The Government’s response to COVID-19: human rights implications Contents

8Access to Justice

Investigatory Powers

181.The CA 2020 creates regulation-making powers which allow for the appointment of temporary judicial commissioners (to operate under the Investigatory Powers Act 2016) and for variation of the time limits for judicial approval of urgent warrants issued under the Investigatory Powers Act (IPA).

182.The Investigatory Powers Commissioner (IPC) is the independent overseer of almost all investigatory powers. He is supported in this role by 15 Judicial Commissioners (JCs), all of whom have held, or currently hold, high judicial office. The CA 2020 allows temporary JCs to be appointed at the request of the IPC, in the event that there are insufficient JCs available to operate the system under the IPA. To exercise this power, the IPC must notify the Secretary of State that there are too few JCs available to carry out their functions effectively, and that this is a result of coronavirus. Appointments are limited to a duration of no more than six months (and must not exceed 12 months in total).229

183.Under the IPA, a warrant has to be issued by the relevant Secretary of State and then approved by a JC for it to be lawful (other than urgent warrants, which are valid for only short periods of time). The CA 2020 allows the Secretary of State, at the request of the IPC, to vary the time allowed for urgent warrants to be approved.230 The power allows for the maximum time limit for approving an urgent warrant to be increased from three days to 12 days and the lifespan of the urgent warrant to increase from five days to 12 days.231 Following the end of the time limit, the urgent warrant must be approved by an independent judge.

184.The judicial approval of warrants is a necessary safeguard against unjustified interference with private and family life (Article 8). Extending the period of time before judicial approval of an urgent warrant is required could prolong any unjustified interferences with Article 8. As part of the review process, the Government should provide to Parliament data on how many urgent warrants have been used during the emergency period, and the timeframe within which judicial approval was obtained. The Government should also inform Parliament whether the Investigatory Powers Commissioner has made a request that the Secretary of State vary the time allowed for urgent warrants, and the outcome of this request.

Expansion of live link technology in court proceedings

185.The CA 2020 expands the availability of video and audio link in court proceedings.232 This allows “eligible criminal proceedings” to take place by phone or by video.233 There are important limitations, for example: no criminal trial may be conducted solely by audio link and only summary trials can be heard solely by video link and only where the parties agree;234 any person may participate by live link apart from a juror;235 the court must be satisfied on the balance of probabilities that it is “in the interests of justice” for the person participating by live link to do so;236 parties to the proceedings must have an opportunity to make representations before the decision is taken, as well as the “relevant youth offending team” where the defendant is under 18 or being treated as being under 18.237

186.Further, the CA 2020 seeks to ensure open justice is preserved by providing for public participation by video link. However, Transform Justice states that they have experienced difficulties in accessing hearings digitally: “We have contacted the court, been asked why we want to “observe” cases and been told that the judge concerned needs to explicitly give his/her permission. This has not been forthcoming.”238

187.Whilst we welcome the expansion of technology to overcome the severe challenges facing the justice system, we are concerned to hear of these barriers to the public accessing court hearings. Virtual public galleries must be implemented to ensure scrutiny of criminal proceedings and respect for the principle of open justice. Public access should not be subject to the permission of judges. This is an important safeguard to ensure the right to a fair trial is being upheld.

188.There are also ongoing concerns regarding the availability of technology, the quality of technology, and accessibility for those who may not be able to use the technology (for example, older and disabled people).239 It is not clear whether special measures are being implemented for such persons. It is essential that persons with learning and communication impairments, particularly children, can participate effectively in the trial process. Effective participation is a key component of the right to a fair trial. The Justice Committee has recommended that the Ministry of Justice conduct an urgent review to evaluate the effect of Covid-19 measures in the Magistrates’ Courts and the Crown Court.240 In the same report, the Justice Committee recommends that HMCTS set out a policy to ensure that court users, particularly those who may be vulnerable, are able to follow and participate in the virtual process.241

189.In written evidence, the UK National Preventative Mechanism notes that video remand hearings and virtual courts are having an impact on the time detainees spend in police custody: both the Independent Custody Visiting Association (ICVA) (England and Wales) and the Northern Ireland Policing Board Independent Custody Visiting Scheme have reported an increased length of stay in custody for some detainees.242 The ICVA has also reported concerns regarding detainees giving informed consent for video link legal advice and, in particular, the ability of Appropriate Adults to be present to support effective informed consent for vulnerable detainees.243

190.The expansion of live link technology in courts is to be welcomed as a means of avoiding delays in the criminal justice system. However, if such measures are to continue, the Government must ensure that digitally excluded persons, or those who are vulnerable, can participate effectively and are not disadvantaged. The technology must also be of sufficient quality to ensure a fair trial. It is crucial that defendants are provided with a direct and confidential line of communication with their representatives, just as they would have in person in court. The public must also be able to attend virtually to ensure the principle of open justice is preserved and to allow for scrutiny of proceedings.

191.There have also been significant delays within the criminal justice system. Since the imposition of the lockdown, there has been a drastic reduction in in-person hearings and jury trials. This has served to exacerbate the backlog of criminal cases that pre-dated the pandemic. This is particularly problematic where people may be remanded into custody. The CPS has issued a Covid-19 protocol concerning custody time limits (CTLs) to accommodate the inevitable delays, which sets out a temporary framework for handling cases during the pandemic.244 CTLs safeguard defendants by preventing them from being held in pre-trial custody for an excessive period of time. The Prosecution of Offences Act and Regulations governing CTLs require the prosecution to progress cases to trial diligently and expeditiously.245 The pre-Covid limit for summary and either-way offences was 56 days, and for indicatable offences, 182 days, subject to applications for extension if there is “good and sufficient cause” and the prosecution has acted with all due diligence and expedition.246 Extensions of CTLs are therefore possible on the grounds that the pandemic constitutes a good and sufficient cause. Given the significant reduction in the number of jury trials, the length of pre-trial detention for defendants remanded in custody is therefore likely to be much longer than the current time limits.

192.The Children’s Commissioner for England is concerned that children who are remanded to custodial institutions are effectively serving time in prison without a sentence. She notes particular concern for children awaiting trial who are close to turning 18: “If they are not tried before their 18th birthday they will be tried as adults. These children will not benefit from the youth justice system, which is more rehabilitative. They will be given adult sentences (which are much longer) despite having committed the crimes as children. They will also lose their right to anonymity.”247 Just Kids for Law reports that they are aware of many cases where children, both on remand and on bail, have had their hearing dates adjourned to late 2021.248 The Justice Committee has also raised these concerns and has recommended that the Ministry of Justice should set out how many young defendants find themselves in this position and what is being done to address the issue.249 Given these significant delays, where children turn 18 between the commission of the offence and their sentencing, they should be dealt with as children in the youth courts.

193.On 7 September, the Government laid before Parliament the Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020, which are due to enter into force on 28 September. The new Regulations extend the existing custody time limits for cases awaiting trial in the Crown Court from 182 days to 238 days. This means accused persons may now be held in pre-trial detention for almost 8 months.250

194.Various proposals have been considered to address the backlog; restricting the right to a jury trial to the most serious offences; replacing juries with a bench composed of a Crown Court judge and two magistrates;251 reducing jury numbers; and opening new venues for trials.252 So far, some courts have reopened on the basis of social distancing measures, and ten ‘nightingale courts’ have been established, which may ease the backlog slightly.

195.The backlog will continue to increase as arrests continue and individuals are charged with offences. Just for Kids Law, CRAE and the Youth Justice Legal Centre note that they are continuing to see many children arrested for minor offences and being held for long periods in police cells.253 They suggest that officers must ensure that children are detained only where absolutely necessary or as a last resort, in line with the UN Convention on the Rights of the Child.254

196.These issues engage Articles 5 (right to liberty) and 6 (right to a fair trial) ECHR. Article 5(3) ECHR provides that “everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power”. Article 5(3) is aimed at ensuring prompt and automatic judicial control of police or administrative detention. Article 5(3) provides that “everyone arrested or detained … shall be entitled to trial within a reasonable time or to release pending trial … ”. Article 6 provides that, “in the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time.”

197.Whether a period of time spent in pre-trial detention is reasonable must be assessed on the facts of each case and according to its specific features. Continued detention therefore can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the respect for individual liberty. What constitutes a fair trial for the purpose of Article 6 must also depend on the circumstances of the particular case. Public interest concerns cannot justify measures which extinguish the very essence of a defendant’s rights.255

198.Whilst it is clear that the European Convention provides that defendants are entitled to appear before court within a reasonable time period, determining what is “reasonable” in the midst of a public health emergency is difficult. Delays are inevitable, and the margin of appreciation afforded to states during the pandemic is likely to allow for significant leeway given the exigencies of the situation, but prolonged pre-trial detention must be avoided. As trials are being adjourned for significant periods of time, extensions to custody time limits must be reviewed to ensure that persons who have not been convicted are not being held in detention for lengthy periods of time. All defendants have the right to a timely trial before an independent and impartial tribunal and this right must be respected and provided for as speedily as possible.

229 CA 2020, Section 22(2)

230 CA 2020, Section 22(1)

231 CA 2020, Section 22(4)

233 This includes hearings in the Magistrates Court, Crown Court or Court of Appeal

234 CA 2020, Schedule 22(8)

235 CA 2020, Schedule 22(2)

236 CA 2020, Schedule 22(4)

237 CA 2020, Schedule 22(4)

238 Transform Justice (COV0013)

239 Equality and Human Rights Commission, Inclusive justice: a system designed for all, April 2020

240 Justice Select Committee, Sixth Report of Session 2019–21, Coronavirus (COVID-19): The impact on courts, HC 519, 30 July 2020, para 65

241 Justice Select Committee, Sixth Report of Session 2019–21, Coronavirus (COVID-19): The impact on courts, HC 519, 30 July 2020, para 74

242 UK National Preventive Mechanism (NPM) (COV0145)

243 The Independent Custody Visiting Association, Scheme Feedback Summary, May 2020

246 Prosecution of Offences Act 1985, Section 22(3)

247 Children’s Commissioner for England (COV0143)

248 Children’s Rights Alliance for England/Just for Kids Law (COV0148), p7

249 Justice Select Committee, Sixth Report of Session 2019–21, Coronavirus (COVID-19): The impact on courts, HC 519, 30 July 2020, para 23

251Legislation to abolish some jury trials could be passed within weeks”, The Law Society Gazette, 23 June 2020

25210 ‘Nightingale Courts’ unveiled”, HM Courts & Tribunals Service, Ministry of Justice, and The Rt Hon Robert Buckland QC MP, 19 July 2020

253 Children’s Rights Alliance for England/Just for Kids Law (COV0148), p6

254 Children’s Rights Alliance for England/Just for Kids Law (COV0148), p6

Published: 21 September 2020