For seven weeks Covid-19 shut the doors of jury trials in England and Wales. On 11th May 2020, the Lord Chief Justice and Lord Chancellor announced the resumption of new jury trials in “certain courtrooms under certain conditions” from 18th May 2020. In the interim, two guinea pig trials resumed at the Old Bailey.
These trials raise questions about open justice and what it looks like in the age of remote hearings and socially distanced juries. Most importantly for accountability, how and when will journalists, trial observers and the public be able to observe these hearings?
This blog post provides a snapshot of a “toolkit” that may assist journalists, trial observers and the public seeking to participate in resumed criminal trials be that in person or from home.
1. Background - what does a socially distanced courtroom look like?
Jury trials will be rolled out in a three stage process so that teething issues can be identified and the safety of court users safeguarded (here). A Jury Trial Working Group has been tasked with assessing which Crown Courts are safe (here). The Lord Chief Justice (following input from Public Health England and Public Health Wales) has announced various protective social distancing arrangements, including providing a second courtroom with a livestream “to enable reporters and others to watch the proceedings”, a further courtroom for jurors, “careful” supervision of entrances and exits by court staff, and a cleaning regime. The jurors at the Old Bailey murder trial that resumed on 11th May were told that they would sit shorter hours, between 11am and 3pm to avoid rush hour.
Open justice must be kept under review during the rollout. As set out in an earlier blog in this series (here) open justice has two limbs: (a) the public should be free to attend court hearings; and (b) the proceedings are freely reportable (SRA v Spector  4 WLR 16 at §§19-20). The public health crisis means that some reporters, observers and members of the public are unable to attend court in person, despite the careful protective measures being put in place. Resumed jury trials need to ensure that adequate steps are taken to accommodate reporters, observers and members of the public – both in socially distanced courts and remotely.
2. Attending in person
The presumption remains that persons reporting and observing resumed jury trials will attend in person. Space is at a premium in socially distanced courtrooms – how do those who wish to attend ensure that they can?
(a) Press access
There are some concerns that proposed courtroom layouts do not make sufficient provision for the press and observers. For example, the Wales and Chester Circuit Leader circulated a floorplan for Cardiff Crown Court (here) which excluded press from the actual court room (it should be noted that the HM Courts and Tribunals Service (“HMCTS”) Communications Director has disputed the authenticity and accuracy of the floorplan here). There are good open justice reasons why (whenever possible) some representatives of the press are accommodated in the main courtroom – including ensuring press participation in any discussions about reporting restriction orders and safeguarding against technological glitches in the overspill court.
Reporters may need to make representations to Crown Courts in advance to ensure that seats are reserved in court either on a first-come-first-served basis and/or for particular news outlets. Some courts have taken measures to ensure that the press can be in the actual courtroom, by transforming the public gallery into a press row. For example, a bribery trial that resumed at the Old Bailey on 13th May set aside 4 seats in the public gallery for press on a first-come-first-served basis and a second overspill courtroom with an audio link that can accommodate approximately 5 further persons.
(b) Who else can attend and how?
Other attendees – observers, researchers, family and friends of the Defendant and the general public – remain free to attend trials. As such, the provision of socially distanced “overspill” courts will need to be examined on a case-by-case basis. For cases with a wider public interest and/or involving multiple defendants where family wish to attend, a second overspill court may be required. This may not reduce the number of criminal trials that could be simultaneously run, given that cuts to judicial “sitting days” and to funding for recorders (part-time judges) mean that many court rooms are empty on a daily basis.
Such provision only assists if access to the court complex is granted. This week, an NGO seeking attendance at a resumed jury trial was told by court staff that only members of the press could attend and that the security team would require press cards to be presented. This position adopts too narrow a view of the participation required by the open justice principle. It runs contrary to the evidence of the Chief Executive, HMCTS, Susan Acland-Hood, and the Minister for Courts, Chris Philp, to the Justice Committee on 4th May (here), which included the following exchange:
Sarah Dines MP: Can we ensure that members of the public will be able to view safely? That is an important part of it—not only to be tried by your peers but for it to be witnessed by members of the public. Can we have your assurance that that will carry on, albeit safely?
Chris Philp: Yes. […] the public can go into the public gallery in a socially distanced way. That will certainly continue […] access to justice and visible justice is a critical part of our civil liberties and our history.
That situation may be an outlier – and ultimately the NGO did gain access to the court. However, the anecdote illustrates current levels of speculation and confusion. There is a clear need for HMCTS to circulate public guidance to ensure consistency of practice across courts. Such guidance should (a) provide a recommended courtroom layout, including space for a representative of the press in the main courtroom, (b) clearly state who can attend court, and (c) set out criteria for deciding when a further overspill court is required.
3. Individual live link
For many individuals, travelling to court during the public health crisis is not likely to be an option – be that by reason of personal health conditions, shielding or caring responsibilities caused by school closures.
Public galleries cannot be virtual for resumed jury trials: section 85A of the Courts Act 2003 (as temporarily amended by section 55 and Schedule 25 of the CA 2020) provides that proceedings can be broadcast to the “public” only when conducted “wholly” by video or audio. As such, members of the public unable to travel to court will need to rely on press reporting or on transcripts – more on that below.
By contrast, reporters, trial observers and researchers unable to physically attend court may be able to request a live video or audio link. Section 51 of the Criminal Justice Act 2003 (as temporarily amended by section 53 and Schedule 23 of the CA 2020) creates a judicial discretion to direct a “person…take part” in a Crown Court trial through a live audio or video link, if a live link is in the interests of justice and parties to the proceedings have been given the opportunity to make representations.
When deciding whether to direct a live link the Court must consider all the circumstances of the case, including (but not limited to) the requesting person’s availability, whether they need to attend in person, their views, and whether they will be able to take part in proceedings effectively over video link (s.51(7) CJA 2003).
This “tool” requires some caveats:
- First, “Take part” is undefined in the statute. A judge may need persuading that the term encompasses reporters and observers – alongside, for example, defendant(s), witnesses, jury members, legal representatives and court clerks. (Prior to amendment section 51 only applied to witnesses). However, a useful steer can be found in the equivalent provisions on the use of live links in legal proceedings for Northern Ireland contained in Schedule 27 of the CA 2020 which defines “participating in … proceedings” broadly to include “a representative of the press”.
- Secondly, a judge may be reluctant to direct a live link on public health grounds, given that Public Health England and Wales have advised socially distanced courts are safe and temporary Health Protection Regulations permit movement to “participate in legal proceedings” (Reg.6(2)(h) for England; Reg.8(2)(h) for Wales). Moreover, the open justice principle has never required that everybody who wants to attend proceedings must be able to attend; public galleries can be full or oversubscribed in high profile cases. As such, applications for a live link are only likely to be successful where there are additional circumstances that show an arguable “need” for the person to be in court (e.g. widely-read previous reporting of a resumed part-heard jury trial and/or cases involving similar offences).
In the absence of alternative options, persons unable to travel to Court can obtain transcripts. Criminal Procedure Rule (“CrimPR”) rule 5.5(2) enables anybody to apply for transcript of public proceedings. The procedure is straightforward: fill out form EX107 (here) and return it by email to the relevant court (for guidance on how to apply, see here). Save in “special circumstances”, the person requesting the transcript will have to pay a fee.
A transcript of proceedings prepared after the event may be little safeguard for open justice. Costs for even a short trial can be considerable and take time. For example, the transcription service Ubiqus UK averages at c.£156+VAT per hour spent in the courtroom for a 48 hour turnaround. Nevertheless, for trial observers and those seeking to provide comment on the conduct of proceedings, and not tied to a tight deadline, transcripts lend a degree of transparency.
In high profile cases, courts might be invited to consider providing daily transcripts at the public expense (e.g. in high profile inquiries and inquests, like IICSA and the Birmingham Pub Bombings Inquests, daily transcripts are produced and redacted versions published online, excising content which would breach any reporting restriction in place). Applications can be considered before any hearing, to allow the court to consider whether transcripts should be prepared. A helpful precedent is provided by the Heathrow expansion cases (see daily transcripts, here) - although in that case, an agreement was reached between the parties as to how the cost would be met.
5. The missing “tool” – live streaming
HMCTS should be encouraged to think beyond the physical estate in considering tools for open justice. The same goes for the Lord Chancellor and the Lord Chief Justice who have the power under section 32 of the Crime and Courts Act 2013 to enable (but not to compel) the recording of jury trials. Why should courts be inaccessible to reporters and observers simply because they cannot access a court without risk to their health? As outlined above, Parliament has already envisaged the use of recordings and broadcast for “wholly” online hearings – and did not limit this vision to the use of “on-site” broadcasts in the court complex, either in an “overspill” room or (as suggested by HMCTS in 2018, here) in “viewing booths”.
There is no principled reason why off-site broadcast cannot be extended during the public health crisis to face-to-face trials and hearings. The use of online hearings to date shows that the logistical difficulties can be overcome. Open justice requires a complete toolkit: courtroom doors should be both physically and virtually open during the pandemic.