It may be a little early for anybody to say how long the current pandemic will last. We do know that the restrictions on our movement are likely to remain in some form or other for up to six months. One thing is for sure: this outbreak has shone a light on the Criminal Justice System (and Family Justice System) and Benjamin Knight believes that we need to learn long-term lessons from the short-term disruption. The genie is out of the bottle.
Key Workers/Critical Workers
Let us start with some bittersweet news. Those who work in the justice system have been split into two categories. One contains police, prison officers, prosecutors, court staff, the judiciary and probation service. The other is often referred to these days as, “the defence community”. This term has become a euphemism for “the others” and it often feels like it may as well be called, “the enemy”.
The coronavirus outbreak has resulted in the Government (albeit seemingly begrudgingly) classifying “those involved in the administration of justice” as “critical workers”. That is now being taken as meaning the same thing as “key workers” at least for the purposes of the lockdown restrictions. It will be very difficult for the Government to revert to its formal attitude towards defence lawyers.
To be clear though, the classification as “critical workers” only means that such workers can leave their kids at schools (subject to other conditions) and are slightly freer with their movement during “lockdown”.
It is also worth mentioning that the Manchester Evening News spoke to a court usher in Manchester who was concerned that they were being treated as an afterthought as barristers and judges are “looked after” and they are left exposed to risk. As a member of the Manchester Bar, I do not recognise the “looking after” that he/she refers to, but these frontline staff are certainly exposed. That risk must not be greater than is absolutely necessary.
Respect for roles
The recognition of the roles that everybody plays in the CJS extends beyond lawyers and judges, of course.
Court security, like ushers, are exposed.
We are lucky in my “home” court – Minshull Street, Manchester. We have a good team of court security staff. In fact, they are pretty exemplary. They have their heads around the Professional Court User ID scheme, and they seem to be diligent in using PPE. But that is not the experience I am hearing from other courts. Some court users report court security claiming that the ID scheme is “down” when it clearly isn’t. Some court security staff are being rude and officious to court users at a time when understanding and caution are of crucial importance.
Moreover, the ID scheme is an initiative of the Bar Council. It is not HMCTS. It is not a joint exercise with The Law Society. It is also not universally adopted or utilised. The consequence is that solicitors, some barristers, and other legal professionals are not experiencing the same swift passage through the doors. The need for the low-contact route through security is clear. It minimises the risks of contact and the risk of passing on the infection. This scheme needs expanding urgently. Chambers should also be placing a requirement on their barristers to sign-up for this scheme. The Bar has already been warned that we need to “use it or lose it”. It now has a purpose greater than simply saving time.
Courts where security are struggling to use this system need to be encouraged to report this or they need to be politely informed upon so that remedial action can be taken.
The Law Society should also step-up and do what they need to do to expand this to their members. Where it works, it works well.
Police Stations and Prisons
This is a very concerning area. Anecdotal evidence ranges from stations and prisons taking the infection risk very seriously and restricting physical contact as much as is practicable through to officers taking advantage of the situation to short-cut their functions.
Although there is emerging a national approach in police stations, it is slow to be adopted and it is inconsistent. For example, the message from countless police stations’ custody sergeants and inspectors that “S is not exhibiting any symptoms of Covid-19 and so we will proceed as usual” is manifestly wrong. These officers are not medically qualified and, more importantly, they are obviously flawed. An infected person may not exhibit symptoms. They may be experiencing the less obvious symptoms. Their word cannot simply be taken as true.
Insisting upon the physical attendance of police station representatives is exposing them to completely unnecessary risks. This is especially the case when the interviews that are being undertaken are not even required. One would think that police would be minimising the use of interviews where they have enough to charge or where the offence is frankly not a priority and their oft-favoured use of RUI can be used to wait until safer times.
It has been posited by some that it is because of the fact that police are simply being expected to expose themselves to risks that they are passing on that attitude to the lawyers attending. Some also suggest that there is a shortage of available medical staff to conduct proper screening. When there is no available testing for Covid-19 in the police station, one cannot simply substitute that with “what a police officer reckons”. It is downright irresponsible and may result in forces being sued for negligence in the fullness of time.
As I write this, I see a steady stream of police stations and individual officers behaving in an opportunistic manner and exposing people (including their officers and staff) to risk that will have no purpose: adverse inferences and the like will be strongly opposed and some cases may even be stayed as a result of these misdeeds. It is an exercise in futility. But it erodes confidence in the system and damages the already-precarious relationship between police and legal representatives.
Police station custody suites are filthy. They are cramped. They are not a practical place for the use of distancing rules.
It’s not just police stations that are filthy. The courts are beyond filthy. Public areas are cleaned in most courts. Offices seem to be being cleaned, from what I am told by court staff. The cells areas seem to be kept in good order too.
On the other hand, robing rooms/advocates’ rooms are given a vacuuming and that’s about it. The toilets in every court I have visited over the past four weeks have been dirty, ill-stocked with basics like soap, lacking working hand-driers or paper towels, and sometimes all of these things. In the past two weeks, almost all of them have had posters put up telling us to use proper handwashing techniques, hand sanitiser and the like. It would be laughable if it wasn’t dangerous.
This isn’t a new problem. We have settled for this state of affairs for years. Twitter is full of photographs of filthy and unhygienic areas for the public and, more commonly, for the lawyers. Manchester Crown Court has a gents’ toilet near the robing room. It has had the same tiles falling off the wall for over ten years. It is symbolic of the lack of care taken regarding the state of the court estate. Even the habitual locking of all but a couple of conference rooms has not allowed the cleaners to keep things clean and tidy. When a court the size of Ringway in Preston has only four cleaners, this is hardly surprising. When those cleaning contracts are given to private companies with low wages and high turnover, it is almost inevitable that these issues will persist.
There is also a uniquely British problem. We have sinks with separate hot and cold taps in our courts. There are no plugs (for obvious reasons) and the water is skin-strippingly hot or freezing cold. This seems like a daft gripe until you remember that burning your hands to the tune of “Happy Birthday” is hardly conducive to good personal hygiene. The civil service approach to this will almost certainly be to ignore it or to give us only cold water. Perish the thought that the “Court Modernisation Programme” might include bringing plumbing into the 21st century.
In magistrates’ courts, the problem is often worse. The advocates’ rooms are usually tiny. In some cases, really tiny. It would be impossible to exercise social distancing in most of these rooms. There is barely two meters available between people. Whilst courts like Birmingham Crown Court and Preston Crown Court both have secondary buildings with these tiny rooms (as does Burnley, for that matter), it is pretty much all magistrates’ courts that fail the test. Tameside is probably notable as an exception.
These rooms are not fit for purpose. They are not safe. Better spaces must be found, and they must be kept clean and have appropriate facilities. Without those changes, it is quite indefensible to expect “the defence community” to expose themselves, their clients, and their families to risk of infection. Covid-19 is not going away any time soon, but it will also be followed by other outbreaks.
I am not forgetting the CPS facilities here. They are also cramped. I know some are cleaned by their own staff. A last resort but done out of frustration by lawyers who cannot work in the environment they have been given. Better use of other rooms (like those locked conference rooms) might involve more cleaners working during the day but that’s a small price to pay for keeping court users safe.
Let us not make a mistake about this. There is an ideological choice being taken to put all court users at risk and that is now coming home to roost.
Cuts cause backlogs
Whilst on the subject of ideological choices, the backlog of court cases is a consequence of one such choice. As I write this, I see a news update telling me that the backlog is now over 37,000 cases.
There can be absolutely no doubt that this backlog is caused by cuts upon cuts. These cuts started under Chris Grayling and have been doubled down upon since. The recent cuts in sitting days in the Crown Courts are nothing short of a scandal. Simple bail trials listed a year to two years after PTPH. Custody cases bashing up against the CTLs as if they are the target and not the backstop.
The courts were already at breaking-point. This is not news to anyone involved in the CJS. Witnesses and defendants were already facing unconscionable delays in justice and this has just been made much, much worse. The public doesn’t seem to care but those whose lives are on hold do care. We have a veritable army of recorders and deputy district judges but no courts booking them.
We have a lockdown, but we also have cases with professional witnesses only (including police) and those could be heard virtually right now. This would clear the backlog of summary-only matters where there is limited risk of custody. This would be an efficient use of time and money.
Recorders and magistrates could be hearing appeals from the lower court where there are only police/expert witnesses and even those with limited civilian witnesses who are comfortable appearing via video conferencing.
Instead, there is no talk of taking a grip of the failed system and it is now facing a further three to six months of delay on top of the existing delays.
Frankly, cases that ought to crack with the CPS being “more reasonable” ought to be cracking. Police ought to be prioritising their work. Instead, the newspapers and legal Twitter are full of harassment of people on a second run of the day or buying Easter eggs at Tesco are occupying police and the CPS is sending emails chasing witness requirements for trials that are not happening this side of Christmas.
It is inevitable that trials will have to be relisted. Some courts have shunted their lists back by 28 days, automatically. Some courts are relisting to the first available date after April.
These “solutions” both have good intentions at heart, no doubt but they ignore a significant problem: the availability of counsel.
As more and more barristers have left criminal practice and as fewer BPTC graduates seek to move into the area, we are now experiencing another crisis for the self-employed, independent Bar. The self-employed financial measures for Covid-19 are not fit for purpose and bankruptcy is the likely consequence for many barristers, especially at the junior end. Each trial that is blindly relisted and causes a barrister to return that brief not only causes defendants to be let down but also results in significant loss of AGFS fees and further disruption to cash-flow.
The Government is utterly indifferent to the fact that the Bar can no longer absorb this financial sabotage. That indifference is caused by the fact that the Bar simply will not down tools and strike.
I, for one, hope that the rise of the Legal Sector Workers’ United union and the increasing distrust by the Bar of their leadership and of the civil service will lead to a credible and total strike by the Bar at some point soon. You can dress it up however you like but the Government has thrown scraps at the Bar to keep us sucking it up but that cannot and will not persist. Until we value ourselves and remind ourselves of student debt and laughable AGFS fees and compare them to other practice areas (even family law), we will keep being exploited and we will be tidying-up the mess that is the tattered CJS; the whole time, treated as an inconvenience by some parts of the judiciary and the vast majority of the CJS “stakeholders”.
Use of remand
Prisons are creaking. They are not holiday camps. They are not fit for purpose and the best answer governments ever offer is to build more and hand them over to the dubious “service companies” to run for profit.
The model may have seemed attractive at one point. Create an industry out of a public service. Sell it to the lowest bidder with very little in terms of service standards, staffing, safeguards or penalties. Do nothing as those same prisons cut their staff down to a skeleton of high turnover, badly paid, poorly trained labour. Let association time, education, rehabilitation, health all fail due to the lack of staff. Allow them to mislead or downright lie to lawyers and courts that “the prisoner will not attend court/a conference” when they have never been told that there was such a meeting and when the real reason is that there are no staff to move the prisoners around to allow that to happen. And then to have no consequences for any of this because they are cheap.
We cannot pretend that the failings in prisons started and ended with the Grayling “book ban”. There is systemic failure in the prison estate and the only response to it is to demonise those within the system and to add more to their population out of some sense of societal retribution or spite.
If and when the prisons finally have the burden lessened by the release of remanded non-violent offenders, the reoffending rate on remand will need to be monitored carefully and we will have to ask questions if those figures show that there is any justification for locking-up such defendants pending trial.
Technology and a brighter horizon
The Court Modernisation Programme has been something of a mixed bag. It has cost a lot of money. It has allowed a greater use of videolinks. It has improved the way in which evidence is handled. It has improved communication between court users. It has saved time. Mostly.
There was the ill-fated “iPads for jurors” trial. That was, I think all agree, a complete waste of time and an obscene waste of money. I had a trial delayed by a total of two and half days whilst an IT consultant, on more per hour than anybody else in the case, showed 12 bewildered jurors how to look at paperwork rather than listen to what was being said. There were frequent breaks in proceedings where jurors managed to press the home button and lose the screen at which they were looking. You get the idea. It was a farce.
On balance, however, the attempts to drag courts into the 21st century have been worthwhile. Sure, the roll-out has been inconsistent and some judges and lawyers have simply put their fingers in the ears and resisted the changes due to an unwillingness to learn. The idea of a computer screen being something they have to use has been the start and end of their consideration of the matter.
Other judges have embraced the changes and have seen them as an attempt to make the whole process fairer and more transparent. Some even developed selective blindness. I remember being told by a (now retired) Honorary Recorder, “I cannot see paper, Mr Knight”. A curious affliction but one that was contagious and is now pretty ubiquitous. A pandemic, if you will.
The more pressing pandemic, the Covid-19 outbreak, has shone a light on where the modernisation has halted or been bogged-down in civil service navel-gazing.
What the Covid-19 outbreak has resulted in is the use of telephone hearings and video hearings. Those readers who follow me or Central Chambers (or the Northern Circuit) on Twitter will know that the misinformation and nonsense that has been (and continues to be) distributed about the need for Skype for Business or MS Teams or Zoom has been a bugbear of mine since the day of the announcement that video hearings were being considered. I will not repeat the guidance here but will point you to the flowchart that I created to dispel the myths. Please save yourself time and money and follow that. The HMCTS advice is wrong.
We have also learned that there is one very serious problem with our CJS and that is the lack of ready communication between prisoners and their lawyers. This has meant that hearings are taking place without instructions and with no chance for lawyers to explain things to their lay client.
This is, with respect, unnecessary. It would take very little to enable access via videoconferencing just as with hearings. I picture a request being made by the solicitor. An email with a time, date and link for the meeting sent out in response. The prisoner is placed in a private space with the laptop or old tower PC or simply with access to the monitor, camera and microphone (if there are concerns) and being left to the conference. The participants can be the prisoner, the solicitor and counsel. All without moving people around too much. All without bringing in risks of infections. And, as deaths related to drugs and mental health in mens’ prisons especially are at a high, it reduces to zero the risk of bad actors bringing drugs or other contraband into a prison.
The implementation of this system would assist in the administration of justice without losing the contact between the prisoner and the advisor. It is not a total substitute for face-to-face visits, but it would allow quick instructions such as finalising a defence case statement or something of that nature. Proceedings may then be virtual. The job is done without GeoAmey getting their vans out of Trafford Park even. Unless that is part off the resistance to it?
I wonder how many prison van runs it would cost to put an appropriate bit of basic computer equipment on each wing…
We do know that the public gallery of a court may be maintained through public links to live proceedings. People complain that the public may record their screens if we do that, but I question “What is the harm?”
A warning about contempt and prosecution is appropriate in all cases where the public link is live. Those who upload or share material online can be prosecuted severely. It is simply a new way of doing things. It would not result in broadcast as that would remain unlawful. What are we, at this stage of the modern life, hiding in our courts? Is it people’s dignity or is it the obscene delays that plague most cases?
We have also learned that HMCTS, the judiciary, the Home Office, the Ministry of Justice and professional bodies seem incapable of putting out clear, uncontradictory, accurate advice at short notice. We still await any news at all from prisons as to how they will deal with legal visits. This cannot be allowed to be repeated. Various circuit judges posting their own pronouncements is inappropriate but has been necessary in the void of information from on high. Some have produced tables of hearing types and suitability for virtual hearings. That should have been ready already and should have come from HMCTS and the MoJ. It came from three judges.
There is utter disarray in the magistrates’ courts. As I write, I am reading of a District Judge forcing a summary trial to proceed with non-consenting appointed representative and a CPS admitting a failing in proper disclosure. He has decided that it is in the public interest just to press on. He is flying contrary to the national guidance but that came late in the day. Private fiefdoms cannot be allowed to develop in CJ areas of England and Wales.
The same appear true of police areas.
Finally, on 31st March 2020, some forces are publishing their provisions for interviewing. It is welcome but it is wildly inconsistent across the country. As is the use/misuse of their powers to enforce the “lockdown”. You will have seen the countless examples of this across the country.
I remember the Fraud Act 2006 coming into force and being told that “police would use their common sense and not to worry” about the wide and unclear powers therein. When I heard Boris Johnson tell the nation that the new powers in the Coronavirus Act 2020 and related Sis should not cause concern because police would “exercise their good sense”, I shuddered. It turns out, I was right to do so.
Here to stay
I think we can safely observe that many of the new developments in court-tech are here to stay and I welcome them. In fact, I would argue that they do not go far enough. But the opening of the videolink platform to include lawyer to prisoner access is crucial to the modernisation programme’s success. It may also be a cost saving measure to lawyers that might slightly mitigate the damage caused by a generation of cuts and by the virus outbreak. It must not be resisted by the prisons. They should be encouraged to see how it will help them – even if we have to explain it in terms of shareholders.
The LSWU is growing in numbers and volume. I am a member. I would gently suggest that other lawyers should join if they are serious about there still being a CJS in ten years’ time. It is certainly here to stay though.
We cannot allow juries to be removed from their roles in the CJS (or the inquest system – see the 2020 Act’s rather sinister sting on this subject) and that must be resisted if it is advanced by this or any government. Let us not ask if it is ever “here to stay” as it should never happen in the first place.
We can either make the most of the present situation to re-energise the near-stalled Court Modernisation Programme or we can slide back into an expensive and out-of-date system that hides in plain sight and collapses around us. I know what I want and I know what I signed up for when I joined the Bar.
Just please. For Heaven’s sake. Keep it clean.