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Juries could be scrapped in some trials as the government attempts to tackle a backlog of court cases topping 500,000 while adhering to social-distancing measures.
Justice secretary Robert Buckland told MPs he was reviewing whether some “either way cases” – which can be heard in magistrates’ or crown courts – should be tried by a judge and two magistrates to help manage the reduced capacity in courts due to coronavirus.
But lawyers say the right to trial by jury is “sacrosanct” and have criticised the plans. So too has shadow lord chancellor David Lammy, who suggested the backlog could be eased by using lecture halls and leisure centres as temporary courts.
As it stands, defendants in either way cases who plead not guilty can request a jury trial in a crown court, and magistrates can also decide to send them for trial in the crown court if the offence is serious enough.
Changes to the either way cases could be limited to certain offences, or offences that carry a jail term of less than two years, Buckland told parliament’s justice committee on Tuesday.
The lord chancellor also said he was considering cutting the size of juries from 12 to seven members in some cases in a bid to tackle the “unprecedented challenge” of social distancing in courts.
According to the Criminal Bar Association (CBA), by the end of May there was a backlog of more than 480,000 magistrates cases and 40,500 cases in the crown court.
Coronavirus is likely to further impact on the criminal justice system, with the Courts and Tribunals Service estimating that the need to uphold social distancing of even one metre in courtrooms would reduce capacity to two-thirds.
Buckland told the committee: “For some months now, I have spoken about the experience we had in the war, where we reduced juries in the vast majority of cases to a minimum of seven.
“I’m still very attracted to the proposition. I think it has a lot of merit, because it preserves the principle while managing the number.”
While a move to smaller juries with two metres social distancing would increase capacity by up to 10%, the either way option, while a “last resort”, could boost capacity by as much as 40%, he said.
If legislation was brought in to change trials, it would have to be enforced by September in order to be effective, Buckland said.
But any changes would have to be “sunsetted in an absolute way”, he added, saying the alterations would not be permanent.
Susan Acland-Hood, chief executive of HM Courts and Tribunals Service, said that while the backlog of cases in the system was not the biggest it had ever been, reduced capacity due to coronavirus meant the pile-up of cases was likely to continue to grow without some kind of action.
To deal with the cases by expanding provision, the service would need to find 200 additional venues, she said, with some alternative venues having already been signed off.
Buckland has also suggested extended court hours – or even for courts to sit on additional days of the week – to help deal with the logjam.
But shadow justice secretary David Lammy said Buckland was “wrong to consider proposals to limit jury trials for certain offences”.
“The right to trial by your fellow citizens is fundamental to our democracy,” he wrote on Twitter.
“It would be wrong of the government to abandon this valuable tradition for short-term benefit.”
He added: “Instead, the government should co-opt empty public buildings, such as university lecture halls and leisure centres, to be used as temporary courts.
“Using large spaces, socially distanced jury trials can continue in a way that is safe. ”
The CBA has also previously slammed potential plans to change the jury system, saying the principle of trial by jury is “sacrosanct”.
In a post on Monday, chair Caroline Goodwin QC said: “The practice of jury trial is at the heart of our criminal justice system. There can be no erosion of this. We stand by that. We cannot support the suspension of the right to trial by jury. Justice would be diminished.
“The use of a judge and two magistrates dealing with triable either way offences would be a change for the worse, it would utterly transform the face of “Justice” and not in a good way. A temporary solution of this nature is just frankly shocking.”
Goodwin also said the move would not be “reflective of a diverse and vibrant society”, pointing out that just 12% of magistrates “have declared themselves as BAME”.
Meanwhile, Goodwin also said the backlog was the result of “penny pinching” and mismanagement, not the closure of courts between March and May.
A CBA spokesperson added: “The crown court backlog was growing at an exponential rate going into 2020 – months before Covid-19 was even known of. It stood by December 31 2019 at 37,434, up from 33,113 at December 31 2018, a 13% year on year rise.
“By March 22 2020, the day before trials were suspended in crown courts in England and Wales, the backlog had grown further again – nothing to do with Covid-19.”
The spokesperson said: “Covid is the equivalent of dropping iodine on fractures in the system – it has just made them more obvious.”