How will the justice system withstand the coronavirus pandemic?

When courts close more fully, consequences will reach every corner of society

March 18, 2020
Robert Buckland QC (centre) poses for a photo with the Lord Chief Justice, Lord Burnett of Maldon (left) and Master of the Rolls Terence Etherton. Photo:  Kirsty O'Connor/PA Archive/PA Images
Robert Buckland QC (centre) poses for a photo with the Lord Chief Justice, Lord Burnett of Maldon (left) and Master of the Rolls Terence Etherton. Photo: Kirsty O'Connor/PA Archive/PA Images

This week, as pubs, restaurants and theatres closed across the country after the prime minister announced new precautions in an attempt to delay the spread of Covid-19, 114 barristers, dressed in wigs and gowns, were paraded through parliament celebrating their appointment as Queen’s Counsel. The ceremony is the culmination of decades of hard work to reach the pinnacle of the legal profession. A global pandemic was unlikely to get in their way.

On the same evening, the new Justice Minister, Chris Philp MP, tweeted: “To confirm that courts will be operating normally tomorrow. Of course people who need to self-isolate as per the medical advice should do so. But for those not in isolation, Justice will continue and Jurors should attend Court tomorrow as per their Summons.”

It would not have required a lengthy cross-examination from a newly-appointed silk to reveal the absurdity of the government position. And sure enough, the very next day, jury trials of longer than three days in England and Wales were suspended.

For the courts and the administration of justice generally, the outbreak of coronavirus has already had a devastating effect. Even before the change in policy, courts were already vacating hearings. Judges were beginning to self-isolate. The contradiction of the government advice warning against gatherings, but expecting jurors, judges, clerks, counsel, solicitors, clients, security personnel, police, lay clients, and administrative staff to turn up, often in cramped, unsuitable court rooms, was obvious.

Now, at least, the government has recognised that it cannot be “business as usual” for the courts. It will get worse. Across Europe, governments have shut down their court systems altogether. The European Court of Human Rights has cancelled all hearings in March and April, apart from those where a suspension would cause “irreparable damage.” The Italian and Irish courts have been closed, under government decrees. The European Court of Justice is suspended for the next two weeks at least. The full closure of the courts is inevitable.

In France, the courts are closed for all but “essential litigation.” A similar pronouncement will surely follow in the UK, but the value judgment as to what amounts to “essential” is not easy. Many immediately consider the effect on the criminal courts, already creaking due to a lack of investment. The importance of such trials being done expeditiously—justice delayed is justice denied—is critical for the accused and the complainant. Yet, the effect of the expected contagion of the virus across our prison system may mean a suspension in criminal trials is necessary. The interrelation with probation services, individuals on bail or in remand, and the timescales for the CPS to bring a prosecution will need to be considered by the Ministry of Justice. Emergency legislation is likely to be required.

The outbreak of the virus may bring other unique immediate challenges for the criminal justice system. While the “Blitz spirit” is often romanticised, crime went up by over 60 per cent in London during the Second World War. If we saw similar outbreaks again, but without fully functioning magistrates’ courts, chaos would ensue.

Another less commented upon but perhaps more critical area is public family law. Where a Local Authority is concerned that a child is at risk of significant harm in their parents’ care, they will need to seek a court order to remove that child. Unfortunately, a period of forced self-isolation is likely to lead to an increase in alcohol/drug misuse and domestic violence, the two issues that so often lead a Local Authority to seek a protective order. Schools also act as a safety net for children in need, and are the source of much information for Local Authority services. If, or when, they are closed, it is likely that Local Authorities—with many social workers at home—will have to be even more risk-averse in ensuring child safety. Without proactive social workers visiting families and with schools closed, Local Authorities are likely to require more court orders during this period. If many family courts are not working to full capacity, it is unclear how many of these applications can be heard fairly. For other cases, any delay may mean children waiting far longer in foster care, while the courts delay consideration of their future.

Also of concern is the ability of our justice system to handle the aftermath of the virus outbreak. The civil courts will face a double-headache. Already overburdened with too much work and not enough resource, the courts will face a backlog of hearings and trials that have been vacated during the closure. This pressure will be compounded by an avalanche of “corona litigation.” Businesses will be chasing monies owed, insurance claims will be litigated, and employment tribunals will be inundated with those who have been “let go” or unpaid during the lockdown. Without urgent government action to support renters on low incomes or benefits, the already depressingly busy housing re-possession lists will grow further. Reports of a dramatic spike in divorces from couples self-isolating in China will also raise concerns about the court listings for matrimonial act litigation. Football clubs are already beginning to instruct their lawyers to prepare for massive claims for lost revenue.

This may sound apocalyptic. There is an ability in the courts to hold hearings by telephone during any shutdown. This function is available for urgent hearings in the High Court, and is used regularly on evenings and at weekends. However, the decision of the Conservative government to cut the budget of the Ministry of Justice by 40 per cent since 2010 has had wide consequences. The ability of most courts to use even basic technology is a running joke amongst barristers and the judiciary across practice areas. The court system—in particular our criminal courts—has been on its knees for some time (as chronicled so powerfully in books by “the secret barrister”). Simply put, there is not the resource to keep the system going without a sufficient workforce turning up each day.

The effect of coronavirus on how many industries and sectors operate is likely to be profound. For the justice system, our reliance on disparate groups of people meeting in a room in localities across the country is archaic. Governments have been reluctant to invest in the short term to gain significant efficiencies in the long term. Equally, the profession is naturally conservative, unwilling to change after centuries of tradition. The development of online courts for civil disputes—long-advocated in several books by Richard Susskind as a “service, not a place”—seems increasingly inevitable. Perhaps the coronavirus outbreak will be the catalyst for the more radical embracing of technology that is required.

For the legal profession itself, the virus outbreak will bring its challenges. While a lawyer’s salary will not be high on the list of priorities, many junior criminal barristers can earn less than the minimum wage in the first years of practice, saddled with enormous student debts. Upon the courts closing, their source of income disappears. It is time for the Inns of Court—membership bodies of vast wealth—to consider the creation of schemes to support such barristers over the coming months. More fundamentally, there may be greater consideration of the future of the independent bar, operating as groups of self-employed individuals pooling resources from a barrister’s chambers. If you are able to conduct court hearings from your front room, new models of working will increasingly emerge.

From chaos comes change. During the Second World War the courts encountered immense challenges, often in surprising areas. In 1944, it was the rise of divorces due to the strain of war compounded by the lack of available lawyers that led the government to appoint a committee, led by Lord Rushcliffe, a Conservative politician and barrister, to consider access to justice. The Rushcliffe report eventually led to the creation off legal aid—a key pillar of our justice system 70 years later.

The coming weeks will be a period of national hardship. Our courts—the backbone of our constitution—will be stretched to their very limits and the extreme consequences of a failing justice system will be clear for all to see. Accordingly, in the long term, lawyers may look back at this episode as the beginning of a fundamental shift in the means by which justice is administered.