How the legal system and courts carried out duty amid distancing and coronavirus measures.
Britain’s legal system is, without doubt, one of the most majestic beasts to have ever roamed the earth. Fleets of erudite lawyers have, over the centuries, built for us this beautiful bastion of justice to guarantee the safety and security of British society. Our courts, like the celebrated Old Bailey, stand as battlefields for our enrobed barristers to spar, with judge and jury presiding.
And yet, over the past decade, the Ministry of Justice has been one of the departments worst hit by Tory austerity policy; it now operates on a budget around 25% lower than it did in 2010. The Crown Prosecution Service, which has ensured streamlined, productive courts since the ‘80s, is now on its knees. In an FDA survey, which is a union for civil servants and public officials, 96% of prosecutors feared that the department does not have enough lawyers to deal with the number of cases.
Although this seems bleak, the Prime Minister’s commitment to increased public spending could have potentially resolved these issues. The MoJ has often struggled with funding because it is not generally considered a make-or-break point in elections.
However, the global pandemic has truly put a spanner in the works for the British legal system. First, it now becomes much harder for the government to justify increased spending of any kind until our economy can return to normalcy. This only delays the resurrection of our legal institutions.
Second, and more importantly, COVID-19 has affected the significant backlog in our courts. As a result of austerity, there existed a backlog even before the pandemic: 395,600 in the magistrates’ courts and 37,400 in the crown courts.
I feel at this point I should very briefly clarify the difference between our courts, as many people, quite understandably, are unaware of the distinction. A magistrates’ court is a lower court that holds trials for summary offences and preliminary hearings for more serious ones. In a magistrates’ court, affairs are presided over either by a panel of three magistrates or a district judge (DJ), who provide both verdict and sentence – there is no jury. A magistrate, or lay judge, is a person of ‘good character, mature personality and sound judgement.’ To become a magistrate, one requires no legal experience, but must instead attend a course of just 21 hours. Most magistrates are older, retired, white men, although there is an age cap of 70. As they are lacking in legal experience, magistrates are given legal advisors to aid them. A DJ, on the other hand, must have a law degree and five years of experience. Magistrates’ courts have limited sentencing powers, although they are more likely to give a guilty verdict. It is possible to appeal a magistrates’ court case to the crown court. Although I recognise the pragmatism of the system, my opinion is that magistrates are unqualified to both preside over cases and give verdicts with their limited training; this would be one of the first issues I would address if I were to give the MoJ increased funding.
The crown courts are what you’ll find in a courtroom drama; it is here that we find the jury. The Normans introduced juries to Britain when they invaded in 1066, and to have your case heard by one is a crucial right of every citizen. It would be easy to write an entire article on the importance of the jury, but I’ll just summarise. Juries allow our criminal justice system to reflect the values of the modern citizen. We expose the system to the scrutiny of the layman, and the juror gains first-hand experience of the system. A jury is essential in any modern democracy.
However, the coronavirus has only exacerbated the immense backlog of cases. In August, there were 517,782 outstanding cases awaiting the magistrates’ courts and 46,467 for the crown courts, despite the apparent decrease in crime over the lockdown.
This raises the question of how we start to fight back against the backlog. Although many courts have now opened for juries, often, two courtrooms are required so as to ensure that social distancing is not violated.
One response is to digitalise our trials. However, this has been met with a lot of criticism. It becomes much harder to judge the character of a person over the internet, and juries are less focused. I’m also sure you’ll agree that all parties involved look incredibly out of place and, quite frankly, ridiculous.
Another suggestion would be to extend court hours, but many barristers have threatened to quit at this suggestion; they already operate on extraordinary working hours, and it raises issues about childcare and family time.
A more popular decision has been the introduction of Nightingale courts. HMCTS has started using additional public and private venues which have had less use during the quarantine to hold hearings. Though currently effective, as we start to see more easing of social distancing rules, these Nightingale courts will become harder to operate.
This has led many to suggest a change to the jury. Currently, although crown court trials start with twelve jurors, the minimum size of a jury is nine. The Lord Chief Justice, Sir Ian Burnett, has called for a temporary reduction of jury size to seven, and the removal of a right to a jury in either-way trials (where the defendant can choose whether to face a magistrates’ or crown court – this includes cases of theft and bodily harm; more serious charges like murder and rape can only be seen by a crown court).
This is clearly an extremely controversial opinion. Personally, I am instinctively inclined to oppose this dire solution; to remove the right to jury, if only temporarily, sets an incredibly dangerous precedent. I fear the emphasis that the government has put on emergency powers over the last months, and this follows that trend.
Conversely, the backlog of cases isn’t just an inefficiency; there is also a significant human cost. While awaiting trial, except in the case of mental health problems, you will best case be given bail, or worst case be kept in prison on remand. While the latter has obvious ramifications, the former can also be challenging, as bail conditions might include living in a particular place, curfews, and a restriction on with whom you may have contact.
Now, you might suggest that everything I’ve shown here makes clear the benefits of restricting jury trials. I advocate quite the opposite.
Yes – the coronavirus pandemic has made the backlog worse, but the number of outstanding cases was still incredibly high before COVID-19 measures were implemented. Therefore, I worry deeply about the government putting in place such drastic changes to our stumbling legal system under the guise of combatting the virus, while it is its own austerity policies of the past decade that have put us in such a struggling situation.
Both magistrates and their more legally proficient colleagues - the circuit judges - are predominantly white, male, straight and old. Juries are diverse. Juries can and will recognise lies and truths.
The right to a jury has been enshrined in British law since Magna Carta. I cannot believe that limiting this right is the only way to resolve this problem. In fact, I can quite decisively tell you it’s not: only increased funding will restore our legal system to its rightful place as the bulwark of justice.
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