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It’s a strange time to be working on a dissertation about the effect of court reporting restrictions in criminal court trials. My first week of data collection started on Monday 17th February. There were on average 1543 indictments a day listed for hearing in the UK crown courts, of which about 380 were listed for trial. Roughly 4% of these were subject to court reporting restrictions under section 4(2) Contempt of Court Act 1981, which allows postponement of contemporaneous reporting of court proceedings to avoid substantial risk of prejudice to the administration of justice. There was media coverage of some of these cases; none at all of others.
I noted down the front page headlines each day (as discussed with my research methods tutor, Laura Biggart) in order to assess whether the news profile was such that court reporting might be at a lower than normal level. For that week front page coverage included storms, flooding, Brexit negotiations, Priti Patel bullying allegations, immigration, the death of Caroline Flack and Harry Style’s knife attack. Only one, concerning suspended production at UK plants by Jaguar Land Rover, mentioned the coronavirus.
My second data collection week started on Monday 23rd March – the week when the lockdown came into force. It was earlier than I had planned, but it was clear, the way things were going, it might be the last chance I would have. Courts were only hearing jury trials estimated at 3 days or less and there was clamour for these to be stopped to protect the public and the legal profession.
On Monday 23rd March the Lord Chief Justice announced that no new jury trials were to start and no physical hearings could take place unless it was safe for them to do so. A deceptively normal 235 indictments were listed for trial. By Tuesday that number had dropped to 34. Many part-heard trials were stopped, as jurors or witnesses went into self-isolation with symptoms. Among them was the trial of the teenagers accused of murdering P.C. Harper, where 3 jurors had been lost. Mr Justice Edis expressed regret at the distress it would cause to witnesses who had already given evidence and acknowledged the decision meant a “significant delay” in the trial of the three defendants, who remain in custody. On Friday 27th March the last 2 part-heard trials were finished and no jury trials have taken place since.
What emerged that week was a Crown Court system being conducted remotely by telephone, Skype, BT Meetme, Teams or Spyderphone. Many court rooms and some entire courts did not sit at all. The number of hearings was fewer than half the normal caseload - largely bail applications, applications for extensions of custody time limits, sentences and trial management. Defendants on bail were excused; those in custody appeared by Prison Video Link, with conferences with counsel listed 15 minutes before the hearing time.
This has remained the justice system’s new normal. Regularly updated guidance from HM Courts and Tribunals Service identifies the official court platforms as BTMeetMe (teleconferencing), Skype and, more recently, cloud video platform (video conferencing). The Coronavirus Act 2020 has temporarily expanded provisions in s.57B Crime and Disorder Act 1998 and s.51 Criminal Justice Act 2003 for the use of remote technology in criminal proceedings. However, jury members are specifically excluded from those being able to take part via live link.
It didn’t seem worth me noting down the daily headlines – everything was coronavirus. Court reporting around that time was largely limited to coronavirus-related hearings. Of particular interest to me was the sentencing of a defendant who, whilst serving on a jury in a Crown Court trial, carried out internet research on the defendants, making it very likely their convictions would be overturned on appeal. Research by jurors is an offence under S.20A Juries Act 1974. It carries a prison sentence of 2 years and is considered serious because jurors are required to decide guilt or innocence solely on the evidence they hear in court. However, his prison sentence was suspended, in part because his role as an emergency medical technician meant immediate custody was likely to have a significant harmful impact upon the health of others in his region; the judge saying "These are not idle words, they are the reality of the situation in which this country, indeed this continent finds itself at this time."
I wondered how the court reporters would be able to function at all in these new virtual court rooms. However, after a bumpy start, access appears to have improved. Criminal Courts, led by the Old Bailey, are facilitating reporters’ access to online hearings. A further check of the court lists on 14th April showed some courts listing numbers or email addresses for press to contact about remote access. A few even extended this to members of the public. Others said that remote cases could be viewed on a screen in the court building – although watching a court case does not appear in the most recent police guidance as a “reasonable excuse” for leaving the house. The principle of open justice is clearly more cumbersome during lockdown. Commentators in the US and Canada have also expressed concern about court transparency (and privacy) as the system adapts to a new online existence.
Another problem for transparency is the threat to newspapers caused by sharply declining print sales, and loss of advertising revenue during the lockdown. Particularly hard hit are regional papers, who rely on advertising revenue from local businesses, which are themselves under pressure. It is these papers which do most of the court reporting. Whilst this may seem unimportant in the current climate, considerable restrictions have recently been placed on our liberty, in order to control the virus. In the future, it is possible these may be extended - maybe to include age based restrictions on leaving the house, compulsory wearing of facemasks or required use of a contact-tracing app? Ultimately such restrictions are interpreted and enforced by the courts. Lord Neuberger, speaking about this issue on The BBC Today Programme (27th April – 8.36 a.m.) said “We do have to be careful when we have a crisis that, quite rightly, requires the government to take steps which would be regarded normally as interfering with our underlying and important liberties that this doesn’t start to become a creeping trend towards an interference with our rights.” Though warning against untimely criticism of necessary measures, he said “The tired old statement is absolutely true – the price of liberty is eternal vigilance.” For most of us such vigilance can only take place through the press reporting on the laws made by our government and their enforcement in the courts.
Remote hearings are being used for contested civil cases. However, as a judge conducting a remote adoption hearing describes, this is not without difficulties – both technical and to the emotional wellbeing of the parties. Whilst Skype hearings are an entertaining novelty for some, they can make the parties feel invisible and as if they’ve had a second-rate hearing of a hugely important issue.
It’s hard to imagine this working for jury trials. Jurors need to be able to speak freely together in private, examine exhibits or sometimes locations and not worry about their internet dropping out mid-testimony. However, the human rights group, Justice, has been conducting virtual mock trials to test their viability and these have been evaluated as having many positives, particularly for small and medium length trials. Potential issues included technical problems, the difficulty of recreating the solemnity of the courtroom, the ability for a juror to become distracted by online material or events at home and the additional stress solitary participation might place on vulnerable jurors, witnesses or defendants. Another virtual mock trial will be conducted on 6th May.
Defendants need to have an opportunity to make themselves seen and heard to a jury in a way which is difficult to achieve remotely. As many of us are finding out, it’s hard enough to do that with a group of friends on Zoom. It has been increasing common in recent years for defendants in custody to take part in preliminary criminal hearings via Prison Video Link. However, a 2017 report by Transform Justice said that, as well as technical issues, the remote technology created a disconnect between the defendant and their lawyer, who often had insufficient time to take full instructions. Defendants were also isolated from the court and had their ability to communicate hampered, so that they often felt disengaged or frustrated. This particularly effected younger defendants and those that were unrepresented or did not understand English well. In April 2020 the Equality and Human Rights Commission published an Interim Evidence Report from their inquiry into access to justice for disabled people in the criminal justice system. Responding to the expanded use of remote hearings due to the Covid-19 pandemic, they warned that video hearings were not suitable for many people with cognitive impairment or mental health conditions, as they impede effective participation. All these issues have the potential to be magnified if jury trials were conducted by video link.
However, jurors and defendants in the same room risk transmitting the virus. The exit strategy isn’t clear. A working group chaired by Mr Justice Edis is meeting weekly to consider how safely to resume jury trials. As well as virtual courts, ideas being considered are larger courtrooms, judge-only trials or smaller juries. Juries of 7 were used during the war, for cases other than treason and murder, but this has never happened in peacetime. Lack of trials creates worrying uncertainty, particularly for defendants on remand. The build-up of a back log of criminal court cases - already at a 2 year high prior to the lockdown - foreshadows future strain on an already stretched criminal justice system.
It also doesn’t help my dissertation. So, I am grateful I have one set of data collected before the lockdown – but not as grateful as I am for my garden and the health of my family.
Suzanne Dixon is studying for a Master of Research degree at University of East Anglia as preparation for a PhD researching court reporting restrictions in Crown Court trials.
All artwork are the author's own
First published here 07/05/2020