COVID & THE BACKLOG; Wales Governance Centre Webinar, 30th June 2020

jonerees

COVID & the Backlog

Speech at the Wales Governance Centre Webinar

30 th June 2020

I would like to begin my remarks with praise for the outstanding efforts that have been made

across the criminal justice system in Wales to respond to the Covid-19 crisis.

The close co-operation between judiciary, court staff, CPS, police forces, police & crime

commissioners, solicitors and the Bar in Wales - all sharing the intention to get the system

working again fairly and safely as quickly as possible - has been unparalleled across the

jurisdiction and we should rightly be proud of that work.

That hard work and collaboration between the different agencies in Wales has resulted in

Cardiff Crown Court being the first Crown Court in England & Wales, alongside the Bailey, to

resume jury trials on 18 th May 2020.

All six of our Crown Courts in Wales, were able to list jury trials by the time of the second

tranche of reopened courts at the beginning of this month (when there were only 14 courts

across E&W in total that were able to).

Today’s list shows 21 trials across the whole of E&W. 5 of those 21 trials are listed in Crown

Courts in Wales – a remarkable figure of a quarter of all jury trials in E&W.

Those Crown Court trials are, in the main, single defendant trials which are expected to last

no more than two weeks. To accommodate social distancing, the public and press have,

where necessary, been removed from the trial courtroom itself and placed into a second

courtroom which has a live link to the trial venue. Some defendants have appeared at trial

over video link from custody – a novel development – but only where they have consented

to the same and, if they are to give evidence, they must come to the trial courtroom to do so.

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The jury have had to be spread out across the trial courtroom, a move which has posed some

logistical challenges to judge, counsel and witness in directing speech to the jury. But, I am

told from those few who have experienced trials at 2m distancing, that there has been very

little effect on the trial process itself, which is very positive news.

But as we have just seen the number of trials being conducted at present are very, very low.

It has been estimated that the capacity of the Crown Court to hold trials under these

conditions is at the highest projection only 25% of its normal capacity – a normal capacity

which, it has to be said, is simply not good enough.

The long-term, chronic under-resourcing of the criminal justice system has created, over a

period of time, a very obstacle to both victims and defendants obtaining justice.

In E&W, between 2010 and 2019, 162 out of 323 magistrates’ courts buildings have been

closed. 8 out of 92 Crown Court complexes have likewise been shut.

The number of magistrates in Wales has fallen from 1,929 to 1,130 during a similar period

(para.2.70 of Commission on Justice in Wales). These are problems that the Commission on

Justice in Wales identified in their report pre-Covid.

Sitting days of High Court judges in Wales has fallen by 17% between 2016 and 2019

(Commission on Justice in Wales – para.2.62). Sitting days for recorders in the Crown Court

are down also.

The fall in capacity of the court structure has been partnered with a fall in the number of

practitioners to support the system.

As noted by the Commission on Justice in Wales, at para.3.70, Wales has seen a drop in the

number of criminal legal aid providers, both litigators and advocates, between 2011 and 2019.

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The principal factor in that fall has been the prolonged attack on criminal legal aid which has

led to a lower level of remuneration compared with other areas of work.

These statistics are shocking but they should not be a surprise.

The overall MoJ budget fell by 27% between 2010 and 2018, leaving the system in perilous

state. During those years, there were many who made public their concerns of chronic

underfunding of criminal justice – those voices all pre-Covid.

The statistics for outstanding Crown Court trials during the last quarter of 2019 – again pre-

Covid – show a total of 28,385 trials outstanding, of which 7034 trials involved victims of

violence, and 2953 trials involved victims of sexual offences. All waiting for justice.

As of 24 th May 2020, the Crown Court case backlog stood at 40,526. That figure was estimated

by the Lord Chief Justice on 13 th May 2020 to be rising by 1000 cases per month.

Only today, the HM CPS Inspectorate of the CPS, Kevin McGinty, has warned that the backlog

could take up to 10 years to clear.

Some short-term fixes have been floated but all are poor substitutes for the clear and obvious

solution – significant financial investment in the foundations of the criminal justice system

after years of neglect.

What are those short-term fixes?

A dilution to the jury system has been raised, but the statistics as to judicial diversity alone

demonstrate that there can be no competition as between trial by jury and trial by judge only

or a judge plus 2 magistrates. Only 13% of magistrates declare themselves to be BAME. It

cannot be good for anyone – defendant or victim – to see criminal justice being taken away

from the community in this way.

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Virtual jury trials? There are real and obvious concerns about the judge sat in a different

location or locations from the members of the jury. How can the judge keep a jury safe from

improper influence, advertent or inadvertent, when he or she has no control over their

environment? Video and teleconference hearings have been used for non-jury work and

whilst the technology is welcome, as the Criminal Bar Association has stated, it ought not to

be rolled out at scale when it has not been thoroughly evaluated and tested. The impact of

virtual hearings on case outcomes has not been studied enough and further research is

needed – such studies that have been carried out are not very favourable and appear to

indicate concern that hearings may be biased against the defendant who does not appear in

person, with sentencing outcomes appearing to be more severe when conducted over the

videolink.

In a recent family case, Re P [2020] EWFC 32, the President of the Family Division, Sir Andrew

McFarlane, when rejecting a proposal for a full final hearing in contested care proceedings to

be held online, commented on the risk to the fairness of proceedings when conducted

through a screen: a ‘postage stamp image of any particular attendee at the hearing,’ he said

‘… is a very poor substitute to seeing that person fully present before the court’. The President

did not consider that ‘a remote hearing for a final hearing of this sort would allow effective

participation’ for the parties with the court.

The Nuffield Family Justice Observatory report on Remote Hearings in the Family Justice

System (a Rapid Consultation at the request of the President of the Family Division to review

the social distancing measures introduced following the COVID outbreak) noted at para.3.1

that:

“Many of the respondents expressed a concern about the difficulties of reading body

language where there is no face-to-face contact with parties…”

It continued: “Many respondents noted that it is extremely difficult to conduct the hearings

with the level of empathy and humanity that a majority of those responding thought was an

essential element of the family justice system.”

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I trust that no one could or would seriously argue that a lesser level of empathy and humanity

was justified in the Crown Court.

There is forthcoming research by Professor Cheryl Thomas QC, UCL, again sponsored by the

Nuffield group, on “Juries, the Digital Courtroom and Special Measures”. This research project

is designed to answer the following key questions on this issue:

• How does the type of evidence and the way it is presented in court affect juror

perceptions of evidence and jury decision-making?

• How are juror perceptions of evidence (and jury verdicts) effected by whether

evidence is given: (a) in court or remotely? (b) live or pre-recorded?

• If evidence is presented on digital screens how are juror perceptions (and jury

verdicts) affected by: (a) Type and size of screens? (b) Quality levels (visual and

audio)?

While this research focuses on juror perceptions and jury decision-making, the findings should

have relevance for other aspects of the digital courtroom where decision-making is taking

place virtually (amongst judges and counsel).

That research I await with interest and technological innovation clearly has an important part

to play in the future.

But great care should be taken that important resources are not diverted away from

fundamental parts of the system to pursue additional facilities which may build upon, but

cannot replace, the basic foundations of our jury trial system: juries to reflect our diverse and

vibrant society; adequate buildings in size, number and facility; and sufficient judges and

skilled practitioners to service them.

There is no getting around it with quick fixes – the criminal justice system needs a ‘New Deal’.

To paraphrase the Prime Minister in his announcement today, now is the time to be ambitious

about the criminal justice system in E&W. The UK Govt should use this moment to fix its

longstanding failure to properly fund criminal justice in Wales & England.

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Although COVID-19 was yet to surface, the issue of underfunding was very much raised by

the Commission on Justice in Wales. Some of the recommendations of the Commission have

been picked up by others, coincidentally or not, in response to the COVID-19 crisis.

Having noted that the court estate in Wales had meandered for some time without any

discernible strategy, the Commission recommended that a court estate strategy for Wales

should be identified and that that strategy should take into account the occasional use of

buildings to house judicial proceedings.

At paragraph 8.31 of the Report, the Commission noted that:

“until well into the second half of the 20 th Century, courts sat in buildings that had

other purposes and were used from time to time as courts. One example was the use

of the Council Chamber in the Swansea City Civic Buildings. In Wales, we see the return

to the use of such buildings, sometimes referred to as ‘pop up’ courts, as a necessary

part of the strategy”.

The return to the use of such buildings as courts may happen sooner than the Commission

envisaged.

Part of the collaborative work that has taken place in Wales has been multi-agency

investigation into the use of Cardiff City Hall and the Swansea City Civic Buildings for use as

‘Nightingale’ or, as the Lord Chancellor would prefer to call them, ‘Blackstone’ Courts.

That collaborative work commenced earlier, has gone beyond that taken elsewhere and

indeed has been used for modelling in other parts of the jurisdiction. And it will bear fruit, we

hope, when the Lord Chancellor announces the location of the first ten sites for Blackstone

Courts shortly - another achievement that all can be proud of in Wales, demonstrative of our

ability in Wales to work together and ‘get things done’.

There is one further issue on the horizon that may need particular thought. The reserved

nature of criminal justice has meant that the challenges posed by COVID-19 to the criminal

justice system have been met thus far with “all England & Wales” solutions. We may yet find,

however, divergence in the conditions in which the Crown Court must operate. Whilst justice

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is not devolved, public health is. England has already announced a move towards ‘1m plus’

social distancing measures from early next month. It is yet to be seen the extent to which a

move to ‘1m plus’ will affect the operation of the courts in England – whether, for example,

we will see Perspex screens and facemasks appearing in the Crown Court in other parts of the

jurisdiction to allow for the greater numbers of jury trials in the existing court estate that

could be conducted at 1m distancing as opposed to 2m. It is not unforeseeable that, due to

differing public health measures, jury trials in England may soon end up looking like different

beasts to those in Wales – a complexity of devolution that not even the Commission on Justice

in Wales had the prescience to foresee. I hope instead that good lines of communication

between all interested parties will ensure that the criminal justice system in Wales stays at

the front of the fair and safe charge back to – and way beyond – its ‘normal capacity’.

JONATHAN ELYSTAN REES QC

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