Last week, the ACT announced it would follow the lead of all other states and territories by suspending jury trials due to the risks of COVID-19. Currently it is proposed that cases proceed as judge-alone trials, with submissions to be made to the court if there is an objection to such an arrangement. This is understandable in present times, but raises some important questions.
Judgment by one's peers in a court of law is a hallmark of most democratic institutions, and for good reason. Trial by jury is something that is owed to those who are charged with an offence. It is an important guard against potential abuse of power by those who run the justice system. But more than this, it is a political institution that educates citizens in the practice of democracy. According to de Tocqueville, serving on a jury "invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government". This is backed up by recent research in the US and Australia that showed serving on a jury increases one's confidence in the justice system and commitment to democratic practice.
For these reasons and others, the suspension of jury trials due to the risk of COVID-19 is worrying to many in the legal community. This parallels the concern expressed in recent days about the High Court overturning the Pell decision.
But we should note that there is a historical precedent for the suspension of jury trials in times of crisis. The UK introduced the controversial Diplock courts, which were judge-alone in 1973 Northern Ireland for cases that dealt with political violence and terrorism during the height of the Troubles. The argument here was that there was too high a risk of juror intimidation and an unfair trial. Although there were sustained calls to abolish these courts after the Good Friday agreement in 1998, they lasted until 2007, and were also used to try Al-Qaeda sympathizers after the attacks of September 11, 2001.
While we might be confident that juries will return once the pandemic ends, we may question whether we even need to dispense with them in the present crisis. We have technology today that those in 1973, and even those in 2007, lacked. Courts around the world are quickly adopting new protocols to take care of essential court business online and through video conferencing. Are virtual juries also a possibility?
In the UK, law reform advocacy group JUSTICE tested a virtual jury trial, demonstrating it for justice system officials in a mock trial last Thursday. Volunteer students (who were looking for something to do while they were on lockdown) served as jurors. Also in the "room" was a judge, prosecutor, defendant, and defense barrister. Witnesses joined and left the video-conference as appropriate. Jurors retired to a break-out room to deliberate. Once they finished their deliberation, all parties were called back into the virtual courtroom for a reading of the verdict. While it was still a simulation, it demonstrated the feasibility of such a trial.
Holding a remote jury trial of course presents a number of challenges, including technical ones. But we must weigh these against the benefits to defendants and other citizens of having a jury, even in virtual form.
Finally, we might also note that independently of COVID-19, courts, like many other institutions, have been moving much of their business online. There are many benefits of this to parties - including access, convenience, and cost. Ten years from now, courts, including juries, may be virtual anyway. Let's work out whether and how these might work, and if and how they can preserve the important reasons for having juries in the first place.
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