OPINION Juries in isolation

However temporary the new measures are intended to be, there is always a risk that they could become permanent - Sailesh Mehta and Mahesh Karu on the resumption of jury trials, but not as we know them


‘Let it not be supposed that this court is in any way opposed to trial by jury. It has been the bulwark of our liberties too long for any of us to seek to alter it. Whenever a man is on trial for serious crime, or when in a civil case a man's honour or integrity is at stake, or when one or other party must be deliberately lying, then trial by jury has no equal.’ 

Lord Denning MR, Ward v James [1966] 1 QB 273

When the Prime Minister announced lockdown in March 2020, many aspects of daily life ground to a halt, and the courts in England and Wales were forced to make some very drastic changes in the wake of the COVID-19 pandemic. Some of the new protocols, such as readily accessible remote hearings and administrative decisions, are welcome changes to the usual running of the criminal courts, likely to remain long after advocates return to the courtrooms but, until very recently, there has been no protocol in place for holding a trial by jury. From 18 May a very small number of new jury trials are being conducted, utilising three courtrooms each to ensure social distancing. However, the Lord Chief Justice warned the House of Lords Constitution Committee on 13 May that this will make only a ‘small impact’ on the ever-increasing backlog of cases, asking for ‘some imaginative thinking’ if the suspension continues much longer. With previous suggestions of radical, wartime measures, the concern some practitioners have with any sudden changes to a system which reflects centuries of careful and steady development, is that the changes could lead to unforeseen consequences.  

Jury trials will be ‘the most difficult to get back to normal’, the Lord Chief Justice Lord Burnett, told The Times in April. Ideas of judge-alone trials, such as the ‘Diplock Courts’ of Northern Ireland during the Troubles, were floated but dismissed as ‘very undesirable’, with Lord Burnett highlighting that jury trials were not suspended during the Second World War. Nevertheless, in the wake of COVID-19, jury trials have been suspended, and now the government is forced to consider how to bring them back in a meaningful way. In a recent interview (30 April 2020) with BBC Radio Four’s Today, Lord Burnett and the Justice Secretary, Robert Buckland QC, came together to discuss the potential for jury trials to return. Lord Burnett expressed interest in options such as jurors sitting in separate courtrooms linked by video, or reducing juror numbers down to as low as seven, as in WWII, to assist with social distancing. Meanwhile, Mr Buckland believed that work being done by human rights group JUSTICE to test mock jury trials over cloud-based video platforms merited ‘careful scrutiny’.

Fundamentally, these are difficult measures to swallow. The right to a trial by jury, a jury of 12 people, who attend court and view the evidence in the same way as the judge and defendant, is a right which has been built up over centuries through hard-fought battles. The words of William Penn - ‘mind your Privilege, give not away your Right’ - which he shouted to his jury, who were imprisoned for refusing to find him and William Meade guilty of unlawful assembly (much to the court’s discontent) ring true at this juncture. It is at least logical that 12 judges of fact are preferable to one (House of Commons Debate 18 November 2003, vol 413, col 670 per Mr Elfyn Llwyd MP), as a ‘rogue juror’ may be neutralised by the remainder. Similarly, in particularly long cases, or those with more nuanced issues, there is a clear benefit to having more jurors, each of whom brings their own perspective. By reducing the number of jurors in a case there is an unavoidable risk that this inherent ‘self-correction’ or ‘weeding out’ aspect of a large group of jurors, and the right to have such a tribunal, is lost.

On a statistical bell curve, a jury composed of 12 people is more likely to be representative of society than a jury of seven. Further, a group of 12 people is more likely to outnumber a juror with an extreme or esoteric point of view. The fewer the number of jurors, the greater the possibility of an individual juror’s voice dominating the group.

Lord Burnett told Today ‘plainly it would be easier to ensure a safe trial for everybody with social distancing… if the number of people involved was reduced’. While that is true – it would be easier – the risks involved in removing even a few jurors are simply too great. Though Mr Buckland poses a possible solution to this, virtual juries are immediately problematic. The ability to monitor a jury to ensure not only are they focused, but that there is no form of tampering or research is immediately removed. This, of course, may be mitigated by the presence of an extra clerk to monitor the jury if they are to still be within the court building, but this is not the only worry. Technology and internet connections, both within and without the context of the courtroom, are continuously the source of much dismay. If a juror misses, for example, the end of an answer, they may lose the impact of the entire point, whether for the Crown or the defence, no matter how many times they ask that it be repeated. But the most dangerous limitation of virtual juries was perfectly described by Joanna Hardy in her guest blog for The Secret Barrister describing the often-overlooked emotional interaction in the criminal justice system:

‘Those are not legal skills, they are human. It follows that they are not legal objections to mass online litigation – it is more delicate, more nuanced than that. These are the occasions when the way we communicate matters – not just the fact that we are communicating at all.’

The importance of a jury predominantly remains in the idea, the human idea, that jurors are able to examine not just the evidence, but the people. The opportunity to hear a quiver in the voice, see a raising of the eyebrow, feel the discomfort of someone giving evidence. These are all vital to ensuring a trial is fair. As Ms Hardy says, these are not legal objections, they are human, but they are no less important.

The drive to bring in measures as soon as possible is clear. At present there is an intolerable backlog of Crown court cases, with figures at the end of 2019 showing 37,434 outstanding cases, increasing daily. This was pre-COVID-19. By the time lockdown is lifted, this figure will be greatly increased, as will be the political pressure on our senior Judiciary to find a solution. When dealing with the criminal justice system, ‘solution’ equates to ‘cheap solution’. This political pressure will be the greatest potential threat to jury trials as we know them. A recent Bar Council survey reported that 31% of criminal barristers will not be in practice in chambers within three months, 87% will not last six months and 88% will not last a year. The numbers are staggering and show precisely why jury trials must return, but the measures put in place must be ones which ensure the integrity of juries and the justice system.

While removal of juries is not desirable in any way, an ‘option only in extremis’ per the words of Lord Burnett in a slight departure from his previous dismissal, Geoffrey Robertson QC suggested allowing a defendant to elect non-jury trial. A key worry is the hasty or pressurised decision (pressure brought to bear by the court or by the prospect of endless delays caused by the backlog of cases) which the defendant later regrets. On balance, this is a possible short-term solution in relation to less serious offences (perhaps some either way offences rather than indictable only), where the defendant is unlikely to be heard soon and gives clear consent to this method. This could be similar to the USA, where a defendant may waive rights to a trial by jury, with the consent of the judge and prosecution. This type of electable and consent-driven measure could help ease the backlog while limiting the risk of injustice through complex, nuanced or even human points being lost.

Trial by jury is ‘the corner-stone of British criminal justice’ (Auld Review, 2001, ch 5 para 1), however the practical limitations of the jury have forced the government to temporarily reconsider its constitution. The measures currently being considered, sadly, are not sufficient to ensure that there is no risk to our centuries-old justice system. However temporary the proposed new measures are intended to be, in uncertain times, there is always a risk that they could become permanent. Once the genie is out of the bottle, it will be difficult to put it back in.

 

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Sailesh Mehta

Sailesh Mehta is a barrister at Red Lion Chambers.

Mahesh Karu

Mahesh Karu is a barrister at 2 Harcourt Buildings.