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The coronavirus pandemic has hit the criminal justice system as hard as other areas of national life, with the courts having to respond quickly to a constantly-evolving situation. In this article, we examine the key changes and potential long-term impact on already-stretched legal resources.
Observing social distancing
Although those who work in the courts and tribunals (be they the judiciary, lawyers, administrative or other staff) are all key workers for the purposes of the new Government guidelines and can therefore travel to court where necessary, the sensible Government strictures on social distancing and remote working apply to courts and tribunals as much as to any other area of civic life.
As of 2 April, the position is broadly this:
Jury trials that are underway will continue if possible, for example, if a jury is near to or in retirement; whether other trials continue will be at the discretion of the trial judge, subject always of course to individual trial participants believing that social distancing measures are in place sufficient to protect their welfare.
No new jury trials will start.
Magistrates’ Courts are only covering urgent work – e.g. overnight custody cases and people brought from prison; any terrorist cases; any new offences under coronavirus legislation.
The High Court and Court of Appeal are only covering urgent work.
A number of courts have recently closed, with no confirmed date for them re-opening.
The courts have had to respond quickly to ensure the safety not only of people participating directly in the criminal justice system but also the contacts of those participants. Whilst the priority is to avoid unnecessarily physical attendance, where such attendance is necessary, social distancing measures are being strictly implemented.
The thrust of the courts’ efforts is to avoid physical hearings and to arrange remote ones wherever possible.
In the Crown Court, many hearings are being held with participants attending remotely using, for example, Skype for Business and other software to take personal part in the proceedings; some courts are dealing with administrative hearings by using messaging on the Crown Court Digital Case System (CCDCS), others by way of email correspondence between the parties and the judge.
The Coronavirus Act 2020 (ss53-57) has made substantial amendment to the laws concerning video and audio hearings and will significantly extend the ambit of circumstances in which video links, remote access etc. can be used. Watch this space for more detail of the new provisions and, importantly, whether they are working.
Of course, the major difficulty now and for the future is handling trials. Trials involve many inter-acting participants and cannot be effectively run remotely. There are also issues of fairness to both defendants and complainants. As we’ve seen, new trials are not being listed and those currently listed are being postponed; very few trials are being heard. Although this situation is being kept under constant review, it is impossible to tell for how long this freeze will continue.
Once it is over, the listing landscape will have changed beyond recognition. An already overloaded system will have many hundreds of trials that will have to be prioritized and re-listed. As far as health and safety matters are concerned, cases where there are corporate defendants (even if a fatality is involved) are unlikely to take priority over general criminal trials where there are human defendants (often in custody) and, for example, vulnerable complainants. This almost inevitably means that unheard health and safety matters, both those already in the system and also those about to be, will face very considerable delays in reaching a conclusion in either the Magistrates’ Court or the Crown Court.
In essence, the courts are continuing to function as best they can. Only time will tell what the long-term impact will be.
Author: Mark Brookes, Legal Director.
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