Our recent article about the future of trial by jury considered the creative solutions that could be introduced in order for criminal proceedings to continue during the COVID-19 pandemic. It has now been announced that, from 18 May, some new jury trials in England and Wales are to resume in courts where those in attendance can observe social distancing – questions remain, however, about the lasting impact of the pandemic on the criminal justice system, particularly in respect of serious financial crime investigations.
A new approach
A statement by the Lord Chancellor, Robert Buckland, released on 11 May 2020, confirmed that a limited number of criminal courts, including the Old Bailey and Cardiff Crown Court, would reopen with special safety measures in place to allow for social distancing. These measures will include:
- trials taking place across multiple court rooms with a separate courtroom for jury deliberations and another for journalists and others to watch the proceedings via CCTV;
- supervision of entrances and exits by court staff to marshal those arriving and leaving;
- additional cleaning in court buildings.
Prior to this announcement Lord Chief Justice, Lord Burnett had indicated that "blue sky thinking" was being considered to enable jury trials to continue - suggestions had included a reduced number of jurors, judge-only trials, or even the possibility of juries attending trials virtually, which was piloted by JUSTICE in a mock virtual jury trial at the start of May.
It appears that the more radical suggestions put forward have been rejected in favour of a more conventional, albeit still novel, solution. For example, in practice, questions remain about how Government guidance will be observed in the process of convening a court team, legal teams, a judge and 12 jurors in aging public buildings, which often have inadequate handwashing facilities, limited parking and poor ventilation.
It seems possible that, as the limited number of cases get underway and the new system is tested, some of the "blue sky thinking" the Lord Chief Justice referred to earlier this month will have to be revisited to ensure that juries are able to continue to sit and the criminal justice system is able to keep moving.
The ongoing impact on serious financial crime investigations
As discussed in our previous article, the delays caused to proceedings by the pandemic risk further harmful delays in criminal investigations, particularly in serious financial crime investigations which can already last years before they even reach trial, with the lives of those under investigation placed on hold indefinitely. In recent days, the Serious Fraud Office made its first public announcement since the onset of the pandemic, stating that it "continues to investigate suspected fraud, bribery and corruption, adapting ways of working where necessary to adhere to Government guidance".
The announcement also said that the SFO has "been able to continue to follow active lines of inquiry in open investigations, as well as looking into allegations and referrals at the “pre-investigation” stage."
However, the SFO has privately confirmed to the Global Investigations Review that it has stopped compelled interviews for the present time - apparently as a consequence of the social distancing measures currently in place.
The SFO are not alone in facing this significant operational difficulty. However, at the start of April, the CPS, National Police Chiefs Council, Law Society, Criminal Law Solicitors' Association and the London Criminal Courts' Solicitors Association agreed an Interview Protocol. The Protocol, which was developed to deal precisely with the question of how to conduct interviews in the course of the pandemic, acknowledged:
"the unprecedented challenge… the signatories to this Protocol accept that remote interviews by video and audio link are not within the current letter of the Code of Practice, but in the present circumstances of the Coronavirus pandemic they are within the spirit of recent amendments to criminal procedure, law and evidence in the Coronavirus Act 2020".
The Protocol provides a sliding scale of solutions linked to the seriousness of the offence – ranging from fully remote interviews, to in person interviews with the provision of full PPE. The SFO is not yet a signatory to this agreement, but, as it is becoming clear that social distancing is likely to be with us for some time, it seems likely that they too will have to adopt a similarly pragmatic stance if they are to satisfactorily progress matters.
There are huge efforts and novel solutions being fashioned to work through what are unprecedented difficulties - with the new approach to jury trials being the most visible. As matters develop, it is essential that the SFO, charged with conduct of the most complex and serious cases of fraud and corruption, is not slow to respond to these challenges.
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