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Eventual Reopening Crown Court Buildings for Live in Situ Jury Trials

From the CBA Chair; Caroline Goodwin QC

At the heart of any strategic planning for and the ultimate decision about when, and crucially how to re-open crown courts for the resumption of jury trials, will be the twin-fold primary concerns of safety for all court users in accordance with Public Health England guidelines, and the right to a fair trial.

The question of whether or not we can or should have remote hearings specifically designed for jury trials in any shape or form, is simply a distraction and specifically remote or virtual jury trials are just not envisaged by the Covid-19 regulations. The whole focus of collective strategy is and has to be about the resumption of live, in court, jury trials but only when safe to do so. That focus remains the focus and The Lord Chief Justice, Lord Burnett is not envisaging commencing jury trials until the situation is safe and we are able to manage jury trials in a Crown Court setting.

To be crystal clear, there is no substitution for both open and efficient  justice by having a live trial in a physical space with jurors, barristers, a judge, witnesses and defendants all able to engage fully and solemnly with the full range of verbal, non-verbal and visual cues.

Remote hearings involving screen only access strikes at the heart of the right to fair trial under article 6 of the European Convention on human rights which is put into play if defendants do not understand the court process or are not actively engaged.  Let me be clear – remote trials involving juries is simply not on the agenda, regardless of the exceptional times in which we have entered. There have been no amendments to any statutory provisions to allow for the possibility of remote jury trials.

The focus for now more than ever is a requirement by the Ministry of Justice for a fundamental investment back into the criminal justice system to make sure that all of the courts are open, all of them are functioning and that they are working to their maximum capacity. There are no short cuts, no playing around the edges with fantasies that technology will provide a short, medium or long term solution to the simple reality, that we need our all our criminal courts deep cleaned, re-opened and safe to work in under whatever safe spatial reconfigurations are required. If we can make the confined spaces of our key public services in schools and hospitals work for physical access so we will and can make our criminal courts work to ensure safe and secure access to a transparent justice system.

We entered 2020 with a criminal case backlog of around 37,500, a two year high and up by an unacceptable 13% on the year before, and that was before the last quarter of yet further delays and even before Covid-19 brought trials to a shuddering halt at the end of March. This latest pandemic serves as a painful reminder, that we must as a priority address funding to ensure the courts reopen, fully and safely, thus reversing fully the cuts to court sitting days that have, without question, exacerbated the extra delays building up since the pandemic commenced and trials suspended.

Even if remote jury trials in any shape or form were to be contemplated – and by this we mean jurors physically sitting independent of each other e.g. at home and not with their fellow jurors, and not where the trial is taking place – this whole area has not been adequately stress-tested.

The lack of safeguards relating to the wellbeing of juries and integrity of jurors sitting and operating independent of each other, and remotely, will bring into question the ability of any jury to operate in the way that we would ordinarily anticipate and expect. There are far too many opportunities for outside influences to exist, which would be completely unknown to the judge and may in certain circumstances leave individual jurors highly vulnerable and open to, at best influence and at worst intimidation and/or manipulation. The rigours of having a jury in the controlled and managed environment of a designated court building, are essential so as to be able to control the flow of information to a jury panel whilst receiving evidence.

Remote or virtual access to hearings by juries presents tangible security questions that can undermine the integrity of trials themselves. Remote hearings present an array of technical glitches that don’t simply slow proceedings but they threaten the security of deliberations and communications. How will a jury function when a simultaneous broadcast of information breaks down and only a certain number of jurors have received the evidence? How is that to be managed in a remote setting? This is even before we have considered the stage at which a jury would be sent to commence its deliberations. Rather than being in a room together this new departure would have jurors separated with communications only via laptop.

All of this presupposes that jurors have the requisite technology skills. Their technical abilities would need to be at such a level that their operation of equipment would not interfere with their ability to pay attention to and understand the evidence. No juror should be troubled by any form of anxiety.

There are so many imponderables that this pandemic should not be used as an excuse to rush into the great unknown where the risks are simply not worth taking, from what in effect would be a wholescale change,  volte-face to a tried and tested system that has worked for at least the past 800 years. This is entirely different in shape, form, and application to the receipt of some areas of evidence by way of live link and/or pre-recorded cross examination. And of course remember that before any of that was acceptable as a means of evidence being given safely it had been the subject of much academic debate and rigorous testing and is still being undertaken now in carefully considered pilot schemes.

The road to triggering a deluge of appeals for convictions under Article 6, or indeed other evidential lacuna is simply not a road worth taking – imagine the added drain in time, resources and public money which we can all ill afford if after any remote trial there were appeals; there would be a public outcry and faith in the criminal justice system dealt another lethal body blow.

It is far more prudent, better to wait a few more weeks and ensure that justice is delivered in a fair and properly convened court setting. There can be no compromise as regards the delivery of justice. Public confidence expects that the trial process will be proven and not some half-baked, rushed, ill thought out but technologically driven trial substitute. We have an existing jury trial process and bricks and mortar crown court nationwide network – let us the use the court estate to the best of its ability to provide a safe environment within which we can conduct and deliver criminal justice. What is fundamental in the present situation is that when members of the public have been summoned to appear for jury duty that when they do so the buildings are clean, hygienic, and safe. There can be no greater responsibility upon HMCTS to ensure that is in place. We need jurors to feel safe so that they can perform their public duty.

The Criminal Bar Association is working hard with senior judiciary, HMCTS and MOJ to prepare as early as, and as is safe, an exit strategy from the current court lockdown to ensure a return to live jury trials without which the criminal justice system will ultimately falter.

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