Police, Crime, Sentencing and Courts Bill

Lord Thomas of Gresford Excerpts

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

[Lord Judge (CB)]

My Lords, I participate in this debate and support this amendment with personal reluctance. I think I am allowed to say this: my wife spent the whole of her professional working life treating children born with genetic or birth injuries. Her whole ambition was that that little boy or girl should be able to lead a full and complete life as a member of the community. Some of them did lead absolutely full lives, but some were too—to use the word that was used in the days when she was working—disabled to do so. I know from her experience how crucial it is that opportunities are available to people who have either been born with or acquired disabilities of this kind so, on a personal level, I am reluctant.

However, on a professional level, I must remember that I served as a barrister, doing many jury trials, then as a judge, also doing many jury trials. I have dealt with interpreters of language and interpreters for the deaf. I will not say much more than Mr Pannick—the noble Lord, Lord Pannick—did, but I do want to say one or two things.

First, this paper misses that one of the most crucial facts in what a jury must decide is an analysis of who is telling the truth. It is obvious in almost every case. May I draw noble Lords’ attention to a case I had to deal with? A man was charged with rape. There was a long record; it was just after tape recorders were introduced and before the police had learned to realise that you do not bully people into confessions. There on the tape recorder was a clear admission: “I admit I raped her.” The counsel for the defendant gets up and says, “I want the jury to hear the tape recording.” “Why?”, asked the judge—me. “Have you not checked that it is correct?” “Yes, I have, my Lord”, said the defence. “That is why I want the jury to hear the tape. I shall be submitting to the jury that, if they hear the tape, they will realise that the admission that is plain on the paper simply was not a true confession.” Of course, I agreed. The case unfolded and the tape recording was heard. I have no idea what the 12 members of the jury thought about it but, to me, it was perfectly obvious that, after he had been told about 23 times that he had in fact committed the rape, the man said, “All right, I admit it”, in a tone of complete resignation. His mind was not going with an admission; he was just fed up with the fact that the police had not listened to him.

Can we pause and think of that case in the context of the proposal here? What is to happen to a deaf juror who cannot hear the resignation in the admission? The interpreter cannot do it. They cannot say how it is said—for example, “I think that he was reluctant” or “I think that it is a true confession”. The interpreter cannot help the juror, or they become part of the jury. What happens then? What happens in that case is simply a more vivid example of what happens in just about every single criminal case: someone, as the noble Earl suggested, is lying. It may be the defendant. It may be the witness. Perhaps a kind way to put it is that somebody is badly mistaken, if it is a witness. However, the analysis of who is right and who is wrong is a long, drawn-out process in which the jury must see and hear the witness and observe any hesitations or changes of expression. There are all sorts of little clues about how to make the decision on credibility. With great respect, somebody interpreting using sign language is not going to be able to get across the tone in which the evidence is given. It is simply not possible.

I move to another point—the noble Lord, Lord Pannick, has made it already. Go with me into the jury room. I have seen jurors who are very cross and upset. You can tell that when they come back, because they are not agreed on their verdict and there they are: heated, anxious and worried. That is because every member of a jury, or virtually every member, I ever came across was determined to exert himself or herself to fulfil their public responsibility to reach a true verdict, so if they disagree about whether somebody is guilty, of course they are going to get steamed up. How will the dynamics work? Is it really being suggested that, within the jury room, the 12 of them should be together and that every time any one of the 11 who is not deaf makes a contribution, whether a comment, a long sentence or a paragraph, nobody can respond until such time as the interpretation has finished? I do not think that is real. I also think that, with the presence of interpreters—there will undoubtedly be at least two because half an hour of that work is extremely arduous—there will be at least 14 people. Go to any meeting that you are involved in and if somebody is there who is not actually involved, not responsible for what is going on, it changes the dynamic for all.

Let me leave the 13th or 14th person in the room and come to my fundamental objection. It will be the first time, as far as I am aware, when a jury room’s sanctity will be broken. We have always worked on the basis that what goes on in the jury room is private—not just confidential—to the 12 members of the jury. This is a very serious step for us to be taking. I can assure you that the next stage will be, as the noble Lord, Lord Pannick, suggested, “Well, somebody is not able to speak English but has a citizen’s obligation. He or she should serve on a jury with a language interpreter.” I can assure you too—and this is perhaps more urgent—that there will be a whole series of academic professors dying to get into the jury room to see how juries reach their verdicts. So far, we have resisted it—in England, at any rate. What will happen to the confidentiality and privacy of the jury system if we let this door open?

That seems a fundamental issue of principle; it is not a matter of practical possibilities—as things improve, as science and technology get better. We are setting a very serious precedent. Although, of course, we cannot imagine it ever happening, I cannot help feeling in my remote dreams that, one day, a Secretary of State for the Home Department may say, “Why are these people being acquitted? It is a very good thing for us to have somebody in the jury room just to make sure that they are following the judge’s directions to them.”

I have three further points to make. The first is the language point—I have made that. Secondly, what is the role of the deaf juror in the context of his or her obligations to do jury service? If somebody turns up at court who can use or understand sign language, will it be compulsory that he serves on a jury? Everybody else has to turn up; there has to be a very good reason—there is an obligation to act as a juryman. Do we say, “Well, in the case of the deaf person, there’s a special dispensation?” In which case they are not being treated like everybody else. We need to examine that, because I would have thought that there is many a deaf person who would be willing to serve on a jury, but there will be quite a lot who would not.

Finally, while we are examining the proposal made by the noble Lord, Lord Pannick, about possible shadow research, why are we not looking at the technology that is available? It is at least possible that my objection in principle could be addressed through technology. We all know that any time we turn on our television and some extraordinary language from the Baltic countries is being used, little lines come up to tell us what is being said. All members of the Bar with successful practices—and I never did have one—work in courts where all the evidence emerges on a screen as it is given. Why is that not being looked at? Why in relation to the principal issue are we not finding ways that a deaf juror can be accommodated within the jury room without any interpreters being present at all?

[Lord Thomas of Gresford (LD)]

My Lords, I ask the Committee to forgive me for using legal language. Some years ago, I had a case in Newport. It was a murder trial in which the victim was profoundly deaf, the defendant was profoundly deaf and four or five of the witnesses were profoundly deaf. This trial proceeded with three sign language interpreters always in the courtroom: one for the defendant, one for the witness and one behind the judge, positioned so that everybody, including the many profoundly deaf people in the public gallery, could see what was happening.

When I first looked at this provision, I thought, like everyone else would, that surely a person who is profoundly deaf should be entitled to carry out their public duty. But the practicalities of it make that an impossible idea. For a deaf juror, there has to be a succession of people interpreting what is going on in the court in sign language. First of all, that is an immense burden on him—he is different from everyone else; and, secondly, while what is said in the court can be heard by everyone else, we do not know whether the person doing the signing gets it right. Nobody can really tell if that is the case, unless, as in my case, you have someone familiar with sign language in the box with the defendant.

How can we be sure that that juror understands the nuances of a summing-up, in which the judge sets out the law that the jury is to apply? Can it be the case that some other person who knows sign language checks that the proper interpretation is being made of what may be very technical language? As I learned, the sign language interpreter is not translating word for word but is conveying ideas. During that case I also discovered that sign language interpreters and witnesses who give their evidence by signing are quicker than people using ordinary speech. It is not a slower procedure, rather it actually speeds things up; the rest of the court have to hold the sign language interpreters back.

However, in the jury room, there is no way in which a profoundly deaf person can follow the arguments being made—passionate and otherwise: nobody can be sure that every nuance of what the other jurors are saying is being transmitted, and nobody can be sure that an interruption or question from a profoundly deaf person is being accurately translated and represents his thoughts.

I take the argument of principle that the noble and learned Lord, Lord Judge, put forward, but from a practical point of view, and from my experience of that trial, it is impossible for a fair trial to take place.

[Lord Hope of Craighead (CB)]

My Lords, I do not think I can add very much to the points that have already been made on the difficulties which this proposal is likely to give rise to, except to say that one has to remember that hearings in criminal trials take a very long time. I do not know whether we, who have never had to be instructed in sign language, are able to tell whether a deaf juror can maintain concentration by that method throughout the entire day that the trial goes on, and indeed whether the interpreter can conduct that process throughout the entire day without relief. Maybe you would have to have another interpreter to come and take over after a reasonable interval, as you often had to do with shorthand writers in the days when they were used.