Criminal trials over Microsoft Teams, innocent defendants pleading guilty and victims’ families forced to wait years for closure. Coronavirus could deliver the knockout blow to a justice system brought to its knees by chronic underfunding.
A decade of austerity was already taking its toll, but the shutdown at the start of the pandemic had resulted in a backlog of nearly half a million criminal cases as of June, according to the Ministry of Justice. That’s a 44% increase year-on-year and the highest number since 2012, when records began.
The Secret Barrister – arguably Britain’s most famous lawyer – says the system is on the verge of a major crisis. Speaking exclusively to HuffPost UK, he said the human cost of the delays was “monumental”.
“I have had clients whose trials have been adjourned multiple times, while they languish in custody awaiting their day in court,” he said. “I’ve had a teenage client remanded into youth detention, experiencing custody for the very first time, who because of Covid was held for nine months without visits from family, confined to his cell for up to 23 hours a day.
“I’ve had clients who admitted their guilt at the time of the offence back in 2018, but who have had to wait two years for the police and Crown Prosecution Service to bring the case to court, and who, despite pleading guilty, have had to wait yet further time – six months in some cases – to be sentenced, during which time their lives are put on hold. Some have children and other caring responsibilities, and the strain of not knowing impacts upon the blameless family members as well as the defendant.”
In a stark warning, the lawyer added: “The system is without doubt close to collapse. We are listing trials in 2022 for alleged offences that occurred in 2018, sometimes earlier. The criminal courts run on oral evidence – a witness speaking live about the things they have seen and heard.
“Memory is the currency of criminal justice, and these delays are devaluing it beyond rescue. It is not fair on defendants, who may find themselves tripping up over details and wrongly giving a jury the impression that they are being untruthful, nor is it fair on complainants and prosecution witnesses, who likewise may find their honest account disbelieved because they can’t recall in vivid technicolour the fast-moving events of four years ago.
“The pressures that the delays put on those involved are often overlooked; the practical consequences of having to wait years for justice are that many complainants and witnesses will simply give up, resulting in potentially guilty people walking free.
“Or those accused, especially those remanded in custody waiting indefinitely for a trial, will feel pressured into pleading guilty, recognising – as we see in too many cases – that by the time of their trial they will have served longer on remand than they would have been sentenced to if convicted. Nothing about this is consistent with functioning justice.”
The Secret Barrister says the “grim irony” of the government cuts to the justice system since 2010 is that nobody benefits.
“It would cost the government next to nothing, relatively speaking, to give the system what it needs to start working again,” he said. “But justice is right at the bottom of the list of priorities for a government which knows that, as long as it throws red meat to the tabloids about ‘tough sentencing’ every few weeks, few voters are going to give the justice system a second thought.”
A recent survey by the Law Society echoes those points made by The Secret Barrister and how coronavirus, coupled with an already overstretched system, is severely impacting both access to justice and vulnerable people involved within.
One criminal law solicitor responding to the survey said: “My 14-year-old defendant’s trial [has been] moved from June 2020 to February 2021. He is currently detained in a secure detention centre and he will have been held on remand for over 14 months of his life by the time his trial has concluded.”
Further findings of the survey include individuals being unable to see family and legal advisers for prolonged periods and solicitors reporting waits of up to eight weeks to talk to their clients, with hearing dates sometimes being offered before they have been able to take instructions.
This has left defendants living in limbo and some locked up in isolation for 23 hours of the day because work and education facilities were withdrawn in an attempt to stem the spread of the virus.
What’s more, temporary legislation was introduced by the government last month as part of the recovery from the pandemic that extended the Custody Time Limit (CTL) for those awaiting trial for serious crimes from 182 days to 238 days.
The measures will apply to anyone arrested and held in custody for alleged offences serious enough to be heard at the Crown Court.
Stuart Nolan, chair of the Law Society’s criminal law committee, says face-to-face consultations between solicitors and clients in prisons are virtually impossible in the current climate, with family visits even less so, so it’s all being done remotely with people isolated in their cells.
He said: “People lose their minds in prison. People are stressed in prison. They are away from their families, they are away from comfort. It could be the first time they’re there. It’s a threatening place at the best of times. A lot of people in prison are vulnerable anyway. There’s less people there to look after them. You name a situation, it’s made worse by isolation or by Covid.
“If somebody’s on bail and wants to apply for a job or change jobs or even remain in their existing job, they may be dismissed while the outcome is being resolved.
“If you wanted to apply to change jobs – whilst this matter is hanging over you, you can’t get clearance. It affects every aspect of your life, particularly domestic violence situations. Having an unresolved allegation can mean you can’t go home to where you live. You may have prohibitions on how long or if you see your kids at all. Allegations against people are just that until they’re adjudicated on.”
There is also growing evidence that the increased waiting times are causing some defendants to plead guilty to crime they haven’t committed, simply to exit the system more quickly than they would if they pleaded guilty and awaited trial.
Criminal barrister Joanna Hardy told HuffPost UK she fears people will be taking “mathematical” decisions to plead guilty or say they will do so to lesser offences increasingly in the coming months so they spend less time in custody.
She said: “Some people might say: ‘I’d fight to my dying breath, it doesn’t matter if I have to wait years to serve my two month sentence.’ But some people don’t make those assessments and can you blame a human being who is away from their children or their wife, perhaps they’ve got vulnerabilities in custody and the conditions in custody at the moment are appalling?
“Some people don’t weigh up what will this conviction mean for job opportunities, what will this conviction mean for travel overseas. What will this conviction mean for me in 25 years if I want to be a teacher or a police officer?”
This is not a new tactic being abused in the legal system, but one that is being exacerbated.
Hardy added: “We are seeing an increasing position where human beings are thinking to themselves: ‘This is just getting longer and more intolerable in terms of conditions, and there’s an escape route’. And some people will take that escape route.”
In March, almost half of all courts were shut and trials involving juries were suspended amid the coronavirus lockdown, while some virtual hearings continued. While the Coronavirus Act 2020 permitted the expanded use of video and audio hearings, in practice these have been found to be particularly challenging for children and people with mental health issues, learning disabilities, language barriers or other factors affecting their ability to understand proceedings, as well as for litigants in person.
Penelope Gibbs, director of charity Transform Justice, is particularly concerned about the use of remote hearings, which create a “disconnect” between people involved,
She told HuffPost UK: “My observation is that if defendants and other people involved in the court process are on the equivalent of a Microsoft Teams call then defendants find their ability to participate in their hearing to be damaged because often the technology is bad, and or just the disconnect you get between people via a video screen.”
Gibbs has published her observations of remote magistrates hearings online, revealing poor sound quality, defendants unable to access representation due to connection problems and a judge complaining of “gremlins in the system.”
A former magistrate herself, Gibbs believes that in order to clear some of the backlog, minor offences should be diverted from prosecution in the courts – offences such as shoplifting, criminal damage or possession of cannabis.
She said: “That level of crime, it’s not very effective to prosecute it because those people normally just get a court fine if they’re convicted and they struggle to pay it and so on.
“There are quite reasonable routes to divert people from prosecution so they could receive a caution, or a community resolution or be diverted to services or whatever. At least 20% of magistrates court cases I think could be more effectively diverted. I’d say that in Covid or not, but the fact is we have a massive backlog now, so the opportunity is there to take some of these cases and divert them.”
As well as taking a toll on defendants and victims of crime, the buckling system is also impacting on legal practitioners.
“We are on our knees,” says Stephen Davies, a legal aid lawyer. “There’s a lot of spin from central government about the criminal justice system, they’re doing all these wonderful things, but the reality, at the coalface they’re not.
“I don’t believe justice is really being done. I think there’s a real face-off here between the cost and quality and they are clearly not intent on spending money, they want to cut the system and I don’t really see how you can cut it anymore without significantly jeopardising the quality.
“We are having to have online conversations explaining to people why they’re in custody for so long or why their trial is taking years and people are losing out on employment and university places, breakdown of relationships, mental health… it’s going to have an impact on those services. There’s a real false economy about all of this.”
A Law Society Criminal Legal Aid review published in June revealed that publicly funded criminal defence lawyers have not had a fee increase since the 1990s. The same report also noted there were 21,000 fewer police officers, 600 less police stations and that over 50 per cent of magistrates courts have closed since 2010.
Davies worries about the future of legal aid, as many lawyers look for more sustainable jobs.
“The scales of justice are imbalanced and I think that Covid-19 is going to be the straw that breaks the camel’s back,” he said.
“It was bad before Covid-19 but if the doomsday clock was ticking, I’d think we’re heading close to the final stretch. I don’t know what collapse looks like but it’s certainly not great and I would conclude by saying there’s a real human impact.”
The broad answer according to all parties, is more investment and a streamlining of existing services.
In July, the government set up several temporary Nightingale courts to hear non-custodial cases and try to help tackle the backlog.
On top of that, many courts have reopened and are holding trials, though not at full capacity.
Davies said: “It’s about investing smartly in technology and seeing how it will impact across the board. It’s about how do we intercept cases and deal with the administrative side of them more efficiently rather than wasting time on matters that could otherwise be more streamlined. It’s about maximising lawyers’ time to really devote to preparing these cases and of course giving them access to their clients in a privileged way and in a manner that is good for overall progression of cases.
“The other way you can increase capacity would be if you reduced the number of jurors. There is evidence on the part of Ministry of Justice that reducing jurors, which assists with social distancing, will provide some capacity increase.”
Between April and June this year there were just 124 crown court trials, compared with 4,911 in the first quarter. This is also the lowest number since records began in 2014.
Whether this streamlining and investment will materialise remains to be seen, with justice minister Chris Philips being roundly criticised for claiming the court systems were being run “more effectively” during the pandemic than they were before.
In July, the government pledged:
- £102 million to modernise courts in England and Wales including; £55 million for essential court maintenance, £37 million for technology, and £10 million for regeneration projects outside London and the South East which will support employment and economic growth.
- £40 million to improve the environmental sustainability of courts and tribunal buildings, looking at ways of reducing energy and water usage.
- £143 million to improve the prison and probation buildings including; £20 million to speed up the digitalisation of prisons, £60 million for 1,000 temporary prison units to expand the capacity of the estate, and £63 million on maintenance.
Steven Littlewood, the FDA civil service managers’ union for the CPS, described the pledge as a “good start”, but warned that more investment was needed.
“We are pleased the government is listening to our concerns about the proper funding of justice.
“However, although this is a good start it will take more than a lick of paint to clear the backlog of 40,000 cases.”
As the Secret Barrister sums up: “The primary solution, simplistic as it sounds, is money.
“The system has lost 25% of its budget. Crime is simply not being prosecuted – 7% is the current prosecution rate, with the conviction rate even smaller.
“Almost every major problem in the justice system at present comes down to lack of funding and lack of resources. Until the government acknowledge that simple truth, we are never going to make progress.”