Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘jury trial

Jury trials – a case for change?

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One response to the difficulties of running jury trials in the current Covid-19 world, where social distancing is crucial yet difficult to achieve in a crowded courtroom, has been that – at least temporarily – alternatives to juries should be tried.

The Lord Chancellor has set his face against this idea. Indeed, most people who even float the idea that jury trials should be abolished tend to be treated with scorn.

Nevertheless, it is worth noting that there is the occasional voice to be heard, suggesting that jury trial is not all that it is cracked up to be.

In this context, readers of this blog might be interested in a book, published in 2019, by the late Louis Blom-Cooper QC who suggested that criminal trials might be run differently.

In Unreasoned Verdict, Blom-Cooper argues that:

The system of jury trial has survived, intact, for 750 years. This book explains the nature and scope today of jury trial, with its minor exceptions. It chronicles the origins and development of jury trial in the Anglo-Saxon world, seeking to explain and explore the principles that lie at the heart of the mode of criminal trial. It observes the distinction between the professional judge and the amateur juror or lay participant, and the value of such a mixed tribunal. Part of the book is devoted to the leading European jurisdictions, underlining their abandonment of trial by jury and its replacement with the mixed tribunal in pursuance of a political will to inject a lay element into the trial process. Democracy is not an essential element in the criminal trial.

The book also takes a look at the appellate system in crime, from the Criminal Appeals Act 1907 to the present day, and urges the reform of the appellate court, finding the trial decision unsatisfactory as well as unsafe.

Other important issues are touched upon – judicial ethics and court-craft; perverse jury verdicts (the nullification of jury verdicts); the speciality of fraud offences, and the selection of models for various crimes, as well as suggested reforms of the waiver of a jury trial or the ability of the defendant to choose the mode of trial. The section ends with a discussion of the restricted exceptions to jury trial, where the experience of 30 years of judge-alone trials in Northern Ireland – the Diplock Courts – is discussed.

Finally, the book proffers its proposal for a major change in direction – involvement of the defendant in the choice of mode of trial, and the intervention (where necessary) of the expert, not merely as a witness but as an assessor to the judiciary or as a supplemental decision-maker.

I think it highly unlikely that there will be any change in the foreseeable future. But that does not mean that arguments against the ways in which juries are currently used should not at least be considered and debated to see whether there might be alternative arrangements that might work better and more fairly.Source: adapted from publisher’s notice at https://www.bloomsburyprofessional.com/uk/unreasoned-verdict-9781509915224/

Written by lwtmp

October 10, 2020 at 2:12 pm

Jury trial in the cinema?

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I wrote earlier about the experiment run by the human rights group JUSTICE on the possible use of ‘virtual jury trials’ (4 June 2020). This was seen as one way of increasing the number of cases being dealt with while the Court service struggles to protect all those involved in serious criminal trials save from the Covid-19 virus.

I’ve just read a fascinating item by Joshua Rozenberg, describing an initiative taking place in Scotland which involves juries going to the cinema and watching a trial fed into the cinema by closed circuit TV. With the numbers of screens available in multiplex cinemas, such an idea could enable quite significant numbers of trials to go ahead. Initally it is hoped that 16 screens in Glasgow and Edinburgh could be used.

Rozenberg writes: “Cameras and microphones will relay the proceedings to the cinema where jurors will hear and see the trial as if they were watching a movie. The screen will be divided into four so that jurors can see the judge, counsel and the accused while listening to witnesses or viewing the evidence.”

Members of the jury will also be under the eye of a camera, so that they can be seen in the actual court room.

Rozenberg reports the Lord Chief Justice for England and Wales as being rather dubious about this idea, suggesting that it would turn a jury trial into some form of entertainment. But would this not be preferable to proposals to do away with jury trial (an idea supported today by the former Lord Chief Justice, Lord Phillips) – at least for a time – to enable the criminal justice system in England start to offer a more acceptable level of service?

I agree with Rozenberg that this is an idea worth considering. It would also overcome some of the technical problems that might be associated with running criminal trial over Zoom or another video networking platform.

Joshua Rozenberg’s blog is at https://rozenberg.substack.com/p/trial-by-movie.

Some of the potential problems about the use of remote criminal proceedings are discussed by Roger Smith in https://law-tech-a2j.org/remote-courts/remote-courts-and-the-consequences-of-ending-practical-obscurity/

Written by lwtmp

August 20, 2020 at 4:55 pm

Covid 19 and the English Legal System (6): the Criminal Justice crisis [stop press]

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The huge backlog of criminal trials, resulting from the Covid 19 pandemic, is clearly very worrying for those responsible for managing the Criminal Justice system/

Two specific ideas for dealing with this have been floated in recent days.

In evidence to the House of Commons Justice Committee to be given on 23 June 2020, the Lord Chief Justice is likely to be promoting his favoured idea, that trial by a 12 person jury should be replaced by a trial judge sitting with two assessors.

The Human Rights Group JUSTICE has been conducting experiments using a virtual jury – in which 12 jury members join a virtual hearing online.

I declare an interest. I am a member of the Council of JUSTICE. Last Friday I watched an extract from the 4th virtual trial, which was being held on a pilot basis. I was extremely impressed and many of those who engaged in the process commented on the realism of the proceedings.

JUSTICE argues that this experiment should be expanded and that virtual jury trials should be used much more widely. These should be seen as preferable to the introduction of trials heard by judges sitting just with 2 assessors. Those who agree with this view are asked to convey their thoughts to the Justice Committee, inviting them to take their comments into account in their deliberations.

The Justice Select Committee website is at https://committees.parliament.uk/work/254/coronavirus-covid19-the-impact-on-prison-probation-and-court-systems/

The JUSTICE work on the impact of Covid 19 can be found at https://justice.org.uk/our-work/justice-covid-19-response/

 

 

 

Written by lwtmp

June 22, 2020 at 5:46 pm

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

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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/

 

 

 

 

Written by lwtmp

June 5, 2020 at 11:20 am