By Richard Crump

Law360, London (May 5, 2020, 6:53 PM BST) -- England's judiciary is under pressure to resume jury trials amid a mounting backlog of criminal cases that risks swamping the criminal justice system, but lawyers are at odds over how far the courts should go to get juries seated again.

All jury trials across England and Wales were suspended in March due to fears they could contribute to the spread of COVID-19, causing the justice system to grind to a halt with courts not functioning and cases not being heard.

Since then, efforts have centered on finding viable ways to restart trials as soon as possible without endangering public health.

Robert Buckland, the justice secretary, has said he is considering measures that could allow jury trials to resume as early as next month, while Britain's biggest ongoing corruption case — which had reached its final stages before it was adjourned amid the virus — is poised to restart next week.

"The question of how to restart jury trials safely is one of huge importance," said Amanda Pinto QC, chairwoman of the Bar Council, which represents barristers in England and Wales. "Public confidence in the criminal justice system must be maintained and that means resuming trials in serious criminal cases."

To that end, a judicial working party made up of members of the criminal justice system and legal professions was set up at the end of March to consider the practicalities of resuming jury trials while adhering to social distancing and protecting the health and safety of court users.

The group is assessing a small number of crown courts that might be good options to initially resume jury trials because of their size and design. The results will be reported later this week and any solutions will need to be approved by the head of the judiciary, Lord Chief Justice Burnett.

As the pandemic will likely require partial lockdowns and social distancing into 2021, Burnett has said it could be necessary to look at more radical solutions to enable jury trials to continue, such as reducing the number of jurors from 12 to seven — something that hasn't happened since the Second World War.

Aside from reducing jury numbers, Pinto said the Bar Council, which sits on the working group alongside the Criminal Bar Association and Law Society, is considering ideas that include video-linking multiple courtrooms, cross-examining witnesses before the hearing and playing their evidence to the jury.

However, many existing courts — some of which are old Victorian buildings — are not designed to allow adequate social distancing. So the group is considering using larger buildings outside the courts, such as university lecture halls.

"The fundamental requirement is that any solution must not undermine effective access to justice for anyone in our society or reduce the right of a defendant to a fair trial," Pinto said.

Even before the coronavirus pandemic struck the U.K., the criminal justice system was laboring under the weight of over 37,000 outstanding cases by the end of 2019 — a two-year high and an increase of 13% on the previous year, according to official Ministry of Justice figures.

James Rossiter, a representative of the Criminal Bar Association, said the pandemic serves as a reminder that budget cuts reducing the number of days courts can sit, which has exacerbated delays caused by COVID-19, need to be reversed.

The biggest damage caused by the prolonged COVID-19 shutdown is "to the hundreds and thousands of people who are involved in the current case backlog that threatened to capsize the criminal justice system well before coronavirus was even on the horizon," Rossiter said.

"The courts clearly need to reopen for trial because the cases coming through the system and those already listed for trial are not being dealt with," Rossiter said. "Despite the lockdown there are still many crimes being prosecuted which will come to the crown courts despite the best efforts of magistrates courts to deal with what they can by virtual hearings."

The Bar Council has also warned that barristers have seen their incomes slashed by the shutdown, noting in a study of 3,400 counsel that 56% of self-employed attorneys cannot survive for six months and 31% of criminal attorneys can't survive for more than three months.

Defense barristers are ordinarily only paid when they do a trial, so, without juries sitting, it is practically impossible to earn a living, according to Pinto.

"Members of the legal professions, who play a vital role in upholding access to justice and the rule of law, have no income but considerable ongoing expenses," she said. "Without a rapid plan for the resumption of jury trials in significant numbers — or government support — the criminal Bar will not survive."

But there are concerns among some experts that it is impossible to introduce effective social distancing in physical courts without risking public health. Human rights group Justice, which recently ran a series of virtual mock jury trials, said it believes that virtual solutions are the only viable option.

The civil courts have already turned to remote hearings to keep cases moving through the system, and new video technology is now being rolled out to more than 100 criminal courts to enable participants in criminal hearings to take part remotely and allow crown and magistrates' courts to hold secure hearings.

Justice has been testing whether virtual jury trials are possible using a video platform already utilized in the courts and which can be accessed from home computers. The exercise is being evaluated by independent expert academics who concluded in a recent report that there "is a convincing case for rolling out the pilot."

"It is obviously quite a revolutionary approach to take. This is the only alternative to physical jury trials that has been worked on for the last two weeks, tested and independently analyzed," said Peter Binning, a criminal defense attorney at Coker Binning, which collaborated on the virtual trial pilot.

However, any move to virtual jury trials has been resisted by the Criminal Bar Association.

Caroline Goodwin, chair of the CBA, said that remote hearings involving screen only access "strikes at the heart of the right to fair trial" under the European Convention on Human Rights, which is put into play if defendants do not understand the court process or are not actively engaged.

"Remote trials involving juries is simply not on the agenda, regardless of the exceptional times in which we have entered," Goodwin said. "There have been no amendments to any statutory provisions to allow for the possibility of remote jury trials."

Even if remote jury trials were in the cards, the practicalities have not yet been adequately stress-tested, according to Goodwin, who pointed to the lack of safeguards for jurors sitting and operating independent of each other.

"There are far too many opportunities for outside influences to exist, which would be completely unknown to the judge and may in certain circumstances leave individual jurors highly vulnerable and open to, at best influence and at worst intimidation and manipulation," Goodwin said.

Although Binning accepts there are some cases that will not be viable using remote trials — such as complex, multiparty cases and where parties have vulnerabilities to which a virtual trial cannot adapt — he thinks the CBA needs to be more prepared to consider the range of options available to resume jury trials sooner rather than later.

"If someone was being influenced during a trial it would be quite hard to conceal that. There is always a risk that jurors in every trial can be approached at any time inside and outside the court," he said. "We need to use the time we have available to get the court system up and running. To do nothing is not an option."

--Editing by Alyssa Miller.

For a reprint of this article, please contact reprints@law360.com.