Though hearings and trials are being held remotely where logistically possible, no new jury trials have begun since 22 March. The pause button was also pressed on ongoing jury trials but some are ongoing once again, along with other hearings still taking place in court buildings – albeit with a skeleton staff. A significant backlog of cases can be expected over the coming months.

New legislation

About a week before Prime Minister Boris Johnson announced a full UK lockdown, it’s understood emergency legislation was announced to ease chronic overcrowding in prisons, allowing hundreds of prisoners serving less than four years in jail to be freed up to six weeks early. Since then, pregnant women in custody who do not pose a high risk of harm to the public have been temporarily released from prison.

In the Spring Budget on 11 March, the Chancellor of the Exchequer announced that the Ministry of Justice was to invest more than £90m to improve safety on the streets; improve community sentences and support victims of rape and domestic abuse. He indicated:

nearly £70m of that investment will go towards toughening community sentences, including the use of new technology such as alcohol monitoring sobriety tags and GPS location tracking.
£5m would go towards funding a pilot of new integrated domestic abuse courts which would consider family and criminal matters in parallel; and
£3m to go towards launching a Royal Commission into the criminal justice system to improve the efficiency of the process.

But one experienced criminal barrister questions whether such a cash injection will be enough to restore faith in the criminal justice system, given, for example, that royal commissions take a long time. In any case, he doubts the changes will happen in light of the deepening coronavirus crisis.

Mark Cotter, who is a barrister at 5 St Andrew’s Hill, told theSOLICITORSgroup: “Repeated governments have deliberately closed their eyes to the gradual breakdown of the very fabric of the criminal justice system in England and Wales. They choose instead to champion populist measures that give the impression of positive action, as demonstrated in this year’s budget, which promised investment in tougher community sentences and a new Domestic Violence Court.”

He says that promises to toughen community sentences by using technological advancements is “really just a way of avoiding sending defendants into prisons that are already packed to the rafters with those convicted of serious offences – because there is literally no spare capacity”.

Cotter notes that prison sentences have been getting increasingly severe for decades and the trend looks set to continue with, he adds, a government desperate to be seen as tough on crime. He comments: “In truth, those who commit crime have had it easy for a long time as police, legal and court resources have been stretched to the limit and beyond, resulting in far fewer prosecutions.”

He believes that realistically, the proposed measures would do nothing to solve the structural crisis in the criminal justice system, if they were to go ahead. He also warns that low pay and poor working conditions have created a legal recruitment and retention crisis. If this is not stemmed, he warns of a dearth of talent in the system.

New reality

Cotter continues: “Lose good lawyers and you lose efficiency and, even worse, correct outcomes. You lose a talent pool from which to recruit future judges and the confidence of those who come into contact with the system. That system has been unimaginably damaged by the recklessness of governments over the last fifteen years and now it has to face its biggest crisis in a generation.

“However, the reality is that now none of the measures introduced in the Budget will likely happen, given the coronavirus outbreak and the incredibly damaging effects it is having on an already failing criminal justice system. Money will no doubt need to be re-directed, such as into legal aid and trying to resurrect unused courts.”

He notes that in the face of the coronavirus, the Lord Chief Justice initially directed ongoing jury trials to be concluded where possible, and that no new jury trials should begin with a time estimate of more than three days. There was, he says, little confidence amongst the legal profession right from the beginning that this would be achievable.

“This view was justified, given that we are now seeing that substantial ongoing trials throughout the UK have been abandoned, and it has now been confirmed that no new jury trials will begin, with most magistrates’ court trials also having been suspended”, he comments.

“The effects of this are that hundreds of magistrates’ court trials and jury trials, including large multi-defendant cases, are piling up in a huge backlog on top of the large backlog that already existed. In many of these cases the defendants are being held in custody.

“This is a genuine emergency. Even when the crisis subsides, there will not be enough functioning court rooms to manage the backlog, as the government has sold off large numbers of court centres for development.”

Meanwhile, HMCTS is consolidating the work of courts and tribunals into fewer buildings; and is daily publishing its operating schedule on its website, summarising what is timetabled at those court buildings that are open during the outbreak. For instance, on Friday 3 April jury trials that were underway were still continuing. In addition, the Magistrates’ and Crown Courts were only covering urgent work.

But the experiences on lawyers on the ground are troubling. It is being reported, for instance, that there are defendants appearing in the Magistrates’ Courts who have exhibited Covid-19 symptoms as the police had not trained enough staff to operate video links for virtual hearings. There are serious concerns that this is putting staff and lawyers at further risk and HMCTS need to take these concerns seriously very soon.

As criminal solicitor Stephen Davies has commented on Twitter: “Criminal legal aid solicitors and barristers will be decimated. I have relentlessly tweeted for years about the extinction of this profession. A virus may well be the final blow, but the writing has been on the wall for years.”