Bilingual Juries

Aderyn y Si Mon 8 Dec 2008 - 19:55

In looking into another subject I came across a lecture by Roderick Evans on bilingual juries in Wales.

The Centre for Welsh Legal Affairs

BILINGUAL JURIES
The seventh annual lecture of the Centre for Welsh Legal Affairs was delivered by The Hon. Mr Justice Roderick Evans, Presiding Judge of the Wales Circuit, on Saturday, November 25th, 2006 at the National Library of Wales.

Download

I thought it might be appropriate to use it as the basis of putting together a report on what was and is happening on the subject.

Even though Welsh is a devolved responsibility of the Assembly (although the ability to legislate on the use of Welsh is not, at least not until an LCO is granted, and then perhaps only on limited terms) the use of Welsh in courts is specifically excluded under the Government of Wales Act 2006, and will remain so even after the referendum on primary law making powers. Therefore this is a matter that has to be pursued at Westminster.

The use of Welsh in courts made a great forward leap with the Welsh Language Act 1967, which for the first time gave people the right to speak Welsh, irrespective of whether the person concerned could speak or understand English. Since then many Magistrates Courts hear trials in Welsh, and at higher level Judges and Counsel who can speak both Welsh and English are usually chosen to handle cases that would have a substantial element in Welsh.

But in cases heard before a jury there is no guarantee that the jurors selected could speak Welsh. Back in 1967 one still needed to own property in order to qualify as a juror, but that requirement was abolished in 1974, when everyone from 18 to 65 (later changed to 70) became qualified. The Juries Act 1974 crucially stated that "insufficient understanding of English" would be grounds for discharging a juror, but made no mention of Welsh.

When the Welsh Language Act 1993 was being debated, there were attempts to add "or insufficient understanding of Welsh, for trials conducted in Welsh", but these failed.

As there is no mechanism for knowing, let alone assuring, that any or all the jurors chosen for a particular trial can speak Welsh, it tends to mean that jury trials are usually conducted in English. There is nothing to prevent paricipants using Welsh, because translation (either phrase by phrase or simultaneous) will be provided, but if you were a lawyer or judge you would want your own words to carry weight, not rely on a translator to do it for you. After all, rhetoric and persuasiveness is the very essence of your job.

Similarly for a witness or defendant, since the main issue at many trials is to determine who is telling the truth, the tone of voice, precise words used and how they fit with facial expression and body language is all-important. If a jury hears a translator's words instead, a few seconds later, it becomes very much harder to determine if the witness or defendant is being truthful.

Many lawyers specifically advise clients not to choose to testify in Welsh for this very reason. This, for example, is from Roderick Evans' lecture:

In every jury case in which I was involved as counsel and in which a witness on the side which I was instructed to represent indicated a preference to give evidence in Welsh, I advised that that witness would be at a substantial disadvantage in giving evidence in Welsh because of the disadvantages of presenting evidence to a jury via a translator. I know that I was not alone in giving such advice, and now as a judge I am aware of cases in which witnesses who would prefer to give evidence in Welsh give their evidence to a jury in English because of the need for translation.

So because of this, further attempts have been to ensure bilingual juries for cases involving Welsh. In 2005, the Office for Criminal Justice reform published this Consultation Paper:

The Use of Bilingual Juries in Certain Criminal Trials in Wales

The Lord Chancellor's Standing Committee for the Welsh Language (the overseeing body) gave some of the weightiest evidence:

It said bilingual juries were essential if equal status for both English and Welsh - set out in the Welsh Language Act - is to be given full effect.

It said the absence of a bilingual jury "severely undermines" the Welsh Language Act guaranteeing the right of everyone taking part in a jury trial in Wales to speak Welsh.

It also said jury trials in the crown court were currently out of step because in civil cases tried by a judge - and in criminal cases heard in the magistrates court or in crown court with no jury - arrangements could be made for the magistrate or judge to be bilingual.

BBC, 20 March 2006

But nothing happened, and in fact the Westminster government has still not responded. As I see it, the difficulties are not so much in the principle, but in the practical arrangements. It would be impractical to select a Welsh speaking jury from a pool in the normal way. You might need a pool of 200 people to get a jury of 12 in a place like Newport, which would mean wasting the time of 188 people ... unless, of course, they were used for the other trials taking place that week. There needs to be some way of knowing who can understand Welsh before they are summoned. Various options were set out in the consultation paper, but the most practical seems to be to ask the question on the Electoral Roll returns, not least because this already includes a question on age, which is used to filter out those over 70 from being summoned to jury service.

So in January 2007 Hywel Williams introduced the Bilingual Juries (Wales) Bill, which proposed precisely that method. Here is the text of the Bill and the speech he made when introducing it:

The Bilingual Juries (Wales) Bill
Hywel William's Speech ... cont

Since then it's been hard to figure out exactly what's happening behind the scenes. Things are not exactly dead because on 22 July 2008 Jack Straw, Secretary of State for Justice, said that the Ministry of Justice will make a statement on bilingual juries shortly. [Hansard]

And in October, Elfyn Lloyd was quite upbeat when he told the National Association of Probation Officers’ annual conference that there were "no longer any barriers to introducing bilingual juries to Welsh courts." [Daily Post, 17 October 2008]

So it remains to be seen what will happen. One might even say the jury was still out!

Aderyn y Si Wed 10 Dec 2008 - 5:32

Just for reference, these are the protocols for using Welsh in Court:

Magistrates' Courts
Higher Courts

And a short page on the History and Development of the Welsh Language in the Courts:

From the Darkness of the Past to the Present Day

Aggressive Voltage Sat 20 Dec 2008 - 2:51

Talking about bilingual juries, the Courts Service seem to have made a right mess of even a simple thing like bilingual summonses.

http://news.bbc.co.uk/welsh/hi/newsid_7780000/newsid_7787900/7787929.stm

It's amazing. After 40 years of being able to issue summonses bilingually, and doing it as a matter of course, we now have to go back to summonses in English only because the computer system "can't cope".

Isn't the answer simple? Stick with the old system until such time as they can sort out the glitches in the new one.

Aggressive Voltage Sat 20 Dec 2008 - 3:59

Going back to bilingual juries, there's one potential negative thing about getting people to tick a box on the annual electoral registration form. At present, all you have to do is tick a box on the census form. The data is anonymous, and no one is going to test you to find out how well you speak it.

So people will be far less inclined to tick the box. They are going to imagine some judge asking them awkward questions in Welsh to make sure that they can actually understand (someone has got to do a check!) and no one would want to be embarrassed in that way.

Also a lot of people will do everything they can to get out of jury service, so they might deliberately not tick the box because it will make them less likely to be called.

So if the electoral roll numbers are lower than the census, as they will be, we're bound to get the anti-Welsh brigade saying that it just goes to prove that the census figures were inflated.

Aderyn y Si Sun 21 Dec 2008 - 19:06

Some good points, Aggressive.

On the matter of summonses, it's typically annoying, but it should be sorted out eventually. It's a delay, not something that's been refused altogether.

But your point about someone needing to check whether jurors can in fact speak Welsh is worth thinking about. This is what Sir Roderick Evans said in the lecture (the link in my first post)

When a bilingual jury is required the Juror Central Summoning Bureau would be able to randomly select a panel of jurors from those marked on the electoral register as being bilingual by marking alongside their names either a “W” or a “C”.

Once a juror has stated that he or she can speak Welsh no further “test” should be applied to his or her linguistic ability save the test set out in s.10 of the Juries Act 1974 which should be amended appropriately to apply the test to the jurors grasp of Welsh in relation to cases in which the Welsh language is to be used.

This is what s.10 says:

Where it appears to the appropriate officer, in the case of a person attending in pursuance of a summons under this Act, that on account of insufficient understanding of English there is doubt as to his capacity to act effectively as a juror, the person may be brought before the judge, who shall determine whether or not he should act as a juror and, if not, shall discharge the summons.

I think what he's saying is that jurors shouldn't need to have any "formal qualification" in Welsh, or sit some sort of special test beforehand. They will be summonsed on the basis of just their own declaration. But, on the day they turn up at court, some "appropriate officer" needs to do something. The question is what?

I guess that, in the first instance, it would be simply a matter of asking a few routine questions. So when you first arrive, someone asks you, in Welsh, to confirm your name and address and some other informal questions like "Did you come by car and where have you parked?" or "Do you know where you can get lunch?" This will just appear to be a normal bit of initial bureaucracy by a friendly receptionist. If the juror answers the questions easily in Welsh, then you have a good idea that everything's fine. But if the juror has difficulty answering, you then dig a little deeper. You ask if they're entirely comfortable understanding what's likely to be said, and if they're not, say that they can always be a juror on case heard in English. The only problem will be if someone insists they can speak Welsh, but it appears obvious to the reception official that they can't. Only in those circumstances will the judge need to get involved.

Isn't that what happens to determine whether a juror's English is good enough?

MH Mon 22 Dec 2008 - 16:27

Aggressive Voltage wrote:So people will be far less inclined to tick the box ... if the electoral roll numbers are lower than the census, as they will be, we're bound to get the anti-Welsh brigade saying that it just goes to prove that the census figures were inflated.

Actually I don't think that will be an issue, AV. That's because we already know that not everyone who ticks the "I can speak Welsh" census box is fluent. Just last month I mentioned the Language Use Survey:

17 Nov 2008 - Language Use Surveys

It showed that just less than 60% of those that ticked the census box regarded themselves as fluent. My guess would be that only fluent speakers would tick the electoral roll box for jury service.

But one thing that might be of some concern is the regional variations. In Welsh speaking areas 70%+ of those that ticked the census box considered themselves fluent, but in Gwent that dropped to about 15%. That means that only about 15% of some 10%, i.e. roughly 1.5% of the total population are fluent. But that is still a pool of about 5,000 people.

A lot would depend on how many Welsh jury trials there were in Newport Crown Court. If we were talking about just a few every year, there would be no problem. But any more than that might cause a problem. The problem wouldn't so much be numbers, but that the likelihood of being called would be much greater than if you didn't put yourself down as Welsh speaking. So some people who are fluent might not tick the electoral roll box in order to lessen the chance of them being called.

But in my opinion that's a minor problem. It could be solved at a stroke by moving the trial just a few miles to Cardiff, where there is a much bigger pool of fluent Welsh speakers. In principle I am all in favour of bilingual juries, because it is the only way for the trial to be fair to all parties.

MH Mon 22 Dec 2008 - 17:31

Aderyn, I wish I fully shared your confidence about the LIBRA system eventually being sorted out. To me, this is just another example of a large, centralized computer system not being able to do the job for which it was intended.

LIBRA has been on the drawing board for years. Here are a few stories I've Googled.

A new computer system for magistrates courts in England and Wales unfinished after years of spiralling costs has been condemned as a "shocking waste of taxpayers' money".

Edward Leigh, chairman of the influential Commons public accounts committee, said the Libra scheme was "one of the worst IT projects" he had ever seen. "It may be the shoddiest PFI project ever."

Costs have more than doubled but courts will be able to use the system for two years less than planned, says a new report from the National Audit Office. The £184m private finance initiative deal signed with ICL (now Fujitsu Services) in 1998, has now risen to £318m.

BBC, 29 Jan 2003

ICL, which is now called Fujitsu Services, was the only bidder for the private finance initiative project and had originally quoted £146m. It raised this by 25% to £184m for ten-and-a-half years, after being named as the preferred bidder.

The contract was signed in December 1998, despite another government project involving ICL being abandoned because ICL wanted more money. In May 2000 a second contract of £319m for fourteen-and-a-half years service was signed.

This was followed 10 months later by another revised contract, offering ICL £232m over eight-and-a-half years, for providing the computers alone - with software to come from another company.

BBC, 11 Nov 2003

The cost of Libra, the project to modernise the IT used by the UK's magistrates' courts, has increased again.

A Public Accounts Committee (PAC) hearing yesterday saw Conservative MP Richard Bacon quiz Department for Constitutional Affairs (DCA) accounting officer Alex Allan about the system's rollout timeline and jump in price, to close to £500m.

The latest increases in cost are down to a pricier core application, higher internal project costs and "enhancements made" such as new interfaces to the Driver and Vehicle Licensing Agency for the exchange of information.

The original cost of the project - awarded to ICL, now Fujitsu Services, as a 10-year PFI deal starting back in 1998 - was £184m. This figure had increased to almost £400m by 2003, with the PAC calling the project the worst it had seen.

Silicon.com, 22 Jun 2006

Officials at HM Courts Service (HMCS) say they have turned around a failing £447m project to provide a national case management system for magistrates courts - a scheme that is 16 years late and will cost nearly three times more than expected.

The project has turned around from its position in 2003, when the National Audit Office criticised a different management team for using IT "to support existing processes" rather than "re-engineering processes with new IT".

But the cost has risen from £146m to an expected £447m by March 2008, and it is expected to rise further as links are developed between Libra, the police and other parts of the public sector.

Computer Weekly, 28 Jan 2008

After this shoddy history, the way I read things is that there was a political ultimatum to get it up and running by the end of 2008 whether it worked or not. I'm sure no one in the UK government really cares whether it works in Welsh or not.

All in all it fails on three counts.

1. It is a PFI scheme that illustrates all that is bad about PFI. The profit in exchange for taking risk element, which is the rationale behind private sector involvement, was made meaningless ... and the price just kept going up.

2. I think It is highly unlikely that bilingual operability was considered at all at the outset. So any bilingual capability is an "add on" rather than an integral part of the system. You may well eventually be able to press a button to get the Welsh version of a summons sent out ... but can the sytem be operated in Welsh? ... does it handle court cases that are entirely in Welsh? I don't know, but I'd guess not.

3. At a time when the administration of justice in Wales is beginning to be devolved, it seems retrograde to be installing a system to integrate what happens in England and Wales. It will make it that much more difficult to de-integrate it in the future.

In my opinion the last thing we need is huge centralized computer systems. What we need is smaller, smarter systems tailored (and capable of being adapted) to individual needs, but capable of communicating with each other. Establishing a common protocol for communication and exchange of information (with the appropriate level of security) would be a good thing. A one-size-fits-all centralized computer system is not.

Aderyn y Si Tue 10 Feb 2009 - 19:50

I was reading through Hansard (as one does) and found this snippet from Elfyn Llwyd. It is from the Welsh Grand Committee (the 40 Welsh MPs plus a few hangers on, which is something different from the smaller and more powerful Welsh Affairs Committee) on 21 January this year.

I finish my wish list with this: I would like a bilingual juries Bill that would allow anyone facing trial in Wales to opt, if they wanted to, for a bilingual jury. My hon. Friend the Member for Caernarfon [Hywel Williams] has drafted a short Bill that would do that. I have spoken about this matter many times, and having now spoken to the Justice Secretary on several occasions I believe that we are near to getting that provision, which is long overdue. I think it was in 1574 that Sir William Garrard, then one of the leading judges in Wales, said that any judge in a case in Wales in which the Welsh language was used should be a Welsh speaker. I am not saying that, but I am saying that there should be a statutory right for everyone who opts for trial through the medium of Welsh to have a bilingual jury empanelled for that purpose.

http://www.publications.parliament.uk/pa/cm200809/cmgeneral/welshg/090121/pm/90121s02.htm

MH Thu 12 Feb 2009 - 21:00

We seem to have combined two subjects here. Going back to the LIBRA fiasco, Vaughan Roderick mentioned it on his blog today:

http://www.bbc.co.uk/blogs/thereporters/vaughanroderick/2009/02/dim_seren_i_libra.html

This was largely in response to Jenny Wilmott's comments, which were reported in WalesOnline here:

Bilingual blunder costs Whitehall bosses £4m - WalesOnline, 12 Feb 2009

As far as I can see, the omission of Welsh was not because anyone "forgot" to include it. It was deliberately excluded. This is because trying to get a single computer system to work has been fraught with difficulties, as I mentioned above. Eventually, there was such intense political pressure to get it up and running by the end of 2008 that a decision was taken to shelve the Welsh language part, as this was thought to be the only way they could get it to work at all. This was explicitly stated in a letter from HMCS on 5 Jan 2009:

As we have also previously stated, the painful decision of allowing the Libra project team to safeguard the functionality and capabilities of the system when it faced serious operational problems during June 2008, at the expense of developing its bilingual functionality, ensured its successful deployment throughout England and Wales.

http://tinyurl.com/couywh

Now extra money has to be spent to "retro-fit" the Welsh Language element. In my opinion, this is not primarily a language issue. Language is simply the casualty of bad decisions about computer systems. This is because the policy was decided as a matter of political will. Politicians were arrogant enough to believe that if they threw enough money at a problem their consultants would find a technical solution to make it work for them. They tried to impose a solution rather than work with the already available technology and, more important, the people that would have to use it.

As an illustration of what I mean, this article by Michael Cross a fortnight ago in the Guardian shows how to develop a computer system that works with people as opposed to imposing a system on people.

A Welsh cure for a nation's ills

Obama should look across the Atlantic for the huge task of computerising the US health records - but not as far as England

... For a lesson in how to manage the programme, Obama might do well to look across the Atlantic. Not to the NHS in England, where a £13bn-programme is this year reeling from its latest parliamentary battering, but to Wales.

Earlier this month, Edwina Hart, the Welsh assembly's health minister, approved a plan to extend a system called the Individual Health Record (IHR) across the country. The decision comes seven years after the equivalent announcement in England, but no one need apologise for the delay. The Welsh IT team says that, by eschewing political deadlines and working with the NHS rather than trying to impose technology, it has created an electronic medical record that is not only more useful than its English equivalent but will cost a fraction of the price.

The secret, says Gwyn Thomas, chief executive of the agency Informing Healthcare, is to listen to users.

The contrast with the gung-ho English programme, now enervated by contractual rows and political grandstanding, is graphic. In the latest report, the chairman of the Commons public accounts committee, Edward Leigh MP, said: "Essential systems are late, or, when deployed, do not meet expectations of clinical staff; estimates of local costs are still unreliable; and many NHS staff remain unenthusiastic."

Wales and England started off with the same goal - to make computerised medical records available where they are needed. However, the two countries went about it in wildly different ways.

In England, the NHS took it for granted that the right technology was available and that staff were enthusiastic about adopting it. The central challenge was seen to be procuring the technology on the best terms, and implementing it to timetable. This involved a series of billion-pound contracts to provide central services and to rip and replace hospital systems across five regions created solely for the IT programme. Tellingly, one of the programme's explicit aims was to double the proportion of the NHS budget spent on IT. In Wales, by contrast, there were no big procurements and virtually no new money. When Thomas took up his role in 2005, he decided to work with existing technology to make information available where doctors needed it. Everything would move incrementally, with the consent of all concerned.

This involved several radical departures. In England, a central "spine" is designed to carry a summary record of every patient. The Welsh IHR draws data directly from GP records, with sensitive data such as terminations removed. Patients are asked for consent every time their record is viewed - unlike in England, which initially assumed patients to have given consent unless they explicitly opted out.

Guardian, 29 Jan 2009

MH Thu 12 Feb 2009 - 21:12

Here's another take on the Individual Health Record system:

Health Insider, 8 Jan 2009

I particularly liked this comment:

it can't possibly work
08 Jan 09 11:01

what, an IT project without multinational corporations, obstruse and opaic contracts, pointless system replacements, hundreds of consultants, billions of pounds and lots of people shouting at each other?

call that a health record?

MH Sat 2 May 2009 - 18:12

Elfyn Llwyd raised the question of what was happening again this week:

29 April 2009

Mr. Llwyd: To ask the Secretary of State for Wales what discussions he has had with the Secretary of State for Justice on the use of bilingual juries in courts in Wales. [270729]

Mr. Paul Murphy: I have discussed this issue with the Secretary of State for Justice and with the First Minister and an announcement will be made shortly.

Hansard

Fair enough, one might say. Unless of course you remember what was said last time the question was asked:

22 July 2008

Hywel Williams: To ask the Secretary of State for Justice when he plans to publish his response to the consultation on bilingual juries in Wales. [211285]

Mr. Straw: The Ministry of Justice will make a statement on bilingual juries shortly.

Hansard

It appears that Westminster has rather different ideas from everyone else about what a simple word like "shortly" actually means.

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