Transcript: Episode 31

Has justice been served?

SUMMARY KEYWORDS

people, judges, ucl, court, problems, hearings, cases, criminal courts, jury trials, justice, service, pandemic, remotely, jury, hazel, free legal services, silver linings, agitating, lockdown

SPEAKERS

Cheryl Thomas, Hazel Genn, Vivienne Parry

 

00:00

Hello and welcome to Coronavirus: The Whole Story, a podcast that explores the groundbreaking interdisciplinary research about the pandemic and its impact that's taking place at UCL. My name is Vivienne Parry, I'm a writer, broadcaster, UCL alumna, and your host to this award-winning podcast knack locking up for heaven sake, it's 31st episode. In this week's episode, we'll be discussing the ways in which the pandemic has bought the legal world to a halt, and the efforts to get it back up and running again. We'll also return to a subject familiar to listeners how the pandemic has highlighted pre existing inequalities, as well as creating a whole heap of new ones, particularly with regards to law and social justice, and what lack of access can mean for people's health. I'm joined today by Professor Cheryl Thomas QC, a professor of judicial studies in the Faculty of laws. Cheryl is the country's leading expert on judges and juries, and a pioneer in research into jury decision making diversity and fairness. She is a Director of the UCL's Jury Project, co-director of the UCL Judicial Institute, and an honorary master of the bench of Inner Temple. My second guest is the peerless Professor Dame Hazel Genn, Professor of Socio-Legal Studies, also from the Faculty of Laws. Hazel is another groundbreaking researcher. Her focus is on civil and administrative justice, and her research projects have led the way in our understanding of how people navigate the legal system. She's the director of the UCL Centre for Access to Justice, and is also co-director of the UCL Judicial Institute, and an honorary master of the bench of Gray's Inn. I suspect that entitles you both to wear a lot of wigs.

 

01:49

Definitely.

 

01:51

Cheryl could you start us off by just giving us a brief overview of how Coronavirus and the lockdowns have disrupted the legal system in the UK?

 

02:01

Well, I suppose one of the biggest difficulties when lockdown happened was the sort of chaos that the courts were thrown into the criminal courts, while some of them remained open jury trials were suspended. And that left a very large number of people, for instance, on remand, which means they were charged they were in prison, but their trials had not started and left them has left them in a great Limbo about when their cases will be resolved. So on the criminal side, we have a very large backlog of cases, that's only been exacerbated by COVID. It's thrown the legal profession into a bit of chaos, because for many months, many barristers and solicitors had very little to no work at all. And that's really challenged the future of many barristers, chambers and solicitors firms, it's also caused huge problems for people who are witnesses or have their cases pending in the civil courts, which Hazel I'm sure we'll talk about. So just imagine if you were involved in some case, and you were expecting it to come up and be resolved in April or May, you are now possibly looking at that not happening for at least until 2022.

 

03:18

And just to be clear, if you are on remand, you could be in a situation where you go to trial, you're found innocent, and you spent perhaps up to two years in prison,

 

03:30

well, not two years. So there is a time limit, custody time limit that someone can be held on remand before their trial has to come up. And that's approximately six months. But the government has actually increased that to approximately eight months, in order to ensure that they didn't have to release a very large number of people who were on on remand. But you're absolutely right. You could be in prison, pending trial, innocent until proven guilty, you may come to court, you may be found not guilty. And you could have spent up to eight months in prison, but

 

04:05

it's a huge impact. Just take us through what's been the impact of switching to virtual court hearings, because we've now gone into them. Is it as fair? Can it be as fair? Well,

 

04:18

I'll speak a bit about what's happening in the criminal courts. And it's a big question about whether it's fair or not. I don't think that we have a definitive answer to that. But the you know, the reality is, is that this justice, and the court process is not something that we are used to being delivered in a virtual way. There's many aspects of what happens in court. That happens simply because all of the parties are there together in one place that can actually achieve a faster, more effective resolution of cases when that happens. But when the lockdown happened, and the Coronavirus Act came into effect on the 25th March, the courts had to find ways to keep functioning. And that meant the introduction of remote hearings, the use of sometimes telephone but more likely audio visual connections between whether it's the prison's legal counsel, the courts, so the judges in the courts, all of those things were pretty radical for for most of the courts. And I think they've, they've done a pretty good job in trying to keep the show on the road over the last few months. But there is serious and growing concerns about the impact on the quality of justice for remote hearings.

 

05:39

Hazel, I wondered if you thought whether virtual court hearings were easier or harder to navigate for citizens? Well, I

 

05:50

think I think it depends very much on who you're talking about, who you've got in mind. So I think in certain situations are some of the rapid reviews that have been done, show that, you know, commercial, people who were involved in sort of commercial disputes, who may be used to going to court and have got good representation and have got good facilities and good capabilities can probably manage quite well, my concern, because in access to justice terms, I'm very much interested in the challenges that face low income disadvantaged and vulnerable groups, I've got to say that for those users or potential users of the justice system, I think that telephone and remote hearings can be a real and incredible challenge. I mean, first of all, you've got to have equipment in order to be able to participate. So you've got you know, you need a telephone that's got some money on it, or you need broadband, if you're doing it like that, if you're using broadband, you've got to have reasonably high levels of literacy. And how do you communicate with your one of the problems is how parties communicate with their legal advisors, when nobody's in the same room, I've heard of lots of examples of people really struggling to manage when they're trying to do either a telephone hearing, or some kind of video hearing using an iPhone or something like that, when they're sitting in their kitchen. And their advisors, they're lucky enough to have an advisor is somewhere completely different, and the judges somewhere else. And we're there lots in fact, I heard one story about somebody being involved in here. And while they were sitting in their car, because of they were talking on my phone, in the car as the hearing was going along. I mean, there are I know that there have been heroic efforts by the judiciary to try and make things work. But from the point of view of users, I think it is an enormous challenge. And as Cheryl said, we really don't know what the outcome is, in terms of justice. You know, we might know how easy or difficult people have found it, to use the system to participate in the system, to feel involved and to understand what's going on. But we don't have information about what the impact has been on outcomes, and in terms of substantive justice. And I think there's a lot of work that needs to be done on that in the future.

 

08:08

And it's very difficult to even find privacy to be able to do this in your household. And, you know, you may have lots of other people in the household wanting to use the broadband for their, you know, their homework, their jobs. It's all extremely difficult for people. Absolutely, I

 

08:27

have to I met my husband turn off the turn off his computer, if I have to do a meeting at work, you know, because the number of times that I've been cut off has been astonishing.

 

08:37

I wonder, though, that just to look on the on another side of it, because what we've come across often in these episodes is that there are some silver linings. And we've seen in medicine, for instance, the, you know, rapid change to remote consultation, which was probably happening anyway. Is there a similar trend in law, Cheryl, that this has been something that's been adopted, that actually probably would have been adopted anyway? Well,

 

09:05

I think we're we're looking for the silver lining at the moment. And we're trying

 

09:09

hard.

 

09:10

We are trying and if I can just I'll just speak to to the criminal courts on this. Because just to say the UCL Judicial Institute has been asked to do a review of the impact of remote hearings in the criminal courts. And we've been doing some research with the judges and their experience over the last six to eight months. And the really interesting thing is that while they they have told us how many and how many different types of hearings that they have been technically and physically able to conduct remotely. Almost all of the judges say that they believe that the remote hearings are negatively affecting the quality of justice there and and so there are very few types of criminal hearings or cases that I think judges will feel comfort. About in future being completely done remotely, but there are a few silver linings so for instance bail if you're deciding whether someone should have bail or what the bail should be that is generally thought to be something that can be done swiftly and effectively, remotely provided that everyone has a decent connection. This is the other thing. There's two things there's the physical and, and psychological personal interaction between people that is very problematic remotely, but it's the technology as well. So you know, one of the phrases that's being used is the quality of the, the hearing is only as good as the weakest link, technically. And so there's a huge technological issue to be grappled with, in all the courts. But I suppose the one of the silver linings is that it's, it's been a hard and sharp test of the extent to which courts can cope with remote hearings,

 

10:57

when we were talking about fairness, we didn't cover that aspect that you've just mentioned. Now, the kind of the body language, how important is getting to it, particularly for jurors getting to see the whole of someone's body language in determining fairness?

 

11:17

Well, I think, you know, if we talk about empirical research on this particular issue, we don't have that yet. But what we do have is we can look at some of the research that's been done in other fields and in relation to how people perceive individuals and how they interact with each other remotely compared to face to face. And the business community has done a lot of research on this, because they were some of the first to be conducting their, their business remotely. And there's been some very interesting research that shows that if, if people appear remotely, you're more likely to be influenced by not so much what they're saying, but the impression that they're creating in your mind or how they look or how they present themselves. And if you extrapolate that to a criminal trial with a jury, that is particularly problematic, we want the jurors to be listening to the evidence and what someone has to say, and not being overly influenced by non evidential factors.

 

12:20

Could I just say there's another aspect from the judges point of view that I've heard from one or two judges that I've spoken to in particular, something like family proceedings, which can be very fractious, quite nerve racking, where a judge is perhaps sitting at home, and the parties are each in their own home, so everybody is separated, trying to maintain, and I've heard God say this is trying to maintain control, when you are not all physically present, you can't use the same techniques on a screen that you would use if you're in the court. So it's quite, it's quite challenging for judges to maintain that level of control. So to manage all of the various bits of paperwork that they've got to manage and their communications with representatives. So I think I think it presents difficulties on all sides.

 

13:10

Yeah, that's a really good point. So and one of the other things that we've been finding is, there's actually physical and psychological impacts on judges themselves. These are people who are now are used to sitting in a courtroom all day, dealing with people exactly as Hazel said, managing parties to the cases and everything else in a face to face physical way they've learned how to do that. They're their expert at it. And now they're having to do that online. And there is a physical toll on them. And actually, some of the interesting things they've been telling us is, we can see that there's quite a number of judges who perfectly understand that this is something they have to accept in the short term. But if this was to be the case, in the long term, they would no longer be satisfied with their jobs and and might consider leaving the judiciary early.

 

14:00

Yes, there was an In fact, there was a judge, a High Court Judge wrote an article that I saw recently, where he was talking about the fact that he was sometimes sometimes dealing judges deal with quite distressing cases, particularly in a child protection cases. And he was saying that there is a real difference between listening to those horrors in court and actually listening to those horrors in and I think it was, there was a headline, sort of bringing that horror at home dealing with that horror at home. Now, that may sound quite dramatic. But actually, these cases do take a toll on judges, and not having that separation between home and your workplace. I think probably, as Cheryl said, over time, would take a considerable toll on judges

 

14:42

or could do so they're a huge impact in all sorts of ways perhaps we might not have even thought of at the beginning of the pandemic, but I want to move on to how the pandemic has affected legal rights in every sense, you know, landlord tenant employment benefits. Family Law, immigration, you know, the whole thing, what's been the impact of not being able to navigate those particular areas of law because of lockdown for people in general, but particularly the most vulnerable, that start off with you, Hazel on that?

 

15:17

Well, I think that those people who might in other circumstances have sought sources of free legal advice that they might have gone into a walk in free legal advice service, in order to get help with, say, filling in their form, if they if they needed benefits, or if they were worried about paying their rent or debt, or they were having trouble at work. So for those people, it's much more difficult. I mean, it was difficult in any case, to get those services because of cuts in legal aid and a lot of provision of free legal services. But it's been even harder as a result of lockdown. But one of the things that concerns me is that things like furlough, things like the moratorium on eviction that we've got at the moment are, in a sense, kind of just delaying what I see as a tsunami of need for advice, that's going to be coming along pretty soon. So what COVID has done is, first of all, to exacerbate the existing difficulties that certain groups in society, were facing the challenges that they were facing, it will be creating new groups of people who previously didn't have any particular legal needs, but are going to now because of loss of employment, or because of loss of income. And so having difficulty over housing, so you've got exacerbated circumstances for those people who were in need in need of legal advice beforehand. And you've got new groups of people who need advice and who are going to find it, but who will find it very difficult to access advice. So it's just more difficult. It's just more difficult than it used to be.

 

16:55

And what's the Centre for access to justice been doing? I've heard that you were banging on UCL door to get it open just quickly as possible.

 

17:04

Yes. Well, because of course when because we hadn't, we had a sort of face to face walk in service. And when lockdown started, we were told that we had to win the original lockdown in March started, we had to very, very rapidly pivot to a remote service, which we did. But of course, many of our many of our clients, traditional clients that would come in, who would have just walked in weren't able didn't feel able to access our services, via telephone or via email, as soon as the restrictions were lifted, and the university began to open buildings. And my wonderful staff were agitating to be one of the first buildings to be allowed to be open so that we could start again, the face to face service. And I'm very pleased to say that the university responded very rapidly to that, and allowed us to do that. And so we are able to run our face to face service, obviously, socially distance, providing safe conditions for our staff, for our students. And for the clients who come in, we have been able to continue, we have continued all the way through the pandemic, to provide that support for people in need. And we will continue to do so. And we can see that the demand and our services will only be growing as time goes on. And as some of these things that are sort of postponing the sort of loss of jobs and evictions, difficulties with housing. Yeah, those are problems that are just building that is waiting to happen. listeners can tell

 

18:29

you that if you're the province, and you've got Hazel and her team agitating on your doorstep, there is no hiding place. Cheryl, I wanted to ask a very specific question of you, which is we've seen that there are, you know, potentially COVID crimes, but actually have there been many people prosecuted through that legislation and have they had fair trials?

 

18:55

Well, interestingly, and probably not surprisingly, the crime rate certainly went down in the initial lockdown as there were not that many people around but it didn't stop some people being charged with with offences under the Coronavirus Act. Unfortunately, that act for a variety of reasons had to be rushed through to come into effect on 25th of March. And one of the problems that happens with rush legislation is those people who have to implement it are often a bit confused by it. And that's certainly what happened with the Crown Prosecution Service, which did charge a number of people with offences under the Coronavirus Act. And it turned out several months later that they had been incorrectly charged they had to withdraw those charges and the people saw a few people had been convicted and had to have those convictions overturned. So there was a lot of confusion about you know what you could charge someone with what they had to what position they had to be in and yeah, so April May and June was was not really a very good time for the Crown Prosecution Service in terms of being It's successfully implementing the Coronavirus Act. There haven't been that many charges in in terms of people committing COVID related offences. So for instance, someone speeding or coughing on someone illegal raves? Well, well, that's a bit different. Yes, I think that's probably one of the areas where people have been fined under the regulations but not charged with criminal offences. So there's there's two ways of dealing with it. You can either find someone for breach of the regulations, or you can charge someone with a criminal act under the Coronavirus Act. But in order to do that, you can only charge someone who is a potentially infected person. So that's not necessarily the case with people who are at raves. I think one of probably one of the largest group of people who've been fined are actually students. So there's some very interesting information that's come out just this week about the number of students across the UK who've been fined by their their own academic institutions for breach of the regulations. I was pleased to see though that UCL did not feature high on the list. No, yes, we've been asked it has been very well behaved

 

21:10

but magnificent, always. Yes. There's no question about it. They're magnificent. Hey, so I wanted to ask, particularly because I know this is something that you are absolutely passionate about. We've been talking about how difficult it is for people to get access to the law and to justice. But you feel very strongly that denial of access in this way, also has an extraordinary impact on health. Tell us a bit more about that.

 

21:42

Well, I think I think that law and health are inextricably linked. And that's not just civil law includes criminal law as well. So being involved in some sort of legal problem, or having some sort of social problem, which is underpinned by legal rights, may well have an adverse impact on your health. So for example, if you're having problems at work, you're having problems over getting your benefits that may might might make you anxious, if you're worried about being evicted from your house, from your home, it might make you anxious, it might mean you can't sleep, it might have an adverse effect on your health, and it might very well affect children in your home. And so that has a negative impact but of course, having an illness. So for example, people who have had COVID, or people who become ill may find themselves in a situation where their ill health creates difficulties for them, or creates entitlements which are underpinned by legal rights, which for one reason or another, they cannot access. So there is so getting advice to be getting advice and support to people about their legal rights and entitlements can both avoid bad things happening and contribute to people's health and well being. So I like to think of and people don't often do this, but I like to think of free legal services as a form of health intervention. And I am very much in favour of trying to better integrate health and free legal services. There are actually many examples in England and Wales and indeed, Scotland have collaborations between healthcare providers, and free legal services, precisely because health care providers understand that many of the people who come into doctor into GP surgeries, talking about symptoms, physical and emotional challenges that they're facing, where doctors understand quite quickly, that there is something underlying that for which medicine, which classic medical intervention isn't going to be helpful. And that actually what they need is something else. And very often, what they might need is advice about how to secure their income, how to secure benefits to which they're entitled. So I'm thinking here, particularly about people on low incomes were disadvantaged or were vulnerable in some way, so that health professionals may recognise that there is a need for another service, but they're not always very good about knowing where how to access that service, or where to send people to, which is precisely why when we set up our little health justice partnership in East London, which was sort of offshoot of the Centre for access to justice, we set ourselves up in a GP surgery so that the doctors could refer patients at particular patients with particular kinds of problems, could refer them to us directly, so that we could help people. And a classic example of this would be and this was indeed, one of the cases that we dealt with was a child with severe asthma problems a baby with severe Asthma problems and skin conditions that derive from the fact that they were living in very, very damp conditions with insect infestations. And the mother had known that that was contributing to her baby's ill health. But there wasn't anything that she thought she could no matter what she tried, there wasn't anything that she could do about it. And the GP referred her to us. And we spoke to the local authority. And they reviewed her conditions. And we got her rehouse. Now, no matter how many puffers had been given to that baby, the baby's breathing condition of babies wouldn't have been improved if we hadn't managed to get the rehab. So it's that sort of very practical, the practical kind of partnership between a health professional and a legal professional that can contribute to better health and well being. And I really do think that there are many, many opportunities to integrate those services much better.

 

25:56

I predict that for the future, we will think of justice being a part of the social prescribing set of GPS. Cheryl, what do you think the future holds post COVID. And there will be a post COVID listeners there will be we will get there. Are we going to go back to jury trials? And how are we going to keep juries in that case safe?

 

26:21

Well, I am pleased to say that we have already gone back to jury trials, the judiciary and the court service together really had a fantastic heroic effort to get jury trials back up and running. And they started back up in June. We are now at the point where there are as many courtrooms operating jury trials as there were when COVID struck. But there there is a very large backlog of cases in the Crown Court that have nothing to do with COVID. So there was a huge backlog when COVID struck, things have got a bit worse because jury trials were paused for three months. But the backlog is due to government cuts to the criminal justice system, and the court over 10 years. So now I think that my concern is that there is a threat to jury trials in future. Because the argument is that well, we've got 50,000 cases that need to be dispensed with in the in the Crown Court. How can we possibly do those with jury trials? Well, it'll take us years to catch up. So

 

27:28

that's, and we've already had a hint of that haven't we're with somebody saying that actually, we can dispense with some jury trials.

 

27:36

The there was first there was a suggestion that it should be trial by Judge into magistrates are then trial by Judge alone. One thing I would say is that the judiciary itself and the judges who run jury trials on a daily basis, are not supportive of trying cases by Judge alone with some jury trials are back up and running. And and if if I could end on a positive note, which is the things that the judges are saying to us in the review that we're conducting of the crown courts is that they have many problems in running jury trials, moving people around the courtroom having to use three courtrooms to try one case. But the one problem they do not have is willingness of members of the public to turn up and do their jury service.

 

28:21

Gosh, I think that.. I predict, here's another prediction from me, I predict that we will be told that all of the problems in the court service are to do with COVID. But as you've so clearly laid out, Cheryl, the problems were there before. And we we all need to remember that and agitate for more money to be going into the legal services. So I could I could talk to you too, for much, much longer than we have. You've been absolutely splendid guests, both of you. So thank you. You've been listening to Coronavirus the whole story. This episode was presented by myself Vivienne Parry, produced by UCL with support from the UCL Health of the Public and UCL Grand Challenges and edited by the wonderful Cerys Bradley. Our guests today were Professor Cheryl Thomas QC and Dame Professor Hazel Genn. If you'd like to hear more of these podcasts, museum minds, of course you would! Subscribe wherever you download your podcasts or visit ucl.ac.uk forward slash Coronavirus. This podcast is brought to you by UCL Minds, bringing together UCL knowledge, insights and expertise through events, digital content, and activities open to everyone. Hope to be with you again soon. Bye for now.