In the face of the COVID-19 pandemic, the UK's justice system has proved capable of adapting to the new circumstances as both the civil and criminal Courts have broadly embraced measures to conduct hearings in line with the Government's guidance.
The exception to this is trial by jury, which was effectively suspended on 23 March 2020 in light of the difficulty with observing social distancing, raising the possibility of a significant backlog of cases in the months and years to come.
Trial by jury
A judicial working group, reporting to the Lord Chief Justice, Lord Burnett, has now been established to consider ways to allow jury trials to recommence as soon as safely possible. The Lord Chief Justice has said that "blue-sky thinking" is now underway and a number of solutions, including unprecedented and "radical" measures, are being considered.
The most controversial idea is likely to be a suggestion of Crown Court trial by judge alone, something which has been debated at various times, and is used extremely rarely, for example where there is a risk of jury tampering. As long ago as 2003 the Criminal Justice Act of that year, included a provision to allow trials in serious and complex fraud cases without a jury, but it has never been brought into force.
It is more likely that the proposal to host jury trials in larger venues, such as university lecture theatres, or over multiple court rooms, will be introduced in order to enable social distancing. More controversially, the Lord Chief Justice has indicated that he would support the introduction of emergency legislation to allow juries to sit with fewer than the traditional 12 jurors currently required – a move which has some historic precedent as the Administration of Justice (Emergency Provisions) Act 1939 allowed for trials by seven jurors, with the exception of murder or treason and murder, following the outbreak of World War II.
Perhaps the most obvious solution would be the introduction of virtual juries by way of video conference calls, but there is significant resistance to such a radical departure from the traditional model for a trial and it would be difficult in practice to ensure the jury's undivided attention was on the trial.
Concerns also include ensuring the confidentiality of juror deliberations, and the ability of the jury properly to assess a defendant's credibility over a video call. For the time being, the Lord Chief Justice has publicly rejected this as an option, however, there are mock trials ongoing, led by JUSTICE, to see if the idea could be made to work in practice.
As social distancing measures look set to remain in place for months to come, disruption to the criminal justice system is likely to cause significant, lasting damage if the system cannot adapt. There has been a general recognition that the impact of the pandemic cannot stop the process of litigation, or, as Deputy High Court Judge, Daniel Alexander QC, put it in a recent judgment, "the wheels of justice should keep turning at their pre-crisis rate".
This is particularly important in the criminal justice process. For example, serious financial crime investigations can already last years before they even reach trial, with the lives of those under investigation placed on hold indefinitely – the prospect of further delay and drawn out uncertainty will inevitably cause harm to those involved.
As things stand, there are some positive steps that have been taken by enforcement bodies to mitigate the risk of further delay. Notably, the CPS has introduced new interim guidance on the application of the Code for Crown Prosecutors in light of the pandemic, which requires prosecutors to note the following when considering whether prosecution is proportionate in a particular case:
- The crisis is producing an expanding pipeline of cases waiting to be heard;
- Criminal proceedings and case progression are likely to be delayed. Significant delay may impact adversely on victims, witnesses and defendants, in some cases, may reduce the likelihood of a conviction;
- Each case that is introduced into the system, or kept in the system, will contribute to the expanding pipeline and delay.
In addition, the National Police Chiefs Council and the CPS have issued an Interim Charging Protocol to take account of the impact of the pandemic, which raised the possibility of a virtual fraud Court to manage cases and prepare listing arrangements.
It is clear that significant efforts are being made to keep the wheels of the criminal justice system turning during this difficult period with bold new thinking being applied. However, it remains to be seen whether jury trials will be back before the end of May as is the hope of the Justice Secretary, Robert Buckland, and if so, what form they will take.
Practical guidance for COVID-19
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