Police, Crime, Sentencing and Courts Bill

Lord Pannick Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Monday 10th January 2022 Lords Chamber

I am not arguing that point; I think that videos can, in some circumstances, be suitable. However, I am arguing that when judges or magistrates make that decision, they do it on an informed basis, through a health or a mental health screening. That is the purpose of Amendment 97D. Nevertheless, I will not be pressing my amendment to a vote.

[Lord Pannick (CB)]

My Lords, Amendment 97CA is in my name and those of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks. Unfortunately, the noble and learned Lord, Lord Judge, cannot be in his place this evening because he has been attending a funeral.

Amendment 97CA would remove from the Bill the power in Clause 170 for a court to give a direction that the jury can participate in a criminal trial remotely; that is, in a different location to the judge, counsel and witnesses so long as all members of the jury are in the same place. Jury trial is, of course, one of the cornerstones of our criminal justice system—whether you approve or disapprove of the Bristol jury’s decision to acquit the defendants of criminal damage to the statue of Edward Colston. We need to consider very carefully indeed proposals to amend the way in which the jury performs its functions.

I share the concerns about this proposal that have been expressed by the Bar Council and the Law Society. They say that the success of a jury trial depends in large part on a good working relationship of trust and confidence between judge and jury. The jury needs to be attentive and mindful of its onerous responsibilities; the judge needs to watch the jury to ensure that its interests are protected and it is properly performing its responsibilities. Counsel—both prosecution and defence counsel—need to engage with the jury during the trial. All this is so much harder to achieve through a video screen—indeed, noble Lords will be aware of that from when they have participated in parliamentary proceedings through a video screen over the last two years.

This proposed power requires a strong justification. I listened carefully—I always listen carefully—to what the noble Lord, Lord Wolfson, said in support of this power in Committee and indeed in discussions that I have had with him since, for which I am very grateful. The Minister concedes—indeed, he positively asserts—that this Government have no plan to encourage the use of remote juries. Indeed, they have had no such plans in the nearly two years since Covid-19 began to blight our lives. What the Minister says is that it will be good for Ministers to have this power, just in case it proves useful at some stage in the future. I suggest to noble Lords that it is a very bad legislative practice to confer broad powers on Ministers, particularly powers as controversial as these, just in case they might prove useful at some stage in the future.

The Minister will no doubt give assurances to the House about whether and when these powers might be used. The insuperable difficulty with legislating on such a basis is that the noble Lord, Lord Wolfson, cannot bind his successors in office, who may well have different principles and different policies.

I say to the House that these proposed powers, if ever used, would pose a real threat to the effective administration of justice. There is no current need for them.

[Lord Carlile of Berriew (CB)]

My Lords, I strongly support the submissions made by the noble Lord, Lord Ponsonby, in relation to Amendment 97C. In doing so, perhaps I can give a small insight as someone who has conducted hundreds of jury trials, some of them involving young people—often very naive young people who are in an enormous amount of trouble.

I feel it necessary to say something to the House about the interaction between counsel and the young client. Typically during the course of such a trial, and in my experience this happens more with children on trial than with adults on trial, either, if one is lucky enough to have one there, one asks one’s instructing solicitor to have a word with the client in the dock on some evidence that has just been given, or—if, as is common now, there is no instructing solicitor there—counsel just walks a couple of rows behind to the front of the dock, takes instructions from his or her client about a factual proposition that has just been made and then continues or commences a cross-examination based on the instructions that have just been taken. In other words, there is a dynamic, living, ongoing 24/7 interaction between the advocate and the advocate’s client.

In the last nearly two years we have all been through the process of conducting virtual meetings. In most respects that has worked very well, but, since we have had the experience of going back into real meetings—on and off, admittedly—we have rediscovered the importance of interaction on the details that occur during a discourse. In my view, it could prove very damaging and delaying in trials to have to have that sort of discourse with a client by asking the judge to turn off the devices so that a private consultation can take place. That could look very odd to a jury, as compared to a quick word two rows behind. I therefore ask the Minister to reflect upon the dynamics of a real trial. I should add that not only have I conducted a lot of trials but for 28 years I was a part-time judge. As a judge I have conducted a lot of jury trials, and the same points arise from the judge’s position.

So far as the amendment from the noble Lord, Lord Pannick, is concerned, I agree with him for a similar but different reason. It is based on a relationship, the relationship between the judge and the jury. It is absolutely commonplace—it happens every hour of every day—for the judge to make some kind of contact with the jury. It may be eye contact; it may be an aside; it may be a little joke. You would not believe how much juries laugh at judges’ jokes; judges make jokes and get far greater laughs than any comedian I have ever seen. All this is part of the process of creating a living instrument through a trial that really works on a human basis. If there are to be any jury trials conducted with the jury in a different place from the judge, that must be most exceptional. If the judge and jury were in the same place, it may be that—and this would still have to be exceptional—the judge might come to a factual decision that a fair trial could be held, but it would be a very rare instance where that would work.

If I may put it as high as this, I advise the Government not to go down this road. In my view, it has the danger of disruption, increasing appeals and actually destroying the very essence of the holy grail, as it were, that is part of our criminal justice system: the jury trial. Part of that essence is the relationship between the judge and the jury, and that really cannot be conducted remotely.

--- Later in debate ---

Moved by

[Lord Pannick]

97CA: Clause 170, page 193, leave out lines 16 to 18 and insert—
“(2) Subsection (1) does not apply to a jury or to members of a jury.”Member’s explanatory statement
This amendment would prevent a criminal trial proceeding with the jury (or members of the jury) in a different physical location to the judge, witnesses or counsel.

[Lord Pannick (CB)]

My Lords, I am grateful to all noble Lords who have contributed to this important debate, not least the Minister. In the debate your Lordships have heard that there is, at least, a very substantial risk that the jury being remote from the rest of the trial would damage its ability to perform its functions. The question, then, is whether there is a compelling need for this proposed new power. The Minister very fairly confirmed that there is no current intention to implement the proposed power. I suggest that if and when there is any such intention, that will be the time to determine whether it is appropriate, in such circumstances, to confer such a sensitive and controversial power. Ministers should not be given such powers on a so-called future-proofing basis—to use the Minister’s term. I wish to test the opinion of the House.