The Ongoing Discriminatory Danger in Magistrates’ Courts caused by Underinvestment

- Women in Criminal Law Policy Team, Magistrates’ Court Working Group

The long queues outside, and crowded spaces inside, Magistrates’ Courts are far from ‘Covid-secure’. While Cloud Video Platform ‘CVP’ is regularly used in the Crown Court and has been, on the whole, effective in allowing the Crown courts to continue with hearings whilst simultaneously drastically reducing footfall, fully remote hearings remain the exception rather than the norm in the Magistrates’ Court.

Remote CVP hearings are a vital piece of the puzzle in helping the wheels of justice to move again and to ensure that all members of the profession can continue to practise safely and efficiently.

Despite the Lord Chief Justice on 5th January 2021 stating that “facilitating remote attendance of all or some of those involved in hearings is the default position”, the starting point in the Magistrates’ Court remains that advocates attend in person. An application must be made to appear remotely, and it is very hit-and-miss whether that application will be granted. This is particularly the case for the duty solicitor, where Courts usually refuse remote attendance. Further, any application to appear remotely is unlikely to be considered until the morning of the Court hearing. This can be off-putting, leading many advocates to take to road of least resistance, attending Court in person.

Since then, on 17 March 2021, a message from the Lord Chief Justice indicated that, whilst “remote and hybrid hearings will still play their part in managing footfall in courtrooms and public areas” that “over the next few weeks and months…it will be possible and desirable to increase attendance in person where it is safe and in the interests of justice.” This all but confirms that there will be a push to bring back in-person attendance as the default position, including in the Magistrates’ Court.

There are many circumstances, often where the defendant is present, where in-person attendance will be preferable for all involved. The use of CVP during lockdown has not been without problems. However, it has shown that many hearings can be dealt with quickly and effectively over CVP. As one person who contacted us on social media said: “why should a mention take a full day including travel time?” With the resources of Legal Aid solicitors and the junior bar more stretched than ever post-Covid, why should we abandon an approach that prevents advocates sitting around at Court all day, at risk of contracting Covid, for derisory fees? That time can be put to much better use at the (home) office managing ever-increasing caseloads and administrative burdens.

We must not ignore the inevitable discriminatory impact of this on female advocates; caring responsibilities fall disproportionately on women, and juggling those responsibilities has presented particular challenges during the pandemic with reduced availability of childcare and uncertainty around the opening of nurseries and schools.

Is the current position in fact ensuring access to justice? Almost certainly not. CVP is rarely used to facilitate defendants’ attendance either. Whilst it used to be the norm for defendants held in police custody to appear by CVP from the police station, most police forces have now stopped providing this facility due to disputes over funding. This has caused chaos. We are aware of multiple cases where vulnerable clients have been kept in police custody for three days before the Courts have been able to accommodate their attendance. From a lawyers’ perspective, the advocate has also had to attend Court on each of those days, where they have spent the whole day waiting. This is, of course, increasing the footfall in the Court building.

Alternatively, defendants have been diverted to different Courts at the very last minute, with advocates being informed of this change at late notice, if at all, meaning that they spend several hours waiting at the wrong Court.

These issues are not limited to Courts, the CVP system affects prisons too. The limited number of CVP slots with prisons have to be shared between the Crown Courts, Magistrates’ Courts and legal conferences. It can take many months to secure a video link to a prison, which severely hampers the preparation of cases and limits defendants’ access to legal advice.

We have had a report from one member that the lengthy wait for a video link conference with a client in prison led to a request for a face-to-face visit, which would place that lawyer at personal risk. However, it came to light that face-to-face visits were offered only for one hour starting at 9am, which she could not attend due to childcare arrangements. The firm are now having to consider transferring the case to a different firm as the lack of available CVP slots or flexible face-to-face visits mean that they cannot provide an adequate service to their client.

We have reached a position where lawyers are having to make a real choice between protecting their own health and providing representation to their clients. Further, at an already very testing time, the lack of CVP is indirectly placing an additional strain on firms. How much more can we take? The profession is on the edge and, unless the system is given the funding it requires, and lawyers are trusted to know when it is appropriate for them to appear remotely, many more firms and individuals will fall as collateral COVID damage.

There is of course a simple solution but it requires investing in the justice system and prioritising the safety of prisoners and their legal representatives, something that has been severely lacking to date.