On Saturday afternoon, without any forewarning, the Government placed London and parts of the East and South East into more stringent lockdown measures. Everybody in these Tier 4 regions must stay at home. Everybody except users of the criminal courts in England and Wales. Despite the sharp rise of COVID-19 cases in these areas, most courts are operating a ‘business as usual’ approach.

Legal Sector Workers United stands in solidarity with those who are forced to attend unsafe courts during one of the most serious times in the pandemic and calls upon HM Courts and Tribunals Service (HMCTS) to re-assess the operation of courts in Tier 4 areas.

In the nine months that have passed since the first national lockdown, HMCTS have introduced a range of measures to create COVID-secure courtrooms. However, LSWU members know that the majority of court buildings in Tier 4 areas are anything but. As workers in the Magistrates’ and Crown Courts across the country, we have seen the lack of PPE provided to our clients in the cells, overcrowded public areas, and at-risk defendants and families left to wait for hours in these conditions.

We also know that the risks are very real. This is evident in the repeated outbreaks of COVID- 19 in court buildings. In the last two days, 17 people have tested positive for COVID-19 after an outbreak at the Oxford Combined Court Centre. Oxford is not in Tier 4.

Courts are plainly not COVID-19 secure. Defendants, witnesses and legal sector workers are at heightened risk of contracting the virus both these unsafe court buildings and from travelling to them. Given the number of COVID-19 cases in Tier 4 regions, it cannot be justified to call people to court for non-urgent matters during this period.

Inevitably HMCTS’s ‘business as usual’ approach disproportionately affects junior legal sector workers. Pupil barristers, for instance, cover a substantial number of hearings in busy Magistrates’ Courts for little pay. But even if they have safety concerns, they may not feel able to turn work away given their precarious position in chambers.

HMCTS’s misguided approach also has a disproportionate effect on court users from Black, Brown and other Racialised Groups as well as those with underlying comorbidities. For people who we know are at a heightened risk of contracting the virus, or who face disparities in treatment and health outcomes, forced attendance could amount to significant or even fatal harm.

The solution is simple – minimise the number of people in criminal courts at this time. 2020 has seen the roll out of virtual hearings via the Cloud Video Platform (CVP). There are many contexts where video hearings should be discouraged, such as where they impede access to a fair hearing. Nonetheless, this technology can greatly assist in non-complex and administrative criminal matters.

However, there is still no uniform approach to CVP hearings. On Monday 21 December, a pupil barrister from a Tier 4 area was sent on an 8.5 hour round trip to court in Wales for an administrative hearing. After her clerks requested that she attend court remotely, court staff informed them that they did not ‘see a problem’ and confirmed that in-person attendance was necessary.

On the same day, another pupil barrister applied to have a trial adjourned due to safety reasons in a Tier 4 area. After refusing the application, the court made all those involved in the trial wait for four hours and then adjourned the case due to lack of available court time. This is woefully inadequate, unnecessary and unsafe for all those involved. HMTCS should adopt a system-wide approach that anything non-urgent can be administratively adjourned until such time when it is safer to attend.

Indeed some cases, such as overnight custodies, will need to continue in Tier 4 areas and will often require defendants and workers to be physically present. But by prioritising only these matters, and improving COVID-compliant practices, HMTCS could significantly reduce the risks involved for us all.

COVID-19 has presented a sinister opportunity for the further erosion of safe and healthy working practices within our criminal courts. It has laid bare the disregard for the safety of court users as well as existing inequalities, injustices and failings embedded into the entire criminal justice system. LSWU rejects this irresponsible ‘business as usual’ approach, rejects the suggestion that our criminal courts are now ‘COVID-secure’, and calls for HMCTS to reassess the operation of court buildings in Tier 4 areas.

Editor’s note: In response to this article, the Ministry of Justice made the following points: 

• ‘Ministers reiterated over the weekend that the justice system would remain open where it was necessary for physical hearings to be brought on, including in Tier 4 areas. This is also reinforced in the GOV.UK guidance on Tier 4 areas to sectors where presence in physical locations for work is deemed essential. 
• Public health experts have confirmed that existing COVID-secure arrangements remain sufficient in dealing with the challenges provided by the new mutation of the virus. We continue to act on the standards, advice and guidance available, which is explicit and up-to-date.
• Our buildings are not considered close contact settings and the measures we have put in place, as part of our COVID-19 risk management arrangements, are extensive and satisfy public health guidelines for a COVID-secure environment.
• These are alongside the ongoing investment into our courts system to bolster the national recovery effort.’