The judges at the Old Bailey have a black silk rosette on the back of their robes. It symbolises the flowers that their 18th-century forebears carried to ward off jail fever – typhus – when the Court stood above Newgate Prison, as it did until the site was demolished in 1902. The flowers had no pharmacological properties but would at least have mitigated the stink.
The criminal courts and the jails that feed and are fed by them are ideal incubators of Covid-19. It comes as no surprise that an elderly prisoner has died today, either from or with the virus, and he won’t be the last. Courts bring people together in small spaces for hours or days at a time, in the courtrooms, the cells, and the jury rooms, not to mention the offices where the staff work. In the basement cell area of a court I attended recently, a single air-conditioning unit blew the same air through all the cells and into the interview and staff rooms. My colleagues have been complaining for years about broken plumbing, absence of soap and towels, and frequently filthy conditions. Sweet-smelling flowers or at least an air-freshener would have been nice.
Until this week, the people in charge decided to keep trials going: at first full steam ahead, then only cases due to last three days or less, before they finally stopped them altogether – except those close to finishing. The pressure to shut up shop came from the lawyers who go to the courts and from many of the judges. Senior management had difficult decisions to make, because suspending court business comes at a high human and financial cost. Messages from government were inconsistent.
Meanwhile, the virus cannot have failed to get into the 77 crown and 161 magistrates’ courts – and out of them again, back into the community. In 2010 there were 323 magistrates’ courts, and people did not need to travel too far to reach them. Half have been sold since then. HM Court and Tribunal Service predicted – and was content with – up to six-hour travel times for most users of magistrates’ court, where 98 per cent of cases start and finish. Fewer courts mean longer and more complicated journeys, and more opportunities for exposure to the virus.
The virus has accelerated the move away from face-to-face hearings, towards greater use of remote communications. A lot of faith and money had already been invested in IT systems in the past few years, paid for by the property sales and reduced funding elsewhere. All criminal cases are digital: paper is a thing of the past. The Coronavirus Act empowers courts to hold many more hearings by remote link, with the exception of jury trials. In the last few weeks, judges and lawyers have developed ways to conduct hearings without people having to be physically present. The trend is bound to continue after the virus ends. If so, we need many more access points in prisons and in lawyers’ workplaces, and continued investment after the emergency ends. Communications need to be both secure and stable, and open to the public so that justice can be seen to be done. Selling buildings and neglecting those that remain is not the answer.
Technology can’t do everything that getting people together in a room can. Trials at least are and should be live events, in which things happen and are reacted to in the flesh. Lawyers and clients need to consult privately. The participants need to be aware of what is going on in the room. The public need access. Juries need to be together, to debate and decide on what they have seen. If the virus finally forces government to remedy the decades-long neglect of the infrastructure of our justice system, physical and technological, some good will have come of it.