Access to Justice under Coronavirus Lockdown: Update on Emergency Measures

Access to Justice under Coronavirus Lockdown: Update on Emergency Measures

This information is correct as of 5pm 24th March 2020.

Emergency measures in relation to the UK Justice System are developing every day in response to the COVID-19 pandemic. New trials are currently paused so that safety measures can be put in place in courts, but the Government has made it clear that, where possible, proceedings should take place using live audio link and live video link (together ‘live link’). Accordingly, the Coronavirus Bill (‘the Bill’) which is currently progressing through the House of Lords aims to widen the scope for delivering ‘digital justice’.

Schedule 23 of the Bill expands powers under the Criminal Justice Act 2003 by adding to the list of ‘eligible criminal proceedings’ which may be conducted via live link; this now includes any trial in the crown court and any proceedings which are ‘preliminary or incidental’ to a criminal appeal in the crown court. The courts will also have more flexibility regarding which participant(s) and which aspect(s) of the proceedings are subject to their directions.

Schedule 24 of the Bill provides for preliminary hearings and sentencing hearings (amongst others) to be conducted via live link. As expected, safeguards are included which will limit the scope of these ‘digital hearings’. There are restrictions on individuals giving evidence via audio link, as well as limits on the use of live link at disputed bail hearings and hearings concerned with contempt of court, fitness to plead and acceptance of a guilty plea.

Crucially, the court must be satisfied that a direction to use live link is in the interests of justice. Parties will be given the opportunity to make representations about how the proceedings are to be conducted, and the court will be required to consider all elements of the case, including the views of the person concerned. Despite these safeguards, apprehensions have already been voiced regarding access to a fair trial.

Jury trials are still likely to experience serious disruption as, under the current Bill, members of a jury may not participate in court proceedings via live link. The Criminal Procedure Rules Committee has proposed amendments to the Criminal Procedure Rules regarding jury selection in an emergency (part 25). Under their current proposal, the minimum number of jurors required to be selected would reduce to 10, and up to 14 could be sworn in any trial (presumably to allow for drop-outs due to illness or self-isolation). Despite this, it is yet unknown exactly what measures will be brought in to protect the health of a jury against the backdrop of social distancing; inevitably, those awaiting trial by jury will face delay.

Public participation is also considered in the Bill. Under Schedule 25, the court may direct that proceedings which are to be conducted wholly via live link are broadcast to enable the public to hear and / or see the proceedings. This does not, however, provide for proceedings only partially conducted via live link, many of which will presumably still be of interest to members of the public.

These measures, along with government guidance, are progressing quickly. It will be interesting to see the implications of a more digital justice system on public participation and, potentially paradoxically, access to justice.

Ellen Peart is a partner specialising in serious and general criminal matters; her practice now focuses on representing individuals who face allegations in respect of sexual offences, assault, homicide, dishonesty, harassment, firearms and computer misuse. She often represents high-profile individuals and is sensitive and experienced in dealing with reputation management issues.

Bethan Cowlam is a trainee solicitor, currently specialising in serious and general crime. Her prior experience includes regulatory investigations and financial crime.