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Crown Court trials have ground to a halt. Listings are a mess. Dates are being set for trials many, many months hence. A few trials have been heard since lockdown was imposed. The jury trial working group, chaired by Mr Justice Edis, has worked valiantly to provide a template allowing a small number of trials to go ahead in selected court centres, but these are the exception to the rule. Those trials have been monitored carefully. However, the overall picture is shutdown, gridlock and widespread uncertainty.
Those jury trials that have gone ahead have required painstaking adaptations. The trial I defended in Bristol recently is typical—three court rooms are employed instead of one as normal (one for the main actors in the trial, one for spillover and one used as jury deliberation room). Social distancing is maintained by spacing out the jurors. In my client’s trial, the jurors were dispersed throughout the court and their entry and exit carefully choreographed. Evidence on-screen is preferred to papers being handed around.
Schedule 23 to the Coronavirus Act 2020 allows for remote participation by video or audio link on the part of those giving evidence, under certain conditions, to be managed by the trial judge. The reports of those trials that have gone ahead are, for the most part, positive. The adaptations have permitted fair and effective trials to take place. Indeed, so concentrated has been the effort on these trials that a case heard at Warwick Crown Court was described as going ‘like a Swiss watch’ in the Law Society Gazette at the end of May 2020. I still have concerns, however. There has been no provision for testing of the participants and no study exists of which I am aware of the adequacy of the ventilation systems in the courtrooms.
This will depend on the official advice for the whole country. If trials are to get underway in any significant numbers, it is plain that much will have to be done in relation to two significant problems:
first, the space that any one trial occupies has to be reduced. The current flagship adaptations are not capable of being scaled up to any great extent
second, these adaptations are particularly ill-suited to multi-handed cases which would ordinarily see a number of defendants in the dock
Particular focus will fall on the efficacy of the Common Video Platform (CVP) being rolled out now. It needs to work and work well. Those managing our criminal justice system need to build in time for lawyers to consult with and take instructions from their clients in private if it is proposed that their clients are to appear remotely. The main unknown of course is this—what happens when a participant in a trial, be it juror or witness or lawyer, develops symptoms of coronavirus in the course of the trial? Will the trial be adjourned for two weeks? Will the jury be discharged?
In theory, why not? In practice, there are a number of high hurdles to clear. As anyone with working experience of the frankly sub-standard video link system in place in our court system these last few years will recognise, a wholesale improvement in the quality of the technology used by the courts is essential before virtual jury trials could be seriously contemplated. Reports on the use of the CVP have suggested there are significant teething problems. Assuming (big assumption) that questions of funding and implementation are overcome, the next step would be the development of strict procedural rules to ensure that participants in a virtual trial were not distracted, especially, but not exclusively, jurors. How would this be monitored? The trial judge cannot be expected to note the evidence, manage the trial and ensure that the 12 jurors are paying attention all at the same time. And finally, advocates would need training in the new technology and its implications for the presentation of cases.
I have an open mind to any proposal in keeping with the right to trial by a jury of your peers. There is an instinct in criminal practitioners that for justice to be done, it must be done face to face. It is an instinct I share. It has been my experience that special measures, far from improving the quality of prosecution witness evidence, have on occasion impaired it. That said, I have accepted an invitation to participate in a project that is conducting mock virtual jury trials and analysing the results. I am very curious to see these experiments play out. The history of the court system’s relationship with modern technology is a chequered one, but the past doesn’t have to dictate the future.
Interviewed by Barbora Kozusnikova.
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