The Round Up: Healthy Jury, Healthy Justice System?

11 May 2020 by Alethea Redfern

Two jury trials will resume at the Old Bailey this week in the first steps toward Crown court cases restarting around the country. It has been almost two months since jury trials were suspended on 23 March amid coronavirus lockdown measures.

In his announcement, the Lord Chief Justice, Lord Burnett of Maldon, began by affirming that “the practice of trial by jury sits at the heart of our criminal justice system.” In contrast, the Lord Chancellor, Robert Buckland QC, began his statement with a more equivocal comment about a well-functioning justice system being the hallmark of a healthy democracy.

Lord Burnett went on to explain that:

• the first courts in which new juries can be sworn will include the Old Bailey and Cardiff Crown Court;
• further courts are being assessed for safety and suitability against criteria developed by the Jury Trials Working Group;
• arrangements to allow social distancing to remain in place at all times include providing a second courtroom, linked by CCTV, to allow reporters and others to watch the proceedings, and another courtroom in use for jury deliberations; and
• court staff will be tasked with supervising entrances and exits, and ensuring that all necessary cleaning takes place.

He also clarified that the trials would be conducted with twelve jurors, despite having previously told the BBC that he would “support a move to reduce the number of jurors” and other radical measures to avoid an “unimaginable backlog”.

For the time being, this should quiet the early rumblings of a debate about whether the pandemic should prompt a complete reassessment of the role of jury trials in this jurisdiction. Late in April, Geoffrey Robertson QC recommended the Australian model, which allows defendants to opt for trial by judge, noting that juries are not available in most continental countries or international criminal courts, and that judge-only Diplock courts were introduced in Northern Ireland at the height of the Troubles. The Guardian’s legal affairs correspondent Owen Bowcott discussed the idea of a departure in greater detail, and was met with strongly-worded criticism in a letter from Jeremy Dein QC, who wrote: “Jury trial is the lifeblood. It must not become another victim of this crisis.”

Proposals to reduce the number of jurors, rather than doing away with them altogether, were considered on the Justice Gap and then this blog by Sapan Maini-Thompson. While acknowledging the practical merits of the plan, he stressed that it could undermine a defendant’s right to a fair trial, and proposed a number of procedural safeguards.

Most members of the legal profession cautiously welcomed the news that jury trials would resume. Bar Council chair Amanda Pinto QC said that she was “encouraged” by the decision, which had “not been made lightly.”

However, some commentators expressed misgivings. David Lammy MP, Labour’s Shadow Justice Secretary, called on the Government to do more by co-opting empty public buildings for trials, and streaming trials online. The Secret Barrister expressed concern that the Government was rushing the return to avoid an enormous backlog “caused by cuts but exacerbated by Covid-19,” and risking the “health and safety of jurors, court staff, lawyers, defendants and witnesses” in doing so.

For better or for worse, it seems the time for the “radical changes” entertained by the Lord Chief Justice in relation to jury trials may have passed. But many legal professionals want to emphasise that the justice system was in crisis before the crisis, and will be in even worse shape after it passes. The Lord Chancellor is right to say that a well-functioning justice system is the hallmark of a healthy democracy; whether we’ve got one is another matter.

In the News

• The Home Office wrote to the First Tier Immigration Tribunal with a thinly-veiled criticism of the rate at which bail has been granted to those in immigration detention in recent weeks. The letter requested written reasons to be given where bail was granted, and “[flagged] the pressures that the current Asylum support system is under.” The President responded in kind, emphasising the independence of the judiciary and the Home Office’s failings.
• The joint committee on human rights said last Thursday that legislation must be enacted to ensure the mass surveillance of personal data through the NHS contact-tracing app does not result in a violation of privacy and data protection before the trial is expanded across the UK. Harriet Harman, the chair of the joint committee, revealed that a parliamentary bill to protect the privacy of personal data is being drafted by counsel to the committee.
• Proposals to release some offenders from prison earlier than planned, which were due before the House of Commons on Tuesday, have been shelved by the government. A Whitehall source told the BBC that the move was no longer necessary as the coronavirus outbreak has eased pressure on the prison system with fewer cases going to the courts.
• Stalking support services and police forces have recorded a surge in cyberstalking involving social media, messaging apps and emails in the first four weeks of the lockdown.  
• Recent media reports have considered the extent to which employers may be breaching health and safety legislation by failing to provide staff with PPE and whether staff are protected under whistleblowing legislation if they speak out. Some commentators have also considered whether there is scope for sex discrimination claims arising from equipment which has been designed to fit the average man rather than their female colleague. Moreover, two doctors have launched an urgent legal challenge to guidance by NHS England on PPE. 

In the Courts

• VE v AO & Ors [2020] EWCOP 23: Mrs Justice Lieven ruled that it was in the best interests of the applicant’s elderly mother, who was suffering from terminal ovarian cancer, to leave the care home in which she was resident and go to live with her daughter immediately. The judgement reiterated that how a person dies can fall within the ambit of article 8, asserting: “The ability to die with one’s family and loved ones seems to me to be one of the most fundamental parts of any right to private or family life.”
• A City Council v M & Ors [2020] EWHC 947: the High Court was not prepared to accept submissions from a local authority to the effect a mother failed to protect her child from domestic abuse and violence perpetrated by her husband. The Hon Mrs Justice Judd considered, in particular, that the mother was a much younger woman, subjected to physical abuse and controlling behaviour, who spoke little of the language and had no family in a country relatively unknown to her. As such, the mother’s ability to stand up for herself and her daughter was badly compromised, and it was not right or necessary to suggest she was to blame.

On the UKHRB

• In the latest episode of Law Pod UK, Emma-Louise Fenelon discusses with Peter Skelton QC the changes in Coronial guidance and legislation since the outbreak of Covid-19, and the ways Coroners and practitioners are rising to the challenges of lockdown.
• In Part Two of a series of articles, Dominic Ruck Keene and Henry Tufnell argue that the challengers to  the Coronavirus Regulations have not shown that the measures are disproportionate in the circumstances.
• Paul Bowen QC argues the state owes a duty under Article 2 ECHR to investigate some deaths caused by Covid-19, both through inquests into individual deaths, and a public inquiry to address systemic issues.
• Charlotte Gilmartin summarises the Court of Appeal’s decision that, as the person who gave birth to the child, the transgender male appellant must be registered as the “mother” on the child’s birth certificate.
• Rosalind English signposts the Administrative Law Bar Association’s publication of a useful set of guidelines for conducting hearings by video-link or telephone (“remote hearings”), available here.
• Sapan Maini-Thompson considers the Lord Chief Justice’s statement that it will be necessary to consider radical measures such as reducing the size of juries in order to resume justice, and suggests appropriate procedural safeguards.