Covid-19 and the Courts (Constitution Committee Report)

Lord Ponsonby of Shulbrede Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank my noble friend Lady Taylor of Bolton for this extremely interesting report. As she said in her introduction, it may be a year old, but it deals with issues which we are still dealing with today, and it addresses the context, if I can put it like that, of the way in which the criminal justice system went into the pandemic. She very fairly gave the historical context of the underinvestment in our criminal justice system.

The speech which I had prepared was to go into the statistics of it all—the backlogs, the appalling statistics particularly for sexual-related offences taking a long time to court—but a number of noble Lords have rehearsed those statistics, so I shall not go through them again now.

I thought I would go through the speeches we have heard and draw out the points that were of particular interest, and offer my experience on those matters. I just remind the Committee that I sit as a magistrate in London and deal with adult, youth and family law matters.

My noble friend talked about the digital challenge, as we went into the pandemic, and the uneven picture between the higher and the lower courts, which did not respond as immediately. I sat as a family magistrate throughout the pandemic. We did not stop. Within a week, I was personally operating from my dining room table, originally doing cases by telephone and then eventually by MS Teams. We found a way of working around the cases.

Just to give a bit more background, I am currently chairman of the Greater London Family Panel of 300 family magistrates in London. The panel responded to the Nuffield Family Justice Observatory report, to which my noble friend referred. I am aware of the shortcomings that that report highlighted. Sir Andrew McFarlane encouraged us to respond and we did so. It is difficult not being defensive, given the shortcomings that were identified, but I will just say that there was no alternative but to hear the cases that we did, because children’s safety was at stake. I literally took children away from their parents by telephone in the early days of the pandemic. I think we did the right thing, although there were shortcomings in the system.

My noble friend went on to say that some aspects of working remotely are beneficial. She cited domestic abuse cases, which is fair. I also deal with domestic abuse cases, in different formats and in different jurisdictions, and it is now part of the working process to think about what is best for each particular case.

I also know about the National Police Chiefs’ Council saying it would stop using remote remand hearings. My understanding is that it is a resourcing issue for the police in police stations, and it is a matter of regret to the court system that we were not able to do remote remand hearings and that prisoners actually had to be brought to court. Literally only a couple of years ago, we were able to deal with remote remand court cases when people were still in police stations.

The noble and learned Lord, Lord Hope, also gave some statistics, the experience of Scotland and some historical context, if I can put it like that. The different approaches taken in Scotland were interesting. In my experience of the differences between England, Wales and Scotland, people are very open to looking at alternative ways of working. I occasionally talk to colleagues in Scotland about the way they are addressing similar issues to us.

The noble Lord, Lord Faulks, spoke very effectively about how Covid in courts is a constitutional issue. I agree. He also said that, for some people in various parts of the criminal justice system, justice seems an unobtainable goal. I agree with that as well. He asked the Minister, and I would be interested in his response, about preparations for a future outbreak, if that were to happen.

The noble Lord then went into a greater exposition, if I can put it that way, about the various alternatives to jury trials that had been considered. I thought it might be worth telling an anecdote, speaking as a magistrate and a Labour Party member, about speaking to the then shadow Justice Secretary, David Lammy, about why the Labour Party was supporting jury trials over the alternatives. His response was simple: he said that people trust jury trials more than any alternative. The second point he made was that disproportionality—the make-up of the people taking the decision—is more likely to be accommodated with 12 people than it would be if there was some alternative arrangement. Those were the two points that David Lammy made to me about why the Labour Party supported jury trials continuing through the pandemic.

I thought an interesting point was made about fraud cases. I realise that is a much bigger debate, which is not really for today.

I was pleased that my noble friend Lady Drake spent some time going into the situation in family courts. She quoted Sir Andrew McFarlane and spoke about her experience on the All-Party Group on Kinship Care, citing the concern that there is effectively a rationing of family courts. The piece of jargon which we sometimes use in the family court system is that the local authorities are encouraged to “hold the risk” within themselves, rather than passing the cases on into the court system. The consequence is that cases which do turn up in the family court system are more serious, more advanced and more difficult to deal with. That is a policy decision and partly resource driven. Nevertheless, it has a very real effect: although the numbers of cases are going up, their actual complexity and seriousness are going up as well.

My noble friend Lady Drake also talked about kinship carers not joined to public law cases. She must be a mind reader. I was in a family court earlier today in Holborn and we were dealing with exactly that issue: whether to join some grandparents in private law proceedings to look after their grandchildren while, in parallel, there was a public law case for the children to be potentially taken away into care. It was a little example of the difficulties that the court faces because, although I was physically sitting in court, we were doing it remotely and the connection was extremely poor. The grandparents were not prepared for the case we were hearing. In fact, it had been wrongly listed in the first place, so it was an administrative problem. It did not work very well; I hope it works better next time.

My noble friend Lord Howarth of Newport gave an awful lot of background. I will not repeat the points that he made, because it was a tour of the horizon. Similarly, I endorse the tribute of the noble Lord, Lord Thomas, to court staff and prison staff. They behaved absolutely heroically, in my experience, and kept things working. I will not go into the other points that the noble Lord made because he made them from a source of greater authority than I would be able to match. However, I will be very interested to hear the Minister’s response to the various questions which have been put to him.