Law Society calls for clear roadmap to courts' recovery 

The Lord Chief Justice, Lord Burnett of Maldon, announced yesterday that it will be “possible and desirable” to increase attendance in person at court over the coming weeks and months, “where it is safe and in the interests of justice”. However, the Law Society of England and Wales has called for clarity on plans to tackle the court backlogs, amid concerns for court users’ safety.

The challenges faced by the courts during lockdown have been widely reported. As of the week ending 21 February, there were 56,875 outstanding cases in the crown courts and 476,932 in the magistrates’ courts. 

Lord Burnett acknowledged that while the use of technology has been advantageous over the last year, “in some circumstances, it can also have the effect of slowing down work”. He said that courts must once again “adapt” to facilitate the return to in person court appearances, which he described as “important to maximise the throughput of work.”

Lord Burnett said that “remote and hybrid hearings will still play their part in managing footfall in courtrooms and public areas” but that “the interests of justice are wider than the circumstances of the individual case and include the efficient despatch of business in the interest of dealing with cases in all jurisdictions expeditiously.”

He added that, to ensure the courts can return safely, those attending court “must continue to follow the guidance on social distancing, hand sanitising, the wearing of face coverings and any local arrangements.” 

However, Law Society president, David Greene, said: “Members’ safety concerns have been reinforced by London’s Isleworth Crown Court failing a covid safety inspection by the Health and Safety Executive.” 

He added: “Public Health England have carried out inspections of the cell areas at only two crown courts since May 2020 and staff at two crown courts voted to strike over covid-19 safety concerns.”

The Law Society has written to HM Courts and Tribunals Service (HMCTS) emphasising the need for clarity over future plans and the need for increased capacity. 

Greene asked: “What social distancing measures will still be in place in courts? When are the courts expected to return to full capacity? What are the long-term plans for investment in Nightingale courts?”

He expressed concern over “the risk of a third covid wave in the autumn” and reiterated “the importance of additional capacity, not only from a safety perspective but also to ensure the growing court backlogs can be addressed.”

Greene commented: “Backlogs mean that justice is being delayed for victims, witnesses and defendants, who have proceedings hanging over them for months if not years, with trials now listed for 2023. 

“We have supported the opening of Nightingale courts to help tackle the backlog, but we were recently made aware of the closure of a venue, with a further closure due at the end of March, as a result of the licence agreements ending.” 

Greene cautioned: “If swift further action is not taken to increase capacity in a meaningful and safe way, case delays will continue to increase and more and more victims, witnesses and defendants will be denied access to justice.”

Greene also added that it is “vital” that no “artificial restriction on the number of judicial sitting days, as happened prior to the pandemic” be enforced, citing this as “a significant contributor to the current backlog.”

Vicky Biggs, a commercial litigator at Myerson Solicitors LLP, echoed Greene's comments about delays: "The covid-19 pandemic has seen us all face challenges and the courts are no exception. Whilst the courts have been able to adapt in terms of using new technology - for example, BTMeetMe and Microsoft Teams - to ensure court hearings can go ahead, it is unfortunate that the pandemic has resulted in an increased backlog of cases.

"Unfortunately, the courts are experiencing delays, including listing matters for hearings and delays with court paperwork, which is understandable given the unique circumstances we all find ourselves living in at the moment."

Biggs suggested that "extending court opening hours, or setting up more Nightingale Courts" may assist with clearing the backlog. She also commented that "A future for both remote and hybrid hearings may also help to manage court timings and footfall numbers within courtrooms."

She also acknowledged the impact on litigants: "It is...important to remember the impact this may be having on clients and users of the court. Claimants may be frustrated at court delays and be keen to progress their claims; defendants may think differently and be glad that progress is slow."

However, Biggs highlighted that positives may be drawn from the situation: "Any delays in the court system also allows time for parties to try and resolve their disputes through alternative dispute resolution, for example, mediations, which can take place remotely and have a high success rate in settling matters."