“Online Juries”. A thread on why we should never lose our nerve when we insist that jurors are “in the room”.

We should be flexible and creative with tech. Particularly at this time. Witnesses giving evidence by live link has been, broadly, a success. Our tentative experiments with interim hearings on Skype have kept wheels moving.

But we must think where, when and why to draw the line:

1) Criminal trials by jury are always about humans. They are often about which human or humans are being accurate or telling a group of 12 other humans the truth.

Demeanour is a fair consideration for both sides - and it is hard to assess on a screen.

We make decisions about who is telling us the truth all the time. We do it at work. We do it with families. We do it with strangers.

Jurors have fact-finding tools from their real lives.

Is it always about just *what* is said?

Or do we fairly assess more than that?

2) Sometimes the jury of 12 humans need to assess something with their actual eyes, their actual hands and their actual ears.

The bank statements. The exact colour of the jacket. The weight of the backpack with the gun in it. The precise packaging of the heroin.

Real things.

3) Jurors are required to pay attention. Breaks can be held if anyone is struggling - and they often do. It is impossible to tell, behind a screen, what else someone is doing. Who else is there. Where their concentration lies. Can we safeguard that? How?

4) Witnesses need to give their own, unencumbered, truthful evidence. Sometimes in trials there are a whole host of people with an interest in evidence being given in a certain way. We need to know who a witness is with, online & off, to guard against pressures that might exist.

The criminal courts have - carefully and cautiously - expanded the use of live link evidence. We have piloted pre-recorded evidence with real care.

But it’s all managed and it’s controlled.

The idea that witnesses can simply Skype it in is altogether different.

5) Criminal trials are sombre, serious things. They aren’t like watching a TV show. The liberty of the person is often at stake. Courtrooms are imposing and they are grown-up places.

No one should be in the business of dispensing verdicts from their screen.

6) When juries retire, they deliberate.

They don’t do that separately, they do that together.

A foreman is appointed - because it is recognised that marshalling 12 opinions on multiple issues is hard.

12 separate screens won’t facilitate this. Not now. Not ever.

7) Jury trials are often in the business of human misery. Complainants can be anxious, vulnerable or young. Defendants may be looking at loss of liberty. Some are innocent. Fretting relatives and communities on both sides.

Have you ever tried to reassure a person via a screen?

Because there’s a reason why the judge and barristers sometimes meet vulnerable complainants before their live link evidence. In person. In the flesh. Taking off our wigs. A human introduction in the room. Together.

There’s a good reason for that. We shouldn’t lose sight of it.

8) A trial involves many non-court moving parts to keep the show on the road:

Barrister >> client
Barrister >> witness
Barrister >> barrister
Barrister >> solicitor / CPS
Barrister >> police

How many screens, how many connections, how much security can be guaranteed?

Because if there’s one thing more distressing, more time-consuming and more expensive than a trial - it’s a trial that goes wrong.

9) Trials, increasingly, involve their own tech. Hours of CCTV. Bodyworn footage. Hundreds of pages of banking analysis. Shepherding a jury through material like this is - speaking frankly - already a tough task with everyone in the same room.

10) So we should be cautious about running before we can walk. Yes our Skype cases have connected - but, at times, they’ve also been rubbish. It’s unfashionable to say that, often, we all deal with an 80s echo and simply adjourn things off. Patting ourselves on our digital backs.

11) For juries, we need to think practically - not digitally.

How can we *safely* get them back in the room?

How quickly can we do it to best help waiting complainants and defendants?

Other moving parts might be capable of a tech solution. And we should be creative with it.

12) And once it’s safe to do so we need a full throttle approach to the backlog. All courtrooms open. All judicial and recorder hands on deck. Recruit more judges. Open more courtrooms. Sit more hours. Listen to the profession.

13) We crawled into this disaster with a system already on its knees. A huge backlog. Reduced sitting days. Rubbish infrastructure.

And we weren’t capable of dealing with even the slightest disaster - let alone this one.

14) So let’s not pile terrible decision on top of terrible decision - like a Jenga tower of justice. It’ll fall down.

The ease and speed of tech can be irresistible. It will help us now in lots of ways.

But with our precious, human system of juries - we should hold our nerve.