Has the progression of Covid-19 exposed the flaws in our criminal justice system, and if so, can they be fixed?
By: Daniel Mardle
Tags: Criminal Justice, Criminal Law, Legal System

The plight of the UK criminal justice system, which seems to have passed many by over the years, has garnered more attention recently thanks to the coronavirus pandemic which has led to difficult situations like further trial and hearing delays, and rethinking some of the ways it operates.

Those who work in the profession, from the solicitors to the clerks, and the judges to the barristers, might say it’s time to take stock of what’s working and not working in the justice system, and can only hope that the government in charge will listen to their concerns.

Will the criminal justice system have to contend with a bigger financial crisis than ever before?

The most pressing crisis that the UK criminal justice system could be facing right now is a financial one in the face of Covid-19.

But after a decade of austerity, anyone in the legal sector will tell you it was already facing one even before Covid arrived.

“Everything was staggering by before Covid and now things have just gone badly wrong” according to Alistair Webster QC.

Mr Webster, from Lincoln House Chambers, thinks the government is to blame for the situation the legal system was in when Covid landed and only exacerbated a lot of problems.

“It can’t go on without substantial money being injected in to it. It simply was working, reliant upon the good will of lots of people in the profession… who’s good will was being abused by the government.

“The fact is that lots of criminal solicitors have been going out of business over the last five years and those who are in a critical state are going to be pushed further to the wall. So they’ll be less people doing it, there’s not a sufficiently robust system to withstand these shocks and unless they put significant investment in, it’s [going to] get significantly worse.”

It was reported in April 2020 that the Bar Council was calling for an urgent rescue package after having to cut its budget and furlough 20% of its staff, though some in the profession were sceptical of seeing any kind of help.

“The government never sees votes in lawyers” Mr Webster said, admitting he doesn’t think it’s very likely the government will extend any help to solicitors or the Bar, and that both less successful chambers and those with a higher profile will struggle quite badly.

Mr Webster also predicted a collapse in morale, less incentive and perhaps even less opportunity, for those in the profession reliant on publicly funded work.

When it was also reported that 53% self-employed barristers believed they may not survive 6 months out of work Mr Webster thought it was very plausible, when they still have the running expense and professional subscriptions to pay for.

Andrew Thomas QC, also from Lincoln House Chambers, hoped the government would help but recognised there were a lot of competing demands and also believed that looming financial difficulties posed the risk of many losses to the profession, which would only make the backlog of cases and delays to the system worse than they are now.

Mr Thomas pointed out that barristers earning less than before can only manage for so long in that situation.

“The effect of austerity has got two major effects,” he said.

“The first one is that we came in to this crisis already with a huge backlog of cases, so the growing backlog…. is piling on to a backlog that was already there so it’s made a really bad situation a whole lot worse.

“Also, there’s no slack at all in the court system. There’s been a huge cut in the number of personnel working in the courts, and once this crisis is over and once we get back to normal working and we’re faced with that backlog, we simply don’t have the manpower there to gear up and start tackling that backlog.

“We’re not [going to] be able to work at a faster rate than we were before because we haven’t got the staff to do it, and it would take a very long time to train the staff to do it.”

In 2018 it was reported that 6,500 courthouse jobs were due to be cut by 2022 in a plan to help with savings to the justice system, while in 2019 it was revealed the number of agency workers in Britain’s courts had risen by two thirds over three years to offset the loss of permanent staff.

Huw Edwards, from Exchange Street Chambers, compared the plight of the criminal justice system to the NHS, that if it isn’t funded properly and people are overworked then it can’t be expected to work as it should.

He said despite the government’s promise in the 2019 General Election to put 20,000 new police officers on the street, when pointing out that up to 20,000 officers were cut over the past 10 years, it won’t help the rest of the legal system if there aren’t enough people to try, prosecute or defend, or enough of an infrastructure to accommodate the entire process.

“There is no point in arresting a burglar if you can’t prosecute them.”

“It would be like funding a triage nurse and not the rest of the NHS. So you can diagnose someone but you wouldn’t be able to have the x-ray, the operation [or] the recovery.”

Mr Edwards was sceptical of the idea of any help coming from the government, whether that be funding for new facilities or help for furloughed barristers, while also citing lack of public awareness for the legal systems troubles.

“I don’t think there’s the political will to support [it]. I don’t think the general public understand what we do.”

The sentiment was shared by Anna Chestnutt, another barrister from Lincoln House Chambers, who also believed the legal sector needed serious investment to get it back on track, not just to a pre-Covid level but a pre-austerity one starting with reopening courthouses that had been closed even before the pandemic just to save money, and by opening more alternative court centres.

But the pandemic is likely to have a detrimental effect on recruitment within the legal sector in the foreseeable future.

Ms Chestnutt revealed that thanks to the pandemic Lincoln House Chambers won’t be offering any pupillages next year, thereby closing their doors to any new recruits in that time.

For the moment Exchange Chambers still have a pupillage scheme in place to fund the first six months, and will try to guarantee an income for the following six months despite admitting it may be difficult to do due to a shortage of work under the current circumstances.

Gordon Cole QC from Exchange Chambers said barristers’ chambers will have to manage a lower turnover than they’d like, and since barristers from his chambers are self-employed it will be necessary to rethink their budgetary requirements.

“I think in the future there’s massive problems with recruitment to the legal profession” said Alex Preston, a solicitor from Olliers.

The average age of a duty (defence) solicitor is 49, and according to Ms Preston fewer people may go into criminal or legal aid defence work because it’s so poorly paid.

So with a system struggling financially, and the prospect of potentially dwindling staff numbers, what other options might there be to keep the criminal justice system afloat?

Will juries be reduced?

In April 2020 the Lord Chief Justice, Lord Burnett, said it might be necessary to look at more radical solutions to enable jury trials to continue, like reducing the number of jurors from twelve to seven as was done in the Second World War.

While Geoffrey Robertson QC suggested giving the defendants the option to dispense with a jury altogetherand opt for being tried by just a judge and two magistrates instead.

The former idea would seem to be the most divisive among barristers, and according to Mr Thomas most of the legal profession opposes the latter.

“[T]he concern is that won’t have public confidence in the way that jury trials do.

“A jury made up of members of the public generally has the confidence of the participants that they’re coming to the right conclusion.”

Mr Thomas had practiced in civil claims cases against the police involving smaller juries of seven and said it didn’t affect the outcome.

However, he didn’t think it would necessarily accelerate the speed in which cases are dealt with, but could result in more courts sitting.

Mr Webster was also in favour of reducing the number of jurors to seven as a strictly time-limited measure, and thought it could possibly accelerate the speed in which cases are dealt with since it wouldn’t require as much staff in the courthouse, but didn’t think it would ultimately make that much of a difference.

He was also suspicious that if implemented the government might be keen to retain the idea if it meant keeping costs down.

“The difficulty is that we all know what the government’s like and if they see they can save costs by trying to make that permanent they’ll seek to do so.

“It’s very much a second-best thing but to try and help out in the current circumstances I can see that it could be acceptable.”

While Ms Chestnutt on the other hand was very much against the idea of a reduced jury, but thinks they may reach a point where the backlog of cases is so great that a decision might have to be made.

She very much believed it would be more viable to hold court hearings in bigger spaces and apply further safety measures like Perspex screens in courts.

Mr Edwards believed reducing the number on a jury would be ‘significantly better’ than getting rid of them saying it should only be a last resort, and was completely against the idea of dispensing with them altogether, saying they bring a range of variety and opinion.

“The reason juries exist rather than just having a judge convict is because they’re real people.

“You want to have a diverse enough sense of background and of opinions that all bring something to deliberations.

“We shouldn’t just get rid of that because it’s expedient or financially beneficial. That would be a real shame.”

However, at the time of writing seven months after lockdown neither idea has come to fruition and talk of either seems to have gone quiet so any further development might remain to be seen.

Will targets be an issue?

But might an ever-growing backlog of cases raise the question of the courts being asked to meet certain targets in order to quash it? Or look at different ways of trial and punishment?

Mr Thomas didn’t think so, only that there would be a pressure to resume the work they do as soon as possible, while Mr Webster disagreed slightly, believing there may be pressure placed on those administering the courts to push as much work through as quickly as possible, and emphasised that the judiciary can’t be subject to targets in order to retain their independence.

“I think that what will change, or what has been changing, is that the CPS will be looking very carefully about whether to accept pleas to lesser offences… in the hope of getting more cases through the courts and reducing delays for the defendants, and victims of course” Mr Webster said.

Yet he stated the justice system ultimately cannot operate just to meet targets and has to be driven by providing the means to get the results.

“The extent of active case management that I’m seeing suggests to me there is pressure being put on the court system and the judges to get rid of the backlog without the need for jury trials,” Ms Chestnutt claimed, believing that courts might be encouraged to resolve cases for lesser offences without the need for a trial, so by calling barristers into court for a resolution hearing where the judge and barristers can negotiate what the defendant might be charged with, how they might wish to plea in order to avoid a trial, and perhaps avoid a hard sentence at the end.

Mr Webster shared the belief that prosecutors could look at pleas to lesser offences.

“Some prosecutors have always been rather anxious to do that, rather than get involved in having to prosecute a trial to be frank.”

Prison capacity may also prove to be a major issue so courts may have to take in to account less prison space might be available with more people being held on remand, so more people could be released on bail.

“The practical realities are that prison places are going to be under genuine threat,” Mr Webster stated.

The Ministry of Justice announced plans in September to extend the time limit defendants can be held in custody from 182 days to 238, stating the measure would be in place for nine months to address the number of delayed jury trial caused by the pandemic.

Under current law, a defendant can only be held in custody for up to 182 days after their first appearance in court, after which an application must be made to a judge for an extension to keep them in longer.

The Lord Chancellor, Robert Buckland, stated: “Throughout the pandemic this government has taken the necessary steps to protect the public while ensuring that justice continues to be delivered.

“This temporary extension to custody time limits will keep victims and the public safe, and we should not apologise for making that our priority.

[T]he measures I have announced today will get the criminal courts system back to where it needs to be — reducing delays and delivering speedier justice for all.”

Yet the extension was not met favourably with James Mulholland QC, chair of the Criminal Bar Association, saying “The answer to the justice crisis is not to extend the period of pre-trial detention for all in custody arbitrarily by a third where you penalise the innocent as well as the guilty.

“To do so invites delay rather than expedition, increases the numbers in prison and places far greater pressures upon those who work there.

“The extra millions this will cost should be invested in getting other trial centres up and running.”

Amanda Pinto QC, chair of the Bar Council, also said: “We understand the current issue about ensuring that potentially dangerous criminals are not released because their trial has been very delayed due to the existing backlog of trials exacerbated by Covid-19.

“However, we are very concerned that this 25% increase in the lawful detention of a potentially innocent person because there aren’t enough courts available to hear their trial does not become a license to push off cases for longer than absolutely necessary.”

But the Lord Chief Justice of England and Wales, The Lord Burnett of Maldon, was more welcoming of the idea.

“The pandemic has had an adverse impact on the timeliness of the criminal justice system, with many trials necessarily delayed.

“This plan is an important document which gives a clear path towards recovery as the judges and magistrates, in partnership with HM Courts Service, the Ministry of Justice and many others, strive to ensure that cases are heard as soon as possible in the public interest and the interests of all those involved in the criminal process.”

How will communication and technology have to adapt?

Many lawyers believe the legal system could have been better prepared by investment in new technology over the years.

In 2016 HM Courts & Tribunals Service (HMCTS) launched a £1bn court reform programme which included a video-conferencing tool called the Cloud Video Platform (CVP) which allowed for a dedicated private conference area enabling lawyers to speak to clients without having to visit them in prison.

The technology was still in the process of being implemented when the pandemic struck, and the government had to ensure it was up and running as soon as possible. But this proved to be a challenge, with only a restricted number of physical video links made available.

According to the Ministry of Justice more than 400 CVP meeting rooms have been made available since the outbreak, while adding that it is working to increase the availability of video conferencing at some locations by extending operating hours and increase the number of video link outlets at critical sites.

One of the purposes of the Coronavirus Act 2020 was to expand the availability of video and audio links in criminal court proceedings allowing them to function without needing all participants to appear in person.

This was intended to become a prominent feature in Magistrates courts since they handle first appearances in court along with hearings for low level offences and don’t require a jury.

“All of the pre-trial work in the crown court can be done remotely in my view, or certainly a lot of it can be” Mr Webster said, referring to the kind of matters that only require judges and lawyers to correspond with each other.

“Those are definite steps forward, and they’re welcome.”

Yet the idea of hosting jury trials by video wasn’t so welcome, with many in the profession saying its hard both for juries to get a feel of the case when they’re in a different room to the defendant and witnesses, and there’s no assurance of jurors’ ability to concentrate either.

“I don’t think that it would be possible to reach safe verdicts by conducting trials where the jury were not present in the same room at the same time that the evidence was being given, Mr Thomas said.

While Mr Webster called them “completely unrealistic,” adding “it’s just not a practical way of doing it.”

Any talk of putting the method into practice has since gone very quiet.

Are alternative measures available?

A recurring frustration among many in the profession is the shortage of appropriate facilities to host important procedures like jury trials in the current climate.

At least 250 courthouses have closed in England and Wales over the past decade.

A solution proposed by the Ministry of Justice over the summer to deal with the huge backlog of cases involved the opening of temporary courthouses in alternative buildings, dubbed ‘Nightingale’ courts after the makeshift hospitals of the same name erected earlier in the year.

The Justice Secretary Robert Buckland was pushing for them to be called ‘Blackstone’ courts, after William Blackstone, the 18th century judge and legal commentator, though the name never caught on.

Up to 18 have been proposed so far and opened, based in hotels, town halls, theatres and even former magistrates’ courts, though only eight are currently dealing with criminal trials.

Mr Thomas was hopeful that they could help, though not without some caveats.

“I think [Nightingale courts] will work, [and] will be very helpful, but… it’s going to be a limited number of cases that can be dealt with that way because setting up a court in a new building will require a large number of staff and the court service don’t have an unlimited number of staff.

Yet one of the most adverse effects caused by the increasing problems facing the criminal justice system could be on those caught in the middle awaiting justice.

“It causes massive anxiety to suspects or defendants… because everything takes a lot longer to be resolved,” Ms Preston admitted.

The Covid-19 pandemic is sure to bring its challenges, and the criminal justice system looks set to be stretched further than ever before to its limits, and when it does perhaps the consequences of a creaking justice system could become clear for all to see.

It perhaps wouldn’t be presumptuous to state that many of the people who work in the profession, and are dedicated to ensuring it runs smoothly, hope that some form of change will come, and one for the better.