On 23 March 2020, jury trials in England and Wales were suspended in response to the COVID-19 pandemic. Trials were halted to protect public safety, as social distancing measures were difficult to implement in courtrooms. This has led to a backlog of over 40,500 Crown Court cases across the UK. Addressing the backlog of cases is particularly important in relation to criminal proceedings, as defendants risk being left without any knowledge of when they will eventually face trial. This is even more significant for those who are remanded in prison, as their liberty is being restricted without any determination of guilt for an indefinite period of time.
The resumption of trials by jury is a critical step to tackle the problem. Several proposals have been put forward to address how jury trials might continue. Amongst these proposals, was that of Geoffrey Robertson QC, who favours allowing defendants to elect to be tried by a judge alone to help ease the current crisis. Lord Chief Justice Burnett, on the other hand, believes a solution could be to find "very large courtrooms where it [would be] possible to envisage participants maintaining social distancing”. Another courtroom would need to be made available through video link, so that the press and public can view proceedings whilst maintaining social distancing.
Whilst these are both valid considerations, one thing is certain: if the need for social distancing continues it will be necessary to look at more radical measures to enable trials by jury, such as reducing the number of jurors as seen during the Second World War.
THE JUSTICE PILOT PROJECT: A POSSIBLE SOLUTION FOR THE UNITED KINGDOM
JUSTICE is an organisation with the aim to strengthen the justice system in the United Kingdom. Between April and July 2020, the organisation carried out a pilot study to explore whether it was possible to conduct remote trials fairly. The study examined the possibility of achieving a fair trial when the participants remain socially distanced, potentially even in different locations, as well as the effectiveness of the available technology. They compared these conditions with those of a usual in-person trial to identify any possible legal challenges that could arise and evaluate the lessons and improvements that could be made.
The study produced a number of negative findings. Internet connectivity issues and bandwidth problems could lead to only a select number of people being able to take part in trials. This in turn could affect the representative nature of a jury and lead to biases. Further issues were also identified with regards to the participants’ privacy, as jurors’ homes could potentially be recognised. The informal environment of people’s houses could furthermore affect how seriously the jurors take the trial, the attention they pay to proceedings and ultimately their role and final verdict. Despite these findings, the project’s authors concluded that a remote participation could be used for short or medium length trials. However, jurors would need to be adequately trained on the use of technology and the importance of privacy during trials.
NORTHERN IRELAND
Northern Ireland quickly took the approach to consolidate all court proceedings into five court venues when the virus hit in March 2020. Socially distanced in-person jury trials have recently resumed in Antrim, Craigavon, Newry, Coleraine and Dungannon. A number of precautions have been put in place for the safety of the public including individual bibles encased in polythene bags for juror oaths, and trials being divided into two separate courtrooms, one used for proceedings, and the other for the jury to observe.
A CINEMATIC SOLUTION FOR SCOTLAND
The number of High Court trials waiting to proceed has almost doubled in Scotland since the beginning of the pandemic. On 21 April 2020, Justice Secretary Humza Yousaf gave a ministerial statement to the Scottish Parliament where he stated that the Scottish Government is committed to trial by jury and explained that there were various options under consideration, which were outlined in the Scottish Government’s Discussion paper.
These options included suggestions such as reducing the size of the jury pool, remote juries, and routine COVID-19 testing for all jury members throughout the trial. Whilst these are valid suggestions, they all still involve some risks and are not without significant costs. These solutions also imply the use of non-court facilities, which would require significant conversion. This is not unprecedented, however; an example can be found in the Clutha Fatal Accident Inquiry, which was held at Hampden Park Stadium to allow families to attend.
In the search for alternative court venues, a possible solution has been found in empty cinemas. The Scottish Courts and Tribunals Service has recently concluded a six-month contract with the cinema chain Odeon, under which cinemas are used for court proceedings during the week but can still function normally on the weekend.
UNITED STATES
On 16 March 2020, the US Supreme Court announced the postponement of upcoming oral arguments for the first time in more than 100 years; the last time it did so was in 1918 in response to the Spanish flu epidemic. Courts in several states have also suspended jury trials. While closing courtrooms and halting jury duty makes sense for public health reasons, some legal experts have warned that the delays could create an overwhelming backlog of cases. It could also have legal ramifications and breach the defendants’ right to a fair and speedy trial protected under the Sixth Amendment of the American Constitution.
In Michigan, an executive order issued by the state Supreme Court granted trial judges the power to adjourn the proceedings whenever the defendant is not in custody. If the defendant is in custody, trial judges should use videoconferencing. These measures and delays have exposed further cracks in the US justice system and the approach to obtaining bail, according to Nicole Gonzalez Van Cleve, a criminal justice researcher and Brown University sociology professor:
“Imagine your public defender says, ‘Well, if you plead guilty, we can let you go. But if you stay and wait trial, which could be weeks or months or unknown, then you’d have to wait in the jail with a pandemic.’”
THE WAY FORWARD
The solutions adopted by Northern Ireland and those proposed by the JUSTICE study both indicate a need for proceedings to be streamlined, to prevent further backlog and to allow trials to take place remotely and run as smoothly as possible.
The use of an empty cinema or other large spaces as courtrooms, as seen in Scotland, is a controversial solution. However, it could become vital for the justice system, and a potential saviour for the leisure sector. Cineworld cinemas across the UK were temporarily closed on 9 October 2020 until further notice. Data shows that social distancing in an environment like a cinema can be successful, if government protocols are adhered to. There may thus be some promise in Scotland’s proposal, provided that justice can be prioritised in a fair and timely manner whilst still keeping the public safe.
Olivia is part of the Human Rights Pulse team. She publishes online content and manages subscriber communications as part of the Social Media and Marketing Team. Olivia achieved a Very Competent for the BPTC LLM and hopes to be called to the Bar of England and Wales in the near future.