Covid-19 and the Courts (Constitution Committee Report)

Lord Thomas of Gresford Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I congratulate the noble Baroness, Lady Taylor of Bolton, and her committee on producing an excellent report in this field.

First, I pay tribute to the prison and court staff who kept the court system going through the pandemic to the extent that they could. It was particularly stressful for them because, with the lack of any contingency planning, they had to cope with new ways of working and new technologies. There was no central direction in the days leading up to 23 March 2020. One by one, Crown Court judges had to take individual decisions on whether to allow jury trials to continue based on inconsistent information and advice. There was no governmental risk planning; if there was, it was confined to Exercise Cygnus, which of course dealt with influenza.

In the weeks that followed, piecemeal solutions were put together jurisdiction by jurisdiction and court centre by court centre. It took months before there were any proper co-ordinated approaches. The High Court and the Court of Appeal coped but Crown Courts, where the bulk of the backlog of cases lies, did not. The digital case system in the Crown Court, which could be a brilliant resource to allow cases to be managed and prepared properly, was held back by the problem of getting jury trials up and running at all.

Some high-profile cases were able to go ahead. The trial for the murder of PC Andrew Harper at the Central Criminal Court led the way, but that case required huge resources involving a remote link to defendants in custody elsewhere. Only a tiny number of cases could be handled in that way.

Nightingale courts in a variety of strange locations—cinemas, theatres, hotels and even a football stadium—were a modest success but were limited because they could not deal with custody cases. You could not bring a defendant to court in a custody case. Custody time limits were extended by statutory instrument from six months to eight months to allow for the pandemic but courts routinely extended custody time limits further, beyond that time period, finding that the pandemic was “good and sufficient cause” for an extension. Eventually, the Divisional Court ruled that this should be followed nationwide in a case of judicial review.

The effect of this was that the defendants remained in custody way beyond the statutory time limit because the Crown Courts could not cope and could not put on trials for them. Now, as the courts begin to recover and tackle the backlog, priority must be given to these custody time limit cases. Other cases, often including serious sexual offences, which have such an effect on the victim, are being vacated from the lists as courts try to catch up on cases where an unconvicted defendant is languishing in prison on remand.

Fundamentally, the pandemic has exposed the chronic underfunding of the criminal justice system, as the noble Baroness, Lady Taylor, pointed out, supported by the noble and learned Lord, Lord Hope. There are not enough judges, nor enough courtrooms, nor enough court staff. Facilities have been shown up as old, defective, inefficient and unkempt; indeed, some were exposed as inadequately clean. Public Health England, which was brought in as part of Exercise Cygnus, was not impressed.

Since the courts resumed, there has been a problem with barristers becoming unwell, just as we in the Lords now find our colleagues falling by the wayside. There is a cohort of experienced criminal juniors who are struggling to cover the work. Some of them are voting with their feet. It is too stressful; the hours are too long and the courts are often not a pleasant working environment.

Paragraph 30 of the report recommends an increase in legal aid to match need. That is a very important finding. The report before us should be read with Sir Christopher Bellamy’s more recent review of criminal legal aid, published last November, which exposed the chronic underfunding that is undermining the profession. The Government have offered to implement at an unspecified point in future the minimum recommendation of the Bellamy review, which is an immediate £135 million investment in criminal legal aid. However, to date, there is no indication of how the money will be spent and the headline figure masks the reality. It is for all parts of the criminal justice system, not just the Crown Courts.

I was impressed by the speech of the noble Lord, Lord Howarth of Newport, a moment ago. He referred to the statutory instrument about legal advice that we debated in this Room not so long ago. Legal advice used to be provided on a green form: legal aid for legal advice was a way in which people could be pointed in the right direction for their problems to be solved. What we had last week or the week before was a statutory instrument to bring about a pilot scheme that will last two years and so cannot come into effect until 2024. That is wholly inadequate. We need to research whether this is required. I remember from my early days that more than 1 million people had legal advice on legal aid without it causing any huge problem.

The criminal Bar has decided that it is too little, too late. On 11 April next, the Criminal Bar Association is going back to a policy of “no returns”; that is, not to provide cover for a barrister who finds himself, by reason of the current deficiencies, listed in two courts at once and has to return his brief to someone else. It is not a strike but a work to rule, and it is planned for next month.

I know that the criminal Bar does not want to damage the system but to improve it. Unhappily, the criminal justice system has not been given sufficient priority in the nation’s recovery from the pandemic—if indeed there is such a recovery as yet.

I heard the noble and learned Lord, Lord Hope, talk about remote juries in cinemas and the noble Lord, Lord Faulks, talk about whether jury trials should exist at all. I have some experience of juries and of jury trials as an advocate. I do not believe that it is right to put a barrier between a jury and what goes on in court. It is a strange thing, but in the whole of my career, I have had only one case in a jury trial where I thought the jury got it completely wrong. I think juries do get it right and they do understand.

When it comes to special juries, we have heard a lot about that in the past, particularly in relation to financial fraud. I have always thought that I would not have confidence, never mind the broader public, in a jury composed of bankers trying a banker for fraud; it is like a jury of policemen trying a policeman for an assault on a member of the public. The whole thing about the jury system is that people come into the jury box with their various life experiences and sit there and listen. They may not follow every point of law that is put to them, but they are part of it. It is particularly important that juries have the confidence of the people of this country. I can well imagine that, if we were to remove jury trials in serious cases, that confidence would not last very long.

There is some research from a very long time ago on the jury system. The same case—obviously, it was not a real case—was put before various juries, one of 12, another of seven and another of, I think, 15. The research showed that, with a jury of 12, the issues in a case are more distinctly and completely covered than with different numbers. I have every confidence in juries, but it is a topic that I think we shall debate long and hard at some future time.