Though it may seem that justice proceedings have to be conducted in person, it is possible to make several unexpected changes. Because of COVID-19, some non-urgent court hearings were temporarily postponed to reduce the burden on the judiciary. However, since there is no clear end of the crisis in sight, different jurisdictions all over the world are adapting to unexpected circumstances. They are trying to find ways of keeping “the courts running through means of remote access, including via video link or telephone hearings” (Safeguarding the right to a fair trial 2020, para. 2). The purpose of this paper is to compare theoretical ideas with the observations of the Virtual Crown Court and discuss how COVID-19 impacted the court trials.
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Theoretical Ideas Compared with the Virtual Crown Court Observations
The Usual and the Remote Hearing Process
It is possible to suggest that the usual trial stages of Crown Court procedure are well-known, and there is little difference between the ways these and remote hearings are held. To begin with, following the selection and swearing-in of a jury, the prosecutor informs them about the details of the case (Davies, Croall and Tyler, 2015). After that, the prosecution witnesses are called to provide evidence that a defence barrister will cross-examine (Newburn, 2017). Once this part is over, the defendant and defence witnesses can give their evidence (Davies, Croall and Tyler, 2015). Next, the barristers make closing speeches to the jury, the judge sums up the heard information and provided evidence, and the jury retires to consider their verdicts and decide if the defendant is guilty or not.
As for the remote hearing, the overall process is similar, but some parts are modified so that all the participants feel comfortable and know how to act. Usually, they are held over a video or phone conference, and all the necessary participants, including the jury, defendant, witnesses, barristers, solicitors, court usher and court clerk, are present (Sikri, 2020). At the beginning of the remote hearing, the judge is on mute for approximately a minute, and then he or she takes several minutes to explain the specific rules of this online process (AVMI, 2020b). Only after about a quarter of an hour, the prosecutor describes the case to the jury (AVMI, 2020b). Then, the process goes on in a rather similar way.
Disadvantages of Remote Hearings
Unfortunately, though remote hearings are effective, it is evident that they have some disadvantages. First, making sure that everyone is online, understands the rules, sees and hears other participants and follows the process is challenging and takes too much time (Sikri, 2020). Second, throughout the video, there were specific moments when either the judge or some of the jury could not find a document they were discussing or had difficulty with an internet connection (AVMI, 2020b). Undoubtedly, all video conferences usually have some technical problems. Still, hearings themselves are an extremely severe and stressful process that requires total attention and concentration, which can be reduced by, for example, internet connection issues. Moreover, during the online jury deliberations, there were moments when several members started speaking emotionally at the same time, which is a solvable but time-consuming problem (AVMI, 2020a). Of course, such an issue is inevitable during the usual deliberations, but hearing each other is easier in person than through the microphone.
The Participants of the Virtual Crown Court
It is necessary to describe the members of the jury, as well as the other participants of the remote hearing. The judge is a middle-aged white man who seems to be a professional in this field. Although remote hearings are a new process, this judge holds the hearing masterfully and treats all participants with respect. The prosecutor is also a middle-aged white man, and the defence barrister is a middle-aged white woman. The judge carefully listens to their comments and cross-examinations.
The members of the jury include two relatively young and six middle-aged white women and four middle-aged white men. During the hearing, they do not take an active part in the process but listen carefully. As for the deliberations, all jurors express their opinions and share thoughts and doubts regarding the case (AVMI, 2020a). They certainly paid attention to the judge, witnesses and barristers since several jurors cited them and discussed all details and evidence. Noticeably, out of all members, three women (jurors one, nine and twelve) appear to be the most active and involved in the process (AVMI, 2020a). At the same time, two members almost do not participate in the discussion at all. At the end of the jury deliberations, it was evident that they are tired and nervous since they could not agree on the decision and started discussing some things not related to the case or hearing (AVMI, 2020a). All jurors are respectful of each other and follow the rules of remote hearings.
Possible Biases Influencing the Jury’s Decision
Unfortunately, one problem that may appear with the jury is that they can have certain unreasonable biases that may influence their decisions. First, it is believed that a defendant’s attractiveness makes the jury more lenient while, for example, if the accused has face tattoos, he or she looks more suspicious and guilty. Second, older jurors seem to believe law enforcement, while younger ones tend to rebel and question instructions. However, on the part of the jurors from the video, there are no obvious prejudices and biases that were discussed in the module. Their decisions and doubts are not related to their age or the age and race of the defendant.
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The Ways COVID-19 Impacted the Court Trials
It is hard to disagree that the sudden coronavirus threat has affected almost all spheres of everyday life, and the trials are not an exception. The governments “have moved court hearings (and even trials) online and the Scottish government has extended the exceptions to the hearsay rule to cover witnesses who cannot be in court because of Covid-19” (Nicolson, 2020, p. 207). In response to the COVID-19 pandemic, the courts decided to adopt remote hearings rapidly, and a number of differences from the traditional way of holding hearings appeared.
In other words, a significant increase in the technology role in English and Welsh justice systems was necessitated by the coronavirus. Data from HMCTS “shows that the number of cases heard each day with the use of audio and video technology increased from fewer than 1000 in the last week of March to over 3000 by mid-April” (How has coronavirus impacted the justice system? 2020, para. 29). Interestingly, lawyers and the judiciary were mostly positive about the move to using audio and video channels even though the hearing process has changed dramatically (How has coronavirus impacted the justice system? 2020). On the contrary, for some lay participants, including defendants and witnesses, and vulnerable court users such as persons with cognitive difficulties or young people, remote hearings appear to be less satisfactory due to various reasons.
Though the possibility of allowing the courts to continue working by adopting remote hearings is effective and positive, there are some disadvantages and uncertain factors. To begin with, the number of outstanding cases in the Crown Court and the magistrates’ courts has increased significantly (McCann, 2020). This rate was already high even before the coronavirus crisis began, but currently, the combined backlog for the mentioned courts is estimated to be more than half a million. Researchers note that “by contrast with some parts of the civil justice system, technology has not provided solutions to enable trials to go ahead in the courts at anything close to normal levels” (How has coronavirus impacted the justice system? 2020, para. 32). According to Nicolson (2020, p. 207), European Convention on Human Rights (ECHR) provides “a right to a trial within a reasonable time as one of its rights to a fair trial”. That is why the justice system cannot grind to a halt due to the rules requiring social distancing and isolation, but the adopted measures, including remote hearings, are not perfect either.
Finally, though new and forced measures are rather effective and thoughtful, and the court cannot function in an ordinary course amidst the lockdown, it is recommended that HMCTS set out a specific policy. It needs to make sure that all court users, especially those of them who can be considered vulnerable, are comfortable with participating in and following virtual processes (Jacobson and Cooper, 2020). Currently, remote justice proceedings are a temporary measure, but if there is a likelihood that they may become permanent, several modifications need to be included.
To draw a conclusion, one may say that after becoming an online process, court hearings did not stop being severe and complicated. It is hard to disagree that a number of changes that were made to tribunals and courts since March 2020 and will be made later will probably have rather serious and long-term consequences. Moreover, some measures received limited debate and scrutiny before being enacted, which may be explained by the seriousness and suddenness of the circumstances. Due to these facts, it is necessary to subject all the changes to rigorous evaluation.
AVMI (2020a) Jury deliberations.
AVMI (2020b) Virtual Crown Court – main trial.
Davies, M., Croall, H. and Tyler, J. (2015) Criminal justice: an introduction to the criminal justice system in England and Wales. London: Pearson.
Jacobson, J. and Cooper, P. (eds.) (2020) Participation in courts and tribunals: concepts, realities and aspirations. Bristol: Bristol University Press.
McCann, A. (2020) ‘Virtual criminal justice and good governance during covid-19’, European Journal of Comparative Law and Governance, 7(3), pp. 225-229.
Newburn, T. (2017) Criminology. London: Routledge.
Nicolson, D. (2020) Covid-19 and criminal justice: temporary fixes or long-term reform?
Sikri, A. (2020) Different stages of criminal trials that are impacted by COVID-19.
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