My Lords, this group contains amendments covering the application of live links to children and vulnerable people as well as to remote juries. I will come to the remote juries point separately later.
First, to make sure that we are all on the same page, I remind the House that Clauses 168 and 169 do not mandate remote or video hearings. How a hearing is to be conducted is a matter for judicial decision on a case-by-case basis. These clauses ensure that, if appropriate, observers can watch a hearing taking place to ensure that the principle of open justice can be maintained.
Amendments 97A and 97B seek to prohibit remote observers from being present in all cases in which a child is among the parties. Amendment 97C similarly
seeks to remove children from the application of Clause 170. I suggest both these amendments are unnecessary and would inhibit both the principle of open justice—which is a fundamental principle in this jurisdiction—and the principle of judicial discretion. It would inhibit the ability of courts to use audio and video technology where the court sees fit and when it is in the interests of justice to do so.
I turn first to Amendments 97A and 97B. The effect of these amendments would be that all such remote hearings would effectively have to be held in private, including, for example, any multiparty litigation in our civil courts or tribunals in which a single claimant—perhaps one of a number of claimants—is under 18. That would unnecessarily constrain the transparency of our justice system and impede the principle of open justice.
While I accept the sentiment that underpins the amendments, they are unnecessary because we have sufficient tried-and-tested legislation in place to safeguard the privacy of children in these proceedings. That is set out in Section 47(2) of the Children and Young Persons Act 1933. We also have existing procedure rules under which the court can hold any hearing in private in order
“to protect the interests of any child or protected party”.
Therefore, I suggest to the House that that statutory provision and the procedure rules provide sufficient protection to safeguard the privacy and well-being of young people in the justice system, whether the hearing takes place in-person or remotely.
Amendment 97C would prevent the court making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings. Again, it is important to protect the interests of children, but we have clear support and guidance in place which mandates the court to consider and have regard to the welfare of the child, to make sure that each child is fairly assessed and represented, is sufficiently supported, can understand what is happening, and is able to engage and participate in proceedings and be kept safe. That is set out in the Criminal Procedure Rules and criminal practice directions.
I recognise, as the noble Lord, Lord Carlile of Berriew, said, that, in the majority of cases, it may well be more appropriate for children to attend a hearing in person, and the Criminal Procedure Rules recognise this. But one must recognise that there may be situations where it is more beneficial for a child, whether as a witness or a defendant, to participate by live link; for example, to protect a child witness from having to be in court with the defendant. Clause 170, as drafted, gives the court that inherent flexibility.
I will come to Amendment 97D in a moment but let me first turn to Amendment 97CA, tabled by the noble Lord, Lord Pannick, which seeks to exclude juries from the provisions in Clause 170 that would otherwise allow a jury assembled together to take part in a trial through a live video link, where appropriate and where the court has decided that it would be in the interests of justice to do so. I will come to the detail of the amendment in a moment, but let us not lose sight of one important point. This amendment is designed to
strengthen and support the jury system. It is designed to ensure that we can continue to hold jury trials in circumstances where it might otherwise be impossible, as we experienced for a certain time in this jurisdiction during the pandemic. I am pleased that we were one of the first jurisdictions in the world to get jury trials back up and running, but we could not do as many as we would normally because of the social distancing constraints.
Why are we so keen to maintain jury trials? The answer is simple and perhaps a little topical. The jury is a fundamental part of our criminal justice system. To adopt the words of the noble Lord, Lord Pannick, it is a cornerstone of our liberty. True it is that the cornerstone gets a little defaced with some graffiti from time to time, but it is, none the less, a cornerstone of which we should be proud.
The noble Baroness, Lady Bennett of Manor Castle, threw something of a gauntlet down to me. I am very happy to pick it up, briefly. Juries sometimes return verdicts that raise an eyebrow, but I know from bitter experience that it is not unknown for judicial decisions to trouble the eyebrows too. In a proper case, there is a procedure, once the jury has brought in its verdict, to ask the Court of Appeal to consider and determine specific points of law to assist in future cases without disturbing the actual jury verdict in the instant case.
If the noble Baroness wants to have a crack at my right honourable friend the Attorney-General, she can, but she cannot, I am afraid, stand up and have a crack at her while betraying fundamental ignorance of the underlying legal principles. Counsel in the case himself said that his arguments were “new and complex”. Those are precisely the points which would be suitable for reference under Section 36 of the Criminal Justice Act 1972, a provision with which I am sure the noble Baroness is very familiar. I am also sure that she has read the recent case in the ECHR of Handzhiyski v Bulgaria, decided on 6 April 2021, which discussed in terms whether the provisions of Article 10 of the ECHR did or did not apply to a charge of criminal damage.
I am very happy to respond on the glories of the jury system, but I respectfully suggest that, if the noble Baroness is going to make a point about the conduct of the Attorney-General, she looks at the underlying legal position first. There are certainly points in the Colston case which an Attorney-General might properly decide to, or not to, refer to the Court of Appeal. That is a matter for the Attorney-General.
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Let me turn to the detail of the amendment and repeat what I said at Committee: there is currently no intention to put this provision into practice and have a jury attend a criminal trial by way of a live link. More than that, this is not a decision we could take alone; we would first need to undertake significant consultation with the Lord Chief Justice, the independent Criminal Procedure Rule Committee and other criminal justice partners. If the Lord Chief Justice and the Criminal Procedure Rule Committee, which is a judicially led body, decided to put this measure into practice, they would decide how it would be done. The terms and conditions of its use would be dictated by guidance
from the Lord Chief Justice and the Criminal Procedure Rules. As with all live links, individual judges—who are ultimately the masters of their own court—would make the final decision on whether its use was appropriate and in the interests of justice on a case-by-case basis. While I do not want to gloss the clause, I suspect it would be used only in cases where it was absolutely necessary.
This provision is a future-proofing measure. It is about being open to the potential benefits of using tried and tested technology which can ensure that the justice system continues to function, at an even better rate than we did, if there is another pandemic in this country or if, in fact, there is another variant—God forbid—in the existing pandemic. It is about keeping the jury system running and the wheels of justice turning.
I respectfully disagree with the noble Lord, Lord Pannick, in so far as he rests his case on the proposition—I think this was picked up by some other noble Lords as well—that it is simply not possible to have a jury in one room and the judge and witnesses in another room. There will be trials where you could and there will be trials where you could not. I say that with some confidence, because a jurisdiction not a million miles away from here did precisely that during the pandemic: Scotland held jury trials with the juries attending remotely in another room. Sometimes the juries were in a cinema, and saw the court on the big screen. Despite the fact that my noble and learned friend the Advocate-General is not in his place, I would be very slow to suggest that anything they do in Scotland is incapable of being replicated in England.
I hear very clearly the points made by the noble Lord, Lord Macdonald of River Glaven, about the demeanour of witnesses. I would, however, make two points. First of all, in international arbitration, arbitrators often have to decide truth or falsity when the whole thing is done on a screen. Secondly, the demeanour of a witness can sometimes actually put people off; for example, more credence may be given to the way someone says something, rather than to what is being said—there is a lot of interesting academic literature on this. So it is not as simple as saying that the jury has to see the person give evidence because that will enable them to decide whether or not they are telling the truth. I know a similar point was made by the noble Lord, Lord Marks of Henley-on-Thames.
Let me also briefly pick up the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who I think was speaking for two judges when he spoke. Again, of course I accept, with respect, the points he made, but point out that, in Scotland, they did this and they managed, and the sky did not fall through—if I can adopt the traditional judicial metaphor. For those reasons, I respectfully invite the noble Lord, Lord Pannick, not to press his amendment.
Let me finally say a quick word about Amendment 97D. This would require any person taking part in any kind of criminal online hearing to have a physical and mental health assessment before live links were introduced. Of course we accept what the noble Lord, Lord Ponsonby of Shulbrede, says about the importance of making sure that people can participate and be properly assessed. But live links do offer a way
for vulnerable court users to participate in proceedings which might otherwise feel overwhelming for them. We are concerned that if we adopted a blanket approach of time-consuming and possibly intrusive physical and mental health examinations, those benefits for some vulnerable court users might be undermined.
For those reasons, I invite the noble Lord to withdraw the amendment.