My Lords, I strongly support the submissions made by the noble Lord, Lord Ponsonby, in relation to Amendment 97C. In doing so, perhaps I can give a small insight as someone who has conducted hundreds of jury trials, some of them involving young people—often very naive young people who are in an enormous amount of trouble.
I feel it necessary to say something to the House about the interaction between counsel and the young client. Typically during the course of such a trial, and in my experience this happens more with children on trial than with adults on trial, either, if one is lucky
enough to have one there, one asks one’s instructing solicitor to have a word with the client in the dock on some evidence that has just been given, or—if, as is common now, there is no instructing solicitor there—counsel just walks a couple of rows behind to the front of the dock, takes instructions from his or her client about a factual proposition that has just been made and then continues or commences a cross-examination based on the instructions that have just been taken. In other words, there is a dynamic, living, ongoing 24/7 interaction between the advocate and the advocate’s client.
In the last nearly two years we have all been through the process of conducting virtual meetings. In most respects that has worked very well, but, since we have had the experience of going back into real meetings—on and off, admittedly—we have rediscovered the importance of interaction on the details that occur during a discourse. In my view, it could prove very damaging and delaying in trials to have to have that sort of discourse with a client by asking the judge to turn off the devices so that a private consultation can take place. That could look very odd to a jury, as compared to a quick word two rows behind. I therefore ask the Minister to reflect upon the dynamics of a real trial. I should add that not only have I conducted a lot of trials but for 28 years I was a part-time judge. As a judge I have conducted a lot of jury trials, and the same points arise from the judge’s position.
So far as the amendment from the noble Lord, Lord Pannick, is concerned, I agree with him for a similar but different reason. It is based on a relationship, the relationship between the judge and the jury. It is absolutely commonplace—it happens every hour of every day—for the judge to make some kind of contact with the jury. It may be eye contact; it may be an aside; it may be a little joke. You would not believe how much juries laugh at judges’ jokes; judges make jokes and get far greater laughs than any comedian I have ever seen. All this is part of the process of creating a living instrument through a trial that really works on a human basis. If there are to be any jury trials conducted with the jury in a different place from the judge, that must be most exceptional. If the judge and jury were in the same place, it may be that—and this would still have to be exceptional—the judge might come to a factual decision that a fair trial could be held, but it would be a very rare instance where that would work.
If I may put it as high as this, I advise the Government not to go down this road. In my view, it has the danger of disruption, increasing appeals and actually destroying the very essence of the holy grail, as it were, that is part of our criminal justice system: the jury trial. Part of that essence is the relationship between the judge and the jury, and that really cannot be conducted remotely.