Tom O'Malley

The resumption of jury trials for serious criminal offences is probably the biggest difficulty facing the courts system as we make our way out of lockdown. Social distancing will remain critical for controlling the spread of the coronavirus, but if there is one place on Earth where social distancing is not possible in normal times, it is the jury box. Many other participants and observers also find themselves seated in close proximity to one another throughout a trial.

Several competing interests must be balanced when deciding if jury trials should be resumed and, if so, the form they should take. The health of individual jurors must not be placed at risk. Courts must therefore be sympathetic to persons called for jury service who are apprehensive about serving. Social distancing must be maintained, and this probably means seating jurors in the body of the court rather than in the jury box. At the same time, jurors must have ready access to any documentation or exhibits that would normally be given to them and, crucially, they must be able to deliberate in private without feeling any pressure to reach a verdict more quickly than in normal times. Obviously, persons other than jurors must also be present at trial (leaving aside for the moment members of the public) and this, in turn, may necessitate allocating the various participants and observers to different courtrooms.

One possible solution would be to adjourn all jury trials until they can safely be resumed in the normal way. But this would scarcely be viable – certainly not the optimal solution – when other factors are considered. Accused persons on remand in custody remain entitled to have their trials held with reasonable expedition and in accordance with their constitutional rights to due process. Victims too have a right to expect that trials will proceed without undue delay, especially where a long interval has already elapsed between the date of the alleged offence and the projected trial date, or where there have already been one or more adjournments. Further, a wholesale adjournment of jury trials would lead to a “pile up” in the future, and possibly a deluge of applications to have trials prohibited because of prejudice or hardship resulting from delay.

JUSTICE, a British organisation that does tremendously valuable work in many areas of law, recently conducted four experiments involving mock jury trials where all participants joined the court by video link. The fourth is the most interesting and, I gather, in their estimation the most successful. That involved bringing a jury together in a physical hub where all necessary safety measures were in place. The judge (a retired judge in this instance), registrar, counsel, defendant and witnesses were in other (different) locations. All were visible and audible to each other. There was also a virtual public gallery. Apart from a few very minor hitches, the trial went remarkably well from a technical point of view. It was a fairly short trial involving one defendant charged with an offence of wounding contrary to s. 20 of the Offences Against the Person Act 1861 (still in force in England and Wales). Experts who evaluated the experiment and those who served on the jury were very positive about the entire exercise. Some remarked that they could hear and see the various participants even better than in an ordinary trial. I can vouch for that, having watched it online. Everyone could be very clearly heard and, as someone who can be hard of hearing at times, I can assure you that this is not something that can always be said about Irish courts where microphones are usually available but, from what I can see (or not hear), they are seldom used. Supreme Court, in particular, please take note! In any event, a full account of the experiment can be found on the JUSTICE website which has a link to the trial. The experiment was developed in collaboration with a firm of solicitors and an audio visual solutions company (AVMI) to whose website you will be directed to view the trial which lasts almost four hours.

The trial in the JUSTICE experiment was by any standards a straightforward one. The charge was equivalent to assault causing harm under our law, the allegation being that the accused had committed an unprovoked attack on the complainant outside a pub. There were four witnesses (including the defendant) and there was nothing complicated about either the facts or the law. There was no CCTV footage to be shown, but photographs and documents could be displayed on the screen, alongside the trial proceedings, for the benefit of those in the public gallery. There was even a very short trial within a trial in the absence of the jury for a ruling on the admissibility of a particular piece of evidence. The trial could therefore be completed well within a day (though because of time constraints, it ended without the jury being able to agree on a verdict). A virtual trial might not, as the researchers concede, be suitable where, for example, one or more witnesses qualified for special measures as would sometimes be true of sexual offence trials. Still, there may be some trials that could be run in this way.

Secondly, this was a mock jury trial, though very carefully organised so that it resembled a real trial in every essential respect, apart from the virtual element. This can be a very valuable research strategy for investigating and evaluating a wide range of jury-related matters. Such experiments have recently been described by Professor Fiona Leverick as follows:

“Mock juror studies simulate the experience of sitting on a jury by asking participants to read, listen to or watch trial materials. The trial materials used are generally fictional and significantly abbreviated in comparison with a real criminal trial. Studies vary greatly in terms of the extent of their realism and this in turn affects generalisability – how far their findings are likely to apply to real juries, deliberating in actual criminal trials.”

(Leverick, “What do we know about rape myths and juror decision making?” (2020) International Journal of Evidence & Proof (forthcoming)).

In those jurisdictions, including Ireland, where the questioning of jurors about their deliberations is strictly prohibited, simulated jury research is often the only realistic means of investigating the impact that certain factors may have on jury decision-making. One example that comes to mind is the study conducted by Professor Sally Lloyd-Bostock, a leading scholar in this area, on the effect of informing jurors about a defendant’s previous convictions. See Lloyd-Bostock, “The effect on juries of hearing about the defendant’s previous criminal record: A simulation study” [2000] Crim. L.R. 734. Simulated jury trials can be expensive to run and require meticulous planning and implementation, but in the right hands they can yield valuable results.

A third general comment is that we must be careful to place the present pandemic and the measures it has necessitated in proper historical perspective. Radical permanent changes to well-established legal structures and practices would scarcely be wise in order to deal with what will hopefully be a fairly short-term problem. There is, to be sure, a school of thought among historians of infectious diseases and pandemics to the effect that, far from politics and law merely responding to such emergencies, many political policies have been shaped in far-reaching ways by the imperative of preventing contagion. See, for example, Peter Baldwin, Contagion and the State in Europe, 1830-1930 (Cambridge University Press, 1999). Be that as it may, it is fair to predict that at least some of the measures we have had to adopt in response to the Covid-19 pandemic may endure, in one form or another, long after we have defeated the virus. Remote working is one such possibility. We must think carefully about which aspects, if any, of the legal system we would be willing to see permanently changed as a result of our experiences during the pandemic. Jury trial is scarcely one them, but that does not preclude the possibility that this form of trial might be conducted in a somewhat different way while the pandemic lasts.

Finally, there is one further measure that might help to reduce the backlog of criminal trials, though it should be adopted only with great caution and circumspection, and that is to offer an enhanced sentence discount for a guilty plea with the assurance that this will be additional to any credit due for other mitigating factors. Plea incentives must always be treated with caution. After all, a guilty plea effectively amounts to an acceptance that the prosecution has proved the charge beyond a reasonable doubt and it is also, of course, a waiver of the defendant’s constitutional right to trial in due course of law. Incentives to plead must always be surrounded by safeguards designed to ensure that defendants, especially vulnerable defendants, do not feel any pressure to plead to an offence of which they may not, in fact or in law, be guilty. A person convicted following a trial that was delayed for some appreciable length of time because of the Covid-19 restrictions may also be entitled to some reduction in sentence on that account, but that is a different matter.

• Tom O’Malley is a law lecturer and barrister with expertise in criminal law, sentencing, criminal procedure and constitutional law. This article first appeared on his Sentencing, Crime and Justice blog.