Alternatives to the jury trial – a threat to our system of justice
June 25, 2020
We are repeatedly told that we are all going to have to get used to ‘a new normal’. The Criminal Justice System, it seems, is no exception. Lockdown made jury trials impossible to conduct. Social distancing is making the attempts to restart jury trials very time consuming and difficult. The crisis comes following what was already a significant backlog in the Criminal Justice System. As a result, there appears to be understandable concern about how we continue with criminal cases to ensure justice is delivered. There has been much discussion about the alternatives to the normal jury trial, but what are the other options?
Remote jury trial
On the 9th April 2020, campaign group JUSTICE trialled a full remote mock trial. This involved all parties in separate locations, each with a device capable of being used for video conferencing and able to receive and display documents. The obvious issues arose; technical issues marred proceedings, though the ability to clearly see a witness’ face whilst they were giving evidence was said to have been of some benefit. In reality, the problem with having jurors all entirely unsupervised at remote locations is that no one knows what they are actually doing, watching or reading, and who might be with them. Perhaps it is these concerns, among others, which has caused this potential solution to fall away.
JUSTICE has more recently suggested the possibility of having a jury together in a single separate location, watching the trial unfold on a screen. The Lord Chief Justice, The Right Honourable Lord Burnett of Maldon, was not a fan when he spoke on the BBC Radio 4 programme ‘Law in Action’ recently, expressing the concern that a jury might feel merely a spectator to the trial, and as a result there may be a lack of engagement between the jury and the advocates, Judge or witnesses.
The Lord Chief Justice seemed to be keener on the idea of juryless trials for either way offences, recently saying “A possibility that I believe is worthy of consideration by policymakers is to legislate to enable, for a short time, the disposal of either-way trials in the Crown court by a judge sitting with two magistrates.” However, the lord Chancellor, whilst giving evidence to the Joint Committee on Human Rights in April 2020 said judge only trials would be “a disproportionate step” which could have wider consequences “we would all regret”.
In 1972, and in response to concerns about jury intimidation during trials of members of paramilitary organisations in Northern Ireland, Lord Diplock published a report. In it was a recommendation that such trials be conducted by Judge alone. The ‘Diplock Courts’ were then established by the Northern Ireland (Emergency Provisions) Act 1973. Incredibly, they continued to allow for automatic judge only trials in scheduled cases until the Justice and Security (Northern Ireland) Act 2007. Now, Diplock courts are no longer automatic in scheduled offences, but are still allowed in ‘exceptional cases’. A current example is that of ex-soldier Dennis Hutchings, charged with attempted murder arising out of an incident during the troubles and dating back to 1974, who awaits a juryless trial in Northern Ireland. He was due for trial at the start of March 2020, but his trial has been delayed as a result of the ongoing coronavirus pandemic. Perhaps Diplock courts aren’t the answer to all this, after all.
The Criminal Justice Act 2003 also provides a power for trial by judge. Section 44 allows for an application by the prosecution for a trial to be conducted without a jury where there is a risk of jury tampering. Two conditions must be satisfied in order for such an application to be successful; firstly that there is evidence of a real and present danger that jury tampering would take place, and secondly the likelihood of jury tampering is so substantial as to make it in the interests of justice to conduct the trial without a jury. In practice, this provision has only been used twice; once in 2009 in R v Twomey  EWCA Crim 1035 and once in 2017, when Mr Justice Goss discharged a jury and proceeded to complete the trial himself.
One suggestion has been that a defendant may choose to have a juryless trial, should they wish. It has been suggested this could be conducted by a Judge and two Magistrates. Canada, New Zealand and some states of Australia offer the defence the opportunity to choose a juryless trial. How would this work in the UK during the current crisis in practice? It occurs that this might result in pressure being placed upon a defendant, perhaps in custody for instance, to agree to have a judge only trial. It is not hard to imagine the choice such a defendant would face; wait months and months in prison for a jury trial, or have a judge decide your guilt sooner.
Reduced number jury
On the 30th of April 2020, as the country moved into the sixth week of lockdown, the Lord Chief Justice was quoted by the BBC as saying that he would support a move to reduce the number of jurors, as was the case during the Second World War. The Administration of Justice (Emergency Provisions) Act 1939 was passed as a war time measure reducing the number of jurors in criminal proceedings, save for murder and treason, or in other cases of such gravity that the Court felt a 12-person jury should be empanelled. This continued until 1947.
The problems with virtual trials are obvious and, I would suggest, insurmountable. The true options are juryless trials, reducing the number of jurors or working towards making trials safe for ‘proper’ juries.
The Criminal Bar Association’s position is as stated by Caroline Goodwin Q.C. on the 22nd June, when she wrote “We cannot contemplate change to the jury system. The practice of jury trial is at the heart of our criminal justice system. There can be no erosion of this. We stand by that.”
Juries are heterogeneous. The judiciary is not, and that may affect public perception of justice should Judges start determining guilt or innocence. In a report issued shortly before the lockdown began, the campaigning group Justice said that “the very low number of BAME judges in senior judiciary poses an acute challenge to the credibility and legitimacy of the judiciary, representing a challenge for trust and confidence with minority communities”. If that was a concern before, imagine how that trust and confidence may be affected if the same judiciary begin deciding the guilt or innocence of defendants.
The jury trial is, and should be, sacrosanct. Its removal, even as a temporary measure, should, in my view, be opposed strongly. To remove such a fundamental right for the sake of expedience during the current crisis is, I would suggest, an extremely dangerous precedent to set. It’s going to be hard cross examining through a mask, but we will have to make do!
The CBA survey on jury trials closes at 4pm Friday 26th June 2020. The survey is for all self-employed barristers. The survey can be found here.