No Trial Until…2023?

By Christopher Long

Content warning: brief discussion of delayed justice for victims of sexual violence

• Due to COVID 19 and an overburdened criminal court system, the current backlog in the Crown Courts has risen to 54,000 unheard cases.

• This backlog threatens the right to a trial in a reasonable time, a human right protected by the European Convention of Human Rights (ECHR)(Article 6).

• Some jury trials have been postponed to 2023, severely infringing defendants’ rights.

• The Government’s proposal to deal with the backlog is inadequate.

Introduction

The criminal justice system has been gutted by austerity measures[i], meaning that even pre-COVID there was a backlog of 37,500 cases in the Crown Courts. In this attenuated state the criminal courts were not ready for the havoc that COVID would wreak, requiring a suspension of jury trials for 4 months. Even when they restarted, far fewer could take place due to the inability of most court rooms to accommodate social distancing measures. As a result, up to 1000 cases are added to that shockingly high pre-COVID backlog every month. This ever increasing backlog means even longer waits for trials, infringing upon the defendant’s right to a trial in a reasonable time[ii].

Article 6

Although the ECHR was drafted by the nations of Europe in response to the heinous atrocities of the first half of the 20th Century, it remains a cogent expression of fundamental rights that member states must protect. Article 6 guards the ‘Right to a Fair Trial’, crucially ensuring that a trial must take place in a “reasonable time”[iii]. It is important to note that Article 15 of the convention allows, during a time of emergency, for a member state to derogate from Article 6. However, although the pandemic is certainly an emergency, the Government has now had a year to respond to these terrible circumstances. The court system adapted during the Second World War and it must do the same now and continue to fulfil Article 6.

The Delay

The backlog of cases in the Crown courts has reached a staggering 54,000 cases meaning that it will be years until some cases are heard. During this delay, defendants may be suspended from their jobs, lose university places or face electronic tagging[iv]. The backlog will force defendants to put their life on hold until the outcome of their trial.

The situation is no better for victims who will have to relive what is likely to be one of the most horrendous moments of their lives several years in the future. It is well evidenced that victims can be subjected to secondary victimisation and this is only exacerbated by the delay which “could have devastating psychological consequences”[v].

The terrible impact upon both victim and defendant is illustrated in a recent case of a serious sexual offence[vi]. It allegedly occurred in January 2018 and yet the trial has been scheduled for February 2022. This four year delay will undoubtedly have a profound impact both on the “traumatised teenage victim” and the “suspect of previously good character”[vii]. This is the very antithesis to the principle that Article 6 is trying to protect.

The Issue of Fairness

The fairness of trials could be greatly impacted by the delays due to witnesses struggling to remember key details. Already in 69% of cases, witnesses inaccurately identify the suspect[viii]. This problem can only be exacerbated by long waits. In the case discussed above, it is will be extremely challenging for the court to deal with the complex issue of consent four years on from the event.

The Government Plan

The flagship element in this is the establishment of 22 Nightingale Courts. These courts are the best step that the Government has taken in dealing with the backlog. The use of the Nightingale Courts directly tackles the issue of existing court rooms being too small to facilitate jury trials, and the high usage of the courts[ix] suggests that they are ensuring that pressing cases can be heard.

The view of a new Nightingale Court located in the Lowry Theatre in Manchester. Note the clearly visible Royal Coat of Arms to give the court room the appropriate formality. However, the Government is also piloting a grossly ill-advised scheme of ‘COVID operating hours’. Court staff are already working in a system that has been underinvested in for years[x] with the number of staff employed by Her Majesty's Tribunals and Court Services falling by 30% and staff morale lower than in the rest of the civil service. Operating outside of the usual working hours will significantly impact the working conditions of already embattled employees.

Furthermore, the Government is considering the profoundly misconceived idea of reducing jury sizes. Currently BAME defendants are not discriminated against in jury trials, one of the few area in the criminal justice system where BAME people are not[xi]. Given the current fairness of jury trials it would be deeply mistaken to meddle with them in such a way that the composition of juries may not give fair results.

There have also been tests to see whether virtual jury trials are possible. However, these have too many technical faults for them to be implemented[xii]. Furthermore, if we consider that 60% of those who took part in virtual Magistrate hearings thought that the virtual nature of it had a negative impact on the fairness of the hearing, then it is important that virtual jury trials, dealing with more serious offences, are not introduced.

A Way Forward?

Lord Devlin called jury trials “the lamp which shows that freedom lives”[xiii], and as the pandemic has raged, so the lamp has flickered. However, video links or reducing the number in a jury do not offer a panacea to the backlog. Instead, we must invest heavily, both in more Nightingale courtrooms and also in greater support for the judges, practitioners, and court employees. COVID 19 is likely to stay an issue for years to come, and the Nightingale courtrooms will continue to be of use even when case numbers have reduced but infection remains a risk.

For too long the courts have suffered under cuts. If we are to fulfil our commitment under Article 6 then we must increase investment in the courts and the people who operate them.

By Christopher Long

I am a second year law student at Trinity College, University of Cambridge with a particular interest in the intersection between policy and law.

[i] Blacklaws, C. (2019) ‘The criminal justice system is in tatters – and it will lead to the collapse of the rule of law unless something is done’ [online] The Independent. Available at: https://www.independent.co.uk/voices/legal-aid-cuts-criminal-justice-system-rule-law-collapse-austerity-a8959886.html [Accessed 10th February 2021] [ii] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: <https://www.refworld.org/docid/3ae6b3b04.html> Art.6 [iii] Ibid [iv] Coleman, C (2020) ‘Covid court delays: Weeds, leaks, and four-year waits for justice’ [online] BBC News. Available at <https://www.bbc.co.uk/news/uk-54173891> [Accessed 8th February 2021] [v] Lloyd, S (2020) ‘Halting jury trials may impact a defendant’s right to a fair trial’ The Conversation. Available at <https://theconversation.com/halting-jury-trials-may-impact-a-defendants-right-to-a-fair-trial-134583>[Accessed 6th February 2021 para 6] [vi] Bowcott, O (2021) ‘Covid leading to four-years waits for England and Wales court trials’ The Guardian Available at , https://www.theguardian.com/law/2021/jan/10/covid-leading-to-four-year-waits-for-england-and-wales-court-trials>[Accessed 5th February 2021] para 7 [vii] Ibid para 8 [viii]Creed, F and Bermingham, R. (2019). ‘Improving Witness Testimony’ UK Parliament Research Briefing Available at < https://post.parliament.uk/research-briefings/post-pn-0607/> [Accessed 2nd February 2021] [ix] The Parliamentary Private Secretary for the Ministry of Justice listed the usage statistics of the Nightingale Courts (HC Deb 7 Sept 2020 86141W). Accessed at <https://questions-statements.parliament.uk/written-questions/detail/2020-09-07/86141> [x] Atkins, G., Wilkinson, F., Davies, N., Pope, T., Tetlow, G. and Guerin, B., 2019. Performance Tracker 2019. [online] The Institute for Government. Available at: <https://www.instituteforgovernment.org.uk/publications/performance-tracker-2019> [Accessed 5 February 2021]. [xi] Thomas, C. [2017]. ‘ Ethnicity and the Fairness of Jury Trials in England and Wales 2006-2014', Criminal Law Review, Issue 11, 860-876. [xii] Cronin, M. and Jones, K. [2020]. United Kingdom - Will COVID-19 Prove the Downfall of Jury Trials in the UK?. [online] UIA. Available at: <https://www.uianet.org/en/news/united-kingdom-will-covid-19-prove-downfall-jury-trials-uk> [Accessed 1 February 2021]. [xiii]Trial by Jury, The Hamlyn Lectures, 8th Series (1956) at 164.