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Commentary: COVID-19 responses undermining fair trial rights in England and Wales

FairTrialsAdmin - June 25, 2020 - COVID-19 Updates, Commentary, Guides, Remote Justice, Access to a lawyer, Access to interpretation services, Court closures, Extended pre-trial detention

A survey conducted by Fair Trials over the period of two weeks in May shows that COVID-19 has thrown the criminal justice system in England & Wales into disarray. Already struggling from cuts and capacity challenges, courts and police stations across the country are failing to uphold basic fair trial rights under the stress of the pandemic.

It was obvious from the beginning of the pandemic that COVID-19 was going to have an unprecedented impact on the criminal justice system. Criminal procedures are simply not designed to accommodate social distancing, and drastic adaptations had to be made to ensure the continued administration of justice, including by expanding the use of video-conferencing in court hearings and police interviews.

However, the results of this survey, which collected responses from 90 criminal lawyers, appropriate adults, and others working in the frontline of the criminal justice system, show that these changes are having an overwhelmingly negative impact on the rights of suspects and defendants. Suspects in police custody are struggling to obtain the legal help they need at a time when they are most vulnerable to human rights abuses. The quality of advice and assistance given by solicitors has also suffered significantly, where they have to resort to video-link or telephone to represent their clients during police interviews. If solicitors, interpreters and other providers of essential support do attend police stations, they do so at considerable risk. Police stations have become dangerous places to be in, with police officers showing blatant disregard for social distancing rules, and with few, if any, using PPE. 

Courts have had no choice but to delay hearings during the lockdown, but with so much uncertainty around the pandemic and a rapidly mounting caseload, many defendants are left waiting over a year for their trials to begin. This is no doubt a source of frustration for victims and defendants alike, but it is also leading to human rights abuses, especially for those remanded in custody. Lawyers have reported that custody time limits have been extended routinely, as trials are delayed for indeterminate periods of time. Legally innocent people are spending longer in jail because of COVID-19.

As the UK emerges from over three months of lockdown, it is fast becoming apparent that there will be no resumption of ‘business-as-usual’ in criminal proceedings any time soon. The transition into normality is proving to be a slow one, as courts slowly reopen at reduced capacity to accommodate physical distancing requirements. But with a backlog of more than 40,000 criminal cases that has further ballooned during the pandemic, it will be a long while before courts are able to bring delays under control. Suggestions that jury trials should be abolished in some cases so that courts can cope show just how desperate this situation is, and they expose the extent to which some are willing to abandon what is considered by many as a fundamental cornerstone of British justice for the sake of efficiency and cost-saving.

It is also worrying that measures introduced as ‘temporary’ solutions to emergencies might become permanent features of our justice system. Recent history teaches us that emergency laws, especially those that severely undermine human rights, tend to stick around for much longer than initially suggested. So it is little surprise that the Home Office has recently announced plans to review the Police and Criminal Evidence Act (‘PACE’) to make measures introduced during the pandemic to enable remote participation by solicitors in police interviews via video-link or telephone into law. It would be a serious mistake for the UK government to push through these changes without first considering the impact of remote legal assistance on the right to a fair trial, especially when criminal defence practitioners have already expressed that this undermines access to effective legal advice. And although these changes are intended to be temporary, for the duration of the COVID-19 pandemic, there is a real risk that without adequate oversight and a strict legal time limit on such provisions, they will become permanent.

There is growing consensus in the UK that drastic action is needed to tackle the crisis that its criminal justice system is in, but desperate efforts to contain this crisis risk overlooking basic defence rights. Unless we properly understand the impact of COVID-19 on defendants, and put fair trial rights at the forefront of any discussions on criminal procedure reform, there will only be further damage to the criminal justice system.

See the full survey here.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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