19
Examination of witness
HHJ Kaly Kaul.
Q19 The Chair: Good morning and welcome to this meeting of the Justice and Home Affairs Select Committee. For our second evidence session in our inquiry into support for jurors, we are absolutely delighted to have Kaly Kaul KC in front of us. Just for the record, could you give us your name and your role?
HHJ Kaly Kaul: I am a criminal circuit judge at Wood Green Crown Court. I have been sitting for 16 years: 11 as a full-time judge, and six years as a recorder before that. I am a member of the GMB Judges’ Division—one of the founder members. I want to make it absolutely clear, because I do not think the judiciary would have allowed me to come here, that I am here on behalf of GMB. I am here on behalf of our Judges’ Division, as well as the staff—the ushers, the court managers, the people who support jurors and work with them every day, and the support staff, like people who deliver the prisoners and also look after them.
The Chair: Thank you very much; that is very helpful to know. As you know, we are predominantly looking into the support that is or is not provided for jurors, including support that they might get in relation to any traumas from having gone through particularly difficult trials—sexual abuse, murder, whatever it might be. Obviously, in doing that, it is quite useful for us to know what similar support might be offered to other people within the judicial system. Therefore, I wonder if you could just begin by telling us a little bit about, for example, what support is offered to people like you, in the post that you hold, in the event that you have problems as a result of particular trials that you have dealt with.
HHJ Kaly Kaul: I think Professor Cheryl Thomas from University College London has submitted a report to you and she has covered the main lines of support.[1] We have PAM Assist, which is a company engaged by the MoJ and which provides up to six sessions of counselling. We have both counselling and EMDR, which is rapid eye movement desensitisation for trauma. Mine was not case-related, but it was work-related. After that, there may be an extension but, mainly, one has to pay for one’s own. I am still seeing the same PAM Assist psychotherapist, and it is seven years this month.
Also, there are two welfare judges, one for the tribunals and one for the courts, who can be contacted by any judge at any time—there is a helpline that people ring—and they offer support. I contacted one once, but I did not hear back. All of these provisions are policies and they are there, but they work to varying degrees depending on who is implementing them and how they are being implemented. Some people have had very positive experiences and some people less so. But there certainly is counselling available and it is good. EMDR is a very well-known method of treating trauma, and it is effective. I would say it reduced mine by about 80%, which I thought was hugely successful.
The Chair: That is in relation to judges, but you have also talked about others.
HHJ Kaly Kaul: It is the same company for HMCTS. It is all through the MoJ. They have the same access to those services as we do. In our own courts, we have a mental health ally; in my court it is an usher. From there she can signpost any member of staff to obtain whatever help is available. There is quite a low take-up rate with staff, but then there is a low take-up rate with judges. But it is not that it is not there—it is there. I think the experience of their staff is that they have used it sometimes to good effect, and sometimes they have not felt that it helped or that they were being particularly helpful.
The Chair: How well is it promoted?
HHJ Kaly Kaul: It is promoted well. The Lady Chief Justice promotes it. Judges have a Thursday newsletter, which sets out everything and it always has all the links to HR. We have a click-through link, which has all the different services offered by HR. I am also a nominated judge for grievance and whistleblowing. That has the 12 of us there, so that if anyone wants to raise a grievance, whether it is against staff or judges, or raise any issue—whistleblowing in particular—they can contact any of us as they wish, and we can then direct them to support.
There is also occupational health provided for the judiciary and the staff. I have an occupational health doctor, who reports on me, and so do a number of other judges. They help and support and make sure that reasonable adjustments are recommended. They cannot make sure they are given because they are discretionary, but they make sure they are recommended.
The Chair: That is very helpful. We will move on to our main subject with Baroness Bertin.
Q20 Baroness Bertin: Can you go through what potential mitigations are put in place for those who may be affected by a trial process?
HHJ Kaly Kaul: They start with the preparation for the trial itself. In a trial where there would be very alarming imagery, the prosecution has already taken the steps to turn those into images which are not real; they are not cartoons, but we do not see the real body parts. They will make sure, to the extent they can, that that is available to the jury on paper and on the screen. However, it is a decision that has to be taken by each individual judge, and there is very great disagreement about it. “Should we warn a jury panel?” is usually the big question.
I started doing it at the beginning of 2018 when I had a trial in which, try as we could, we could not find a way to present terrible material in any other way than them seeing it. On that case, I actually told the jury panel a bit myself, and then I handed over to prosecution counsel who described some of the images in detail. What I and other judges also do is to identify, subjectively, cases where we think this could be a problem. Before the jury are sworn, I tell them a little bit about it, but not in great detail.
Basically, I say something like, “Jury service is a civic duty. You are here to do jury service. Juries up and down the country are trying very serious cases, far more serious than this. But there are those amongst us who, whether from our own experience or someone close to us, will be affected in a way that will make it impossible for them to reach a fair verdict in the trial, or to be able to concentrate on this type of evidence. That is not a ticket out of jury service. Even if you are excused from this trial, you will still have to do jury service”.
I then move from where I am sitting to the edge of the bench, where there is a step, and I say, “If your name is called, just come and speak to me privately and let me know if you feel you cannot do this trial. But please remember this: once we start, there are 12 jurors, and you stay on this train with me until the train gets to its last destination, so please do not tell me in three days’ time, ‘I do not like this’.”
Baroness Bertin: Gosh. What a sensitive way to deal with it.
HHJ Kaly Kaul: Can I say just one thing? Half the judges do it and half do not, but since I started doing that in January or February 2018, I have never lost a juror for emotional or mental health issues in any case in which I have done it.
Baroness Bertin: Just for my own knowledge, that is presumably not a formal or uniform mechanism for them to raise psychological issues that they may be worried about.
HHJ Kaly Kaul: No. Half the judges do not agree with it at all as a matter of principle, and I understand that too. But because I was in crime for 43 years, I was prosecuting and defending in cases where that would not derail the trial but affect it.
The Chair: Sorry to interrupt Baroness Bertin’s questioning, but given that 50% of people do not agree, what are the arguments they use?
HHJ Kaly Kaul: They use the fact that jurors are drawn at random. We do not ask them questions as they do in America about their backgrounds and their health issues and their interests. We just take a jury as we find them, which has been traditionally the British approach, and I do not disagree with it; I grew up with it. But, sadly, in my practice I had everything from war crimes and genocide to serious sex offences, serial murder and serial rape, and I realised that in some trials a juror would react, and then that juror would have to be discharged. We would then end up with 11 or 10, and that is something we try and avoid. I am not saying it always works, or that it is the perfect answer, or that it is obligatory, but by doing it in that way I feel that I am protecting the trial process and protecting the jurors that would be badly affected.
Baroness Bertin: I have just one follow-up question. What mitigations therefore would you recommend?
HHJ Kaly Kaul: Do you mean for the jury generally?
Baroness Bertin: Yes.
HHJ Kaly Kaul: I will in a moment ask if I can read something, because my jury manager, who has been doing the job for 15 years and says I can mention her name, has written something which I think is more useful to you. But for mitigation, there could be more information before they do jury service about how there may be cases that could affect them and that they should let the jury manager know when they get to court. Some do; for example, in Wood Green, we have religious minorities who do not want women in their families to try sex cases. Then they write and the resident judge decides. The resident judge usually says, “That is fine; you can do some other case” and puts a note to say, “Do not allocate this juror to a panel with a sex case”.
I think we should use more AI. We should repurpose the NHS self-help AI tools for juries, make it secure and have a juror page which they can enter using the juror number; every juror has a number. The AI could start by telling them a little bit about jury service. Then after the case, that would be the beginning place for them to start accessing support. Then there might be a helpline and there might be counselling as well for those that need it. We could do a lot more than we are doing, and it would not necessarily cost that much to do it.
Baroness Bertin: Can I just play devil’s advocate very quickly? That would then therefore not be at random, and you might end up getting the wrong people going to the wrong trials for the wrong reason.
HHJ Kaly Kaul: That is what the argument would be, but it does not really work like that. If I have given the warning 10 times, say, in 10 trials, only one person in 10 will say to me, “I do not think I should do this trial. Something happened to me in my childhood. I do not think I should do it”.
Q21 Baroness Berridge: You mentioned that you have never lost someone during the trial.
HHJ Kaly Kaul: Only when I have given that warning. I decided to earlier this year, because it is subjective. I do not give it in all sex cases; it is those with imagery that I think will trigger, like with children.
Baroness Berridge: Are there trials therefore, from what you were saying, where you do lose jurors?
HHJ Kaly Kaul: Yes, absolutely.
Baroness Berridge: Do we collate any evidence as to how many, and do we have trials that do not just go down to 10, but where we lose the whole trial because you have gone below the number of jurors that you need?
HHJ Kaly Kaul: I cannot answer that question, I do not know. But yes, there are trials where we go down to 10. I personally have never had a trial that had to be aborted, nor have I appeared in a trial that had to be aborted. But it can happen, and it is not just in the cases where we immediately think it might. I had one that was a robbery but an aggravated burglary, and there were lots of injuries. We did not ask the jurors if they had been burgled or robbed or to tell us, so there we might lose one juror, but on the whole it is not that bad. I just think we ought to give warnings, because there are people who will know that they cannot do certain types of cases.
Baroness Hughes of Stretford: It sounds to me that, from your experience, you have developed your own good practice as a judge at the start of trials both to protect the trial process and to help the jurors to some extent. To what extent is this a topic that is discussed among judges?
HHJ Kaly Kaul: It is very much discussed.
Baroness Hughes of Stretford: Is that good practice shared?
HHJ Kaly Kaul: Yes, it is. I have been a Judicial College tutor since 2016. I teach on the Access to Justice course. I am just a tutor judge—I am not the course director—but part of our course is exactly that: dealing with jurors; dealing with emotional jurors; dealing with how much they are paid and how much money they are losing if they are self-employed; being sensitive to their needs and being aware of their needs.
We also have talks from High Court judges. Mrs Justice Tipples talked to us about a high-profile case she tried and how she dealt with juror issues. It is very central to the Judicial College, which is the best part of the judiciary. I wish you could hear from the course directors because they really are brilliant people. I have spent 10 years teaching on different courses. Everyone really tries to make us user-friendly and make us understand the lives of those who are part of our process.
The Chair: Just to help the committee, in terms of the course you are describing, are the issues that have been raised part of a formally written- down curriculum to which you could help us gain access?
HHJ Kaly Kaul: Yes, through Andrew Hatton, who is the director of the college.
Q22 Lord Tope: Where does responsibility lie for ensuring the well-being of court staff and judges?
HHJ Kaly Kaul: The legal duty is with the Ministry of Justice.
Lord Tope: I suppose I mean responsibility—legal if there is one.
HHJ Kaly Kaul: The legal duty is the MoJ’s, and the responsibility is the MoJ’s and everyone who is in that court building.
Lord Tope: Is that clear and understood?
HHJ Kaly Kaul: Yes, I think it is.
Lord Tope: Good. What about responsibility for the jurors?
HHJ Kaly Kaul: If I could read you what Thelma has written—it will take me two minutes—I think you will understand it better than I can explain it. This is Thelma Poku, who has allowed me to give her name. She says:
“We give every juror a welcome pack … on it is an emergency contact form. On it, they note health needs and appointments—but it is also there for them to tell us anything else. If they share something personal or sensitive, we note it confidentially, mark it clearly on their file, and it goes to the judge before they are ever sworn in.
“During the trial: when distress comes unexpectedly … then—sometimes—it happens. A juror gets through selection, they take the oath, and then they hear the evidence—and it hits them hard. They did not expect it. They thought they would be fine.
“I tell them: ‘If at any point—once the trial has started—you feel overwhelmed, upset, or distressed: please tell an usher, or come and find me straight away and I will advise you to write a note to be given to the judge. Do not suffer in silence. Do not feel you have to push through it.’
“Sometimes the judge will discharge that one juror. Sometimes they will discharge the whole panel and start afresh. And I always say to anyone affected: this is not your fault. You did not do anything wrong. You could not have known how it would affect you.
“When the trial ends: aftercare does not stop at the court door. This is the part that is often overlooked: the impact does not always end when the verdict is given and they walk out of the building. We give every juror information and contact details for Samaritans—free, confidential, available 24 hours a day, every single day of the year. I tell them: ‘What you have heard and seen, and even what is discussed in the jury room, can stay with you long after you go home. You might feel fine for weeks, and then something might trigger it. If anything affects you—at any time—please reach out. You do not have to carry it alone. We are not trained counsellors, but Samaritans are there to listen, without judgement, for as long as you need.’
“Over the years, jurors have come back and told me that calling Samaritans helped them greatly. That support works—but it should not be the only support we offer”,
which it is at the moment. She then goes on to say on “The hidden cost: caring for those who care”—it is important for your committee to know—
“There is another side to this story—and that is us: the jury officers, the ushers, the court staff. We are the ones sitting at that front desk, day after day, listening. Jurors come to us with everything: bereavements, relationship breakdowns, debt, mental health crises, suicidal thoughts, family trauma. They pour their lives out to us—because they trust us, and because they have nowhere else to turn.
“We listen. We care. We carry it all. But who looks after us?
“For years, the only support offered to staff has been ‘reward and recognition’—certificates, thank you notes, words of appreciation. But appreciation does not take away the cumulative weight of listening to pain, day in, day out. It does not replace proper wellbeing support, professional supervision, or counselling for staff who are absorbing other people’s trauma every single working day”.
On “Our duty of care” she writes:
“Jurors perform one of the most important duties in our democracy. They step forward, they give their time, and they shoulder the burden of hearing the hardest truths—so that justice can be done.
“We owe them three things: honesty about what they may face; openness to listen to their concerns before they begin; proper aftercare that is there long after they leave the court building.
“And we owe the staff who support them—who are the first and last point of contact for every juror—the same care we ask jurors to accept.
“Aftercare should not be an afterthought. It should be part of the process—from the moment they walk in, to long after they walk out”.
That is from a jury manager who has been doing that job for at least 15 years to my knowledge.
Lord Tope: That is very good, but do you have any idea how widespread that is?
HHJ Kaly Kaul: I have sat for a long time at Wood Green, although I am leaving next week to go to Harrow, but I have heard from other courts that it is variable. It does depend on the quality of the court staff. I cannot say, as a judge, what training they have had. My own understanding and knowledge, having been in different courts over 43 years, is that it is entirely dependent on the good will of staff and their experience and their emotional intelligence. That is something that you cannot buy, but you can do better at the training of those who may not necessarily be like Thelma.
The Chair: But with respect—sorry, “with respect” is an awful phrase to start a sentence with.
HHJ Kaly Kaul: Especially to a judge.
The Chair: You said very clearly earlier that there was quite well- signposted support for judges and for jury staff, and there is a clear plea buried away in that letter for much greater support for staff.
HHJ Kaly Kaul: Yes. Some of those who have sought support have had positive outcomes, and they have been helped. Some of our staff sought support during Covid, because we were one of the only two courts that remained open for the whole of Covid. Judges were okay, because we have got our own rooms and we are away from people a bit, but the staff really got worried. They got some real help by speaking to counsellors. But I think what she is saying would be good is much more training and support available on the ground, like someone who checks in on you, for example, every two weeks or maybe once a month, and asks how you are doing. I can tell, because we get their frustrations—they email us. Some jurors are really difficult, not just emotionally but demanding and rude.
There is so much that goes on in a court. These are the front-facing staff. I am here on behalf of GMB, but the people I care about the most in any court building are the staff. They really give of themselves, and they deserve more in-depth support. I could also say proactive support; all our support is reactive; you have to go and get it. The MoJ and HMCTS could just think a bit more about training and putting support in place that is not so difficult to access and does not require you to burn out before you access it.
Q23 Lord Anderson of Ipswich: You mentioned the question of distressing images and the debate about whether to warn the jury panel. You explained your own practice, which—if a former recorder dare say it to an experienced Crown Court judge—I thought was admirable. You also said that these issues are discussed in the Judicial College. Can you give us a sense of whether, if you were a recorder or a judge, that would simply be something that you dealt with at the very beginning of your service, or would it be something that is returned to at regular intervals?
HHJ Kaly Kaul: No. Judicial College training is compulsory. It is residential, and it is properly monitored. My part of the course that I have taught on three times this year is actually how to deal with deaf people in the courtroom, because I had the biggest trial where the witnesses and defendants were all deaf.
We have vignettes, which are recorded—we all played a part in them last year at the Old Bailey—and where different things happen. Then our classes, because I am a class tutor, go through and we discuss, “What would you do now and what should you do?” And then we tell them what is in the Equal Treatment Bench Book, what guidance there is, what cases have been decided that are relevant. It is an open, friendly and pleasant discussion. It is great.
Lord Anderson of Ipswich: What I was trying to get out of you is whether that is simply something that happens once when you first become a recorder or a judge, or whether it is returned to and, if so, how often.
HHJ Kaly Kaul: It is returned to all the time. I teach on the recorder course, too—so, if you were becoming a recorder now, you would have one of us teaching you. We do it on the recorder course. The course directors do it and so do we. There are a number of courses. You can choose which course. This course is not compulsory but most people will do it at least once in three years.
Lord Anderson of Ipswich: You mentioned also the Equal Treatment Bench Book. Do you think that book or, indeed, the compendium as a whole, is adequate when it comes to guidance on jury management for judges, or would you like to see more in it or different things?
HHJ Kaly Kaul: We have got a lot, actually. The compendium is absolutely brilliant. I started before the compendium, but it is an absolutely fantastic resource, updated twice a year. The Equal Treatment Bench Book, sadly, is underused; it is actually a really good source of information. I have been on the Sentencing Council and other working groups where I suggested to them that the Equal Treatment Bench Book become a compulsory part of the sentencing framework, so that people have to look at it, and then they will see how useful it is.
Is it enough for juries? We have enough for juries because we have criminal practice direction 8, which is really good. We have the compendium and the training. People like Professor Thomas also are brilliant. We lecture at all these Access to Justice courses. There are others as well who tell us about the research on juries and what works for them. We give written directions now into a computer, and it can make it more understandable for people who may not have that degree of education as others. It simplifies it.
Lord Anderson of Ipswich: I have to be quick because I know we are pressed for time, but I should like to ask you one other question, if I may, regarding prosecuting counsel and the CPS. We have received evidence that 3D-printed models, for example, of murder victims’ skulls are just as distressing as black and white autopsy images. The graphic evidence is associated with lower thresholds for conviction and a tendency towards guilty verdicts. In your experience, would the CPS or prosecuting counsel ever seek to overegg it a bit in terms of the graphic images? Are you aware of guidance that they have or perhaps ought to have on that specific issue?
HHJ Kaly Kaul: They have guidance from the CPS. I do not know it off by heart, but I used to prosecute; I had guidance then and you are not supposed to use some things. When I started at the Bar, the jury got everything. They got all the pictures as they were. Over the years, we have changed. I think there is guidance and we try not to—I will not say “overegg the pudding”. However, I did a murder case at the beginning of the year where it was my decision as to whether or not to pixelate the images in a particular way to safeguard the victim, who could not speak any more and did not remember anything. The prosecution did not want it pixelated because it was awful, and I did pixelate it because it was still awful but just a bit less. To be honest, that was a case in which I made sure that the jury panel knew what was coming.
Lord Anderson of Ipswich: But there is not a systemic problem, in your view, of prosecutors trying to put in too many distressing images?
HHJ Kaly Kaul: No. It is not a game. I do not think people who prosecute at that level treat it in that way. We all have a duty to juries and we know that. We and counsel will discuss prosecution and defence way before the trial. How are we going to present this? How can we sanitise it? How can we make it easier to do? The defence, to be honest, is just as involved in trying to help because it is a duty we all have. We do not want to cause people to be any more distressed than they have to be.
The Chair: You just mentioned that there was a case where you let the jury know what was coming, and that is an issue that I know Lord Bach wants to pick up in a bit more detail. Lord Hogan-Howe wanted to put a supplementary.
Lord Hogan-Howe: On this question about images, there is a counterargument, is there not? I understand it is empathetic to protect the juror. There is a counterargument, which is that sometimes people need to see how awful people can be to each other.
HHJ Kaly Kaul: I agree.
Lord Hogan-Howe: It may impact at some point on sentencing and can impact on the gravity of what the jury is having to consider. I wonder if at times we protect people so much that they might be so clinical about the event, which was diabolically awful. They might need to know that.
HHJ Kaly Kaul: From my experience, having prosecuted and defended murders, I do not think that is the case. Judges understand and will see what they need to see. You know, from your background—and you will know much more than me—whether police have wanted to use images and the court will not let them. No one could suggest that the images they get are cartoon-like or sanitised to that extent. That is not the point.
The problem that has arisen, and Professor Thomas is not really on this matter so much, is the Section 28 pre-trial cross-examination of children and others, where the statistics have shown that depersonalisation has seemed to reduce the conviction rate. That is a different matter. But from what you are saying your concerns are, “Are we protecting them so much and are they then then less likely to reach the right verdict?” No, I do not think we are protecting them too much or are less likely to do so, because a judge who understands the case, and we will, knows that there will be images—as I have decided—that have to be seen, and there will be images that can be seen. Sometimes fewer pictures are needed—four or five, not 20; that sort of thing is enough. But we have to keep in mind what is necessary for the case. We are not there to win or lose but to make sure the case is tried fairly.
Q24 Lord Bach: What information is provided to jurors by yourselves regarding distressing evidence?
HHJ Kaly Kaul: It depends on the nature of the evidence. It may simply be: “This trial concerns allegations of child abuse that come from the 1970s or 1980s. The nature of the abuse is serious and the allegations are of rape, indecent assault”, or whatever it is, because if it is before 2003 it will be under the old Act. Then I leave it at that. I do not give them that much. That is in a normal trial where I think child abuse may be something that people may need to know about in advance.
If it is something that has images, then what I do—I do not do it because I am not on anyone’s side—in advance, with agreement of the defence and prosecution, is ask the prosecution to read out a summary, in which we already know what he or she is going to say, about the type of images they might see. Then I give them a little talk on experience in the criminal justice system, which is along the lines of, “The first time you see images, it is going to be really shocking. You will be affected. But experience has taught all of us who do these cases year after year that in the trial you will see these same images a number of times. As time goes on, your brain will start to process them and you will not suffer the same reaction as you did initially, so please bear that in mind”. We have all had that experience and in all the trials I have done, that is exactly what has happened. By the time the trial has ended in, say, week 2, the jury are watching the images on the screen or looking at their files and have not got this upset face any more. They are just looking at images, that, by then, they are used to looking at and have understood. They have heard a toxicologist, this officer and that witness, and are able to process it. The brain will process it, once it has got over the initial shock.
Lord Bach: Do you think all judges or most judges do it in that way—in the same way in which you do it?
HHJ Kaly Kaul: I do not know, because at the college there is a division amongst all our tutor judges. I do not know; it is 50:50. Some of us feel strongly we should, and some of us feel strongly we should not. I do not know any more than that. That would be up to the Lady Chief Justice and others, but I personally think we should. That does not mean everybody should or will. It is just because it works for me because I have not lost anyone. In the trials where I have done a warning, no one has said on day 3 or day 4, “Dear judge, I am really sorry I cannot take this any more.” I want to keep the trial together. My job is to start a trial and finish it as quickly, efficiently and fairly as possible. That is it.
Lord Bach: That has always been your view, as long as you have been sitting?
HHJ Kaly Kaul: Yes. Because it came from being at the Bar and doing these kind of cases as prosecuting and defending. I learnt from then, and I knew that that was a better way in which to do it.
The Chair: Can we pursue this a bit further from a different angle with Baroness Berridge?
Q25 Baroness Berridge: First, following the questions about changing the evidence, is prosecuting cases affected by the resources available? In murder, for instance—I am colloquially told—there seems to be an open-ended pot of resources, but other cases are limited by the resources available to do all these changes. Is that correct?
HHJ Kaly Kaul: The prosecution still has a lot of resources—all the resources—for murder. Attempted murder is dealt with usually by borough, which is the local police, who do not have the same resources. But as far as jurors are concerned, no, I do not think so, because, in cases with images, the prosecution barrister, the prosecution/CPS lawyers, the defence and the judge are on it quite early on. We know that we have to present things in a certain way. Even if it is just colour photocopying or scanning things, we will find a way to do it. We have had to make do and mend for my whole life.
Baroness Berridge: Obviously we now know that we have a division here, but it sounds like you have best practice in your court. Can we just explore the process or lack of process for jurors before? Do you think that jurors should be able to flag before particular trials if they will have a difficulty, or should they proactively be told, “This is the nature of the evidence” et cetera before they are in the courtroom? Once you are in the courtroom, you are stepping to the side and you have made it as good as you can. Once you are in there, it can be quite difficult for people to come forward.
HHJ Kaly Kaul: It is, but the only person who can really answer that question correctly and well is Professor Thomas, because she is the only person in the country who has been given permission to talk to jurors after trials and ask them all these sorts of questions. We are never allowed to, so our understanding will always be what we think has happened, not what we know has happened. In her understanding—she has done her paper—she is in favour of there being more support.
As far as it being in advance, I would be worried about sending jurors a summons that said, “If you are particularly sensitive to X or Y, please tell us”. I would not want anything detailed, but what Thelma does at our court—I hope it is done at other courts, but I do not know—is to tell them to contact the usher about a particular thing. For example, we have Jewish people and Muslim people. Wood Green has the highest number of countries, races and languages of anywhere in the country, so people contact the court and say that their daughter or wife is doing jury service and, “I do not think she will be able to try a case of this nature”. Then it goes to the resident judge, who would normally make adjustments. However, I do not think we should ask them to do it, because that is almost like they are choosing their cases, which they cannot do.
Baroness Berridge: Are the letters that you referred to, which are written to you, written by the jurors themselves or by relatives on their behalf?
HHJ Kaly Kaul: They are usually written by relatives on their behalf, but I am not the resident judge, so I would not necessarily get them. I might be told about them; that is all. Sometimes, if a juror knows that they have a particular issue—we have lots of physical issues as well—they will write in advance. There is room when they reply to say, “I have disability X”, I have impaired sight”, “I need a special chair” or whatever it is. The jury managers really sort that out.
Lord Anderson of Ipswich: Do these letters that you get from family members cite religious objections to their wives or daughters seeing hurtful evidence or hearing disturbing cases, or is it more a question of general protectiveness? If the latter, what about all the other people who might have to hear this? Do they not have an equally strong case?
HHJ Kaly Kaul: They go to the resident judge or the deputy resident and I am in neither position, so I do not see the letters. I am just told that there was a letter and, “X has been excused from your case. She will not be on your jury panel”. That is all. Sometimes there are religious objections and sometimes it is, “She doesn’t know about this sort of thing” or “It will affect her very adversely”.
As far as how it affects other people, jury service is a civic duty. We all believe in the jury system, and it is what it is. My feeling, when I am doing a case that is very small, short and not very interesting, is that jurors resent that much more than they resent serious cases. When they are trying a serious case, they take it very carefully and responsibly. They know that they are doing something really important. I think there is less resentment, not more resentment, when they realise how serious it is.
Baroness Bertin: I have one follow-up on these letters: surely there is some contact with the actual individual.
HHJ Kaly Kaul: Yes, but the resident judge would do that. He might speak to the father or whoever. I would not.
Baroness Bertin: I mean the person. Presumably they are over 18 and are a person in their own right. I just find it interesting that judges are being written to by family members, who are saying what they can and cannot do. It strikes me as very controlling and worrying.
HHJ Kaly Kaul: It is controlling and worrying. As to how many times it happens, you would have to ask resident judges, but I know that it has happened a number of times in my court because I have been told about it. We are conscious of the rights of the individual as well. We have had fathers who have said, “She can do jury service, but I want to sit in the public gallery with her”, and they have been told, “No, you can’t”. We have to manage a lot of different sensitivities and do our best. That is all we can do.
The Chair: Before we move on to Lord Empey, you remarked a few minutes ago that, “We’ve had to make do and mend all my career”. In all the areas that we are discussing and from everything that you have said, it seems that we really make do and mend, and that there has not been any overall agreed approach about the level of support to jurors, decisions about what evidence should or should not be put in front of them and so on. Is that a correct interpretation?
HHJ Kaly Kaul: No. Over time—I have been doing it for a long time now—things have developed. We change our attitudes to things. We have very much changed our attitudes to the admissibility of different types of evidence. A witness’s sexual history, for example, is very difficult to ask about now. When I started, you could ask anything you wanted of anyone you wanted. We change and we grow, and that is part of what the Judicial College is about: teaching us to grow with the changing times in our society. So, no, I do not think that.
The Chair: That is more encouraging than I was led to believe.
HHJ Kaly Kaul: I think “make do and mend” is more to do with the buildings. When I was prosecuting, I said, “I need some treasury tags and some rubber bands”. I was told, “Well, Kaly, dear, if you want them, bring your own”. I said, “Files, pens, highlighters, Post-it notes?” “Bring your own”. That is what I meant by “make do and mend”: we just do our best and try to run the system as well as we can.
Q26 Lord Empey: Jurors are currently prevented from discussing the nature of jury deliberations. Would you recommend a therapeutic or research exemption to rules around jury secrecy and, if so, why?
HHJ Kaly Kaul: For deliberations as far as research is concerned for people like Cheryl Thomas, absolutely I would, because the best research can be done only if they are able to talk about deliberations. Things may have been said and discussed in the deliberations that are part of the research, and she needs to be able to teach us to improve that or let us know what problems we can deal with. She helps us by writing directions, lecturing et cetera.
Therapeutic exemptions are something that a number of judges and members of staff have raised with me. They think that this automatic bar from being able to discuss something that happened in deliberations should not be there if the person who is giving the counselling is properly accredited and trained and understands the sensitivity and security. If someone, say, has had a trauma reaction—they may have had PTSD as a child or something may have happened which the deliberations have triggered—which the EMDR needs to focus on, because it was the triggering event, how are they going to get the help they need unless they have someone who they can talk to?
Lord Empey: Do you mean that they cannot decompress—if we can use that terminology?
HHJ Kaly Kaul: They can decompress about the trial in general and about jury service in general, but something may have happened in the discussions that was the trigger. If you are having EMDR, they will want to know what happened and what the trigger was. Then they will give you exercises—rapid eye movements and lights—to go through that trigger over and over again until you stop reacting to it. If they cannot discuss that part—in other words, they can discuss 70% of it, but 30% has been removed—it might inhibit those who suffer some sort of adverse reaction from getting help. However, I think it should be carefully considered by people much more important than me and dealt with in a very secure and careful way.
We all have to say at the end of a trial, “The trial is over. You can now discuss anything that happened in this room, in court, with anyone you like, but never discuss anything that was said in the jury room to anyone, ever”. They take it seriously. They then, as I understand it, become frightened and do not know whether they can tell even a counsellor.
Lord Empey: I am just conscious of a recent case in the United States.
HHJ Kaly Kaul: Yes, I have been following that too.
Lord Empey: Everything is completely different. I have to say that I would not want us to go down that direction, but I am just saying that it is a big issue right now. Of course, other countries treat jurors in a different way. Do you have any views on that? Are you content with the way that this country deals with it or do you see examples of better practice elsewhere?
HHJ Kaly Kaul: I think others would answer better; Professor Thomas has given you the links for Canada and for other places. I think we deal with it well in this country, but we could deal with it a lot better. Juror deliberation is an area that will have to be very carefully considered by very senior people for a long time before we can reach a level of safe agreement. In my view, there should be some sort of permission. For example, a psychiatrist may say that they need to discuss a matter with somebody, but that person cannot reveal it to them because it is part of their deliberations. In that case they may seek permission to discuss it, and permission may be granted or not. It is very serious, and our oaths and promises are sacrosanct. They have been made to promise they will never talk about it, and they take that seriously. I do not want them to feel that this is being run over or ignored.
Q30 Lord Anderson of Ipswich: When you are sitting by the jury usher, or even in a note by the jury itself, are you ever told that things have become toxic or abusive within the jury room? What can you do about that if so?
HHJ Kaly Kaul: There is teaching. There are lots of cases in which it has happened, and we have the decisions of the Court of Appeal, which notes how the judge dealt with it, whether it was right, and how to deal with it in the future. We will often follow these steps. Again, it is in it is in the compendium and it is also in criminal practice direction 8. We follow the practice, but we also follow our gut instinct. This sometimes tells us to go home—it might be 3.30 am, so we may say that we will come back in the morning to see if we find have a fresh approach. We also give them talks on how to respect each other’s views, and explain that it is very important to do so, and we hope that we can keep them on board. There have been trials that have had to be discharged: it does not happen often, but it has happened where the jury themselves have fallen out to such an extent that they had to be discharged. I had one trial where I was defending a child rape at the Old Bailey. I was outside the courtroom and we heard fighting. The officer in the case was standing nearby and I was by the lifts. One juror was beating up another. The officer ran over, broke it up, then ran to me and said, “Miss, I do not know what to do”. I said that we must both go home and make statements to bring in tomorrow. We would then give these to the judge and he would decide what to do; he discharged the jury. Those things do not happen often but they do happen.
Q31 Baroness Berridge: If you are a juror and happen to be in a court without the practice that you have in relation to introducing a case, do jurors have any legal remedy with regard to a duty of care to them? We have had evidence that some jurors find it deeply distressing, have been made poorly and come away with PTSD. As we now know from you, other jurors are having a very different experience of consideration and care. Do jurors have a legal remedy in law?
HHJ Kaly Kaul: I do not know because that is not my area, but I do not think so. We judges have a duty of care, thanks to my litigation, which we did not have before 2021. The staff have always had this because they were under the MoJ. However, the MoJ then accepted that it also has a duty of care to 5,500 judges. I do not know about juries and I do not know, therefore, if they could litigate.
Q32 Baroness Buscombe: I have a very simple clarifying question which may or may not seem relevant. Could you remind us how long the jury sit each day and how long each slot is for the morning and the afternoon sessions?
HHJ Kaly Kaul: The timings are 10 am to 1 pm and 2 pm to 4.30 pm. I normally have a break mid-morning. Most judges call for a break for the jury in the mid-morning, and this lasts for about 30 minutes, but they do not necessarily break in the afternoon. Those, or fewer, are the hours that they sit. Due to the current backlog, we all have to do extra cases every morning, in which case we will always tell the jury to come in at 11 am or 11.30 am so that they are not waiting around more than they have to. We deal with the other cases before they come or after they go.
Q33 Baroness Hughes of Stretford: This is the last question. I am thinking particularly now about support for jurors. We have heard from some people researching in this area of things they would like us to recommend to Government to improve the situation regarding support for jurors. This could be about pre-trial information, emotional impact, about things that you have raised, and about the standard of accommodation, the overall experience or post-trial support. You have mentioned disclosure, so I will not go over that, but are there particular things that you feel are a priority for the MoJ to think about in terms of support for jurors?
HHJ Kaly Kaul: I think that there should be a dedicated website for jurors. There is a lot of information on YouTube if they are interested. I think there should be a site that explains about jury service and gives a general, gentle introduction. I have the figures if required on the amounts of money jurors are given for day-to-day work, for those who are self-employed, for those who need childcare, for those who need special transport and even for food, which is £5.71 a day. There used to be a card that they used at the canteen that ensured there was enough for them to have a hot drink, a cold drink and something to eat. Now the MoJ prefer them to submit afterwards, and they get £5.71 a day anyway. It is not that they are not going to get it, but we have people who are very poor in our area and I do not want them to have to claim at the end. There should be a way in which they can either use a card or they can claim at the end, so that those who need food as they are going along can get it. This only applies to those courts that have catering facilities; not every court does, but if it does not then there should be a card that they can use at a local sandwich bar or something like that.
We expect them to do a lot. In most courts our accommodation for jurors is not good. It is not terrible, but they do not even have a kettle and they cannot bring in their own stuff and make cups of tea. We must think about day-to-day comfort levels. Some courts have thought about this: we had a magistrates’ court at Hendon that we used for extra courts, and we are about to get them back. The jury rooms there are lovely because they are the old magistrates’ rooms. They have a fridge, a microwave and a kettle; they are fantastic. I think the rooms should always have these. Some of our jury rooms are not even usable because, every time it rains, the roof goes down. They have to wait until those rooms are dry—it is that bad—and the furniture is not great. Things such as this could really be improved.
I know it sounds trivial, but if you have to sit somewhere for at least two weeks—that is the length of jury service—you just want people to know that you respect them, you welcome them and you are doing your best to make them as comfortable as possible. That is all we can do. I do worry about this. I think they should improve the payment structure, and they should be more interested in jurors who need childcare or who cannot get to court easily because they do not have transport. They may not be well enough to even take public transport. Arrangements can be made, but they are not very often made and I think we should think more about them.
Baroness Hughes of Stretford: Thank you very much. What do you think about training for court staff more generally, and a more systematic approach to training in terms of the needs of jurors?
HHJ Kaly Kaul: I think they would welcome more training. As I said, sometimes jury systems work more because the people are good than because the Ministry of Justice or HMCTS are training them well. We are depending too much on luck and being lucky to have good staff. They are indeed good, and I am glad about that, but we need to really enforce the training and the support for them so that, when they are trained, it is not just that they have to do whatever it is. Instead, they should understand why it is done in a certain way, and they should be assured that there is support there for them if they need help. The staff should have check-ins every so often to check the levels of pressure they are under, and to see whether they have had a terrible time in the jury office over the past months. Some of them just ask to be transferred out because they cannot take it. You see their faces and they are white with the exhaustion of being constantly asked for things, or told that a juror cannot come tomorrow, and then informing them that they should have told them earlier, but the juror forgot, and so on. That is just one court: if we have 10 courts with juries, there are many things to answer and deal with.
Baroness Hughes of Stretford: Thank you. Just finally, in terms of specialist post-trial support, you have mentioned Samaritans. People get signposted there. Is there a formal agreement between the MoJ and Samaritans?
HHJ Kaly Kaul: I do not know, but I think so. They are given a leaflet at the end about Samaritans, but I think a lot of people would not necessarily feel comfortable ringing them. They think to themselves, “Well, I am not suicidal”. I think a lot of people are shy about using services, and men in particular: that includes male judges and male staff. Many men do not feel comfortable about accessing any kind of support, which is why using some of the NHS AI tools might bring those people out of their shells, and it might be easier for everybody.
The staff definitely need more proactive management, support and recognition than they receive at the moment. I am sorry; I should not talk about their salaries, but these are front-level staff who face the world every day. Someone earning a grade D salary in HMCTS is paid less than grade D at the MoD. We must decide whether we care about jurors and whether we care about the court system. I am not saying they should be paid £300,000 a year, but what I am saying is recognise and treat them with dignity, because these are really important people who keep courts running. These are the people who bring juries to court, who look after them in the dock. All the staff—the jury managers—do a brilliant job on the whole, and they deserve much more recognition than they get.
Baroness Hughes of Stretford: Thank you very much. You made that very clear.
HHJ Kaly Kaul: Thank you. That is why I am here. In 43 years, I have seen that the best people in every court are always the staff. It is not the judges; it is the staff.
The Chair: Thank you very much indeed, Kaly. That has been absolutely fascinating. We have all learned a great deal from you. One of the problems with these sessions is that you think of things afterwards that you wish you had said. Please feel free to put it down on a piece of paper and get it to us. If you can do that as quickly as possible, that would be very helpful indeed. On behalf of the entire committee, thank you very much. The sitting is suspended.
