Baroness Hale's Thoughts On Reducing the Court Backlog

The Rt. Hon. The Baroness Hale of Richmond, who recently retired as President of the Supreme Court of the United Kingdom, has suggested some ways that the current court backlog could be reduced.

In her four minute monologue, which was broadcast on BBC Radio 4's PM programme earlier today, Baroness Hale suggested that some of the current court backlog could be reduced by employing lay people to sit alongside professionally qualified judges as an alternative to the normal jury system. Baroness Hale did not mention Magistrates in particular, but some commentators have clearly drawn the conclusion that Magistrates could be used.

Two former Secretaries of State for Justice - The Rt. Hon. The Lord Falconer of Thoroton and The Rt. Hon. Sir David Liddington - responded to Baroness Hale's comments and both rejected the idea that conventional juries should be replaced by mixed benches of judges and lay people.

Lord Falconer said that juries are fairer because they are blind to a defendant's race, with the obvious implication that judges might not be. Lord Falconer clearly thought Baroness Hale was referring to Magistrates, as he went on to criticise the lack of diversity of the Magistracy.

David Liddington reiterated that a defendant being tried by a jury of 12 peers gives confidence in the fairness of the system. He did concede that given current circumstances some consideration could be given to using juries of only 7 members - a temporary measure that was last seen during the Second World War. The use of these streamlined juries would speed up the judicial process and help clear the backlog of cases.

Baroness Hale's words, as heard in the accompanying YouTube video, are transcribed below:

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Lockdown has forced courts to find ways to ensure that urgent cases can still be heard - some of them pretty makeshift - but it has taught us some valuable lessons about what is and is not important to a fair hearing - one which not only produces the right result, but is felt to be fair by the judges, and the lawyers, and by the people whose cases these are.

This gives us the opportunity to rethink how we do trials in all kinds of cases. We do have some sacred cows - our reliance on oral hearings; oral evidence; oral argument; and in many cases oral decisions; our belief that a witness’s demeanour and body language can reveal whether he or she is telling the truth; and perhaps, above all, our faith in trial by jury of 12 randomly selected members of the public, as the greatest protection against the wrongful conviction of the innocent.

Routine case management decisions can be taken in writing or remotely, as can uncontested matters such as debt collection, divorce decrees, and guilty pleas. But anything contested is a different matter.

As Celia Kitzinger says there is a gravitas attached to a courtroom hearing - the formal architecture and courtroom layout; the elevated and distant seat of the judge; the familiar rituals and the sombre clothing - all are evidence of the seriousness and impartiality with which decisions are made. All are lost if everyone is appearing remotely on small screens from their own homes or offices. That feels more like a case conference than a judicial process.

Also - as an unnamed family court judge says - he or she is deprived of all the usual ways of creating an atmosphere of trust, fairness and compassion - reassuring smiles; listening intently to what the parties are saying; assessing their level of anxiety and nerves. It is all too easy for the professionals to forget that the lay parties are there and listen if they cannot be seen. Trials should not be experienced as a conspiracy of the lawyers against the laity.

Some of these problems could be cured by providing much more sophisticated platforms for remote hearings, but not all. And what about face-to-face encounters, when witnesses give their evidence?

Children and vulnerable witnesses can already give their evidence by video link. Some think that this is not as powerful as giving it in the courtroom. It looks like television rather than reality. But could there be advantages in separating the witness from the cross examiner? Less intimidating and confusing.

Should we invest in more and better video links or in larger courtrooms? And what about face coverings? We are reluctant to allow Muslim women to give evidence wearing the Niqab - the face veil. I found it easy to tell whether a mother was telling the truth once she had taken off her veil. But could we allow or require witnesses to wear non-surgical masks which everyone now using public transport has to wear? And might face mask be the answer to jury trials? A good jury turns into a little community working together in the interests of justice - this is lost if they are operating remotely or even at a social distance in a courtroom.

A more radical solution would be to rethink why and when we need a jury trial. The great advantage of trial by judge alone is that the judge has to give detailed reasons for his decision. But judges can get case hardened. Better still might be a judge sitting with two lay people, rather like the Jurat system in the Channel Islands.

So we do have a golden opportunity for a radical rethinking of how we do trials. Let's hope it is taken.