Nightingale Courts

On Friday the 20th March 2020 the jury returned their verdict in my last criminal trial before lockdown. These twelve citizens had diligently performed their public duty and Justice had been served. They had done so over the course of several weeks the in which the shadow of the Coronavirus had fallen long across the Country.

In the final stages of the trial there was a real sense that we were engaged in a race against time. Of course we did not know that on Monday 23rd March the Prime Minister would make his televised address and place the Country into lockdown. But what was absolutely obvious to all the parties who were engaged in trials and other forms of litigation up and down the Country was that the Courts and Tribunals could not hope to continue with a ‘business as usual’ approach to litigation as the Coronavirus Pandemic enveloped the nation.

Fast forward to the end of April and not a single jury trial has been heard, but on the 24th April there was at least the news that a working group had been established under the leadership of a High Court Judge Mr Justice Edis, to explore if and how jury trials might possibly resume.

The cessation of the business of the Courts has not been limited to trials by jury. Across the jurisdictions swathes of cases have been adjourned from trial lists, and a fraction of the cases due to be heard are now being resolved. Some Court buildings have, like employees, been furloughed and Judges are working in rotas that see them perform a few days work every other week.

The decisions taken by the Lord Chief Justice were unquestionably both necessary and proportionate. They met the imperative public health need to take drastic action to prevent the spread of this pernicious disease. There was no option in the short term but to pause the work of the Courts, to consolidate the Court Estate and to deal only with the most urgent cases. Going forwards the safety of Court users also remains a priority.

The difficulty however, is that we did not enter lockdown with a Justice system that was in sound working order. We entered lockdown with a Justice system that had been cut to its core and in which significant trial backlogs had been allowed to develop, hidden behind meaningless and misleading statistics.

The scale of the issues that the Courts will face in resuming hearings and trials are as significant as they are many and varied. They include a Court Estate that was already in a terrible state of cleanliness and disrepair. Then there are the Court and hearing rooms themselves; well designed for the operation of conventional hearings and jury trials but in which any semblance of social distancing would be impossible. We then have to grapple with our very system of justice in which, in the criminal jurisdiction, large numbers of citizens are summonsed to try cases as juries. How is that process to be managed in our current public health emergency?

Add to these issues the understandably high rates of absenteeism amongst HMCTS staff, many of whom are older people who face greater risks from this disease. Then factor in the movement of prisoners, the attendance of witnesses, litigants, experts, probation officers, interpreters, intermediaries, witness support staff, and the scale of the problem of operating a system whilst observing social distancing becomes clearer.

How do we operate our Justice system and protect the health of those who must participate in it?

The answer may be elusive but it is our obligation to strive to find practical solutions and to do so quickly. The maxim that Justice delayed is Justice denied is hardly a novel concept. Clause 40 of Magna Carta declared ‘To no one will we sell, to no one deny or delay right or justice’. Yet the current crisis denies and delays justice to the majority of the users of the Courts across the jurisdictions; litigants, witnesses, victims, and defendants.

Before this crisis began suspects in criminal cases were routinely ‘released under investigation’ for periods that had begun to stretch from months into years. If they were charged, and it was a big if, there was little incentive to plead guilty in a system that routinely saw delays of about a year before a routine case could be tried. Months and years passing by in which the victims of crime and the witnesses to it lost any sense of their cases being prioritised. Many lost heart and cases collapsed as they grew tired of waiting and withdrew their co-operation with the Prosecution.

Before this crisis those in custody at least had the assurance that their cases would be tried within 6 months. Those limits are now, by necessity being extended into the future with no real sense of when these cases will be tried.

We have also seen the Government take essential emergency powers to restrict our liberty and place the nation into lockdown. For now the line holds but if it begins to fray it is more important than ever that there is a fully functioning Justice system able to play its essential role in protecting our society in a functioning democracy.

This fundamental crisis demands effort and initiative of the sort we have never seen before. It also requires imagination and an acceptance that until this crisis has abated the ‘way we have always done things’ is precisely the way in which they can no longer be done. That mantra is the enemy of getting the system moving and defeats the imperative need to deliver justice in a timely fashion.

Whilst we must await the findings of the Jury Trial working group chaired by Mr Justice Edis, it seems inevitable that with social distancing the best that we can hope for in the current Court Estate is a trickle of cases. That may satisfy a need to say that we are still able to conduct trials but it will not scratch the surface of the backlog of cases that were already awaiting trial.

If the reality is that for a limited period juries of 12 cannot be accommodated then let us have as a nation a sensible, non-partisan debate with regard to that period, considering adjustments to the size of juries, or allowing defendants to elect trial by a panel of Judges, or a Judge sitting with lay assessors. I do not advocate one particular solution over another but know that there is not a monopoly on the right answer. There is conversely an obligation on all of us to ask the questions, to debate them and to find a way forwards.

If the Court estate is deemed unsuitable for trials and contested hearings then we should look at once to utilise other available spaces for those cases. Across the Country there are empty buildings, many in public ownership, that would be ideally suited for conducting socially distanced hearings. Why shouldn’t we be engaging the private sector in partnership through the established network of Local Enterprise Partnerships, in conjunction with local authorities to solve this logistical problem in a time of national crisis? The nation celebrated when the NHS with the help of the Army built Nightingale hospitals in days, and Government should not be deterred from taking the same approach to the Courts in the short to medium term. Establish a network of alternative hearing centres and by doing so free up the limited useable Court rooms that could be adapted for Custody trials respecting social distancing.

It is too easy to defeat these types of initiatives by citing staffing issues, the need for Wi-Fi, or the need for security. We cannot allow such objections to stifle adventurous and ambitious thinking. In days 750,000 people had volunteered to assist the NHS of whom a tiny number have in fact been called upon. Why are we reluctant to harness that collective national effort to help our NHS and deploy it in the provision of another vital public service, our Justice system?

I have here merely scratched the surface of what might be possible if we dare to be bold, to free ourselves from the shackles of what we know and instead think about what could be done. All of this requires drive, determination and ambition. There is a compelling need for a collaborative effort, engaging the professions and led in partnership by the Lord Chancellor and the Lord Chief Justice.

The late great Sir John Laws remarked that ‘the law is not just a job, it is an adventure’. Now is surely the time to allow that spirit of adventure to flourish in order to kickstart the wheels of justice in the national interest.

Richard Wright QC

Leader of the North Eastern Circuit