Defendants in the Crown Court could lose their right to trial by jury as a response to easing the pressure on the courts as a result of the Covid-19 pandemic, according to the most senior judge in England and Wales.

Lord Burnett of Maldon told the BBC Radio 4 programme Law in Action that policymakers could look at making ‘either way’ offences, which can be tried in the magistrates’ court or Crown Court (as distinct from more serious indictable-only offences), could be dealt with by a judge sitting with two lay magistrates in the Crown Court.

All jury trials were suspended as of March 23 and it is reckoned that every month another 1,000 cases are added to the pre-COVID backlog of some 37,000 cases. Trials tentatively resumed on 18 May with new juries sworn in at the Old Bailey and Cardiff Crown Court ‘under special arrangements to maintain the safety of all participants and the jury’. As a response to Covid-19, jury trials presently need three court rooms: one for the participants, one for press and public to watch through a video link, and the third for the jury to deliberate.

According to Lord Burnett, the Scottish model where the jury sit in a separate room around a table large enough to socially distance and the trial is broadcast via video link into the room has ‘not secured a great deal of enthusiastic support – not least because it seemed to make the jury spectators rather than participants in the trial’.

He went on to say ‘a large number of possibilities’ were being discussed including introducing legislation to allow the number of jurors to be smaller. ‘That was the position during the Second World War when the jury was reduced to seven,’ he explained. ‘A possibility worthy of consideration is to legislate to enable for a short time the disposal of either way trials in a Crown Court by a judge sitting with two magistrates,’ he said. ‘That would retain the lay public involvement but give rise to none of the difficulties of social distancing that attach to juries sitting in trial.’

The law reform group JUSTICE has been running a series of remote mock trials where all participants join the virtual court via video and the hearing is livestreamed to a virtual public gallery. On Friday jurors joined from a local hall within walking distance of their homes. Read artist Isobel Williams report from the latest hearing (Caged justice).