COVID-19 UK & Germany: Criminal Justice In The UK And Germany - A Legal Comparison

• Published date: 15 June 2020
• Author: Mr Charles Kuhn
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Coronavirus (COVID-19), Trials & Appeals & Compensation, Crime, Reporting and Compliance, Litigation, Contracts and Force Majeure
• Law Firm: Clyde & Co

Currently, with a few exceptions, jury trials and hearings in the UK are being postponed or not starting at all. As such, the criminal justice system has effectively ground to a halt. It is therefore worth considering whether now is the time to move to a different model more able to contend with the current or future pandemics and clear the existing backlog of over 30,000 cases before the courts. One possible model is Germany, which is already making headlines for its robust response to the current pandemic.

Pre-COVID-19, German courts proved their ability to deal with complex cases such as the cum-ex dividend trials in relatively short periods of time. Recently, a Regional Court in Bonn (equivalent to a UK Crown Court) took 40 days of hearings to arrive at a guilty verdict in a cum-ex trial dealing with very complex tax issues. Indeed, on average, a trial before a German Regional Court requires only a mere 4.7 days.

The German criminal justice system is assisted by not having ponderous jury trials. Instead judges can digest papers according to ' 249 (2) StPO (German Code of Criminal Procedure) which would normally take days to present to a jury and which, in the UK, can only be trusted in the main to absorb the evidence orally. In the above-mentioned cum-ex dividend trial, much of the written evidence, which amounted to thousands of pages, was introduced pursuant to '249 (2) StPO into the proceedings. In Germany, courts are also allowed to stagger hearings over a number of days without having to convene on successive days. The ability to list part-heard eliminates many issues with having to schedule trials in a single block of time.

Trial participants are trusted to be able to spend time away from the trial and to be able to pick up the matter at a later date. The average time per trial is therefore considerably less in Germany and listing is less of a problem than in the UK, where courtrooms pre-COVID-19 were sitting empty due to a lack of availability of time slots and with a large backlog.

German trials also seek an immediate decision and cannot result in discharged or hung juries which are a large burden on resources and lead to inhuman experiences for defendants who have to be tried twice. Nonetheless, recent proposals in Scotland for disposing of jury trials due to the pandemic were dropped due to considerable resistance to change. As COVID-19 will be around for a considerable time and its effects felt for years to come, it is not clear how the criminal justice system is supposed to cope if jury trials are retained.

Choosing case management tools

A closer look at court case management tools in Germany may provide further food for thought.

In the UK, due to the separation of judge and jury, the judge is not allowed to give a clear indication of how they...