In a series of Blog posts, members of 6KBW have identified a number of ways in which the COVID-19 pandemic has led to change in the administration of criminal justice, namely in relation to jury trials as presently conducted, the extension of audio/visual links and virtual hearings, through the offences created by the Coronavirus Act 2020 and in the context of extradition. As the country enters its second 3 week period of lockdown, this post seeks to look ahead to consider the possible next steps that the continued risk of infection by the virus may force on the administration of criminal justice in that most important but least socially detached component of the criminal justice system, the jury.
The Present Position
The main source of the law on jurors is the Juries Act 1974 which now operates in conjunction with the Criminal Procedure rules (especially rules 25.6 to 25.9 and 26.1 to 26.5), and the Criminal Practice Direction (CrimPD VI, part 26). Without going into the detail of those provisions, the following facets of the present regime are sufficient to highlight a number of problems that COVID-19 presents to the jury system as we know it:
- The basic rule is that all persons aged 18 to 75 who (a) are registered either as parliamentary or local government electors; and (b) have been ordinarily resident in the UK for any period of at least five years since attaining the age of 13, are eligible for jury service and are therefore under a duty to attend for service if summoned (Juries Act 1974, s. 1). The Practice Direction (CrimPD VI, para. 26B.1), states: ‘The normal presumption is that everyone, unless ineligible or disqualified, will be required to serve when summoned to do so.’ It follows that members of the public who are otherwise required to stay at home save where they have a reasonable excuse can still be compelled to attend their local Crown Court to sit in judgement. The Juries Act identifies a number of reasons for persons to seek deferment of or exemption from jury service, but none of those will apply to the majority of the population. Equally, section 9(2) of the 1974 Act permits a juror discretionary excusal wherever he/she can show to the satisfaction of the jury summoning officer that ‘there is good reason why he should be excused from attending’, but concern at the risk of infection from the virus is unlikely to be seen as such a good reason, save perhaps where a person falls within one of the groups identified by the Government as being particularly at risk (for whom the guidance on the Court Service website indicates an expectation that they will remain in self-isolation);
- Under the present rules (CrimPR rule 25.6), a jury consists of 12 persons. There is provision (rule 25.6(6)) for a panel of 14 jurors in certain longer cases, but that larger panel must be slimmed down to 12 after the prosecution opening and before the start of the prosecution evidence (rule 25.7(2). The minimum number of jurors permitted for a trial to continue thereafter is 9, and at such a level unanimity of verdict is mandatory;
- Juries Act 1974, s. 11(1) states “The jury to try an issue before a court shall be selected by ballot in open court from the panel, or part of the panel, of jurors summoned to attend at the place and time in question.” As the wording of this provision makes clear, the members of the jury panel have to be in court together. The rules for the empanelment of a jury (CrimPR rule 25.6), even in the form of the Criminal Procedure Rules that were amended by the Amendment No.2 (Coronavirus) Rules of 2020, and more particularly the Practice Direction (CrimPD VI 26E.1) require the jurors to be sworn in the presence of each other. Whilst Schedule 23 to the Coronavirus Act 2020 amends section 51, Criminal Justice Act 2003 to permit remote access to proceedings by other participants, this specifically does not include jurors. It follows that the jury have both to be in court and to be in court with each other;
- The principle that governs the keeping of the jury during the period between the close of the judge’s summing-up and their returning to court to announce their verdict was succinctly stated by James LJ in Alexander [1974] 1 All ER 539 at p. 426H: ‘once the jury retires to consider their verdict it should not separate, one from another and from the jury bailiffs. They must remain in the charge of the court through the bailiffs throughout.’ The difficulties with this requirement were recognised by the guidance for court users during the pandemic that was issued before the effective cessation of jury trials on 23 March 2020 by the Senior Presiding Judge. This stated: “The jury should always be 2m apart. Jury retiring rooms must be big enough to allow 12 jurors to sit 2m apart. This will mean that some courts are just too small. Use them as retiring rooms.” No further guidance was given as to how a jury’s retirement was to be managed in such circumstances. Anecdotally, solutions attempted included the use of a court room as a jury retiring room, and the use of a larger part of the court room for the jury when they had to be in court. Such measures were only viable once most other court business had stopped and where there were court rooms of sufficient size.
The realities of the present position and possible ways forward
As the brief review of the present regime identifies, for a trial of any length the present rules and procedures that govern the operation of the jury system are ill equipped to provide for compliance with the social distancing requirements that are inevitably to remain a fact of life in this country for a prolonged period even after the lockdown comes to an end. Court rooms and court buildings are not designed for jurors to sit 2m apart from each other, to have assembly and retirement accommodation where such distances can be kept, and where they can participate in trial proceedings where they are not put at risk through closer than permitted proximity to, or prolonged exposure to, others.
This reality of course extends beyond the court room itself to the logistical challenges of travel to and from court where, as will often be the case and is certainly the case for courts in London and other major cities, reliance on public transport is essential. The consequence in turn is that the risk of one or more jurors becoming ill during the course of a trial is a very real one, which again the system that proscribes very limited circumstances and time periods during which there can be reserve jurors and that proscribes limited numbers of jurors that can be lost before the trial as a whole becomes untenable are ill equipped to address.
In short, it seems clear that unless the system is itself altered further, through a combination of amendment to or suspension of aspects of the Juries Act 1974 and/or further amendment to the Criminal Practice Direction and Criminal Procedure Rules, jury trials, particularly of any length, will remain as unlikely to proceed as they are at present. What further measures could there be? Informed by discussion, not least by the Criminal Procedure Rules Committee and Ministry of Justice we consider a few:
- Jury trials could be replaced by judge- alone trials. The Criminal Justice Act 2003, ss. 43 to 50, introduced for the first time in England and Wales the concept of trial on indictment without a jury. There were two different sets of circumstances: fraud trials and jury tampering. The provision relating to fraud in this regard (section 43) was never brought into force and has been repealed (by the Protection of Freedoms Act 2012, s. 113 and sch. 10, part 10), without any replacement provision. The jury tampering provisions have come into use, but by their terms are heavily circumscribed and in no way apt to replace jury trial in any wider way. In addition, the Domestic Violence and Crime and Victims Act 2004 introduced judge-only trials in the case of sample counts, but those provisions, again are very limited as to how they can be applied. This underlines both the centrality of the jury system to our national system and expectation of justice. Indeed, judge-alone trial was a proposal very briefly floated and then rapidly squashed by the First Minister for Scotland earlier in the pandemic, and has not yet been openly discussed south of the border, suggesting a clear awareness of public resistance to such a move even in these extraordinary times;
- A variant on this would be to permit a defendant to elect to be tried by a judge alone. Under the present mode of trial provisions applicable to offences that may be tried in either the magistrates or crown courts (sections 17-27, Magistrates Courts Act 1980), a defendant may choose to be tried in the magistrates’ court rather than by a jury. Various factors may influence a defendant to adopt that course, one of which can be a desire to be tried the sooner. That same reason could influence a defendant to choose to be tried by a judge alone during the pandemic, rather than to wait for a trial at an uncertain point in the future, in a much more crowded court diary, thereafter. Such a measure could be extended to offences that at present can only be tried in the crown court, though there may be resistance to trial by judge along for the more serious offences in this category. Such a change would require alteration to the mode of trial provisions, and would need new rules to govern a trial without those aspects that apply to a jury, but could permit a trial where the participants attended virtually through links rather than in person, and with the social distancing provisions less of a difficulty. Such a move would also do less to undermine the basic right of a defendant to be tried by a jury of his peers.
- The number of jurors required for a trial could be amended. There are two ways in which this could be achieved:
- First, rule 26.6(6) could be amended to permit a jury to be composed of less than 12 from the outset, and for a jury of less than 9 to be permitted to return a verdict. Clearly the smaller the permitted panel, the greater the risk that illness could intervene to prevent a trial, but it would at least permit shorter trials to start and finish.
- Secondly, rules 25.6(6) and 26.7(2), which at present permit spare jurors in longer trials, could also be amended to allow for a larger pool of spares who could take the seats of fellow jurors discharged through illness as a trial progressed so that there remained a sufficient panel to deliver a verdict at the trial’s conclusion. Clearly, such a change, which would envisage potentially more than 12 jurors in court for the duration of a trial, would create its own significant logistical challenges as a larger number of people would need to be accommodated at the necessary social distance in the court room and elsewhere in the court room, and clear rules would be needed to regulate how many of those persons were to be a party to a verdict.
We do not seek here to express a view on whether any of these measures is desirable, or appropriate, what we do seek to suggest is that serious thought needs to be given to how criminal justice in serious cases can be delivered in the medium to long term. Viscount Hewart CJ said (in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 235) famously said: “…a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The very urgent challenge that the present pandemic poses is how justice can be done without inordinate delay, which itself gives rise to injustice, but in a manner in which those subject to the system, and the public at large, can continue to have confidence.
