It is no secret that the effects of COVID 19 have had a substantially detrimental effect on the “flow” of cases through the Crown Court. Prior to the lockdown, approximately 39,000 cases were waiting to be heard; now, five months on, there are well over 41,000 by most estimates. Some trials are being listed as far off as 2022.
Such a delay will have a significant effect on defendants, complainants, and witnesses, in respect of recollection and adding to the already stressful experience of awaiting trial (and indeed COVID 19 itself). Custody time limits for defendants remanded prior to trial will also become problematic, as already seen. There is both an evidential and human cost to the situation.
How to manage this backlog must be at the forefront of consideration not just in the Ministry of Justice but for anyone involved in the criminal justice system.
There are in my view three potentially acceptable, and not mutually exclusive, actions that can be taken:
Individually or collectively, these actions will go some way to addressing the issue at hand; the more that run concurrently, the greater the impact on the backlog. However, there is a fundamental point underlying all three – one which was self-evident even prior to the COVID-19 pandemic and one which the government must engage with as a matter of priority: funding.
The first point concerns creating more court time, and there are three components to consider:
Next, consider the composition of crown court trials. Eleanor Fargin has written an excellent article on the subject, addressing whether crown court trials might function with fewer jurors or as judge-only trials:
One other option put forward for adding efficiency to the composition of crown court trials is that of the trials occurring with a judge and two lay members sitting alongside them. Although there has been some support by a small but distinguished section of senior barristers, there has otherwise been an overwhelmingly negative response from the legal profession to this suggestion.
Addressing the final action (maximising current courts’ time), it has been reported that only 24 of 80 crown courts in England and Wales are suitable for jury trials with social distancing measures. Yet even were these numbers to (somehow) rise, the implementation of one-way walking systems, the wearing of adequate PPE, and the introduction of Perspex screens in court would all themselves pose problems.
One practical difficulty however is that a video link is at the mercy of a potentially faulty internet connection, particularly if a witness is to give evidence from home rather than travel to court. A confident witness can appear to be guarded in their answers, simply because of a delay or “freezing” of the link, or due to unfortunate talking-over of questions. On the other hand, the credibility of a potentially untrustworthy witness could be incorrectly argued to be simply down to technological issues, if they were to evade responding to a difficult question.
Having considered all the above, it must be recognised that there is an elephant in the room – one standing there long prior to the COVID-19 pandemic, and which may prevent any or all of the above from being introduced. The criminal justice system was remarkably under-funded and under-equipped prior to the start of 2020; the situation has not improved. It is clear that, to address the backlog effectively and for a sustained period of time, the government must invest in the creaking system.
The message for criminal barristers, the judiciary, and court staff appears to be similar to that of the ill-fated Boxer in Orwell’s Animal Farm: “I will work harder”. An opportunity to run from deep at a broken field? Perhaps. It all depends on how “broken” the field is.
Ed Wylde, (Pupil)