Written Evidence from Dr Hannah Quirk, Reader in Criminal Law at King’s College London.

1. My research examines state responses to crime (in terms of the criminal law, criminal evidence and sentencing) and considers the interaction of these changes with the working practices of those in the criminal justice system. I have published in leading academic journals and generalist publications. I am on the editorial boards of the Criminal Law Review, Legal Studies and The Wrongful Conviction Law Review. I have a particular interest in wrongful convictions and have written about this in relation to the Northern Ireland conflict-related cases which were conducted before Diplock judges.[1] I have written and spoken about the proposals for curtailing jury trial in relation to the Covid-19 crisis in the newspapers, blogs and academic journals.[2] This is the main focus of my submission.

2. As with all areas of life, the Covid-19 pandemic has had a significant impact on the criminal justice system. Action is required urgently as trials are currently being listed for 2022 and judges are faced with a dilemma when the custody time limits have been exceeded long before cases are ready for trial. The delays are unfair to all involved and are likely to lead to the factually guilty being freed, may lead the innocent to plead guilty to get matters over with, and damage public confidence.

3. The crisis has shown that not all hearings need to be in person and purely administrative matters can be dealt with efficiently online with benefits to all parties in not having to travel.

• Defendants, especially those in custody, and legal representatives should be surveyed about any hidden effects of this change (for example, reduced opportunities for consultation)
• Access to courts for the public and media should be preserved. Lists need to be published with the opportunity for proceedings to be observed.
• There needs to be careful research into any effects of entering guilty pleas remotely.

4. Two proposals have been mooted for changing the decision makers in criminal trials. Sir Richard Henriques’[3] proposed suspending jury trials in England and Wales and reviving the judge-only ‘Diplock’ system that operated in Northern Ireland during the ‘Troubles.’ This received immediate endorsement from influential supporters.[4] Lord Chancellor Robert Buckland QC told the Justice Select Committee that that he is considering introducing legislation to allow trial by a panel of a judge and two lay magistrates for ‘either-way’ offences[5] (the arrangement that is used in hearing appeals against conviction from the magistrates’ courts).

5. Both kinds of trial would be quicker and cheaper than jury trials and enable the backlog to be reduced. I set out below some of the objections to doing this that are more difficult to quantify, but are no less important.

6. There have been two previous significant incursions into jury trials in the UK: the Diplock courts in Northern Ireland and the provision for cases following jury tampering in England and Wales.[6] The latter has been little used, so this submission focuses on what is known from Northern Ireland. Obviously the reasons for curtailing jury trial there were very different, but the underlying principles are broadly similar and the experience offers some cautionary findings.

7. Other countries function well without juries, they are not required by the European Convention on Human Rights,[7] and jury waiver by the defendant has been accepted in most common law jurisdictions.[8] Many countries (including most of the rest of Europe) have fair trials without juries but their criminal justice systems are inquisitorial rather than adversarial, and the training and recruitment of lawyers and judges is different. There are good arguments for both types of systems, but a pick and mix approach is potentially dangerous.
    

The Northern Ireland Experience

8. Following Lord Diplock’s recommendations,[9] the Emergency Provisions Act 1973 provided for judge-only trials for mostly, but not exclusively, conflict-related offences. More than 10,000 such cases were heard. They were very controversial and attracted criticism from international human rights and legal organisations.
    
9. The leading research into Diplock trials was conducted by Jackson and Doran.[10] They found that the trials were broadly fair but significantly different from jury trials.
    
10. All parties had to adjust to a very different way of conducting trials. This was untested and nobody was trained for this. Barristers had to change their style of advocacy overnight – addressing a judge is obviously very different to jury. More worryingly, counsel dropped arguments that might have won sympathy from jurors. It is a particular risk in a small jurisdiction (or circuit), that counsel feel obliged to tailor their submissions to the individual judge and hesitate to challenge judicial rulings through concern about prejudicing the verdict.

11. The behaviour of the judges changed when they took on the role of decision maker. Judges in jury trials should play the role of an umpire. Diplock judges became more interventionist; in particular when questioning defence witnesses. Between 1973 and 1979, acquittals fell from 15 per cent to six per cent, and the rate of guilty pleas rose from 59 per cent to 75 per cent. There was greater pressure on defence counsel to plea bargain and to plead guilty. Judges became more sceptical of (legitimate) claims of police abuse, convicting on the basis of disputed confessions obtained in the absence of legal advice and making no enquiry into the allegations of abuse. [11] Juries, with their broader social experiences may have been more sympathetic to such claims.
     
12. Diplock trials had an “adversarial deficit.”[12] There is nothing intrinsically wrong with an inquisitorial system, but there are risks in importing measures from another system. The increasingly managerialist[13] system in England and Wales has adopted many inquisitorial measures (curtailing the right of silence, requiring defence statements), but then holds an adversarial trial; arguably the worst of both worlds for the accused. Jury-less trials would exacerbate this.
     
13. There are concerns regarding a single person making such profound decisions: defendants and complainants may claim unfairness due to the characteristics of the judge (a man convicted of rape by a female judge; a white victim who thinks the black judge should not have acquitted, for example).
     
14. A single judge may be vulnerable to intimidation. Three judges were murdered during the conflict in Northern Ireland. Given the increased pressure judges face from the conventional and social media, they may subconsciously be influenced by the personal and professional implications of a controversial acquittal or conviction. If judges sit alone, it seems unlikely that metrics will not be devised to record and “improve” trial length and conviction rates. There is already pressure from certain advocacy groups about the “low” conviction rates for sexual offences. If they are given their individual conviction rates and how these compare to other courts, they may feel under pressure to ‘improve’ their rates, which could have disastrous consequences for innocent defendants. Diplock judges were conscious that their written judgments would be scrutinised by the appellate courts and “well-informed and potentially hostile critics”.[14]
     

Appeals

15. It was recognised that the Diplock system eroded defendants’ rights and to ameliorate this, those convicted by Diplock courts were given an automatic right of appeal. The Court of Appeal in London does not have the capacity to deal with this. So either the backlog will be transferred, or defendants will be told that they are getting a mode of trial that has fewer protections than was given to paramilitary suspects in Northern Ireland.
     
16. The success rate was half that of appeals from jury convictions (16 per cent against 32 per cent, 1987-1993).[15] This was partly because reasoned judgments from Diplock judges made it harder to challenge convictions because “inherent in a legalistic approach to the issue of guilt is the likelihood that fewer loose ends will be left untied in the process of judgment than in the event of a jury’s bare determination of guilt”.[16] They could also be used to uphold a conviction if the judgment made it clear that new evidence or argument would not have shaken the judge’s verdict. This fed into the sense of injustice that many already had about the Diplock system.[17]
     

Perceptions of Fairness

17. Only two per cent of cases are actually determined by a jury, but they serve an important practical and symbolic role in society.
     

18. This summer saw a wave of protests following the Black Lives Matter movement in the USA and the criminal justice system is one of the main targets of this organisation. The Lammy Review noted that juries were one of the few ‘success stories’ of the criminal justice system where there was no difference in outcome for BAME and white defendants.  Thomas found that juries are fair, effective and efficient and do not discriminate against black defendants.[18]
     

19. Magistrates are more representative (56% female; 12% BAME) than judges (32% of court judges are females; 7% BAME compared to around 15% of the general population) but there is less chance of representativeness on a panel of three rather than twelve. Judges and magistrates are likely to be much older than defendants (95% of magistrates are over forty), and from very different social backgrounds.
     

20. Those hearing cases regularly may become ‘case-hardened’ or cynical. Conviction rates are higher in the magistrates’ court (84.3%) than in the Crown Court (79.7%).[19] Juries are accountable to nobody. They simply return a verdict of guilty or not guilty without explanation. This is not always benign, but ‘perverse verdicts’ can provide an important safety valve against perceived injustice or an over-reaching government. For example, legal blogger, Matthew Scott noted that, whilst the legal case for prosecution appears strong, in relation to the Black Lives Matter protesters filmed pushing the statue of the slave owner, Edward Colston, into Bristol Harbour, it would be difficult to find a jury with at least 10 members willing to convict. It would be much harder for judges or magistrates to disregard the letter of the law.
     
21. The next tranche of defendants is likely to include those whose solicitors would not attend the police station due to concerns about a lack of personal protective equipment. At best, they would have been represented by telephone or video link. Those remanded in custody have been locked in their cells for up to 23 hours a day with no visits, work or education, with no idea of when their trials would go ahead If they find their trial is before a judge alone, they may understandably feel that have not been dealt with fairly. Some have suggested making judge-only trials something defendants could elect. At present, this would essentially offer Hobson’s Choice to defendants who are remanded in custody.
     

Alternatives

22. The difficulties are immense but alternative measures should be tried, such as using university facilities, hotel conference facilities or a purpose-built site as was used for the Hillsborough inquests or the so-called Blackstone courts. Introducing an untested, hybrid tribunal without consultation or research is taking risks with what Sir Richard Henriques called ‘the cornerstone of the British criminal justice system’. [20]
     
23. The Committee said in its report that

9.We would also warn that changes introduced in response to an emergency should not be regarded as irreversible if they can be demonstrated to have impeded access to justice or resulted in less than optimal outcomes for those whom the justice system exists to serve.
 

24. The suggestion is that any suspension of jury trials would be a temporary measure to reduce the backlog caused by the lockdown. In practice, this is unlikely to happen. Judge-only trials are speedier and cheaper, which will appeal to the Treasury and Ministry of Justice. Once ceded, rights are rarely reinstated. Once the principle of removing juries has been conceded, it would be easy for the government to raise the threshold for cases that could be considered without a jury. “Emergency” measures tend to have a much longer life than originally promised. The Belfast (“Good Friday”) Agreement was signed in 1997, but Diplock Courts introduced under the Northern Ireland (Emergency Provisions) Act 1973 were not abolished until 2007. The DPP for Northern Ireland can still certify that a trial should be held without a jury;[21] The legislation was due to expire after two years but has been extended by successive orders since 2007 there were 42 such cases in the last year.[22]
    
25. As with all areas of life, Covid-19 has had a profound effect on the criminal justice system and has exacerbated the backlog of cases that existed before lockdown. The criminal justice system has been starved of funds for many years. The judicial estate was already in an appalling state of neglect with “deficiencies in basic hand washing and sanitising facilities”.[23] This Committee has an ideal opportunity to highlight ways of improving this. Lockdown exacerbated the symptoms but was not the cause. Reinstating judicial sitting days would require sustained investment but would be the proper way to reduce the backlog of cases. As the Lord Chief Justice said “any move to judge-only trials would be very undesirable”.[24]
     

October 2020