COVID-19: After the Crisis
21 Apr 2020
Before the COVID-19 pandemic began, there was another crisis. This article considers the serious backlog that exists within the criminal legal system, and then explores the impact of the COVID-19 pandemic on this logjam. It notes that the criminal legal system has for years failed to do its job, and questions whether, as a result, it is in fact necessary. It then explores the likely consequences of the COVID-19 pandemic, and whether it could provide an opportunity for meaningful change in our society.
The crisis before the crisis
The legal system is not renowned for its speed or efficiency. It is not a high-profile political priority. For years it has been systematically underfunded and under-resourced. The Ministry of Justice (“MoJ”) is responsible for prisons, probation, the courts, and legal aid. It experienced some of the most severe spending cuts as a result of the Conservative and Liberal Democrat parties’ austerity programmes: in 2019-20 the total MoJ budget was around 25% lower than in 2010-11.[i] Similarly, between 2010-11 and 2019-20 the Legal Aid Agency’s resource expenditure budget suffered cuts totalling almost 38%[ii]
The reduction in spending in these areas was achieved in several ways. Austerity measures within the prison service (the punitive aspect of the legal system) reduced what few rehabilitative services had been offered to prisoners, all while the number of prisoners increased.[iii] Austerity measures and privatisation within the probation service (the rehabilitative aspect of the legal system) effectively ended probation supervision for many offenders:[iv] privatisation failed so spectacularly that the government was forced to commit to renationalising the service.[v] Importantly, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) took whole areas out of scope of legal aid, stopping lawyers from providing early intervention to prevent the problems faced by vulnerable people from snowballing, and causing greater social and economic costs later. At the same time, the expense of criminal legal aid continued to be driven down; although barristers and solicitors have been consistently up in arms about this, on each occasion when there has been industrial action the profession’s leadership has sought to limit its extent.
The criminal court system (the adjudicatory aspect of the legal system) has not escaped the cuts. HMCTS’s operational spending fell by 23.2% in real terms between 2010/11 and 2017/18 (with a small increase in 2018/19 providing an overall real terms cut of 18.4% between 2010/11 and 2017/18).[vi] Although it is not possible to say how much of this cut is attributable to cuts in the criminal courts, criminal court closures have been monitored by the profession. The @CourtsIdle Twitter account regularly posts about courts sitting empty. By way of example, throughout late 2019 it regularly reported on more than a quarter of Crown Court rooms in London sitting empty; on 9 January 2020 it reported that only 2 of 9 Crown Court rooms were being used in Cardiff;[vii] and on 15 February 2020 it reported that “The Resident Judge at a particular Crown Court centre, has told those at a court users’ meeting that if they ran out of sitting days, then “that would be it”. Trials which had started, would be stopped.”[viii] Against this background of an under-resourced court estate, cases regularly take years to come to trial: on average, in the second quarter of 2019 Crown Court cases took 525 days to go from offence to completion, an increase of 34% from 392 days in 2010.[ix]
The underfunding and under-resourcing of the adjudicative, punitive, and rehabilitative aspects of the criminal legal system has been matched within its investigatory side. Between 2010 and 2019 there was a net reduction of 20,600 police officers in England and Wales. According to the Home Office, this was the lowest number of police officers since 1981.[x] Louise Haigh MP, Shadow Minister for Policing, has noted that “nearly 400 stations had closed in England and Wales and counters open to the public to report crimes fell from more than 900 in 2010 to just over 500” in 2018.[xi]
The delays in bringing cases from offence to trial have been in part caused by these cuts to the investigation of alleged offences. As a result of a scandal relating to the number of people released on police bail and waiting years for their cases to be dealt with, on 3 April 2017 the bail regime was changed so that suspects could be released under investigation (“RUI”), rather than on police bail.[xii] This markedly improved the lives of many suspects, meaning that they could not have bail conditions placed on them, or be forced to return to the police station repeatedly for a renewal of their bail. However, because RUI does not require an end date to the investigation, or even a review, there is no impetus for the police to actually carry out an investigation after a suspect is released. Suspects can wait years to find out whether they will either be charged or released with no further action being taken. The result has been a significant increase in time spent under investigation by suspects, and longer before cases are charged.[xiii]
In the light of these cuts and delays, the anecdotal evidence of criminal lawyers was that suspects, witnesses, and complainants would all regularly give up on cases. Why take a case seriously if the court system does not?
In light of years of cuts, before COVID-19 struck, the criminal legal system of England & Wales was already in crisis. How much worse is it today?
The new crisis
Despite the COVID-19 pandemic taking hold in the UK, the criminal legal system was slow to react. On 17 March 2020 the Lord Chief Justice announced that Crown Court trials already underway would continue, and that new trials in the Crown Court lasting up to 3 days would still commence. However, by 23 March 2020 it had become clear that this position was impossible to maintain. This led the Lord Chief Justice to direct that no new jury trials should start. Nonetheless, existing trials were to continue, with it taking until 6 April 2020 for all jury trials to come to an end or be abandoned.[xiv] The Crown Court is currently only dealing with administrative matters, listing cases for eventual trial, even in the knowledge that these trials will not take place.
Several suggestions have been put forward to allow the Crown Court to start conducting trials again. Remote trials have been suggested, but they face insuperable difficulties: they presume that all participants have IT equipment and stable internet connections; they presume that all participants will be in a secluded location, despite families currently all having to isolate together; there is no way to ensure that a jury comply with instructions, such as not conducting their own research; there is no way to ensure that witnesses do not receive assistance from third parties whilst giving evidence; and there is no way to prevent the recording of proceedings.
An alternative, but equally problematic, solution which is currently being considered would be to abandon jury trial altogether, and allow judges alone to try serious criminal cases. A further option could be to reduce the number of jurors in some cases to fewer than 12 (e.g. 7) to allow for social distancing in the court room; or to increase the number of jurors to more than 12 (e.g. 19) so that if any juror fell ill then the trial could continue without them. A reduction in the number of jurors, or trial by judge alone, has little to commend it beyond getting the court system started again: it would involve an acceptance that efficiency is more important than the risk of condemning the innocent. An increase in the number of jurors would at least have the benefit of not requiring any legislative change[xv] but has the obvious disadvantage of placing efficiency ahead of people’s lives.
An alternative, and considerably more workable, solution would be to physically distance all participants in court proceedings by making use of currently unused large buildings. Empty university lecture theatres may make ideal makeshift venues for criminal trials where all participants could remain several metres apart. Alternatively, polling stations, which are located in local communities, could allow criminal trials to take place without participants having to travel far from home. This would have the added advantage of placing the criminal legal system in the heart of communities.
Despite the blue-sky thinking being undertaken with regard to the Crown Court, similar steps are not being taken in the magistrates’ courts. Magistrates’ courts deal with the vast majority of work in the criminal legal system. They were equally slow to react to the COVID-19 pandemic, but by 25 March 2020 all magistrates’ courts were only dealing with urgent cases, defined as “overnight custody and people brought from prison”.[xvi] By 7 April 2020 a plan was in place to “re-start work on police traffic prosecution cases that can be dealt with remotely”.[xvii] A plan was also in place to prioritise some work, such as trials, when the courts would fully re-open. However, in practice, work has still not properly recommenced. The magistrates’ court is in practice not functioning.
Notwithstanding the paralysis of the adjudicative aspect of the criminal legal system, during the COVID-19 pandemic, reported crime has significantly fallen[xviii] (although reports of domestic violence have also increased,[xix] possibly because of the increased proximity of perpetrators and victims as a result of restrictions on people leaving their homes). The collapse of the adjudicative functions of the criminal legal system, and the severe constraints placed on its investigative functions, have not been replicated by a collapse into social disorder.
However, some crime is obviously still occurring, and some is being investigated. Anecdotal evidence suggests that the police have been using the reduction in reported crime during the COVID-19 pandemic as an opportunity to catch up with investigations of those who had been RUI. As the pandemic peters out, it may be that increasing numbers of charges are brought by the police as a result of the time that they have been able to dedicate to investigation. This prosecution of old offences will add to the burden of existing cases in the system. Further, crimes which are being committed now will eventually be investigated and charged, further adding to the list of cases awaiting adjudication.
What does this temporary waning of the power of the criminal legal system mean for our society? Perhaps that a coercive state was never required in order to protect individuals from each other, but rather that it serves another function. Perhaps that the inefficiency of the criminal legal system in its entirety does not have a serious impact on crime rates. And perhaps that we have a space and opportunity to imagine a future for a criminal legal system that is radically different to that which currently exists.
Beyond crises?
Against a background of crisis compounded by crisis, what will the future hold for the criminal legal system?
We have seen that the waiting time for cases to come to trial has increased consistently over the past few years. The current pandemic will only increase this problem, both because the closure of courts means that months’ worth of cases will be adjourned, and because the police will have time to carry out investigations on cases where suspects had previously been RUI. Perversely, the effect of this for the legal profession may well be positive; legal representatives whose businesses survive the pandemic may find a bounty of work awaiting them on the far side, if the government is compelled to open more court rooms in order to give the appearance that the criminal legal system is capable of functioning.
With an increase in criminal cases being dealt with at the same time, we may also see a further increase in the prison population, with conditions and overcrowding worsening. Overcrowding itself may further lead to a reduction in rehabilitative activities for prisoners.
At the same time, without significant investment, any increase in the number of cases being dealt with by the criminal courts is likely to lead to the probation system being even further overwhelmed. Many probation activities are currently on hold due to the COVID-19 pandemic, and as such offenders subject to probation supervision may need to complete their work after the COVID-19 pandemic has finished. The effect on probation is therefore likely to be the same as the effect on the court system: an already heavily burdened system could be completely overwhelmed.
What impact could the effect of the COVID-19 pandemic on the criminal legal system have on wider society? The fact that our society has continued functioning in the face not only of COVID-19, but of the crisis in its criminal legal system which has gone on for years, suggests that the present pandemic may provide us with an opportunity to reassess what our criminal legal system is for, whether it is fit for purpose, and whether it is needed at all.
If we can accept that the criminal legal system in its present form is both inefficient and unnecessary, then we can open our minds to alternative possibilities for how it could function. We could, for instance, look to other cultures and other forms of social organisation for answers. We could seek to radically and directly democratise policing and criminal justice. We could place community, rather than the state, at the heart of criminal justice.
However, there has been no expressed appetite for such a reassessment from any major political party. The government has not suggested that there will be any overhaul, and the official Opposition is now led by a former DPP, who is unlikely to seek to change the fundamentals of a system from which he plainly has benefitted. It may nonetheless be hoped that the current crisis leads to a reassessment of all aspects of how our society functions, from the fundamentals of its economy to the coercive role of the state. If a part of our society ceases functioning now but the rest of our society simply continues, we may well ask ourselves whether that part is necessary, or whether we could do without it.
[i] Bellis, Alexander; Sturge, Georgina; Robins, Joseph; Zayed, Yago, 1 October 2019. The Spending of the Ministry of Justice (CDP-2019-0217). London: House of Commons Library.
[ii] Bellis, Alexander; Sturge, Georgina; Robins, Joseph; Zayed, Yago, 1 October 2019. Spending of the Ministry of Justice – Tables (CDP-2019-0217). London: House of Commons Library.
[iii] Atkins, G., Davies, N., Wilkinson, F., Pope, T., Guerin, B., Tetlow, G., 2019. Performance Tracker 2019: A data driven analysis of the performance of public services. London: Institute for Government. Available at: < https://www.instituteforgovernment.org.uk/publication/performance-tracker-2019/prisons > [Accessed 21 April 2020].
[iv] Dearden, L., 2017. Government’s privatisation of probation services ‘putting public at risk’ as offenders monitored by phone. Independent, [online] 14 December 2017. Available at: < https://www.independent.co.uk/news/uk/home-news/probation-services-failing-privatisation-model-two-tier-system-risks-murderer-sexual-offences-a8108591.html > [Accessed 15 April 2020].
[v] Grierson, J., 2019. Probation will be renationalised after disastrous Grayling reforms. The Guardian, [online] 16 May 2019. Available at < https://www.theguardian.com/society/2019/may/16/part-privatisation-probation-sevices-to-be-reversed-offender-management-nationalised-chris-grayling > [Accessed 15 April 2020]
[vi] Atkins, G., Davies, N., Wilkinson, F., Pope, T., Guerin, B., Tetlow, G., 2019. Performance Tracker 2019: A data driven analysis of the performance of public services. London: Institute for Government. Available at: < https://www.instituteforgovernment.org.uk/publication/performance-tracker-2019/criminal-courts > [Accessed 21 April 2020].
[vii] CourtsIdle, 2020. Have we reached a new low in Wales? Tomorrow, only 2 out of the 9 courts are sitting in Cardiff, with a large admin list being dispersed between Merthyr and Swansea. [Twitter] 9 January 2020. Available at < https://twitter.com/CourtsIdle/status/1215350410824822785 > [Accessed 21 April 2020].
[viii] CourtsIdle, 2020. It’s come to this: The Resident Judge at a particular Crown Court centre, has told those at a court users’ meeting that if they ran out of sitting days, then “that would be it”. Trials which had started, would be stopped. I thought our Government was the party of Law and Order?! [Twitter] 15 February 2020. Available at < https://twitter.com/CourtsIdle/status/1228790582765592576 > [Accessed 21 April 2020].
[ix] Ministry of Justice, 2019. Criminal Court Statistics publication: Pivot Table Analytical Tool for England and Wales. Available at < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/851930/time_court_tool.xlsx > [Accessed 21 April 2020].
[x] Home Office, 2018. Statistical News Release: Police Workforce, England and Wales, 31 March 2018. Available at < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/726404/hosb1118snr.pdf > [Accessed 16 April 2020].
[xi] Pratt, A., 2019. Police stations: Are they a thing of the past? Available at < https://commonslibrary.parliament.uk/home-affairs/communities/police-stations-are-they-a-thing-of-the-past/ > [Accessed 16 April 2020].
[xii] Police and Crime Act 2017 s 54.
[xiii] Bowcott, O., 2019. Sharp rise in suspects being released without bail conditions. The Guardian [online]. Available at < https://www.theguardian.com/law/2019/oct/09/rise-number-suspects-released-under-investigation-without-bail-conditions-police > [Accessed 21 April 2020]. This draws on data from:
Law Society, 2019. Release Under Investigation (RUI) freedom of information data. Available at < https://www.lawsociety.org.uk/Policy-campaigns/documents/release-under-investigation-spreadsheet-27-kb/ > [Accessed 21 April 2020];
Attorney General, 2019. Trials:Written question – 294695. Available at < https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2019-10-04/294695/ > [Accessed 21 April 2020].
[xiv] HMCTS, 2020. HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak. Available at < https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak#hmcts-operational-summary-6-april-2020 > [Accessed 21 April 2020].
[xv] 12 is the traditional number of jurors with which to start a trial in England & Wales, but this is a minimum, not a maximum. The maximum is 19, given that a majority verdict can be given by 10 members of a jury.
[xvi] HMCTS, 2020. HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak. Available at < https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak#hmcts-operational-summary-25-march-2020 > [Accessed 21 April 2020].
[xvii] HMCTS, 2020. HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak. Available at < https://www.gov.uk/guidance/hmcts-daily-operational-summary-on-courts-and-tribunals-during-coronavirus-covid-19-outbreak#hmcts-operational-summary-7-april-2020 > [Accessed 21 April 2020].
[xviii] Dodd, V., 2020. Coronavirus crisis leads to steep drop in recorded crime. The Guardian [online] 26 March 2020. Available at < https://www.theguardian.com/uk-news/2020/mar/26/coronavirus-crisis-leads-to-precipitous-drop-in-recorded > [Accessed 21 April 2020].
[xix] Kelly, J., Morgan, T., 2020. Coronavirus: Domestic abuse calls up 25% since lockdown, charity says. BBC. Available at < https://www.bbc.co.uk/news/uk-52157620 > [Accessed 21 April 2020.
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