Justice suspended
Nothing better represents our idea of justice being not only done but seen to be done than the spectacle of trial by jury in the Crown Court. The arrangement of the physical space of the courtroom, the royal coat of arms behind the raised bench where the judge sits, robed and wigged, representing the majesty of the law; the dock where the captive defendant awaits the verdict of his or her “peers”, in the time-honoured words of Magna Carta; and those peers themselves, a dozen ordinary citizens doing their civic duty as jurors, ranged along one side in their jury box. Advocates, robed and wigged, take turns to present and test the case for the prosecution and the defence; witnesses are called and sworn to tell the truth, the whole truth and nothing but the truth (subject to the rules of evidence); and all of this may be watched by the public and reported by the press.
This marvellous if cumbersome process, which has evolved over hundreds of years, drew to a sudden halt on 23 March 2020, as the Lord Chief Justice of England and Wales ordered a suspension of jury trials by reason of the coronavirus lockdown. Other types of court hearing have, nevertheless, continued. Civil and family cases have, where possible, been conducted remotely, via telephone or video conferencing platforms of variable effectiveness and reliability. There have been questions about open justice and public scrutiny of these hearings, and about the uneven experience of participants (on both of which topics we and others have commented extensively).
Some physical courts have remained open, serving the immediate needs of urgent cases, including magistrates’ courts where lower level criminal cases have been heard, subject to social distancing, and not without difficulty (a matter on which Penelope Gibbs of Transform Justice has commented).
But in the meantime the Crown Court has been stuck in a sort of Narnian winter, awaiting its leonine thaw. A number of solutions have been proposed. To preserve personal distancing within a courtroom, we might resume trial by jury with a slimmed down number, such as the seven jurors permitted (except for treason or murder) under the Administration of Justice (Emergency Provisions) Act 1939 during World War II. Even with a full jury, it might involve using two court rooms, with video links, as justice minister Chris Philp suggested to the Commons Justice Committee in a session last week.
Another idea is that we dispense with the jury altogether, at least at the option of the defendant, as proposed by Geoffrey Robertson QC in The Guardian last month. The practice can be used in most states in Australia and can also be used in exceptional cases (e.g. where there is a threat of jury tampering) over here. It would at least avoid the delays inherent in waiting for full jury trials to become available again. But it would have to be optional: Philp assured the Justice Committee that
“there is categorically no question at all, under any circumstances, of the right to jury trial being removed. It is a fundamental right. It goes back centuries in our history, and it will never be removed at all.”
There remains, however, the possibility of doing in the Crown Court that which has already been tried for other types of case: remote hearings. Such hearings have been conducted in complex civil trials with witnesses, documents and multiple parties. Could such a method work for a full jury trial? The answer, we have now learnt, is that it could; but perhaps not as well as we might want it to.
The law reform group JUSTICE, with assistance from Corker Binning solicitors and the tech company AVMI, have staged (if that is the right word) three mock trials using a 12-strong jury, along with judge, counsel, and witnesses to see how a Crown Court could operate in the virtual environment. The first two were the subject of a report published by JUSTICE last month: Exploring the case for Virtual Jury Trials during the COVID-19 crisis.
The third took place last week. I was invited to attend it via the live-streamed virtual public gallery. I give an account of the experience below, after which I will make some observations on what I thought of it. Please note that the image is from an earlier mock trial, used by JUSTICE in their press release.
A trial on trial
A road rage incident, a wheel brace used to inflict unlawful wounding (contrary to section 20 of the Offences Against the Person Act 1861), plus evidence of cuts, bruising and a black eye: these are the ingredients of a suitably dismal everyday type of case in the Crown Court.
The difference is that this is the VIRTUAL CROWN COURT, according to the grey screen which is all that those of us watching from the virtual public gallery can see for an hour and a half after the third of a series of mock trials is due to begin. There were, we are eventually told, technical problems connecting one of the jurors.
Then at last the safety curtain rises and we can see something. We have no sound, but we can see people’s heads in little boxes. The jurors are arranged across the top of the display in three rows of four. Each has a number, but these are nearly invisible to anyone watching from the virtual gallery. The judge is in the top right corner, with a look of patient exasperation under his wig, and a background that looks like a sheet of wallpaper peppered with royal coats of arms. The court clerk or registrar is positioned underneath. Then across the bottom of the screen from left to right sit prosecuting counsel; then the defendant in a virtual dock; and then defence counsel. Like the judge, counsel are wigged and robed as in real life.
Eventually the sound comes on. The judge is explaining things to the jurors. Their boxes are a bit smaller but we can see them all in their separate rooms. One is wearing headphones. Another takes occasional sips from a big china mug. Every now and again one of the jurors drops off the grid, and when they come back, it is in a different square, so everyone is re-sorted, a bit like the coloured squares on a Rubik’s Cube. For a while there is even a spare, 13th juror, until they are quite sure the main 12 are all properly connected.
The Crown opens the case. The first witness is called, the alleged victim. He wishes to affirm but the wording has not been provided. The judge recites it for him to repeat.
When reference is made to an exhibit, this is displayed on our screen. It’s a picture of a wheel brace, the alleged assault weapon. For the jurors, they have to find the right page in their virtual bundles. They are asked to confirm that they can all see it. Questioning continues.
Then one of the jurors falls off the grid. We wait for them to be reconnected. As this happens, all their boxes swap round suddenly. Another twist of Rubik’s Cube.
Cross examination by defence counsel: just as she’s about to finish, there’s a request from the defendant to speak to her. The judge gives them a five minute recess to confer. The grey safety curtain screen drops back, only this time it says COURT IN RECESS.
When we come back we have lost another juror. Then they are back. But the volume has gone very quiet. Then it’s adjusted. It’s as though someone suddenly woke up and turned a dial on the amplifier.
Witness 2 is called. More sound problems. He is speaking but we cannot hear him. Then we can.
And so it goes on. The prosecution case ends and we begin the case for the defence. The defendant himself is called.
At one point the entire jury must leave (they disappear into a virtual waiting room) while a point of law is discussed as to whether the defendant has, by asserting that he is not a violent person, put himself at risk of having a previous conviction for threatening behaviour mentioned. He has. The judge says he proposes to direct the jury on the matter.
As the jury are recalled, a disembodied corporate voice says “Welcome to a Cisco Meeting”. A chair creaks. The jury reappear, rearranged once more.
At the end of the evidence, the judge gives the jury legal directions. To save time, he refers them the written directions in their bundle. Item 10. We can see them too, displayed on our screen. As the judge reads through, they scroll down to the relevant passage.
Prosecution and defence make concluding submissions to jury and then the judge sums up. By now, because we are running short of meta-time (the entire exercise was due to end at 3pm) , everyone is being brisk and not taking points. Then the jury go off into their virtual jury room, virtually led there by someone technical rather than the sworn jury bailiff who would normally undertake this task.
After they have left court, judge and counsel speculate on how long they might take to reach a decision. The judge observes ruefully that although the case had a late start, that sort of thing is easily replicated in the real world, for example when a police officer omits to bring a relevant document to court.
The jury indicate they need further guidance. They are called back. Defence counsel has lost wifi and is remaining connected only via the hotspot on her phone. The judge has been given the jury’s question. He gives further directions as to the defendant’s state of mind (intent) at particular times, critical to whether he acted “unlawfully” or in self defence.
The jury are given until 3.15 to deliberate. When recalled, they have a foreperson, but no verdict.
At this point the judge rips the veil of pretence and says, all right, for the purpose of this exercise, we’ll leave it there, so I’m not going to give a majority direction. But as a matter of interest, how many would have convicted? Seven. Acquitted? Three. The other two remained undecided.
The jurors are discharged, and wave goodbye one by one as their boxes go blank.
The last thing I hear is the judge, after removing his wig, saying “I’m not sure where we go?”
Then the screen goes blank.
Observations
This was a very worthwhile experiment, whose value did not depend on its outcome. We needed to know if such a thing could work, and the only way to find out was to try it. So full marks to JUSTICE for setting this up, and to everyone who helped.
Despite the technical hitches, there were some major positives. From an observer’s point of view, it was much easier to see what was going on, and to follow the case because (a) you can see everyone in court at the same time, study their face, watch their reactions to what’s being said by one of the other heads in boxes. (b) The provision of documents from the bundle as they are being discussed is also very helpful. Reporters do, in real life, get access to some information in advance; but the public, who might include academic researchers, justice campaigners or law students as well as the ordinarily curious, do not. From a transparency point of view, this was a big plus. It should be built into the system for all remote hearings which are (or ought to be) accessible to public view.
Nor do I share the anxieties, aired by the judge in his opening talk to the jury, about witness demeanour in the video. You can watch both witness and defendant as questions are being asked and answered; you can see them blink or twitch; you may not be able to see their full body language, or do full eye contact; but they can’t turn away from the camera. And you can hear them, clearly, and assess their veracity by the sound of their voice and the sense and consistency of what they are saying. On the other hand, there is no opportunity in a virtual court for that dramatic moment when the witness is handed an exhibit and asked to comment. (In this case, for example, the defendant could have been handed the actual wheel brace and asked to demonstrate how, exactly, he just happened to be holding it while confronting for a second time the allegedly aggressive victim.)
The question of whether witnesses or parties give their best when testifying by videolink is a different question, perhaps. For some it is a more daunting experience than being physically in court; for others, less. There is none of that intimidating eyeballing of another person across the room, none of that sense of a confrontation between accuser and accused. But perhaps a calmer investigation is possible. A lot of the problems associated with video link evidence are associated with technical issues or with the uncomfortable circumstances in which the person is having to participate (eg a room in a prison with inadequate sound proofing, and without proper access to a lawyer). The problems are not necessarily inherent in the nature of video communication. Moreover, video communication is increasingly a part of everyday life, using smart devices, much as the telephone eventually became for our ancestors.
Another aspect of the virtual court is the absence of formality and ritual. No one is standing up in the virtual courtroom. Although heads are in boxes higher or lower on the screen, there’s no sense of the physical hierarchy or distribution of power in a real life court. There’s no usher exhorting us all to be upstanding as the judge sweeps in through a special portal from the judicial corridor, and takes the bow of obeisance from counsel at the bar. The sense of anticipation as a witness is hooked up to the grid and appears in a box on the screen is not quite the same as the physical walk across the court room to take the oath at the witness box. Does this detract from the sense of formality that ought to attach to the proceedings? To be honest, I think it does.
As for the technical hitches, annoying as they are, in fairness that’s all they are: just hitches, which in time can be fixed. They are a bug not a feature of the virtual court. We have learned to expect, and to some extent put up with, a pretty high rate of failure with videolinks in court, but they are not an inevitable aspect of the virtual court. We should assess its success or failure on the assumption it works as intended, in the same way as we would assess whether a physical court room works on the basis that the roof is not leaking and the air conditioning hasn’t broken down yet again.
Despite my reservations, do I think the virtual Crown Court could work? Yes, I do, but only for shorter, simpler cases. The one tried was a good example: an assault case with limited evidence, few witnesses and only basic issues of fact and credibility for the jury to consider. A multi-hander complex fraud case with cut-throat defences and applications to sever the indictment would be a different matter altogether. But that’s not to say that some cases couldn’t be resolved in this way, or parts of them disposed in this way, if that could be done efficiently. But would it really be worth it? What would it cost to develop such a system with only limited capability?
My verdict is therefore a mixed one. It comes with a caveat. I am not a practitioner, though I trained as one, so my perspective is primarily that of an observer and reporter. I have seen on Twitter the comments of some other reporters who were watching the trial, but I would be interested to know the views of any criminal practitioners who happened to have been watching.
You can also see the reaction of a more artistic observer, Isobel Williams, in her Drawing from an Uncomfortable Position blog, here: Jammin’ for Justice.
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Main image: Photo by Sasha Freemind on Unsplash