As part of the emergency measures taken in response to the coronavirus outbreak, many courts across the world have been forced to close or to devise alternative ways of working.
In the UK, for example, the number of courts open to the public has been reduced, but courts are still proceeding with the most urgent cases, including certain custody hearings. France’s highest court has suspended most nonessential proceedings but is still hearing urgent criminal matters, including extraditions. Italy’s court system has shut down, and the Supreme Court suspended its activities under the broader government coronavirus lockdown.
Many countries are mitigating the effects of court closures by using technology, including electronic trials, to replace traditional court hearings.
According to legal commentator Paul Magrath, the Chinese court system, as the first to be affected by the coronavirus outbreak, was quick to adjust to online trials.
In the UK, the Supreme Court is conducting entire cases by video link for the first time in its history, while in India courts have not closed completely, but hearings have gradually shifted to electronic trials.
In the US, the approach adopted varies from state to state. The chief judge of New York state, Judge DiFiore, announced the postponement of all nonessential court functions and adopted a virtual court system.
Electronic trials have their own problems, however.
“There is an overriding complication relating to public and press access [to digital trials],” explained Jeremy Dein, a lawyer in London. “Open justice is a cardinal feature of our system of criminal process, so this will somehow need to be addressed.”
Ilias Bantekas, a professor of law at Hamad bin Khalifa University in Qatar, suggested that a possible solution “to avoid proceedings taking place behind closed doors, while general entry to the public in the courts may be restricted” would be to give the public access “through electronic platforms”.
Justice ministers and chief justices have recognised the compelling reasons for court closures and changes to normal procedure. At the end of March, the Chief Justice of Singapore Sundaresh Menon explained: “This collective challenge demands a collective response, which must begin with our willingness to adapt to change and pursue new solutions. The challenge for the Judiciary is to sustain our justice system while protecting court users, as far as possible, from the risk of transmission.”
But fears still remain about the potential consequences for those awaiting trial, particularly those in pre-trial detention.
Gregoire Mangeat, a lawyer in Switzerland and former chairperson of the Geneva Bar Association, explained that suspending criminal cases could “lead to a violation of fundamental rights”.
The protection of the rights of accused people is “one of the cornerstones of the human rights framework,” said Wayne Jordash, an international criminal lawyer based in London, who worries that court closures “remove essential protections” for the accused, potentially leaving them in pre-trial detention for much longer than would usually be the case.
In Egypt, where all civil and criminal trials have been suspended, there are concerns that “proper process is not being followed” in terms of the renewal of detention, explained Hussein Baoumi, an Egypt researcher at Amnesty International.
There are widespread concerns about the impact of prolonged pre-trial detentions on the mental health of detainees.
Dr Paula Rothermel, a forensic psychologist practising in the UK, has had a number of clients in the past who have faced the uncertainty of trials being delayed – in some cases, for years. She described the impact on detainees as “soul-destroying”.
“[The] uncertainty in itself is a traumatic event,” she explained.
Prisoners have also had to cope with the cancellation of visits as a result of the pandemic. “It is a hellish situation for detainees,” said Dein.
One of the ways that England and Wales have responded to this is by providing 900 mobile phones to 55 prisons for prisoners to contact loved ones.
Many countries have also considered releasing some pre-trial detainees.
In India, where most courts have closed, the Supreme Court has intervened to release a large number of pre-trial detainees on bail, explained Anubha Rastogi, a lawyer in Mumbai. She described it as a “positive move”.
Dein believes “that bail should be granted more widely” in the UK, too.
But, even if it were, with so many people having been laid off as a result of coronavirus, the likelihood of detainees being able to pay it has decreased.
Bantekas suggested that one solution could be allowing those who are not repeat offenders to be “subjected to house arrest and electronic tagging and other tracking devices” rather than being kept in detention.
For Rothermel, alternative solutions to detention would be preferable for pre-trial detainees who “are now experiencing the additional trauma of fear of catching the coronavirus in prison”.
According to Baoumi, the principal difference between the circumstances of accused people in Egypt before the coronavirus pandemic and after the outbreak is that there is now considerably less oversight over prison conditions in the country. He believes the unhygienic and overcrowded conditions in Egyptian prisons provide a “fertile soil” for coronavirus.
Fears that coronavirus could spread in prisons are all too real across the world.
Robert Katz, a lawyer in London who specialises in criminal cases, is concerned that a coronavirus outbreakin the country’s overcrowded prisons would be particularly serious because of the impossibility of physical distancing. As of Sunday, there were 88 reported cases of coronavirus across 29 UK prisons, and three deaths.
Efforts to maintain some degree of distancing has meant that many prisoners are being kept in their cells almost 24 hours a day and that, Katz said, is taking a huge psychological toll.
He believes subjecting a detainee to an overcrowded prison during the coronavirus crisis might constitute a breach of Articles 2 and 3 of the European Convention on Human Rights, the articles pertaining to the protection of the right to life and the right not to be subjected to torture or inhuman and degrading treatment.
Legal experts are also worried that the delay in hearing cases will add to an existing backlog in many countries.
In 2019, the UK had a backlog of 37,434 cases – something the Criminal Bar Association (CBA) has attributed to a cost-cutting reduction in court sitting days.
Clara Gerard-Rodriguez, a criminal lawyer in Paris, explains that 21,000 of the 70,000 people in prisons in France are awaiting trial. In France, too, there was a considerable backlog of cases before the coronavirus outbreak. “Because of the understaffed and under-resourced courts, some cases were postponed for a year or more,” Gerard-Rodriguez explained.
There are other reasons why delaying criminal trials can have adverse consequences for achieving justice. According to Joshua Rozenberg, a legal journalist and commentator, delays, generally, makes criminal trials more difficult. “Memories fade over time and witnesses become unavailable,” he said.
Then, of course, there is the matter of what delays mean for the victims of crime.
Carla Ferstmann, a senior lecturer at the University of Essex and former director of the victims’ rights organisation REDRESS, said: “From a victim’s perspective the delay in trials can put victims at risk of further violence, particularly in the context of domestic or family violence where the victim and alleged perpetrator are living under the same roof.”
When the world begins to emerge from the coronavirus crisis, it is likely that a legal one will be waiting. But how countries’ judicial systems will respond remains to be seen.
“As for jury trials, an enormously complex scenario awaits once the coronavirus outbreak ends,” said Dein. “Cases are simply piling up. The courts will have to be used to their maximum once lockdown ends.”