Weekly Notes: legal news from ICLR, 29 June 2020

Courts

The jury’s out… or is it?

There has been a debate about the (temporary) future of criminal justice in view of the urgent need to tackle more of the massive backlog of over 40,000 Crown Court trials, which the coronavirus lockdown has exacerbated. The backlog was, however, already massive before the lockdown commenced (more than 39,000 cases). The main causes are said to be the lack of court and judge time (or “sitting days”) allocated over the last year. There was a modest increase last year but it was insufficient to make any significant difference to the backlog. The lack of sitting days was regularly highlighted by the Idle Courts account @CourtsIdle on Twitter.

Whatever the causes of the backlog, the restrictions on court activity necessitated by the pandemic mean that, as thing stand, fewer trials can take place and those that do will take longer. Various proposals to increase the flow of Crown Court trials have therefore been made, including

  • Reducing the number of jurors from 12 to 9 or even 7
  • Replacing the jury with two lay justices (magistrates) for lesser offences (triable either way)
  • Dispensing with the jury altogether
  • Conducting trials remotely (with or without a jury)

The first two seem to be the ones being considered seriously by the government. Any reduction to fewer than 9 jurors would require legislation (ee this thread by Crimeline Law). Last week it was reported that Legislation to abolish some jury trials could be passed within weeks (Law Society Gazette) but it seems parliamentary time may be too limited now. The Lord Chancellor Robert Buckland QC recently told the justice select committee that

“200 extra sites were required to deal with the rising number of cases waiting to be heard, with 10 alternative venues signed off this week. Buckland described trials with just a judge and two magistrates as a ‘last resort’ but said this option would provide an extra 40% capacity. His preferred option, which is to reduce the number of jurors to seven, would increase capacity by only 5–10%. Buckland suggested that a one judge-two magistrates option would apply only to cases where the maximum sentence is two years’ imprisonment.

He confirmed that the government wants to implement one of the two options by September, which would require primary legislation to be brought forward before parliament goes into recess on 21 July.”

The idea of dispensing with the jury altogether, when discussed in May this year, was supported by a number of retired senior judges including Sir Richard Henriques (whose book, From Crime to Crime: Harold Shipman to Operation Midland — 17 cases that shocked the world, was published on 4 June), Lord Brown of Eaton-under-Heywood (whose book, Playing Off The Roof, came out in February), Lord Mackay of Clashfern and, more recently, His Honour Michael Heath.

Henriques put the case for temporary abolition thus (in The Times):

“There is nothing to fear from judge-alone trials. Judges recognise a bad officer when they see one, can assess credibility, reject unreliable identification evidence, avoid bias and accurately apply the burden and standard of proof. They are obliged to give very full reasons for any verdict, including any basis for accepting or rejecting any evidence. This is not an attempt to undermine trial by jury but a short-term measure to counter a situation which threatens to permanently erode confidence in our criminal justice system.”

Heath, in his letter to the Times, pointed out that

“One benefit of trial by judge alone is the likelihood of timely guilty pleas by those who would otherwise seek to run spurious defences in the hope of pulling the wool over the eyes of a jury. They would realise that defences without merit would not succeed before a judge sitting alone.”

These proposals are strongly opposed by practitioners. Typical of the response was the statement from chambers at 25 Bedford Row, declaring its

“fundamental opposition to the possible suspension of trial by jury for either way offences. Whether to be substituted with trial by judge alone, or trial by judge and two magistrates, we voice our objection in the strongest of terms. These plans are about depriving us — not just the guilty, but all of us — of the fundamental right to trial by jury. A right which can be traced back in history more than 800 years, as the “lamp that shows that freedom lives”. That lamp must continue to shine as strongly as ever and we must fight relentlessly to ensure that it does.”

They also point out that the backlog is not the fault of the lockdown but was caused by earlier mismanagement and underfunding of the justice system, a point echoed by Amanda Pinto QC, chair of the Bar Council, in a statement:

“This latest increase in the backlog of cases in our Crown and Magistrates’ courts is shameful, but not surprising, bearing in mind the lack of investment in the justice system over many years”

and that

“ the pandemic has merely given our once-revered justice system an extra push along the dangerous slope it was already heading down, after years of neglect”.

The jury-curtailment plans were also opposed by Buckland’s ministerial shadow, David Lammy, and by the Law Society, whose president, Simon Davis, said

“Jury trial is the bedrock of our criminal justice system. We should not be thinking about scrapping jury trials, even if only for some cases and on a temporary basis.”

A ballot conducted by the Criminal Bar Association with record turnout voted 93% against erosion of jury trials in the crown court, and 95% in favour of the use of extra buildings outside the court estate to increase trial capacity (so-called “Blackstone courts”).

Further reading:

Cloud video courts

Remote hearings are less likely to be adopted as a solution at Crown Court level, despite the interesting research derived from mock trials conducted by JUSTICE, which we reported on last week. But at magistrates’ court level, remote hearings are the norm for certain kinds of offence (the single justice procedure, dealing with guilty pleas for things like fare dodging) and are now being used more for remand hearings (which must be held within 24 hours of anyone being charged with a crime and denied police bail).

In How video hearings broke justice and stripped people of their rights (Wired), court reporter Josh Mellor reports on how such a person usually “appears” before a court from a police station using a system called Cloud Video Platform (CVP). He notes that by the end of April 90 per cent of magistrates hearings were using remote technology to some extent, but the systems are technologically far from perfect and make it far harder for the defendant or bail applicant to get a fair hearing.

The risk of prejudice to defendants or prisoners appearing remotely has also been covered by Penelope Gibbs of Transform Justice: see Does virtual justice increase discrimination?

For more on this subject, see:

  • Equality and Human Rights Commission, Criminal justice system failing disabled people, which suggests that the “criminal justice system is failing and leaving disabled citizens ‘bewildered’.”
  • Fair Trials, Justice under lockdown, which suggests that “Remote hearings are having an adverse effect on defendants’ right to access effective legal assistance, to participate effectively at their own hearings, and to review and challenge information and evidence being presented”.

Sitting well in civil

The picture seems rosier, or more optimistic, in the civil courts, especially at the higher end doing commercial cases. At a recent meeting of the Commercial Court Users Group conducted via Microsoft Teams, Mrs Justice Cockerill said that “judges, court staff and users were actively thinking about whether to keep remote (or even hybrid) hearings as a default position or at least an often used option for some types of hearings post Covid”. (See Minutes.)

Earlier in the meeting, Teare J had “emphasised how smooth the transition from physical to remote hearings had been with almost all the Court’s work being conducted notwithstanding the Covid 19 pandemic”. As a result, “there is almost no backlog of work”.

This is great news for commercial practitioners, but perhaps it also demonstrates that such litigation is usually far better resourced and managed, not least by the law firms involved, as well having less challenging court room circumstances. There is no need to accommodate a jury, or rely on a videolink to a distant prison or police station. It’s not hard to see why the criminal justice system is suffering under Covid19 in ways the civil justice system never would be.

That said, remote justice remains unfamiliar to many and can still be an alien experience to the casual viewer, in the virtual public gallery, as Isobel Williams recalls in a recent post on her blog: Judging by Appearances. One of the cases she was watching was a judicial review challenge to the police use of automated facial recognition (AFR) technology, which seems ironic in the age of face masks and social distancing. “One argument is that AFR can produce false positives/negatives, like Covid-19 tests.”

Family law

Domestic abuse cases

The final report of the expert panel on Assessing Risk of Harm to Children and Parents in Private Law Children Cases was published last week. It provides

“an understanding of how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences, in cases involving disputes between parents about the arrangements for their children, known as ‘private law children proceedings’.”

The reports deals with the problems around cross-examination of complainants by alleged abusers and the perception of a “pro-contact culture” in the courts, and a lack of coordinated approach between different agencies and organisations and across different parts of the system.

There is an accompanying literature review, Domestic abuse and private law children cases.

The report was welcomed by justice minister Alex Chalk MP in a foreword to the Implementation Plan. He said:

“The Domestic Abuse Bill, which is currently passing through the Commons, will enable us to make some of the immediate changes called for in the Panel’s report, alongside other measures which will help to ensure that victims have the confidence to come forward and report their experience, safe in the knowledge that the justice system and other agencies will do everything they can both to protect and support them and their children and pursue their abuser.”

The government has announced that it will be investing more widely in support for victims of domestic abuse and has already committed extra funding to some organisations. (See for example its announcement of £22 million emergency coronavirus funding for more than 540 sexual violence and domestic abuse charities.) A more detailed delivery plan will be published later in the year.

See also: Spotlight domestic abuse review — big changes ahead for Family Court (from the Transparency Project, one of the many respondents to the panel’s consultation).

Divorce law reform

The Divorce, Dissolution and Separation Act 2020 received Royal Assent on 25 June, after years of campaigning and several previous attempts to reform the law. It amends section 1 of the Matrimonial Causes Act 1973 to remove the requirement, when seeking a divorce, to establish facts demonstrating the irretrievable breakdown of the marriage. It is now sufficient for the parties to give a statement saying that is the case. Amendments to similar effect are made in respect of judicial separation, and to dissolution and separation under the Civil Partnership Act 2004.

Legal Blogging Pilot extended

The Transparency Project, which might be said to have given the idea wings, reports how the Legal Blogging Pilot under Family Procedure Rules Practice Direcion 36J has been extended until the end of December 2020: Legal Blogging Pilot Flies On...

The pilot has been running since 2018 and allows legally qualified legal bloggers to attend private family hearings to aid transparency.

For more information, see their Legal Bloggers page.

By way of an example, see a recent post from Alice Twaite, Legal blogging a remote family court hearing on the HMCTS platform of choice (CVP): Something of a collaboration in the end

Recent commentary

Coronavirus regulations

In Travel between England and Wales (UK Human Rights Blog) Henry Tufnell of 1 Crown Office Row attempts to clear up some of the recent confusion over the position in relation to cross-border travel between England and Wales.

Equality

As Pride goes virtual this year, Each Other reports on What The Pandemic Will Mean For Pride 2020

Immigration

New book: Welcome to Britain: Fixing Our Broken Immigration System, by Colin Yeo. A blog post on Free Movement (the immigration law platform founded and run by Yeo) explains what is in the book, signed copies of which can be ordered via the site.

Legal Information

A new Timeline of the history of the British and Irish Legal Information Institute (BAILII) has been created to mark the platform’s 20th anniversary this year. We’ll be publishing more about this anniversary and what BAILII has achieved in due course.

Media law

Attorney general warning over Reading attack coverage as national press ‘pushes barriers’ on Contempt of Court (Press Gazette)

The Attorney General’s office is monitoring media coverage of Saturday’s suspected terror attack in Reading over contempt of court concerns. (It is a contempt to publish any information that could create a substantial risk that the course of justice in proceedings could be seriously impeded or prejudiced.)

See: Media Advisory Notice — Suspected terrorist attack, Reading

Windrush scandal

Free Movement reports that Home Secretary to accept Windrush Lessons Learned recommendations “in full”.

See also Windrush Compensation Scheme Oral Statement and Over £1 million offered in compensation to the Windrush generation

Further listening: Systemic Racial Inequality: Windrush and the Bar on Law Pod UK with Martin Forde QC

Dates and Deadlines

In conversation with Joshua Rozenberg QC (hon)

Mishcon Academy: Digital Sessions —Wednesday 08 July 2020, 4–5pm

Mishcon’s Managing Partner James Libson will talk to Joshua about his latest book Enemies of the People? How Judges Shape Society and its central premise that the judiciary are not enemies of the people, addressing the commentators who argue that judges have overreached themselves. This will be discussed in the context of both Miller cases which James led.

Zoom event. Questions may be submitted in advance to events@mishcon.com or ask them during the event. Registration details.

We reviewed the book on the ICLR Blog here.

Work for APPEAL

Closing date 5pm, 22 July 2020

APPEAL say they are looking for “an exceptional qualified solicitor or barrister with experience of criminal law to join the team. If you want to have a direct impact on overturning miscarriages of justice and fixing our broken criminal justice”. They are also (separately) looking for “an exceptional and highly motivated communications and policy professional”.

For more details, see their Careers page.

And finally…

Tweet of the Week

In which Dominic Regan finds something amusing in Viz:

That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived. And stay safe!

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

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