We live in a world where, almost overnight, “social distancing” entered both our lexicon and our way of life. The constraints associated with keeping a minimum distance with one another have caused, and will continue to cause, significant difficulty for restaurants, pubs, bars, gyms, sporting events, concerts and more. Another established practice, however, also must address the reckoning that it too faces: the jury trial.

While the coronavirus pandemic temporarily brought jury trials in England and Wales to a grinding halt, jury trials had for some time prior been beset with pressures and challenges as a result of austerity measures. In January 2020, a report by barristers in the west of England found that Her Majesty’s Courts and Tribunals Service had cut the number of sitting days for courts in the region by 15%. This had led to “rocketing delays”, some courts being booked up for months on end. Amanda Pinto QC, chair of the Bar Council, noted that the problems were not confined solely to the west of England; indeed, at a national level, the average time from commission of offence to resolution at Crown Court increased from 392 days in 2010 to 525 days in 2019. According to Ms. Pinto, the issue was “fast becoming a national crisis.”

Jury trials did resume in May 2020 after a nearly two-month hiatus, however, this has generally taken the form of a small number of pilot trials in specially adapted courtrooms with a further delay anticipated before courts are once again operating at full capacity. The question therefore arises as to how to handle an alarmingly large backlog of cases; a report by Kevin McGinty, Chief Inspector of the UK Crown Prosecution Service, warned that the backlog could take a decade to clear and that delays will require “radical solutions.” There has been no shortage of proposed radical solutions. The UK Ministry of Justice is considering hiring large venues to create “Nightingale” emergency courts. The Lord Chief Justice Lord Burnett of Maldon, has suggested that either-way offences (an offence that can either be tried in the Magistrates’ or Crown Court and is generally less serious) could, if the suspect elects to be tried in the Crown Court, be heard by a judge with two magistrates rather than by a judge and jury. Other suggestions include that British courts follow the model used throughout much of Australia whereby a defendant has the option to choose between a trial by jury or by judge, reducing the number of jury members from 12 to seven, courts sitting in the evening and the increased use of video technology.

Use of jury trials in the United Kingdom has long been engrained in the criminal justice system and harks back to the days of Anglo-Saxan law. Nowadays, all trials in the Crown Court that involve either indictable offences or either-way offences will involve a jury. Either-way offences initially retained by a Magistrates’ Court also may be determined by jury if the defendant elects for a trial by jury in the Crown Court. It is only summary offences – the least serious type of offence, e.g., most motoring offences – that are dealt with not by a jury but by a judge or panel of lay magistrates.

While the use of jury trials is storied, it has not been wholly without exception. In 1973, the issues arising out of the Northern Ireland conflict led to the introduction of “Diplock courts”; criminal courts held without juries that were used for political and terrorism-related cases due to the fear of jury intimidation. In such cases a single judge would hear the evidence, sum up and then provide his or her verdict. The practice was abolished in 2007 with the advent of new legislation that instead provided for the Director of Public Prosecutions for Northern Ireland to certify non-jury trials for individual cases where the administration of justice might be hampered by use of a jury.

In England and Wales too, non-jury trials may be used in certain cases. The Criminal Justice Act 2003 provides for the use of trials without jury where a risk of jury tampering exists or where the case involves complex fraud. History ultimately was made in 2010 when the first jury-less criminal trial in England and Wales commenced; four individuals stood trial charged with conducting an armed robbery at Heathrow Airport. The prosecution had sought a trial without jury when a previous trial was abandoned after the receipt of information suggesting attempted jury tampering.  All four individuals were ultimately convicted.

Beyond sentiment and established practice, are there compelling reasons that one’s guilt should be determined by a jury of one’s peers rather than a judge? The right is not, for instance, enshrined in the Human Rights Act. Previous research has also raised questions regarding the ability of jurors to understand the issues presented by the particular case before them while the late Lord Denning (a former Master of the Rolls) stated that the random selection of jurors meant that no guarantee existed that a case would be dealt with by enough jurors of sufficient ability to reach a reasonable verdict. Other issues include the moral judgment of jurors – where a juror is so moved by the alleged sins of the defendant that he/she cannot separate the depiction from the presumption of innocence – and also the risks of impressionability and bullying of jurors. The use of judges, for instance, might avoid issues of juror prejudice in high profile cases that have resulted from saturation levels of media coverage.

Whatever the flaws associated with jury trials however – numerous as they are – can we be confident that switching to an alternative means of deliberation will not have a profound impact on the criminal justice system? Might switching to the use of judges have a telling effect – in either direction – on conviction rates? Is there something innately preferable to being judged by a (hopefully) broad spectrum of society and not one individual hailing from a member of the judiciary; perceived as an elite profession and not necessarily one renowned for its diversity? Do even proposed solutions that retain the use of a jury albeit in a different form – such as increased use of video technology – imperceptibly shift our criminal justice system? JUSTICE, a law reform and human rights organization, has arranged a number of fully remote virtual mock trials, taking feedback after each and incrementally improving their system, and concluded that the trials show promise. Yet even success here may need to be weighed against “Zoom fatigue” – a phenomenon (named after one of the leading video technology providers) in which video calls require more focus than face to face chats, require extra effort to process non-verbal cues and generate increased anxiety over silences. The effect may be magnified when something as serious as one’s liberty is at stake.

The authors of this post do not seek to put forward a preferred solution to the significant case backlog that now exists. The reality, however, is that the prolonged nature of the pandemic and social distancing efforts may well result in some changes to use of juries. Whether the consequences – positive and negative – from any such changes, and their overall impact on the criminal justice system, have been understood fully remains a question that only the advent of time will answer.