A challenge to the Lord Chief Justice’s suspension of trial by jury
Rupert Bowers QC leading Victoria Smith-Swain of Exchange Chambers appeared pro bono before the Divisional Court to judicially review a decision of the Lord Chief Justice that affected almost every defendant facing a jury trial during the Covid-19 pandemic, and especially those subject to a Custody Time Limit (CTL).
The Claimant was due to have his 4 day trial commence in Leeds Crown Court on 27th April 2020. On 23rd March the Lord Chief Justice pronounced that no new trials would commence until further notice. This was categorised during the claim as a ‘listing decision’; one that affected every single criminal case in the jurisdiction that was pending trial before the Crown Court. The application to extend the Claimant’s CTL was made the same day the decision was made on the recent pro-forma application which states that each application is “made due to the current public health crisis”. The application was heard on what would have been the first day of trial and in a written judgement the Claimant’s CTL was extended. These applications have been made up and down the country on the same basis and so the claim was of wide public importance.
The Decision was challenged on 3 grounds:
The listing decision was ultra vires
It was argued that the Lord Chief Justice’s listing decision was ultra vires in that it circumscribed the right to jury trial, a fundamental right that could only be curtailed by primary legislation. It was argued that the decision had the effect of delaying trials on an indefinite basis. Nothing in law prevented jury trials from taking place at the time the listing decision was made, or indeed since that listing decision was taken. Attending court to “fulfil a legal obligation”, which answering a summons to perform jury service would be, is excepted from the general restriction upon movement imposed by regulation 6(1) of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which came in to force on 26 March 2020. Advice and guidance from the Government or the Prime Minister in relation to how the population should behave has no force of law. There was no doubt that advice and guidance informed or motivated the listing decision, but a worthy and sensible motive for the listing decision could not make that decision (or its consequences) lawful if otherwise it was not. What prevented any further jury trials commencing was the listing decision. The Claimant did not argue that his ability to exercise his right to jury trial had been denied or extinguished by the listing decision, but that it had been impeded by it as a result of its suspension for an indefinite period, with the consequence that he will remain in custody for an indefinite period.
The listing decision could not amount to a “good and sufficient cause” to extend a CTL
The Claimant argued that the power of all judges was emasculated by the listing decision as they are prevented from ordering the trial to proceed. The court, in considering the criterion in section 22(3)(a)(iii) of the Prosecution of Offences Act 1985, was obliged to apply the principles set out in R. v Manchester Crown Court ex parte McDonald  1 Cr. App. R. 409. Given that the listing decision suspended jury trials indefinitely, it was impossible for any judge hearing any application made on the same pro-forma basis, to give any effect at all to the first and third of the McDonald overriding principles. A judge could not ensure that the period in custody would be as short as possible if he could not have any idea when jury trials might recommence. Similarly, the listing decision removed any power that a judge had to control any extension. It was axiomatic that the resumption of jury trials is completely beyond the control of any judge of the Crown Court.
The Crisis Protocol subverted the statutory scheme and fettered the Crown Court judge’s discretion
The Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates’ and the Crown Court (the Protocol) was framed by the President of the Queen’s Bench Division, HM Courts and Tribunal Service and the Crown Prosecution Service. It was argued that the effect of the listing decision rendered the terms of the Protocol absurd: There could be no individual consideration of a case “on its own merits” (paragraph 5 of the Protocol) because every defendant in custody has been placed in the same position as a consequence of the listing decision. The Protocol tells each judge that the pandemic is a global situation which satisfies the statutory criteria, and indicates that an extension of the CTL in each case is the accurate approach to take. The position created de facto by the listing decision coupled with the Protocol meant that any judge of the Crown Court had no effective discretion left to exercise.
The Divisional Court granted permission to apply for judicial review but dismissed the claim. The Court held that the listing decision was on a temporary basis in circumstances when it is unsafe to continue to list jury trials. The Claimant’s trial could not have taken place any sooner without exposing all persons concerned to unacceptable health risks. This did not require Parliamentary approval. The Claimant’s right to trial by jury remained extant and would be exercised as soon as that could be done safely and practically. The listing of jury trials had been, and was being, kept under continuous judicial oversight. Work to enable jury trials to occur safely was ongoing. The Court held that the Claimant’s detention was not indefinite as his CTL was extended only until 1 July 2020, with a review hearing fixed for 30 June 2020. At that stage judicial discretion would be exercised afresh to consider his case in light of the relevant factual position at that time. Relying on the terms of the Crown Court judge’s written judgment the Divisional Court found that the judge’s discretion was not fettered as his reasoning did not depend on the Lord Chief Justice’s listing decision, nor did he consider his judgement fettered.
The full judgement can be viewed here.
Rupert Bowers QC and Victoria Smith-Swain consider that the issue is far from over. There are many cases still being adjourned and having CTLs extended and even further extensions at subsequent review hearings. The ability of the Crown Court to apply the principles in McDonald is dependent upon the assumption that a jury trial is possible at a known point in time. At present, those directly tasked with listing trials have no real visibility of when it might take place, some court centres still await authorisation to re-commence jury trials and, even then, will be responding to the categorisation and prioritization of the backlogged cases. If the adjournment of CTL trials as a consequence of government health advice and of directions made by the Lord Chief Justice amounts to good and sufficient cause to extend the CTLs, then this would be the case so as long as the emergency period subsists, however long that may be. Where is the tipping point when the suspension of a fundamental right is made on an indefinite basis?