What “Alert Level 3” means for criminal law

Impact on the Criminal Justice System

As you may be aware, the Government’s scientific advisors have now moved the “Alert Level” relating to the current pandemic down to 3. As new cases of the infection have been falling and lockdown measures relaxed over the last few weeks, the impact on the Criminal Justice System has been noticeable. This blog will give you some brief updates on what you can expect if you come into contact with the police or courts.

Increase in arrests

Over the recent weeks (and since our last blog on this subject: https://www.davidgray.co.uk/blog/crime/crime-court-and-covid/) we have noticed that the number of people who are being arrested for crimes is on the increase. Where the police were reluctant to arrest people before and instead choosing to defer interviews until such a time as they could be conducted safely, the balance has now shifted and we have noticed a dramatic increase in the number of people arrested and interviewed. If you need to be interviewed by the police then contact David Gray Solicitors and we will be able to help you. Some people would prefer to be represented physically and in person at the police station; other people would prefer to be represented by a solicitor over the telephone to reduce human interaction to minimise risk. We can accommodate either preference.

Magistrates Court

Once charged, people’s first appearance is in a Magistrates Court. For a long time, people who were bailed to appear before the Magistrates Court were finding that the courts were adjourning their hearings because they could not be heard safely. The Magistrates Court are now hearing all types of cases, but not in the numbers that they were pre-lockdown. The capacity of the courts is increasing. If on the first appearance, a guilty plea is entered then, by and large, these cases are dealt with without too much disruption. On the other hand, the number of trials in the Magistrates Courts that are going ahead is very much reduced from pre-lockdown levels, but it is now finally greater than zero and increasing.

Newcastle Crown Court

In Newcastle Crown Court, there are no trials going ahead at all. Other types of hearings are going ahead, but Defendants are only required to attend to be sentenced. Trials in the Crown Court will not commence until there is a way to ensure jurors who attend to execute a civil duty can do so without being exposed to unnecessary risk. The Government are looking at various proposals to help but there is nothing concrete yet. Some of the options are:

• “Nightingale Courts”. Cases which do not require the court to have custody (cells) available to them could be heard in non-court buildings. This could be Town Halls, or Lecture theatres, or other buildings in which there is more space for people to distance themselves from each other. This has been talked about for a while as a way of reducing the massive, and growing, backlog of Crown Court cases. If these measures were adopted it would require a significant injection of cash to hire the premises and make alterations to the buildings so they can function as courtrooms. Also, if there are no cells then such courts could only do cases where the defendant was on bail, which are not the priority at the moment. When the time comes that trials are being heard again, we imagine a triage process will take place to prioritise cases. Those involving a defendant in custody are likely to have the highest priority. Heightened priority should also be given to violent or sexual offences.
• Reducing the number of Jurors. This idea has been floated as a solution, and is not an unprecedented move as it has happened during war-time. However, we are not in war-time and the reasons for a reduction in jury numbers then is not the same as it is now. The principal reason this proposal has been put forward is because it would impossible for jurors to retire to their usual room to consider their verdicts and socially distance. The fewer jurors there are the more able courts will be to allow jurors to retire and socially distance. It also appears that the Government may be on the brink of reducing the social distance. Were that to happen then it is easier to imagine trials getting started again. What would happen should a juror develop a cough during the trial remains to be seen, but following current Government guidance would suggest the entire jury would have to self-isolate for 14 days.
• “Judge only trials”. A variation of this option appears to be gaining some traction after having initially been said by the Government to be the last resort. The removal of trial by jury would be hugely controversial but it seems that we have now reached the point where it is being actively considered and appears to have received high level endorsement from the Lord Chief Justice (https://www.lawgazette.co.uk/law/limits-on-jury-trials-may-be-needed-says-lcj/5104649.article) We do not know where the government will finally land on this issue given the huge uncertainty there is surrounding the pandemic, and the tremendous shift in the way Criminal Law is administered that will accompany some of these suggestions.
• Remote trials. A number of different groups have been trialling this issue and recent reports claim that initial technical difficulties have now been overcome to the point where this may now be considered as a viable proposition (https://www.lawgazette.co.uk/news/virtual-hearings-with-physical-jury-hubs-hailed-a-success/5104700.article ). We are less convinced that this is an option that will be adopted as it appears it would involve a significant investment in IT infrastructure as well as access to buildings which would act as courthouses that the Ministry of Justice do not have. Also, many people have expressed concern that proceedings as important as criminal trials would be determined by jurors who do not see the defendant or witnesses in the flesh.

What we can say is that there is already a huge backlog of trials (approximately 40,000 nationally), and this number is increasing. We will keep you updated when there are more solutions to the problems.

Contact

Call our crime team on 0191 232 9547 if you would like any further information or representation, Legal Aid may be available. We represent defendants whose case is being heard in either the Magistrates’ Court or Crown Court.