At 8am on Monday, just as thousands of English and Welsh citizens set off for their local crown court to serve on a jury, the lord chief justice announced that no new jury trials would take place.
This move, fiercely resisted to date by the justice secretary and lord chancellor, Robert Buckland, is long overdue. While Scotland and Northern Ireland had already suspended jury trials, in England and Wales Buckland and the lord chief justice had previously decreed that jury trials lasting up to three days – estimated to be 75% of trials –must take place.
By compelling jurors, under threat of imprisonment, to attend our courts for jury service for the past two weeks, the Ministry of Justice and senior judiciary have consistently defied the government’s own public health advice.
Upon arrival at court, jurors queue with dozens of other strangers to be herded into a packed jury waiting room. Once selected for a jury panel, they pile into a windowless courtroom and sit next to each other for five hours a day. At lunch they mingle with the hundred or so other jurors in the building. At the conclusion of the trial, they shuffle into a tiny, unventilated retiring room, where they make a decision that could ultimately determine whether somebody spends time in prison.
They do so in filthy court conditions in which the lack of hot water, soap and paper towels is widespread; where broken hand dryers, leaking toilets, burst pipes and crumbling roofs and walls are par for the course. These are conditions that, in the good times, we in the courts simply accept as a permanent feature of a chronically underfunded justice system – but which in the current climate present a patently alarming proposition.
Criminal courts are a petri dish. Scores of defendants are piled into waiting areas. Most travel by public transport; some travel in “sweatbox” security vans from our infested, overcrowded, virus-ridden prisons. Defendants and their families mix with their barristers, who mix with court staff, who mix with witnesses, judges and jurors, who mix with other witnesses, judges and jurors. Courtrooms vary in size and style – in some of our more antique Victorian courts, jurors are squeezed on to hard wooden benches without an inch between them, let alone the two metres recommended by the government to ensure social distancing during the coronavirus crisis. In the fairly typical court I was in last week, the defendants, barristers, clerk, usher, witness box and jury box were all within two metres of each other.
It is telling that in his announcement yesterday, despite the chipper assurances by Her Majesty’s Courts & Tribunal Service that it was “putting extra effort into court [and] tribunal cleaning”, the lord chief justice specifically cited the need for “basic hygiene arrangements” in the courts.
By insisting that the shortest trials go ahead, the government has ensured the highest possible turnover of strangers coming into contact with each other. Over the past few days I have been flooded with messages from terrified jurors, witnesses and court staff aghast that, at a time when the government is frantically urging social distancing because “infections spread easily in closed spaces where people gather together”, they are being required by law to expose themselves to such conditions. In a closing speech last week, one of my colleagues thanked the jury for their dedication. One of the jurors burst into tears.
This situation has been appallingly unfair to all concerned. How on earth can jurors be expected to concentrate on their task? How can any defendant or victim of crime have faith that the 12 people trying their case are paying full attention to the nuances of the evidence, when the jury are burdened with the knowledge that, as a direct result of their service, they, or someone they love, could die?
And anyway, contrary to MoJ dictums, the courts have not been “operating normally”. Judges are self-isolating; defendants, jurors and witnesses are staying at home as they break out with symptoms; and trials are collapsing all over the country. The Witness Service, the organisation responsible for looking after witnesses at court, has withdrawn its volunteers. Many crown court judges have made no secret of their disdain for what the MoJ would wish to term a “strategy”, but which more closely resembles a tribute act to Monty Python’s Black Knight, chirpily dismissing each collapsed trial as a mere flesh wound.
The government line seems to have been that “justice is not optional”. A sweet homily, betrayed only by the evidence of the past decade, in which victims, defendants and witnesses have found their cases mishandled or delayed for years due to enormous cuts to the budgets of the police, Crown Prosecution Service, courts and legal aid. Justice has been optional whenever financially or politically convenient.
One real reason for the intransigence appears to be Buckland’s fear of becoming known as “the lord chancellor who closed the courts”, a disfiguring blemish on the CV in this tough-on-crime government. But there is also a secondary, practical concern: because of government cuts, including cutting the number of sitting days, we have a backlog of more than 30,000 crown court trials and are currently trying cases for offences said to have occurred two or more years ago. The government knows that a standard two-year delay could quickly become three.
What this crisis therefore presents, should the government choose to accept it, is an opportunity. The lord chief justice’s hint at a swift resumption of trials “where specific safety arrangements have been put in place” is beyond optimistic. All jury trials listed in the next 12 weeks should be immediately pulled from the court list. Shorter, urgent hearings can take place by video-link where possible.
The courts can be deep-cleaned from top to bottom, and their facilities and working practices fully reviewed so that they meet 21st-century standards of hygiene, health and safety. In the autumn, when it may be safer to resume, we can do so with the adjourned cases, only with the financial firehose turned on. Instead of running at half-capacity, every crown court should run at maximum.The Treasury’s largesse must be extended to the justice system so that we don’t endure the farce of perfectly usable courtrooms sitting locked and empty due to “lack of sitting days” while judges get paid to stay at home. The backlog, both Covid-caused and historical, can be blasted away.
The end result – clean and safe court buildings, trying cases promptly and without agonising delays – could be one positive to emerge from these troubling times.
• The writer is a junior barrister who writes anonymously about the English and Welsh legal system, and is the author of The Secret Barrister: Stories of the Law and How It’s Broken