James Chalmers reports on the problems facing the courts in England, Wales, Scotland and Northern Ireland in the face of the COVID-19 pandemic.
The Coronavirus outbreak has led to a significant restriction in jury trials in the criminal courts. In England and Wales, it has been decided that no jury trial will start if it is expected to last longer than three days, while Scotland and Northern Ireland have suspended new jury trials altogether.
Change is inevitable. There are existing rules in place which allow criminal trials to continue if a small number of jurors fall ill, but those are of no use where the Coronavirus is concerned: if one juror falls ill now, the entire jury (and perhaps not just the jury) will have to be sent home to self-isolate. Anyone involved in an ongoing jury trial right now will be holding their breath to see if their case can make it to the end without that happening.
The new approach in England and Wales is a calculated gamble. It may prove possible to get through short jury trials without a juror falling ill, but this is unlikely always to be successful – and, when it is not, it represents a sizable group of people who may have been exposed to infection, with all the public health consequences that implies.
It seems inevitable that some trials will have to start again at a later date and it is not clear that running even short jury trials, or securing willing jurors, will prove sustainable as the number of COVID-19 infections rises.
The approach in Scotland and Northern Ireland is more robust, in that it avoids this problem. But it comes at a cost: it means putting off more trials, creating a greater backlog of work and holding more prisoners on remand for longer periods. In Scotland, that may be more sustainable simply because jury trials form a smaller proportion of the work of the courts.
Although there are certain crimes which can only ever be tried before a jury, the choice of whether to have a jury or non-jury trial in Scotland is otherwise entirely up to the prosecutor. An accused person has no right to “elect” jury trial in that jurisdiction. That may have allowed the senior judiciary in Scotland to feel more comfortable in halting jury trials entirely.
Will these measures be sustainable, and if not, what else could be done?
In wartime, emergency legislation has been used to reduce the size of juries temporarily. But that approach, while it may help in a time when the number of people available for jury service is limited, is a poor solution to the problems posed by the Coronavirus. The risk remains, albeit somewhat reduced, that a single juror will fall ill and the whole proceedings will have to be abandoned.
Another approach would be to use emergency legislation to restrict the use of jury trials. That might be marginally more palatable in Scotland where, in the absence of any right to insist on a jury trial, the importance of trial by jury does not seem to be culturally entrenched in quite the same way as in England and Wales (very different sensitivities apply in Northern Ireland, given the way in which non-jury trials have been used there). But, it is unlikely to be popular in any UK jurisdiction and potentially resisted strongly by lawyers. Scottish prosecutors may also have more scope to reduce cases so that they are dealt with by judges sitting alone, but subject to the lower sentencing powers available in such cases.
The reality is that we are in the early days of muddling through the consequences of the Coronavirus for the court system. Even if we could run more trials without juries, we are about to hit a storm of difficulties which will affect cases across the board – jury or no jury.
How often will lawyers and judges fall ill? Will witnesses be willing to turn up to court if they feel at risk of infection and are being advised by the Government to minimise contact with other people? And, if they are not, will securing their attendance be a priority for the police in the middle of a public health crisis?
All of this is exacerbated by concerns that practitioners have raised about the condition of the court estate in England and Wales, in particular, ranging from issues as basic as a lack of soap in toilets to court security processes which, if they create a backlog of people waiting to enter the building, are difficult to reconcile with social distancing.
Some of these problems may persist longer than the difficulty of selecting juries. If future testing mechanisms allow us to identify individuals who have been exposed to and developed immunity to the Coronavirus, we may in the future be able to select juries from the pool of people who are no longer at risk of coming down with the virus – and, depending on the size of that pool, the question of reducing the size of the jury might become a live one. But we cannot select the defendant or the witnesses so as to avoid this problem.
The business of the courts is likely to stack up as we address these issues. The one silver lining for those concerned with making this work is that the amount of new business may reduce: we are about to see not only to what extent social distancing reduces the spread of the Coronavirus, but whether it reduces crime as well.