Covid 19: the current situation is so fast moving that anything written will almost inevitably be out of date by the time it is typed. However, following the effective “lock down” from 8.30pm on 23 March 2020 it may be that there are fewer further changes until restrictions can be eased, and it is useful to reflect on the effect so far.
The Coronavirus pandemic has caused significant upheaval and change in every walk of life in this country and indeed globally. The Criminal Justice system is far from unique in that regard. HMCTS is now issuing a daily operational update and for now the Crown Court and Magistrates’ Courts are only covering urgent work with physical hearings being avoided where possible.
The most dramatic impact has been the almost complete cessation of jury trials. This has come in stages, much like the Prime Minister’s measures for social distancing. Initially it was decided that there would be no juries sworn in new cases from 18 March except for short trials of up to three days. By 23 March it appeared even that was untenable with the Lord Chief Justice ordering there were to be no new trials or in-person court appearances unless it was safe to do so. There has been a concerted effort to finish those jury trials which were still in progress and as of 24 March 2020 there were a very small number of jury trials continuing around the country, most of which were close to conclusion.
There may be solutions to all of these problems, but they will take time and technology to solve.
Social distancing in the context of a criminal jury trial is very difficult to achieve. There are a large number of participants; defendants, barristers, judge, witnesses, security staff, court staff, spectators and most crucially the twelve members of the public who make up the jury themselves. Jurors usually sit in close proximity to one another in court and retire to a small room together to deliberate. Advocates sit together in counsel’s row and in the case of a multi-handed trial it is impossible to put 2 metres between them in even the largest of courtrooms, similarly with defendants and security staff. This is before we turn to consider the need for barristers and solicitors to attend on their clients in often cramped cells and to be searched before they enter. There may be solutions to all of these problems, but they will take time and technology to solve.
The Coronovirus Act 2020 contains limited measures so far as the operation of the Criminal Justice system is concerned. The Act amends existing legislation to expand the use of an audio or video “live links” and to allow public participation in criminal proceedings by way of audio or video link.
Listing officers were already under immense pressure with fewer court rooms available
However, in truth, it does not appear that any of these measures will assist jury trials to carry on or indeed re-start. Although witnesses or defendants may give evidence more routinely by video-link and the need for justice to be open could be dealt with by audio or video link rather than having members of the public in attendance, it is difficult to imagine how a jury trial can be carried out without 12 jurors, barristers and judges in a courtroom together. Like so many consequences of the public health crisis, this is extremely worrying. For all defendants and similarly witnesses, there is likely to have been a considerable delay before their trial is heard, they may have been waiting for many months for a case to be heard already and delay and uncertainty causes emotional and physical turmoil. Listing officers were already under immense pressure with fewer court rooms available, and the cases which should be being heard now will clearly still need to be heard in the future, creating a huge backlog when the restrictions are eventually lifted.
Importantly, many defendants are in custody and so the delay or adjournment of their trial has a direct consequence on their liberty. While courts will accept that custody time limits can be extended for this exceptional reason, at present a deprivation of liberty is significantly more onerous and punitive than ever before. Those detained will be concerned for their own safety, for the wellbeing of their families. Maintaining the health and safety of large numbers detained in close proximity brings its own challenges; in some countries prisoners are being released for this reason and it is being considered here too.
What is clear is that there is no work-around free of consequence and this virus is causing suffering and sacrifice in the justice system as in every other sector. However, unless the Ministry of Justice has the time and resources to think very imaginatively about how a jury trial could be fairly conducted truly remotely it appears that this problem, like so many others in this crisis, is insurmountable.
Upcoming blog posts will address the impact of the response to Covid-19 on court procedure, new offences, and extradition hearings.
