The Covid-19 pandemic caused the temporary suspension of all jury trials in England and Wales. Many courts and tribunals were required to cease face-to-face proceedings, with the exception of some priority courts for essential hearings only. The backlog of cases waiting to be heard has since increased.

As lockdown measures begin to ease, restrictions on courts have also started to lift. Since June 2020, several courts have restarted jury trials, subject to social distancing measures.

Concerns about the backlog have seen the Government explore different ways to help courts and tribunals recover from the pandemic. Ideas discussed initially included the potential for trials to be held without juries. This caused concern from within the legal sector. The most recent government recovery plan does not include the adoption of trials without juries.

Measures introduced during pandemic

All jury trials in England and Wales were temporarily suspended on 23 March 2020. This was due to the risk posed by the Covid-19 pandemic.

On 17 March 2020, the Lord Chief Justice of England and Wales, Lord Burnett, had announced the postponement of all new criminal trials expected to last for more than three days. This was due to the risk of trials not completing if jurors fell ill. Trials that were already underway were advised to continue.

As the pandemic progressed, calls for further judicial action increased. Caroline Goodwin QC, chair of the Criminal Bar Association in England and Wales, said that the risks posed to court users, absent of proper procedures being put in place, was “too great”:

Court hearings should be limited to those considered essential for the time being, with others utilising phone and video-links where appropriate and subject to proper safeguards.

The Lord Chief Justice announced that all jury trials in England and Wales would be temporarily suspended from 23 March 2020. A limited number of priority courts would remain open for “essential face-to-face hearings” and subject to social distancing measures.

The Justice Secretary has said that thousands of hearings had been heard across all jurisdictions during the pandemic. Around 90% of the hearings had used audio and video equipment by the end of April 2020. 159 priority courts and tribunals had also remained open for physical hearings whilst adhering to public safety advice. This had not included jury trials.

Impact on justice system

Concerns about the impact of the pandemic on the justice system have increased across government and the legal sector.

In April 2020, the Institute for Government said that the pandemic could lead to an “unprecedented” backlog of court proceedings.

Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) published a report in June 2020 setting out the Crown Prosecution Service’s response to the pandemic. It estimated that trial backlogs in magistrates’ courts had increased by 32 percent between March 2020 and early May 2020. In the crown court, the estimated increase was 43 percent for the same period. This increase was exponential, meaning that the percentage increase by the end of May 2020 was estimated at 41 percent in the magistrates’ courts and 53 percent in the crown court. HMCPSI argued that social distancing measures “will not allow” the existing backlog to be reduced.

The Bar Council and Law Society of England and Wales also raised concerns about the backlog. In a joint statement, they argued that justice is being delayed for victims and defendants. The statement described jury trials as being at the “heart of the criminal justice system” and “vital to the rule of law”. They also said that the backlog was not new but had been exacerbated by the pandemic. The Criminal Bar Association said that some trial delays had been caused by previous government cuts to court budgets.

Lifting of restrictions

On 11 May 2020, the Justice Secretary confirmed that a limited number of criminal courts would begin to reopen. The courts, which included the Old Bailey and Cardiff crown court, would reopen with safety measures in place to allow for social distancing.

On 1 July 2020, the Justice Secretary confirmed that a total of 26 courts had resumed jury trials since June 2020. A further 16 courts restarted jury trials from 6 July 2020. This was also under special arrangements to ensure the safety of those involved.

The Independent reported that some trials were not expected to start until December 2021, amid concerns that victims may withdraw from delayed prosecutions.

Plans for recovery

On 1 July 2020, the Justice Secretary referred to the Government’s £142 million investment in courts as a ‘renewal for justice’. Her Majesty’s Court and Tribunal Service also published its recovery plan to show plans to help courts and tribunals recover from the pandemic. The Justice Secretary said that the Government was exploring ways of getting jury trials “moving at pace once more”.

To help with the backlog, the Justice Secretary also announced that ten additional sites for so-called “nightingale courts” had been identified by the Government. Confirmed sites include former court buildings and the Ministry of Justice headquarters in London. The Government aims to have the sites up and running by August 2020.

In addition to nightingale courts, the Government is considering extending court opening hours to increase the number of cases that can be heard. The Bar Council and Law Society of England and Wales have previously endorsed a multi-faceted approach to increasing capacity, such as more efficient use of court estates and greater use of technology.

The latest announcements followed earlier discussions by the Government about the potential introduction of trials without juries. During a House of Commons Justice Committee oral evidence session, the Justice Secretary indicated that options were being explored to help reduce case backlog. Options included reducing jury sizes and holding trials without juries for certain offences.

Professionals within the legal sector raised concerns about the concept of trials without juries. The Gazette quoted Simon Davis, the Law Society president, as saying that “extreme justification” was required for the measure:

There was a substantial backlog in existence at the time jury trials were suspended, contributed to by restrictions in sitting days, but not one which was seen as justifying moving away from jury trials themselves.

Mr Davis argued that reducing the size of juries and using non-court buildings for additional courts were preferable solutions to tackling the backlog.

David Lammy, the Shadow Justice Secretary, has also voiced his opposition to the principle of trials without juries, saying that “the right to trial by your fellow citizens is fundamental to our democracy”.

Next steps

As lockdown measures begin to ease, it remains unclear how the justice system will be required to adapt. The House of Lords Constitution Committee recently launched an inquiry into the constitutional implications of Covid-19. Amongst other things, the committee will be considering jury trials as part of its inquiry. Specifically, the committee will consider whether there is a case for changing jury sizes. It will also consider the benefits and risks of replacing juries with judges for certain types of offences. The committee will report its findings at the conclusion of the inquiry.

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