The coronavirus pandemic has already led to significant changes to justice, some of the impacts of which are set to be long-lasting or permanent:
Four new crown court juries were sworn in on Monday at the Old Bailey, in Bristol, Manchester and Cardiff. The next three criminal trials are due to be in Winchester, Reading and Warwick, followed, it is expected, by Derby and Nottingham.
Jurors, committed to fulfilling their civic duty, turned up. Spread out for social distancing, with staff and lawyers in adjoining courtrooms connected by video, the hearings have reassured participants.
Alternatives to jury trials are being discussed. The Lord Chief Justice has suggested reducing the minimum number of jurors, currently nine, to seven. He has also discussed having a judge sit with two lay magistrates.
Geoffrey Robertson QC has proposed adopting the system in some Australian states where a defendant can opt for a judge-only trial. There is no appetite for remote jury trials where jurors would participate from home.
In the main high court and court of appeal, civil hearings have switched to Zoom and online platforms where court cases involve few, if any, witnesses and are mainly legal arguments. Journalists are given remote access. Most agree it is laborious but workable.
The problems are in the family, county and magistrates courts, where courtrooms are more cramped, claimants or defendants often unrepresented, and remote working is disliked by the public.
A survey by the Nuffield Family Justice Observatory on behalf of Sir Andrew McFarlane, president of the family division of the high court, this month said many lawyers and judges found it “extremely difficult to conduct hearings with the level of empathy and humanity” required.
“Particular concerns were raised … about urgent applications for interim care orders in relation to newborn babies, with new mothers having to join hearings from hospital, with accompanying difficulties in connectivity and in ensuring any privacy while the hearing was taking place.”
A mechanism is needed for deciding which cases can be heard remotely and which cannot. Sir Andrew has sensibly left the decision to individual judges.
There is a difference between the judiciary and the Ministry of Justice (MoJ) over how transparent virtual justice can be. Should all courts where the public normally enter also be accessible online?
The MoJ says that during the crisis everyone ought to be able to see online hearings. Judges fear that those granted access might record proceedings illegally or disrupt proceedings remotely. Allowing journalists, who are schooled in court reporting restrictions, to watch fulfils, it is said, the requirement for public scrutiny.
Lammy is not convinced: “Justice has got to be open. It’s a fundamental part of our democracy. It has to be visible. Any member of the public in ordinary times can walk into a case at the Old Bailey. That principle must be extended into the virtual world.” The Lord Chief Justice said on Friday: “Members of the public can ask to join.”
Lawyers facing bankruptcy
Law centres have been given emergency funds by the MoJ, but professional legal bodies fear many barristers and solicitors will go bankrupt unless further financial help is provided or cases restarted. Rosaleen Kilbaneof the Community Law Partnership in Birmingham, which specialises in legal aid housing cases, said: “Our costs are fixed. We can only last a few months. A lot of our clients don’t have the internet at home.”
As of last week, only 55 prisoners had been released early under emergency measures to alleviate the Covid-19 crisis in jails in England and Wales; up to 4,000 prisoners were eligible.
Will a newfound enthusiasm for technology among legal reformers encourage development of non-custodial alternatives to prison? Judges have been calling for more effective community punishments. New sobriety tags could help offenders reform outside jail.
Farewell, glitzy new offices
The vast, prestige City law offices and gleaming modern commercial courts may become long-term victims of coronavirus. Heavily lawyered virtual hearings function reasonably well in the high court with participants working from home. Lammy has suggested repurposing newly deserted business courts as urgently-needed crown courts.
A HMCTS spokesperson said: “A huge amount of work has gone into increasing the use of video and audio technology to keep courts running during this unprecedented crisis. Measures to increase hearings and help reduce the number of outstanding cases are being considered and these will be set out in due course.”