The final piece of this chunk of articles on the judiciary and independence focuses on the structure and make-up of the court system itself – how many courts there should be, what practical/structural things we would need to consider to improve access to justice and the different tiers of courts and tribunals.
Sometime early next year, the final set of posts on a Welsh Justice System will look at crime, punishment and rehabilitation.
When developing a distinctly Welsh court system, what issues raised by the Thomas Commission and others would need to be considered?
Problem-solving courts
One of the recommendations of the Thomas Commission was the establishment of “problem-solving” criminal and family courts similar to those introduced in Northern Ireland4.
The difference between “problem-solving courts” and the court service we have now is that judges are given more flexibility to deal with offending (and prevent re-offending) or reach conclusions on things like care orders for children. If there’s a particular issue that prevents someone from turning their life around, then the focus would shift from black and white views of punishment towards intervention and rehabilitation.
In Northern Ireland, they use enhanced combination orders which would include a punishment (like community service), but also closely supervised rehabilitation, restorative justice (such as facing victims or formal apologies) and – where applicable – curfews, counselling, anger management training or drug and alcohol treatment. Essentially it’s probation on steroids.
There would be obvious advantages to using this kind of approach in youth justice settings and the family courts, possibly helping reduce the number of children taken into care and destructive family breakdowns.
The Thomas Commission found the resources spent on this approach was paid for by savings from the prison system arising from a reduction in the number of custodial sentences and re-offending.
That said, this approach won’t work for everyone and we would still need some means to protect the public from the most dangerous criminals.
Virtual hearings and use of technology
Given the modern insistence that everything needs to be done in person, the Covid-19 pandemic has reminded us that videoconferencing still existed. The court service has had to adapt too and virtual courts have been used.
There would be obvious benefits to Wales in terms of dealing with geographical access to justice – we probably wouldn’t need as many courts and courtrooms if wholesale videoconference was used instead of in-person hearings. Digital working can make sharing of evidence – particularly documents – far easier and the technology is there for real-time transcription of court hearings.
The benefits would likely be most keenly felt in the tribunals and inferior courts (district courts magistrates courts, coroner’s inquests). For higher courts where someone is likely to face a prison sentence, it would still be a good idea for the trial to be held in person. There are also obvious security risks and there may be an assumption that people have access to good internet connections when in most of Wales it’s not the case.
Juries & Jury Service
The right to a trial by jury is one of the main features of the common law system. In practice, juries are only used for cases heard at crown courts in England and Wales where someone is potentially facing a prison sentence of 6 months or more and a limited number of civil cases in the High Court (though juries in civil cases are rarely used).
The principle of your guilt being considered by your peers goes back to medieval times. In Welsh law, depending on the crime, the accused would have to get a certain number of people to support their oath that their testimony was the truth (compurgation). Similar practices by the Saxons and Normans developed in the jury system we have now.
Jury service is generally seen as a civil obligation – perhaps an annoying one – that’s very difficult to get out of. While it can hurt your pocket if you’re selected you can claim loss of earnings.
To be summonsed to jury service you need to be on the electoral register and aged 18-75.
There’s a fairly lengthy list of disqualifying or exemption criteria such as medical exemptions, being detained for mental health or other reasons, being on bail, on probation or having served a prison sentence (suspended or otherwise) of more than 5 years. People who’ve taken part in jury service within 2 years can opt out. Jurors usually have to excuse themselves if they know anyone taking part in a trial.
As for the summons criteria, they needn’t change. The only areas for possible reform are the format of juries and when they’re used. Those options include:
- The status quo: Juries of up to 12 members selected randomly – No changes, but the existing problems of the jury system would remain.
- The status quo with a bounty rather than expenses – Instead of being paid out-of-pocket expenses, jurors would be offered larger cash incentives (i.e. living wage/£80-a-day at current prices) or a tax rebate. The problem would be that nobody needs to be offered cash incentives now as jury service is so difficult to get out of, so there’s no reason to change things.
- Smaller juries: 7 to 8-member juries selected randomly – This has been supported by UK Labour to clear the pandemic backlog in court cases. The minimum size of a jury need to return a valid verdict is normally 7-9 members anyway.
- Professional jurors – People would be specifically trained and paid for the jury role and it would become an entirely new legal profession in its own right, possibly requiring dedicated undergraduate and postgraduate qualifications. It may also help address issues like diversity amongst jurors and Welsh language skills. Naturally, it would come at a cost and introducing money into the situation introduces the possibility of corruption. It also goes against the principle of a random selection of peers or a cross-section of society. Professional jurors would likely be well-educated, white-collar types.
- Lay judges – This is a system used in Japan and I mentioned it in Part XI. Lay judges are normally used in civil law jurisdictions. Some members of the public would sit alongside the judge in a trial and act similarly to magistrates. Instead of simply listening to evidence and coming up with a verdict, they would actively take part in the trial. It probably wouldn’t work in a common law system where most of the questioning is done by trained barristers.
I’d go for smaller 8-member juries with living wage pay-per-day. The required majority for a valid verdict (unanimous, 7-1, 6-2, 5-3 etc.) would remain up to the judge.
The Welsh language in the court system
Since 1967, people in Wales have had an absolute right to give evidence and testify in courts or tribunals in Welsh. There’s currently no right to request to be tried in Welsh and the justice system isn’t currently subject to the Welsh Language Measure 2011 (the Thomas Commission recommended they should be). The argument against a right to be tried in Welsh is that it would require bilingual juries and would affect the “random selection principle” for jury selection5.
The proportion of judges in Wales who can speak Welsh is relatively high – higher than average – and Welsh-speaking ability amongst solicitors and barristers is said to run at anything between 20-30%6.
Simultaneous translation has come a long way in a relatively short space of time and it should probably be an expectation, not an exception, that courts provide it on request by the defence. That would enable any trial or hearing to be conducted bilingually regardless of the Welsh-speaking ability of the jury.
Court Traditions & Judicial Dress
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It’s not the most pressing issue, but we can get rid of the wigs and courtroom dress – a gown is enough for judges and court officers (perhaps red for senior judges), while business dress is enough for lawyers. Simplify addresses to the judge to, “Your Honour”. Get rid of the “my learned friend” nonsense.
Traditions are important, but it all gives the impression that the justice system is stuck in the 19th Century (or earlier) and it makes courtrooms far more intimidating than they need to be. It’s a very peculiar English/British/Commonwealth/public school thing to allow senior professionals and elected officials to speak in code to each other.
Cameras in the courtroom?
For a long time, taking photos or videos inside courtrooms in England and Wales during a trial or hearing has been illegal. It’s also worth remembering that there were no videos of UK parliamentary proceedings until the 1980s. There have been some exceptions – notably the UK Supreme Court and Court of Appeal – whose proceedings are now broadcast online in some cases.
Due to a change in the law, broadcasting from Crown Courts (namely sentencing remarks) is set to start as soon as allowable post-pandemic; so to an extent, this issue has been addressed. Should that go further and should most trials be routinely broadcast as they are in most of the United States?
There are clear arguments for and against. People need to see justice being done to have confidence in the system. It can help improve understanding of the legal system amongst the public and it would give the media a useful resource to cover legal proceedings.
The clear disadvantages are privacy issues (particularly in sensitive cases) and possible identification of witnesses and alike possibly putting them at risk of intimidation. There’s also the risk of “trial by media” where people watching court proceedings treat it like a spectator sport, subsequently doing and saying things that would probably be considered contempt of court.
It’s probably better to err on the side of caution and only allow filming in limited circumstances with the permission of the court rather than live broadcasts.
4: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p193-196. Available at: https://gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf
5: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p433-436. Available at: https://gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf
6: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p437-438. Available at: https://gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf
