Not Gushing In Gratitude

At 7:02 pm today, Baroness Fox of Buckley delivered this speech in the House of Lords:

My Lords, it is rather intimidating following the noble and learned Lord, Lord Leveson, who gave such a compelling and insightful description of the crisis at the heart of criminal justice, but, put quite simply, no matter how bad that crisis is, rolling back jury trials cannot be the solution. In fact, many of us were relieved that the Government listened to the huge outcry against the earlier widespread removal of the jury trial, but if the Prime Minister has given an inch, for which I am a little grateful, forgive me for not gushing in gratitude.

I say this because so many of my Labour friends have told me that the attack on juries has been halted by Andy Burnham. That is just not true. This Bill continues an assault on juries, by removing a defendant’s right to choose a Crown Court trial for “either way” offences. That is not nothing. It means that sexual offences, violence and dishonesty can be treated as summary justice, like parking offences, with no right to appeal. Magistrates’ roles have been completely rewritten, now with expanded sentencing powers to lock up their fellow citizens for up to two years. I see this only as a recipe for miscarriages of justice. The Bar Council calls it a dangerous experiment.

Surely our elected colleagues in the other place would never have nodded through such a dangerous experiment without a comprehensive parliamentary kerfuffle about what is in this Bill. Sadly not. In the spirit of the noble Lord, Lord Rooker, I make the complaint that the Report stage in the other place was allotted only 2.5 hours to consider dozens of new government amendments, as the noble and learned Lord, Lord Garnier, referred to. Given that the Hansard Society considers those changes as fundamentally recasting the Bill’s purpose, that puts real moral pressure on this House to carefully consider whether the Bill is fit for purpose.

The Law Society urges us to judge the Bill by asking whether it will help break the cycle of crisis management or simply shift the problems from one overstretched part of the system to another. It seems to me to mirror how early release to tackle prison overcrowding has created havoc in the Probation Service and put the public at risk. Now we threaten a perfect storm in the magistrates’ courts, which have their own backlog. People have described how their workload has increased by 65% in the past three years and so on, but the Bill is offering them a poisoned chalice, is it not? It is telling people who might be considering being a magistrate or who are a magistrate that they can now lock up more people for longer, assess all the evidence and mitigating factors, write legal explanations and so on, and replace the jury. Does the Minister have any evidence that magistrates who donate their public service want or are attracted to these new burdens? Is it not changing the service completely?

One could have some sympathy with Ministers for harbouring a mistaken belief that removing increasing numbers of jury trials could save time, but it is telling that juries were, and still are, one of the key targets of action, rather than greater urgency in tackling the numerous avoidable inefficiencies and mismanagement that we have heard so eloquently explained.

I worry that the Government seem at ease with sacrificing fundamental rights to patch-up their own administrative failures. Perhaps the Minister can explain why the Government rejected any time-limited sunset clause that would at least ensure that this curtailing of jury trial rights would end once, or if, the court backlog was cleared, as was proposed in the other place. Instead, the Minister, Sarah Sackman KC, justified the erosion of jury rights as part of a “lasting improvement” in the operation of a modernised, fairer justice system. Can the Minister clarify whether the official position is that less use of juries will be fairer? It is hard not to agree with Judge Rivlin, whose recent paper on this Bill states: “I believe the enormous, scandalous backlog of cases has become an ‘opportunity’–some might say, an ‘excuse’–to recycle a long-held antipathy to jury trial”.

It is that implicit antipathy that worries me, particularly about Clause 3. It contains a prejudice that juries are just not up to the job of dealing with complex fraud cases. In case the public find that insulting, the Minister today justified relieving juries of that onerous burden by saying that having to sit on juries for too long is bad for their welfare and their family life. That was insulting in itself, but this bout of kindness towards the public’s well-being might be more convincing if it was not attached to a part of the Bill in which the Secretary of State, outrageously, has conferred on themselves the power to add to the list of complex offences without parliamentary veto. That was passionately opposed by the noble Lord, Lord Howard, and I agree. It is completely anti-democratic to do that.

What is more, the inference that some issues are much better dealt with by judge-only trials, full of clever experts and specialists, not only indicates a disdain for the public’s capacity or intelligence but gives up on the principle of open justice by abandoning the obligation to present cases in an understandable, intelligible way for the judge, jury, defendants and victims, as well as for the media and the public, as is part of the democratic agreement. As Jonathan Fisher KC explains, “Trying fraud without a jury risks the perception of opacity or special treatment”. He worries that it could, “feed the narrative that powerful defendants are judged behind closed professional doors”.

It seems unfathomable that, at this of all times, when there is existential distrust in the establishment and a widespread belief that there is unfair two-tier justice, some members of the establishment are trying to dismantle the one trusted norm of criminal justice, the right to be judged by your peers, and the one civic obligation that millions embrace despite the discomfort or the inconvenience, jury service. Those 12 randomly selected ordinary people with 12 different lifetimes of experience and knowledge create 12 chances for a lone voice to speak up and say, “Wait! Something is not right here”. That crucial voice has historically prevented miscarriages of justice, seen through the lies and denials of perpetrators, however respectable, and checked state overreach. There are no nodding heads or voting fodder there. Juries embody fresh eyes, disinterested questioning and the virtues of persuasion, deliberation and common sense pursuing truth. To be honest, we could do with a lot more of it, not least in Westminster.

Finally, I am very torn on Clause 16 and the plans to remove the law of presumption in relation to parental contact. It has been extremely well explained by the noble Baroness, Lady Barran. We are told that removing this presumption sends a clear signal, but to who? I am not keen on using legislation for PR messaging purposes. I was also brought up short by a quote I read from the noble Baroness, Lady Levitt, who said: “Being a parent is a privilege, not a right. The only right that matters is a child’s right to safety”. Surely a privilege is something that the state grants and can take away. Is the state saying that it owns parents’ rights? Actually, parents do have rights. I fear this is state overreach that risks making family courts ever more antagonistic. It is an attack on family rights. I hope the review that has been planned in the Bill will extend itself to Clause 16, because a lot of answers are needed there.