David Lammy is right that a “decade of Conservative incompetence, court closures, cuts and reduced sitting days have combined with the pandemic to create a backlog of more than 54,000 cases”. Sadly, though, he is wrong to call for jury numbers to be reduced in order to clear the queue of cases snaking across England and Wales.
The arguments for doing so are surely weaker now than they were at the outset of the pandemic. For months, ministers seemingly scratched their heads before alighting on the idea of introducing plexiglass screens to courtrooms to provide a shield around each participant. Yet society is now accustomed to the protective measures that we have incorporated into daily life and the vaccine roll-out has begun in earnest.
Nobody in the profession is calling for jury numbers to be reduced. Last week, my chambers called for a two-week hiatus in order to tackle weaknesses in court safety. We called for stricter enforcement of distancing and face coverings; greater use of video hearings; the introduction of rapid testing at court; and a focus on the most pressing cases – the sort of ‘common sense’ the Prime Minister sees as a virtue and commends to the rest of us.
Lockdown three should have provided an opportunity for more jury trials to be conducted. Alongside vaccination, in theory at least, the requirement for most of the population to stay at home ought to have reduced the spread of the virus enough to allow the essential work of the courts to continue. But it is clear that people are not staying at home in the same numbers as they were last March. This is a direct result of three failures by this government: not pursuing a zero Covid strategy to tackle the pandemic; not providing adequate financial support to those who must isolate; setting only the vaguest definition of what counts as essential work.
We know that state intervention on the level seen during this pandemic is anathema to the Tories. It is why the support, when it did come, came too late for many. It is why countless others found themselves excluded from the self-employed income support scheme, including many members of my profession. And it is why many more have been forced to ignore official advice and keep working or face destitution. It is the same failure to fund the criminal justice system properly, particularly in this time of need, which shackles it now.
Again, Labour’s Shadow Justice Secretary David Lammy is right that more Nightingale courts – temporary buildings that can accommodate trials, such as town halls, theatres and a university, as we have seen – are urgently required. The logical extension of his argument, however, is not reduced jury numbers but long called-for investment.
The Ministry of Justice needs to think more creatively and find inspiration from other jurisdictions where juries remain part of the system. In Scotland, some juries have been stationed in cinemas and watched trials remotely. A particularly unpleasant irony revealed last week was that the former Blackfriars Crown Court, which was sold off to property developers in 2019, is currently being used to film courtroom scenes for the Netflix show Top Boy.
In the few trials in which I have defended during the pandemic, juries have continued to carry out their essential function without complaint. Inevitably, some jurors had to be discharged after they or someone close to them had symptoms or tested positive. But each time the remaining jurors were resolved to carry on and see the case to its conclusion.
Lammy has called for ‘wartime juries’ of seven until the pandemic is over. This is ill-advised. There is no definite end date for the coronavirus crisis, and who will tell us when it is officially over? By then, Tory ministers will be looking to ‘pay for the costs of the pandemic’. We will be told that there is ‘no alternative to austerity’, or whatever that discredited philosophy is rebranded as. Then the Justice Secretary of the day, at the Treasury’s behest, will rise to the despatch box and tell the House with faux regret that returning to a panel of 12 of your peers cannot possibly be justified.