The Rt Hon The Lord Burnett of Maldon – written evidence (CIC0045)

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19



Memorandum from the Lord Chief Justice to the Constitution Committee of the House of Lords in response to its call for evidence on (a) virtual proceedings; (b) physical proceedings and jury trials; and (c) progress of cases.


Virtual Proceedings

  1. On 19 March 2020, four days before lockdown, I issued a statement encouraging judges in all jurisdictions to move immediately to conduct hearings using available technology and thereby reduce the need for personal attendance at court of participants unless it was necessary.  After lockdown that message was reinforced with more detailed guidance for each jurisdiction.  In all jurisdictions, judges, staff, the professions and others managed to continue with a substantial volume of hearings through remarkable innovation, hard work and perseverance.
  2. Hearings of various sorts had long been conducted with some or all the participants attending by telephone or by video link, but the technology available was patchy and often inadequate. 
  3. Dedicated video facilities were available in few courts and even telephone conferencing facilities were not widely available before March 2020.  Successful and urgent steps were taken by HMCTS to expand the availability of telephone conferencing.  It was used extensively by the District Bench in particular.  Courts and Tribunals also used commercially available platforms (Skype, Teams, Zoom) to conduct hearings.  This all happened whilst many judges, professionals and staff were having to work from home in difficult conditions and litigants in person were often joining hearings by telephone or internet with inadequate facilities and equipment.  Nonetheless, the judiciary was determined to continue with as much business as possible.  It is easier to wind back up from a reduced volume of hearings than to start again having stopped.
  4. Consideration of “virtual hearings” in the light of our experience so far during the Covid emergency needs to proceed with two things in mind.  First, such hearings have taken multiple forms ranging from all participants being on a telephone, video or online platform to “hybrid hearings” where some participants are in court and others attend remotely, often in each case for some of the time. Secondly, the ad hoc nature of what had to be done to keep the system running dictated the use of poor systems in difficult circumstances, often without the necessary staff support.  That experience bears little resemblance to the video/on-line system that is being developed as part of the modernisation programme.  That had reached the stage of local piloting but it was not feasible for HMCTS to roll it out widely immediately.
  5. It is vital for the administration of justice that HMCTS continues to be funded to complete that part of the modernisation process.  The next tranche of funding is under consideration by HMCTS and the MoJ with the Treasury.  The undoubted advantages in using such technology to conduct suitable hearings, in whole or in part, will be lost if money is not forthcoming.
  6. An interim solution (Cloud Video Platform) was already available in some courts and tribunals and has now been rolled out across all jurisdictions and into most courts.  It is superior to the straightforward commercially available systems but not as good as the video platform under development. It is also resource hungry in needing significant staff support to establish links and run the hearings.  It would be a mistake were we to be left with CVP as an end state system. 
  7. Early experience of the extensive use of telephone and online platforms was explored in two early snapshot surveys for family and county courts.[1]  The experience in the High Court, including the Business and Property Courts, and both divisions of the Court of Appeal, was positive overall. On the whole, better technology and staff support were available than elsewhere.
  8. Consistent themes emerged in all jurisdictions and at all levels in the early stages of expanded use of technology. The most common limiting feature of video/internet attendance is the quality of broadband connections.  Our experience is no different from the millions of people trying to conduct their lives and businesses by such media. Connections break or freeze; pictures or sound are lost or distorted.  This can make hearings slow, disjointed and difficult for all participants. The quality of the hearing is dictated by the broadband of the weakest link. Setting up connections is time-consuming and places a significant burden on judges who lack staff support.  To their great credit, judges have simply got on and done the task themselves when staff have been unavailable. Time is lost between hearings as connections are made.  Working virtually has proved to be more tiring for judges and practitioners just (I understand) as it did for teachers and students at school doing on-line learning.  The immediacy of a hearing, the scope for dialogue, the lack of normal unspoken signals that regulate interaction, even eye contact, all prove to diminish the quality of some hearings. The general, although not universal experience, is that remote hearings tend to take longer.
  9. Professional participants in hearings can usually be expected to have decent technology and broadband.  That is not true of many litigants in person who populate civil and family proceedings.  The physical circumstances from which someone is attending make a difference.  It has proved difficult for litigants and even professionals to find a quiet, dedicated and uninterrupted space from which to take part in proceedings.  Many judges worked from home with computers and screens that were not ideal for extended video hearings. Many judges, the District bench in particular, report difficulties in impressing on lay participants that the hearing, although by telephone or online, is a solemn legal proceeding which requires the behaviour one would expect in a court room.  There have been problems of maintaining control and increased bad behaviour and abuse.
  10. Overall, the experience seems better since CVP has been more widely available, almost all judges are back in court buildings and staff support has improved.
  11. In many cases the choice is between conducting hearings using technology or putting off hearings indefinitely.  As I have said before, we have taken three steps forward at great speed in using technology, and ad hoc technology at that.  We will almost certainly take one step back, but it is not realistic to suppose that we could or should return to the position as it was in February 2020.  Even using ad hoc technology, it has become clear that many procedural hearings, relatively short hearings and those involving argument rather than contested evidence can satisfactorily be conducted remotely.
  12. I suspect that the days of lawyers travelling for hours, waiting around and then taking part in a procedural or preliminary hearing will not return.  That said, it must be the interests of justice that determine whether any particular hearing is conducted using telephone or video for some or all participants.  Highly contentious witness evidence may be less likely to be suitable for video, but for many years the evidence of witnesses has been taken remotely in some circumstancesDecisions will be needed in individual cases about the extent to which that happens depending on the nature of the case, the witness and the evidence. 
  13. There are clearly cases where physical attendance of many participants is necessary particularly in the field of family law.
  14. Many of the practical difficulties with video attendance of all sorts are being reduced by the use of CVP and as HMCTS recruits and trains the staff needed to support video hearings. The video system under development by HMCTS will be better still.   The experience of all those involved in remote hearings, not only judges and lawyers, will inform the approach to the wider use of video in the future.

Physical Hearings and Jury Trials

Progress of Cases

  1. Jury trials were briefly suspended when the nation went into lockdown. Work began immediately on steps that could be taken to conduct jury trials safely.  The relevant Covid Regulations allowed physical attendance at court.  A jury trials multi-agency working group was set up under the chairmanship of Mr Justice Edis.  It developed a plan which enabled a small number of jury trials to resume on 11 May with rigorous social distancing.  Since then the number has grown steadily. It was perhaps inevitable that there has been much public focus on eye-catching solutions to the problem of how to get back to pre-Covid levels of jury trials and beyond.  The reality has been that more prosaic actions are delivering results.  Reconfiguring courts and installing plexiglass has been the key.  On 6 September 2020 HMCTS published a recovery plan for the criminal courts.[2]  The court room itself presents only part of the problem.  Careful thinking went into staggering the arrival at the court building of those involved, ensuring safe movement around the court building and arrangement for the attendance of defendants when in custody.  Temporary buildings are being places in some court grounds. The plan envisages that the Crown Courts will be able to conduct about 250 simultaneous trials by the end of October.  Nightingale Courts[3]  will make a contribution.  The greatest difficulty, on which works continues, is to deal with trials with a large number of defendants held in custody.
  2. The Committee will remember that the sitting days in the Crown Court were reduced by Government substantially for the financial year 2019/2020 having been reduced for the year 2018/2019.  The consequence was that outstanding trials in the Crown Court were growing in number even before Covid. To recover the situation the system needs to be able to conduct trials at a greater rate than was the case in the year to lockdown.  250 a week would roughly return to pre-Covid levels; 300 is needed to erode the backlog. Nevertheless, many cases where the defendant is not held in custody will be subject to long waits.  It is difficult to predict the likely volume of cases coming into the criminal courts in the future.   For a variety of reasons, we expect it to increase and also for the number of large and serious cases being prosecuted to grow.
  3. Subject to any further national shocks relating to Covid, the trajectory is to return to pre-Covid levels of jury trials within a few months, move beyond and begin to deal with the backlog. The judges of the Crown Court will continue to manage cases with a view to ensuring that those which will result in guilty pleas do so as soon as possible after they are received from the Magistrates Court.  But much slower progress can be expected, especially for the non-custody trials, for a considerable time.
  4. When I last appeared before this Committee and the Justice Select Committee I observed that there should be early thinking by policy makers and legislators about temporary changes to the way trials are conducted in the Crown Court should delays become intolerable.  There are serious issues of public confidence and fairness for all those involved in criminal proceedings when delays become long, all the more so when there are often long delays between the reporting of an alleged offence and charge. It is only then that the case enters the courts.
  5. The call for evidence touches on reduced jury numbers and judge only trials.
  6. Any interference with jury trials, even on a strictly time-limited basis, is a highly controversial and political matter.  Further analysis, in the light of experience of recovery and the flow of work into the Crown Court, should in time provide a reasonably reliable view about backlogs and delayAny political judgement about pursuing temporary measures to change the way trials are conducted must take account of the disadvantages of continuing delays for some types of trial and the likely support and opposition to proposals to speed them up.  Those are political judgements which are not for the judiciary.
  7. Three different options for temporary changes have been discussed. First, trials by judge alone; secondly, trial by a judge and two magistrates of “either way” cases (those that could be tried in the Magistrates’ Court); and thirdly a reduced jury, all strictly time limited.
  8. Trials by judge alone would undoubtedly be quicker than trials by judge and jury and present few problems with social distancing.  Their main disadvantage is that they would dispense with the involvement of lay people, which is the hallmark of jury trials.  Trials by judge and two magistrates of either way cases would retain that lay involvement to some extent and be quicker than those involving a jury.  They would also present few problems with social distancing.  The Chairman of the Magistrates’ Association has expressed support for this option.  Either of these options would undoubtedly provide a practical way of clearing cases more quickly.  The reduced jury numbers option has an historical precedent in the Second World War when, save in capital cases, the number was seven. It would enable some courts to be used for jury trials which are too small to use with 12 jurors even with practical adjustments and might therefore contribute to accelerating the trial of some cases.  All these options need careful thought and informed debate.
  9. In the civil and family jurisdictions the picture during lockdown was that urgent cases were given priority but that all types of case continued to be heard to a greater or lesser extent save for a number of well-known exceptions – e.g. possession actions. In the county court the number of final trials heard in the early part of lockdown was much reduced but has been growing.  The judiciary in the County Court and the Family Court substantially overlaps.  Many Circuit and District Judges (and their fee-paid counterparts) sit both in civil and family.  With reduced capacity during lockdown, and continuing into the recovery period, difficult deployment decisions have been made with the result that urgent family cases have consumed judicial resources at the expense of civil.  As courts that were closed have re-opened and fee-paid judges have become available the balance is being restored but will continue to be a factor. Detailed plans are in place, overseen by the Master of the Rolls, to cope with the work that will follow the recommencement of possession proceedings.  The President of the Family Division provided a comprehensive document[4] in June to assist in the recovery in the Family Court.  In both jurisdictions much work continues involving judges and HMCTS to recover the position with a view to reducing backlogs.


  1. The judges, HMCTS the MoJ and all those involved in the various jurisdictions have worked collaboratively to ensure that the administration of justice was sustained during lockdown, that those who needed urgent access to justice got it and that as much work as possible continued in the courts.  All are working hard on recovery.  Without the use of technology, rolled out at great speed and in very difficult circumstances, it would not have been possible.  Those parts of the system that had benefited from modernisation, for example were digitalised, have fared best.  The critical need to see the reform and modernisation programme through has been brutally exposed by Covid.








[3] The name has stuck.