Covid-19 and the Courts (Constitution Committee Report)

Lord Hope of Craighead Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I was a late arrival to this inquiry by the Constitution Committee. I did not become a member until all the evidence had already been heard and the committee was considering its report. I was able to contribute a little to the discussion, having had some experience of court procedure and some awareness of the problems the pandemic had created for all court users, but the bulk of the work had been done by others. That enables me to say, without the risk of too much self-congratulation, that this is an excellent report. It has been brought to life very well by our chair, the noble Baroness, Lady Taylor of Bolton. It owes much to her skill and leadership, and to the work of the staff of the committee and to the many witnesses who gave evidence.

There is no doubt that the suddenness of the lockdown created severe problems. Much of this was because the justice system already faced significant challenges due to underfunding, as the noble Baroness pointed out. I look back to the cuts we faced in Scotland as long ago as the 1990s, when I was the Lord Justice General. They started with a request, shortly after I entered office, that we should cut our expenditure for that year by 2%. That was an incentive to cut out what was wasteful and we were able to do as we were asked, but it became increasingly difficult to maintain standards as the same request to cut expenditure was made of us year after year. We were being made to do more with less. What was the case for the system in Scotland was also such in England and Wales.

So there is a warning here, which the noble Baroness has issued and I endorse, and that experience needs to be taken very seriously. The fact is that underfunded systems are much less resilient to the kind of shock that was caused by the pandemic. But there is a bright side to this: like all shocks to the system, the pandemic was an impetus for the development and application of new ideas and the acceleration of improvements, some of which were already under way. The aim of this report was to explore what should and could be done as we seek to learn from that experience. The committee looked at the impact of the pandemic across the justice system and it made many recommendations.

The report was published on 30 March last year. The Government’s response, by the then Lord Chancellor, Robert Buckland QC, was issued on 28 May 2021. It was as good a response as we could have hoped for, as it covered the issues that we raised in commendable detail. However, as so often happens with these debates on reports, time has slipped by. Here we are, debating it some nine months after we received the response. This means that some of the information that was given then needs to be updated. I am sure the Minister will want to do that and I very much look forward to what he has to say.

I will concentrate on just a few points—first, managing the backlog. It was inevitable that the business of the courts would be interrupted by the lockdown and especially by the impact of the need for social distancing in the conduct of criminal trials. This impacted the whole handling of business in courts, which are usually attended by many people in close proximity to each other. This meant even more delays in cases coming to trial, even more increases in the time spent on remand, with all that that entails for the detainee, for whom remand is often a miserable existence, and risks to the quality of evidence.

The Government said in their response last May that, given that at that time the courts were still operating within these constraints, their indicators on current levels of timeliness were positive. That was the message we were given then. I conducted a search of the latest edition of Criminal Court Statistics Quarterly, from July to September 2021, which was published in January this year. It shows there was a continuing recovery in some areas, including a timeliness decrease in the magistrates’ courts of 5%.

The position in the Crown Court seems very different. The median age of outstanding cases had increased by 50% on the previous year. Around 23% of cases had been outstanding for a year on more, up from 15% in the third quarter of 2020. The statistics for the last quarter of 2021 are not yet on the website, but it would be helpful if the Minister could bring us up to date. I hope there has been some improvement and that priority has been given to custodial cases to reduce time spent on remand as far as possible.

Secondly, there is the use of remote hearings. A study of the HMCTS website shows that much has been achieved and full advantage has been taken of the available technology. As far as I can see, there is a lot of online guidance now on how to manage the various systems. I also welcome the guidance the Lord Chief Justice recently gave about how to conduct remote attendance by advocates in the Crown Court. This will help to maintain consistency in this area of practice.

But what is being done to help those who do not have access to online guidance—the disadvantaged elderly, the disabled, or those who are less able to understand what is on offer? We noted in our report, at paragraphs 279 to 280, that the then current plans to collect data on the protected characteristics of court users lacked “clear deadlines or targets”. Is that still the case? Are the data, always so crucial to proper planning, being kept up to date?

Then there is the need for more accommodation to reduce the backlog. It is good to see that the number of Nightingale courts is to be expanded by making available 30 more such places spread around the country. Some are being closed, but more are being opened. Can something be said about whether these facilities are enough to cope with the demand and why, as we are being told, they are to be available only until March 2023? Can we be assured that they will be available after that date if the backlog has still not been cleared?

Lastly, there is the question of remote jury trials. The provisions in Part 13 of the Police, Crime, Sentencing and Courts Bill—to enable criminal jury trials to take place if the judiciary thinks it acceptable—are controversial, but the report shows that such trials have been taking place in Scotland. It was impossible to accommodate juries in the accommodation that was available in the courtrooms there because of the need for social distancing. Of course, juries in Scotland are 15, not just 12.

Two possible solutions to the problem were rejected, as I believe they were in England and Wales. The first was to dispense with juries altogether during the period of emergency; the other was to reduce their size. It was decided that the jury should sit in a remote location, usually a cinema, while all the other participants, suitably spaced, were in the courtroom. It was decided that the judge should be there in the courtroom and not with the jury. Some people, particularly in this jurisdiction, have objected to this on the ground that the judge and jury should never be separated, but even a judge cannot be in two places at once. The most important thing is for the judge to be in the courtroom, where the witnesses are and where the trial is being conducted by the advocates.

I have been assured by the Lord Justice Clerk, Lady Dorrian, that the Scottish system has been working well, to the satisfaction of all participants. There is no question of the remote trials that the Bill is providing being used other than in exceptional circumstances, but the experience in Scotland is of some assistance. Are the Government continuing to pilot remote trials, as the report recommended in paragraph 220? If so, what conclusions are being drawn? In particular, is attention being paid to the issue that caused some concern of where the judge should sit under the new system, if there is a need to preserve social distancing? As I said, it seemed to work well in Scotland, with the jury sitting remotely from the judge and the judge being in the place where he or she most needed to be.

I am sure the Minister will agree that bringing the courts system under scrutiny, as the committee sought to do in this inquiry, has been beneficial. Of course, there remains the question of whether the system will be given the resources it needs to achieve the level of performance we would all like to see and to give it the resilience that it requires, but that, I suspect, is a matter for another day.