An unjust way to do justice

There's breaking news about the decision by the Labour Government in Westminster to refuse to allow bilingual juries in Wales. So far the story is only available in Welsh, here:

     'Na' i reithgorau dwyieithog

This matter has been on the agenda for some years, and the Ministry of Justice has been continually putting off the decision, as mentioned here. Yet despite previous positive indications the last statement by Jack Straw did appear to signal something more negative. So perhaps it shouldn't be such a surprise.

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But that doesn't make it any less unjust. At present many lawyers specifically advise clients not to choose to testify in Welsh for this very reason. This, for example, is from a lecture by Justice Roderick Evans, the Senior Presiding Judge for Wales.

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.

Lecture to the Centre for Welsh Legal Affairs, 2006

The injustice is even more pronounced because of the unequality of the way Welsh is being treated in comparison with English. If any juror is summoned who does not understand sufficient English to be able to follow the case, s/he will be discharged. So why should that same principle not apply to Welsh?

It is simply not sufficient to say, as the MoJ maintains, that translation facilities are provided. The crucial issue is that a jury makes decisons about any case based on the credibility of the witnesses who give evidence.

In most cases, a witness's credibility is primarily determined by the way they answer questions ... especially when put under pressure in cross examination. Their tone of voice, frankness, confidence, hesitation, evasion or defensiveness are important ways in which any jury decides if a person is telling the truth or not. How can this be done if the jury doesn't understand Welsh?

Any translation will be several seconds late, in a voice different from that of the witness. How would a jury member who relies on such a translation decide whether a witness's body language matched what they said?

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So there should be no issue of principle at stake. However that does not mean there won't be practical matters to address in arranging pools of Welsh speaking jurors. In Wales as a whole, only about 12% of the population were fluent in Welsh at the time of the last census, so there needs to be a practical and workable way of determining who they are beforehand, rather than filtering them out when they arrive for jury service.

The simplest way would be to ask that question as part of the annual electoral registration process, not least because the form already includes a question about age for jury purposes. Putting another tick box on the form is not going to lead to any inconvenience or cost any money.

And of course the jury would still be random. Although the size of the pool of Welsh speakers will vary from area to area, the likelihood of a trial involving significant use of Welsh is going to be correspondingly higher in areas with higher proportions of Welsh speakers. In areas where there are fewer Welsh speakers the answer would be to hold trials with significant use of Welsh in a batch every couple of months or so, or to move the trial to a place where there is a higher concentration of Welsh speakers.

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So today's decision by the Ministry of Justice is not only fundamentally wrong in principle, but willfully ignores the very simple and practical steps that could be taken to make it possible to summons the necessary pools of bilingual jurors.

The use of Welsh in Courts is a matter that has not been devolved to the Assembly. This outrageous decision shows why it should be. But even without that it is a decision that I hope—and indeed expect—will be reversed by the next UK government. Despite their other faults, the Tories do have a relatively good track record on language issues. The way they react to this decision will show how committed they are to a system of justice that can be fair and just to everybody in Wales, irrespective of whether they choose to use English or Welsh.

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4 comments:

MH said...

The press release from the Ministry of Justice is here.

The full response document is available in English and Welsh.

I've not read the full document yet. But I'll add comments if there's anything in it other than what might be expected from the press release.

Ian Johnson said...

19 of the 22 respondents who answered the question on bilingual juries were in favour in principle.

15 of the 20 respondents to the question on whether it was against natural jury selection, disagreed, with only 4 taking the Govt's line on it.

No wonder it took them 4 years to analyse and publish a consultation with 24 respondents...

Siônnyn said...

I don't know why, but I am reminded of DJ Williams http://www.bbc.co.uk/cymru/deorllewin/enwogion/llen/pages/dj_williams.shtml, who was the only one, probably the leader, of what would by now be known as the 'Penyberth 3', the setting of fire at the Penyberth bombing school in Llŷn in 1936 - an event that was seminal in the creation of Plaid.

Stanley Baldwin insisted on the trial being held at the old Bailey, as he did not trust that a local jury would find the 3 guilty.

At the trial, DJ was the only one who was allowed to testify in Welsh, and the services of a translator, as no-one had heard him speak English.

The fact that he had a 1st class degree in English from Jesus, Oxford, and was head of English at Abergwaun Grammar seems to have escaped them! He spent 9 months in Wormwood scrubs.

By the way, while there is a good article on Sauders Lewis on Wikipedia, there isn't one on DJ.

Can anybody here rectify that?

DJ, whom I met when I was still a child, remains in my mind as one of the nicest people I ever met, certainly one of the greatest. He is the founding father of Plaid that we should most revere. He deserves a higher profile that he gets at the moment.

Siônnyn said...

To follow on from the previous post, I see that in Plaid's own history at http://www.plaidcymru.org/content.php?nID=90;lID=1 , DJ isn't even mentioned! DYMA GAMWEDD!

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