The coronavirus pandemic has brought new difficulties to all areas but the justice system was already facing a number of challenges. At the end of December 2019, across England and Wales, the Magistrates’ courts had nearly 300,000 outstanding cases while the Crown courts had 37,434.
On 22 May 2020 Lord Burnett, Lord Chief Justice for England and Wales, spoke of “the need for there to be proper funding of the administration of justice. It has been underfunded for years and years. The consequences of that underfunding are coming home to roost”.
This blog post examines the impact of coronavirus on the criminal courts including jury trials and access to justice for vulnerable people. It also discusses a number of solutions being considered to address the backlog of cases.
The UK Government is responsible for policing, prisons and courts in Wales. England and Wales share a single jurisdiction which means that when the Welsh Parliament makes laws in devolved areas they form part of the laws of England and Wales but only apply in Wales.
However, the Welsh Parliament has powers that operate within the justice system such as healthcare in prisons.
Coronavirus Act 2020
The Coronavirus Act 2020 received Royal Assent on 25 March 2020. The Explanatory Notes said that “the efficiency and timeliness of court and tribunal hearings will suffer” during the COVID-19 outbreak.
The Act amended other legislation so a “person may, if the court so directs, take part in eligible criminal proceedings through a live audio link or a live video link”. A judge is able to participate in proceedings via a live link however, a member of the jury is not.
HM Courts and Tribunal Service (HMCTS) says the judge or magistrate will decide how a hearing is conducted and “how best to uphold the interests of justice”. When making their decision they will consider “the nature of the matters at stake” and any issues using audio or video technology could present to participants.
Which courts are open?
Since the end of March courts have been divided into three categories:
- Open courts – buildings are open to the public for essential face-to-face hearings;
- Staffed courts – staff and judges are working from the buildings but they are not open to the public;
- Suspended courts – these buildings are temporarily closed.
As of 29 May 2020, half of the Magistrates’ courts in Wales are open along with 4 of Wales’ Crown courts. However, only Cardiff Crown Court is carrying out jury trials.
Table 1 shows the status of Magistrates’ courts in Wales:
Table 2 shows the status of Crown courts in Wales:
HMCTS says a “network of priority courts will remain open” as the work of courts is “consolidated into fewer buildings”.
Which cases are being prioritised?
Chris Philp, Parliamentary Under Secretary of State at the Home Office and the Ministry of Justice, said “the judiciary are seeking to prioritise the cases that are the most important and that urgently need to be heard”.
The Magistrates Association said they’ve been given three priorities. “First of all, it is people who are in custody or who are in danger…things like domestic violence protection orders”.
Second is trials with some happening in the Magistrates but that “it varies from area to area”.
The third relates to single justice procedures, which are also happening. These are notices where someone has been charged with a minor offence and the case is decided by a magistrate without the need to go to court.
In the middle of March, the Lord Chief Justice of England and Wales said that:
Trials in the Crown court present particular problems…because they require the presence in court of many different participants including the judge, the jury, a defendant, lawyers and witnesses as well as staff.
On 23 March 2020 jury trials stopped taking place. Crown courts were still handling a range of work remotely including sentencing hearings and all urgent applications including applications for bail and pre-trial hearings and further case management hearings.
A month later a working group was established “to consider ways to re-start some jury trials once it is safe to do so”. The group identified a small number of Crown courts which were assessed by Public Health England and Public Health Wales.
On 18 May 2020, four courts were allowed to swear in juries and begin trials again. These were Bristol Crown Court, Cardiff Crown Court, Central Criminal Court (Old Bailey in London), and Manchester Crown Court.
Access to justice
In response to a reduced number of courts being open, the Bar Council said that “these measures will inevitably make access to justice harder for some people. Court closures in recent years have already restricted local access to courts”.
Between 2010 and 2020, 22 Magistrates’ courts closed in Wales. This is more than the current number of open Magistrates, which is 14.
The Bar Council went on to say that “the rise in the use of technology must not undermine access to justice for those who are not familiar with it”.
The House of Common’s Justice Committee heard the Magistrates Association’s concerns about more vulnerable witnesses, such as “not everybody [having] access to video conferencing”. It was said “that some people are not able to express themselves as well over video” and the importance of body language.
The Law Society agreed with the concerns about vulnerable people and added that “much also depends on a good degree of organisation before the hearing”. It was noted that there should be “an opportunity for all parties to make sure there are no issues with the tech” however, this “has not always been happening”.
Possible future measures
The Lord Chief Justice of England and Wales said that “the main constraint in getting Crown court trials going at a greater volume is the need for social distancing”. As a result three court rooms rather than one are being used for each case. The Lord Chief Justice also said that the use of other buildings, such as hotel conference centres, is being looked at to help with the backlog of cases.
Increased sentencing in Magistrates courts
The use of emergency legislation to allow Magistrates courts to provide 12 month sentences has been raised. The Criminal Justice Act 2003 provides for this increase in sentencing however, it has not yet been commenced. Secondary legislation would be required to bring it into force.
The Magistrates Association said that the UK Parliament could consider introducing 12 month sentences “even if it is only for a temporary time”. As this would “get us over the inevitable backlog”.
The Lord Chief Justice noted that while it would reduce the number of cases going to the Crown courts, there were concerns that “there will be more people sent to prison for relatively short periods of time”.
Changes to Crown courts
When asked by the House of Common’s Justice Committee about possible temporary measures, the Lord Chief Justice mentioned discussions around reducing the number of jurors from 9 to 7.
The prospect of having judge only trials was raised, although the Lord Chief Justice said this should only be contemplated in extreme cases. He also proposed that ‘either way’ cases (cases that could be heard by the Magistrates or Crown court) could be heard by one Crown court judge and two Magistrates.
The Lord Chief Justice made it clear that he was “expressing no views at this stage” because “we need a better idea of how long the current emergency is likely to last”, in particular social distancing. He also warned: “don’t wait until we are in a really difficult position before [starting] to think about this and work up the policies”.
Devolving justice to Wales?
In October 2019 the Commission on Justice in Wales published its report recommending that the control of policing and justice should be devolved to the Welsh Parliament and a new Welsh jurisdiction should be created.
The Senedd’s Legislation, Justice and Constitution Committee is carrying out an inquiry into making justice work in Wales.
Article by Lucy Morgan, Senedd Research, Welsh Parliament
We’ve published a range of material on the coronavirus pandemic, including a post setting out the help and guidance available for people in Wales and a timeline of Welsh and UK governments’ response.
You can see all our coronavirus-related publications by clicking here. All are updated regularly.