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2.04.20

Criminal justice during COVID-19: The only vaccine is technology

This blog was drafted on the day that UK coronavirus deaths surged by 563 people. 563 deaths also means thousands of lives affected by tragedy. Nothing stated below is intended to play down the devastating consequences of a day like this; a day we have not seen in a very long time.

In such troubled times there is an understandable tendency to put everything else to one side and focus solely on what is deemed important, i.e. healthcare, food, and basic utilities. But to do this is a grave mistake. The justice system must always be paramount. Upholding the law and enforcing it against proven offenders is the hallmark of civilisation.

Indeed, Fiat Justitia ruat caelum is a valuable maxim here. It means “Let justice be done though the heavens fall”. Whatever else is going on, and however long it goes on for: we must ensure our justice system continues. One of the biggest factors which moderates behaviour is the likelihood that misconduct might result in one being caught, prosecuted and punished.  It follows that if we fail to police the law, or enforce the law, the law risks being disregarded.

Necessity is the mother of invention

The criminal justice system, along with most regulatory processes, has been working digitally for many years. Clerks need no longer carry bundles around, and those bundles no longer need ring binders. In the same way, lawyers need not be in the same building, let alone the same room, when they are talking, listening, advising or making their learned submissions.  All that needs to happen is for the much-hyped digital court and evidential processes to fully replace physical hearings.

Despite the headlines, jury trials have not been stopped. They have merely been suspended while the court system figures out how to continue them safely.  Crown Court hearings have not been halted. For example, in the South East circuit, a number of April hearings have been delayed but this is in the expectation that “arrangements will soon be in place (probably Skype for Business based) for effective hearings without need for attendance by advocates”. Video-links hearings need to be arranged, with facilities for private consultation before and afterwards. If there are not enough slots or video-link booths, we must build more rooms and provide more booths. In doing so, perhaps we ought to remember that the Chinese built an entire hospital in six days.   Sometimes the cost of not doing these things is far higher than just getting on and doing them.

In relation to police interviews where some physical meetings may be necessary, Northumbria currently leads the way. Once lawyers arrive at a police station, they will be asked screening questions regarding contact with anyone who may have been exposed to COVID-19 or if they are experiencing symptoms. Hand sanitiser will be displayed in prominent places. Lawyers will be informed if any COVID-19 precautions are being taken in respect of their client. Healthcare professionals will be present in all operational custody suites 24 hours a day. Data ports have been installed in some of the police interview rooms so lawyers can remotely dial in to conduct a phone interview and privately consult clients. There will be ‘IT solutions’ to enable hardwired internet connections to allow ‘live link’ video interviews. If a traditional interview has to be done, interview rooms will be reconfigured to allow the minimum two-metre social distance requirement and lawyers will be given the same personal protective equipment as interviewing officers.

These police station changes are extremely sensible, and ought to be brought in everywhere. Will they all prove a waste of money, should Coronavirus blow over by July 2020? Of course not. The new technology will remain hugely useful in expanding capacity – in a system which badly needs it. These charges will also ensure swifter access to justice by letting the lawyer dial in remotely, and safely. Allowance must be made for particularly vulnerable suspects, and sometimes physical presence in interviews will still be necessary.

But, in the vast majority of cases, we must think more flexibly. For example:-

  • There is no reason why a lawyer cannot advise during, say, three police interviews, held in three different stations, all from her own home one evening.
  • There is no reason why a Trading Standards Officer cannot thoroughly investigate a "cowboy builder" without ever actually physically meeting him. BBC's Rogue Traders springs to mind.
  • There is no reason why a police officer, sitting in Sunderland, cannot interview his wanted fugitive who is finally arrested in Norwich, whilst the two of them remain 250 miles apart.
  • There is absolutely no reason why a jury need ever enter a Court building.

Disasters like a pandemic create necessity. Necessity is not only the mother of invention. It can also bring a welcome end to unnecessary and outdated traditions.

Justice delayed is justice denied

Last week, there was a rather optimistic (or, to put in more bluntly, naive) assertion by some that this pandemic might last only 12 weeks. Indeed, many lawyers’ approach has been that all we must do is press “pause” and then come back as normal in June. It now seems clear that this is unlikely to be a ‘12 week job’. It may well, in one form or another, be ongoing, and with no certain timeframe. There might be a ‘second wave’ later this year once the restrictions are lifted, then a third wave. Indeed, whilst one does not want to be overly pessimistic, it is technically possible there might even be an entirely new pandemic later in the decade.

Are we really proposing to postpone all investigations, hearings, trials and outcomes for six months, then 12 months, then 18 months? Of course not. In much the same way, we are not going to abolish trial by jury simply because of a lack of video-link booths. We must be flexible, and we must find solutions. Ensuring we have sufficient technology, and sufficient imagination, to safely and fairly deliver justice is vital for civilisation. A society that does not appreciate this, or is not prepared to swiftly deliver it, will have far more than COVID-19 to worry about.


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Articles are intended as an introduction to the topic and do not constitute legal advice.


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