The backlog of court cases, coupled with the current pandemic, has placed significant pressure on the judiciary and Ministry of Justice to seek ways to adapt and reform its current systems. While worsened by COVID-19, cases had been accumulating well before the pandemic, with 97 percent and 80 percent of the backlog in Crown and Magistrates Courts respectively pre-dating COVID-19 lockdowns. This is also supported by official figures stating there were 37,434 outstanding cases in England and Wales in December 2019. Therefore, when courts shut on 23 March 2020, the system was already struggling to cope with its caseload and the halting of all jury based trials only served to exacerbate the situation.
COVID-19 has, however, seen a period of increased support for innovative changes to combat this growing backlog of jury trials. The Lord Chief Justice has supported this, speaking of the necessity to “look at more radical measures to enable jury trials to continue” and proposing measures such as reducing the number of jurors to seven and taking trials online.
Unfortunately, as courts begin to reopen and welcome back jury trials, little of this innovation or desire to shift accumulated trials seems visible. This, however, should not detract from the significant work that has been put in by JUSTICE and other organisations to find alternatives and more efficient means to shrink the number of jury trial cases. A lot can be learnt from the COVID-19 period about possible methods to increase the efficiency and rate at which jury trials are held.
Multiple suggestions have been proposed, however, the three key methods which offer significant viability for the future are as follows:
Possibility of entirely virtual trials
Reduction of jury size
Recreation of Diplock trial courts (as seen in Northern Ireland)
By studying these, it is possible to then establish what route may be the most successful in increasing jury trial efficiency.
The prospect of virtual trials has been comprehensively tested by JUSTICE. Their report details both the positives and negatives of a virtual jury-based trial and outlines key points for consideration. While found to be generally a success, several problems have arisen that limit the viability of a virtual trial.
Firstly, the question of Internet connection and its unreliable nature makes the consistency and flow of a trial, as it would be in a court, difficult to attain. Furthermore, the nature of a jury sitting in their own surroundings also results in an inability for the court to control any external distractions. This becomes a major concern when considering privacy, for example, as it is difficult to prevent the jury from discussing case details to anyone outside the trial.
Problems also arise from the intense nature of the trial, compromising virtual trials’ viability as a method for all jury-based trials. Some can span long periods of time and prolonged concentration online has been found to be isolating and stressful for jury members. The report by JUSTICE concluded that, “It may be that this platform works fine for trials of short or medium length duration, but those spanning several weeks may prove to be less easily managed in this way”.
While COVID-19 has certainly accelerated the possibility of a shift to virtual and online methods, trial length should be a major factor when deciding whether to proceed with virtually. This method would be efficient in short trial situations but is not a comprehensive solution to tackle the case trial backlog.
Reduction of Jury Size
The second possibility, a reduction in jury size, has been proposed by the Lord Chief Justice. This signals a possible return to the seven-person jury as seen in 1939 during the Second World War with the Administration of Justice Act. An emergency provision, this permitted a reduction in jury size to seven for all cases apart from murder or treason and murder. This provision continued until 1947 and is a possible short-term measure to increase the rate at which jury trials occur.
However, the shrinking of a jury size brings with it statistical problems. Jeff Suzuki argues that a decrease in jury size leads to a higher conviction rate. For example, for somebody who is 80 percent likely to be guilty, a smaller jury size would increase the probability of conviction by 15 percent. This therefore makes a smaller jury-based trial less effective in producing a fair verdict.
Diplock Trial Courts
A third alternative is to turn to a Diplock-style trial. This involves judges trying cases without a jury and originated in Northern Ireland in 1973, lasting until 2007. As seen with the World War II Act, this is an emergency method that, while demonstrating viability, is not a solution. Among several limitations of this method are concerns of unequal representation of Black Asian and Minority Ethnic (BAME) groups among the judiciary (for example only 3.7 percent of magistrates identify as Black/Black British). Therefore, the eradication of jury-based trials would compromise the opportunity for many people to have a fair trial. However, this option is a feasible one for smaller and shorter cases which may have more minor offences and charges.
From these alternatives, we can see that no option is a perfect answer to the problem. While emergency measures seem like a quick fix, smaller jury sizes compromise the fairness of a trial and increase conviction rates, making these options unviable in the long-term. The most plausible option is conducting virtual trials as this method can be used to both eradicate the build-up of cases in the coming months post-COVID as well as be an option in the future if and when confronted with similar barriers. It is clear that the COVID-19 period has allowed for radical development in online jury trials which may be the answer to the looming queue of cases.