18
Examination of witnesses
Philip Stott and Kama Melly.
Q34 The Chair: Welcome to this third session of the Justice and Home Affairs Select Committee’s inquiry into support for jurors. We are absolutely delighted to have two more witnesses with us; I thank you very much for being here. Could you help us kick things off by giving us your names and your roles?
Kama Melly: I am Kama Melly KC. I am a vice-chair of the Criminal Bar Association.
Philip Stott: I am from the Bar Council. I chair the Legal Services Committee and am a practising barrister.
The Chair: Thank you very much indeed. We are going to kick off with a question from Baroness Buscombe.
Q35 Baroness Buscombe: Bearing in mind that this is a public broadcast, first, I thank you both very much for coming. I shall make my point up front. It is important that barristers are, bluntly, self-employed. Your situations may be very different, but we are going to hear from jurors or judges—or both—as well as from you. What access to support do you have as barristers, with regard to difficult cases? How frequently is that support taken up? Let us start with you, Philip, as a practising barrister.
Philip Stott: The support that is offered by the Bar Council is through the availability of well-being resources, including a helpline through the Bar Mutual indemnity fund, which is the insurer for self-employed barristers. The Bar Council supports LawCare, which offers a helpline, and there is also access to GP services for those who pay an additional fee.
The percentage of that that deals with the issues we are discussing today, in terms of distressing cases, is not available to us because it is also used for other things, such as financial issues or substance addiction issues—the vast range of issues that can affect people. Obviously, that includes, as you pointed out, self-employed barristers. Employed barristers come primarily from the CPS, which is the largest employer of criminal practitioner barristers, but also from defence firms, which presumably have their own resources to help; indeed, they often do. I know that the CBA, on whose behalf Kama is speaking, offers support as well, but I will let her speak to that.
Baroness Buscombe: Have you ever made that call to the helpline or known of others who have done so?
Philip Stott: Yes. I have done so myself—not necessarily on these issues but to do with other issues—and I know other people who have.
It is right to stress that we have a community at the self-employed Bar. There is the Criminal Bar Association. There are the inns, obviously. There are also chambers for those who are not sole practitioners. You rely heavily on your friends and colleagues to talk through matters. I know that, in my chambers, we offer something called a listening service. Half a dozen of us went and got some training so that we could talk to people who were undergoing mental health issues or, less specifically, experiencing something from across a wide range of issues. I know that that service has been used on occasion by people in my own chambers.
Baroness Buscombe: It is quite important to emphasise how different a set of chambers can be from a normal office situation. You are living and breathing with these people, but your relationship generally goes further than the nine to five, does it not, because of the world you inhabit and the life you lead? I speak as someone who practised at the Bar years ago. It is important to emphasise the fact that you are a small group of people.
Philip Stott: Yes, and it is not nine to five because, particularly from a criminal perspective, you are often not in chambers from nine to five because you are out in court. In that sense, it can be quite lonely, although there is obviously the robing room camaraderie and your own friendships there. We almost instinctively reinforce that by forming those kinds of friendships and those support groups to talk to one another. As you will know, phoning people up for advice is inherently ingrained as part of your training: you always phone somebody if you have any question or any problem at all.
Baroness Buscombe: Thank you. Kama, can you reflect on the Criminal Bar Association? I also wonder whether the Bar Standards Board has any input or support.
Kama Melly: Predominantly, certainly in the Bar Council scheme, the Criminal Bar Association commenced a well-being scheme, which has now come under the umbrella of the Bar Council scheme more than the Bar Standards Board.
Just to add to what Philip has set out already, I should say that the CPS’s service is open to self-employed barristers as well as their own employees. In addition to that, two years ago, the Inns of Court College of Advocacy wrote a trauma-informed advocacy course; I was involved in that. Part of that is about reflecting on how we deal with witnesses and victims, but another part is about the vicarious or secondary trauma that we experience and self-care. There are some resources there, which are quite practical as a sort of therapeutic service. When we come on to discussing whether there are to be any shifts or what could be offered to jurors, it might be useful to look at some of those resources, as well as just a therapeutic-based one.
We found that there was lots of informal support for barristers going back some years, but remote working and the fact that our cases are held digitally mean that there is not that tradition of everyone being back in the building for the distribution of papers at 5 pm. That, combined with the higher rates of trials being rape or other sexual offending cases, as well as how much footage is now taken on smartphones, means that the need has gone up.
I am based in the north-east. Locally, I consulted a therapist, who explained that we needed a three-pronged approach because just introducing therapy or a counselling service on its own would not have significant take-up unless you normalised it and educated people about how it would help. So, in addition to our counselling support service in chambers and across the circuit—it is run by Wendy Showell Nicholas, who specialises in this area—we also run education on self-care, sleep and healthy habits in terms of separating your work and home lives. We have combined that with a social informal element. We have found that that triumvirate of support services has made a difference.
I have taken up the support. I have spent a lot of time prosecuting heavy sex cases, particularly grooming cases, which took their toll. I consulted and got support from the therapist I have mentioned, and I have been very open in the criminal Bar community about how helpful it has been for me—again, to try to normalise it and to start an open discussion so that people can talk about the deep impacts of the criminal cases with which we deal.
Baroness Buscombe: Very quickly, you touched on remote working. I have been worrying about that, as it happens, in terms of the loneliness and the separation through what seems to me to be a substantial number of barristers who now work remotely a lot.
Kama Melly: There are a lot of individual remote cases, but in all trials, we should say, counsel will have been present physically in a courtroom in front of a jury in the Crown Court. But, particularly in those early days, our most junior members are picking up cases and may have to dip in and out of a number of small cases, all of which might have a fairly traumatic element to them. We do not want to see an end to remote working, but we do have to note that we have to put different support services in when we are not going to have physical face-to-face meetings.
Q36 Lord Hogan-Howe: Good morning. There is obviously an issue about barristers but my question is about mitigations available in the system for anybody affected by the trial process. What is available now to stop the problem developing rather than to deal with it after it has developed? Are there things you would recommend for the future that are not available now?
Kama Melly: As regards mitigations, perhaps the first thing to think about is how we really do keep an eye on trying to limit the amount of traumatic material we expose to jurors and, therefore, to court staff as well; we expose everyone in that courtroom to that material. We need to recognise that every prosecutor should be—and they are—reviewing that material to see what we really have to show the jury.
Just because there is a video that perhaps depicts the offence, we do not necessarily play and expose that, just as we do not routinely show photographs of a post-mortem in a murder trial. So the first stage is to try to look at what we can reduce, either through pixelation, blocking out or through other mechanisms; for example, computer-generated images of injuries are routine in a murder case. That would be the first step. But inevitably there are cases where we have to show highly distressing material to jurors because it is significant to the case or to the point that we are trying to prove; we have to accept that.
In relation to other mitigations and support, we will come on to the early questioning of jurors as to whether the material is such that they are able to hold true to their oaths in terms of that questioning. What we have seen outside of the pilot that has been taking place is that, at the end of the case, outside of that pilot, jurors are just told that, if they need further support, they can contact a GP or the Samaritans. That is what, perhaps, needs some further consideration of more specialist services rather than the generic Samaritans phone line.
Lord Hogan-Howe: I have just asked a judge, so I have to ask you as well: is there any way that, by holding back some of the evidence—for the reasons you have explained and with that empathy for somebody who might be affected by it—is there any danger at times that the quality of the evidence is impacted to the point where the jury’s decision-making might be affected in a negative way?
Kama Melly: I would say no. When I am prosecuting cases, I wait and see what the issue is going to be first of all. Is it identification? Was there penetration? What is the specific issue? Once I know that, I will ensure—however difficult the material is, I am afraid—that the jury have what they need to make that decision.
If I can pixelate or blur, or use some other method without damaging the case, I will do so but, otherwise, I will simply have to open it, introduce it and explain that they will have that distressing material shown to them. I might take other steps, such as not placing it in the jury bundle where they are going to come across it inadvertently when flicking through the pages. I might control it such that we show it on a screen at specific times, so that they can be prepared for when they are going to view it. That sort of detail can make quite a difference. But no, I am afraid my duty is to the overriding objective, which is to convict the guilty and acquit the innocent.
Lord Hogan-Howe: I have one final question on this. If somebody disputes what you have just described, when you have made the decision for what you believe are the right reasons, who decides in the end?
Kama Melly: The judge, ultimately. The defence can sometimes object and say that the material is too distressing. They might say, “We do not want the jury to see that. It is too prejudicial”. We would argue, if we wanted to show that it had a probative force, and the judge would ultimately make the decision.
Philip Stott: I echo that. It is really rare that we would put forward, for example, indecent images of children. There would have to be some sort of overriding need to prove it, but Kama is entirely right that, when there is, you do.
Of course, that is all about exhibits. Witness testimony can sometimes be incredibly distressing for all sorts of reasons, and you cannot get away from that. Also, jurors are told that they must judge cases, not on emotion. So it is in everybody’s interest to keep the most distressing parts away from it, unless there is some real evidential reason.
With pathology, for example, jurors might be very nervous about seeing it, but when they see that it is quite a sterile environment, and it is all computer-generated graphics for the most part, they actually find it interesting rather than repulsive. Some of the research says that, when they first turn up, maybe eight in 10 jurors are nervous about it and want to get out of it if they possibly can. But, by the end of the process, about eight out of 10 say that it was interesting and stimulating: “Yes, it was challenging, but I would do it again”. That is a testament to how the process works.
Lord Hogan-Howe: Just one final question from me. We have heard how some people might be badly affected by the evidence they are about to hear. Given their circumstances, you might decide to exclude them not from being a juror but from being a juror in that case. Do you have any concerns about whether that could start to move towards jury selection?
Philip Stott: Yes, that is a real, difficult constitutional problem. We in this jurisdiction do not self-select by voir dire, jury questionnaire or those kinds of things. What we do is we say, “Are you able to sit on this jury? Is there any reason why you can’t?” Sometimes, it could be for mundane issues—a pre-booked operation, holiday or whatever, meaning that they cannot make the length of trial.
There might be a position where you are able to say something like, “This is about the death of a child”. If somebody says, “I simply can’t do that,” as they might for a psychological health reason, there might be some ability to do that. But part of the reason why jury verdicts are so respected in this jurisdiction, the Bar Council believes, is because we have random jurors and they come with all their life experience, good or bad. That produces results.
When there is a miscarriage of justice, people do not blame the jury. They never blame the jury. It is the prosecution’s fault. It is the disclosure. It might be the way the judge directed the jury. It might be incompetence of counsel. But people rarely say that the jury got it wrong.
Q37 Lord Dubs: Good morning. You have said something about the support available, and you have talked about mitigations. My question overlaps with your earlier answers: where does responsibility actually lie for the well-being of barristers?
Philip Stott: For the self-employed, responsibility lies with themselves; for the employed, it lies with their employer. Lots of organisations have an interest: a chambers—with interest in its own barristers—the Bar Council, the specialist Bar associations, the inns and the circuits. Fundamentally, however, I think that is where the responsibility lies.
Kama Melly: I think that is ultimately the case. There are lots of organisations. We have to include the Crown Prosecution Service in that list as well, which, of course, routinely contracts to the independent Bar. But yes, that is part of the problem. If we were employees, probably there would be an intervention about somebody doing back-to-back rape trials and dealing with that level of distressing material day in, day out. So there certainly does need to be this move towards self-care and other measures. But, ultimately, that is quite correct.
Lord Dubs: There is, of course, a similar issue as regards jurors. What is your understanding of where responsibility lies for jurors?
Philip Stott: I think, ultimately, it lies with the Government in the form of the Lord Chancellor. It is His Majesty’s Courts and Tribunals Service that summons them, and it is HMCTS and the Government who pay the judges. On an individual basis, it is obviously the role of the judge in the individual case to manage that case as he or she sees fit. Do you agree, Kama?
Kama Melly: I do agree, yes, on a trial-by-trial basis, that is. But where an organisation is summonsing that juror, they do not have a choice ultimately to be there or not. That must be the person who holds their responsibility for the impact of that process.
The Chair: So the judge is responsible for repairing a broken kettle in the jury room?
Kama Melly: No, I do not think anyone is suggesting that.
The Chair: The reason I intervene is because it appears to be very unclear where the responsibility lies for jurors.
Kama Melly: I sit, so if I have a juror in front of me who is clearly distressed by the material, I cannot say that, at that stage, the Lord Chancellor, the head of security or someone else is supposed to be there to deal with that individual. It would be on the judge to notice those signs and to take the appropriate action, bearing in mind their responsibility for both the juror’s and the trial’s best interests. Looking as we are today, I presume, at a wider and more macro approach to jurors and their well-being and responsibility, just as the pilot had indicated that there may be a need for specialist services for them—either before, during or probably afterwards—we are also saying that the Government who summon them must hold that responsibility.
Q38 Baroness Berridge: We have heard that there are some judges who give particular directions and invite people to come forward, and other judges who do not have that practice. As a juror, if you ask to be excused—you say, “I cannot hear this case because I have had a child who has died”, or something like that—but you are not recused from the jury, do you have any legal remedy? Do you have anything to go further with that? That is my first question.
Secondly, if you happen to be a juror in a trial where there is no direction and you end up seriously poorly, do you have any legal redress for being made poorly through this system, when in another court you might have been treated very differently because of a different judge?
Kama Melly: I am not aware of that being tested in any vicarious trauma case that has been brought against the judiciary or the state by a juror. I defer to Philip to see whether he has done so. It is about whether they can be true to their oaths to draw and make the decision based on the evidence before them.
I will go back to one of the issues that was raised before about our selection and making sure that we have a randomly selected jury with a lot of different life experiences—I know that I am straying slightly. One of the needs for caution is that we have to recognise how many women in particular will have experienced either sexual assault or domestic abuse. What we do not want to see is all people who have had such life experiences excluded from our juries, because they would make an important part of it. A lot of emphasis is on the juror so that, frankly, if there are signs of distress or emotion that is having an impact on them, they need to raise it. I have never seen a juror raise something like that, to the point where it is making them unwell, and a judge simply says, “Well, carry on”. That is not part of my experience.
Lord Dubs: Might it be embarrassing for them to do that?
Kama Melly: Indeed, except most communication is not done through a juror walking in and having to announce it. They would speak privately and quietly to an usher, who has often formed something of a relationship with them, or through a handwritten note that was handed in privately. While I take on board that it can be embarrassing even to admit it sometimes or to come to terms with it themselves, there are mechanisms where they do not have to do that very publicly.
Philip Stott: It is a very interesting legal question that you have raised. The Bar Council is currently intervening in a Supreme Court case—due to be heard next month, I think, across the way—on advocates’ immunity from suit. Advocates are immune from being sued by anybody other than their own client on negligence. The question for the Supreme Court is whether that should remain. What is not under any dispute is judicial immunity from suit—you could not sue a judge as a juror. The Lord Chancellor and HMCTS would undoubtedly have their own responsibilities, under common law and the Health and Safety at Work etc. Act, to those whom they house and force to be there through the summonsing process. Going back to Lord Foster’s point, I agree that the responsibility and the legal remedies are not clear. I am not aware of it ever being tested.
The Chair: There are a number of issues that we will keep coming back to and developing. A good example will be from Lord Anderson.
Q39 Lord Anderson of Ipswich: You explained to us very clearly the position on shocking graphic evidence. There is a dialogue beforehand, and the judge, if necessary, rules whether a picture might be pixelated if that bit of the picture is not actually relevant to any issue that the jury will have to decide, or, on the other hand, whether the jury will have to see it, shocking as it is.
You also mentioned that oral evidence can be shocking too and that it cannot be predicted in advance. For the benefit of those of us who are not familiar with the courtroom, could you talk us through who would have responsibility if a witness starts being gratuitous or shocking when they express themselves? Plainly, that might be relevant to what the jury has to decide, but it might not. Could anything be done in that courtroom context, without in any way limiting the freedom of the witness to say what is relevant, to avoid undue distress to the jury?
Philip Stott: I had a similar experience last month in a case that I was dealing with. I was engaged in a what is called a cutthroat defence, which is where two defendants are blaming each other. One defendant said that they had been forced to commit the crime by the second defendant, and that was not previously highlighted in any interview or defence statement. It was a husband and wife, and she started talking about how the husband had forced her to have an abortion and had raped her while she was having medical treatment. That was something that nobody had predicted. It was being said as part of the defendant’s evidence. It was relevant, because she was saying that she had been compelled, but there had been no ability to say to a juror before that point—because nobody had known that she was going to say that, not even her own lawyers, I suspect—“By the way, this is a topic that is going to come up that might well be the sort of thing that causes distress to somebody for all sorts of reasons”.
What can be done about that? Very little. The opposing party can object. People are very quick to get to their feet and object, if they are going down a route that they think will be prejudicial to their own client’s case. The judge is also very keen to control it. However, that comes back to my point about oral testimony: we do it in a formalised way, which helps limit the impact, but sometimes somebody saying something can be very upsetting.
Overall, jurors are robust adults, and I think they appreciate the service that they are being asked to do, and they perform it very well. What that then comes to is: what can you do afterwards to help those people? Even if you cannot eliminate the risk of something happening like what I described, what services can you offer afterwards?
Lord Anderson of Ipswich: Do you have anything to add?
Kama Melly: No, I am content with that.
Lord Anderson of Ipswich: I have one more, slightly different question that touches on the issue of informal jury selection. We have received evidence that there are occasions on which a judge—or, more likely, a court—will receive a letter or a communication either from an individual or, possibly, from a family member of that individual, saying “I do not want my daughter, my wife or myself to be exposed to disgusting evidence or to have to think about sex cases or anything like that. Please ensure that they do not have to sit”. I appreciate that we should probably be talking to a panel of resident judges, but that is a rather unlikely prospect in Parliament. However, is that a practice that you have any awareness of, and, if so, do you have any views on it?
Kama Melly: I have had some limited experience of that, where views were expressed that they did not want to sit. That is very different to it having a traumatic impact on them such that it is distressing or that it will do them long-term harm in some way. If we are doing harm to an individual or they cannot be true to their oaths, judges will not have difficulty excusing that person from jury service on that trial, but simply a preference—if it is put in that way—of what trial they would like to hear in their two-week jury service is not accommodated. Ultimately, it is a public service. Almost all Crown Court trials have some difficult aspect to them—that is the nature of the work in the Crown Court. I have had judges make those inquiries and check that neither of those issues are arising. A mere preference is not accommodated, in my experience.
Lord Anderson of Ipswich: Are you aware of whether there is discussion of these issues, for example, at the Judicial College, or are they covered in the compendium or the Equal Treatment Bench Book? Is it simply left to the good sense of the individual judge?
Kama Melly: There is a lot of guidance, in the compendium, the practice directions and indeed the Criminal Procedure Rules as to what to do with individual jury issues. They are more about the procedure that must be followed, I have to say. It is difficult to account and give guidance for every single scenario but, as we have discussed, the ultimate test is about whether they can deliver an oath in line with the verdicts they have taken. If it does not challenge that aspect of it, it is unlikely to be a proper basis upon which to recuse a juror.
Baroness Bertin: We have heard on the grapevine that some letters are going in from, let us say, fathers from certain religious communities, saying they do not want their daughters to sit on certain trials—sex trials, essentially. How widespread is that?
Kama Melly: I do not think that is widespread at all.
Baroness Bertin: Would that be taken into account?
Kama Melly: They are not children. I cannot see that an adult parent can dictate or indicate their views as to what another adult can do on jury service. I do not anticipate that is a particularly widespread issue. I have seen letters written from family members. Sometimes a disgruntled husband has written to try and cause problems for a juror. Odd things do occur. I work predominantly in an area where there is a significant Asian community, if it is being suggested they may come from that background. That is not part of my routine experience at all.
Philip Stott: I have never seen it in 20-plus years. This comes back to the point I was making about what research there is from Professor Cheryl Thomas at UCL. People are nervous and do not know what being on a jury is like. They have all sorts of ideas about it but, actually, if you stick with it and go through it, people come through and realise it is not as bad as they think. It must be scary turning up to a court for the first time. You have all these preconceptions, and perhaps that is informing the sort of things that you are hearing about. It is not nearly as bad as that normally, even in a sex case.
Baroness Bertin: No. The thing that was worrying me more was that there was there was the sense that somehow someone could be controlling an over-18 year-old to say what she could or could not do.
Philip Stott: Even that fear from that controlling person might be misplaced, because they themselves probably have never done jury service, do not know what it is like and have this idea that they are going to be exposed to all this kind of stuff. Actually, it is much more sterile and there is much more control.
Baroness Bertin: Indeed. I suppose my point is just trying to make sure that there was no credence given to those sorts of ideas.
Kama Melly: Picking up on that: notes from jurors about particular issues—unless they fall into particular categories about voting numbers or deliberations, so counsel cannot see them—are not just dealt with privately. They are put on a court record. They are discussed with barristers. We would not have a large segment of potential jurors removed from a jury pool because family members had written in and we would just not be aware of that, if that gives you any reassurance about that.
Q40 Baroness Bertin: I am conscious that you have spoken a little about this already, so I do not want you to duplicate, but can you give a little more detail about the information that you provide to jurors regarding distressing evidence? Thank you for giving a bit of detail in previous answers, but is there a general guidance or is it very much down to each judge and each barrister doing what they feel is right?
Kama Melly: Yes. First of all, the lead will normally come from the judge in a trial where we know there is going to be particularly distressing material. When we come to jury selection, sometimes there is a written document, if it is a lengthy case, with the names of the witnesses or the geographical areas. At that stage, where we are pulling the jury and nobody has been selected, quite often there might be judicial remarks about the nature of the material or some further heading up of the issues in the trial. Then, in the prosecution opening, that will be handled in a particular way, telling the jury what they are going to see and how the trial will be managed—whatever safeguards we have put upon it, whether through pixelation or saying, “Do not worry, it is not in the bundle. You’re not just going to come and see it”, or “We are going to watch it all together”. Our experience has shown it is good to set out some of those little safeguards at the beginning.
Philip Stott: Just on that point about the prosecution opening, nowadays—this has been in place for maybe five or 10 years—in a case of four weeks or more, you normally have 14 jurors sit through the opening and then you lose the two alternates when you get to the evidence proper. Normally, that is because somebody then realises that they know something about the case. But also in that prosecution opening, you are going to get a clear explanation of what the case is actually about. At that point, if somebody said, “I had not quite appreciated this; I cannot be true to my oath. I would not be able to be fair in a case like this, because it is to do with the death of a child and I am recently bereaved”, or whatever it might be. That can help perhaps weed out in those individual cases where people truly cannot be fair because of a particular personal experience. There might be some scope for making that more available, even in shorter cases, if they are particularly likely to be distressing.
The Chair: Just as a factual matter for someone who knows little about these things, I ask: the four-week-long trial is longer than the normal standard two weeks, so how do you get a jury pool for four-week trials?
Philip Stott: Or longer. You get a very large pool of jurors in. HMCTS will select a large pool to come to that court centre, along with all the other trials that might be starting that day. You will then get a large pool in—30 or 40. I have had up to 80 for really long cases. From that you go through the people who have family commitments, and for whom it would mean it would not work properly, or they are self-employed and so on. The judge goes through and that is what Kama was talking about. The notes of any relevance are read out. That is why we would know if somebody was raising a religious objection or something like that. Then you get down to your now 14 people, with a view to the 12 who actually hear the case and deliver the verdict, hopefully, at the end.
Baroness Buscombe: At what point are the jurors named?
Philip Stott: That pool I mentioned will be collected in the jury waiting area, the jury lounge—whatever it might be—at the court centre. They will then be selected at random from the, say, 80. Some 30 will be called out up there. They will come down and there will be 30 in court. A pack of cards is handed to the court clerk, who then shuffles, pulls out the 12, or 14 or more if they come up and then say, “I’ve got an issue, I cannot sit”. Often there is some pre-selection, so if people have got a pre-booked holiday that is sifted out beforehand.
Baroness Buscombe: My point is: I know more than one who really wanted to sit on a jury but at some point they were named and then, as it happens, were not picked to be on any jury.
Philip Stott: It might have been that they were named in that first stage as being in the pool of, say, 30 that come down into court. But then there is the further selection, because there has to be a random selection in front of the defendant or defendants, so as to be sure that it is a truly random jury selection. It might have been that they got through the first round and did not get through to the final round.
Baroness Buscombe: They were not aware of the reason why they were rejected, and they worry that it is because they were named and therefore somehow were disqualified.
Kama Melly: We do not have a system of interrogating jurors and then spending a week or two of each trial making a selection of them. It is random, as Philip was saying. Occasionally, a name is read out and that name actually appears on the papers or is known to someone in the case. That could be a basis upon which someone says they are the colleague of this person.
Philip Stott: A defendant might recognise somebody, or something like that.
Q41 Lord Dubs: Am I to understand from your answer that it is possible for the defence or prosecution to challenge a particular juror being on a case?
Philip Stott: Yes, you can challenge for cause but it would be on the basis of, “I know that person. I was at school with them”, say, or something like that. It would not be for any other reason than a personal connection to the case that would indicate a particular bias or potential bias.
Lord Dubs: I admit that this is some years ago now, but I heard of a person who was there and the prosecution said, “We don’t want you because you are a journalist”.
Philip Stott: Unless there was some relevance to being a journalist for the purposes of that particular case, that would not happen nowadays.
Kama Melly: No, it would not. Even police officers, barristers and judges serve on juries. It would be only if there was a particular issue that you would object to a police officer—if there was an evidential point about police evidence. If there was not, you could even have officers from the same force serving on a jury.
Q42 Lord Empey: Thank you for appearing. Jurors are currently prevented from discussing the nature of jury deliberations. Would you recommend a therapeutic or research exemption to rules around jury secrecy? If so, why? Kama, can I ask you first?
Kama Melly: I actually do not think that it is highly likely that any therapeutic work would involve a breach of the deliberation aspect. Jurors can speak about how they felt about their experience and jurors can speak about the material, because this is a Crown Court trial where all that material is, in fact, in the public domain in any event.
But I can see that the fear of trespassing upon that restriction may prevent individuals wanting to sign up for those counselling services. What we do not want to see—unless we are conducting specific research into jury deliberations—is that we have consequential breaches of that. We do not want the counselling services to be interrogating the jury deliberation. However, to facilitate jurors and therapists working in that field, we could have a minor amendment to that. But the pilot has taken place and that work has been done, as we understand it, without issues arising from jury deliberation breaches.
Philip Stott: Can I just add a point of detail to that? I completely agree with it. There is the prohibition on discussing what happens in the jury retiring room, which is permanent, but you can, after the case is finished, talk about what happened in court, as Kama says. You are not allowed to discuss the case while you are sitting. That is fine for the perhaps two-week period, because it is not too long until you can go and see a therapist, discuss and say, “I found the case traumatic in the following ways”. But for those really long cases—I have in mind the months-long cases; I think the Lucy Letby trial took a year—I can see that that would create some difficulty. Obviously people can still go to their therapist or whoever, if they have one, while the case is ongoing but, technically, they are not allowed to discuss the case they are doing with their therapist while it is ongoing. So maybe there is room for some therapeutic exception on that aspect, as well.
Rarely would having to discuss the jury deliberations be of significant therapeutic value to somebody. I suspect that that would be a very small number of people.
Lord Empey: We have all seen the movies, “12 Angry Men” and all this sort of thing.
Philip Stott: True, and jury deliberations can be very stressful. People do fall out; that is true.
Q43 Baroness Berridge: In relation to jury deliberations, we have talked a lot about distressing evidence—there is obviously evidence that we would all find a bit shocking—but, when you say they are difficult, what are the kinds of questions of fact that, after all that evidence, guilt or innocence is turning on? The judge gives the direction to the jury, and you potentially have an 18 year-old young woman sitting with older men; what are the kinds of questions that determine guilt or innocence? What is the nature of those questions?
Kama Melly: Obviously it very much depends on the nature of the case. In a rape case, often it will be about whether or not she is telling the truth, whether she was consenting or not, and whether the defendant had a reasonable belief in consent. All those issues bring up people’s experiences of life and how they think people react in a traumatic situation. Did they scream? Did they immediately seek help? So we can be asking people, when making those decisions, to give a little of themselves sometimes.
For abuse cases of children, it is often about identification; is the right person on trial? In terms of violent offences, it can be about the dynamics between the defendant and the victim. Were they genuinely acting in self-defence? Did all those facts occur? It is difficult to narrow the issues down more than that. But, yes, we do become aware through how long it is taking for verdicts to be reached, and we read an awful lot into the body language of them coming back before their retirement et cetera.
These are often very difficult issues to decide. We are often dealing with individuals’ accounts and making judgments on what people have said, rather than just a circumstantial case, perhaps a drugs case, where you have layers of different evidence of phone downloads or cell sites and that sort of thing. It often comes down to who you believe is telling you the truth, so they can bring about a lot of human emotion and response.
Baroness Berridge: We have heard evidence that, in other jurisdictions, in Canada and other places, there is much more support. There have been jurors who have taken it upon themselves to campaign for more support. Are you aware of anything in other jurisdictions that you would think is helpful for us in this country?
Kama Melly: No. I am often a little slow to draw comparisons, because there are so many subtleties within systems and so forth. We do not have the selection process that many do and we cannot ask about the deliberation process. I cannot speak to whether or not their jurors come out of jury service, as ours do—even with the unintended traumatic potential consequences—with a really reinvigorated support for the jury system and what an important part of our whole democratic system it is. While I know that there must be room for improvement, I come back to that: that research shows that, once people have been through the jury service, they are more supportive of the jury system.
Philip Stott: I know that Canada has passed a Bill to allow the therapeutic exception that was mentioned. I also know that a standardised juror notice is provided to all jurors, which is freely available to look at, and has been adopted in other jurisdictions as well. I know that Northern Ireland and Scotland have done it, and I think Canada has as well. That provides the basic-level reference to the Samaritans, the NHS, primary care and secondary care, which has been mentioned already.
Q44 The Chair: Just before we come to the end and Baroness Hughes’s question, could you tell us a little more than we perhaps know already about potential jurors with disabilities—physical or mental—and people who are blind or deaf or have mental health problems et cetera? What should we know about how that is handled?
Kama Melly: I have been deeply impressed by the way that the criminal justice system has tried to accommodate people with significant disabilities and allow them to have a meaningful jury service, even when it has been at considerable cost, in fact, and caused a potential delay to the trial process. There are limitations to that. If you need to be able to look at particular aspects of a video, there will be an investigation and discussion about whether, for example, a blind juror is appropriate in that case. However, quite often we have found that there are mechanisms by which we can adduce the evidence in different ways. I was aware of a trial recently in which a fully deaf juror was able to do full jury service through the use of sign language—more than one in the courtroom. So, in my experience, the court does try to accommodate jurors with significant disabilities.
The Chair: In your particular roles, presenting evidence in a different way may clearly be needed, as you have already said. Does the responsibility for doing that lie with you or with the judge? Can you potentially get in a situation in which you say that you do not think you are capable of providing the evidence in a different way to inform the judge’s decision?
Kama Melly: That is exactly right. The prosecution are presenting this case. The burden is on them to work out how they adduce the evidence in a way that is understandable by the jury. If we did not have advance notice of a particular juror’s needs, it may be that we cannot accommodate doing so for that particular trial, but it would be unlikely that this would mean they could not do their jury service at all. It is merely that this one particular trial was not suitable for somebody with those particular needs.
Philip Stott: As the advocate, it is your responsibility to present the case in a way that persuades the tribunal of the facts. Barristers are also very used to witnesses who may have disabilities, language difficulties, intellectual impairment, or whatever it may be. We must deal with those witnesses, but we are quite used to that.
The Chair: I am fairly clear from what you said, but just so that it is absolutely, clearly on the record, I will ask about something I am interested in. If you discover that, for example, you have a blind juror who has been accepted, but you are convinced that you are not capable of providing the evidence in a way that fairly represents the prosecution case, let us say, are you able to formally request the judge that it not go ahead? Are there procedures established for that?
Philip Stott: Yes. That would be the sort of challenge for cause that I was talking about earlier. In the same way, if somebody has difficulty reading and the case revolves around a great deal of written evidence, you might say that this is just not the sort of case in which this juror is going to be able to properly participate. In those circumstances you would say, “There is no way around it, I am afraid”. One extra point is that I agree in terms of the sort of disabilities that have been mentioned, but wheelchair access in the criminal court estate is at a shockingly poor level in my view.
The Chair: That is very helpful. Thank you for adding that additional point.
Kama Melly: I also wanted to add that those are things that we would probably find out about before that juror was selected. What we would not want to do is have them selected and then have a rather embarrassing focus on their disability. If we were aware that there was a deafblind juror, a judge is likely to say that they could be part of the pool before that happens. We would ask whether this is a case that would be suitable and whether we could accommodate it. It would just happen a step earlier.
The Chair: Thank you. Very helpful.
Q45 Baroness Hughes of Stretford: Thinking specifically now about support for jurors, you have mentioned one or two areas where you feel improvements could be made. We would like to ask you both whether there are particular issues you think we would be wise to include as recommendations from this committee in that regard; we have heard evidence from other people. To give you some prompts in terms of other issues that have been raised with us: ought there to be better pre-trial information for jurors, both generally and about some of the emotional consequences? Issues about juror expenses have also been raised, and the fact that they have to pay those up front. They are not terribly generous, we are told. Is there an argument for compulsory training for judiciary and court staff around some of these issues, in terms of the impact on jurors? Just picking up your point about disability access, we have also heard that in some courts the standard of accommodation and comfort facilities for jurors is very poor indeed—things like being able to make tea and coffee. We would like to know what your priorities will be with the Ministry of Justice in terms of the recommendations we might make to them.
Philip Stott: I will start with two, and pick up on that last point. A long time ago, jury lounges and retiring rooms used to be staffed, but that went. It has been mentioned once already, but now the role of the court usher—often one of the worst-paid people within the criminal justice system process—is absolutely key. The continuity of the usher with a jury is also key, because they become their friends and they talk to them, they pick up on issues and they talk about their home lives. If they are having trouble getting to court, or if their employer is causing problems with them, they can feed that back to the judge and things can be nipped in the bud. This is really important.
Putting resources into usher continuity, the quality of ushers and their training is something that would reap rewards in the current circumstances. It only takes one case of four or five months to fall apart because the jurors are not being properly supported for it to pay for itself. That is a cost of hundreds of thousands of pounds at least. I know the pilot that was operated had very little take-up. That means it probably would not be very expensive to make it permanent. I return to my point about reassuring jurors as they start off: this would help people going forward, and assure them that there are provisions available if they are needed. You probably will not need them, but if you do, they are here.
Baroness Hughes of Stretford: Thank you. We were told that the pilot was not very well signposted.
Philip Stott: Things never are with the criminal justice system. They are never easy to find.
Kama Melly: In addition to the pilot for a relatively limited cast—and as part of the introductory video that jurors have to watch at the start of their work about their restrictions, who they can speak to and when—I do not think it would be difficult or expensive to include some understanding of trauma and the impact of the trial. It would also be helpful to ensure that simple techniques are explained regarding leaving material in the courtroom, mentally speaking. It would also be helpful to give information on keeping hydrated through the day. Easy steps to limit the traumatic impact could be included as part of the initial training for the jury relatively simply. I slightly wince at the end of a trial, when the jury have had to endure perhaps months of detailed, horrific testimony, and a judge says, “You could call Samaritans”. The generic nature feels as though there is limited care for people who have given a lot to the system. I would welcome a referral to a specialist service, even if it is taken up in a limited way. The fact that the state would provide that for people who have been taken from their ordinary lives and who given so much is a symbol of proper recognition.
What you said is very interesting because you cannot divorce the jury experience from the court estate. As much as they do not seem to be wholly connected, they are. To make a juror feel supported and welcome, and to make them feel that it is a valuable service has an impact on how they deal with that distress. We put them into crumbling buildings: I work in buildings where I have had sewage and spiders coming down the walls, flea outbreaks, ceiling tiles falling, no hot drinks, no refreshment and limited bathroom facilities. We have a crumbling court estate, and we have been shouting about this at the Criminal Bar Association for a long time. It is one thing as an advocate to have no canteen, limited bathrooms and no access to warm drinks. When we are enforcing this upon jurors, however, the very least we can do is to give them a building that is fit for purpose. At the moment we are not.
The Chair: Thank you very much. We could go on for very much longer, but unfortunately time does not permit. This has been incredibly helpful. As I often say at the end of these sessions, I am sure you can think of things you wish you had said and did not, and things that we clearly need to know. If that is the case, please do not hesitate to write to us. I would ask that you do so as quickly as possible, because our time for getting this report finished is tight. Please write if there is anything you want to raise with us. We may even come to you with some further questions. On behalf of the entire committee, thank you both very much for what has been an instructive session.
