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Reply to: Judge-only trials would let courts get back to work

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In The Times this morning former High Court Judge Sir Richard Henriques advocates that the only way forward in terms of retaining confidence in the criminal justice system is to allow trials by Judge only.  He concedes that jury trials are the cornerstone of our justice system but states that this is a simple and economical solution which will avoid permanently eroding confidence in our criminal justice system.  

Whilst I respect and understand his approach, I totally disagree that this is the way forward. 

In reality the Court estate and the justice system have been neglected for many years and as a result there was a huge backlog of cases going into the lockdown in any event. 

Many Court rooms have sat empty for many months notwithstanding the backlog because the Ministry of Justice made substantial cuts on judicial sitting dates so that part-time Judges (Recorders) were barely able to sit at all.  This cost cutting exercise was preferred by the Ministry of Justice despite the huge delay in bringing trials to Court, causing a breakdown of confidence in the justice system for all parties, particularly the victims whose case would have been delayed potentially for many months or years. The same is true for those who are accused of committing crimes, whose lives remain in limbo as they seek to defend their name. Consequently, confidence in the justice system was very low before we got to where we are now.

Therefore I would say that whilst it would be difficult, it is certainly not impossible to conduct jury trials and maintain this essential pillar of our justice system which was not even abandoned during World War II although I accept the challenges now are different.

There are a large number of empty conference facilities including University buildings which have been closed down during lockdown.  If this Government can convert a building within 9 days into a hospital then it would not be difficult to convert some of these larger facilities into Court rooms which would provide for social distancing. 

Far bigger rooms could be used for trials with substantial space between all jurors and other participants. Such buildings would also have other larger lecture theatres/conference rooms where juries could deliberate and retire to, and large rooms for the other stakeholders to use.

Other arrangements could also be made to assist this process.  All parties may have to bring their own food and drink, but perhaps sitting hours would be adjusted so that perhaps the Court would sit from 10 to 3 with a short half an hour break.  Testing may need to be brought in for all parties engaged in the process but the reality is that whilst it might not be easy it is not impossible to get jury trials back going again very soon.

Sir Richard Henriques comments rightly that jury retiring rooms in the current court estate are far too small and compact to accommodate proper social distancing. However prior to lockdown, half the courtrooms in most Court buildings were not being deployed.  Why can’t an empty larger Court room be used for the jury deliberations?  They are not being used for anything else.  Whilst large parts of the Court estate are potentially unsuitable for jury trials incorporating social distancing, if the necessary adaptations are made a number of these Court buildings could be used in an innovative and different way to accommodate some jury trials. 

I understand that a working group has been set up by the Lord Chief Justice to look at how jury trials can be re-commenced which presumably are looking at the above.

Sir Richard Henriques is right, jury trials are a fundamental pillar of our justice system, however they are too fundamental to simply be abandoned without attempting to meet the difficult but not insurmountable challenges that maintaining the jury system poses. 

For far too long this Government has abandoned every single aspect of the administration of criminal justice from the complainants of the Police, to the Judges, to those involved in the Prison Service, to the prosecution lawyers and the defence lawyers.  Now is the time to demonstrate a proper commitment to all of the above stakeholders which is why it would be wrong to adopt Sir Richard Henriques’s approach.

Indeed my biggest fear is that by not attempting to meet this challenge we will open the door for the permanent removal of trial by our peers.


Paul Harris is the senior Partner of Edward Fail Bradshaw and Waterson