United Kingdom - Will COVID-19 Prove the Downfall of Jury Trials in the UK?

The UK criminal justice system has been dealt a further crippling blow by the COVID-19 pandemic, which, at the beginning of the UK lockdown in March, saw the closure of criminal courts and the system brought to a standstill. Even before the pandemic, the criminal justice system was close to breaking point following years of austerity measures (1).  The question now is how best to tackle the enormous backlog of cases and to address the difficulties posed by social distancing. One of the more controversial proposals mooted in recent weeks has been to re-assess the role of the jury in criminal cases in England and Wales.

Trial by jury has traditionally been seen as the cornerstone of democracy and the rule of law in the UK. It was famously described by Lord Devlin in 1956 as “the lamp which shows that freedom lives”(2).  Though its precise origin is disputed, it is one of the most revered institutions of Anglo-American law and dates from at least 1215, when Pope Innocent III forbade clerical participation in ‘trial by ordeal’(3).  What followed was a method of fact-finding by juries in land disputes and Henry II’s Grand Assize. It was not until the 1600s that something akin to what we now consider a jury trial emerged. A jury of twelve of one’s peers, independent of government and serving as a safeguard against unjust prosecution. It was 1920 before women were able to serve in a jury.

Much like the pre-existing problems facing the criminal justice system, the question of restricting the right to, or amending the process of, trial by jury is not new. Less serious offences are generally dealt with in the magistrates’ court, either by a lay bench or a district judge, with Crown Court jury trials reserved for the most serious cases. These trials are regarded by some as too expensive, time-consuming, and ill-suited to long running, complex fraud and financial crime cases. The fallout from the COVID-19 pandemic has re-ignited the debate over whether jury trials is an area fit for reform.

Background to the Proposals

To ensure the safety of court users in the face of the worsening COVID-19 pandemic, the Lord Chief Justice on 23 March 2020 suspended all new jury trials. Since then, the question of how trials can resume safely has been the subject of fierce debate. Pressure has been mounting due to the growing backlog of cases and the resultant delays and access to justice concerns. For this reason, a judicial working group was established in late April to consider the available options.

To date, only a handful of jury trials have resumed: these must each take place over up to three courtrooms to facilitate social distancing. Such reduced capacity is clearly unsustainable in the face of an ever-increasing backlog. It is estimated that every month up to 1000 cases are added to the pre-COVID waitlist of 37,500(4). As of 24 May the backlog stood at 40,500 in the Crown Court - an increase of four percent. The situation in the Magistrates’ court is no better, with Ministry of Justice figures revealing a 22 percent increase in outstanding cases to 484,000(5). The injustice caused by the delay in these cases coming to trial is compounded by the number of defendants remanded in custody while awaiting trial under far more onerous custodial conditions than before. Covid-19 has essentially cut off prisons and those in custody from the outside world, as visits from both family and legal representatives have been curtailed and those in custody are confined to their cells for long hours, in an effort to control the spread of infection.

Given the scale of the problem, the government has been considering the “radical” move of reducing the size of juries from the standard 12 to 7(6).  Lord Chancellor, Robert Buckland QC, in his evidence to the justice select committee on 23 June 2020 stated that the severity of the backlog of cases required a dramatic upscale of current efforts and confirmed the government’s consideration of plans to legislate for, among other options, smaller jury sizes(7). 

Problems with Reducing Jury Size

Though touted as a temporary measure in response to extraordinary short-term circumstances, there are concerns that any incursion on the right to trial by jury may have long-lasting consequences and that it risks impacting on the overall fairness of proceedings. Indeed, there has been fierce resistance to any erosion to the protection offered by the jury of twelve. The Criminal Bar Association (“CBA”) released the results of an internal ballot on 29 June 2020 which showed that 93% of members who voted were against erosion of jury trials in the Crown Court. This number is striking as those surveyed will be suffering the financial fallout caused from the suspension of trials.

Research carried out by Cheryl Thomas in conjunction with the Ministry of Justice in 2010 concluded that juries are fair, effective and efficient(8). Follow up research has further shown that the only stage of the criminal justice process in England and Wales in which members of BAME groups appear not to be treated disproportionately is when a jury reaches a verdict by deliberation(9). Any reduction in jury numbers will risk compromising the diverse representations that a jury of twelve provides, which would inevitably have an impact on fairness. A further concern is the impact on the conduct of the trial should individual jurors become unwell and the number available to reach a verdict falls even further below the already reduced number.

In any event, it would be remiss to view a reduction in jury numbers as a panacea for the woes currently facing the system. The increased capacity expected to be derived from a reduction in jury numbers is estimated to be in the region of 5-10 percent. It also is unlikely to address the issues posed by social distancing. Absent testing, disciplined social distancing and long term additional space outside the court estate it is difficult to see how such a proposal would have any meaningful impact on the current backlog.

There remains palpable fear among those who work in the criminal justice sector, that the response to the current crisis in the short term also may result in the permanent dismantling of what many consider to be the bedrock of the system. The criminal justice system has been plagued by cuts and chronic underfunding in recent years and this may be seen as opportunity to make further perceived cost cutting measures. Given the sacred position of juries in the UK criminal justice system, it is necessary to carefully consider whether the risks of eroding that right outweigh the limited benefits afforded.

Lack of Scrutiny

Recent months have seen numerous emergency measures brought into force at an alarming rate and with minimal parliamentary scrutiny. This should be the exception and not the norm(10). The impact of removing or amending trial by jury, even temporarily, must be explored and debated to ensure that any new legislation does not result in unintended consequences. To reduce the number of jurors from the standard 12 to 7 would require the introduction of primary legislation(11). A matter of such public import and interest requires proper scrutiny and debate. Parliament is due to go into recess on 21 July 2020 – the careful consideration and impact assessment required by such a Bill is unlikely to be satisfactorily undertaken in just three weeks.

While a reduction in the number of jurors in Crown Court trials is not unprecedented, it was previously introduced under different circumstances and to address a different problem. The Administration of Justice (Emergency Provisions) Act 1939, which temporarily reduced the size of juries in all cases save for treason and murder, was passed in response to limited number of people available to serve on juries due to conscription. The reduction of juries in the COVID-19 era is, in any event, unlikely to address the current issues we are facing.

Potential Alternatives

While the Lord Chancellor has stated that he is attracted to the proposition of reduced jury numbers, this is not the only option available to address the backlog. Arguably the most efficient but also the most controversial approach is that of single judge trials. In a comment piece published in the Times in early May, Sir Richard Henriques QC advocated in favour of this approach(12). Such a move would not be without precedence and Sir Richard invoked the example of Diplock courts in Northern Ireland in support of his argument. A shift to a single judge trial brings with it significant risks; and such a proposal has been deemed “undesirable” by the Lord Chief Justice. What has not been ruled out is the prospect of the trial of either-way offences by a judge and two lay magistrates, which the Lord Chancellor has said will only be considered as a “last resort”(13). 
 
The prospect of fully remote jury trials was tested by law reform and human rights campaign group JUSTICE throughout the lockdown period. Head of the CBA, Caroline Goodwin QC, having observed one of the mock jury trials conducted remotely, concluded that the current technology is inadequate to ensure a safe and fair trial(14). JUSTICE, while acknowledging bandwidth issues, argued that the remote process in fact treated the defendant with more dignity than when they are placed in an enclosed dock in the courtroom(15). This sentiment was echoed by Shadow Attorney General Shami Chakrabarti, who stated that the absence of a dock contributed to a greater psychological “equality of arms” between defendant and prosecution witnesses.

The most recent announcement by the Ministry of Justice, as part of its plans to tackle the court backlog, is the introduction of extended court hours from August(16). Ten sites, believed to include university lecture theatres and town halls, have been identified by to serve as pop-up ‘Nightingale courts’. It is expected that further venues will be identified before the autumn and that hearings that have been heard remotely during the lockdown will continue remotely going forward to increase efficiency. The use of buildings outside the court estate was met with huge positivity in the above CBA survey with 95% in favour of the measure. It remains to be seen how extended hours will be received by those working within the system.

Conclusion

Times of crisis often provide fertile ground for sowing seeds of change and emergency measures always carry a risk of becoming permanent. While the current system is undoubtedly imperfect, the loss of the right to trial by jury risks doing immeasurable damage to the fairness of proceedings and public confidence therein. Given the wealth of alternative options available to address the current backlog, it would be prudent to explore what can be achieved through these alternative means before taking the more extreme course of reducing jury numbers. Though temporary incursions into the right have been introduced before, their impact is not well understood. What is certain is that the criminal justice system has been starved of resources for far too long and significant investment will be required if it is to emerge from this crisis intact.

By Maria Cronin
Peters & Peters Solicitors LLP
London, UK

And Katie Jones
Peters & Peters Solicitors LLP
London, UK
 

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1. Owen Bowcott, 19 August 2019, “Criminal cases delayed across England and Wales as courts lie idle”, the Guardian, available here.
2. Trial by Jury, The Hamlyn Lectures, 8th Series (1956) at 164.
3. Geoffrey Robertson QC, 13 March 2015, “Magna Carta and jury trial”, the British Library, available here.
4. Owen Bowcott, 24 May 2020, “England and Wales face backlog of 40,000 criminal cases due to coronavirus”, the Guardian, available here.
5. Jemma Slingo, 26 June 2020, “Magistrates’ court backlog reaches 484,000”, Law Gazette, available here.
6. Jane Croft, 30 April 2020, “‘Radical measures’ needed to restart UK jury trials”, Financial Times, available here.
7. Justice Committee, 23 June 2020, Oral evidence: Coronavirus (Covid-19): The impact on prison, probation and court systems, HC 299, available here.
8. Cheryl Thomas, February 2010, “Are juries fair?”, Ministry of Justice research, available here.
9. Cheryl Thomas, “Ethnicity and the Fairness of Jury Trials in England and Wales 2006-2014”, [2017] Criminal Law Review, Issue 11, 860-876.
10. Joint Committee on Human Rights, 20 April 2020, Oral evidence: The Government’s response to Covid-19: human rights implications, HC 265, available here.
11. John Hyde, 23 June 2020, “Legislation to abolish some jury trials could be passed within weeks”, Law Gazette, available here.
12. Richard Henriques QC, 01 May 2020, “Judge-only trials would let courts get back to work”, the Times, available here. 
13. Justice Committee, 23 June 2020, Oral evidence: Coronavirus (Covid-19): The impact on prison, probation and court systems, HC 299, available here.
14. Catherine Baksi, 23 April 2020, “In Conversation with Caroline Goodwin QC”, the Times, available here.
15. JUSTICE Covid-19 response, available here.
16.  John Hyde, 1 July 2020, “Extended court hours to tackle backlog”, Law Gazette, available here.