In a statement on 23 March, Lord Burnett said the decision would ‘ensure the safety of everyone in our court buildings’ during the pandemic. He committed to keeping the situation under regular review.
A judicial working group, chaired by Mr Justice Edis, will consider ways to re-start some jury trials once it is safe to do so. It will report to Lord Burnett, and includes representatives from the Law Society, Bar Council, Criminal Bar Association, HM Courts and Tribunals Service, Crown Prosecution Service, Prisoner Escorting and Court Service, Ministry of Justice, National Offender Management Service and Legal Aid Agency.
Lord Burnett initially said on 23 March that no jury trials should take place ‘unless it is safe for them to do so’.
Suggestions for reopening jury trials have been floated by several commentators, including moving to seven-member juries (as happened during the Second World War), holding trials in larger buildings such as cinemas to allow appropriate social distancing, and jurors taking part remotely. However, the buildings would need to be modified and there could be fairness issues with remote juries.
Criminal Bar Association chair Caroline Goodwin QC said: ‘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… 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.’
Goodwin also highlighted the need to ‘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’. She said: ‘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.’
