The COVID-19 pandemic, and responses to it, have had an unprecedented impact on criminal justice infrastructure and processes in the UK, and they have put criminal courts under serious pressure. For several months following the first lockdown in March 2020, many courts closed fully, others partially, dealing with only urgent cases, resulting in a backlog of more than 500,000 cases before magistrates and crown courts.
The issue of court capacity is not a new challenge created by COVID-19. Crown courts already had a backlog of 39,000 cases before the lockdown, caused by existing challenges faced by the criminal justice system.
Digitalisation affects defendants rights
The UK government has recognised the urgent need to tackle the problem, and it has set out a range of measures to help criminal courts return to normal business. A key aspect of the government s proposed solutions is a focus on ‘digitalisation’, including increasing the use of telephone and live-links in court hearings.
However, these measures do not sufficiently take into consideration the rights of defendants, and they are inadequate given the scale and nature of the challenge. There is evidence that these measures have a negative impact on the right to a fair trial, that they are disproportionately affecting vulnerable defendants, and that they may result in defendants disproportionately being given custodial sentences.
Excessive pre-trial detention in the UK
The government s plans fail to address the risk that the lack of court capacity and the related delays result in legally innocent people being held in detention for extensive periods, awaiting their trial. Defendants are facing prolonged, and in some cases, indefinite pre-trial detention, because delays in criminal proceedings are causing repeated extensions of custody time limits. This is not a challenge that should be disguised by extending legal custody time limits – specific measures are needed to tackle the overuse of pre-trial detention.
In order to address the issue of court capacity, proper funding of the infrastructure of the justice system, including legal aid, is desperately needed. However, the current size of the case backlog requires more structural solutions: reducing the number of people in the criminal justice system, and therefore the pressure on the courts, overall.
This submission includes the results of a survey Fair Trials conducted of individuals at the frontline of the criminal justice system, over a period of two weeks in May 2020. The people we spoke to included defence solicitors, barristers, accredited legal representatives, judges, magistrates, police officers, Crown Prosecution Service (CPS) staff, and appropriate adults. They were asked to share their opinion of how COVID-19 had impacted fair trial rights in England & Wales since the lockdown began. The results of the survey paint a deeply worrying picture of the criminal justice system in England & Wales under lockdown. This submission also includes responses to Freedom of Information requests to the Ministry of Justice and Crown Prosecution Service. Fair Trials COVID-19 Justice Project has also actively monitored and tracked the way justice systems have addressed court capacity issues globally, and we bring this comparative perspective and expertise to this submission.
