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April 23, 2020

In light of recent advice from government on social distancing, it seems unlikely that there will be a return to jury trial “as normal” in the UK in the immediate future. We anticipate that some of the larger courtrooms can be set up to allow for satisfactory social distancing with a twelve-member jury. But most cannot. So, unless we countenance use of different locations to hold trials, something will have to give. Either jury trials do not proceed at all for the foreseeable future or an alternative is found.

The long-term postponement of jury trials has potentially profound effects for defendants, particularly those in custody, and for witnesses. Custody time limits mean that defendants should normally be detained for no more than six months pending trial. So judges right now are having to make difficult decisions – where a trial has been postponed because of the lockdown – whether to extend this detention or to grant bail to those accused of serious crime.

So what are the options?

Remote court hearings (i.e. by video link) have grown exponentially in the last few weeks for certain, normally short, matters. But there is a strong and highly persuasive consensus that jury trials should not be held remotely. Jury, judge, counsel and defendants need to be physically present in the courtroom to retain the essential parts of a fair process that would evaporate in a virtual hearing.

Nor, rightly, is there any appetite for trial by judge alone. The highly controversial “Diplock courts”, as they became known during their use in Northern Ireland, have no place here. (Although, for the record, they are allowed in a very few criminal cases, particularly where there has been jury tampering).

So, what is left? Would trials be more workable in current circumstances if the number of jurors was reduced?

This was the solution adopted during World War Two, under the Administration of Justice (Emergency Provisions) Act 1939, which came into effect in September 1939 and remained in force throughout the war.

The Act reduced the jury size from twelve to seven, although not in cases of murder, treason or where the judge so ruled because of the “gravity of the matters in issue”. I never took the chance as a junior barrister to discuss with older counsel how this system worked in practice, and there is little material online that I have found. But the fact that it lasted throughout the war suggests that it was well tolerated.

Of course, the reasons behind the 1939 Act were different. There was an anticipated difficulty in getting sufficient jurors, with conscription about to launch on the general population. Today, the difficulty is not in raising enough jurors but in accommodating them safely in court. But the issue is the same; jury trials need to continue.

There has been some academic research, particularly in the US, on the size of juries and on what might be the ideal number to give the best prospect of a fair result. Some of the research has proposed that a larger jury includes the following advantages:

  1. A counterbalance to prejudices that might be harboured by individual jurors;
  2. A better collective ability to recall evidence during discussion in the jury room;
  3. A more representative cross-section of society.

On the other hand, it has been suggested that a smaller number of jurors leads to a greater chance of consensus, with seven canvassed as the ideal number. Of course that might be because it is harder to be a minority of one than to have the comfort of numbers that goes with being in a minority of two or more. In other words, a single juror who disagrees might be more likely to acquiesce. That would be an unfortunate side effect of a smaller jury.

It is worth bearing in mind that juries do not always have twelve members. In the UK, we already accept verdicts from a jury that has reduced to nine because of the discharge of other jurors. It is rare, in my experience, but it is accepted practice. In various US states, juries may number as few as six. The US Supreme Court decided in Williams v Florida (1970) and Colgrove v Battin (1973) that a jury of six, as opposed to twelve, does not violate a defendant’s constitutional right to a fair and impartial jury.

In Ballew the Court decided that a jury of five members did violate that constitutional right. The Court noted research suggesting that smaller juries were less likely to have adequate deliberations, less likely to represent diverse viewpoints and less likely to produce accurate and unbiased decisions. But a jury of six, the Court repeated (reluctant perhaps to overturn the earlier authorities), was acceptable, although “we readily admit that we do not pretend to discern a clear line between six members and five”.

Magna Carta did not insist on twelve jurors. Tradition holds that it came about via a belief that twelve was a holy number, associated with the twelve apostles, the twelve tribes, etc. Whatever its origin, many of us will feel instinctive resistance to any change to such a long held tradition. But if it is a solution that might be satisfactory for the duration of the current crisis, then it merits careful consideration.

For what it is worth, my own micro-survey suggests that there would be support for a temporary reduction in jury size. Many consider nine to be the right number to reduce to. And that there is no good reason why such a temporary measure – since we simply don’t know how long it will last – should not apply to murder trials too. Or treason, for that matter.

Adam Vaitilingam QC