KBG Chambers KBG Chambers KBG Chambers KBG Chambers

News

'The Show Must Go On; Criminal Courts Amidst the COVID-19 Crisis' by Samuel Castlehouse

28th April 2020

The Show Must Go On; Criminal Courts Amidst the COVID-19 Crisis

Samuel Castlehouse is a pupil at KBG Chambers, practising in Criminal & Family law. Sam read law at the University of Plymouth and was awarded a First Class degree before completing Bar School in London. He was called to the Bar in July 2019 from the Honourable Society of the Middle Temple after receiving the Queen Mother Scholarship and Michael Sherrard Access to the Bar Award. Samuel is currently accepting instructions in the Crown & Magistrates Court.

There is a famous saying in show business that ‘the show must go on’. That philosophy, if it is right to call it that, can mean that in circumstances where a performer in a production is unable to perform there is an understudy waiting in the wing and ready to go. Or where there is a costume or prop malfunction there is another ready to take its place. But the same cannot be said of the Criminal Justice System (CJS). There is only one system in this country, which struggles with the demand at the best of times let alone in these unprecedented times, and no understudy or substitute ready to continue the administration of justice where it cannot. Now, more than ever, the show must go on in the CJS. But how? How can the system administer justice, which includes not only getting cases in and out of court, but ensuring it is done so fairly and in an open and transparent way, whilst the country is in lockdown?

This article explores the current COVID-19 crisis and the effectiveness of the Crown Court’s response to it.

COVID-19

What has been colloquially called the ‘silent enemy’ COVID-19 is a highly contagious virus and strikes without any prejudice. It is spread through respiratory droplets of an infected person when they cough, sneeze or speak, or by a person touching a contaminated surface and then their eyes, mouth or nose.[1]

It is a crisis unlike any other. It has taken over every media outlet in the last 3-months and is a hot-topic of conversation across the world. A simple Google search of ‘covid-19’ brings about 2,870,000,000 (billion) results in 0.44 seconds. Not only does the disease bring about many Google results, but many essential changes in this country’s day-to-day life. And rightly so. According to the most recent statistical bulletin on deaths involving COVID-19 released by the Office for National Statistics (ONS), there were 13,121 deaths registered up to 18 April 2020 in England and Wales involving COVID-19[2], with COVID-19 being the third most frequent underlying cause of death for deaths occurring in March.[3]

The Government’s response to the earlier part of this crisis was to enter the Country into Lockdown and only allow a person to leave their home for specified reasons as set out in section 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. It is no surprise that this measure has had a significant impact on the ability of the courts to list and conduct effective hearings.

RESPONSE OF THE CRIMINAL JUSTICE SYSTEM TO THE CRISIS

In response to the crisis Parliament and HMCTS have introduced various new measures. It has consolidated the work of many courts and tribunals into fewer buildings. 76 courts have been suspended (i.e. temporarily closed completely), 116 courts are staffed, to include court staff and Judges whilst excluding the public, and 159 courts remain open for essential face-to-face hearings.[4]

Many hearings are being conducted remotely, where appropriate. While some hearings are able to proceed effectively, for example: some sentencing hearings (where the defendant is in custody); urgent applications including for bail and to extend custody time limits; PTPHs and further case management hearings, there are a number of hearings in the Crown Court that require the physical presence of the parties and are, therefore, postponed and added to the ever-expanding backlog of cases. The House of Commons’ Court Statistics for England and Wales reports that at the end of December 2018 there were 33,000 outstanding cases in the Crown Court.[5] Not to mention the increase this will have on the time it takes to dispose of a case; in 2018, there was an average time of 157 days (just over 5 months) between the offence being reported to the completion of the case.[6] This is already an increase in the waiting time from 2012, which will only increase given the decision to close, and restrict the functioning of the courts. Those involved in the CJS are likely to wait with bated breath for the 2020 figures which are almost certain to show a steep increase in the backlog of Crown Court cases and an increase to the average time required to dispose of a case.

The likely increase to the backlogged caseload and waiting time in the Crown Court comes as a result of, in-part, the most significant measure taken by the Lord Chief Justice in suspending jury trials until further notice. The rationale behind the Lord Chief Justice’s decision is clear and, many would argue, right. The very nature of a jury trial requiring a number of people in one, often small and warm, courtroom, operating within a short distance of each other would be a breeding ground for the virus. It would put the health of everyone involved and the public, more generally, at risk.

The decision to suspend jury trials was inevitable. Notwithstanding that, the delay has an impact on more than just the statistics. Delay for the defendant means, at the very least, uncertainty as to their future. For those in custody it means a delay to their release if ultimately acquitted or certainty of sentence if not. It means they live each day knowing that their trial is forthcoming but having no idea how long they will wait for their prosecution. The same can be said for witnesses; they live each day knowing they need to give evidence but not knowing when. Each passing day might result in an increased reluctance to support the prosecution as they succumb to their nerves or as their recollection grows vaguer. For victims it means postponed ‘closure’ of an incident they may still be coming to terms with.

REMOTE JURY TRIAL

A balance needs to be struck between the need to keep the CJS functioning with the health, safety and well-being of those involved and the wider public. The only conceivable method of progressing with a jury trial under these circumstances is remotely. This was recently tried by the campaign group JUSTICE, who, according to the Law Society Gazette, reported that the experiment was a ‘success for open justice’.[7]

The experiment involved all participants appearing remotely, including the Judge, defendant, counsel for the prosecution and defence, and 12 members of the jury. The trial appeared to have been heard successfully with JUSTICE noting that each party was accorded ‘equal visual status’, something that is not always possible in the courtroom.

On the face of it, the fact that a full remote trial was conducted may be considered a triumphant success. However, the experiment did experience some setbacks. JUSTICE noted there were a number of technical problems including jurors disappearing from screen, making the case susceptible to an appeal, and involved placing a significant amount of trust in the jurors to find a private location and not to record the proceedings whilst complying with their legal responsibilities during the trial.

Remote hearings seem to be a step in the right direction in some circumstances, and certainly assist with meeting the overriding objective, which includes administering justice expeditiously. Striving for expeditious justice, however, cannot be at the expense of an open and fair trial and a remote jury trial in a verifiably safe way appears to be a step too far at this stage. The work by JUSTICE is positive in paving the way for potential technology-operated hearings in the future. Too much, however, is left unanswered, particularly in relation to its impact on witnesses and the jury, which the remainder of this article will discuss.

WITNESSES

One thing that the remote hearing will never be able to replicate is the imposing environment of a courtroom, with its theatrics, unfamiliar aesthetics and attire, which is arranged in such a way to encourage truth telling by all involved parties. It is accepted that there are occasions, under the usual circumstances, where the environment of a courtroom is subsided to a certain extent following an application for a witness to give evidence over a live-link. That is, however, the exception rather than the norm and the witness will still be seen on a screen in the courtroom and will normally be able to see the Judge and advocate asking the questions in full attire; not all of the theatrics are lost.

The above paragraph only speaks for witnesses that are able to give evidence unsupported. It does not speak for witnesses that require an intermediary, translator or physical special measures, such as screens. With any use of technology there is often a ‘lag’ between one person and the other. Something can be said in one location and not successfully received by another user in a different location for some seconds after the event. An intermediary is unlikely to be able to give as effective assistance to a witness as if in person. It may take a few extra moments to pick up on cues that the witness is struggling to understand, distressed or needs a break. The same can be said for a translator. Although it is not unimaginable to see how translation could work, particularly if the person receiving the translation can mute the other speakers and only hear the translator. However, it is unlikely that the translation will be as contemporaneous as if in person and one would think it hard for the person receiving the translation to pick up on facial movements and nuances through the translation. In respect of the screens, often employed to help a witness give their best evidence by preventing the witness and defendant having sight of each other, it is not clear how this would work. It may be that the camera of the defendant is turned off whilst the witness gives evidence. It remains unclear who controls that camera, particularly if a defendant is not in custody when attending the trial. It places an enormous amount of trust on the defendant to ensure their camera remains off whilst the witness gives evidence, which may prevent their ability to communicate effectively with their advocate during the evidence.

In fact, this applies to all aspects of the trial. A remote hearing does not accommodate for the effective communication between trial advocate and client. It appears heavily reliant on another communication device, such as a telephone. How will it work if the defendant’s only communication device is their mobile telephone, which they are using to participate in the trial, and their advocate wants to speak to them or vice versa? The defendant would not be able to accommodate participating in the trial and communicate with their advocate at the same time on one device. In any event, it appears, on the face of it, wholly unjust and wrong for a defendant to attend their trial over a mobile telephone. It would require, at the very least, for their participation to be over a laptop; but how does that work if the defendant does not own their own laptop? That is not clear.

The above applies only to defendants not in custody. Whilst it may appear theoretically easier for a defendant in custody to be provided access to a prison or court issued laptop and telephone, the prisons are not currently allowing inmates to access laptops for conference purposes. For any effective remote hearing to take place this mentality would need to change, and the inevitable security concerns overcome; which is much easier said than done. Since the lockdown measures have been put in place multiple-user conference applications, such as Skype for Business, Microsoft Teams and Zoom have been increasingly relied on to facilitate remote hearings. The latter platform has been under particular criticism in recent weeks with newspapers reporting of incidents, known as “Zoom-bombing”, where ‘hackers infiltrate video meetings, often shouting racial slurs or threats.’[8] Obviously any risk of this happening would need to be removed before an effective hearing could be conducted. HMCTS announced on 24 April 2020 that the Cloud Video Platform (CVP) will start to be used in some civil and family hearings.[9] Very little is known about the CVP and it remains to be seen how, and if, it will work, and whether a similar platform will be used in crime.

The effectiveness of any support for witnesses when giving evidence remotely depends heavily on the quality of the connection of the link, which is something that cannot be guaranteed each time. For the Court to proceed on this basis is a risk and that is not a premise that should be entertained when doing all it can to ensure the defendant has a fair trial.

What is not accounted for is the support a witness, particularly a vulnerable witness or victim, requires before and after giving evidence. Under normal circumstances the witness will be able to confide in the helpful staff at witness support immediately before and after giving evidence. Sometimes, when giving their evidence, they will have the assistance of a friendly face either sitting with them or, at least, visible to them within the courtroom. In a remote hearing the same support is not available. As soon as the witness has finished giving evidence and is asked to leave the remote hearing, for example, the witness will turn off the laptop and be left with their own thoughts or members of their household, who they may not want to talk to about matters they were asked to discuss during the hearing, and who will almost certainly be inadequately qualified to give proper appropriate advice. When considering the important balance in ensuring there is a fair trial, it needs to be fair for everyone, including those giving evidence. There is no fairness in leaving a witness, who has just had to deal with difficult matters, on their own. The stress and impact of giving evidence, particularly with child witnesses or victims of sexual offending, should not be underestimated.

One classification of vulnerable witness is a child which has huge amounts of commentary available and could provide the basis for a completely separate article. That will not be discussed here. Suffice to say, for the present purpose, that the showing of ABE interviews, and other exhibits, rely on a strong and secure link which cannot be guaranteed. That is without considering whether it is appropriate for a child’s evidence to be presented and displayed over a laptop/computer in someone’s home. Of course, when the evidence is played in Court there are safeguards in place to ensure that those who are watching and receiving the evidence are the intended recipient or, at least, it is safe for that person to view to evidence. The same safeguards are not available for remote hearings and to ask a child to give evidence remotely is, on the face of it, inappropriate.

On the topic of receiving evidence, this is a matter that greatly impacts on the jury and its impact will be discussed below. However, at this point a practical consideration should be given for how a witness would be provided with the relevant exhibit to consult during their evidence. This task is slightly easier to facilitate for the use of documents. Copies can be made and sent in the post or electronically to those that need it. Although this does not mean that a witness should receive a copy of their statement in the post; despite a witness being able to view their statement before a hearing, they are not given a copy unless and until the Judge gives permission when the witness is giving evidence. There is no answer to how a copy would be made available to the witness in the event it was referred to during their evidence. It may be that a copy could be sent, electronically, to the witness only at that time. The same cannot be said for physical exhibits, of which there is often just one. A critical point in the evidence of a witness is their comment in relation to the exhibit(s). It may be that they are adducing the exhibit into evidence, or referred to something in particular and asked to comment on it or, further still, are cross examined on an inconsistent account regarding the exhibit. It is hard to imagine how that task can be effectively conducted remotely.

In any event, before any question can be asked about an exhibit, it would need to be securely delivered to the location of the witness for them to refer to it. Often evidence remains with the police and, therefore, that measure imposes an onerous responsibility on the police to ensure they securely deliver the exhibit, which results in police time being used to act as delivery drivers or risk the exhibit going missing in the post. One can only imagine what the ICO would say about that.

JURY

From a juror’s point of view, each member would not have any familiarity with the exhibit that is being adduced and discussed in the witness’ evidence. Again, I ask rhetorically, how each member of the jury would be given the opportunity to physically examine the exhibit that may form a vital piece of evidence in the case? The same question can be asked of CCTV and other pieces of evidence which cannot be copied and sent securely. How can the jury view the documents together during their deliberations? At this stage there does not appear to be an answer and that makes a remote jury trial unworkable.

The jury plays a vital role in furthering the administration of justice. The decision as to whether a fellow member of the community has committed the offence as charged rests with them. How the jury receive the evidence throughout the hearing needs consideration. Where an exhibit is unfamiliar to them, their only exposure and understanding of it comes from the witness adducing the exhibit and their comment on it, or with the assistance of an expert.  Can we be sure that the picture the jury are seeing displayed on their screen, which is often a postage stamp of the full display, is accurate and reliable enough for them to decide the guilt of the defendant? Many of us would have participated in video calls with others and have experienced the frustrating moment when the signal weakens, and your face turns into merged pixels or freezes. What safeguards are in place to ensure that when a witness is referring to an exhibit, the exhibit is clearly displayed on the screen of all jurors and parties? What happens if the witness is giving evidence and freezes? Or if the account they are trying to provide is lost through transmission on various occasions; are the jurors expected to piece together the account they thought the witness was giving? A verdict based on that would not be safe and would certainly be the subject of an appeal. There is no safeguard available to ensure the picture and sound of video calls are always clear. The only way to ensure that evidence is effectively and clearly produced on each occasion is physically in a courtroom. Remote hearings are no substitute to that.

Similar to the communication between the defendant and their advocate during proceedings, one procedure that would need addressing is the communication between the jury and court clerk or Judge where there is a question or they need to explain how the link has frozen for the fifth time, or they were unable to see an exhibit clearly. It is not clear how this would work. It would not be right for the juror to merely shout out that something was the matter. It may be that the juror simply raises their hand to get the attention of the clerk or Judge. How the juror then asks a question without the advocates, defendant and witness hearing is not clear nor easy to work out. Again, there probably is not an answer for that which further supports the point that the remote hearing is not ready to accommodate a jury trial.

For a remote jury hearing to be conducted it would require a significant amount of trust to be placed in each juror to ensure they are somewhere private and focused where they will not be disturbed, something accepted by JUSTICE in conducting their experiment. To add to that, the jurors would need to be further trusted not to record or take pictures of the proceedings. Without sounding skeptical of the jury’s ability to meet their legal duties and responsibilities, safeguards would need to be in place to ensure that the confidentiality and formality of proceedings are upheld. Of course, the Judge could give a clear direction at the beginning of the trial, reminding jurors of their duties and how to record proceedings would be a contempt of court. But that is no substitute to being in Court and having its environment imposed on the juror. The realism of the occasion is more likely to be lost.

One thing that should be mentioned, as a side note, is the distraction that 12 postage stamp faces staring at you when questioning a witness may have on the advocate, and on the jury when their sole focus should be on the witness. Can a juror be expected to ignore the prejudice caused when it notices the inescapable frown or head shake from their fellow juror at an answer given by the defendant? Each person’s reaction to the evidence will become more prominent on screen. Obviously trained advocates should be able to deal with many different faces looking at them when conducting a trial. However, it is very unlikely that an advocate would be used to having at least 16 faces (jurors, defendant, counsel, clerk and Judge) staring directly at them on screen when questioning a witness. There is certainly an argument to say that that is inappropriate and clearly off-putting.

Considering for a moment the procedure once the evidence is complete, it then falls on the jury to enter into detailed and sensitive discussions about the evidence and whether the defendant is guilty or not. A number of questions are raised here, not least how each member of the jury would have access to all the evidence, including in particular CCTV, ABE interviews and physical exhibits, as and when they please, at any one time. Further questions exist around whether the sacred confidentiality of the jury room can be maintained whilst discussions are happening remotely. There is always the risk that when communications are taking place remotely, an outside party can intercept the link and observe the proceedings; we have already seen above how that has happened in recent weeks. With advancements to technology, however, that risk is often managed, or at least reduced, but nonetheless remains and would otherwise not exist had the jury conducted their duties in the courtroom under the usual circumstances. If there is any leak or interference with the jury deliberation, that is a certain appeal point and would merely add strain to the system it is trying to assist.

Looking at the technology specifically; what we have available to us is often advanced and developments and updates are constantly being made. It is not, however, tailored to the CJS which is what it would need to be to work effectively. It would need years of practice and developments to ensure all creases are ironed out and the Court were not taking a risk in allowing a remote hearing to proceed.

CONCLUSION

Unprecedented times, such as these, bring about unprecedented measures. Some of which have proven to be effective, not just in the criminal courts but in civil and family courts too. COVID-19 has added a significant amount of cases to the already huge backlog which is a consequence no person involved in the CJS would have asked for. It has added to the delay between the start and disposal of a case which has increased each year since 2012. Whilst social-distancing measures are in place it means the backlog and delay is not being addressed. However, there is a balance that must be struck between expeditious justice and effective justice, which includes protecting the health, safety and well-being of those involved and the wider public and ensuring that trials are effectively heard. Remote jury trials, at this time, are too premature a move without sufficient safeguards in place to ensure the hearing is given the same formality, privacy, courtesy and effectiveness it would have in the courtroom. Whilst a remote jury trial may address the backlog in the criminal courts it will undoubtedly find itself adding to the backlog of cases set for determination in the Court of Appeal. The show must go on, but only where the substitute is as good as the original; the remote jury trial is not there yet and will not be for some time.

Samuel Castlehouse

KBG Chambers

27 April 2020

 

[1] World Health Organization, ‘Coronavirus disease (COVID-19) advice for the public: Myth busters’ – 21 April 2020 https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/myth-busters 

[2] ‘Comparison of weekly death occurrences in England and Wales: up to week ending 10 April 2020’, Office for National Statistics, 21 April 2020 https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/causesofdeath/articles/comparisonofweeklydeathoccurrencesinenglandandwales/uptoweekending10april2020

[3] ‘Deaths involving COVID-19, England and Wales: deaths occurring in March 2020’, Office for National Statistics, 16 April 2020 https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/deathsinvolvingcovid19englandandwales/deathsoccurringinmarch2020

[4] ‘Courts and tribunals tracker list during coronavirus outbreak’ – GOV.UK, 23 April 2020 https://www.gov.uk/guidance/courts-and-tribunals-tracker-list-during-coronavirus-outbreak

[5] Sturge, G., ‘Court statistics for England and Wales’, (16 December 2019, House of Commons Briefing Paper, Number CBP 8372), p.3

[6] Ibid., p.12.

[7] Baksi, C., ‘Fully remote jury test a ‘success for open justice’, The Law Society Gazette, 20 April 2020 https://www.lawgazette.co.uk/news/fully-remote-jury-test-a-success-for-open-justice/5103927.article

[8] Paul, K., ‘’Zoom is malware’: why experts worry about the video conferencing platform’, The Guardian, 2 April 2020,https://www.theguardian.com/technology/2020/apr/02/zoom-technology-security-coronavirus-video-conferencing

[9] HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak, GOV.UK, 24 April 2020, https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak#hmcts-operational-summary-24-april-2020

« Back to news

'The Show Must Go On; Criminal Courts Amidst the COVID-19 Crisis' by Samuel Castlehouse