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It is being reported today that the Lord Chief Justice of England and Wales, Lord Burnett of Maldon is calling for smaller juries to clear the backlog of court cases: Telegraph (paywalled) Text Version.

The Lord Chief Justice suggested that one solution may be to reduce the size of juries, saying that "an opportunity was missed to introduce a temporary reduction in jury size" in 2020, at the beginning of the pandemic. Juries were reduced to seven during the Second World War. Lord Burnett asked: "Do some of the low-grade cases that go to the Crown Court really need as many as 12 [jurors]."

Without any real knowledge of the court system, this sounds odd. I can see that there are many limiting factors in the rate that trials can be held, such as availability of courts, judges and lawyers. It seems hard to imagine that the availability of members of the public to sit on juries could really be a limiting factor, particularly as 3.4 million employees are still on furlough, and so would be available for jury duty.

Is there a reason why the availability of jurors could be a limiting factor in the rate at which trials can be held in the current climate?

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    Having served as a juror in the UK (long before COVID) the practical issue is not only what happens inside the courtroom, but that fact that in a busy court there may be literally hundreds of potential jurors who have been called up but are in the waiting areas for long periods (possibly all day) and not free to move elsewhere or leave the building. Not to mention that they also need food, smoking areas to protect non-smokers, etc ...
    – alephzero
    Jun 23 at 18:31
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    I would say that its not due to a lack of people, but rather the time it takes to screen jurors for conflicts of interest or bias. Screening 12 jurors takes longer than screening 7. I was once in jury selection on a case where they spent 3 full days screening people. In theory the court could have been using that time to process other cases. So reducing jury size could in theory allow the court to process more cases. Its also easier to get 7 people to agree on a verdict rather than 12, so less time spent in deliberation.
    – user4574
    Jun 24 at 0:13
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No, it's not a limiting factor - and even if it were, the Juries Act 1974 grants courts a special power to require people in the local area (passersby/office workers/etc.) to serve as a jury member without written notice if a jury is incomplete. This is sometimes known as 'praying a tales(man)'.

If it appears to the court that a jury to try any issue before the court will be, or probably will be, incomplete, the court may, if the court thinks fit, require any persons who are in, or in the vicinity of, the court, to be summoned (without any written notice) for jury service up to the number needed (after allowing for any who may not be qualified under section 1 of this Act, and for excusals and challenges) to make up a full jury.
§6 Summoning in exceptional circumstances - Juries Act 1974

Reduced jury sizes would, however, allow trials to proceed in courtrooms where social-distancing procedures in response to the COVID-19 pandemic cannot be adhered to with a full twelve-person jury. The House of Commons Constitution Committee has published a report on the impact of COVID-19 on courts and tribunals in England and Wales - Lord Burnett gave evidence to this committee on this topic and offered two other possibilities: Judge-only trials, and trials with two magistrates and a judge. On reducing the jury size in particular, however, his concern is the social-distancing guidelines due to the COVID-19 pandemic, rather than the availability of jurors.

Trials by judge alone would undoubtedly be quicker than trials by judge and jury and present few problems with social distancing. Their main disadvantage is that they would dispense with the involvement of lay people, which is the hallmark of jury trials. Trials by judge and two magistrates of either way cases would retain that lay involvement to some extent and be quicker than those involving a jury. They would also present few problems with social distancing. The Chairman of the Magistrates’ Association has expressed support for this option. Either of these options would undoubtedly provide a practical way of clearing cases more quickly. The reduced jury numbers option has an historical precedent in the Second World War when, save in capital cases, the number was seven. It would enable some courts to be used for jury trials which are too small to use with 12 jurors even with practical adjustments and might therefore contribute to accelerating the trial of some cases. All these options need careful thought and informed debate.
The Rt Hon The Lord Burnett of Maldon – written evidence (CIC0045)

Another point brought up by Justice Secretary Robert Buckland, giving evidence to the same committee, was that social distancing must be adhered to not just in the courtroom, but during the selection process, which of course requires more than twelve jurors:

Covid presented particular challenges, and I would have made far too cosy a set of assumptions if I had ignored the realities of social distancing and the likely effect not just on the health of jurors but on their sense of safety coming into the court as a result of a summons.

...

Those who have bothered to observe my thoughts and public expressions over the last few months will have noted that from the outset I aired the possibility of what I call wartime juries—that is, reduced numbers of jurors rather than a departure from the principle, for example to a judge and two magistrates. The retention of the jury principle is more important to me than anything else. That is why I am prepared to look at jury size where we have nine jurors, with a minimum of seven, replicating the rules about majority verdicts on juries of 12. I can see that measure reducing the need for larger jury panels in court and the need for as many people to assemble to be selected by ballot.
Uncorrected oral evidence: Constitutional implications of Covid-19 - 22 July 2020

However, in the evidence given to the committee on this matter, I can't find any reference to the availability of jurors - except in the context of their reticence to serve due to fear of inadequate social distancing - being a limiting factor.

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  • Have you any evidence of how much the Juries Act para. 6 has actually been used? Note also that few jury trials are completed in one day, so "pulling people off the street" to make up the numbers would have big practical problems. (It was used once in 2016 - see legalcheek.com/2016/06/…)
    – alephzero
    Jun 23 at 18:36
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    @alephzero it's certainly not common - I didn't mean to suggest that it happens all the time, but more to point out that even if there were a lack of available jurors, courts have the powers to work around that.
    – CDJB
    Jun 23 at 18:39
  • The practice discussed in the first paragraph is practiced a few times every few years in Glendale, Colorado in its municipal court.
    – ohwilleke
    Jun 24 at 0:03
  • @CDJB Re the "tales", the article linked by alephzero says that some of the "people on the street" who were initially approached simply declined to serve. So it doesn't appear that the court invoked the ability to require service, but I guess you're saying they would, if desperate enough.
    – nanoman
    Jun 24 at 1:13

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