JUSTICE has been engaging extensively with HMCTS over the impact of COVID-19 on the courts and tribunals. We are concerned that courts and tribunals should continue to afford access to justice as far as possible during this emergency period. We have contributed to HMCTS thinking on principles for conducting fair video hearings, assisting in the design of questions for consultation and preparing a response described as “extremely thorough and useful.” This is being fed into cross jurisdictional plans for AV research, guidance and design of the technical solution.
JUSTICE pilot virtual mock trial
On 23 March all new trials were suspended, due to fears that they may contribute to the spread of COVID-19. JUSTICE has a number of concerns about this. For those remanded in prison, it means an indefinite period in which their liberty is being restricted without a determination of guilt. For those remanded on bail, it means increased uncertainty and the inability to make plans for the future. For victims, it means a long wait for justice and a lack of closure. Moreover, it means a rise in the backlog that criminal courts were already struggling with, delaying justice far beyond the lifting of restrictions, which will not be for some time. The same is true of civil and family court trials.
For these reasons, we think it is vital that solutions are found to ensure jury trials can restart as soon as possible. With it being likely that COVID-19 will require partial lockdowns and social distancing for some time, innovative solutions must be quickly explored.
One option is partially opening courts with social distancing measures in place. However, we do not consider this to be a realistic option. People must journey to and from court, around the court building and spend long periods of time sat in the close confines of the courtroom. For jurors, witnesses and defendants, the available waiting, deliberation and consultation rooms are confined spaces. Court staff, security officers, lawyers and judges must also all be present to serve a trial. The risk to public health, even with measures in place is extremely high and, in our view, cannot be seriously contemplated. Added to this risk are the limitations on sightlines and effective participation that would ensue if trials were separated across different courtrooms or buildings. We believe that virtual solutions are the only viable options.
In collaboration with Corker Binning solicitors and AVMI, the audio visual solutions company, we have been testing whether virtual jury trials are possible using a video platform already utilised in the courts and which can be accessed from home computers. We have held two pilot trials so far, with support from barristers, a retired judge and volunteers from our membership to play the role of jurors, witnesses and the defendant. We consider that the trials have shown promise, even providing improved sightlines in the court, which ensures that all participants can see and hear each other at all times. This brings parity and effective participation to the proceedings and suggests that any case – civil, family or criminal – involving witness evidence could be conducted in this way.
Click here to watch a recording from our third virtual trial that took place on 6 May 2020. The recording contains an introduction to the virtual court, the test trial and a jury deliberation.
Participants were asked to provide feedback following each trial. Some jurors commented as follows:
Professor of law at the University of Glasgow, James Chalmers:
“Having been very sceptical of the possibility of a jury deliberating electronically, I found myself converted by the set-up trialled by JUSTICE – the software worked very effectively and enabled jurors properly to evaluate the evidence and deliberate on it.”
Patricia Hitchcock QC, Recorder of the Crown Court:
“I was impressed with how much better my view of all the participants was than it usually would be for a juror in court, and by my ability to hear everybody involved.”
Professor Richard de Friend, former Director of the College of Law said:
“The overall organisation was highly disciplined, tightly timetabled and structured – far more so than was the case when I was a juror in a real trial.”
Shami Chakrabati, former Director of Liberty (2003-2016) and Shadow Attorney General (2016-2020):
“I approached your experiment with some scepticism… I had a good and close view of everyone, far better than had I been in a physical court. Crucially the defendant’s “box” was not a “virtual dock” but a simple visual square like all the others. I have no doubt that this will have contributed to a greater psychological “equality of arms” between him and the key prosecution witnesses in particular.”
Some features still need to be worked through to ensure that the technology works as reliably as possible and security concerns can be allayed. There are some cases that will not be suitable – such as complex, multi-party cases and where parties have vulnerabilities to which a virtual trial cannot adapt. As such we will conduct one further mock jury trial on 6 May, with particular emphasis on how to recreate the solemnity of the court, and the rituals that contribute toward it.
This project has been possible with the support of JUSTICE volunteers. If you would like to get involved in our work please join JUSTICE.
Exploring the case for Virtual Jury Trials during the COVID-19 crisis – an evaluation of a pilot study conducted by JUSTICE
JUSTICE commissioned this report by expert academics in this field, Professor Linda Mulcahy and Dr Emma Rowden, to independently evaluate the pilot virtual mock trials. The report has the following objectives: to evaluate how well the technology worked in the virtual trials; to compare the conduct of the trial with traditional face to face hearings; to consider whether there are any benefits to virtual trials; to appraise whether there were any problems that arose which might give cause for a legal challenge; and to evaluate what lessons might be learnt from the two virtual trials conducted to date.
The academic evaluation concludes that “In light of the various successes of the pilot and the potential to further improve on this pilot project it is argued that there is a convincing case for rolling out the pilot.”
JUSTICE Response to HMCTS Survey on Conducting Video Hearings (April 2020)
JUSTICE considers that any fully remote hearings taking place during the Covid-19 pandemic must be procedurally fair. We provide responses to questions posed by HMCTS below which draws on our research, including 18 responses so far to a survey of the experiences of the JUSTICE membership, across many first instance and appellate jurisdictions with remote hearings during the Covid-19 pandemic, our Working Party reports which have considered vulnerability and online justice processes, the experiences of Intermediaries for Justice, desk based research and the ongoing testing of a mock virtual jury trial simulation facilitated by JUSTICE.