Opinion: Where next for post-COVID criminal justice? asks The Secret Barrister

Something must be done or the much-vaunted ‘new normal’ will be taking place without us. The Secret Barrister boils down the critical issues into a five-point alternative recovery plan for criminal justice


Three months after the COVID-struck crown courts halted jury trials, the criminal justice system remains in abeyance. Court centres are incrementally reopening and socially distanced jury trials have been drip-fed into a handful of chosen crown courts, but this is no harbinger of an imminent return to normality. Heaving courts, multiple trials and bustling robing rooms have been substituted for a cocktail of sterile Skype mentions and in-person hearings in which admission to the building is conditional on regimented entry and exit times. It’s criminal practice Jim, but not as we know it.

More worrisome still is what feels like an absence of any overarching strategy from on high. We are dependent still on piecemeal decision-making and ad-hoc speculation; the notion of joined-up thinking in justice feels as elusive now as it did at the end of March. In particular, the five following areas require urgent attention as we transition into post-COVID criminal justice.

1: The backlog

At the time of writing, the backlog in the crown court has passed 41,000 cases, with the figure in the magistrates’ courts exceeding 480,000, and those numbers do not account for the thousands of investigations in which charging decisions have been delayed, and which will come gushing through the criminal justice pipeline over the coming months. The only solution is running the courts at full capacity as soon as it is safe to do so. The days of court centres operating with only a quarter of its available courtrooms open must be recognised for the short-sighted false economy that they were. As the Western Circuit report This Doesn’t Look Like Justice so starkly exposed, the delay between the alleged commission of an offence and the end of criminal proceedings had soared even prior to COVID (see: bit.ly/2Cz11Ms). The product of reduced sitting days and police overreliance on Release Under Investigation (RUI) built a standard 18-month delay into many criminal proceedings, with adjournments and delays a common feature of court centres forced to deal with increasing volumes of work while the Ministry of Justice (MOJ) closed perfectly serviceable courtrooms.

Something significant has to change. Regrettably, the MOJ is suggesting that the answer lies in less expensive – and wildly radical – alternatives. Which brings us to:

2: Jury trials

While the Jury Trial Working Group chaired by Mr Justice Edis has succeeded in restarting a selection of trials in a selection of court centres, the long-term plan remains opaque.

Current estimates are that courts will not be able to operate at more than 25% capacity in order to ensure adequate social distancing, with little indication of how lengthy, multi-handed trials will be effective.

Repurposed large multi-seater venues (‘Nightingale courts’), remote jury trials, seven-member juries and Diplock courts have all been floated, dismissed, re-floated and re-dismissed in an interminable cycle of speculation. Of these, the former appears to be most sensible. Unfortunately, despite it having been plain to everybody since March that long-term alternative measures would be required, the Lord Chancellor confessed in June that the MOJ had only identified ten alternative venues for trials, when 200, by the government’s estimate, would be required. A critic might suggest that the MOJ has a word with whoever it is that has, since 2010, sold over 200 viable court centres to luxury flat developers and the like, but irrespective of past executive negligence, the fact remains that only three alternative venues a month are being identified, let alone acquired, furnished and opened.

In June, the Lord Chancellor – and, disappointingly, members of the senior judiciary – gave public statements in support of replacing juries in certain cases with a Circuit judge sitting with two lay magistrates. This radical restriction on the right to jury trial, it was suggested, might be necessary in order to tackle the backlog, notwithstanding that the backlog exceeded 50,000 cases in 2014 without a ministerial eyelash being batted. There is not space to deal comprehensively with the folly of this suggestion, although it is of particular note, given recent events, that the Lammy Review found that the jury verdict is the one area of the criminal justice process in which there is no disparity in outcome by reference to race. After a robust response by the criminal Bar, the Lord Chancellor appeared to back down, although a ‘lesser evil’ of reducing juries to seven members apparently remains high in ministerial thoughts.

Reading between the lines, the contemplated future appears to be a combination of Nightingale courts, seven-juror trials and the omnipresent assumption that counsel attend for extended sitting hours morning, evening and weekends, for no extra pay.

3: Consistency

One of the most maddening aspects of the criminal justice system’s switch to digital hearings has been the nationwide inconsistency. Different courts have embraced different technology, different working practices and different arrangements for the attendance of counsel and defendants. The roll-out of Cloud Video Platform (CVP) will hopefully address the former, but the absence of a coherent approach to court attendance across HMCTS is at once inexplicable and inexcusable. Why, to take one high-profile example, was there a declared expectation that practitioners at Leeds Crown Court attend PTPHs in person, while presiding judges on other Circuits continued (sensibly) to allow counsel to attend over videolink? Either it is perfectly safe for counsel to go to court as normal or we are in the grip of a Public Health Emergency in which social distancing is to be encouraged and the use of public transport is to be avoided, and we should be continuing to work remotely wherever possible.

Judicial communications in this regard have been a shambles, straddling insulting and offensive with impressive dexterity. Announcing on a Saturday that advocates will be expected to attend magistrates’ courts in person on the Monday was a particular highlight, forcing an emergency summit with our respective representative bodies before a ‘clarification’ was issued. Adopting a consistent national approach to when and for what purposes counsel need to attend in person, and affording us the courtesy of notice – if not consultation – should be an achievable baseline.

4: Court conditions and safety

Notwithstanding HMCTS’ claims of ‘deep cleans’ and lessons learned, the same old problems with the court estate persist. Photographs emerge weekly of court centres where the furniture is thick with dust, dead insects and miscellaneous dirt. Colleagues have complained of cleaners casually dragging filthy damp cloths over surfaces as a nod to sanitation. As more court centres reopened and solicitors had to decide whether it was safe to send staff back into court, they were met with intransigence when they asked to see risk assessments for magistrates’ courts. There have been numerous complaints of magistrates’ courts continuing to list all cases at 10am, packing dozens of defendants into cramped waiting areas in cheerful defiance of social distancing. Why such basics continue to elude local management, and why HMCTS has still not addressed listing practices and court conditions, is yet another unexplained failing.

5: The future of the profession

Before writing this piece, I totted up my gross earnings for the last fortnight. They total £721. Of that, I’ll take home around £330. And this has been a good fortnight; a veritable feast of videolink mentions and adjourned sentence hearings. Some weeks don’t surpass double figures.

Extrapolating this generous figure gives an annual income of £8,580, several legions under the minimum wage threshold. Predominantly publicly funded chambers simply cannot survive. The ‘financial assistance’ extended by the government has amounted, laughably, to agreeing to pay us timeously for work that we have done. Meanwhile, the most junior among us have found themselves reliant on Universal Credit, contemplating ending their career at the criminal Bar before it has even begun.

The government is still pretending that there is no existential threat to the criminal Bar. There is. We will, at most, be undertaking maybe one trial per month for the foreseeable future. If something is not done soon, the much-vaunted ‘new normal’ will be taking place without us.

Category: 
Issue: 
Author details: 
The Secret Barrister

Best-selling author of The Secret Barrister: Stories of the Law and How It's Broken (Picador: 2018), and Independent Blogger of the Year (2017 and 2016 Comment Awards), the Secret Barrister is a junior barrister specialising in criminal law and blogs at thesecretbarrister.com. Fake Law: the Truth About Justice in an Age of Lies by the Secret Barrister was published by Picador on 3 September 2020.