Solicitors’ leaders warn court hearings may need to be paused

Solicitors’ leaders have warned a two-week suspension of virtually all court hearings, including jury trials, may be needed to stem the spread of coronavirus.

Amid rising fears among the legal profession about transmission of Covid-19, the Law Society of England and Wales said the move may be the “least bad option” to ensure the justice system can operate safely.

The call came as new figures showed there were almost 600 confirmed cases of Covid-19 among court staff and users, the judiciary, and jurors in the seven weeks up to January 11.

In a letter to HM Courts and Tribunals Service (HMCTS) , the Law Society said while it is “essential” for justice to continue during the pandemic, there are concerns about safety in light of the more transmissible Covid-19 variant circulating in recent weeks.

The society’s president, David Greene, said if the current situation continues, it is “almost certain” that there will be a “significant loss of capacity” due to court closures caused by outbreaks of the virus.

The organisation suggests a two-week “pause” of all Crown and magistrates’ non-custodial work to allow those involved in court work to assure themselves about the safety of attending court, and to discuss measures to ensure safety.

This should include pausing all Crown and magistrates’ work, including jury trials, except for instances where there are urgent custody matters, such as custody extensions, the society said.

It also suggests a move to video hearings by default in all Crown and magistrates’ courts.

Mr Greene said: “Throughout the pandemic the Law Society has maintained that it is essential for justice to continue to be delivered.

“However, the safety of both court users and those who work within the justice system is of the utmost importance, especially given the new more easily transmissible coronavirus variant.”

Mr Greene said the society has welcomed steps taken by the Government to make court and tribunal buildings as safe as possible, but added official figures showing record daily numbers of deaths and new infections of the virus “cannot be ignored”.

“By its nature, unless remotely accessed, the court process throws people together in limited space,” he said.

“Due to the rapid acceleration of transmission and the ever-increasing pressures on the NHS, we are now in a position where urgent action within the courts must be taken in order to ensure safety and to assist in the process of stemming the rate of infections and in ensuring that the NHS does not become overwhelmed.”

Mr Greene added: “We recognise that this conflicts with the imperative to mitigate the growing backlog of cases in the courts.

“However, if the current situation continues, there is almost certain to be a significant loss of capacity due to court closures following outbreaks of coronavirus, and due to staff, lawyers, judiciary and parties falling sick.

“We believe the measures we propose represent the least bad option for ensuring that courts can continue to operate safely.”

New Ministry of Justice (MoJ) figures disclosed in response to a written parliamentary question show that in the period between November 24 and January 11, there were 599 confirmed cases of Covid-19 across 199 court and tribunal buildings in England and Wales.

An analysis by the PA news agency found that of these, 73% of cases (434 in total) were among court staff, 12% (69 cases) among members of the judiciary, 12% (73 cases) were among court users and 4% (23 cases) were among jurors.

The MoJ response says “there should be no assumption that a positive case indicates that there has been transmission within a court or tribunal building”.

It adds that the rate for staff has “generally tracked the English national average during the pandemic” and with a “very small” number of exceptions, its current assessment is that transmission within courts and tribunals is limited.

Derek Sweeting QC, chair of the Bar Council, which represents around 17,000 barristers in England and Wales, said any decision on closing courts must consider the impact it would have.

He said: “The safety of everyone who is required to attend a court in person is paramount, but any decision to pause work in the criminal courts, even for two weeks, needs to take into account the impact this will have on the victims of crime, witnesses, defendants and the backlog, which is already too high.

“Closing courts should be a last resort after every effort has been made to make them as safe as possible.

“The Government can and must do all it can to allow the work of the courts to continue, whether that be through more remote hearings, more Nightingale Courts or further safety measures. ”

James Mulholland QC, chair of the Criminal Bar Association (CBA), warned safety measures are being introduced too slowly, and do not address concerns.

In a message to CBA members, he said: “Whilst HMCTS seeks to grapple with the problems presented by the virus, it is evident that it is ill equipped to do so.

“Measures are introduced too slowly and fail adequately to address concerns.

“For example, there are problems with HMCTS’s attempts to track and trace various court users who have tested positive and those with whom they have associated in order to ascertain whether the court was the reason for the outbreak or a location outside the court setting.”