Along with the rest of public life, the justice system is tentatively starting to emerge from coronavirus lockdown. Jury trials resumed on 18 May at a few select Crown Court locations, including the Central Criminal Court in London (the Old Bailey), Bristol Crown Court, Cardiff Crown Court and Manchester (Minshull Street). If all goes well, the next courts to re-open should be Reading Crown Court, Warwick Crown Court, and Winchester Crown Court.
Although the resumption of jury trials anywhere is a positive first step, the reality is that full re-opening is likely to take several more months. It’s also a fact that there was a significant backlog of trials even before the coronavirus pandemic: according to reporting in the Telegraph, there were 37,434 outstanding cases at the end of 2019. This, added to the fresh backlog caused by coronavirus, means HMCTS are looking for a solution to the physical distancing required for public health reasons.
In many cases, this search for a solution has led to ramping up video hearings with a look toward implementing video trials. While the effort to keep the justice system moving during this emergency is laudable, we already have considerable evidence that introducing video into the justice system can present risks to defendants.
Video and TV Link Hearings Are Not New
TV link hearings first began to come into use when I was beginning my legal career back in the early 2000s. Initially, TV links were used to offer an alternative to producing defendants from prisons for short hearings, such as bail applications and interim hearings. Transporting defendants from prison can be a costly, time-consuming process requiring security escorts.
Defendants often prefer not to be brought to court, too. They can spend hours in travelling in a ‘sweatbox’, risk losing their cell upon return to prison, and sometimes cannot even be guaranteed they will be returned to the same prison they left.
Eventually, the rules were amended to allow sentencing over a link, with the defendant’s consent.
Connected Via the Internet; Disconnected from Each Other
You have probably been participating in more video conferences during lockdown, whether that’s for work or for social interaction. You may also have noticed these encounters can be uniquely draining, and communication can sometimes be strained. Numerous aspects of video communication contribute to this, but one of the most important is the loss of eye contact.
There’s scientific evidence for the importance of eye contact in facilitating social interaction. In hearings and trials, lack of it affects the relationship between the defendant and legal representation. It is extremely difficult to take instructions over a link – without proper eye contact, communication is not as good, trust is harder to build, and important points can be missed. Although recent video court trials have introduced “virtual rooms” to allow defendants to interact with their legal representation, the lack of eye contact and potential for the wi-fi to cut out still present problems.
Already Evidence that Video Hearings Adversely Affect Fairness
I have long suspected that defendants are more likely to lose a bail application if they appear on a video link instead of in a hearing room. New evidence from the University of Surrey, released early in May 2020, backs up this hunch: the report authors found that magistrates were more likely to hand down a custodial sentence to defendants in video hearings compared to in-person hearings.
For defendants, video hearings can alienate them from the proceedings. They can only see what the clerk points the camera at, leaving them confused about who said what, and what the result of the hearing is. This is exacerbated if the defendant has disabilities pertaining to hearing, sight, or cognitive function.
To those in court, the defendant appears as a disembodied head in a corner of the room. This can give the impression that the defendant is detached from the proceedings. In 2017, an unnamed magistrate told an interviewer from the advocacy group Transform Justice that defendants on video links often “appear disengaged and remote. They often give a nonchalant, poor account of themselves and we are left to infer that they couldn’t care less that they are disrespectful of the court”.
None of this is promising for the prospect of video trials involving juries.
Impact of Video Trials on Jury Deliberation
It’s difficult to conduct research into how juries reach their decisions because of the Contempt of Court Act 1981, which protects the confidentiality of jury deliberations. However, there is some research into how juries perceive video testimony. Since 1999, some vulnerable witnesses—for example, children under 18 years of age—have been able to give evidence via video link, usually from a different room in the same building as the court or another building entirely.
In practice, we already know that this kind of testimony presents challenges compared to testifying in open court. Some witnesses find it hard to give complete answers via video link. Lawyers find it difficult to cross-examine witnesses who appear this way. And there is some anecdotal evidence that jurors and magistrates find it hard to determine whether they believe someone who gives their evidence over a link. For example, in a 2014 study involving a mock rape trial, jurors who watched a claimant give evidence via video link said the testimony felt “a bit fake”.
Managing Jury Misconduct and Distracted Jurors
In addition to the potential of witness or defendant credibility being undermined by video, there is also the issue of jury misconduct. I cannot see how we can ever keep an eye on the conduct of jurors in video trials when it is already enough of a challenge in court.
We rely on them to police each other – jurors will often pass notes to the judge, expressing concern about the behaviour or views of another juror. Without this check, we can be sure that misconduct will be overlooked. At a more elemental level, it is also hard to ensure jurors are concentrating on what is being presented without their physical presence in court.
This last point was borne out in a recent experiment with video trial by jury where “[n]ot all participants seemed aware of the importance of avoiding distracting or problematic behaviour”.
It can be embarrassing when your small child or pet distracts you during a work meeting over Skype (even if that distraction becomes a global viral sensation). The consequences of such distraction can be much more serious in a jury trial.
Other Proposals for Moving Trials Along
Social distancing and public health measures are likely to prevent full resumption of jury trials for some time. What other solutions are on offer for ensuring justice is done in cases requiring a jury?
First, there is the obvious solution of implementing social distancing measures and extra cleaning/disinfecting into court. This is sensible and preserves the right to trial in open court. However, the need to reduce the number of people present in a building will still lead to delays and limit the number of trials it is possible to have. The backlog will continue to grow.
Next, it has been suggested that we reduce the size of juries from 12 to seven members. This was last done during WWII, owing to a shortage of people available to serve on juries, and applied to all trials except those involving murder or treason. Although reduction of jury size would facilitate social distancing measures by removing a few people from the courtroom, I have a feeling this change would have been retained after the end of the war if it had resulted in fairer outcomes.
Finally, judge-only trials have been mooted. Strangely, only judges seem to think that removing the jury will still result in fair trials. Advocates are generally not in favour, even if we move to an Australian-style system where the defendant is the only one who can consent to waiving a jury trial.
The maxim that ‘justice delayed is justice denied’ is true. Although I can see the need to expand the options available to judges when deciding whether a trial can proceed, I would be very wary of any expectation that trials conducted under hastily conceived video link procedures would unfold according to established rules.
While the pre-pandemic justice system needed reform, those reforms should have been carefully deliberated and implemented over a period of years, in close consultation with all stakeholders in the justice system. Reform under fire (or under threat of a deadly virus) can only have consequences we will regret for a long time to come.