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Jury trials to resume under ‘special arrangements’12th May 2020 Business Crime
Trial by jury has been suspended in England and Wales since 23 March 2020, when the Lord Chief Justice, Lord Burnett, decided that no jury trials were to take place until appropriate precautions had been put in place to slow the spread of Covid-19.
The Lord Chief Justice has now announced that from the week commencing 18 May 2020, new jury trials may be started in a few courts.
The nature of a jury trial is such that it requires the presence of the judge, a panel of jurors, a defendant, prosecution lawyers, defence lawyers, witnesses and court staff. This raised safety concerns, arising from the lack of arrangements in place to ensure adherence to social distancing guidelines in courtrooms and court buildings.
The Jury Trial Working Group, reporting to the Lord Chief Justice, was established to consider ways to re-start jury trials once safe to do so. It was said that the decision to restart jury trials would be taken only when the Lord Chief Justice was confident “that the system as a whole is ready”.
We consider whether the judicial system is now ready and what measures will be implemented to ensure that trials will be commenced safely.
Over the last week a small number of Crown Courts were assessed to determine whether, their size and/or design meant that it would be possible to conduct jury trials at these venues safely.
The Central Criminal Court at the Old Bailey in London and Cardiff Crown Court are some of the courts in which the first new juries will be sworn.
The courts will have in place special arrangements to ensure the safety of all participants in the trial, including the jury. Those arrangements have involved input from Public Health England and Public Health Wales, and include a second court room, from which reporters and others can watch the proceedings via video link, as well as a third courtroom where the jury can retire for deliberations.
Additionally, court entrances and exits will be carefully supervised by staff, who will also ensure that all ‘necessary cleaning’ takes place.
In order to allow appropriate social distancing to be maintained at all times, it is clear from the Lord Chief Justice’s announcement that every criminal trial will involve multiple courtrooms to accommodate the press and public as well as the jury.
It is expected that only a small number of trials will take place initially. Other courts around the country are being assessed in order to gradually increase the number of cases heard. It is clear that the trials able to be conducted from courts meeting the criteria of the Jury Trial Working Group would be limited in number, and likely to make only a marginal difference in combating a growing backlog of criminal cases waiting to be heard.
The Lord Chief Justice had stated previously that the use of buildings other than courts was being considered as a means to restarting jury trials with social distancing. While the Jury Trial Working Group has so far indicated that only court buildings are being assessed, the Lord Chancellor, Robert Buckland QC, has said that the first jury trials to resume will help in understanding how it might be possible to conduct trials more widely as the public health crisis caused by coronavirus develops. The use of large, empty buildings such as university lecture halls should therefore not be ruled out and could potentially be explored at a later stage.
Juries of fewer members
The Lord Chief Justice has confirmed that trials will be conducted under the same legal standards and procedures as before the COVID-19 emergency, with twelve jurors.
He previously indicated that he would support a move to reduce the number of jurors, as a way to enable jury trials to continue. The Lord Chancellor also said that smaller juries is a concept ‘worth serious consideration’.
In a criminal trial, the jury consists of twelve people, save for where a jury member falls ill or is discharged for other reasons. However, a move to allow juries to sit with fewer members could see a return to juries as they were following the outbreak of World War II.
The expectation that many people would be conscripted in wartime led to the passing of the Administration of Justice (Emergency Provisions) Act 1939. This act reduced juror numbers from 12 to 7, with an exception for trials concerning murder or treason, and other criminal cases where the gravity of matters in issue meant that the court considered it inappropriate to reduce the size of jury.
A jury can convict a person only if at least 10 of the 12 jurors are satisfied so that they are sure of his or her guilt. Where the number of jurors is 9, the minimum required by statute, the verdict must be unanimous. It has not been indicated what the requisite majority would be, in the event that smaller juries are introduced.
The Lord Chancellor stated that introducing such legislation would take time, and it can be seen from yesterday’s announcement that the focus is on making sure jury trials are up and running as soon as practicable. Adaptations that are far less radical are therefore going to take effect before we see a reduction in juror numbers. If such a measure were to be, at any point, implemented, it is highly likely that the most serious crimes would not be tried by a smaller sized jury.
Remote jury trials
Over the last month, there has been a significant increase in the take-up of remote technology within the criminal justice system. ‘Many thousands of hearings’ utilised audio and video equipment. This did not include jury trials, which were halted, by the Lord Chief Justice’s own recognition, on the basis that they cannot be conducted remotely.
One issue with remote jury trials is the risk that juries will become socially unbalanced, given that jurors would require IT equipment and the necessary IT skills to hear evidence in their own homes. This is on top of the need for a private environment to ensure secrecy of deliberations. Other practical difficulties include ensuring that jurors’ give their undivided attention, that a joint conclusion is reached, and that formality is maintained.
The Campaign Group, JUSTICE, has so far led two pilot virtual mock trials that they consider to have ‘shown promise’. However, an evaluation of the experiment identified technical problems as one of the problems that arose. The evaluation states that screen freezes and audio cutting out could result in vital evidence being easily missed and unfair decisions being made, something which could potentially be the subject of an appeal.
The Lord Chancellor had stated that the work on remote jury trials merits ‘careful scrutiny’. For present purposes, however, remote jury trials are not considered a viable option and all participants in criminal trials will be required to travel between their homes and court, this travel being recognised as essential.
The idea of judge only trials has been deliberated as a way of dealing with the backlog of cases awaiting trial. A provision already exists within the Criminal Justice Act 2003 (CJA 2003) that allows the prosecution to apply for a trial to be conducted without a jury. This power is used very rarely and only where there is a ‘real and present danger’ of jury tampering.
The CJA 2003 also includes a provision that allows trial without jury in cases of certain serious and complex fraud, however it has never been brought into force, highlighting the reluctance to dispense with jury trials. In any event, the Lord Chancellor believes that to take such a step would be disproportionate and has ruled out trials by judge alone.
The desire to restart jury trials as soon as possible arises out of the ‘expanding pipeline of cases waiting to be heard’, in an attempt to mitigate the lasting impact that the coronavirus will have on our criminal justice system.
The Crown Prosecution Service, when deciding whether a prosecution is a proportionate response, must now take into account the fact that proceedings and case progression are likely to be delayed, and that every case introduced into the system will add to the expanding pipeline and delay.
As of 18 May 2020, adjourned jury trials may resume and new jury trials may start where they can be conducted safely and observing social distancing rules. However, court buildings must undergo an assessment process before hearing jury trials. The assessment process will itself take time, and some court buildings may be deemed unsuitable.
The courts resuming jury trials next week represent only a small proportion, and the assessment process of other court buildings across the country will only gradually increase the number of cases heard. Many involved in crown court trials will therefore continue to face delay, their cases part of the ‘expanding pipeline’. However, at least for now, the jury is out on alternative ways to restart jury trials at a higher rate.
The prospect of further delay will be an unwelcome thought for those within the criminal justice system, in particular in cases of serious financial crime where the lives of persons released under investigation can be disrupted for years before a trial is heard, and for defendants remanded in custody pre-trial who could face an excessive length of detention.
JMW Solicitor’s Business Crime and Regulatory Partners and Solicitors have extensive experience and knowledge in advising upon serious allegations and criminal charges. For further information about the comprehensive service our lawyers can offer if you are concerned about potential or ongoing proceedings, please contact 0845 872 6666.