Trials in the age of COVID-19
Barrister Alexander Greenwood gives a first-hand account of the first trial to take place in the UK during lockdown and offers some thoughts on how the ‘new normal’ of courtroom procedures could affect trading standards cases.
The cough was clearly audible to Counsel’s row and the lofty expanse of the courtroom. The Judge’s eyebrows raised. The apologetic female juror, mid-oath, continued her covenant. Other jurors looked on nervously. The date was the March 17, 2020. The trial proceeded unremarkably .
The following day the defendant was to give evidence. All save the coughing juror were present. She had reported in overnight, self-diagnosed with coronavirus, was self-isolating and would not be attending court.
A meeting with the Judge in Chambers discussed the possible ramifications. We could go on with 11 jurors (not unprecedented). But what of the remaining 11? Would they really be able to concentrate on their task in the knowledge that the previous day one of them may have been spreading the deadly virus amongst their number?
Discretion was the better part of valour. The jury was discharged, the trial over and to be relisted at an unspecified date in the future. We all went home to lockdown and hide from the killer. Time passed slowly. Income evaporated.
Back to work
On Monday May 18 Mrs Justice McGowan DBE walked into Cardiff Crown Court to preside over a criminal trial. Her ladyship had travelled down to the Wales and Chester Circuit for what in normal times would have been the bread and butter of the local Circuit Bench.
This was the first post-lockdown trial in England and Wales. Preparations had begun weeks before. The judiciary, court staff and senior barristers had worked tirelessly to restart the system of justice. There was also a financial imperative. Barristers at the Criminal Bar are self-employed; no furlough, no trial, no income.
Suggestions had included non-jury trials; Judges sitting with two Magistrates; or the nuclear option, Judge-only Crown Court Trials. A popular analogy with the War was drawn, but even then the sacrosanct principle of millennia that the accused should be tried by their peers was upheld. Only in Northern Ireland during the height of the troubles had the fear of juror intimidation resulted in the suspension of the bedrock of our system.
The Edwardian court building had been turned into a health and safety labyrinth of yellow and black tape. Communal walkways denoted by arrows on the ground indicated a new one-way system. Chairs in communal areas were taped off if they were not two metres apart. There was no canteen or catering facilities.
Front door double entrances were unlocked to allow a way in and a way out, with never the twain meeting. Security searches were remote, as members of the public who were still allowed access to the building and hearings where possible (justice must be seen to be done) were asked to empty their bags from afar. And all were vetted and signed off by the relevant Public Health body. There could be no shortcuts.
The courtroom looked different. Two rooms both formed the same ‘Court’. In one the defendants in the dock, the Barristers distanced both from the defendant but also from each other. The Judge of course and the jury, not sat shoulder-to-shoulder in the jury box, but spread throughout the courtroom. Four in specially allocated and numbered seats in the jury box, each two metres apart and the remainder, each in numbered allocated seating, spread throughout the public gallery directly opposite the jury box and the other side of Counsel’s row. Jurors to the left, jurors to the right. The advocates surrounded.
No public, at least not in the courtroom where the evidence was to be heard. But the court had to be open to the public and press. They were located in a separate courtroom which for all intents and purposes would form part of the same Court. Proceedings were beamed via the internal video facilities to be watched on the television screens usually reserved for the giving of evidence by vulnerable witnesses. In addition instructing solicitors were linked via email to those they instructed.
Both prosecution and defence had engaged in a pre-trial visit to the Court to become familiarised with the new procedures. No longer would lawyers and court staff amble in and around court. Jurors would not be marched in close order file into and out of court. Witnesses would not walk through the packed court room. Ushers would not be able to physically assist.
A regimented procedure was to be adopted. Court staff consisted of the court clerk sitting alone; Advocates next; Defendant; Judge and Jurors. Jurors entered in the order in which they were seated to ensure social distancing at all times. Witnesses including the defendant came into court via the Judge’s entry straight into the witness box and left by the same route.
Hand santisers were readily available. Gloves and masks could be worn by participants if they wished (no one did). The court was regularly cleaned during the course of the day.
Court in session
The first day proceeded tentatively. The defendant’s opinion was canvassed. Did he want his trial now or wait until who knew when?
Jurors had been rigorously screened. Questionnaires were sent out in advance to establish those who were vulnerable or had concerns such that might overbear their ability to concentrate on the evidence. What was left were the willing… the hardcore… ninja-jurors.
To save time the jury were balloted whilst they remained out of the Court and were then brought in one by one and given their allocated numbered seats for the duration of the trial, holy books already in situ.
All documents had to have been prepared in a sterile form in advance of trial. The indictment and jury bundles were placed in advance at the respective seat awaiting the juror’s arrival.
Sterile new exhibits such as edited PACE interview transcripts would be placed in folders before jurors entered court, one for each.
Clickshare, the court system whereby the advocate’s screen is replicated on the court television system, was to be preferred wherever possible. Witnesses were asked to take their statements into court with them to be cross-examined thereon. Material to be provided to witnesses had to be available in advance. There could be no trial by ambush, not least because the ushers could not approach the witness to hand them an exhibit.
One particular difficulty were jury notes. How could a juror write a note to the Judge and pass it on when ushers could not approach? Initial thoughts that the jurors could bring their mobile phones into court and text questions to the court were rejected. A modified direction was given at the outset to encourage jurors to wait if possible until the end of the session before raising any matters of concern. Notes were to be picked up by gloved hands once the jury had filed out of the court room.
Did it work? Yes. Remarkably well. The formal nature of the court environment lends itself to rules and regulations. We already have many. Additional procedures were soon adopted and became the new norm.
Whilst greater preparation and forethought was required, sitting times lengthened to avoid the rigmarole of trooping in and out in formation and at all times distancing. Word to the wise however: the pre-court loo stop became even more of a necessity as the sitting times lengthened.
In fact, attending the hearings felt far safer and less prone to chance encounters than the average shopping trip to the local supermarket and to the writer’s knowledge, over a month later all parties remain COVID-free.
The outcome? That doesn’t really matter. Justice was done and seen to be done.
The steps referred to above were at the height of the pandemic. But a Crown Court criminal trial was shown to be capable of running smoothly and limit risk in accordance with national guidance.
The trial was a generic criminal matter. Trading standards cases tend to be far more document-orientated, but the procedure could be adopted to a longer trial with more paper and advocates.
The case was heard in the Crown Court but the considerations are the same in the Magistrates’ Court and should be insisted upon.
The mitigation of the risk of infection was always the paramount consideration. The Courts must be exemplars of the social distancing rules and hygiene standards.
The wheels of justice were shown to continue turning even during a global pandemic. But Cardiff Crown Court is the largest court centre in Wales – and due to difficulties isolating jurors in their deliberations (they used another courtroom) only one trial could take place at any one time.
Whilst more may be possible as the social distancing requirement halves, there is estimated to be currently a backlog of over 51,000 outstanding criminal trials and that may rise to 66,000 within three months, which one trial per court centre is not going to reduce.
Final thoughts: hope and pray, as we did, that four weeks into that multi-handed fraudulent trading trial a juror doesn’t start to cough.
About the author
Alexander Greenwood has been a lawyer for over 25 years, is a grade 4 prosecutor and member of the Fraud panel. He is a tenant at Apex Chambers, Cardiff and door tenant at Gough Square. He specialises in fraud and regulatory work, regularly lectures to CTSI members throughout the country and is on the editorial and precedents committee of the Pink Book.