COVID-19 and the Justice System

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19 March, 2020

The present circumstances

On 18 March 2020, the Lord Chancellor affirmed that "the rule of law is vital to a functioning democracy and even at times like these, it is essential that our independent courts are able to administer justice."

Whilst many public places have either been ordered by the Government to close, or are closing of their own discretion, Courts have a critical role in society in delivering justice and at the time of writing, they remain sitting across England and Wales and public galleries remain open. Nevertheless, staff absences have resulted in reduced capacity across most courts and cases due to be heard in a Crown Court with an expected hearing time of over three days will now be postponed.

Coronavirus Bill

Government guidance on the Coronavirus Bill has been published and aims to shed some light on how the justice system aims to keep functioning during the current COVID-19 pandemic.

The Bill will:

  • Aim to expand the availability of video and audio links in Courts to enable a wider range of proceedings to be carried out using technology so that courts can continue to function without the need for defendants, magistrates, lawyers, jurors, court staff and witnesses having to attend in person. This should ensure that cases get heard and prevent cases being adjourned.
  • In order to facilitate this expansion, the court system will: allow specific civil applications relating to infectious diseases/coronavirus in the magistrates' court to take place by video or phone; expand the availability of video and audio link in various criminal proceedings; and allow the public to participate in court and tribunal proceedings through video and audio. The decision to use technology in hearings will always be a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice.
  • Aim to ensure that the Treasury can transact its' business at all times by making it possible for a single commissioner or a single Treasury minister to sign Instruments and Acts on behalf of the commissioners. This differs from current rules which state that where any Instrument or Act is required to be signed by the Commissioners of HM Treasury, it must be signed by two or more of the commissioners. This change aims to ensure that the Treasury can continue to transact its business at a time where commissioners may not be able to sign instruments or acts by reason of COVID-19.
  • Aim to allow temporary judicial commissioners to be appointed at the request of the Investigatory Powers Commissioner in the event that there are an insufficient number of judicial commissioners available to operate the system under the Investigatory Powers Act 2016. This piece of domestic legislation is crucial for national security as it creates the statutory basis for the use of investigatory powers by intelligence and law enforcement agencies using warrants. Such warrants provide the agencies with the ability to protect national security and investigate and prevent serious crime.

What next?

At present, it is essentially 'business as usual' in the courts, however it is likely that as the country moves towards a total lockdown in all other areas of life, the Courts will too have no choice but to follow. In terms of what this will look like, jury trials will be unlikely to be heard and only wholly necessary and urgent trials may be heard, potentially where there is a public interest element. Critically, it is also expected for there to be a marked increase in the range and use of proceedings being carried out by video and audio. Courts are currently rapidly extending their capabilities to be able to provide such services, for example by working on their Justice Video Service to increase the number of hearings which can be heard at once on laptops; increasing the number of licenses for BT Meet Me, which is a system that records hearings to a standard acceptable in the justice system; and activating Skype for Business on all staff and judicial laptops. Staff are receiving training on all of these recent changes.

On the topic of technology, a barrister turned to Twitter on 16 March 2020 to highlight her disappointment that upon attempting to get a trial adjourned as one of the witnesses had suspected COVID-19, she was told by court staff that she would have to make a formal application and pay for this. A Judge at the court saw the tweet and allowed the adjournment. Nevertheless, it should be borne in mind that during such unprecedented times, the Courts will be overwhelmed with enquiries and requests for an assortment of things to be changed or moved, and guidance is changing daily.

We will continue to monitor all Government and HMCTS guidance on COVID-19 regarding the justice system.

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