COVID-19 and the transformation of the justice system

Already, COVID-19 has had a significant impact on the UK’s justice system. Court procedures have been disrupted, creating a huge backlog of cases, while the high court and court of appeal have turned to live links to conduct civil proceedings.

However, there have been further consequences. Aware of the legal system’s dire financial situation, the Ministry of Justice (MoJ) recently pumped £5.4 million into law centres and legal advice charities. However, professional legal bodies such as the Community Law Partnership in Birmingham, have said they are struggling to keep afloat, and warn that they may potentially face bankruptcy without further financial support.

Meanwhile, prisons across the UK struggle to cope with the added pressures of the virus. At present, only 57 out of 4,000 eligible prisoners have been released early as a result of emergency measures. Consequently, prison charities and think tanks alike have called for radical reform.

Now, the legal sector looks ahead to what the justice system might look like after the virus is entirely contained and the UK-wide lockdown lifts completely. After all, COVID-19 has revealed serious issues rooted deep within the system that can not be ignored. Others question whether changes instigated by the virus will be retained in a post-COVID-19 landscape.

The legal sector hit hard

The virus has hit the legal sector hard, with many firms struggling to sustain themselves. A decade of austerity measures has already forced criminal solicitor firms into a financially troubling situation. Now, as firms face closures, and the backlog of criminal cases rise, there are fears that the criminal justice system will be unable to function.

According to a study conducted by the Bar Council into 145 chambers, a shocking 67% of criminal chambers believe they will go under within the next three to six months. Meanwhile, Augusta Ventures found that out of 40 LLPs, 55% were unable to cover a month’s operating expenses. On top of this, 38% of those polled expressed their inability to deliver a month’s salary bills. Despite their financial struggles, with a significant decline in legal cases and empty offices, firms are still expected to pay business rates.

Further to this, The Law Society recently conducted a survey, which forecasts that in a worse-case scenario up to 5,000 high street law firms in England and Wales could close as a direct consequence of the virus.

Speaking about the dangerous situation many firms have found themselves in, Simon Davis, President of the Law Society, said: “The shock to the legal services sector has been sudden and severe. There are widespread concerns over liquidity as firms face a dramatic plunge in income with work falling away. Although a firm may be open for business, this does not mean it is business as usual. Residential property transactions have ground to a halt. Reduction in court hearings has massively impacted on the amount of work available – while social distancing and the lack of face-to-face meetings is causing difficulty delivering in other areas, such as the execution of wills”.

Speaking about the need for more financial support from the government, as well as the necessity of restarting criminal cases, speaking to The Guardian, Rosaleen Kilbane from Community Law Partnership in Birmingham, said: “Our costs are fixed. We can only last a few months. A lot of our clients don’t have the internet at home”.

Changes to the way courts function

Aside from struggling law firms adapting to the virus, UK courts have been forced to explore technological innovations to ensure the continuation of some trials. This has been permitted through the Coronavirus Act 2020, which expanded the use of live video and audio links in courts.

Utilising video and audio technology, numerous family law cases have now been conducted through remote trials. According to HM Courts & Tribunals Service (HMCTS), since 7 April, between 85% and 90% of cases have been held remotely. On 8 April, the highest recorded figure for hearings using audio technology was witnessed, with 3,400 in one day.

However, while there have been numerous successful cases using video and audio links, some have warned that remote trials should not continue beyond the crisis. Mr Justice MacDonald, Deputy Head of International Family Justice, recently stated in an International Academy of Family Lawyers webinar that there have been “difficulties”. Expanding on this, he said: “Perhaps most acutely those arising from the loss of that direct human connection that it is now clear so many see as the keystone in our administration of family justice”.

A survey by the Nuffield Family Justice Observatory on behalf of Sir Andrew McFarlane, found that many who had experienced remote hearings agreed with Justice Macdonald. Reportedly, many of the respondents found it “extremely difficult” to conduct the hearings with  “the level of empathy and humanity” required in the family justice system.

The virus reveals the need for reform

While some UK courts have found ways to effectively navigate the crisis, the penal system has struggled significantly. Overpopulated, dirty and poorly managed, UK prisons were already at breaking point. However, the virus has highlighted just how precarious the situation really is.

According to MoJ, the prison estate should not house more than 75,452 people. At present, the UK’s prison population is 80,102. Reform UK says that currently 70% of prisons hold more inmates than they were designed to.

As a result, the UK currently has the highest incarceration rate in the whole of Western Europe.This is despite the fact that crime rates have declined in recent years. The Crime Survey for England and Wales (CSEW), for example, recently reported a 5% decrease by the end of December 2019.

Further to this, Public Health England’s report on the current situation stated that “significant threat levels” remain in prisons and that “in the absence of a vaccine or effective treatment, risks of large outbreaks in the prison estate will remain”. Subsequently, with an ageing prison population, and thousands of high risk prisoners with serious underlying health conditions, it is apparent that significant reform is required.

As other parts of the legal system embrace technology as a way of adapting to the virus, many have suggested that it is time for the criminal justice system to do the same. Some steps have already been made in this direction.

On 19 May 2020, the introduction of “Sobriety Tags,” in England and Wales was announced. The tags will be used in alcohol abstinence orders as part of the offender’s community sentence. This takes the place of a prison sentence, and according to Crime, Policing and Justice Minister Kit Malthouse MP, it will be an effective form of rehabilitation. Reflecting on the changes, he said: “Alcohol-fuelled crime blights communities and puts an unnecessary strain on our frontline services. Smart technologies like sobriety tags not only punish offenders but can help turn their lives around”.

However, much more needs to be done, as per the recommendation of the Lord Chief Justice three years ago. Clearly, more workable alternatives to prison sentences for eligible offenders are required. And while reintroducing the aborted legislation to extend Home Detention Curfews (HDC) has been discussed, the government estimates that this would only reduce the prison population by 500.

Final thoughts

The UK’s justice system has had to significantly readjust itself in the wake of unprecedented change. With this, the potential for radical reform has been brought forward. Whether it’s reducing the prison population by introducing more community sentences, or making effective use of technological innovations within courtrooms, positive change can be delivered if we learn from the virus. However, a bleak forecast from Law Society President Simon Davis, does not instil hope. According to Mr Davis: “Austerity is not ending in the justice sector,” and he warns that  “proper investment” in legal aid services is required to ensure that functionality within the sector improves. Looking forward, one can only hope that the government refocuses its efforts on positively transforming the justice system, and does not put its head back in the sand.