Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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My Lords, it is a great pleasure to follow the noble Lord, Lord Clarke, since he sets the foundations of what I am about to say. I agreed with everything that he said except his conclusion.

This Bill does two things. It creates a legal fiction that Rwanda is a safe country for asylum seekers and it purports to exclude the courts of this country from examining that fiction. Let us first consider the morality of creating a legal fiction that a country is a safe haven for an asylum seeker when in fact, as the Supreme Court has found and this House has agreed, it is not. Is it in accordance with the ethical standards which the British people were once proud to carry across the world to deal with refugees from oppression, or indeed, any person within this jurisdiction, on the basis of a lie—a lie which may put their very lives in danger, not least for the reasons given by the right reverend Prelate the Bishop of Durham?

How is that legal fiction, this lie, to be created? By the “judgement of Parliament”. This is a new constitutional concept. It is certainly not a judgment in the legal sense, which requires an impartial tribunal, weighing the evidence and arguments on both sides of an issue and coming to a considered conclusion. How then is the “judgement of Parliament” to be ascertained? By a majority vote? In which case, the upper House of Parliament has determined that, for the moment, Rwanda is not safe. It seems that the Government construe the “judgement of Parliament” as a majority vote in the House of Commons only.

Your Lordships will quickly appreciate that the so-called “judgement of Parliament” is a very different animal from a legal judgment of the Supreme Court. “Judgement” is even spelled differently in the Bill from the conventional spelling of a court judgment. It cannot subsume or supplant the legal judgment of the Supreme Court. In our constitution, under the doctrine of the separation of powers, it cannot usurp the Supreme Court’s function.

Sir Winston Churchill championed the ultimate sovereignty of law in his History of the English-Speaking Peoples, where he wrote, in volume 2, page 169:

“The underlying idea of the sovereignty of law, long in existence in feudal custom, was raised into a doctrine for the national state. When in subsequent ages the state, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject, it is to this doctrine that appeal has again and again been made, and never, as yet, without success”.


Finally on this point, this legal fiction could exist only in domestic law. It has no effect on international law, international courts and United Nations institutions, not least the European Court of Human Rights. “International law? Poof!” say the uber Tories. I remind them that we are currently relying on the doctrine of self-defence in international law in bombing the Houthis.

Turning to the second issue, the denial of access to our courts:

“To none will we sell, to none will we deny, to none will we delay justice and right”.


That is just Magna Carta, chapter 40.

In 1769, James Somerset, born in Benin, was brought to England by a customs officer who had purchased him in a Virginian slave market. Two years later he escaped his master, who pursued him and imprisoned him on a ship bound for Jamaica. He was to be sold there to labour in a plantation. He was not denied access to the court of King’s Bench in habeas corpus proceedings. Lord Mansfield ordered his release. Slavery was odious, not recognised in the pure air of England. That was a judicial decision; it was another 60 years before Parliament abolished slavery in the British colonies.

The “judgement of Parliament” is a novel concept, introduced into the Bill, I suggest, to avoid judicial review. After all, how would you judicially review Parliament as a body? Whose clever, tricksy idea was that? Habeas corpus disappears as the major protector of the liberties of all within the jurisdiction of this country, whether foreign-born slave like Mr Somerset, or an asylum seeker. Trashing our legal obligations in international law, the Bill is odious and an affront to the 800 years of the common law of these islands, its values and traditions. The Bill must go no further.

Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, we now come a group of amendments about strategic lawsuits against public participation, or SLAPPs. These were much debated at Second Reading and in Grand Committee. As noble Lords will be aware, SLAPPs is the rather ungainly acronym to describe the abusive threats of litigation and actual litigation by deep-pocketed individuals with the intention of preventing journalists or others from revealing the truth, very often about economic crime or, at the very least, economic activity which the claimant would much rather was not revealed at all, or certainly not to the general public. This is a worldwide problem which has received a variable response.

In a sense, there is nothing new about SLAPPs. Powerful men have often used litigation to try to silence their critics, but there have recently been some egregious examples. The difficulty always exists in separating out genuine complaints by powerful men or organisations and those which have been commenced for a collateral purpose. When SLAPPs were debated at Second Reading, it was thought that amendments to prevent or limit such lawsuits would be outside the scope of the Bill. I am glad to say that that has now proved not to be the case, although it is clear that the relevant amendments, either mine or the Government’s, are focused on economic crime as opposed to wider areas of criminal activity which might provoke a strategic lawsuit. The Government’s position at Second Reading appeared to be that they were sympathetic to the notion of legislation in this area. However, they thought that the whole issue needed separate and mature consideration and should not be part of any amendment to this Bill.

I am delighted that the Government have changed their mind and brought forward amendments in this group which we will debate. I understand that the new Lord Chancellor has had much to do with this, and I thank him and the Minister for tabling the amendments.

A number of noble Lords have spoken about SLAPPs, including the noble Lords, Lord Agnew and Lord Cromwell, who gave a graphic description of the mischief at which any change in the law should be directed. My difficulty with any potential amendment was always that the courts have powers already to strike out abusive proceedings, but they tend to be extremely cautious about doing so, on the basis that striking out is a somewhat draconian remedy. Courts tend to be persuaded that it is better to see how the evidence emerges before putting a case out of its misery, but that can be too late. Huge expenditure will have been incurred, often by relatively impecunious defendants. Sometimes they have no realistic alternative but to capitulate—delay is plainly the friend of those who use SLAPPs. The best chance, in my experience, of striking out a claim is when there is a clear point of law, but even then there can be appeals and further expense, which work in favour of an abusive claimant.

The government amendments are clearly aimed in the right direction, but I can already foresee a few difficulties. There will be significant arguments as to what does or does not constitute a SLAPP, for example. That issue of itself has a lot of litigation potential. I am also concerned about the process of making the relevant Civil Procedure Rules. This can be a lengthy process, and is always a carefully considered process. I have studied the recent minutes of the Civil Procedure Rule Committee, so as to inform myself as to how the committee approaches rule changes. I would be grateful if the Minister could explain to the House how this amendment will make its way into the rules and the likely timescale.

Those reservations apart, my view is that we should go further. As pointed out at Second Reading by the noble Lord, Lord Thomas of Gresford, who has put his name to this amendment, there is no obvious reason why there should not be a criminal offence in this area.

I invite the House to consider a client consulting his expensive lawyers. He wants to take every step he can through litigation to suppress and exhaust the funds of those who would expose him. He utters those words which lawyers tend to love: “I don’t mind how much it costs”. The advice that he will or should receive after the government amendments become law is that there is a risk that the courts might decide to stop the litigation if it is regarded as abusive. “But”, the litigant says, correctly, “It will surely still be a lengthy and expensive process before a court even gets to consider that option”. However, if the Government were to accept my amendment, then the advice he should receive is that he risks criminal prosecution if he, without reasonable excuse, threatens litigation with the intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime. This potential offence gives room for a defence, of course, but its very existence should act as a considerable deterrent against the sort of behaviour we want to stop. If this amendment becomes law then the hypothetical client might think much more carefully before threatening or embarking upon abusive litigation.

This amendment is particularly relevant to journalists, who have a huge role in tackling economic crime. I declare my interest as chair of the Independent Press Standards Organisation. It is also of importance to anyone who wants to reveal economic crime. It is entirely consistent with the aims of the Bill. Let us bear in mind that the opportunity to legislate in this space is unlikely to present itself again, or at least not for some time. I beg to move.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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My Lords, I remind your Lordships that, at Second Reading of this Bill, on 8 February, I referred to a legal action brought by Yevgeny Prigozhin, founder of the Wagner Group, who has been somewhat in the news over the last weekend, against the journalist Eliot Higgins, who had investigated his activities. When his case was justly struck out last May, Prigozhin said that he brought court cases against journalists because

“in any issue there should be room for sport”.

The cost to Mr Higgins was in the region of £70,000, although he won his case. That is the sort of abuse of the English legal system that the current crop of so-called reputational lawyers have brought on behalf of Russian oligarchs and many other large co-operations that resent too close a look into their operations.

Queen’s Speech

Lord Thomas of Gresford Excerpts
Thursday 12th May 2022

(2 years ago)

Lords Chamber
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Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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My Lords, I want to take up the last point made by the noble Baroness, Lady Goudie, about the protocol in Northern Ireland. Page 447 of the 2011 edition of Erskine May states:

“By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the law officers of the Crown is not disclosed outside government. This convention is referred to in paragraph 2.13 of the Ministerial Code.”


In a complete reversal of that convention, the current Attorney-General has announced in the Times today that she has been advised that legislation to override the Northern Ireland protocol is legal because the EU’s implementation of the protocol is disproportionate and unreasonable. That is no doubt intended to trigger and justify the Brexit freedom Bill that is part of the Government’s programme. The public are entitled to know who gave that advice and what the standing of that person is, whether a Civil Service lawyer employed as a member of her staff or specialist counsel. In either event, the Attorney-General gives political cover to her advisers and takes the responsibility. She cannot get away with a breach of the convention by saying, “It wasn’t me, guv”.

The charge that the EU’s implementation of the protocol is disproportionate and unreasonable is of course pure Lewis Carroll; like the rest of this Government, it is Boris through the looking glass. Far from being intransigent, the EU has sought to keep Boris to his promises. He signed the deal. Everything was “oven ready”. Last October, Maroš Šefčovič, the EU negotiator, put forward four papers with proposals to mitigate some of the practical problems that have arisen. Those have been rejected out of hand. He has indicated that he is open to further talks.

The truth is that this Government have deliberately misled the public about the meaning of the protocol. I shall give a clear example. The Government have suggested almost from the beginning that Article 16 provides a mechanism for the UK to walk away from the protocol. “Invoke Article 16!” is the cry. But Article 16 is a commonplace dispute resolution mechanism providing that, in the event of difficulties, one or other of the parties may suspend the operation of the protocol for a temporary period in order to remedy a precise situation by way of agreed measures—measures that will least disturb the wider operation of the protocol. If invoked, Article 16 does not blow up the protocol; it continues to be in force. It is not an escape hatch.

Yet this Government’s rhetoric has misled the main unionist party into fighting an election last week in Northern Ireland on a totally false basis, and to maintain its intransigence even now after it has suffered a historic defeat. In the face of that, the Attorney-General is advising that an Act of Parliament pushed through by a Conservative majority can break treaty obligations undertaken and recognised in international law. The sovereignty of this Parliament depends upon the rule of law, and the doctrine of sovereignty cannot possibly justify unlawful acts.

Noble Lords should not take it from me. When he resigned last September, the noble and learned Lord, Lord Keen of Elie, an exceptionally experienced and competent lawyer—said to be the best in Scotland, or at least the most expensive—said in his resignation letter:

“Over the past week I have found it increasingly difficult to reconcile what I consider to be my obligations as a Law Officer with your policy intentions with respect to the”


internal market Bill.

“I have endeavoured to identify a respectable argument for the provisions”


in question

“but it is now clear that this will not meet your policy intentions.”

Sir Jonathan Jones, the chief government lawyer, had already resigned for the same reason. The noble Lord, Lord Wolfson of Tredegar, has 50 more reasons—in the Covid tickets issued today—for his resignation last month. He said then that

“the scale, context and nature”

of the Covid breaches in government was

“inconsistent with the rule of law”.

The Attorney-General is embarked on a course which can lead only to lengthy proceedings once more in the Supreme Court. When the Government lose, no doubt they will squeal, as they have in the past, that the judiciary is getting involved in politics. Protecting the rule of law is not politics. The Lord Chancellor swore to protect the rule of law on his appointment, and the Attorney-General herself swore that she would

“duly and truly minister The Queen’s matters and sue The Queen’s process after the course of the Law, and after my cunning”.

On 17 January 2019, I said that Brexit would lead to the breaking-up of the United Kingdom, and I repeated the point in September 2019. If the Government continue in their confrontational way to destroy the protocol, I fear that that is precisely what will happen.

Police, Crime, Sentencing and Courts Bill

Lord Thomas of Gresford Excerpts
Moved by
292P: After Clause 170, insert the following new Clause—
“Royal Commission on criminal sentencing
(1) Within six months of the passing of this Act, the Secretary of State must establish a Royal Commission to carry out a full review of criminal sentencing.(2) In particular the Commission must make recommendations on—(a) how to reduce the prison population;(b) how to reduce violence and overcrowding in prisons;(c) addressing the particular needs of young people in custody;(d) addressing the particular needs of women in custody;(e) how to ensure that sentencing for offences is focussed upon reform and rehabilitation of offenders and reducing reoffending;(f) how to reduce the over-representation of people from Black, Asian and minority ethnic backgrounds in prison; (g) the imposition and management of non-custodial sentences; and(h) the abolition of some mandatory or minimum prison sentences.”Member’s explanatory statement
This amendment would establish a Royal Commission to review criminal sentencing.
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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My Lords, I move this amendment in my name and that of my noble friend Lord Marks of Henley-on-Thames, who regrettably cannot be with us today. In the Conservative Party manifesto for the 2019 election, there was a promise to set up a royal commission on the criminal justice system within the first year of government. Of course, that did not happen; instead, we have this enormous Bill, which covers police, crime, sentencing and courts, with bells and whistles attached. It is a great pity that the Government did not carry out their manifesto promise, which might have produced much better and more targeted reforms.

--- Later in debate ---
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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My Lords, I first acknowledge my place in devolution history. For the purposes of the footnote in that history, I should say that the place where I gave my evidence was, as I recall, the Grand Hotel on the front in Llandudno.

The noble and learned Lord asks whether they would listen. That is really the purpose of this amendment: a royal commission is and should be listened to. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, there must be thinking about sentencing—thought must be given to the policy that the Government are pursuing. I listened to the noble and learned Lord, Lord Stewart, and I do not doubt that his Government are pursuing these various courses, policies and whatever he is talking about, but they are failing. He said that they are building capacity to meet demand, but who is demanding? I can tell him that people in north Wales are not demanding to go to the sort of prisons that exist, with their dreadful conditions.

As I understood it, the noble and learned Lord conceded the need for a royal commission to meet the point made by the noble Lord, Lord Berkeley, on his utopian idea that there should be a separate agency for the mentally ill. We can pursue that idea in all sorts of ways.

My noble friend Lord Beith referred to the most recent offence to be created—stealing a cat, for which you get five years. But he got it wrong. It is not stealing, because you do not have to prove an intent permanently to deprive; all you have to do is show TWOC—taking away the cat without the consent of the owner. Do not give Tiddles from next door some milk without telling your neighbour, or you might get five years for it.

Lord Beith Portrait Lord Beith (LD)
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I remind my noble friend that it is worse than that. All you have to do is induce the animal to accompany you.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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All those people yearning for a cat now know where they stand with this Government.

I pay tribute to the noble Lord, Lord Ramsbotham. For decades we have listened to him in this House with great attention on all these subjects. He has been a beacon in the attempt to reform prisons, with his great knowledge in having been Chief Inspector of Prisons over that period. I am grateful for his support for this amendment.

My noble friend Lord German pointed to the way in which sentencing has inflated over the years. I know from personal experience—from the other side of the Bar, not in the dock—that that has happened and continues to happen.

The Minister said two contradictory things: that there is no departure from the manifesto commitment for a royal commission and that the Government are already pursuing these ideas, so a royal commission is unnecessary. It is still their manifesto commitment, but they think that it is unnecessary. With these ideas being pursued in some secret corner of Whitehall, are there public hearings? Is there a call for expert evidence? Is there a publication of the results? It is not the same thing as a royal commission at all; it is simply the Government squirrelling away in the background, trying to make the best they can of the resources they will put to it. What we need is this royal commission acting not for any political reason but trying to put a real problem right. I will return to this matter, while asking to withdraw the amendment, when we get to Report.

Amendment 292P withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Thomas of Gresford Excerpts
Lord Judge Portrait Lord Judge (CB)
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My Lords, I participate in this debate and support this amendment with personal reluctance. I think I am allowed to say this: my wife spent the whole of her professional working life treating children born with genetic or birth injuries. Her whole ambition was that that little boy or girl should be able to lead a full and complete life as a member of the community. Some of them did lead absolutely full lives, but some were too—to use the word that was used in the days when she was working—disabled to do so. I know from her experience how crucial it is that opportunities are available to people who have either been born with or acquired disabilities of this kind so, on a personal level, I am reluctant.

However, on a professional level, I must remember that I served as a barrister, doing many jury trials, then as a judge, also doing many jury trials. I have dealt with interpreters of language and interpreters for the deaf. I will not say much more than Mr Pannick—the noble Lord, Lord Pannick—did, but I do want to say one or two things.

First, this paper misses that one of the most crucial facts in what a jury must decide is an analysis of who is telling the truth. It is obvious in almost every case. May I draw noble Lords’ attention to a case I had to deal with? A man was charged with rape. There was a long record; it was just after tape recorders were introduced and before the police had learned to realise that you do not bully people into confessions. There on the tape recorder was a clear admission: “I admit I raped her.” The counsel for the defendant gets up and says, “I want the jury to hear the tape recording.” “Why?”, asked the judge—me. “Have you not checked that it is correct?” “Yes, I have, my Lord”, said the defence. “That is why I want the jury to hear the tape. I shall be submitting to the jury that, if they hear the tape, they will realise that the admission that is plain on the paper simply was not a true confession.” Of course, I agreed. The case unfolded and the tape recording was heard. I have no idea what the 12 members of the jury thought about it but, to me, it was perfectly obvious that, after he had been told about 23 times that he had in fact committed the rape, the man said, “All right, I admit it”, in a tone of complete resignation. His mind was not going with an admission; he was just fed up with the fact that the police had not listened to him.

Can we pause and think of that case in the context of the proposal here? What is to happen to a deaf juror who cannot hear the resignation in the admission? The interpreter cannot do it. They cannot say how it is said—for example, “I think that he was reluctant” or “I think that it is a true confession”. The interpreter cannot help the juror, or they become part of the jury. What happens then? What happens in that case is simply a more vivid example of what happens in just about every single criminal case: someone, as the noble Earl suggested, is lying. It may be the defendant. It may be the witness. Perhaps a kind way to put it is that somebody is badly mistaken, if it is a witness. However, the analysis of who is right and who is wrong is a long, drawn-out process in which the jury must see and hear the witness and observe any hesitations or changes of expression. There are all sorts of little clues about how to make the decision on credibility. With great respect, somebody interpreting using sign language is not going to be able to get across the tone in which the evidence is given. It is simply not possible.

I move to another point—the noble Lord, Lord Pannick, has made it already. Go with me into the jury room. I have seen jurors who are very cross and upset. You can tell that when they come back, because they are not agreed on their verdict and there they are: heated, anxious and worried. That is because every member of a jury, or virtually every member, I ever came across was determined to exert himself or herself to fulfil their public responsibility to reach a true verdict, so if they disagree about whether somebody is guilty, of course they are going to get steamed up. How will the dynamics work? Is it really being suggested that, within the jury room, the 12 of them should be together and that every time any one of the 11 who is not deaf makes a contribution, whether a comment, a long sentence or a paragraph, nobody can respond until such time as the interpretation has finished? I do not think that is real. I also think that, with the presence of interpreters—there will undoubtedly be at least two because half an hour of that work is extremely arduous—there will be at least 14 people. Go to any meeting that you are involved in and if somebody is there who is not actually involved, not responsible for what is going on, it changes the dynamic for all.

Let me leave the 13th or 14th person in the room and come to my fundamental objection. It will be the first time, as far as I am aware, when a jury room’s sanctity will be broken. We have always worked on the basis that what goes on in the jury room is private—not just confidential—to the 12 members of the jury. This is a very serious step for us to be taking. I can assure you that the next stage will be, as the noble Lord, Lord Pannick, suggested, “Well, somebody is not able to speak English but has a citizen’s obligation. He or she should serve on a jury with a language interpreter.” I can assure you too—and this is perhaps more urgent—that there will be a whole series of academic professors dying to get into the jury room to see how juries reach their verdicts. So far, we have resisted it—in England, at any rate. What will happen to the confidentiality and privacy of the jury system if we let this door open?

That seems a fundamental issue of principle; it is not a matter of practical possibilities—as things improve, as science and technology get better. We are setting a very serious precedent. Although, of course, we cannot imagine it ever happening, I cannot help feeling in my remote dreams that, one day, a Secretary of State for the Home Department may say, “Why are these people being acquitted? It is a very good thing for us to have somebody in the jury room just to make sure that they are following the judge’s directions to them.”

I have three further points to make. The first is the language point—I have made that. Secondly, what is the role of the deaf juror in the context of his or her obligations to do jury service? If somebody turns up at court who can use or understand sign language, will it be compulsory that he serves on a jury? Everybody else has to turn up; there has to be a very good reason—there is an obligation to act as a juryman. Do we say, “Well, in the case of the deaf person, there’s a special dispensation?” In which case they are not being treated like everybody else. We need to examine that, because I would have thought that there is many a deaf person who would be willing to serve on a jury, but there will be quite a lot who would not.

Finally, while we are examining the proposal made by the noble Lord, Lord Pannick, about possible shadow research, why are we not looking at the technology that is available? It is at least possible that my objection in principle could be addressed through technology. We all know that any time we turn on our television and some extraordinary language from the Baltic countries is being used, little lines come up to tell us what is being said. All members of the Bar with successful practices—and I never did have one—work in courts where all the evidence emerges on a screen as it is given. Why is that not being looked at? Why in relation to the principal issue are we not finding ways that a deaf juror can be accommodated within the jury room without any interpreters being present at all?

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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My Lords, I ask the Committee to forgive me for using legal language. Some years ago, I had a case in Newport. It was a murder trial in which the victim was profoundly deaf, the defendant was profoundly deaf and four or five of the witnesses were profoundly deaf. This trial proceeded with three sign language interpreters always in the courtroom: one for the defendant, one for the witness and one behind the judge, positioned so that everybody, including the many profoundly deaf people in the public gallery, could see what was happening.

When I first looked at this provision, I thought, like everyone else would, that surely a person who is profoundly deaf should be entitled to carry out their public duty. But the practicalities of it make that an impossible idea. For a deaf juror, there has to be a succession of people interpreting what is going on in the court in sign language. First of all, that is an immense burden on him—he is different from everyone else; and, secondly, while what is said in the court can be heard by everyone else, we do not know whether the person doing the signing gets it right. Nobody can really tell if that is the case, unless, as in my case, you have someone familiar with sign language in the box with the defendant.

How can we be sure that that juror understands the nuances of a summing-up, in which the judge sets out the law that the jury is to apply? Can it be the case that some other person who knows sign language checks that the proper interpretation is being made of what may be very technical language? As I learned, the sign language interpreter is not translating word for word but is conveying ideas. During that case I also discovered that sign language interpreters and witnesses who give their evidence by signing are quicker than people using ordinary speech. It is not a slower procedure, rather it actually speeds things up; the rest of the court have to hold the sign language interpreters back.

However, in the jury room, there is no way in which a profoundly deaf person can follow the arguments being made—passionate and otherwise: nobody can be sure that every nuance of what the other jurors are saying is being transmitted, and nobody can be sure that an interruption or question from a profoundly deaf person is being accurately translated and represents his thoughts.

I take the argument of principle that the noble and learned Lord, Lord Judge, put forward, but from a practical point of view, and from my experience of that trial, it is impossible for a fair trial to take place.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, I do not think I can add very much to the points that have already been made on the difficulties which this proposal is likely to give rise to, except to say that one has to remember that hearings in criminal trials take a very long time. I do not know whether we, who have never had to be instructed in sign language, are able to tell whether a deaf juror can maintain concentration by that method throughout the entire day that the trial goes on, and indeed whether the interpreter can conduct that process throughout the entire day without relief. Maybe you would have to have another interpreter to come and take over after a reasonable interval, as you often had to do with shorthand writers in the days when they were used.

Police, Crime, Sentencing and Courts Bill

Lord Thomas of Gresford Excerpts
Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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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.

Police and Crime Commissioner By-election

Lord Thomas of Gresford Excerpts
Thursday 15th July 2021

(2 years, 10 months ago)

Lords Chamber
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Asked by
Lord Thomas of Gresford Portrait Lord Thomas of Gresford
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To ask Her Majesty’s Government (1) what estimate they have made of the cost of Thames Valley Police’s investigation into Councillor Jonathon Seed subsequent to his election as the Police and Crime Commissioner for Swindon and Wiltshire on 6 May, and (2) following the finding that Councillor Seed was ineligible to stand, what estimate they have made of the cost of the resulting by-election.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con) [V]
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My Lords, the police investigation is ongoing and the Home Office does not hold details of the cost. A by-election is due to take place on 19 August. We will not know the exact cost of running the PCC election until all election expense claims have been submitted by the returning officer and have been scrutinised and settled.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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The estimate by the council is that the cost will be £1.4 million. Are we talking in those terms? The Electoral Commission was perfectly clear in the advice that it gave, and drunk-driving has been an imprisonable offence since 1925. Mr Seed says that he disclosed his conviction to the Conservative Party when applying to be its candidate and was told to go ahead. He refused to answer questions from ITV News, which could have given him time to withdraw, but then he did withdraw. So who is paying for all this? Does the taxpayer have to stump up every time a disqualified candidate stands in an election? Where is the power and what is the process for recovery from the party or person involved?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con) [V]
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My Lords, as to who pays the bill, it is fair to say that public funds, wherever they come from, ultimately come from the taxpayer, but the polls are funded out of the Consolidated Fund. On disclosing his conviction to the local party, I have no information on that. I really do not know whether that is the case or not. The issue is that it is entirely up to the candidate to disclose that conviction—albeit it was many decades old, it is still incumbent on the candidate to disclose it.

Licensing Act 2003 (2020 UEFA European Championship Licensing Hours) Order 2021

Lord Thomas of Gresford Excerpts
Thursday 8th July 2021

(2 years, 10 months ago)

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Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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I thank the Minister for explaining the measure before the House and congratulate England on their win against Denmark yesterday. As a neutral observer from Wales, I concluded at the end of the game that England were the better team. However, it was so unfortunate that individual supporters let them down and that there is now a complaint to UEFA that a laser pen was used to try to blind the Danish goalkeeper when that rather dubious penalty was taken. This is most unfortunate and does not reflect well on English fans.

I hope that Cardiff and Edinburgh will pass similar legislation to expand licensing hours. After all, we have a large number of Italians in Glasgow and in the valleys, and they are entitled to their alternative celebration too.

On a serious note, I echo the warning given by the noble Lord, Lord Wolfson, at Question Time today about the possibility of domestic abuse following a game. It so happens that my daughter-in-law, Jodie Swallow, made a study of the interplay between domestic violence and sports events. It was her PhD thesis. She concluded that perpetrators use abuse, violence and coercive behaviour around their sporting interests as a means of asserting their power and subjugating their partners. She identified a significant danger. Wives and sweethearts should look out if England lose.

It is the most intense match for 55 years. You have to be as old as me to remember the last time England were in the final in 1966. I remember it well on black and white television. Of course, that was against Germany. For the last win against Italy in a competition on English soil you have to back in history to when Boudicca sacked Colchester. It would be quite appropriate for a statue of Gareth Southgate to be placed next to hers on Westminster Bridge if England can repeat her victory.

Police National Computer

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Tuesday 19th January 2021

(3 years, 4 months ago)

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Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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Technology and the sorts of things the noble Lord talks about are being developed all the time; he asked about technology not being lost through data loss, I think. This issue was human error in the coding. Much as I would like to say that human error does not exist, occasionally it does. This happened with the best technology systems in the world; how a system is coded will unfortunately predict what comes out the other end. I do not disagree with the noble Lord’s assertion at all.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, I recall being involved in a case in Southwark Crown Court where DNA convicted a man of rape 35 years after the offence. There was no other evidence. Statistically, there were would be only four people in the UK with the same DNA. What database exists for the recording of all DNA and other forensic scientific evidence where a crime is unsolved but the possibility of detection in the future remains? Will scenes of crime information of this sort be kept securely as part of the national law enforcement data programme, in the process of being developed by the Home Office, and if not, on what programme will it be kept?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I am slightly surprised by the noble Lord’s question because there has been quite strong feeling in your Lordships’ House, particularly from the Liberal Democrats, that DNA information should be automatically deleted after a certain period of time. The DNA records that were deleted required “no further action”. I totally understand the noble Lord’s point; I saw something about a conviction in Wales that went back years, and it was DNA that convicted that individual. On the holding of DNA, in most cases the data of unconvicted people has to be deleted.

Extradition Arrangements: European Union Member States

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Wednesday 13th January 2021

(3 years, 4 months ago)

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Asked by
Lord Thomas of Gresford Portrait Lord Thomas of Gresford
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To ask Her Majesty’s Government what reciprocal extradition arrangements are in place for the surrender of nationals between the United Kingdom and the European Union member states where the surrender of such nationals to a third country is forbidden or restricted by law.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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My Lords, some EU member states operate on the fundamental principle that they cannot extradite their citizens outside the EU. We have ensured in our new arrangements that there is a path to justice in each case—for example, by requiring a member state that refuses to refer the case to its own prosecuting authorities.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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I thank the Minister for her Answer. We all know about the difficulties with the United States in the tragic Harry Dunn case; despite the pleas of the Foreign Secretary, it refuses to extradite an American lady for serious offences committed on British soil. Is it now the same with Europe? What differences are there between our arrangements today with the 27 EU states in our new status as a third country, so far as they are concerned, and our long-time arrangements with the USA?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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The fundamental difference between then and now is the additional safeguards built into the proceedings, which in my view make them a more effective set of arrangements. There is also the notion of proportionality, which is crucial for both accused and victim.