Pulling back the curtain: Inside a ‘Nightingale’ Court!
By: Daniel Mardle
Tags: Criminal Justice, Nightingale Courts, Law

“This is a bit strange, isn’t it?” said one barrister walking by on their way into the theatre, on what sounded like it could have been their first day in a new type of courtroom.

And it probably is for those attending court in a theatre. Courtroom dramas seem like quite an easy match for the stage but this might look like it’s being taken literally!

Still, despite the necessity of getting the court system up and running again after several months of being closed down, the strange, and perhaps uncomfortable, realities of hosting a court in an alternative building during a pandemic cannot be ignored.

The Lowry Theatre in Salford has become one of the latest venues to be used as a stand-in courtroom to assist with the spread out socially distanced court hearings in Britain’s regular courthouses. Dubbed ‘Nightingale’ courts after the much-publicised temporary backup hospitals erected in places like the Manchester Central Convention Complex earlier this 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 idea didn’t seem to take off.

But what is it like to attend a ‘Nightingale’ court?

Well for such a large theatre it seemed almost lifeless when entering the building during the day.

Observers are admitted in to the proceedings, but limited in number to obviously allow for social distancing. One cannot forget the ever-looming threat, especially after Manchester Crown Court was forced to temporarily close again in August following the confirmation of several cases among staff.

Three of the four courts erected in the theatre are to hear crown court cases, with the fourth, a conference room, for tribunals.

The ‘Nightingale’ court will only be used to try less serious offences. When the theatre itself is used the defendant will be sat at the back from the far end of the stage, but without a screen to sit behind as you’d expect from a court, and sentencing will only be carried out back at the real Crown Court at a later date, since the theatre isn’t equipped to detain anyone.

The move to turn the theatre in to a makeshift courthouse comes amidst a difficult period for the theatre. Despite only 6% of its revenue coming from public funds, it was able to furlough most of its 250 member staff and receive £1.2 million from the Arts Council, yet didn’t qualify for many of the government’s Covid business grants, making the Ministry of Justice deal a “crucial lifeline” for the Lowry, according to its chief executive, Julia Fawcett OBE.

The value of the deal is unknown, though Fawcett said without it the venue would be at a loss of £20 million by the end of the year, while admitting it wouldn’t be enough to cover all the business’ losses for the year.

The security process when entering the theatre is just like it is when entering a normal courthouse. One still has to go through the metal detectors and be waved down by the security wands as you’d expect.

When I attended on the new courts opening day it was fairly quiet with only a civil court case underway but I was curious nonetheless to see how the ‘Nightingale’ court would work in practice.

But with a limited number of seats available in the made-up public gallery due to social distancing an available seat is very much dependent on how many people are required to attend which meant I had to wait for the security staff to let me know if they could accommodate me.

Fortunately, in this instance they could. The case was for an employment tribunal and held in the conference room which was a suitable enough size. Nine seats were placed at one end of the room for observers and all spaced apart.

A coat of arms had been placed behind the tribunal panel to officially make it a courtroom.

The proceedings were begun by the employment judge who had to explain some of the basic details of the new kind of housekeeping for everyone to abide to.

First, it was optional for anyone in attendance to either remove their face masks or keep them on. At least half the people observing kept theirs on, while the panel, claimants and solicitors all removed theirs.

Second, water wouldn’t be provided as it used to be and everyone was advised to bring their own bottle, which most people had already done.

Finally, a binder containing all relevant documents for the case normally sits on the witness table for any witnesses called to refer to instead of using their own copies. However, under the circumstances the panel had no issue with witnesses bringing their own instead, lest they be reluctant to touch anything handled by other people.

Overall it seemed like the room had been prepared quite adequately. The only small things one of the judges admitted might be an issue was that they still didn’t yet know where the photocopier was, or how to connect the laptop to the projector as it was the Lowry’s and they weren’t that familiar with their system yet, but these seemed like minor teething issues and there was no cause to use either yet while I was there.

However, the case was adjourned not long after beginning in order to allow the panel sufficient time to read all the relevant statements and documents pertaining to the case. Ordinarily in a civil courtroom they would retire to another room elsewhere but since one wasn’t available for them at that time everyone else was required to leave so they could have the courtroom to themselves.

The security guard I spoke to told me the next day would be busier and the court usher told me there could be three crown court trials happening at once.

I returned later in the week to see what a Crown Court trial would be like and this time it looked like I would be able to see one up close.

When I was shown to the waiting area it was about as busy as you’d expect from a normal courtroom waiting area first thing in the morning, though for such a colourful building it seemed slightly odd at first glance to see barristers and ushers walking up and down in their robes.

But once you got past that it was easy to imagine this becoming a regular sight. The barristers were either hanging around waiting to be called into court or conferring with their clients, while the usher was walking up and down presumably making the normal arrangements, albeit in a new building they might have only just become acquainted with.

Due to it being the very first hearing in the theatre the court staff seemed to be learning the process as they were going along, which was perhaps understandable. I had to wait a few minutes before the usher allowed me to enter, after checking I wouldn’t be one person too many in the observation gallery, and by then the judge was seated and the process was underway.

As soon as I first walked in to the new stand-in crown court it was dark and, for a moment, I was trying to make out where I should be going as I was upstairs on the balcony row of theatre seats where the lights are typically dimmed during a performance.

But as there were only a handful of people observing from the balcony seats now doubling for the public gallery I had the rest of the balcony to choose from.

The theatre floor itself almost looked like a makeshift classroom, with four rows of desks going down one side, made up of two side by side where the barristers would sit with their laptops and paperwork, and what looked like a small exam table next to them where the clerks or court staff would sit.

In front of them all was a desk for the court clerk with a large flashing clock to make sure everyone could see the time, and behind him, where the stage looked like it had been removed, sat the judge at his desk.

Just like in the conference room a coat of arms was hung behind him to make it look official, with a small podium and accompanying chair to the judge’s left doubling as the witness box, and a large TV monitor erected close by.

The defendant was seated in a chair at the opposite end and the judge spoke through a microphone when addressing him, which was necessary given the size of the room as it might be asking a lot of the judges sitting there to shout all the time.

The case was a theft charge having taken place in 2018 and the defendant pleaded guilty. The hearing only lasted five minutes as the judge ordered a pre-sentencing report be made to be presented before the crown court at a later date in November. As the theatre wasn’t equipped to detain the defendant there and then, which the judge acknowledged, the defendant was remanded on bail until then and told he would be required to attend the usual crown court at Minshull Street on the date specified.

So after all that the first crown court case I saw in the Lowry was over by 11am and another wasn’t scheduled for the rest of the morning, meaning the theatre would sit there until the next hearing either later in the day or the day after. Basically, like a normal courtroom then.

But that’s probably to be expected as it’s impossible to determine how long any hearing inside a courtroom will last and it probably wouldn’t do to have a queue of clients (not just because of social distancing considerations) waiting outside on the off chance they might get in.

When I visited for the third time that week there was a trial taking place for a case of robbery and assault that had taken place in 2018 (I was sensing a pattern here!). As before the defendant wasn’t being detained and was free to leave the court at lunchtime and at the end of the day.

It was the first day of the trial but the jury officer was running late so the jury couldn’t be sworn in until they arrived which meant a short adjournment until the trial officially began. Perhaps they hadn’t been there before and they were having to travel farther than usual but that’s only a guess.

The courtroom was laid out a bit differently this time. The four rows of desks were still there on one side of the floor, while this time there were half a dozen chairs and exam style tables with identical folders on each of them set out down the other side, with another half a dozen comfier seats with matching folders reserved in the audience gallery behind them. This was where the jury would sit.

When the jury were eventually sworn in the judge explained to them that each seat was positioned two metres apart in keeping with social distancing guidelines. He also explained that the court, as he said it officially was now and must always be viewed as such, and its appropriate facilities such as the adjournment room for the jury to retire to, had been approved by HM Courts & Tribunal Services (HMCTS) inspectors beforehand.

Again, the jurors were permitted to either keep their masks on or remove them during proceedings. They were also told to raise their concerns if they felt they were struggling to concentrate and the judge would be happy to adjourn for a break.

Once the trial began it proceeded just like any other trial that we might have seen or imagined.

The first witness was called to the small podium in the corner now serving as the witness box, and he was still able to hear the questions put to him while his answers were clearly audible for everyone in the room, though in my opinion it probably could have been pulled forward a bit as it was right next to the black curtain which the witness looked in danger of disappearing behind.

I said before it was slightly dark when I walked on to the balcony and there were a few instances after the trial started where I half expected the lights to dim while watching the performance.

What I saw could certainly be described as one, and at the very least made use of the stage area, and what I saw of the ‘Nightingale’ court overall was it seemed to be running like a normal courthouse and many in the legal profession might be hoping this becomes the new norm so they can share the load with regular courthouses while the pandemic remains ongoing and might go some way towards alleviating the backlog of cases accrued over the last several years.

But so far only 17 have been unveiled across the country and only five are prosecuting jury trials. With a backlog of crown court cases that have risen from 37,500 cases at the end of 2019 to nearly 50,000 during lockdown, and nearly half a million in magistrate cases which could take years to clear, we could be witnessing a slow start in relieving that load.