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How the English criminal justice system is coping in the light of the second lockdown

Posted on 6 November 2020

In March 2020, HM Courts & Tribunals Service (HMCTS) scrambled to adapt to the new working conditions brought about by the lockdown in respect of COVID-19. Much of the court system adapted quickly by moving civil cases to remote hearings conducted virtually. Jury trials posed different challenges given the number of people required to attend court and so they were effectively suspended on 23 March. In addition, from 24 March only cases deemed to be a "priority" were listed at the Magistrates' court and all other cases were temporarily adjourned indefinitely.

Some criminal courts began to reopen in May with special measures in place to allow for social distancing to be observed, which included the use of multiple courtrooms to hear a single trial. Temporary "Nightingale Courts" also opened across the country in adapted, newly empty locations such as theatres and offices. There are currently 16 of these courts providing capacity for 29 extra civil and criminal courtrooms and in some parts of the country jury deliberations are even being conducted in specially installed Portakabins. As at the beginning of November, some jury trials have resumed in 78 Crown Courts and five Nightingale Courts across England and Wales.

The approach by enforcement bodies

Enforcement bodies, such as the Crown Prosecution Service (CPS), Serious Fraud Office (SFO), National Crime Agency (NCA) and HM Revenue & Customs (HMRC), also adapted their practices in an attempt to mitigate the backlog of cases. In mid-April the CPS introduced interim guidance on the application of the Code for Crown Prosecutors. The guidance requires prosecutors to take account of additional new factors when considering whether a prosecution is proportionate in each case. These factors include taking into account of the overflowing pipeline of cases, the likely delay to cases and the impact of this on victims. An Interim Charging Protocol and an Interim Interviewing Protocol for the CPS and National Police Chiefs Council were also introduced to help cope with the effect of COVID-19 measures.

During the first lockdown, a number of Government agencies, including HMRC, announced that some investigations would be paused or de-prioritised to deal with the additional workload brought about by the introduction and implementation of new Government schemes and working practices. However, HMRC and others reiterated their commitment to fighting serious and economic crime with both the NCA and Financial Conduct Authority (FCA) publishing plans during lockdown which set out ambitious aims for combatting crime. The SFO suspended compelled interviews but announced that it would continue to work across all stages of its investigations.

Worsening criminal caseload backlog

Concerns about a backlog of criminal cases were raised before the pandemic, but the impact of the Government's restrictions and the continued health crisis has seen this issue worsen. It is estimated that there are currently 47,600 cases waiting to be heard in the Crown Court and the wait time for serious financial crime investigations to reach trial could last years, and this was the case even before the pandemic. This can only get worse.

The Government has confirmed that over 9,000 trials were delayed as a result of the UK-wide lockdown and the Criminal Bar Association estimates that there are around 120 trials which cannot currently be accommodated by the courts because the number of defendants involved makes social distancing impossible.

Figures show that the number of outstanding cases in England and Wales rose by one third in the first three months of lockdown, which means the CPS is now handling over 171,000 criminal cases. A report released at the end of October by the Crime and Justice consultancy agency, Crest Advisory, suggests that the number of criminal cases due to be heard by the Crown Court is set to quadruple over the next four years and the backlog of cases in the Magistrates' Court will rise by a factor of 10.

The way forward

The Crest Advisory report concludes that criminal capacity in England and Wales will need to double to cope with this increasing backlog. Although the Ministry of Justice criticised the report's findings as being based on "extreme assumptions", the vice chair of the Criminal Bar Association described the report as "simply telling us what we already know." It is clear that the court system will need to further adapt to deal with the growing number of cases waiting to be heard and this problem is likely to be compounded by the large number of cases currently being investigated which relate to fraudulent claims connected to the Government's COVID-19 support schemes.

Following the announcement of a November lockdown in England, the Lord Chief Justice released a statement confirming that the courts would continue to operate during this period and that the legal profession, the parties, jurors, witnesses, judges, magistrates and court staff are all classed as key workers. Similarly, enforcement bodies will continue to operate remotely without interruption to their operations. 

Looking further ahead, the Ministry of Justice has committed £80 million to a recovery package for the criminal courts system and HMCTS continues to issue weekly updates on the measures being undertaken by courts and tribunals to deal with the backlog of cases and additional challenges of another lockdown in England.

It is clear that some aspects of the criminal justice system can, like in the civil courts, be dealt with quite adequately in virtual hearings. It is the accommodation of the jury that proves difficult. It would not be surprising if there were calls again for a reduced number of jurors to sit on cases during these times, or even the introduction of Judge only trials. They have been resisted thus far, but it is difficult to see how the system can cope with repeated lockdowns and social distancing without a radical rethink about how to increase capacity.

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