Covid-19 - In defence of trial by jury

Garden Court is the largest set of barristers’ chambers in London with over 180 members of whom 18 QCs and 54 juniors specialise in criminal law. This statement focuses on the severe challenges we face as a result of the effect of the pandemic on the criminal justice system.

1. As a result of the suspension of jury trials due to the pandemic, various suggestions have been mooted in public, ranging from abolition of the right to trial by jury, to introducing a defendant’s right to be tried by judge alone, reducing the number of required jury members below 12 and trials conducted by remote link. We consider it imperative that the short to medium term consequences of the current crisis do not become a means of dispensing with or compromising one of the bedrocks of our democratic process, the right to trial by jury for serious criminal offences. Once gone it will never be revived. We are encouraged that the Government has to date indicated that there is no intention to remove this ancient right and that the Lord Chief Justice has announced the first tentative steps towards resumption of jury trials from 18th May.
    
2. The experience of face to face discussion is critical to the integrity of the process, particularly for jury deliberations, but also, between defendants and their lawyers. We support the use of remote connection for preliminary and administrative hearings, but, however sophisticated the means of remote communication may become, it can never substitute for the physical presence of the participants in court for the purpose of a trial. The integrity of the process cannot be secured remotely, no matter how good the technology, because interference with jurors and witnesses during the live proceeding cannot be eliminated. There is also a need to protect vulnerable defendants on bail from pressure from persons unknown and unseen, but present, during the course of remote legal conferences. Critically, defendants need to be able to consult fully with their advocates at every stage of the trial and face to face interaction is essential. We agree that remote communication has a role to play in that process whilst the risk from covid remains high, but it would be appropriate only if there is no alternative safe procedure by which the defendant can be produced at court in a manner which is safe for the defendant and custody staff.
    
3. While we understand the argument for a temporary reduction in jury numbers in order to facilitate safe working, a jury of 12 achieves the optimum balance between a diverse and representative sample of the population and the ability to achieve a fair collective decision. It also allows for a reduction in the number where that becomes necessary during the trial. Research has shown that reducing jury numbers adversely affects the fairness and quality of the decision-making process. The court estate was not being used to full capacity prior to the covid emergency, due to endemic underfunding. We are therefore not persuaded that there is insufficient accommodation within the court estate of sufficient size to accommodate trials with juries of 12 in compliance with the necessary public health measures at this time. Despite the escalating backlog due to suspension of trials, there is a vastly reduced flow of new work coming into the system. We consider it unlikely that reducing the number of jurors from 12 would make a significant difference to the practicability of the safe resumption of jury trials.
    
4. A right to elect trial by judge alone is, on the one hand, unlikely to have any significant impact on the number of jury trials while, on the other hand, it operates as a means of applying pressure on a defendant to opt for a procedure which saves court time, thus prioritising expediency over justice.
    
5. We are, therefore, fundamentally opposed to any dilution of or alternative to the right to trial by jury.
    
6. The impact on the criminal justice system of the current public health emergency cannot be divorced from the long term and well documented decline in the system brought about by chronic underfunding over years. This has led to unacceptable delays to jury trials, despite court rooms standing empty,  caused by cuts in the funding for part-time judges (recorders), who play a crucial role in keeping the system going and an enforced limitation on sitting days for full-time judges. It has led to squalid and unsanitary court buildings. For junior barristers in particular it has meant levels of remuneration and work pressure which are unsustainable. The covid crisis now threatens to push chambers which continue to depend on public funding over the edge. The fact that the chambers system operates through the public funding of self-employed practitioners, as opposed to the salaried remuneration of employees, is no justification for failing to provide sufficient financial support to ensure that the lawyers on whom the system depends are able to survive. The provision of bounce back loans simply increases the debt burden whilst failing to address the absence of income for the period of suspension of jury trials. Many at the more junior end of the profession will be unable to service that debt in the future, thereby exacerbating the reduction in criminal law practitioners, which we have witnessed in recent years. Without a cash injection, the Government risks the failure of the sector, a public service run by acknowledged key workers, in the short to medium term. In addition, the Government will need to commit the resources which will be necessary to tackle the back log in jury trials.
    
7. While we are concerned that jury trials should restart as soon as possible we consider it to be vitally important that the safety of all involved should not be compromised. This includes having regard to the safety of means of travel to court for all participants, including jurors, and the transportation of prisoners to and from court and the impact on the safety of the prison population and prison officers and prioritising sufficient measures to protect court and security staff and jurors while at court. Particular and urgent consideration needs to be given to facilities in the cells to secure the safety of both defendants and the custody staff working with them. We acknowledge the difficulties, but support the efforts being made to introduce safe systems of work for the criminal courts and have made detailed contributions to those, drawing on our collective experience as one of the leading criminal defence sets in the country.