Juries could be reduced in size for first time since WWII and traditional courts like The Old Bailey could be too small for social distancing when trials restart - as UK faces backlog of 37,434 cases

• Lord Burnett, head of judiciary in England and Wales, will back smaller juries
• Only time jury size was slashed from 12 to seven was during Second World War
• He said: 'It is going to be necessary to look at more radical measures to enable jury trials to continue'
• Testing has started to carry out trials online with jurors able to remain at home

Juries could be reduced in size for the only time since the Second World War or trials carried out online to maintain social distancing when the lockdown is eased, it was revealed today.

Lord Burnett, head of judiciary in England and Wales, is considering slashing the number of jurors from 12 to as low as seven - a level only seen when Britain was fighting the Nazis.

He also said that trials could even be held in lecture theatres or large halls to keep people two metres apart, because traditional courts such as the Old Bailey in London are too small.

All jury trials in the UK were halted in March due to the coronavirus crisis with a backlog of 37,434 cases building up already, which will take months or even years to clear.

Discussing restarting the justice system, Lord Burnett told the BBC: 'There is blue-sky thinking going on at the moment. It is going to be necessary to look at more radical measures to enable jury trials to continue.

'I would support a move to reduce the number of jurors. That was done during the Second World War. Plainly, it would be easier to ensure a safe trial for everybody, with social distancing and other precautions.'

12 jurors are required for trials in England and Wales. Northern Ireland also has a 12 juror rule except for certain terrorist offences linked to the Troubles, where it is still trial by judge. In Scotland there are 15 people on the jury.

A working group chaired by High Court judge Mr Justice Edis is looking at measures that could be taken amid calls from lawyers for 'clean, hygienic and safe' courtrooms.

'The use of big venues, all of this I can assure you is already being thought about,' continued Lord Burnett.

'You can't have juries sitting together cheek by jowl, you can't have them expectorating towards each other in a tiny jury box.'

Traditional courts such as the Old Bailey (sketched during the trial of Ian Huntley) are too small to maintain social distancing so could be swapped for large lecture theatres

They are also testing remote jury trials using online tools such as Zoom or Microsoft Teams. 

Others have said there could be advantages to measures such as virtual trials for victims giving evidence.

'They don't have to come to court, they don't have to face the pomp of it, when they're not sure what's going on,' Dame Vera Baird QC told the BBC.

'They might run into the defendant, the defendant's brother might deliberately bump into them.

'If you can go to remote evidence somewhere in a suburban house... and give your evidence there and be cross-examined across a television link from a relatively comfortable place... then that can add a great deal of confidence to people coming forward.'

Prosecutors are being told to give 'special consideration' to the impact on the justice system when deciding whether to charge a suspect during the pandemic.

Guidance issued by the Crown Prosecution Service (CPS) a fortnight ago said discontinuing proceedings or offering no evidence, or proposing suspected offenders are given an out of court disposal, such as cautions, community resolution and on-the-spot fines, might be more 'appropriate'.

Prosecutors are also being encouraged to ditch charges for more serious crimes if the accused is willing instead to plead guilty to some, but not all offences, or to less serious ones.

And indictments could be dropped depending on whether a defendant has spent too long on remand in custody, their age and maturity.

CPS chiefs are keen not to 'expand the pipeline' of cases entering the courts, which have virtually ground to a halt during the epidemic.

Delaying cases may reduce the chance of a conviction, while having an 'adverse impact on victims, witnesses and defendants', say temporary guidelines.

The new measures could hit hundreds of cases, although they will not affect the most serious or violent types of crime.

Nor will they affect attacks on emergency workers, which the guidance states should be treated as a priority.

But campaigners are horrified at the latest example of 'soft justice' that raises the prospect of many criminals in England and Wales escaping with a slap on the wrist.

Director of Public Prosecutions Max Hill said: 'We know very well the impact crime can have on people's lives, so we want the public to be confident that - even in these very difficult circumstances - justice will be done.

'But we cannot ignore the unprecedented challenge facing the criminal justice system.

'We must focus is on making sure the most dangerous offenders are dealt with as a priority as we adapt to challenging circumstances.

'And in less serious cases, it is right that we consider all options available when weighing up the right course of action.'

But David Spencer, of the Centre For Crime Prevention think-tank, said: 'While tackling the coronavirus outbreak is everyone's top priority at the moment, it is completely unacceptable for the CPS to suggest that criminals should be let off the hook because of the virus.

'Being a victim of crime is devastating at any time, but right now it will hit home more than ever.

'The law should reflect this and, far from letting criminal get away with offences, punishments should be ramped up to deter offenders.

'Other workplaces are coping with the lockdown by moving online and there is no reason why courts and the CPS cannot do the same.

'Even if this slows things down, the idea that we should let criminals get away with their crimes as a result will rightly anger every law abiding citizen in the country.' 

Lawyers are already duty bound to assess whether a prosecution is in the public interest.

However, the latest guidance urges extra consideration of the impact of Covid-19 when deciding the most proportionate response to a case.