My Lords, my noble friend Lord Paddick has addressed the Bill widely, but I want to address just a single globe on the Christmas tree, which did not merit a mention in the Minister’s opening remarks. Clause 169 concerns the extension of the temporary arrangements under the Coronavirus Act for video and audio links in court proceedings. I have nothing against using technology to improve efficiency. Indeed, in the last criminal trial I was involved in some years ago, I found I had to travel to Kingston Crown Court and hang about on no less than five occasions for preliminary hearings, each about half an hour in length. I know your Lordships will sympathise when I reveal that, under our generous legal aid provisions, these sorties were all unpaid. Obviously, video links would have been much preferable—but these are preliminary matters.
During the worst of the pandemic, it was right to keep trials going in the exceptional circumstances by the use of video and audio links. Section 169 pushes
that into the future and goes further: it extends the use of live links to jury members so long as all members of the jury can
“take part through a live video link while present at the same place.”
However, before making these temporary provisions permanent, surely it would now be right to assess to what extent they impinged upon a fair trial.
In June 2020, the Equality and Human Rights Commission reviewed the use of live links and found:
“Almost all the criminal justice professionals in England and Wales who we interviewed felt that use of video hearings does not enable defendants or accused people to participate effectively, and reduces opportunities to identify if they have a cognitive impairment, mental health condition and/or neuro-diverse condition.”
The Bingham Centre for the Rule of Law, to which I am indebted for its excellent briefing, has expressed its concerns. It is important to understand the dynamics of a trial. Central to its success in convicting the guilty and acquitting the innocent is the ability of magistrates and the jury, as finders of fact, to assess the credibility and accuracy of the evidence of a witness, and that includes the defendant. I think we all know that we rely upon body language, expression and tone of voice in making these assessments. We look at the whole person. I have always found it odd that in Number 1 Court of the Old Bailey, the witness box is on the same side of the court as the jury, so its members do not see the witness face to face but catch a sideways view only by cricking their necks to the left; it is like a tennis match.
A full evaluation of the impact of the coronavirus-type virtual proceedings and its effect upon the right to a fair trial is needed. The House of Commons Justice Committee has recommended
“that the Ministry of Justice reviews how well remote hearings have worked for all participants in all jurisdictions before rolling them out further.”
Similarly, the House of Lords Select Committee on the Constitution concluded:
“Research suggests that the format of a hearing may have a substantive impact on the case outcome. If that is true, the shift to remote hearings in response to the pandemic must be scrutinised closely. It is vital that sufficient data are collected to assess the impact of remote hearings on outcomes.”
It also said:
“There are real concerns that remote hearings are disadvantaging vulnerable and non-professional court users, as well as those with protected characteristics. But the requisite data to assess and address these concerns are not available.”
I agree with those sentiments. I should hate to see the day when criminal trials are conducted by a disembodied judge on screen, with a jury on another screen, witnesses on a third, and the only person in court being the lonely defendant in the dock. That would not be a fair trial by any standards.
4.33 pm