QUESTIONNAIRE FROM THE SPECIAL RAPPORTEUR ON THE INDEPENDENCE OF JUDGES AND LAWYERS ON THE IMPACT OF THE COVID-19 PANDEMIC ON THE ADMINISTRATION OF JUSTICE AND THE FREE AND INDEPENDENT EXERCISE OF THE LEGAL PROFESSION

RESPONSE OF THE OF GREAT BRITAIN AND NORTHERN IRELAND

The Scotland Act 1998, the Northern Ireland Act 1998, and the Government of Wales Act 1998 (which was later effectively superseded by the Government of Wales Act 2006) established three devolved legislatures and transferred to them some legislative powers that were previously held at Westminster Parliament. Further powers have been devolved since these original Acts, most recently through the Scotland Act 2016 and the Wales Act 2017.

1. Please describe the measures adopted in your country to guarantee the proper functioning of the justice system during the COVID-19 pandemic .

The COVID-19 pandemic has imposed unprecedented challenges on the justice system, and enormous efforts have been made to increase its operating capacity safely. As an essential public service, courts and tribunals have continued to operate throughout national lockdowns, the local restriction tiers in England, the current rules in Wales, local protection levels in Scotland, and restrictions in Northern Ireland, within COVID-secure guidelines. 1 Since 20 March 2020, HM Courts & (HMCTS) staff, judiciary, and contractors (e.g. security, cleaners) have been identified as ‘key workers’, and their travel for attendance at a court hearing is considered to be essential. To ensure that the justice system is able to function safely during the COVID-19 pandemic, the Ministry of Justice has put in place several mitigations. From a safety perspective, a national risk assessment 2 was conducted and jury trials briefly halted to allow for work to take place to make the courtrooms COVID-secure. The judiciary set out a prioritised caseload which meant that those cases most critical to the functioning of the justice system were heard, while others were adjourned. This reduced footfall and associated public health risks. At the end of March 2020, this meant that 157 priority court and tribunal buildings remained open for face-to-face hearings. A further 124 were kept open for judges, staff, and representatives of agencies, to support video and telephone hearings, and to progress cases without hearings. Other buildings were temporarily closed. Video and audio links were rapidly distributed to all courts and tribunals allowing for many more hearings to be conducted by video or audio link to reduce footfall further. Video links were rolled out in large numbers in police stations and prisons, to ensure that defendants could participate in hearings remotely. Technology was also distributed to detention areas within court buildings so that professional users could engage with their clients with confidentiality, while maintaining social distancing.

1 https://www.gov.uk/guidance/working-safely-during-coronavirus-COVID-19 2 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/936543/ HMCTS451_Organisational_Risk_Assessment_A4L_v3.pdf Around 6,000 additional laptops were rolled out to HMCTS staff and many administrative processes were amended to allow many more staff to work remotely. HMCTS has participated in the national Department for Health and Social Care testing referral process since April 2020, which provides access to testing for essential workers, including judiciary and court/tribunal staff. HMCTS extended an employer referral route for testing to include symptomatic jurors, subject to availability and capacity of the national testing team, to mitigate the risk of juror illness causing derailed or halted trails. HMCTS has employed many more cleaning staff to ensure that those courts that remain open are kept clean. After COVID-secure measures were put in place (for example, by November 2020 more than 4000 m 2 of Perspex screens had been installed), the vast majority of courts reopened. To deal with the backlog of cases which had arisen, HMCTS procured additional venues, such as theatres, which were closed as a result of the pandemic. These additional venues operate to the same health, safety, and security standards as regular courts and tribunals. HMCTS is following public health advice and is now experienced in managing COVID- secure ways of working with a range of mitigating measures in place. Standards continue to mature as understanding of the virus amongst public health officials grows. For example, face coverings became mandatory to wear in public areas of courts and tribunals in July 2020 at the same time as they became mandatory in shops in England. In September 2020, courts enabled users to ‘check in’ at their locations to support the rollout of the NHS test and trace app. HMCTS does not underestimate the challenges involved with continuing to increase its operating capacity safely and in accordance with social distancing restrictions. Recovery is well underway in order to get back to working at pre-pandemic activity levels and to deal with the outstanding cases that have built up. The HMCTS recovery plan 3 was published on 1 July 2020, and further updates to recovery plans are available for criminal, civil, and family courts and tribunals. By December 2020, most areas were above or close to the average number of pre-pandemic disposals.

2. Were these measures adopted on the basis of emergency legislation? If so, was the judiciary consulted prior to their adoption, or has the legality or the constitutionality of these measures been subject to judicial review?

Most changes were delivered within the normal flexibility available to the courts and tribunals system, without needing further legislation. These included the prioritisation of certain cases, expansion of the use of audio and video technology, treatment of frontline HMCTS staff and contractors as essential key workers, new forms of engagement with partners and stakeholders, and the creation of additional ‘Nightingale’ courts. 4 HMCTS works for both the independent judiciary and the UK Government, and both were closely involved in developing and delivering its COVID response – both in the immediate weeks and months after the pandemic began, as well as in its ongoing management. HMCTS does consult with the judiciary about new legislation. For example, the Coronavirus Act 2020 5 included the expansion of audio and video hearings (more detail in answer to question five below).

3 https://www.gov.uk/government/publications/court-and-tribunal-recovery-update-in-response-to- coronavirus 4 https://www.gov.uk/guidance/courts-and-tribunals-additional-capacity-during-coronavirus-outbreak- nightingale-courts 5 https://www.legislation.gov.uk/ukpga/2020/7/contents/enacted 3. Please indicate the measures that have been adopted in your country to ensure access to justice during the COVID-19 pandemic:

(a) Have courts remained opened throughout the different phases of the pandemic?

A range of measures were put in place during March and April 2020 to protect court users, judges, and staff. At the end of March, 157 priority court and tribunal buildings were selected to remain open for face-to-face hearings. A further 124 were kept open for judges, staff, and representatives of agencies to support video and telephone hearings and to progress cases without hearings. Enormous efforts were made to restart jury trials in May 2020, and, as of December 2020 jury trials were running in 79 Crown Courts (this is more than three quarters of our Crown Court buildings), five Nightingale Courts (additional courts located at other venues such as theatres) and four other locations. At the end of October, over 250 courtrooms had been assessed as being capable and available to hold jury trials and this number grew to 290 by the end of 2020. By the end of the year, the Civil and Family jurisdiction had approximately 600 courtrooms available, and nearly 200 tribunal hearing rooms were available. At the end of the year, 98% of HMCTS buildings were open and COVID-secure with the number of hearings continuing to increase.

(b) Which criteria have been developed and implemented to manage the backlog caused by the COVID-19 pandemic?

The focus during our response and recovery has been to ensure the use of existing capacity effectively, making buildings safe, reopening courts, and pursuing options for increasing capacity, such as extended operating hours and Nightingale courts. We know the benchmark for pre-COVID performance for all jurisdictions, and HMCTS uses this as part of the aim towards recovery. We now publish weekly management information 6 to help actively monitor outstanding work. In most jurisdictions, disposals are approaching or have surpassed pre-COVID levels. For example, since August 2020, Magistrates’ courts have been hearing more cases than they receive.

(c) What measures have been developed and implemented to manage the backlog caused by the COVID-19 pandemic?

HMCTS recognises the importance of hearing more cases safely and as quickly as possible to reduce the backlog of cases caused by the COVID-19 pandemic. An overarching recovery plan 7 was published on 1 July, followed by a criminal courts recovery plan 8 published on 7 September, with the civil, family and tribunals recovery plan 9 published on 9 November.

6 https://www.gov.uk/government/collections/hmcts-weekly-management-information-during-coronavirus- outbreak 7 https://www.gov.uk/government/collections/hmcts-weekly-management-information-during-coronavirus- outbreak 8 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915493/ HMCTS401_recovery_overview_for_crime_WEB.pdf 9 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/932496/ HMCTS_CFT_Recovery_Plan_v2b.pdf Progress against the recovery plans is well underway and headway is being made in moving the courts and tribunals operating capacity as close as possible to pre-pandemic levels.

The examples below set out in more detail how these measures will help to achieve the ambition of reducing the number of outstanding cases. i. Continue to maximise our use of the existing estate – including the consideration of adopting different COVID Operating Hours. The installation of plexiglass screens has helped to reduce the need to use additional courtrooms as overspill courts and/or jury retiring rooms. At the time of writing, screens have been installed in over 400 courtrooms and jury deliberation rooms, allowing for more than 2,000 jury trials to be listed since their reintroduction in May. More than 300 jury trials were being listed each week by the end of 2020. The number of jury trial courtrooms available at the end of 2020 was roughly comparable to the pre-pandemic number. Portakabin buildings are also being installed in some locations to provide temporary rooms for jury deliberations. As part of the efforts to maximise the use of the existing court estate, we have piloted a blended ‘COVID operating hours’ model in some Crown Courts, involving a minimum of two courtrooms at each court building – one operating trials across a morning and afternoon session, while the other continued standard operating hours. An assessment of the pilot is taking place and a consultation has been held, to which the Department is due to respond shortly. The courts are also working more flexibly than ever. In magistrates’ courts, where we already hold regular Saturday sittings dealing with defendants in custody, by the end of December 2020, we were operating at least 100 additional Saturday court sessions each month to deal with further types of cases. ii. Make best use of technology to support remote or video hearings. Audio and video technology are an established part of the UK justice system. In response to the pandemic, the use of technology was swiftly expanded and enabled essential hearings to continue. A more detailed explanation is provided in the answer to question five below. iii. Provide additional capacity through additional venues – Nightingale courts. Additional funding has been provided to enable additional venues to be hired and transformed into Nightingale courts. A network of Nightingale courts has been established and is proving crucial in helping to manage the backlog of cases. At the time of writing, 21 locations are operational, providing 40 additional courtrooms with another 20 courtrooms to be opened by the end of March 2021 iv. Increase staff capacity across court and tribunal jurisdictions. Inevitably the pandemic has required the court and tribunal jurisdictions to change some of the ways they work and increased the overall administrative support required. To support the recovery process, a large-scale recruitment exercise is well underway to recruit approximately 1,800 additional staff. This includes staff for Cloud Video Platform support, marshalling in court and tribunal buildings, ushers, and court clerks.

(d) Has your court system experienced an increase in pandemic-related cases, e.g. complaints against emergency measures or grievances caused by the pandemic (e.g. bankruptcy or family disputes)?

As the pandemic is now a part of daily life, many claims refer to it in some way, but it is hard to say with any accuracy how many cases would not have been issued but for the pandemic. In many areas, receipts were suppressed in the early phase of the pandemic. In some cases they have since returned to pre-COVID levels, and in others they remain low. Areas with enduring low receipts may be seeing this because of changes in underlying conditions related to the pandemic or other system changes. For example, we have seen sustained decreases in summary motoring and non-motoring cases in the magistrates’ courts. In some areas, we have seen cases actually or probably related to the pandemic: since mid- July, we have received almost 4,000 cases in the magistrates’ court directly related to COVID, although this represents less than 1% of total receipts over the same period. We have also seen increases in Probate and Employment Tribunals receipts, which may be driven by pandemic related issues. In the Immigration and Asylum Tribunal, we have seen some cases submitted relating to accommodation, travel restrictions, or detention conditions not being compatible with COVID regulations. It is difficult to quantify the impact of the pandemic on cases in the High Court because the exact nature of the challenge is so varied. For example, in the Administrative Court, there has not been an overall rise in the number of cases issued compared to the same period last year, but a significant number of cases since March 2020 have cited the pandemic in some way. HMCTS recognises the importance of moving COVID-19 cases promptly through the court system. The judiciary have set out a number of listing priorities, and these make clear that COVID-19 related offending should be given higher priority. Single Justice Procedure 10 sessions have been set up, although volumes of COVID-19 cases have been much lower that initially expected, and many of these extra sessions have not been required.

4. Please describe the health and safety measures adopted in the court system to ensure the protection of all the actors in the justice system (e.g. judges, prosecutors, parties to the proceedings and their lawyers, court officials, law enforcement officials) during the COVID-19 pandemic.

HMCTS take people’s health, safety, and wellbeing very seriously, and continue to review our approach, on both a national and local level, on a weekly basis. As an essential service providing access to justice for defendants, witnesses, victims, and claimants, we have continued to operate, working closely with the judiciary, within COVID-secure guidelines throughout the national and local restrictions in England, Wales, and Scotland. The arrangements we have put in place in our buildings have been endorsed by Public Health England and Public Health Wales, and include:  an organisational risk assessment  bespoke risk assessments at each location  additional touchpoint cleaning  adequate supplies of consumables such as soap and hand sanitiser  social distancing, floor markings, and signage  one-way systems  plexiglass screens in courtrooms and deliberation rooms  new office and courtroom layouts  limitations on the number of people on site/in certain rooms.

Face coverings are mandatory in all courts and tribunals in England and Wales. Two metre social distancing is in place throughout our estate, or ‘one metre plus’ with mitigation in our buildings in England. Where there is unavoidable close contact at less than two metres,

10 https://www.gov.uk/guidance/single-justice-procedure-court-lists items of personal protective equipment (PPE) are specified, in line with Health and Safety risk assessment and public health advice for our settings. Risk assessments incorporating the provision of supply and maintenance of supplies are conducted on a regular basis, and we are keeping demand for PPE under regular review as we move through each phase of managing the pandemic. We ask court and tribunals users not to come to any of our court and tribunal buildings if they have:  coronavirus symptoms  tested positive or are waiting a test result for coronavirus  been instructed to self-isolate by the NHS Test and Trace service  returned from a country that is not in the coronavirus travel corridor.

We ask them to contact the court or tribunal before they are due to attend so that we can make appropriate alternative arrangements for their hearing. We have a robust incident management process in place. If there is a positive case in one of our buildings, we inform affected court and tribunal users, contractors, and local partner agencies where necessary, at the earliest opportunity. Our buildings are not considered close contact settings, and the arrangements we have put in place significantly reduce the risk of people coming into sustained, close contact as defined by public health guidelines. HMCTS has introduced an internal Workplace Standards Group and an Estates Solutions group, both of which continue to oversee our practice and methodology for maintaining hygienic, safe buildings, in line with Government guidance. Throughout the pandemic, we have worked closely with public health agencies across the UK to ensure that our risk assessment framework, and the policies underpinning it, meet the necessary standards, advice, and guidance. As well as ensuring that the right policies are in place, we have also ensured their effective implementation through a robust framework of management checks and audits, designed to ensure and test compliance with relevant standards. The audit activity is undertaken by HMCTS officials, as well as by qualified health and safety professionals from across government, and we are shortly to commission an expert consultancy to start a parallel independent validation of our compliance across a significant proportion of our court and tribunal estate.

5. Please provide information on the technological means used to ensure the functioning of the court system during the COVID-19 pandemic (e.g. online submissions to courts or hearings held in videoconference):

(a) What measures have been adopted to ensure that judicial stakeholders (e.g. judges, court staff, prosecutors) have access to adequate technological means and appropriate training on new procedures (e.g. use of electronic platforms to access documents, electronic case management and videoconferencing options)?

The UK Government, in March 2020, introduced emergency legislation (Coronavirus Act 2020 11 ) to ensure that justice could continue during the pandemic. This included expanding the availability of video and audio hearings. The Cloud Video Platform (which uses videoconferencing technology) was already in use in criminal courts, and was rapidly

11 https://www.legislation.gov.uk/ukpga/2020/7/contents/enacted expanded to other jurisdictions. HMCTS is undergoing an ambitious reform programme, and earlier digital reforms to divorce and probate services allowed these systems to continue to operate, while some tribunals managed to operate exclusively through audio and video hearings. To support the increased use of technology, training and guidance were provided to the judiciary and staff. The Lord Chief Justice, the Senior President of the Tribunals, and the Chief Coroner have statutory responsibility for training, under the Constitutional Reform Act 2005 12 , Courts and Enforcement Act 2007 13 , and Coroners and Justice Act 2009 14 respectively. Training responsibilities are exercised through the Judicial College. The Judicial College 15 works closely with the judiciary and HMCTS to design and deliver appropriate training that supports the judiciary in online court proceedings. To date, a mix of training and guidance materials have been issued to support the use of video technology and online hearings. This has included practical use of technology, as well as training on behaviours and communication styles, with the following having been provided:  HMCTS and members of the judiciary have delivered in-court presentations, demonstrations, and training for the Judiciary on the use of video technology in online hearings.  HMCTS has trained and deployed Digital Support Officers in court and tribunal buildings to provide in-court support for the judiciary in online hearings.  The Judicial College has worked with the judiciary and HMCTS to develop an extensive library of online training materials that covers the use of technology in online hearings, how to adapt behaviours and communication styles within online proceedings, and how to avoid unconscious bias in an online court proceeding.  The Judicial College has supported the judiciary to create and deliver bespoke training events that enable each jurisdiction to identify and agree best practices to adopt in online proceedings.

(b) What measures have been developed to facilitate access to justice for disadvantaged groups and individuals who may not own a computer, not have access to internet, or not be tech-savvy enough to participate in online hearings?

Access to justice is fundamental to the justice system. The decision on whether a case is suitable or not for a video or audio hearing is a matter for the judiciary, who will consider:  the suitability of video/audio for resolving the matters at stake during the hearing  any issues the use of video/audio technology may present for participants in the hearing  any issues around public access to or participation in the hearing (to uphold the principle of open justice) It is understood that while audio and video hearings are an important channel for conducting cases during the pandemic, they may not be suitable for everyone. HMCTS published a vulnerability action plan setting out how we are making sure that any unintended effects on vulnerable users are considered, and that those users can engage with new ways of working. The plan recognises the importance of vulnerable people being able to access the justice system without being disadvantaged or discriminated against. Reasonable adjustment and disability guidance is provided to HMCTS staff who support audio and video hearings. This raises awareness of the issues which people with different

12 https://www.legislation.gov.uk/id/ukpga/2005/4 13 https://www.legislation.gov.uk/ukpga/2007/15/contents 14 https://www.legislation.gov.uk/id/ukpga/2009/25 15 https://www.judiciary.uk/about-the-judiciary/training-support/judicial-college/ disabilities may face, and of reasonable adjustments which may help them to participate fully in audio and video hearings.

(c) Which safeguards have been put in place to ensure that the use of technological means does not adversely affect fair trial and due process standards (e.g. public hearings, adequate time and facilities to communicate with one’s lawyer, access to interpretation…) ?

The principle of open justice is a fundamental cornerstone of the justice system, and this has continued throughout the pandemic. Members of the public and the media can submit a request to the court or tribunal, and the appropriate measures will be put in place to allow the hearing to be observed. Private conversations between parties and their representatives are important, and we understand that this may be more challenging during a remote hearing. Advice was provided to parties and lawyers to hold those conversations by telephone, WhatsApp or Facetime. The hearing will be paused, and the audio and video muted to allow these conversations to take place. It is understood that WhatsApp, phone calls, or Facetime may not be readily available to all litigants. HMCTS also identified that hybrid hearings (where some parties attend with the remainder engaging remotely) can be considered a good option compared to fully remote hearings for cases involving vulnerable users, or for more complex cases. Interpreters have continued to be provided when required to allow a person to participate in a hearing, and to ensure they are able to understand and follow proceedings. We continue to monitor and evaluate carefully the use of video and technology in courts, so that we can improve the service, and ensure that it is as effective as possible in providing access to justice. We are listening to feedback from the judiciary, users, staff, and other key stakeholders, such as legal practitioners, to understand the impact and the effectiveness of the technology. This has also included observations of recorded hearings and interviews of users to identify issue quickly and help improve the processes. The review has identified some key issues which can make remote hearings less efficient and has highlighted some of the user experiences which HMCTS could improve. For example, delays which prevent the hearing from starting on time (e.g. joining, recording, access to documents), troubleshooting technical issues during the hearing, hearings which include interpreters/witnesses, and the practical issues of facilitating hearings remotely can all impact how smoothly a remote hearing is run. There will be a further evaluation of the use of remote hearings during the pandemic, to help inform our use of audio and video technologies in the longer-term. The findings will help address issues around the experience for users, the administrative support needed for hearings, technology, and audio-video quality standards.

6. Please provide information on the additional budgetary resources allocated to the court system for the years 2020-21 to enable the judiciary and the public prosecution to continue to function and to recover from the pandemic. Do these measures include safeguards to prevent and tackle corruption in the allocation of these additional budgetary resources?

In total, at the time of writing, the UK government will have invested an additional £255m in the courts and tribunals during the pandemic. This funding will support ongoing efforts to increase our ability to hear as many cases across all jurisdictions and help us to address backlogs in the Crown Court, and reduce the negative impacts of delay on victims and witnesses. This funding will allow us to:  set up and run a further 40 Nightingale courtrooms  run a larger number of COVID Operating Hours courtrooms, should Ministers decide to implement this operationally following the consultation with legal professionals  bring a further 40 jury trial rooms from our own estate into use  undertake enabling works to hear large multi-hander trials  fund additional judges for crime recovery  support additional cleaning and PPE costs  improve our court estate and equipping more of our courtrooms with remote hearing capacity.

These steps should have a tangible impact on output and outstanding caseloads in our courts and tribunals, and in particular, support our wider, longer-term recovery. The Crown Prosecution Service has prioritised court-facing work, and has moved resource from other parts of the business, as well as bringing in extra temporary resource, to support its response to and recovery from the pandemic.

7. Please describe the measures that have been adopted to enable lawyers to carry out their activities during the COVID-pandemic, particularly with regard to access to people under arrest or detention and means to facilitate confidential client-lawyer communications during online hearings .

Senior officials and Ministers have routinely met representatives of the legal profession and the criminal justice system. This has facilitated a vital exchange of information and enabled each party to anticipate future developments, to manage expectations, and to inform their own planning. In the early stages of the pandemic, we participated in daily calls to keep stakeholders informed of developments in real-time, to capture their feedback, and to respond quickly to emerging issues. Alongside increased engagement, our communications channels have also been extended and enhanced to ensure that accurate, up-to-date information about COVID-19 in relation to courts and tribunals has been communicated to our stakeholders throughout the crisis.

With regard to legal aid, at an official level we engage regularly with the criminal legal profession’s representative bodies, including through daily phone calls at the start of the lockdown. Other agencies – including the , HMCTS, Crown Prosecution Service, HM Prison and Probation Service, the Attorney General’s Office, and the Police, among others – were also included on these calls. Alongside those, officials held weekly calls with civil, family, and tribunal legal practitioners and agencies. These calls provided a route for the professions to raise their concerns, and for us to communicate and track actions to resolve with the relevant agency. The and Ministers also met and corresponded with the representative bodies (such as the Criminal Bar Association, Bar Council, and Law Society) to understand the challenges they were facing. Alongside this, Ministers received regular feedback and updates from their officials on the concerns raised by the legal aid profession. In response to the specific concerns raised about financial hardship, the Ministry of Justice introduced a number of supportive mechanisms:  Expanding the scope and relaxing the evidence requirements for hardship payments in crown court cases – including reducing the threshold for work done to £450, rather than the previous £5,000.  Pausing the pursuit of outstanding debts owed to the Legal Aid Agency.  Suspending sanctions in relation to missed deadlines for delegated function applications, substantive amendments, and appeals against LAA decisions.  Holding regular meetings with key stakeholders, including legal aid practitioners and representative bodies, to assist in the rapid identification and resolution of issues.  Publicising existing avenues of financial help for legal firms, such as the ability to apply for early payment for work already done on a case, and changing rules for payment on account for providers, benefitting cashflow in the short-term, and ensuring that providers can claim the same amount of money for online hearings as they can for face-to-face hearings.  Increased the opportunities for civil legal aid barristers to claim payment on account, and increased the cumulative amount they can claim on account.

We continue to work closely with practitioners during this time and will keep measures under review and explore what other options might be needed. To ensure that confidential client-lawyer conversations could be continued with those in detention, additional video and audio options were rolled out to detention facilities across the court and police estate. Duty solicitors are able to talk to their clients by phone (work was conducted across the estate nationally to ensure that this would be possible in magistrates’ courts) or by video link. Where face-to-face meetings are required, significant work has taken place to ensure that these can take place in a socially distanced manner, or between screens in COVID-secure interview rooms.

28 January 2021