When the pandemic hit our shores in 2020, two dynamics were driving the operation of the criminal justice system. First, the Ministry of Justice policy to withhold funding for sufficient sitting days to meet established need – with the result that, for some years, the criminal courts ran at far less than maximum capacity. It was in these circumstances that the backlog grew. Second, Her Majesty’s Courts and Tribunals Service (HMCTS) reform programme which has, at its heart, court closures and increased use of digital technology.

This, then, was the prevailing situation. COVID-19 quickly resulted in the complete cessation of jury trials, almost bringing the criminal justice system to a standstill. The resultant conflation with the pre-existing backlog has generated a dangerous level of delay. Trials are now being listed into 2022/3. At the end of March 2021 there were 396,419 outstanding criminal cases in the Magistrates’ Court and 59,532 in the Crown Courts; an increase of 45% on Q1 2020.

As the nature of the debate changes from how we get through the pandemic to how the backlog is reduced, this article evaluates the measures taken to keep the justice system functioning during the pandemic and the obstacles to further recovery.

Assessing the courts’ COVID response

The effect of the pandemic on the business of the courts was profound and unprecedented: most courts closed for a few weeks in the first lockdown. The crisis was met initially with a radical increase in the use of virtual hearings. Until the cloud video platform (CVP) technology was rolled out in April 2020, judges worked from home using Skype, with counsel beaming in from their own homes and defendants video-linked from prisons. In time, remote hearings were operated from court premises but jury trials were simply impossible.

Judicial Working Groups, instigated by Edis LJ, were set up to mastermind the judicial response. One such working group produced the Nightingale Courts Report in May 2020. This proposed a strategy to restart jury trials through a series of measures, including a rigorous hygiene regime, use of acrylic screens, social distancing of participants in courtrooms, managing the flow of people around the court buildings, the addition of external portable spaces to serve as jury deliberation rooms, and temporary courts utilising suitable host buildings – known as the ‘Nightingale courts’.

The Nightingale courts became emblematic of the response of society to the pandemic: bringing out a wartime ‘can do’ spirit to maintain the rule of law at a time of crisis. As of 13 September, there were 56 Nightingale courtrooms across 27 court centres. They occupy a diverse collection of buildings such as The Knight’s Chamber, Peterborough Cathedral, the Lowry Theatre Complex, Salford (pictured above) and various hotel suites, educational and office buildings. (New sites open as others close; the live list of Nightingale courts can be seen here.)

The types of building which lend themselves more easily to becoming a Nightingale court are hotel function suites, theatres and civic hall performance spaces, mothballed courts or those recently sold to fund the reform programme. Office space has proved less useful because the lower ceiling heights and columns prevent clear sight lines across a court and offices have a lower proportion of public space.

As restrictions relaxed on 19 July, said to be ‘Freedom Day’, for the justice system it was business as usual. The HMCTS response could be summarised as ‘a slow return to normality’. Solutions – ie maintaining the scale of remote hearings, adapting courtrooms to accommodate multi-handers, increasing the number of Nightingale courts and now lifting the limit on Crown Court sitting days – are beginning to yield results but the scale of the backlog remains colossal.

Remote hearings: here to stay?

The government says that 20,000 remote hearings will be held each week. There is therefore considerable pressure on the judiciary to continue to allow video-linked hearings on the current scale. This may prove to be an example of emergency procedures becoming the new normal, but perhaps without sufficient scrutiny of the long-term implications.

The Bar has welcomed CVP, which makes it possible for an advocate to appear at four or five different courts in one day without the cost and inconvenience of travel. Barristers can structure their workload as never before. As one junior barrister put it, ‘Now I work in the day and there are no more long evenings preparing and no early morning starts.’

It seems highly likely, and understandable, that the Bar will resist any return to the pre-pandemic position. On this point, the interests of the Bar are shared by HMCTS, which has driven the process of digitisation; an unexpected co-incidence of interests. Indeed, HMCTS explains that the Coronavirus Act 2020 allows for expansion and even fully video and audio linked hearings. The circumstances in which remote hearings will take place is continuing to evolve on a case-by-case basis, with many courts developing protocols to identify classes of cases that can be heard remotely.

Although remote hearings may be said to be in the interests of justice, does this necessarily guarantee the same for the individual, who may not be in a position to articulate or understand that a remote appearance may be to their detriment? Further research will be important to the debate.

The Cambridge Centre for Criminal Justice webinar, ‘Criminal Justice: Access, Architecture and Aspirations in a Post Covid-19 future’, held in July 2021, discussed possible effects of the loss of the physical court, recent research on non-verbal communication in the courts and its implications for video-linked hearings (see the webinar here).

For example, there were early concerns that video links might inadvertently give away personal information, the location of vulnerable witnesses or undermine the gravity of the court. In the early weeks of adaptation, it became quickly obvious that unspoken court customs of dress, address, demeanour and behaviour of those appearing on video links did not automatically carry over into the new virtual environment. Given that the protocols established in a physical courtroom have not necessarily been brought across to the new spaces attached to courtrooms, coordination is now required across prisons, police stations, solicitors’ offices and barristers’ chambers, and homeworking spaces, which can now be considered as extensions of the court itself.

Issues with the Nightingale courts

Many Nightingale courts have had their leases renewed and an ongoing review by the author seems to show that they are effective and making inroads into the trial backlog as judges and staff adapt methods for managing their new spaces, listing and local logistics. Critics point out, however, that no cost-benefit analysis has been carried out on these courts. Many of the buildings are expensive to rent, chosen in haste and unsuitable for serious jury trials requiring higher levels of security.

There are usually no docks or secure holding areas in the Nightingale courts, and there are impediments to remanding a defendant into custody upon conviction. This detail has been dealt with deftly, but security and building insurance issues continue to limit the scope of some Nightingales.

While there is no empirical evidence of utilisation rates, the anecdotal evidence is not impressive. A practical observation is that some of these Nightingale courts are not well utilised because they are not directly under the control of local resident judges. Easy to remedy.

Nightingales are located to serve a local need, and as such they are only efficient so long as they are managed as an integral part of local court provision. There are examples where listing works well. For instance, the three Nightingale courts at The Lowry, Salford and at Stockport Magistrates’ Court are managed as an extension of Manchester Minshull Street Crown Court by its Resident Judge HHJ John Potter. Listing works less well in other courts, however, the reasons for which are unclear. To resolve issues of effective listing, the Nightingale courts might be managed by local courts to make the very best use of their capacities. Two new courts at Leeds’ Cloth Hall Court will be managed and listed as extensions of Leeds Crown Court, for example.

Adapting existing court buildings

A significant and ongoing issue is that, under the current distancing arrangements, our existing stock of small courtrooms cannot accommodate jury trials and, for that reason, are not being used. Some courts are utilising two or more courtrooms to try multi-handed cases.

At Leeds Crown Court, portable cabins have been installed in the court’s yard to provide space for juror deliberations, and a new docks-with-screens solution to allow multi-defendant custody trials to take place. It is entirely feasible to implement this model elsewhere, substantially resolving the difficulties of trying such cases, and free up the remaining smaller courts being used as jury rooms (as has been the case at the Old Bailey, where three courtrooms have been connected by video links to host a single trial).

Indeed, in Manchester, Crown Square, the first ‘super-courtroom’ opened on 10 September after amalgamation of a large court with surrounding ancillary spaces and utilisation of the Leeds Dock model enabling 12-handed trials. Plans are afoot to similarly modify another 71 courtrooms.

Future resurgence; opportunity through design

The mid-term problem is that of keeping jury trials running in the face of potential resurgences of COVID-19, and any future pandemics, requiring a pragmatic approach to the safety of spaces where many people gather and spend several hours a day in an enclosed environment.

What we now know is that the primary method for the virus to spread is aerosol transmission, in droplets projected through the air, and that screens and contact cleaning, choreography of movement and management of flow of people at pinch points, social distancing and contact tracing only mitigate the spread of the disease. This was identified early on in the pandemic, and court air conditioning units were checked to ensure that clean and fresh air was constantly renewed and that used air should not re-circulate.

This should surely be a lightbulb moment regarding the necessity of clean air in courts. As a nation we have a history of setting the a high bar on workplace and living environments: The Clean Air Act 1956 and 1968, the Clean Air Strategy 2019 and amendments to the Environment Bill 2020.

The Nightingale Courts Report, a direct response to address the problem of courts no longer able to function safely, forced a new model of courts design. Local teams of judges and HMCTS staff found solutions, showed commitment and initiative in partnership, supported by the local legal profession.

What we do next matters. We need new research to yield knowledge about how access to justice has been affected during the pandemic, and a coordinated approach to how this knowledge may be applied to maintain the integrity and fairness of the justice process. Timely and safe access to justice is pivotal: public confidence demands it. The trial backlog must be reduced and a strategy to do so should incorporate the best of new research, knowledge and practice. 

© Flickr/Nathan Chandler
The Nightingale courtroom at The Lowry Quays Theatre