On 24 April 2020, the Lord Chief Justice announced the establishment of a judicial working group to consider ways to re-start some jury trials once it is safe to do so. The group includes representatives from across the criminal justice system. The development comes a month after the announcement on 23 March 2020, that all new jury trials would be postponed, effectively putting a brake on almost all contested matters in the Crown Court. Since then, the work of the Crown Court has continued to build up, prompting fears that the system will be unable to cope with the volume of work when trials eventually recommence.
Despite the frequency with which problems facing the criminal justice system have been described as ‘unprecedented’ over the past decade, the challenge faced by the mounting backlog of cases can only be likened to operating a criminal justice system in wartime; not least because we will be paying for the disruption for years to come, as costs mount with every day that courts sit empty and prison numbers swell. The Institute for Government has estimated that if the current crisis results in a two-quarter shock to the system, the combined cost of reducing the backlog of cases across the Magistrates’ Court and Crown Court could be as high as an additional £220million over two years. This is a sobering figure against the backdrop of a court service already pushed to its limits. It also strengthens the argument for radical short-term measures, potentially in conflict with the requirements of a fair trial under Article 6.
Since the Lord Chief Justice’s announcement there has been much debate over possible measures such as reducing the number of jurors required to as low as seven, and hearing trials in university lecture theatres and other large public buildings in order to observe social distancing. There is already provision for trials before a judge without a jury, however, it is seldom considered appropriate or desirable. With consideration also being given to whether entire jury trials could be conducted remotely, it is likely that the eventual solution will be a combination of high- and low-tech measures.
The last decade has seen some laudable attempts to utilise technology, particularly in Crown Court proceedings. All Crown Court cases are now uploaded to the Digital Case System, which has undoubtedly made it easier to share and present some forms of evidence. Juries in some document heavy cases are provided with tablets to view evidence, doing away with the need for reams of paper. However, ensuring that all participants are singing from the same hymn sheet is a more basic process and often reliant on communication in person.
A recent pilot lead by the campaign group JUSTICE saw an entire mock trial, complete with a jury of 12 law students, conducted remotely using video conferencing. Following an evaluation of the process, a number of positives were identified:
- The technology generally worked well and improved with practice.
- The judge and barristers were effective in creating a sense of gravitas and occasion.
- Lay participants appeared to be comfortable with the technology and found that the clearer view of the other participants, free of physical obstacles, was beneficial.
- The defendant was treated with more dignity than when placed in an enclosed dock at the side or back of a court room.
- A separate ‘virtual room’ was provided for the defendant to consult with their counsel in private.
The pilot also identified a number of problems:
- Limited bandwidth affecting participants’ internet connections caused some disruption, requiring urgent technical assistance.
- The location from which participants appeared, whilst part of the ‘virtual court’, was usually their home, which had an impact on the solemnity of proceedings.
- Not all participants seemed aware of the importance of avoiding distracting or problematic behaviour.
- While technical competency might be assumed of many participants, it is expected that others would find the platform alienating and stressful. This is a concern particularly in relation to vulnerable witnesses.
- The issue of facilitating observation by the public was not resolved.
The JUSTICE pilot may have gone some way to convincing the sceptics that remote trials are achievable in certain limited circumstances. However, it is the less tangible factors that are likely to cause concern for practitioners, both prosecution and defence. The process of calling evidence and cross examining a witness is often nuanced and requires subtlety, which can be difficult to achieve over a video connection. Likewise, the ability to fully assess the credibility of a witness may include consideration of their body language and overall demeanour. As for more practical challenges, which can be equally difficult to quantify, there is the concern that unless the court can see exactly what the participants see, there is no guarantee that each juror’s experience of the trial is the same. Errors such as a reference to an incorrect exhibit or the distribution of an outdated version of a trial document are usually spotted thanks to co-operation between jurors sitting side-by-side, and with the other parties present in court. This would be lost in cases where jurors are sitting alone at home, perhaps too anxious to voice a legitimate concern.
The issues identified suggest that there is a line, that if crossed, sees the effectiveness of the trial process go into decline. All trials are highly fact specific and pose their own unique challenges. There is no ‘one size fits all’ solution. However, something close to the optimum achievable conditions to conduct an efficient and fair trial may become clearer. Technology will inevitably play a significant role in this, not just through efficiency and cost saving, but in accommodating modern evidence, which increasingly is a product of technology itself.
As with most of the provisions under the Coronavirus Act 2020, whatever measures are taken to address the backlog of cases will be introduced as temporary and in direct response to the crisis. Inevitably, some measures will prove to be popular across the criminal justice system and be considered for permanent implementation. At the same time, those interested in maintaining or at least striving for the gold standard of trial process will be keeping a watchful eye to ensure that we do not forget the central tenets that characterise the jury trial.