Trial by Zoom: Covid-19 and the threat to our weakened justice system

“This is not the new normal. This is the normal normal,” says Matthew Paul.

He’s a barrister at Civitas Law, named a “leading individual” in last year’s Legal 500, and I’ve just asked him about the tens of thousands of individuals stuck in legal limbo as their cases go unheard due to Covid-19 lockdown measures. “Unconscionable delays in criminal cases are routine,” he says.

“Routine” is not a word that has been used much over the past two months. But when it comes to the justice system, coronavirus has not only presented new challenges, but exacerbated an ongoing existential crisis that gets too little attention.

Throughout Britain’s battle with this pandemic, the public institution that has received the most media focus has quite rightly been the healthcare service, with all government efforts focused at ensuring our hospitals did not become overwhelmed. The spotlight then turned to the tragedies playing out in care homes that were not adequately protected. The challenges to other public services have been highlighted, from the financial strain on transport networks to arguments over how to reopen schools safely.

The state of the justice system under Covid-19 rules has received relatively scant attention, however. This is no surprise. Unlike schools and hospitals, most of us have little experience of the strange world of wigs and gavels (which are not even used in British courts, despite being repeatedly used to illustrate legal stories in the media), and we rarely see what goes on in a courtroom as relevant to us personally.

But while it may not be central to our everyday lives, it central to our society.

As the blogger, lawyer and author known as the Secret Barrister puts it: “The law affects us all, yet we understand so little about it. And while we may not all understand everything about other areas of public life, the point about justice – and criminal justice in particular – is that it is not merely an important public service, like health or education, but serves a key democratic function.”

With large parts of the justice system in England and Wales essentially on hold, how has the law been affected by the most draconian restrictions ever seen in peacetime? What does a socially distanced legal process look like? How long can we expect the changes of the past few months to last? And can the justice system as we know it survive in a post-Covid world?

To fully understand the impact of the Covid-19 measures, we need to consider what the court system looked like prior to the pandemic. The picture was not pretty. As part of the 2010 spending cuts, the Ministry of Justice’s budget was slashed by 40 per cent, with a devastating knock-on effect on the operation of courts and the time it takes for cases to be heard.

“Before lockdown there was a backlog of 37,400 Crown court trials due to government cuts,” says barrister (and former Conservative MP) Jerry Hayes, who specialises in criminal law. “They have been restricting sitting hours and closing courts.”

Over half of magistrates courts in England and Wales have closed since 2010, while the average crown court case takes 525 days to come to trial. Defendants, complainants and witnesses must put their lives on hold for over a year (sometimes remaining in custody or unable to return to their jobs), with many having to travel miles to attend hearings as local courts close.

“The criminal justice system was broken well before lockdown,” Hayes continues. “Filthy courts, understaffing, cuts to legal aid and CPS budgets. Covid-19 has just brought to the public attention something we have been complaining about for years.”

“The lockdown has inevitably compounded the problems that already existed in the criminal justice system,” agrees Sophie Khan, a solicitor-advocate and director of the Police Action Centre, who points out that funding cuts had left large swathes of court rooms in Crown Courts across the country empty long before anyone was using the phrase “social distancing”.

“It will now take many years before the criminal justice system can be said to be fit for purpose,” says Khan.

If that starkly outlines the problem, what are the potential solutions? The obvious one is that the justice system does what every other industry has had to do in the past two months: go virtual.

“Do people really need to gather together in buildings to settle legal disputes?” asked legal services expert Richard Susskind in an article this month for the Financial Times. “Until a few weeks ago, most judges and lawyers rejected the idea of non-physical courts, denying that remote hearings could be fair or even technically feasible. I used to think that high cultural barriers meant it would take a decade for courts to embrace technology fully. Then the virus came, courts closed, and it only took a fortnight.”

In some ways, the rapid progress has been inspiring. Who would have thought that 85 per cent of a court or tribunal hearing could be conducted remotely? Why weren’t we making use of this technology before?

“Remote hearings have been a success,” says Hayes, who calls this a “sensible way forward” in most instances. Matthew Paul agrees – up to a point.

“I expect a long-term move away from herding people pointlessly into distant courtrooms for hearings that can be dealt with online,” he says. “Apart from creaky tech, remote hearings work perfectly adequately for first appearances, plea and case preparation hearings and pre-trial reviews.” He does note, however, that a jury trial cannot be conducted remotely.

And there are other issues when it comes to hearing evidence. The existing practice of using video conferencing for questioning vulnerable witnesses, such as children, suggests that on-screen testimony can be perceived as less convincing than that which is given in person.

“During the lockdown, it has become clear that remote hearings cannot replace face-to-face court appearances, as video conferencing is not suitable for live evidence,” warns Khan. “It would only be in exceptional circumstances depending on the facts of the case, that live evidence would be given virtually, and only as a last resort.”

Another barrister, who did not wish to be named, pours cold water on the idea of “virtual justice”.

“Judges do not decide legal questions simply through written submissions, they should and must engage with counsel. Doing so creates a much more dynamic consideration of all issues in which points arise which might not have occurred to judge or counsel before the hearing. This Socratic discussion is far more difficult with the variable bandwidth and imperfect conditions of remote hearings.”

The importance of face-to-face contact in court, he argues, is not just a practical consideration, but a moral one.

“Trials are inherently unsuitable to be conducted visually. A judge has the difficult job of deciding whether a witness is lying or is otherwise unreliable and seeing and witnessing him in person is a key part of that. Courtrooms and the legal process are intended to impress upon witnesses the gravity of their evidence – which can lead to individuals being bankrupted (often the result of losing a civil case) or losing their liberty. That gravity is difficult to impress upon them in a Zoom meeting.”

As long as at least some of the justice process must take place in a physical setting, courts will be in the same situation as other workplaces, trying to figure out how to operate safely and effectively when they reopen. It will, Khan notes, be a “resource-heavy exercise” – bad news for an institution that is already struggling. So some things will have to change.

“The biggest change to the criminal justice system will be the limitations on the listing of court hearings and trials,” Khan says. “It is unlikely that block listing will be resumed anytime soon.”

Then again, necessity is the mother of invention. As Paul points out, this could be an opportunity to require the courts to co-operate more with the legal profession.

“The usual experience of the criminal bar is that listing cases for their convenience ranks somewhere between an irrelevance and an annoyance. Court listing officers expect solicitors and counsel to sit around wasting whole days at a time in physical court buildings, while a trial is ‘floating’, i.e. waiting for a spare judge and courtroom to deal with it. Cases are often listed to be heard not before 10am, when the listing office can see perfectly well that they won’t be dealt with until the afternoon.”

None of this will be possible, says Paul, if there is the need to schedule hearings and stick to remote slots.

“This might also limit some members of the judiciary in the exercise of malevolent caprice by weaponising a lengthy court list to inconvenience lawyers or defendants they dislike.”

The other big concern is, of course, technical glitches. Most of us will have experienced the frustrations of a video conference call gone wrong over the past ten weeks. In court, the stakes can be infinitely higher than a weekly team meeting, while the institutional grasp of technology has traditionally been somewhat lacking.

Last year, an IT failure caused the court’s main computer system to crash repeatedly. Some 75,000 lawyers and court staff were unable to access their communications, disrupting thousands of cases across England and Wales over several days. Internal documents from the MoJ later revealed that officials had known the computer system was “obsolete” since the previous year, and warned that “historical under-investment in ageing IT systems” posed a significant risk. This saga does not inspire much confidence for a tech-based justice system.

“A major shift to virtual justice will require some real investment in working tech,” says Paul. “Procuring this is not something which the MoJ has historically been very good at.”

None of these developments, however, are applicable to the cornerstone of the British legal system: the jury trial.

Since the twelfth century, those accused of crimes in England have had the option of being tried by a jury of their peers. The system is costly (a single jury trial costs taxpayers an average £17,500), time-consuming, and imperfect. But to paraphrase Winston Churchill’s famous adage on democracy jury trials are the worst form of justice system, except for all the others.

Their integral place at the heart of the UK justice system makes the decision on the first day of lockdown halt all new jury trials all the more remarkable. Aside from the courts set up in Northern Ireland to try terror suspects, which used judges to avoid sectarian juries reaching biased decisions, such a suspension is virtually unprecedented. For eight weeks, no new juries were sworn in at all.

From the 18th May, jury trials were allowed to restart in a few select courts, including the Old Bailey in London, albeit it with extensive social distancing strategies in place. Courtrooms have undergone a makeover – most notably with a second courtroom for the jury, and a third for journalists and observers to watch the proceedings via CCTV. The new restrictions mean that, even if all the courts reopened, the capacity to hear trials would be still dramatically reduced, with the backlog growing by up to 1,000 cases a month.

According to Caroline Goodwin QC, chair of the Criminal Bar Association: “The restrictions imposed mean the courts cannot keep pace with that backlog, no matter how innovative the thinking is.”

Is it time to move to a system that can operate more swiftly? In the words of the Conservative former justice minister Lord Faulks: “justice delayed is justice denied”. In a recent interview with The Guardian, he tentatively mooted that this might be the moment to review our national fixation with trial by jury.

“There are different ways you could do it; you could have a judge with a couple of magistrates. People may say it’s terrible, but if judges [deliver a verdict] they have to give reasons and therefore those reasons are apparent. It makes the process of making an appeal much clearer. You can see what’s under the bonnet.”

Another controversial option that falls short of abolishing juries altogether would be to allow defendants to choose to have their cases heard by a judge instead. That’s the suggestion of Geoffrey Robertson QC, who points out that this is already the system in some Australian states. As he said in a op-ed for The Guardian: “We believe sentimentally that trial by jury is a defendant’s fundamental right – but why not give them the additional right to choose instead a reasoned verdict from a judge?”

There are problems, though, with a two-tiered justice system. It is disturbing to think of defendants who have the resources to wait months or even years for their day in court (on bail rather than in custody) receiving different treatment to those whose circumstances require their case to be resolved quickly. Indeed, some legal experts argue that this is already a problem, with more criminal cases being heard by magistrates rather than in crown court jury trials.

Besides, is there really the political scope right now to tinker with one of the country’s oldest civic institutions?

“Jury trial has a Magna-Carterish Brexity resonance to it that brings liberals and traditionalists together,” says Paul. “Restricting it would be picking a fight with Keir Starmer and Jacob Rees-Mogg at the same time. I doubt the government will mount any sort of frontal attack on juries.”

If the backlog in criminal cases cannot be addressed through technology, socially distant court rooms, or a rethink of the jury system, what options are left? Paul is blunt in his assessment.

“The government can either ignore the backlog and hope the invisible hand of bureaucratic inefficiency somehow waves it away, or it could take measures that are likely to be very unpopular with a punishment-fixated public,” he says. “These could include asking the police to divert as many cases as possible from the criminal justice system, and dealing with them by caution or informal resolution.”

This could potentially help alleviate challenges in another area that have been thrown into stark relief by Covid-19. That is the state of prisons. The overcrowding that has been an open secret for years (two thirds of prisons in England and Wales are overcrowded) has become impossible to ignore in the midst of a pandemic, as safely isolating prisoners with symptoms has proved next to impossible.

“We already jail far too many people, so sentencing guidelines should be adjusted downwards,” Paul argues. Some of the 20,000 or so prisoners who are inside for being a nuisance, not a threat to the public, should be let out straight away to free up prison places for the nasty bits of work who really deserve them.

Of course, putting fewer people in prison does not exactly chime with the attitude of this government. Last year, the Home Secretary Priti Patel boasted of the government’s new policy of tougher sentences.

But maybe public attitudes to policing will have altered somewhat after Covid-19. Overnight, the British population was transformed from law-abiding citizens to potential lockdown criminals. Absurd examples of law enforcement overreach, such as Derbyshire Police filming and shaming hikers or Northamptonshire Police threatening to inspect the contents of people’s shopping trollies for “unnecessary items” have strained the relationship between people and police.

“There has already been an awakening among society that this style of policing damages community cohesion,” says Khan. “Society’s relationship with the police will change, as it’s unlikely that the police will get away with overstepping the mark in the future.”

Another barrister who wishes to remain anonymous goes further. “It is impossible to impose legislation micro-managing people’s lives (and violating their fundamental freedoms) without scarring the traditional relationship with the police force. A democratic citizen police force doesn’t question someone about a ‘suspicious’ drive to his parents or prevent them from sunbathing in a park. It is wholly incompatible with a free society for them to break up a political protest. A citizen police force is there to maintain order, not to impose behaviour.”

Of course, that isn’t the whole story. As Paul says: “For every person who thinks officers have acted like jackbooted minions of fascist oppression, there is another who fervently believes that anyone who risks people’s lives by having a picnic in the sun should be jailed and have their car crushed”. Lockdown remains immensely popular – surprisingly more so in the UK than in other countries with more authoritarianism in their histories.

Still, it’s too early to say how Britain’s short burst of draconianism will affect attitudes towards both police and criminal justice. With so much about our way of life changed beyond all recognition already, maybe an overhaul of the prison system isn’t as outlandish as it seems.

Finally, spare a thought for the lawyers themselves, a group of professionals who rarely garner much sympathy. It is worth remembering that a barrister’s livelihood relies on appearing in court. With the courts closed and hearings delayed, the majority join the ranks of the self-employed out of work due to lockdown rules.

For criminal barristers, the picture is particularly bleak – a day’s work in court prosecuting a complex case can yield as little as £46, including time spent on travel and preparation. Many junior members of the bar took out significant personal debt to qualify.

The impact of Covid-19 on lawyers was hammered home by a survey from the Bar Council of its members just after lockdown began: 56 per cent of barristers surveyed said that they could not continue for six months without financial aid, 77 per cent said they would not survive a year, and 30 per cent said they were already facing financial hardship.

As for the publicly funded bar in particular, 31 per cent of criminal barristers said they may not be in practice within three months, and 87 per cent said they will not last six months. That was in April.

“Jury trials will not be up and running in any meaningful sense until September,” says Hayes. “This will have devastating cash flow consequences on the young bar. There may not much of a bar left after lockdown.”

George Payne and Harry MacDonald, both criminal barristers, are equally concerned – and are scathing of the Treasury’s support so far.

“The closure of the courts has destroyed the income of professionals performing a specialist, challenging and essential role in society. Many are still trying – still trying to protect rights, prosecute the guilty and defend the innocent. All the while furloughed employees for private interests, ordinarily enjoying far higher salaries than a legal aid lawyer could hope to earn, are paid £2.5k a month to do and contribute nothing. It is not fair. It is not sustainable and it will lead to a mass exodus from criminal and public law work.”

Again, a sharp reduction in lawyers is hardly likely to make the front pages in the way it would were teachers or doctors quitting the profession en masse. But the implications for the future of our justice system has the potential to affect all of us, however much we might hope that it won’t. At any point, any one of us might find ourselves the victim of a crime, falsely (or not falsely) accused, or called as a witness. If and when that happens, we should all hope for a legal system – which is as much a public service as schools and hospitals – that can function adequately.

The loss of solicitors and barristers, particularly in criminal law, has the potential to ruin lives. “This will result in innocent people being kept in prison awaiting trial for an unknown length of time,” warn Payne and MacDonald. “Uncertainly is horrible not only for innocent people in prison but also the victims of crime who have no idea when the process of giving evidence will be finished.”

It may seem strange to think of criminal law in the same bracket as tourism, aviation, restaurants and retail – sectors so badly hit by Covid-19 and the long-term measures to combat it that they may never recover. But this, warns Hayes, is a very real risk.

“The criminal bar faces oblivion unless we are given help.”

The sudden and unprecedented challenges in almost every area of life prompted by the Covid-19 crisis risk blinding us to real and systemic problems that pre-existed in the justice system. Unprecedented backlogs, court closures, chronic funding shortages and a genuine existential threat to the public bar were already undermining one of the central pillars of our civic infrastructure long before March.

These have now been exacerbated on an immense scale – and listening to lawyers, it is difficult to have much hope that the situation can resolve itself once the pandemic passes.

The recent innovations are impressive, and in some areas highly welcome. But all the evidence suggests current innovations are little more than a sticking plaster over a potentially mortal wound.

The real danger is not that we face a longer-term shift to virtual justice or trial by Zoom – which could potentially offer some opportunities if the technological problems can be resolved.

It is that, when this crisis is over, we find ourselves with not much of a justice system at all.