accept the argument that it would be unusual for the use of live links to be directed by a judge in a sensitive case involving children, but I can see an argument that some such cases might justify a direction. I see no reason not to leave it to the judge in any particular case to determine whether the use of live links would further or impede the interests of justice. In this regard, we need to remember that refusing a live-links direction may in many cases cause delay in the determination of those cases, and that such delay may lead to particular injustice in cases involving children, for whom an early determination of the issues surrounding their care is often of great importance. So, although I see the point of this amendment, I suggest that it is better to leave it to judicial discretion in cases involving children.

[Lord Deben (Con)]

My Lords, the Committee will know that, as a non-lawyer, I very often attend these debates because I do not trust lawyers to make decisions about themselves. I therefore intervene here because, on this occasion, lawyers have brought to the surface a most important issue.

I am interested in whether people believe that justice has been done, and it seems to me that extending, in these circumstances, the use of technology to overcome the presence of people in court has a fundamental issue for the generality of the public believing that justice has been done. I am a great believer in Zoom and Teams. They have made my life a great deal better and I have spent more time in the beautiful countryside of Suffolk than I had been able to do before, but I am very conscious of the fact that there are many things that you can do perfectly well—indeed, better—through these techniques and there are some things that you cannot. One of the things you cannot do is replicate the public’s confidence in the concept of a jury. The point, which was made by the previous speaker so adequately, is that it is different, and our system is different because we have this element.

I cannot believe that there are circumstances when it would be sensible for the jury to be in one place and the judge in another. Therefore, I wish to say to my noble friend, whose explanations throughout today and previous days have been remarkable—he has been able to defend some very peculiar things more effectively than most people have managed to do, certainly in the other House—simply this: we have here a position in which it is hugely important that the public should feel that justice is done. I do not believe they will if we do it this way.

As somebody who was a Minister for 16 years, I warn him that I see the civil servant here, who said to some Minister somewhere, “Better do this in case”. Some of the cases proposed are frankly incomprehensible, unlikely and totally beyond any sense—but it is the duty of civil servants to say, “Better not leave this out, Minister, lest it should happen and then we’d be in trouble”. I suggest to my noble friend that he would be in less trouble by not doing some of these things than he would be in the extreme possibility that he might need this power.

--- Later in debate ---

[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.

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

My Lords, we welcome this amendment and the opportunity to discuss restorative justice. We are very grateful to the noble Lord, Lord Coaker, for relaying the views of the noble Baroness, Lady Meacher, who has a long-held commitment to restorative justice that is well known.

We fully support the amendment and are concerned that the Government should take in how important restorative justice is felt to be in this House. This debate has given us the opportunity to make that clear. We were privileged to have the explanation of the reasons for restorative justice and the comprehensive account of its birth and development from my noble friend Lady Harris, who set out, from her experience of police work and as a magistrate, how restorative justice has developed and its value.

The amendment is important because we—some of us, anyway—have concerns that, although there is this commitment around the House, there may be a danger of progress stalling. That is why it is so important that there should be a call for the preparation of an action plan, that it should be laid before Parliament and that there should be a report on the progress on restorative justice.

Members of the House will have been interested to hear the account of the noble Viscount, Lord Brookeborough, on how restorative justice developed in Northern Ireland from a state of great hostility, where real potential enemies were confronting each other, and how restorative justice became reflective of community justice as perpetrators and victims came into contact. He made the point that this was very much not a soft option but was victim based, and that analysis from the circumstances in Northern Ireland was, I felt, reflected by the analysis of my noble friend Lord Paddick, who gave the history of restorative justice in London and dealt with the achievement of victim satisfaction and, interestingly, a greater feeling of safety on the part of victims. He also talked of the benefit for perpetrators in the contact between the victim and the perpetrator; that was a point made by the noble Lord, Lord Blunkett, who was one of the signatories to the amendment.

I will be very interested—we will be very interested—to hear the Government’s response, which we hope will give us an indication that the Government take restorative justice as seriously as the speakers this evening do and that their commitment to it will be increasing and continuing.

[Lord Wolfson of Tredegar (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for proposing the amendment in the name of the noble Baroness, Lady Meacher, who is unable to be with us this evening. She spoke eloquently at Second Reading about the benefits of restorative justice, and I am very sorry that she is not in her place this evening. I am sure that I speak for the whole Committee in wishing her well. She did, however, have a meeting with me on this topic, and I record my thanks to her for her time and for the discussion. She expressed concern that the Bill did not include provision for restorative justice. The amendment is trying to fill that perceived gap by requiring the Home Secretary and the Justice Secretary to publish an action plan for restorative justice every three years.

I am grateful to the noble Baroness, Lady Harris of Richmond, for her support for restorative justice. I agree that, in the right circumstances, it can have far-reaching benefits. I have heard and felt the mood of the Committee on this point, but the truth is that I did not really need any persuading as to the importance of restorative justice. It can bring those harmed by a crime and those responsible for that harm into communication, and it can help everyone affected by the crime to play a part in repairing the harm; that is commendable. The Government support restorative justice where it can be suitably used.

However, with respect to the noble Baroness, Lady Bennett of Manor Castle, I would draw a distinction between civil cases and criminal cases. We have to remember that in a civil dispute—this is part of the answer to the road traffic point, but I will write to my noble friend as well—there are two parties before the court. I can settle my case on whatever terms I want if the other person agrees. When it comes to crime, there is a public interest; we prosecute in the name of the public. We do not allow victims to determine always whether the offender serves a punishment or not. I am not saying that restorative justice is not applicable, but we have to remember that there is a different set of criteria and principled underpinnings to our civil justice system and our criminal justice system.