Burnett: “No going back” on remote court hearings

Burnett: Reduced jury size worth thinking about

The Lord Chief Justice (LCJ) has said there will be “no going back” to pre-pandemic days for the courts in their use of technology.

Speaking to peers on the House of Lords constitution committee, Lord Burnett also said that if the Covid-19 crisis continued for more than a few months, cutting the number of jurors to seven was “well worth thinking about”.

Answering a question from barrister Lord Pannick as to whether there would be a “permanent change” in the way lawyers and judges worked as a result of the Covid-19 pandemic, Lord Burnett said he “strongly suspected” there would be.

“What we’ve seen over the last two months is that we’ve had to move forward because otherwise the system would have collapsed.

“I detect from practitioners but also from judges that there will be increasing demand for this from litigants and all those who take part in our proceedings.”

The LCJ said people had discovered that “for many types of hearings, not all” conducting it remotely was “just as good and much more convenient.”

He said Professor Richard Susskind was right to predict that there would be no “going back” for the legal profession once the pandemic was over.

“There will be no going back to February 2020. I suspect that we will not be going back in any walk of life. We won’t be going back to February 2020 in the courts, of that I’m confident.

“It seems to me that by necessity we have taken three steps forward, and we’ve done so using poor technology really, and I hope it will improve substantially, and we will probably have to take one step back because we have been having to do work by phone and video which would have been better done in a court.”

Lord Burnett said that for the last two months, and probably for months to come, the justice system had been “engaging in the biggest pilot project” it had ever seen. “It is important that we look carefully at what is going on and we learn from it.”

He said the restarting of a few jury trials later this month would only have a “small impact” on the backlog of trials at the Crown Court.

If the crisis continued for more than a few months there would need to be “imaginative thinking” from government and primary legislation to change the way jury trials were conducted.

The LCJ said reduction in the number of jurors from to seven, an emergency measure introduced in World War Two, was “well worth thinking about” if the crisis continued.

He said trials with a judge and two magistrates would be “much easier to manage” than any jury, but the introduction of trials by a judge alone, frequently debated over the years for fraud trials, he would consider “as an option only in extremis”.

Juries were important for public confidence and engagement in the justice system, and he hoped Parliament would “take a deep breath” before authorising judge-only trials.

Answering a question on criminal legal aid, Lord Burnett said that for the justice system to operate “effectively and fairly” there must be a “vibrant publicly funded legal profession”.

He said plans to increase the number of cases being heard when the crisis was over would only work if “the profession remains vigorous and survives in its current form through the emergency”.

Answering a question from former justice minister Lord Faulkes, concerned that the “probable decimation” of solicitors and barristers would have an impact on the appointment of judges, the LCJ agreed it would be a “problem for the future” if the profession was reduced in size.

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