Covid-19 is not just a global pandemic, but it is a catalyst for the rapid change of the court system that we have today. The use of legal technology has been introduced via a slow and steady incremental approach, but the abrupt social distancing changes has exposed the vulnerable flaws in our legal system. Whilst some necessary changes have been easily adapted and resolved, there remains some that are more difficult to solve, for example, do we need a jury?
The idea of removing the jury has led to a huge amount of resistance; however, as the lockdown continues to be extended the postponement of jury trials becomes increasingly unjust. The courts now need to learn to adapt to covid-19 rather than ignore it. Many hearings are being conducted via video-link, and there is a fear that a trial with an in-person jury would be like playing Russian roulette with people’s lives, possibly meaning that an online jury is the safest way forward.
In Scotland there have been numerous proposals to mitigate this fear and include; reducing the number of jurors, which is similar to the approach taken in World War II, using the public gallery in the court room to adhere to social distancing rules and empanelling the jurors remotely. Nevertheless, these actions have faced criticism and have been seen as a knee-jerk reaction and labelled a draconian approach that violates the fundamental meaning of the law.
Statistically it is clear that having the opinion of 12 jurors rather than just one judge, gives a much more rounded reflection of societies expectations and prevents any bias. But, also there are advantages on a humanitarian level and its important to remember that law, especially in court room, is about the people and human interaction, it would be disproportionate to take these drastic actions and not be able to compensate for the violation of a fair trial. Even if jurors were not removed, but jury duty was completed online we would still be risking the humanitarian approach, an online approach physically puts a screen between the defendant and the juror, but ultimately it loses that intimate connection and creates a distance which could potentially make the situation feel more like a TV show than reality.
A strong advocate for juries is Robert Buckland and he believes that jury trials can still go ahead, but in a slightly more unconventional way. He praises the work of Cardiff Crown Court, as ‘everyone is getting involved in literally measuring out how court centres’ can allow for juries to safely take place, even if this means that they can run a few trials in a couple of courts in the main building and alternatively a few more trials can take place in a public building close by. Unfortunately this doesn’t mitigate all the risk les though and could still put the jurors at unnecessary risk.
I think what this shows is that there is a real conflict and confusion as to how the courts will proceed as the pandemic continues, but also after it has finished. Buckland suggests that there ‘is now an appetite to make at least some of these changes permanent’, and no doubt the online court system has given a lot of people more flexibility and time, but we must remember that there is a fine line and ethically we must not cross this. There can be clear circumstances as to when a jury is compulsory and when it is not, for example when deciding on a car parking fine a jury will have little to no impact, yet when this area becomes a little more grey and where do we draw the deciding line? Do we put on a financial limit on it? Or is it based off the offence? These answers are unknown.
This is an anxious time for us all, but it is also forcing us to answer questions that weren’t even thought of before this and is pushing the legal profession to technology at a much faster rate than expected.
Expanding the Legal Perspective 