The COVID-19 pandemic is leaving no sector in society untouched. From schools to offices, and hospitals to court rooms, the world is having to reimagine the way that day-to-day life functions.
The criminal justice system is being particularly challenged by the spread of the virus. On Monday 23 March, Lord Chief Justice Lord Burnett announced that no new trials were to commence. He also called for ongoing trials to be paused while preparations are made to ensure safety and social distancing measures are in place.
Courts have been told to use ‘considerable imagination and flexibility’ to work around the virus. However, Ian Kelcey, the Co-Chairman of the Law Society’s Criminal Law Committee, like many, has called the court arrangements a ‘muddle’.
Speaking about the courts and COVID-19, in a statement the Criminal Bar Association said: “The current situation exposes court users to unacceptable risks.”
However, the Coronavirus Bill will bring in new measures which will affect the way that courts conduct themselves. This includes the introduction of virtual courts and the postponement of criminal trials. Some lawyers, magistrates and MPs have raised fears that these new practices lack transparency and jeopardise the right to a fair trial.
Live links are already used in the criminal justice process, however the bill will extend these capabilities.
Now, in line with new legislation an individual can appeal against their physical presence in court due to COVID-19. In this case civil proceedings will take place either over the phone or by video.
On 24 March 2020, legal history was made as the first supreme court case took place in a completely virtual setting. This was the matter of Fowler (Respondent) v Commissioners for Her Majesty’s Revenue and Customs (Appellant).
Dr Natalie Byrom, Director of Research at The Legal Education Foundation has made recommendations that additional safeguarding mechanisms are included in the bill to ensure that access to open justice is maintained. Some of these mechanisms include, providing additional technical support and recording and transcribing all video hearings.
At present, HMCTS currently has a total of three different conferencing systems which are used in the courtroom. This includes the Justice Video Service, used between prisons and courtrooms, as well as BT Meet Me which is an audio conferencing system. The last system is Skype for Business, this is typically used by judges when using their HMCTS-issue laptops.
However, the digitalisation of court proceedings brings with it its own difficulties. Dr Byrom suggests that the failure rate of technology and the extent of technical difficulties should be monitored. Nevertheless, these interruptions could still seriously undermine justice being served.
Speaking about the increased use of technology amid the spread of COVID-19, a litigator speaking to Legal Business said: “The idea any half-complicated part of a case can be done over video is a dream. Criminal cases are over, the courts are so underfunded and ill-served by technology that this is the sort of crisis they can’t deal with.”
A further issue which could lead to the disruption of proceedings is the poor quality of video links and WIFI difficulties. In the UK bandwidth issues are already being experienced due to the dramatic surge in online traffic. However, internet providers have said they are ‘ready’ for the challenge of heavy data traffic. BT, for example has claimed: “Even if the same heavy data traffic that we see each evening were to run throughout the daytime, there is still enough capacity for work-applications to run simultaneously.”
Other countries such as Spain have been more forthcoming with their concerns. The Spanish government has now asked its citizens to reduce their internet activity in peak times. According to Ofcom, in Spain, the full fibre network covers 75% of the country, and in the UK it covers just 8%. So, it is understandable that people have expressed concerns about how this will affect virtual courts.
Many have argued that the implementation of virtual courts and video links eliminates transparency. It has also been said that it can be detrimental to both the mental health of the defendant, and their understanding of the legal process.
So far, recommended safeguarding includes ensuring that parties have ‘effective access to legal advice’ and that there is ‘monitoring’ of ‘the impact of fully video hearings’ on legal representatives’ ability to ‘effectively’ communicate with clients. However, it is apparent that this may not be enough to safeguard the legal process from being diluted or corrupted.
In 2017, Transform Justice found that appearing on video for some defendants can increase feelings of ‘isolation’ and ‘stress’. Subsequently, it was questioned what kind of effect video links and virtual courts will have on those who suffer from mental illness, learning disabilities, or autism. The qualitative research ultimately found that video hearings significantly reduced both the defendant’s understanding of the court process and their respect for it.
Lord Chief Justice, Lord Burnett also recently announced that criminal trials at crown court which last more than three days will be postponed for the foreseeable future. While this decision has been made in an effort to contain the spread of the virus, it is not without its criticisms.
Lawyers within the field have highlighted that this will lead to a significant backlog of cases. This is in addition to the 30,000 that are already awaiting trial.
The implications of this are certainly concerning. The postponement will mean that witnesses will have to potentially wait years to see justice.
There are further concerns for prisoners who are currently on remand, and will be forced to wait for release in prison. This is at a time when prisons have been deemed a ‘petri-dish of infection’. Currently those on remand make up 11% of the prison population. Of that 11%, 54% are awaiting trial for non-violent crimes.
In addition to this, a 2018 report by MPs found that 15% of the prison population suffered from respiratory conditions. This means a large percentage are already at high risk of the virus.
At present, across the UK 13 prisoners and 12 prison staff have been tested positive for COVID-19. Experts have warned that the virus could lead to up to 800 prisoner deaths if more effective measures are not brought in soon.
This week, Robert Buckland QC, told MPs that prisons are facing a “huge challenge”. He added that to ‘alleviate’ this pressure the release of low-risk prisoners is being considered.
Criminal Justice charity Appeal has called for the release of inmates who are pregnant, non-violent, over 70, have serious health conditions, or are currently housed in minimum security prisons.
Temporary release licenses are currently being contemplated for ‘non-violent’ prisoners. Additionally, up to 50 pregnant women are also now being considered for release. Committee Chairman Sir Bob Neill said he is looking for an equilibrium between: “The need to save lives and protect the vulnerable, and maintaining law and order and public protection”.
Meanwhile, some magistrate courts have closed altogether. This includes Birmingham Magistrate Court, where defendants who are not in custody are being sent home and their cases adjourned.
It is clear that COVID-19, and the legislation implemented to combat it, pose an undeniable threat to the cornerstones of democracy.
Aware of this threat, constitutional lawyers are already calling for a failsafe clause to be included within the bill. This is to guarantee that the rule of law is upheld, and fundamental rights are not infringed upon.
What is essential now, is to ensure that the government does not use emergency powers to erode individual liberties or undermine rule of law. It is also vital that effective safeguarding mechanisms are put in place so that COVID-19 does not collapse the UK justice system as we know it.