UK: Are Jury Trials In Crown Courts Going To Become A Virtual Or A Distant Reality?

Ellen Peart and Daniel Jackson review the future of jury trials in England and Wales as a result of the Covid-19 pandemic.

In March 2020, new and ongoing jury trials were halted in England and Wales by the Lord Chief Justice ('LCJ') until they could be conducted safely, due to the Covid-19 pandemic.

We represented a defendant in the first new trial to commence at the Central Criminal Court on 18 May 2020 under the new safety measures, which concluded on 28 May 2020 and resulted in our client's acquittal.

As Crown Courts endeavour to comply with the necessary safety requirements, much focus has been on the extensive backlog of cases, and how the crown courts are going to address this issue.

We consider the proposals being discussed and provide an insight into our first-hand experience of a functioning Crown Court during these extraordinary times.

A brief history

The long tradition of a jury trial has grown over centuries in England and Wales; the English jury has its roots in two institutions that date from before the Norman conquest of England in 1066, namely the 'inquest' and a 'jury of accusation'.

It was in the 12th Century that Henry II took the significant step in developing the jury system that we know today when he set up a system to resolve land disputes involving juries (comprising 12 men), however, it was the Roman Catholic Church's removal of support for 'trial by ordeal' in 1215 that pressed for the development of the jury in its contemporary form.

The earliest Juries Act was in 1825, and it was not until 1920 when women first served on juries in England.

During the Second World War, the Administration of Justice (Emergency Provisions) Act 1939 authorised trials with only seven jurors, except in cases of treason or murder, in order to accommodate for the pressures of national conscription.

Of note, Crown Courts were not actually established until 1956. As legislated in section 17 of the Juries Act 1974, there are to be 12 jurors at the start of any Crown Court trial, permitting the reduction to a minimum of nine throughout the course of a trial.

The coronavirus outbreak - new jury trials suspended

It is reported that the first confirmed cases of coronavirus in the UK were on 31 January 2020. This led to an early spread in February 2020, and by early to mid-March we saw closures and cancellations across the UK.

On 13 March 2020, HM Courts & Tribunals Service ('HMCTS') responded to the public health emergency by confirming that they were 'working hard to keep our justice system functioning'.

With a public 'lockdown' being announced by the Prime Minister on 23 March 2020, the LCJ confirmed: 'My unequivocal position is that no jury trials or other physical hearings can take place unless it is safe for them to do so. A particular concern is to ensure social distancing in court and in the court building.' The message conveyed that no new trials were to start, efforts to bring existing jury trials to a conclusion should continue and, if it was necessary, part-heard trials should be adjourned for a short period to put those safety measures in place.

In April 2020, concern started to increase at the mounting backlog of cases, and the LCJ referred to the fact that 'radical measures' might be necessary, such as limiting the number of jurors to seven (as occurred during the Second World War) or moving cases to larger buildings (such as university lecture halls). As a result, the judiciary formed a 'working party' with The Law Society and Bar Council to assess potential ways to restart jury trials if social distancing measures were to continue.

Exploring virtual jury trials

In April-June 2020, JUSTICE, a law reform and human rights organisation, tested whether technology could support virtual jury trials, particularly if they could be fair and efficient. The organisation reported that the mock virtual trials showed 'promise', but also acknowledged that 'some trials will not be suitable for the virtual court'.

Many of those involved in the virtual mock trials would no doubt point out the irrefutable benefits, such as not having to battle the morning rush-hour traffic to get to court for a 10am start, but there are fears that any advantages would be outweighed by the disadvantages, one shortcoming being the lack of jury engagement.

Those lawyers who spend their working day staring at a screen will know how exhausting that can be - imagine having closely to assess the facial expressions of witnesses who appear smaller than the screen on your mobile phone. A respected source who was involved in one of the mock virtual trials described it as a 'migraine-inducing nightmare'.

Jury trials resumed

On 11 May 2020, the LCJ determined that new jury trials could start in a few courts in the week commencing 18 May 2020 under special arrangements to maintain the safety of all participants in line with Public Health England and Public Health Wales guidelines. The LCJ similarly supported the recommencement of adjourned trials where this could be done safely.

The first courts in which new juries could be sworn included the Central Criminal Court and Cardiff Crown Court. Our client's trial was originally due to be heard at the Central Criminal Court on 14 April 2020 and had previously been vacated on 25 March 2020. We received communication from the Central Criminal Court on 11 May 2020 to advise that our case had been identified as suitable to commence on 18 May 2020, subject to the availability of counsel, the defendant and witnesses.

We had only a week to ready ourselves for trial, having previously expected the case to be heard later in the year after it was vacated and next due to be listed for a Pre-Trial Review hearing on 19 May 2020.

From the announcement by the LCJ on 11 May 2020, we were aware that arrangements were due to be in place to allow appropriate social distancing to be maintained at all times, including providing a second courtroom linked by CCTV (to enable reporters and others to watch the proceedings), and another courtroom to use for jury deliberations. Further, court staff would ensure that entrances and exits were carefully supervised, and that all necessary cleaning took place. The trials would be conducted under the same legal standards and procedures as before the Covid-19 pandemic, with 12 jurors.

In advance of the trial, we obtained a 'checklist' published by HMCTS on 15 May 2020 entitled 'Our commitment to running jury trials safely', which included a table setting out commitments and requirements to keep everyone involved safe.

During the trial at the Central Criminal Court, everyone was expected to remain two metres apart as they entered the building and passed through security; hand sanitiser was available and expected to be used; and security at the entrance wore face masks and rubber gloves. Once persons had passed through security, jurors were directed to take a seat, no less than two metres apart from each other, outside the designated courtrooms.

As we had previously contacted the court to pre-book a conference room, we attended the court office to obtain the key to the room. Unfortunately, the room was too small to perform the recommended social distancing (as we had been forewarned) and was located on the third floor, whereas our court was located on the ground floor. There was also an absence of the allocated room being cleaned to the standards that one would expect following the public health guidance. As the court was not busy with other cases, when we (the defence team) needed to speak privately, we tended to gather in quiet areas of the court building on the ground floor.

To the surprise of most, a jury was empanelled, and no one from the jury pool expressed any concerns about the need to travel to or be at court for the duration of the trial. We started with 12 jurors and ended with the same 12 jurors. It was evident that efforts had been made to communicate with those expected to attend for jury service in advance of their arrival for the first day, with a large number of people identified and asked to attend court.

A lot of emphasis seemed to be placed on the jurors during the trial, specifically how they entered/exited the courtroom, where they were positioned, and their daily travel needs. Although others in the courtroom were expected to be positioned two metres apart, this seemed to become more relaxed as the trial progressed.

Due to the availability of two prosecution witnesses, their evidence was given by way of video link from what appeared to be their home addresses. Ordinarily they would have been expected to give live evidence in court or be located somewhere else in the court building to give evidence through a live link following a successful application for special measures.

Although the trial lasted longer than expected (seven days instead of four) largely down to shorter sitting days because of the availability of prosecution witnesses, justice prevailed, and our client was acquitted of the charge. We felt that the jury listened carefully to the evidence and were not distracted by fact that they had been summonsed for jury service during a pandemic or were noticeably uncomfortable about the environment they found themselves in and/or their own personal safety.

As our client's legal representatives, we were conscious of the safety measures that were in place and of the need to practice social distancing, where practicable. However, our sole focus was to continue to provide the best possible service to our client.

What next?

The backlog of criminal cases waiting to be heard was already at a two-year high of 37,500 at the start of 2020. In June 2020 it was reported that the backlog in crown court cases stood at 41,000. This is of huge concern, but what of the magistrates' courts, where figures of cases 'waiting' are close to 500,000?

There has been wide-ranging discussion from all corners of the legal profession about potential resolutions to clear the backlog in Crown Court cases. As raised by the LCJ in March 2020, juries with lesser numbers and the use of public buildings as courtrooms (referred to as 'Nightingale' courts) would likely assist to lessen the caseload.

Other possibilities include 'judge-only trials' (a judge and two magistrates – as is the case with appeals against conviction from the magistrates' courts) for 'less serious' Crown Court cases. Obviously, there are presently limited circumstances where a Crown Court trial can proceed in the absence of a jury, such as in cases of suspected jury tampering and some complex frauds, but these are few and far between. How would the policymakers measure the seriousness of an offence when dictating the need for a jury? This is arguably an impossible task.

It has been suggested that it should be left to defendants to decide whether they wish to elect trial by judge-alone, in a similar way that they can elect to be tried in the Crown Court for either-way offences. The LCJ has commented that he believes this to be worthy of consideration by policymakers to legislate, but only for a 'short time'.

In June 2020, the Lord Chancellor and Secretary of State for Justice Robert Buckland QC MP commented that temporary legislative changes could be 'imminent' to permit trials without juries, specifically for either-way offences. He also suggested that trials involving a judge and two magistrates would potentially only apply to cases where the maximum sentence available is two years' imprisonment. Other information relayed by the Lord Chancellor indicated that longer sitting hours and opening courts at weekends were also being considered as options to reduce the backlog. An increase in sitting hours or weekend courts is an unpopular move with the London Criminal Courts Solicitors' Association and other bodies, who are campaigning for more sensible alternatives to assist tackling the backlog of cases. Many legal professionals will recall the efforts to fast-track court cases following the London Riots in 2011.

At the beginning of July 2020, HMCTS published a progress update on its recovery plans, which set out the 'building blocks for recovery' for the short and medium term. Expanding on the above, the Lord Chancellor said he had identifi ed 10 additional sites for 'Nightingale' courts; was looking at whether courts would need to stay open for longer; new technology being rolled out across all courts; and exploring means of getting jury trials moving at pace once more.

The HMCTS update document included plans to: complete reopening of all staffed and suspended courts; start to operate in some alternative venues and then rolli out to further alternative venues; start to have expand operating hours of Crown Courts to increase the number of sittings and then expand extended operating hours to support coronavirus recovery; completing CVP roll out into all Crown and magistrates courts; and maximising judicial capacity including the full use of fee paid judiciary.

In our view, the prospect of juries with less than 12 members and the use of other suitable buildings to hold trials are realistic options to aid the backlog of cases. Talk of abandoning the jury system for certain 'less serious' offences and having 'judge-only trials' would be, in our view, a mistake and illogical. When defendants elect to have their trial before a jury in theCrown Court, it is an important decision because the large proportion of people facing a criminal allegation and prospect of a trial take the whole process and their own case very seriously indeed.

Particular safeguards that could be implemented if the size of juries were reduced to seven could be the removal of majority verdicts, and requiring unanimous verdicts in all cases where 12 jurors are not permissible. Bearing in mind that offences of treason or murder were excluded during the Second World War, the policymakers might also consider that offences carrying sentences of life imprisonment would also merit exclusion from any temporary legislative changes.

We should remember that when jury trials resumed in some courts under the new safety arrangements in May 2020, the Judiciary reiterated that 'the practice of trial by jury sits at the heart of our criminal justice system', and of course famously for Lord Devlin, trial by jury was 'the lamp that shows that freedom lives'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.