How justice in a pandemic could disproportionately affect the BAME community

A gavel crushing a silhouette

25th August 2020

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Five hundred thousand… the disconcerting number of cases currently waiting to be heard in the criminal courts of England and Wales. That is half a million cases in which people are waiting for justice to be delivered. Even more unsettling is that around 430 of the cases are murder cases and over 3000 are rape cases. In other words, there is an exigent amount of cases that are not low-level criminal damage or careless driving, but cases where victims, and indeed some defendants, are desperate for some morsel of reassurance or closure. 


Pandemic pile-up or policy problem?


One can justifiably point to the global pandemic as a cause of the pile-up, with the number of outstanding cases from March to May growing by 41% in the magistrates’ courts and 53% in the Crown Court. However, the truth is that the inconvenience of a nationwide lockdown is just the latest chapter in a long saga of misfortune that the criminal justice system of England and Wales has endured. A decade of austerity, which involved cutting the justice budget by 25%, has taken its toll on the court system; over half of all magistrates’ courts have shut down since 2010 and the remaining ones now sit on far fewer days. Indeed, in December 2019, before lockdown measures were introduced, the queue stood at 400,000 in magistrates’ courts and 37,000 in the Crown Court. On this evidence, the backlog is a conundrum the government has brought upon itself, with the pandemic acting as exacerbator. 


Juryless trials 


Among the ideas put forward by the justice secretary, Robert Buckland, for clearing the backlog, the most notable and controversial suggestion is to conduct trials for either-way offences without juries. Either-way offences are the intermediate class of less serious offences that can be tried either in a magistrates’ or crown court. The obvious benefit of removing a dozen people sitting in close proximity is that it would be easier to adhere to social distancing guidelines during trials which in turn reduces the risk of the coronavirus spreading. It would also allow trials to be conducted in existing courtrooms rather than having to find bigger, more spacious venues. Buckland has estimated that removing juries from trials could extend the capacity of courtrooms by 40%.


On the other hand, abandoning trial by jury, be it temporarily, carries with it some menacing risks, especially for the BAME community. The alternative to trials by jury for either-way offences is having the case heard by one judge and two magistrates. This seems unobjectionable at first, but things become murkier when one finds out that only 11% of magistrates are BAME and only 7% of judges are non-white. This is not to say that the criminal justice system will suddenly become actively prejudiced towards BAME defendants, but judges, as impartial as they try to be, make decisions partly based on their life experiences. Needless to say, the experiences of a predominantly white judiciary differ greatly to those from a BAME background. For example, 75% of senior judges attended Oxbridge and 60% were privately educated. In comparison, only 7% of the population are privately educated. 


The randomness of juries has always existed to give citizens the chance to be judged by their peers with as little constitutional bias as possible and as Lady Hale, former President of the Supreme Court, aptly put it, it is important that the public feel that judges are “our judges” and not “beings from another planet”. Thus, put plainly, removing trials by jury could pave the way for unfair and disproportionate outcomes for the BAME community even if that is not anyone’s intention. 


A look at the juryless trials carried out by the Diplock courts in Northern Ireland in the late 20th century provides further reason for caution. In these juryless courts, acquittals decreased from 53% in 1984 to 29% in 1993 whilst acquittals in jury trials remained steady at 48-49% in the same period, suggesting that having a single judge instead of a jury leads to undue harshness on defendants. 


Other possibilities


A less contentious solution that has already been put into practice is the opening of ten Nightingale courts. Like the Nightingale hospitals, these venues provide extra capacity to help alleviate pressure on existing infrastructure. The emergency courts would hear civil and non-custodial crime cases, meaning that existing courts, already equipped with cells and dock facilities, can hear custodial trials. However, though the Nightingale courts are a sign that the government is trying to minimise the impact of the coronavirus on the justice system, the fact that two of the Nightingale courts are courts that have had to be re-opened is a subtle indicator that the government’s extensive closure of courts over the past decade was misguided. 


Additionally, the government has announced a £142 million package to modernise courtrooms for the long term. This builds on the promise of remote technology being used in 90% of post-lockdown hearings but on balance, it is regrettable that it has taken a global pandemic to spur the government into action with regards to making the court system more efficient. 


The bottom line


Increasing the capacity of courtrooms by 40% is a tempting possibility but the BAME community must not be put at risk of disproportionate outcomes for the sake of a quick fix. Juries are a symbol of trust and confidence for the public and to do away with them, even if it is just provisionally, is to put the delivery of justice of this country into the hands of a judiciary severely lacking in diversity.


What then, is the solution? HM Crown Prosecution Service Inspectorate has warned that despite the strides made with regards to remote technology during lockdown, the current backlog could take a decade to clear. This is a foreboding prospect that demands swift and purposeful action; departing from austerity seems to be the sensible move forward because whilst balancing the budget is a worthy macroeconomic objective, the justice system is one area that cannot afford to be under-resourced. After all,  justice delayed is justice denied

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