Garden Court Chambers Criminal Defence Team call for urgent action to limit spread of Covid in the courts

The criminal justice system is in crisis. In the last seven weeks, there have been COVID cases at nearly 200 courts across England and Wales, and some 600 court users and staff, including 69 judges, have tested positive. The situation in prisons is even worse, with 51 COVID fatalities amongst prisoners. The new, more transmissible COVID variants are infecting, hospitalising, and killing more people than at the height of the pandemic last spring. Despite the efforts of the courts to protect their users and staff, the situation is dire and getting worse by the day. Everyone who has been to the Magistrates’ Court, the Youth Court or the Crown Court in the last few months has at least one alarming story to tell about unsafe practices that are putting at risk the lives of defendants, witnesses, intermediaries, jurors, court staff, police officers, prison officers and lawyers. There are too many overcrowded courts and in-person hearings. There is inadequate mask-wearing, social distancing, Perspex screening and cleaning. The cells are particularly dangerous due to the small consultation rooms and the poor ventilation.

The crime team at Garden Court Chambers echoes the concerns already expressed by others including the Bar Council, the Criminal Bar Association, the Law Society, the London Criminal Courts Solicitors Association and Legal Sectors Workers’ United. Urgent action is needed now, before matters become so serious that the courts will have to shut down altogether.

We recognise that many court staff, including security and cleaners, have little choice but to attend court and are doing their best to implement HMCTS measures. It is the measures themselves that are inadequate.

We acknowledge that a difficult balancing exercise must be struck between keeping court users and staff safe and keeping the criminal courts open, so that the ever-increasing backlog of cases, particularly cases involving defendants remanded in custody, does not grow exponentially out of control. However, the current situation, particularly in the Magistrates’ Court and the Youth Court, is untenable. We must find ways to reduce the numbers of people attending court to limit COVID spread as much as possible.

We call for the following:

1. Only custody cases listed for trial or sentence should proceed in the Magistrates’ Courts and the Youth Courts until at least 1st February 2021. HMCTS should review the position in February.
2. All other hearings in the Magistrates’ Courts and the Youth Courts should be conducted remotely via CVP or adjourned until alternative arrangements can be made.
3. HMCTS must immediately address inadequate CVP facilities, Perspex screening, basic safety measures and staffing levels, particularly in the Magistrates’ Courts and the Youth Courts. Emergency investment must be provided in the interests of public safety.
4. All Crown Court hearings, other than trials and sentences, should be conducted remotely via CVP, unless the judge rules that there are exceptional reasons why the hearing should be in-person.
5. Magistrates’ Court and Youth Court hearings should be given time markings. It is wrong for all cases to be listed at 10 am.
6. All courts should introduce rapid, lateral flow testing as an additional precaution, notwithstanding there is conflicting evidence as to their accuracy.
7. There should be stricter enforcement of mask-wearing unless you are speaking in court or alone in a room.
8. There should be far more regular cleaning of all areas of court buildings.
9. All defendants in custody attending court must be given masks and hand sanitiser.

We stress that our demands are not about seeking special dispensation for lawyers and other court users. This is about basic safety for essential workers. We cannot allow the MOJ and HMCTS to exploit the financial vulnerability and commitment to their clients of legal aid lawyers who feel they have no alternative but to acquiesce to unsafe working environments.