As with most areas of working life the justice system needs to get up and running, but how can this be done in a safe manner?
Courts around the country are not well known for their space (or cleanliness if we are honest). The only person 2 metres away from anyone else would probably be the judge and maybe the defendant. The jury box is a hustling squish and a squeeze with the sharing of folders and elbow space.
The general public probably do not (and why would they?) know just how fragile the court system is - especially the criminal courts. The backlog of trials, even before the lockdown was significant with defendants waiting months, if not more than a year, for a trial slot to come around (this post arrest and charge of course, a process which itself might have taken a year or more).
Take into account the lesser known 'custody time limits' - a framework designed to restrict the length of time a person waits in prison for a trial and you start to see the issues. Those who would otherwise be detained whilst awaiting trial are being released on bail. Mind you it is not as if they have anywhere to go...
So what to do? There have been a few notions but the one that might have the greatest chance of success is expanding virtual courts. Some smaller courts have experimented with this in the past and most courts have video technology and so users are not unfamiliar with technology. However most of those situations involve just one party, often the defendant attending and then only for very short hearings. Currently I do not know of any prison that would have the facilities to conduct more than one or two trials by video link and this would be at the cost of others attending for shorter, routine hearings.
So would the answer be having the defendant, counsel and judge in court with a remote jury? Possibly but then you encounter issues of privacy, concentration and importantly impartiality - how can you stop a juror from using google while hearing evidence?
A proposition seems to be a 'minimum' jury of 7 if we were to adopt a virtual system. Currently a court can operate with a minimum of 9 but you always start with and aim for 12 peers to achieve the best cross section of society.
A trial is better than no trial at all - we do need to start getting cases heard - but virtual trials are not a long term solution. Not yet anyway and not without serious funding. Certainly if they are introduced in short order there will no doubt be a spate of appeals based on lack of a fair trial.
The alternative? No jury at all - a proposition that will send a shiver down the spine of any practitioner. For centuries the jury has been a foundation stone of English jurisprudence and that right cannot be taken away overnight, although some do advocate it as a solution. There have been a handful of trial by judge alone cases but they are rare and extreme - not the norm and should never be.
Justice minister Chris Philp has told the Justice Select Committee that the government could consider allowing a minimum jury size of seven in criminal trials. He said there is "no question" of jury trials being stopped, but added that "if we have further emergency legislation from coronavirus, which is far from certain, in fact it's probably less likely than likely, we might consider having a minimum jury size of seven rather than nine as it currently is."