Leaving lockdown: the changing Covid-19 landscape at court

The effect of COVID-19 restrictions has been seismic across UK justice system. Lockdowns and reduced court capacities have contributed to the backlog of Crown court cases which is now in excess of 57,000 cases. In a bid to clear this backlog, the Ministry of Justice has recently announced they are removing the cap on judicial sitting days for the next financial year. As restrictions ease, it will be interesting to see how working practices will change for the courts as we all try to recover.

On 17th March 2021, the Lord Chief Justice published a message concerning the evolving COVID-19 landscape at court, following the lifting of the latest national lockdown. After a year of restrictions, the Government has issued a new recovery roadmap. If this roadmap can be safely followed, the courts could see further change in COVID-19 policy in the coming weeks and months, as regulations gradually relax.

The Lord Chief Justice notes, “Over the next few weeks and months as the number of people who have been vaccinated against COVID increases and restrictions begin to ease across England and Wales, it will be possible and desirable to increase attendance in person where it is safe and in the interests of justice. This will be important to maximise the throughput of work”.

Returning to court – a “mixed bag”

Evidently, many in the legal professions are keen to return to in-person working. Fewer technical difficulties, less opportunity for miscommunication and greater capacity are among the many benefits of court-based hearings. For others, however, a return to court will mean an increase in health concerns, greater demands on legal professionals’ time (due to travel) and a less flexible approach to working.

These sentiments are echoed by some at Communicourt. While a great number of clients with communication difficulties undoubtedly benefit from attending court in-person, remote working has broadened options for assisting vulnerable defendants and respondents. For instance, courts have been more open to allowing respondents in family matters to attend remotely, which can assist those whose communication difficulties are exacerbated by anxiety (for example, those with Autistic Spectrum Condition, who may find new environments emotionally dysregulating).

In other cases, intermediaries working with clients who benefit from live simplification during proceedings have felt somewhat stymied by the two-metre distancing rule and by mask-wearing. Live simplification requires intermediaries to explain complex vocabulary and concepts in real-time, using whispered explanations, simple notes and drawings. COVID-19 measures often hamper live simplification, as whispering and sharing notes or diagrams is impractical at two metres.

In such cases, working with a respondent in a private conference room (at court or at a solicitors’ office) allows intermediaries to provide live explanation, without disruption to the court. In some instances, this ‘conference room’ working style allows for more dynamic communication between the client and intermediary, improving overall understanding.

While there is no doubt that returning to court will be of benefit to many vulnerable respondents and defendants, a possible reduction in flexibility regarding their attendance may be an unexpected downside to relaxing regulations.

Current and changing COVID-19 court practice

Whatever your views on the return to courtroom, it is imminent (bar fresh lockdowns and restrictions). So, what awaits legal professionals and service users returning to court after months of remote hearings? Current cross-judicial guidance (as per the 23rd March 2020) and updating guidance from January 2021 is as follows:

  • Mask-wearing is required when:
    • In public areas of the court buildings
    • When moving around the court building
    • In court, unless they are a witness giving evidence or lead advocate for prosecution or defence. Other courtroom personnel may wear a mask at this stage, at their discretion.

  • Measures ensuring safety when entering court buildings include:
    • Two metre distances between all individuals queuing to enter court buildings (and between court users and court security).
    • Direct access for court professionals upon presentation of an ID badge (at some courts) to reduce contact with security.
    • Security to wear gloves and regularly to clean trays for visitors’ belongings.

  • Handwashing and court hygiene measures include:
    • Sufficient supply of hand wash and paper towels (or automatic hand dryers) for all who will be in the building.
    • Judges to permit a break to accommodate handwashing, approximately every two hours.
    • Regular cleaning of all surfaces touched by people using the building: bannisters, doors and door handles, counsel’s bench, conference room furniture (approximately every two hours)

  • Other measures:
    • No sharing of documents, iPads, holy books, oath laminated sheets etc.
    • If the public galleries can’t accommodate two metre distancing, a queuing system is recommended (unless video link is available). If it isn’t possible there will be fewer people in the public gallery.
    • No court-supplied water carafes anywhere. Although courts now provide bottled water, court users should bring their own bottles to ensure they can stay hydrated.

In addition to these measures, court users could see further changes, including:

  • More testing from mid-April 2021
    The national capability for COVID-19 testing has increased. HMCTS is now encouraging all court users to access testing available to them, on a regular basis. All courts and tribunals will soon offer home test kits for collection for all professional court users, legal professionals, judiciary, contractors, jurors, witness services and staff who attend scheduled hearings. Read HMCTS testing update here.

  • Fluid Resistant Surgical Masks (FRSMs) in custody suites
    These masks will be supplied to professional court users on entry to custody suites. They are to be used in conjunction with the existing safety measures.