Can the criminal courts be safely observed during Covid to maintain open justice?

14 May, 2020 | 5 minute read

14 May

Next week jury trials are set to restart in certain courtrooms under socially distanced conditions. This week meanwhile two jury trials – a murder trial and a bribery trial – have resumed under these conditions at the Old Bailey. But will the public feel able or comfortable to go and watch? And if they don’t, what does that mean for the principle of open justice?

The courts have made a herculean effort to get things up and running and all those involved in the resumption of jury trials are, as the Lord Chancellor has said, “making a huge contribution to society.” For that, in his words, “they have our gratitude and they deserve our protection.”

There is no doubt that there are strong reasons to get the criminal justice system up and running again to avoid it collapsing under the weight of massive backlogs post-Covid. The courts entered the Covid crisis under-resourced, in the middle of an extremely challenging court reform program, and with a backlog approaching 40,000 cases. The Lord Chief Justice told the Constitution Committee on 13 May that for each month the courts are closed, the backlog grows by 1000 cases.

Lawyers have however raised significant concerns as to whether they are being used as guinea pigs, and are asking how safe it really is for such trials to resume.

In this context, it’s important to ask how can open justice be provided in a way that is as safe as possible both to those who have no choice but to go to the court room to keep the criminal justice system open, and safe to those who want to exercise their right to observe and report on trials.

The Lord Chief Justice’s announcement about the resumption of jury trials made clear that a second court room linked by closed circuit TV would be made available to “reporters and others to watch the proceedings” for jury trials. That’s to say, there is no alternative currently but to go physically to the courts. The press and public will of course need to use the same entrances, same toilets, and same lifts as the participants to a trial.

Just last week, the head of HMCTS acknowledged in evidence to the Justice Select Committee that while the public galleries are open and it is not breaking lockdown to go to watch a trial, “lots of people will not want to do that. It will feel odd to them. We need to keep thinking about the public access part with the judiciary.

Her comments raise the question of whether open justice is best served by a potentially empty court room with a video link which people don’t feel safe to travel to. Furthermore, it is not clear that the message has filtered down to court staff, who in our experience have shown an initial reluctance to let people in who are not accredited press.

The crux of the issue is this: while there are powerful reasons why jury trials cannot be conducted remotely, and it is understandable why the judiciary currently feel that lawyers, witnesses, jurors and victims need to be in court to ensure justice is done, the reasons for observers from the public to be physically in court to ensure open justice is much less clear.

If courts can provide the technology for observers to listen to the trial away from the court room it would have powerful advantages:

Labour has called for trials to be live-streamed to make sure that the justice system is “open, transparent and fair.” Another option would be for observers from the public to be given access to an audio or video link.

Two reasons may make the judiciary reluctant to authorise either option. The first is that while the Coronavirus Act made it clear that remote access should be provided to journalists and other interested members of the public if a hearing is heard “wholly” remotely, there is no such provision where a hearing is being heard in person. That suggests that to allow courts to give remote access or to livestream proceedings, the Lord Chancellor would need to issue an order under section 32 of the Crime and Courts Act 2013, to allow them to do that.

The second is contempt of court, and the risk that audio or video hearings could be illegally recorded if they are done remotely. However, the current rules place trust in the press and members of the public not to break contempt of court rules in hearings conducted entirely remotely, often subject to reporting restrictions. It is inconsistent that the same trust cannot be placed in them – trust that can be backed up by strong warnings from the judge and enforcement of breaches – when hearings are heard in person and in open court.

It may be that the court technology isn’t up to the job. If that’s the case, then fixes should be found quickly. It is also the case that the judiciary often see the press as a substitute for or ‘eyes and ears’ of the public in the courtroom. But the reality is that much of the best court reporting may lie behind paywalls, and newspapers don’t always cover the whole of a trial, let alone publish it. As fantastic as some of that reporting is, it is questionable whether it can be a substitute for open access.

Covid is likely to be with us for a while and the strain on the courts is going to be immense. The courts are doing a heroic job to try to get things up and running in a safe way. But open justice isn’t an optional bolt-on to the justice system – it’s fundamental to public trust in it. Upgrading technology to ensure the courts can be safely observed at a distance to reduce the pressure on the courts themselves would be in the interests of us all.

With thanks to Clare Duffy from Doughty Street Chambers for comments.