The Right to a Jury Trial in Pandemic Times
In our latest blog, Dr Catherine O’Sullivan, Lecturer in Law at the School of Law, University College Cork, discusses the implications COVID-19 has had on conducting jury trials and giving effect to the constitutional right to a jury trial.
Dr Catherine O’Sullivan is a Lecturer in Law at the School of Law, University College Cork. She is a co-author of Criminal Law in Ireland (2nd ed, Clarus Press, 2021) and Fundamentals of the Irish Legal System (Round Hall, 2016). Her main research interests lie in criminal law, criminology, gender and the law, and children’s rights.
Although in need of reform – and possibly removal in the context of rape trials – jury trials are generally highly regarded. Devlin L’s description of them as ‘the lamp that shows that freedom lives’ is commonly cited. As a result of COVID-19, that light has been intermittent at best. Jury trials were initially suspended in March 2020, then resumed at reduced capacity a few months later before courts or in alternative venues where existing courts were too small for the safe circulation of participants. High levels of COVID-19 transmission led to their cancellation again in January 2021 but it is intended that they will recommence before the Central Criminal Court from 6 April 2021 and before Circuit Criminal Court on 12 April 2021. This is not to say that all criminal business has ceased. Some limited prosecutions before the District Criminal Court have occurred throughout 2021, most notably in the context of domestic violence, the shadow pandemic that has been considered in two other blogs in this series.  Trials before the Special Criminal Court involving a single accused recommenced on 1 March 2021. This is possible because, as will be discussed, there are constitutional exceptions to the jury trial requirement. Indeed jury trials represent a small proportion of all criminal business. In 2019, the last full pre-COVID-19 year, the number of incoming defendants to the Circuit Criminal Court and the Central Criminal Court represented no more than 2% of cases.
Despite constituting the minority of criminal business, the stop-start cycle of jury trials is nonetheless leading to a significant backlog in the system which means that some rape and murder accused have been given trial dates in March 2023. These dates are based on the assumption that there will be no further COVID-19-related delays and, even if correct, resolving the existing delay may have consequences for all parties concerned. These vary from the practical – those awaiting trial may have to be granted bail if definite trial dates cannot be set – to the fundamental. Witnesses may forget; victims may lose confidence in the system and withdraw their support for prosecutions which may make proceeding with some cases more difficult.
The judges, the Courts Service and the Department of Justice are to be commended for their efforts to diminish the effects of the disruption, but the pandemic has revealed the extent to which jury trials are dependent on the physical presence of people. It has been reported that the minimum number required in a courtroom for the jury trial of a single accused is 25. While much legal business has successfully migrated online, it is unlikely that jury trials could or should. The limitations of video-calls have become clear. They are more mentally draining which makes it more difficult to concentrate and can make it harder to read people. Given that decisions as to guilt or not can turn on how credible a witness seems to the jury, and how integral body language and/or vocal tone are to credibility-assessment, removing the jury’s ability to listen to and/or fully observe the witness in person would raise serious concerns about the fairness of the trial. Technology is also unreliable and if a juror misses a portion of testimony, requiring a witness to repeat what they said could result in minor differences in content. This could negatively impact on the witness’s perceived credibility for those jurors who did not lose connectivity. In the U.S., the loss of internet connection and the problem of jurors browsing the internet during a civil trial has been documented. The trial continued, but the stakes are higher in a criminal context. The accused has a constitutional right to a fair trial pursuant to Article 38 and the distractions and disruptions inherent in online communication put this in doubt.
The fact that we are coming to the end of this crisis does not render these concerns moot. It has been suggested that, as a result of international travel, climate change, population growth, and increased encroachment on the natural world, we are entering the age of pandemics. Indeed on a global level, there are talks about enacting an international treaty to facilitate co-operation in future pandemics. Similar forward planning is needed to prepare for any future (and possibly longer) disruptions to our ability to conduct jury trials should technology not have improved sufficiently to allow for their transition online. This discussion cannot be left until the next pandemic as it will likely require a constitutional amendment. Article 38 requires the trial of serious offences to be before a jury unless they fall into one of two exceptions. Article 38.3 provides for the establishment of special criminal courts when ‘the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order’ and Article 38.4 permits non-jury trials before military tribunals. Neither exception is of use in a pandemic because a pandemic is unlikely to reach both threshold requirements set in Article 38.3 and military tribunals only have jurisdiction over military personnel or in times of war or rebellion.
In suggesting that we consider a constitutional amendment and legislation to give effect to it, I am mindful of concerns around the operation of the Special Criminal Court, the current iteration of which was proclaimed in 1972 in response to the Troubles in the North. Its continued existence, almost 50-years later, and its creep into the prosecution of non-subversive crime raises serious questions about its emergency status and highlights the risks of creating emergency-based exceptions to the right to a jury trial. Stronger safeguards would therefore need to be put in place than are contained in the Offences Against the State Acts 1939-1998 to protect the accused when access to a jury trial is temporarily abrogated because of a pandemic. In addition to any enabling legislation being informed by the findings of a previous national review of the Special Criminal Court and by any recommendations that will come from the new expert review group set up in February 2021, a minimum safeguard would have to be that the accused must consent to their trial proceeding without a jury. This option would allow some trials to proceed which would reduce the backlog and the delay for those who choose to wait.
Finally, even if technology improves to such an extent that it is possible to conduct jury trials online, it is important to ensure that access to that technology is made available to all prospective jurors. It should not be dependent on the resources of individual citizens as to whether or not they can perform what has been described in caselaw as their civic duty. In this regard it is worth noting that both the Law Reform Commission and Coen et al have recommended that jurors should not be out of pocket as a result of jury service. Unfortunately, despite the position of reverence the jury holds within the legal and popular imagination, on an institutional level there is ‘indifference to jurors and their needs.’ If the pandemic has reminded us of the importance of the jury system then we need to put our money where our mouth is.
 Law Reform Commission, Report on Jury Service (LRC 107-2013) (Report on Jury Service); Mark Coen and others, Judges and Juries in Ireland: An Empirical Study (UCD, 2020); Lord Justice Clerk’s Review Group, Improving the Management of Sexual Offence Cases (Scottish Courts and Tribunals Service, 2021) <https://www.scotcourts.gov.uk/about-the-scottish-court-service/scs-news/2021/03/18/improving-the-management-of-sexual-offence-cases> accessed 8 April 2021.
 Sir Patrick Devlin, Trial by Jury (revised edn, Stevens & Sons Ltd 1966) at 164.
 Tom Ward, ‘The Impact of COVID-19 on the Operation of the Courts’ (Cork Online Law Review, 12 February 2021) <https://www.corkonlinelawreview.com/single-post/the-impact-of-COVID-19-on-the-operation-of-the-courts> accessed 8 April 2021.
 ‘Courts Service Confirm COVID-19 Level 5 Protocols Announced at Start of Legal Term to Apply Until 5 April 2021’ (Courts Service, 18 March 2021) <https://www.courts.ie/news/courts-service-confirm-COVID-19-level-5-protocols-announced-start-legal-term-apply-until-5> accessed 8 April 2021 (Courts Service Confirm).
 ‘The Shadow Pandemic: Violence against women during COVID-19’ (UN Women) <https://www.unwomen.org/en/news/in-focus/in-focus-gender-equality-in-COVID-19-response/violence-against-women-during-COVID-19> accessed 8 April 2021; Conor Hanly, ‘Dealing with Domestic Violence During a Pandemic’ (Cork Online Law Review, 19 March 2021) <https://www.corkonlinelawreview.com/single-post/dealing-with-domestic-vi> accessed 8 April 2021; Oonagh Buckley, ‘Maintaining Access to Justice in the Pandemic’ (Cork Online Law Review, 23 March 2021) <https://www.corkonlinelawreview.com/single-post/maintaining-access-to-justice-in-the-pandemic> accessed 8 April 2021.
 ‘Courts Service Confirm’ (n 4).
 Conor Gallagher, ‘Jury Trials May Resume by End of March as Backlog Extends to Two Years’ The Irish Times (Dublin, 25 February 2021) <https://www.irishtimes.com/news/crime-and-law/jury-trials-may-resume-by-end-of-march-as-backlog-extends-to-two-years-1.4495367> accessed 8 April 2021.
 Liam Heylin, ‘Cork Judge Urges DPP to Clarify When Jury Trials Can Restart Amid Covid’ The Irish Examiner (Cork, 11 January 2021) <https://www.irishexaminer.com/news/courtandcrime/arid-40204988.html> accessed 8 April 2021.
 ‘Jury Trial Needs 25 People in Court, say Experts’ (Law Society Gazette, 21 August 2020) <https://www.lawsociety.ie/gazette/top-stories/jury-trial-requires-minimum-of-25-people-in-court-says-working-group/> accessed 8 April 2021.
 Vignesh Ramachandran, ‘Stanford Researchers Identify Four Causes for “Zoom Fatigue” and Their Simple Fixes’ (Stanford News, 23 February 2021) <https://news.stanford.edu/2021/02/23/four-causes-zoom-fatigue-solutions/> accessed 8 April 2021.
 Originally deaf jurors were excluded from jury service by section 6 of the Juries Act 1976. This exclusion of the deaf, and of those who could not read, those who were infirm and those aged over 70, was modified by section 64 of the Civil Law (Miscellaneous Provisions) Act 2008. A juror is only excluded now if their inability to read and/or their impairment is such as to render it impracticable for them to act as a juror.
 Bethany K Biesenthal and others, ‘Criminal Jury Trials in a Global Pandemic: Safeguarding the Constitutional Rights of the Accused’ (Jones Day December 2020) <https://www.lexology.com/library/detail.aspx?g=0b87b2b5-e95e-4711-a6c5-496bf2c4f558> accessed 8 April 2021 (Criminal Jury Trials in a Global Pandemic).
 Article 38 of the Irish Constitution (Article 38).
 Jillian Deutsch, ‘Belgian Virus Hunter Warns of Looming “Age of Pandemics”’ (Politico, 23 September 2020) <https://www.politico.eu/article/virus-hunter-peter-piot-age-of-pandemics/> accessed 8 April 2021.
 ‘World leaders back pandemic treaty idea for future emergencies’ (RTE, 30 March 2020) <www.rte.ie/news/coronavirus/2021/0330/1206929-world-pandemic-treaty/> accessed 8 April 2021.
 Minor offences can be tried without a jury: Article 38.2.
 Article 38.3 of the Irish Constitution (Article 38.3); Article 38.4 of the Irish Constitution (Article 38.4).
 The Offences Against the State Act 1939; The Offences Against the State (Amendment) Act 1998.
 Report of the Committee to Review The Offences Against the State Acts 1939 to 1998, ‘Report of the Committee to Review the Offences Against the State Acts 1939-1998 and Related Matters (The Hederman Report)’ (Department of Justice, 2002) <http://www.justice.ie/en/JELR/hederman%20report.pdf/Files/hederman%20report.pdf> accessed 8 April 2021; Mark Hilliard, ‘Minister announces details of Special Criminal Court review’ TheIrish Times (Dublin, 16 February 2021) <https://www.irishtimes.com/news/crime-and-law/minister-announces-details-of-special-criminal-court-review-1.4486866> accessed 8 April 2021.
 In Texas, one virtual jury trial has been conducted, but only with the consent of the accused and the State, see ‘Criminal Jury Trials in a Global Pandemic’ (n 13).
 de Burca v Attorney General  IR 38 at 66,  111 ILTR 37.
 ‘Report on Jury Service’ (n 1) 116; Mark Coen and others (n 1) 137.
 Mark Coen and others (n 1) 136.