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

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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