Toby Wilbraham considers the concerning issue of abolition of jury trials
The recent Coronavirus epidemic has brought life as we know it to an abrupt standstill. This has affected almost every walk of life including the legal profession. Although we are being encouraged to move back towards some kind of normality it seems the new ‘normal’ will be quite different from the old, at least for the foreseeable future.
Social distancing has had an impact on the Criminal Justice System. The reality is that Courts simply aren’t designed for social distancing. Courts have adapted by utilising videolink hearings more than they used to. However these can only be used effectively for administrative hearings, plea hearings and sentence hearings.
The problem is most apparent in Crown Courts, which deal with the most serious types of criminal cases. Crown Court trials rely on a combination of Judges sitting to ensure the trials proceed fairly, and a jury (12 people) deciding on matters of fact (whether someone is guilty or not). It is a system that has worked well up until recently. Jury trials have come to a standstill since the outbreak as twelve members of the jury cannot usually sit in Courts while complying with social distancing.
Some work arounds have been tried, with some trials sitting in two court rooms rather than one, but this would clog up Court rooms if used everywhere.
The Criminal Justice System has been chronically underfunded in the last 15 years. Successive Governments have made deep cuts into the system to save money. Courts have been closed, staff have been made redundant and court sitting days massively reduced.
How does a backlog arise?
Court sitting days are the most important factor when determining how much work a Court can get through. The Government inform a Court (e.g. Chester Crown Court) how many sitting days they are allowed each year). The Court have to adhere to this whatever level of Court traffic they have. This can lead to some Courts not opening all their court rooms even when they may want to ease the burden on court rooms that have opened. Sitting days have been reduced in most courts across the country year on year. The Criminal Bar, comprised of barristers and QC’s, have made observations that Courts have not been given sufficient sitting days. Click here to read more.
It has been estimated that prior to the recent pandemic there was already a backlog of 39,000 cases. Since the outbreak the estimated backlog is around 50,000 cases.
Solution to Backlog?
Various solutions have been discussed as a way to alleviate the current crisis:
- Reducing Jury Numbers. This has happened previously where jurors were reduced to 7 people. It would help alleviate problems but there was some suggestion that there could be increased unfairness to the defendant.
- Defendants could choose what they wanted. Defendants could choose whether they wanted to wait a longer period for a jury trial or a shorter period for a trial by judge. The problem is that there would be pressure to choose the former which could be less fair than a jury trial. Judges can be seen as ‘case hardened’ and more likely to convict.
- Nightingale Courts. The Government could provide additional funding to allow more sitting days so special Courts could help alleviate the problem. It seems that the Government are unlikely to choose this route.
- Abolish Jury Trials. Lord Chancellor Robert Buckland QC indicated recently that legislation to allow trial without jury could be passed within weeks – but the changes would only be temporary. Click here to read more.
Buckland described trials with just a judge and two magistrates as a ‘last resort’ but said this option would provide an extra 40% capacity. His preferred option, which is to reduce the number of jurors to seven, would increase capacity by only 5-10%. Buckland suggested that a one judge-two magistrates option would apply only to cases where the maximum sentence is two years’ imprisonment.
The Right To Jury Trials
The right to trial by jury is a right we should be very careful to restrict in any way, even if only temporary. Temporary solutions also have a habit of becoming permanent.
This point is best illustrated by Tim Storrie QC who stated in an article in The Times on the 24th June 2020:
“ The key justification for trial by jury is that it depends upon the participation of randomly selected individuals and not a case-hardened judge with fixed opinions. As such juries are a vital safeguard for us all, whatever our background. In the careful work that they perform they help to defeat the conclusion that the judiciary is predisposed to convict, whatever the merits of your case”.
The suggested restriction of a jury trial is worrying news and should be avoided at all costs. This is particularly important in the era of populist politicians who have in the past eroded personal freedoms little by little.