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SocietyMay 12, 2020

Court adjourned: How the pandemic is delaying justice in criminal cases

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The average wait for a jury trial in New Zealand is 425 days – and the coronavirus just made the problem a whole lot worse, write Nessa Lynch and Yvette Tinsley of Victoria University of Wellington.

In a recent interview on Māori Television, chief district court judge Taumaunu described the Covid-19 pandemic as an unprecedented challenge for the courts, noting that even the two world wars did not result in the same level of disruption, and that around 50,000 court events in the district court jurisdiction were affected. There are approximately 80,000 adults prosecuted in court per year (covering around 200,000 charges), while 1,400 children and young persons are prosecuted.

Under alert level four, court proceedings were limited to urgent, time-sensitive matters. Under level three, the general approach is that courts are an essential service and are operating where it is safe and practicable to do so, and are making use of remote participation methods.

Even when the country moves to level two soon, the ongoing public health measures and the backlog of cases means that the effect of the pandemic on court business will persist in the medium to long term, in an already creaking justice system.

The right to be tried without undue delay and the right to a jury trial are fundamental and long-standing protections for the accused person. Pandemic implications such as the need for physical distancing, delays in completing expert reports, and difficulties with taking instructions from clients will mean delays for all types of criminal cases.

The right to a jury trial is for those facing penalties of two years’ imprisonment or more. There is no doubt the announced suspension of jury trials until the end of July was the best option in the short term. But the resulting delay causes systemic issues, risks breach of individual rights, and is likely to cause distress and harm to defendants, complainants, witnesses and their whanau.

The current pause comes at a time where there is already considerable strain on the system: the annual report from the high court in 2019 reported that the average wait for a jury trial in Auckland is already 436 days, while the nationwide average is 425 days.

There is a danger that more defendants will plead guilty in order to avoid further delay or may elect judge-alone trial when they would otherwise have elected trial by jury. For the most serious offences such as murder and manslaughter, trial must be by jury. Despite the presumption of innocence, a significant proportion of defendants will be remanded in custody, at a time when reports suggest that Covid-19 measures in prisons have led to increased lockdown times.

Other common law jurisdictions are actively looking for ways to avoid the problems that suspension of jury trials brings to the criminal process. For example, the Australian state of Victoria has enacted temporary legislation allowing defendants in custody to opt for judge-alone trials in cases where a jury trial was previously mandatory, something that has also been hotly debated in England and Wales. In New Zealand, we are not yet having significant public debate about the ongoing effects of delays to jury trials, much less about solutions.

At present – barring specific limited exceptions – there is no general ability for New Zealand courts to order trial by judge-alone where the defendant wants to be tried by jury. One obvious solution to the delay is to have more judge-alone trials even where the defendant would like to be tried by jury, either by increasing the maximum penalty at which the right kicks in, or more radical legislative reform to allow it in all trials.

This might seem a straightforward solution, but it fails to consider the importance of the jury trial as a due process protection of individuals from the might of the state. Famously described by Lord Devlin as “the lamp that shows that freedom lives”, the constitutional role of the right to a jury trial goes back to the Magna Carta. Juries also allow for community participation in justice and educate the public about the criminal system. Lessons from the infamous Diplock trials in Northern Ireland show us that in bringing in reform to clear an emergency backlog, we risk a long-term loss of the right to a jury trial – all without proper debate of its merits in the longer term.

We should therefore consider more creative ways to get jury trials happening again as soon as possible. It’s worth exploring changes to the way juries are selected so that large groups are not having to gather at court, including performing the initial pre-trial ballot online. To address people’s potential reluctance to serve on a jury soon after an economically punishing lockdown, jury attendance fees could be increased and excusals and deferral of jury service for those in “at risk” groups for Covid-19 could be made easier.

Once empanelled, there are likely to be problems with physical distancing in courtrooms and jury rooms in some of our courts. The use of large venues as courtrooms, such as university lecture halls, has been mooted elsewhere, and there is also the possibility of the jury sitting in a different courtroom or building, viewing the trial by remote link.

There is even research being conducted on virtual criminal trials where jurors connect to the trial from their homes, although early reports suggest that despite some positives there are significant drawbacks related to both practical, technological issues and principled problems of representation and security.

Reducing the number of jurors could also address the problem of physical distancing but should be approached with caution. The under-representation on juries of Māori and other groups might be exacerbated, while smaller juries means less protection against prejudicial reasoning. The possibility of alternate jurors – who act like injury substitutes in a football game – could also be explored. Our law already allows for continuing a trial with fewer than 12 jurors, but one or two alternate jurors would offer a buffer should some jurors need to self-isolate part way through a trial.

There’s no easy fix to this issue, but consideration of short-term changes is necessary, while balancing procedural rights with the need to ensure a reasonable timeframe for defendants, complainants and their families.

Nessa Lynch is Associate Professor and Yvette Tinsley is Professor at the Faculty of Law, Te Herenga Waka, Victoria University of Wellington.

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