If we had to adapt for Covid-19, could it work having Judge alone Crown Court trials, or jury trials with less than 12 peers?
Let me start by saying I am not advocating for a system in England and Wales where there is no jury or a jury of less than 12 peers. I personally am in favour of staying as we are, but as these options are being discussed through necessity, I thought I could share my experience with you as food for thought.
From 2015 – 2018 I worked in the Cayman Islands, which as a British Overseas Territory has many similarities to England and Wales, but some differences too, as it has taken ideas and principles from all over the Commonwealth to establish its legislation and procedure and also has a nod or two to America.
With a transient population and the majority of its inhabitants being there on work permits, the jury pool is small. For example in 2017 there was approximately 21,000 persons on the electoral role, but the recorded population was approximately 63,000. Grand Court would aim to run two trial courts a week. Running this many trials, with this size of a pool meant it could only work by having a smaller jury. There are many other quirks I could go into like the fact you have to have 100 in a panel every time a new trial starts, crowded in one room to select a jury (honestly out of necessity to get jurors not know to any participant), or each side having an automatic 5 rights of veto without having to show cause, but I digress. The jury was a panel of 7. There could be a majority direction with 5 agreeing out of 7, and if jurors were lost through ill health etc the same applied as it does in England and Wales.
I actually found very little difference in there being 7 or 12 jurors in reality. I saw juries convict and acquit with and without majority directions. I saw diligent juries take notes and spend a significant amount of time in deliberation. I saw juries that were not so interested in it all. As a practitioner I found no disadvantage in the smaller panel and thought it worked in practice. Of course the ideal is for 12, for more diversity for example, but I cannot say I felt or saw any injustice from having a smaller panel.
Another difference was that a defendant had a right to elect a Judge alone trial or a jury trial. The Judges could be the permanent resident Judges who had made their home on the Island and who came from the bar or the Summary Court Bench, or they could be visiting Judges such as members of the Bench or Bar from England and Wales, or other Commonwealth jurisdictions. This was interesting as you would find yourself one week in front of Dame Linda Dobbs DBE or the next in front of a member of the Bench from Jamaica. As you can imagine that meant hearings felt different, but in reality it was still “the same same”.
There was a benefit in Cayman to elect a Judge alone trial. Whilst great pains were taken to ensure that a defendant or witness did not know anyone on the jury panel, that was quite tough in reality and there was a constant fear that a panel may take against a client because he was from a certain area on the island or that he knew so and so. Those on work permits sometimes decided they may not be treated the same as a local in a trial and would prefer the promised impartiality of a Judge over a perceived bias of jurors. There are many reasons one could speculate as to each choice made, and no reason need actually be given.
I currently can’t think of an example or need as to why I would advise a client to have a Judge alone trial in England and Wales, but there I saw the various pros and cons in those elections.
But the real question is how did they work? Well I have to say you do feel redundant at first as an advocate. As a prosecutor, the opening speech has very little impetus. The Judge has usually read all the statements and exhibits in advance. You will mainly be setting out the issues. Witness handling is the same although a Judge may be more involved as there is no jury to concern themselves with. They swap their hats if need be to decide voire dires and other legal submissions. Cross examination is the same, but you tend to move through everything including the points you wish to make quicker and without any repetition. I am not saying any of us aim to showboat, but there is certainly no scope to be dramatic in this sort of trial. Closing speeches are again very different. Everything is tailored to the audience and yours are well versed in all your usual sound bites, and often for me had thought of all my points and more and told me them before I could speak of them!
In many respects trials like this could be thought to be easier, as you have less ground to cover and in technical cases you could move quicker, but not always. You still have a defendant who is not versed in the trial process and so actually largely things stay the same as things are explained and go at their pace. So again I say “same same”. For me at 11 years call at the time, it sort of all felt familiar to trials before District Judges in my more junior junior years.
As with smaller jury panels, I saw justice administered. There were convictions, acquittals, and cases stopped at half time. Some local practitioners would prefer a judge for example on a Turnbull case for their ability to be so impartial and disciplined in applying legal directions.
With smaller juries or a Judge alone trial I never felt like I was working in a system that was unjust or contrary to anyone’s rights. I adapted and continued. I suspect this was largely because a Judge alone trial was a choice to be made and was not mandated. If the same came here as an adaptation for the unprecedented times we find ourselves in, I have no doubt it would work and we would all ensure that everyone’s rights, and the interests of justice were forefront in our thinking. My fear would be how we would argue to go back to 12 if it works just as well with only 7, because I still think 12 is optimal.
This article on ‘Judge alone trials in the face of COVID-19’ was written by Eleanor Fargin. To enquire about instructing Eleanor or any other member of our Criminal Team, please contact our Tony George our Senior Criminal Clerk via our switchboard on 01962 868 161 or email: firstname.lastname@example.org