Covid 19 and the English Legal System (4): Trial by Jury

One of the most serious consequences of Covid 19 has been a huge increase in the backlog of cases awaiting a trial in the criminal courts. Although only a tiny minority of criminal cases are the subject of trial by a jury, by definition they are the most high profile and serious cases.

It is often stated that ‘justice delayed is justice denied’. The authorities responsible for the criminal justice system cannot therefore simply sit on their hands and wait for Covid 19 to disappear. The challenge is to know what practical steps can be taken to ensure that criminal trials do not come to a complete standstill.

At present, the principal response has been for the HM Courts and Tribunals Service to reconfigure existing court buildings to enable trials before a jury to take place in a socially distanced way.

An article in The Times of 4 June 2020 tells how one such trial – in Bristol Crown Court – actually went very well. But, as the author barrister Dominic Thomas points out, the trial required the use of the entire court building – in which 6 trials would normally be going on at the same time. Socially distanced hearings organised on this basis will therefore not make a significant dent in the backlog.

Two alternative ideas have recently been aired. First, also in the Times (May 1 2020), the former High Court judge, Sir Richard Henriques, floated the idea that, at least while the Covid 19 pandemic remains an active threat to public health, criminal cases should be dealt with by trial judges sitting alone. In other words, the use of the jury would be suspended.

This idea might seem to strike at the heart of a key feature of the English Legal System. But it received some heavyweight support (see also Letters to the Editor of the Times on the following day).

In fact, it is not as shocking an idea as might at first appear. It has long been argued by some commentators and practitioners that use of the jury is not suited to particular types of trial – complex and lengthy fraud trials are usually cited as the prime candidate for trials with a judge and assessors in place of the jury.

And it should not be forgotten that there is already power, in the Criminal Justice Act 2003 Part 7, to dispense with the jury in cases where there is a real and present danger of jury tampering – a power that has hardly ever been used but is nonetheless on the statute book.

Shortly before his death in 2018, the campaigning advocate Sir Louis Blom-Cooper completed an important study of the criminal trial system, which among other things shows how, in continental Europe, jury trial was – over the years – replaced by a system of judges sitting with lay assessors.

I share the view that a judge sitting alone would not be the fairest mode of deciding serious criminal cases. The idea of trial judges sitting with, say, two assessors who could help to determine the facts in the light of the evidence presented, seems to me worth pursuing.

An alternative proposal is that jury trials should be retained, but that the trial proceedings should be conducted virtually, with jurors viewing proceedings on computer screens. JUSTICE, the human rights group, is in the process of holding a number of pilot hearings. The first two have been the subject of some independent assessment. The third can be viewed online.

My guess is that as we will be living with the effect of Covid 19 for some time to come, changes will have to be made to the ways in which major criminal trials are conducted.

See: article by Dominic Thomas https://www.thetimes.co.uk/past-six-days/2020-06-04/law/socially-distanced-courts-wont-dent-the-case-backlog-fwgt5p35d

Article by Sir Richard Henriques https://www.thetimes.co.uk/article/jury-trials-could-restart-next-month-as-court-backlogs-grows-says-robert-buckland-rtjq3xpd5

Letters in response: https://www.thetimes.co.uk/article/times-letters-trials-without-juries-would-ease-the-backlog-cdb8bnmwh

Louis Blom-Cooper, Unreasoned Verdict: The Jury’s Out https://www.bloomsburyprofessional.com/uk/unreasoned-verdict-9781509915224/

JUSTICE, Piloting virtual jury trials, see https://justice.org.uk/wp-content/uploads/2020/04/JUSTICE-mock-virtual-trial-press-release.pdf

Evaluation by Prof Linda Mulcahy and Dr Emma Rowden at https://justice.org.uk/wp-content/uploads/2020/04/Mulcahy-Rowden-Virtual-trials-final.pdf

Extract from the 3rd pilot hearing is at https://www.avmi.com/news-and-resources/avmi-develop-and-pilot-first-ever-virtual-mock-jury-trial-service-with-justice/