The COVID-19 pandemic; a scapegoat for the imminent collapse of the CJS
This piece was written by YLAL member Pietra Asprou, who has recently completed the BPTC and is a paralegal at LexisNexis UK.
The Criminal Justice System (‘CJS’) is at breaking point. However, as stated by Lady Hale, the Coronavirus pandemic presents ‘a golden opportunity’ to rethink how we conduct trials. Nonetheless, the recent proposals by the Government to temporarily abolish jury trials, or alternatively reduce the minimum number of jurors, have received significant backlash. This article discusses the reasons for such opposition and asks why these drastic reforms are now being undertaken.
Currently, the CJS is facing a backlog of 41,000 cases in the Crown Court. Pre-Covid, the backlog stood at 39,000. These are disastrous numbers, yet they are not a shock to those working in the system. In 2014 the backlog reached an astonishing 50,000 cases and as the Secret Barrister points out, no one was calling for the abolition of juries then.
There is no doubt that the Coronavirus pandemic has contributed to the backlog of criminal cases by causing the suspension of jury trials. However, to say that the backlog is ‘an unprecedented challenge’ caused by the COVID-19 crisis is simply not true.
The catastrophic backlog has been caused by decades of underfunding and sitting cuts to the CJS, something which the Government has frequently been alerted to. In 2019/20, Crown Court sitting days fell from 97,400 to 82,300, with approximately 40% of Crown courtrooms sitting idle.
On 23 June 2020, Lord Chancellor Robert Buckland QC MP, told the Justice Select Committee about the possibility of the temporary abolition of juries for triable either way offences, a move requiring primary legislation. Buckland explained that this would be an emergency measure to deal with the backlog of criminal cases following the suspension of jury trials amid the pandemic. The proposed measure would have meant that defendants lose their right to trial by jury and have their cases heard instead by a judge and two magistrates. Buckland justified the potential removal of this fundamental right by insisting that it would increase court capacity by 40%.
Alternatively, Buckland suggested that the minimum number of jurors required could be reduced from 12 to nine or seven, something which occurred during the Second World War; this would increase capacity by a mere 5-10%.
Both proposals were met with criticism from legal practitioners working in the criminal justice system. A poll carried out by the Criminal Bar Association revealed that 92% of criminal barristers were against the move to abolish juries.
On 22 July 2020, the proposal to abolish juries was shelved. The Lord Chancellor announced to the House of Lords constitution committee that he would no longer be pursuing plans to temporarily abolish juries, stating that ‘non-legislative’ options to the backlog would now be pursued.
The reduction of jury numbers, however, is still on the table.
Despite this shift in governmental approach, the arguments in relation to the abolition of juries remain relevant to the issue of reduction.
Does the reduction of jury numbers require legislation?
According to the Lord Chancellor, a move to reduce the number of jurors would not require legislative change but is that right?
In a guest blog for the Bar Council, Tana Adkin QC of Charter Chambers and member of the Bar Council’s Retention Panel outlines the history of the 12 member jury, which has developed since the twelfth century:
‘Over time, limits to the jury system have narrowed access to a jury trial. During the Second World War juries were reduced to 7 to take account of the numbers of men conscripted to fight overseas. The Criminal Justice Act 2003 has permitted trials without a jury in cases of jury tampering. The Domestic Violence, Crime and Victims Act, 2004 allows for sample counts to be tried by a jury and the remainder to be tried by a judge alone. Nevertheless trial by a jury of 12 randomly selected individuals has remained something that the public have faith in and trust to deliver justice.’
During the Second World War, the limits on the jury system were enshrined in legislation, namely, the Administration of Justice (Emergency Provisions) Act 1939.
So how is it that legislation would not be required now?
Buckland might, for example, draw parallels with the majority verdict procedure in order to gain support for the proposal but, again, this is enshrined in statute under s.13 Criminal Justice Act 1967.
It is clear from Tana Adkin QC’s summary above that variations may be made to trial by jury or jury numbers in prescribed situations but, again, all of those situations are prescribed by statute.
For those reasons, it is not clear that the reduction of jury numbers is a ‘non-legislative option’ and, for the reasons outlined below, there are a number of factors militating against it.
The primary issue with abolishing or reducing the number of jurors is that it will exacerbate the issue of diversity, thereby decreasing fairness. Enabling defendants to be tried by their peers ensures they are heard and judged by individuals who are representative of our multicultural and progressive society. The 2017 Lammy Review found that, on average, jury verdicts are not affected by ethnicity; it is the one stage in the criminal justice system where BAME groups do not face persistent disproportionality.
- the average age of a Crown Court judge is 52 years old and more than 40% are over 60;
- in 2019, 4% of Crown Court judges identified as being from Black, Asian or Ethnic Minority (BAME) backgrounds. A mere three Crown Court judges identified as black, yet approximately 20% of defendants who appear before the courts are from BAME backgrounds;
- in 2019, 12% of magistrates declared themselves as BAME;
- despite constituting only 14% of the wider population, young black men are times as likely to be given a custodial sentence compared to their white counterparts and constitute over 50% of young people in prison; and
- only 7% of the general population attended private schools, yet 74% of senior judges are privately educated, and 71% of senior judges attended Oxford or Cambridge.
By reducing jury numbers, we risk unrepresentative decision making, increased disproportionality and the removal of individual voices in society.
Research on the reduction of jurors
Research on the relationship between jury size and accurate decision making suggests that the chances of a miscarriage of justice increase as the number of jurors decrease. For example, Condorcet‘s jury theorem demonstrates that the larger the group of individuals, the more likely the jury is to reach a ‘correct’ decision. Research by Jeff Suzuki, Associate Professor at Brooklyn College, New York, indicates that the smaller the jury, the more likely they are to convict when they are less certain of guilt. Suzuki suggests that where there is an 80% chance the defendant is guilty, there is a 10% chance that a 12 person jury would unanimously vote to convict. Given the same odds, the chance of a six person jury unanimously voting to convict is more than 25%. Reasons for this include that a larger group is more likely to counterbalance individual prejudices and has a larger collective memory.
Of course, countless variables may alter the result but, nonetheless, the reduction of jurors is not a decision which should be taken lightly or without cogent evidence that fairness will be maintained.
Overall, research supports the proposition that a group of 12 jurors has a higher probability of reaching the correct decision than a group of seven.
Although there is huge pressure to find a solution to the backlog and good reason to avoid delay in all cases, the reduction of juries is not a proportionate response.
As noted above, the backlog cannot be ignored. With opposition to reducing juries, there are other options which should be considered.
In a joint statement, the Law Society and Bar Council have recommended a ‘multi-faceted approach to increasing capacity,’ which would enable safe distancing and increase capacity, without compromising justice. This would involve the greater use of part-time judges, increased use of technology for non-trial hearings, such as Pre-Trial Reviews, and additional court buildings, similar to the ‘Nightingale’ hospitals.
In the Criminal Bar Association poll mentioned above, 95% of barristers were in favour of the Government funding the use of additional buildings outside the existing court estate.
At the end of June 2020, the Government announced that approximately £142 million will be provided to the courts system ‘to speed up technological improvements and modernise courtrooms,’ which, combined with the £48 million already set aside for 2020, is the ‘the biggest single investment in maintenance of the court estate for over 20 years.’
This funding provides the perfect opportunity to progress the suggested approach.
The solution to the problems facing the CJS is not to reduce jury numbers or abolish them altogether. Such an approach has been emphatically criticised by the majority of those working in the system, particularly as the Coronavirus pandemic is not the root cause of the issues.
Justice should not be compromised in order to increase capacity but should be at the heart of every decision concerning the CJS. Nonetheless, the realisation that action must be taken to save the CJS is one positive to come from the Coronavirus pandemic; let us hope that a thorough investigation and appraisal of the issues will follow.