The rampant spread of coronavirus across the world has brought with it terrible consequences to every conceivable part of life – hospitals have scrambled to care for patients, individuals have been confined to their homes, restaurants and bars have closed and flights have been cancelled. The cogs of justice, however, also have not been immune from the reaches of the virus.
On 17 March 2020, the Lord Chief Justice of England and Wales, Lord Burnett, announced the adjournment of all new trials in Crown Court listed to start before the end of April that are expected to last longer than three days. The decision was made as a result of the large number of participants – judge, members of the jury, defendant, lawyers, witnesses and staff and the consequent risks of a trial not being able to complete. Lord Burnett’s announcement noted, however, that trials already underway would generally proceed in the hope that they could be completed.
Lord Burnett’s hope proved in vain; multiple high-profile ongoing trials fell victim to coronavirus. At the end of the day’s sitting of the court on 17 March, Judge Beddoe, presiding over the trial of three Unaoil / SBM executives accused by the Serious Fraud Office (“SFO”) of conspiring to make corrupt payments regarding oil contracts in Iraq, announced that the trial would be adjourned on 19 March for two weeks and resume on 31 March. On 23 March, the trial of three people accused of murdering police officer Andrew Harper was also halted after a third juror began self-isolating. The evidence in the Unaoil trial has at least concluded, with only closing submissions and jury deliberations remaining. Given the rapid spread of the virus a timely conclusion to the trial may not, however, necessarily materialise. This may not be the only SFO prosecution to be affected by coronavirus; the above-mentioned delay to Crown Court trials likely will cause a backlog in the court calendar which may be exacerbated if the hiatus period later is extended beyond the end of April. The trial of David Ames, charged by the SFO with three counts of fraud, may slip from its scheduled trial date of 15 September.
Many defendants, irrespective of the relevant prosecuting body, may now face a lengthy delay before their trials begin. Questions may be asked about the impact of a temporary suspension of justice, particularly when combined with the long-running nature of some complex criminal proceedings and the impact this may have on defendants; David Ames, for instance, was first charged on 17 February 2017 and his trial date of 15 September 2020 was agreed at a hearing back on 22 July 2019. At least as a matter of principle, suspects in the U.K. are entitled to a trial within a reasonable time. In practice, however, the Court’s interpretation of what is “reasonable” – particularly in cases involving complex fraud or bribery – can often stretch to many years.
The ensuing crisis inevitably raises the issue of remote participation via videoconferencing. In 1992 the first videoconferencing facility for prisoners was established, allowing prisoners at Norwich Prison to participate remotely at Great Yarmouth Magistrates’ Court. Many years passed before, in 2009, the first videoconferencing facility was established at a prison station, allowing defendants detained by the police to appear remotely the following year at courts in Kent and London. HMCTS, the executive agency tasked with administering U.K. courts and tribunals, continues to expand the use of videoconferencing throughout the justice system but this does not extend to remote participation of 12 jurors in each Crown Court trial.
In 2017, Transform Justice published a paper entitled Defendants on video – conveyor belt justice or a revolution in access? The author, Penelope Gibbs, notes that the use of video hearings for both defendants and prisoners steadily increased over the preceding ten years but that unresolved questions remained on the effect of a video-only appearance on a defendant’s ability to participate in the trial, the relationship between defendant and judge and their perceptions of both jury and judge. She raised the question as to whether virtual hearings ultimately affect the outcome of a trial, noting a limited amount of data available but a general perception amongst some legal professionals that bail would be less likely when the defendant only appeared via video.
Of course, the U.K.’s justice system is not alone in struggling to cope with the virus. On 13 March, Chief Administrative Judge Lawrence Marks announced that New York state courts would suspend new criminal and civil jury trials as a result of the outbreak. On 15 March, only six days after it commenced, a Los Angeles judge announced that the murder trial of multimillionaire New York real estate scion Robert Durst would be postponed for three weeks. New York was ultimately joined by many other states including Florida, Ohio, Texas and Virginia, prompting some legal experts to predict an overwhelming backlog of cases developing and a clear inconsistency with the right of defendants under the U.S. Constitution to a speedy and fair trial. Even the U.S. Supreme Court ultimately fell victim to the virus, announcing on 16 March that it would postpone its next argument session.
In contrast to the approach of Supreme Court, the D.C. Circuit Court of Appeals held its first teleconference arguments of the coronavirus era with judges and lawyers all joining remotely by phone. A summary of the day’s proceedings by Politico revealed a number of difficulties with the format, doubtless familiar to anyone familiar with multi-party conference calls; participants were dropped from the call, others struggled to hear one another at times and the call was littered with awkward pauses and indistinct sounds.
These technical difficulties alone raise doubts as to the prospects of remote participation of jurors en masse. Additionally, some experts have speculated over whether having jurors in separate rooms would impact a jury’s ability to make credibility assessments, noting that while individuals typically have difficulty functioning as effective lie detectors, their ability to detect lies does appear to improve with (effective) group discussion. Nevertheless, on 16 March a New York federal judge did take what was described as an unprecedented step and allow one ill juror to participate remotely in the U.S. trial of Ali Sadr Hashemi Nejad, an Iranian businessman accused of violating U.S. sanctions.
Perhaps unsurprisingly, the decision to continue with trials scheduled to conclude in three days or less did not survive the increasing restrictions on social gatherings and on 23 March, the UK was forced to join the majority of U.S. states and temporarily call a halt to all forthcoming jury trials. The date for resumption of normal service will be unclear. On both sides of the Atlantic – and indeed across the globe – questions may increasingly be asked as to the implications of a significant delay in access to justice for individuals.