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26 May 2020

Virtual juries can help us in this crisis even if they are not a complete solution

There are no easy answers in this crisis; least of all to the problem posed by the growing backlog of jury trials. In December 2019 there was a backlog of 37,000 cases in the Crown Courts in England. Now it is said to be 40,000 and growing by 375 trials a week.

The limited number of socially distanced courts launched last week in London, Bristol, Cardiff and Manchester will not solve this problem. The scheme can only deal with up to 50 trials a week at most, about 15% of the normal case load. New cases are coming into the system every day so the backlog will not be reduced any time soon and is likely to grow.

The new guidance on charging practice published by the CPS and NPCC in March encourages police and prosecutors not to charge cases which are not considered urgent or of high priority from a public protection or public confidence stand-point. There is a serious threat to public confidence in the criminal justice system if serious cases are not prosecuted or are delayed for unacceptable periods of time. This includes serious fraud and corruption cases which are being very seriously delayed.

The three virtual jury trial pilots carried out to date by the law reform group JUSTICE, with the support of Corker Binning, AVMI and others, have demonstrated that this ground-breaking initiative can be a workable solution to get some of the less complex cases tried. It cannot be a replacement for jury trials in physical courts but it is a way of dealing with the backlog of cases to permit the small number of physical courts time to deal with the more difficult cases.

It is a big leap forward to have a fully virtual jury trial with all participants taking part from home. Criticism of this initiative has focused on the dangers of jury and witness intimidation and the problems of concentrating for long periods of time on screens. However, other courts are adapting to this new way of working and there is now a desperate need to find a workable system for jury trials to recommence all over the country to tackle the backlog and delays now besetting the system.

The pilot trials have all been independently evaluated by highly experienced academics from Oxford University (Professor Linda Mulcahy and Wend Tweeder) and Oxford Brookes (Dr Emma Rowden). Click here to read their report.

JUSTICE is now planning a fourth pilot in the next week or so, this time with HMCTS support and with all of the jury sitting in the same safe location within easy travel distance from their homes such as a local polling station or church hall. A standard set up of tablet and high speed internet connection would be provided which will solve the technical problems experienced to date. All other trial participants will take part remotely without the need to travel anywhere.

Of course this is a bold step to take and one which many will have reservations about. It is hard to imagine being able to replicate the necessary gravity and formality of a physical criminal court online but the pilots show it can be done. In the US this week it was reported that a form of jury trial in a civil case had taken place on Zoom. With Commercial Court trials moving ahead on a virtual platform and the Supreme Court hearing all its cases online, the next big challenge is to use this technology for at least some jury trials to help get us through the crisis.

Other contributors to this project include AVMI, counsel Mark Trafford QC, Rosina Cottage QC and Orla Daly together with His Honour Alistair McCreath and over 36 volunteer jurors.

For more information and to read the independent Oxford evaluation please see here.

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