Lockdown and social distancing have had some obvious effects on criminal justice, worsening pre-existing problems with the system. The short-term suspension of jury trials is perhaps the best-known example. However, the consequences of COVID-19 have been more wide-ranging and profound than that, with particular consequences for women.
All elements of the criminal justice system are affected. Both COVID-19 itself and the work of enforcing new regulations have strained police resources. At the same time, domestic abuse reports have soared during lockdown. Police responses to domestic abuse have long been the subject of criticism and debate; a reduction in available time and resources is unlikely to improve matters.
Prosecution decisions are also affected. New CPS guidance emphasises that the delays caused by the pandemic are a relevant factor when deciding whether prosecution is in the public interest. Prosecutors are encouraged to consider out-of-court disposals or to accept guilty pleas to lesser charges. That is a sensible approach in many contexts, and on its face the guidance does not affect the most serious offences. However, the change of emphasis raises specific concerns around domestic abuse and sexual offences allegations, where low prosecution rates were already a concern.
While priority hearings continued throughout lockdown, often remotely, much criminal court work was delayed. Most ongoing jury trials were stopped, and new trials, including those for sexual offences, were put on hold between 23 March and 18 May. Long delays before trial were already an issue before COVID-19, owing to court closures and money-saving cuts to court sittings. Inevitably, the backlog of cases has built up, with some trials now being listed for 2022. These delays are problematic for defendants, complainants and witnesses in all types of cases. They cause particular harms in sexual offences cases, in which the majority of complainants are women and girls.
During the long wait, current CPS guidance discourages complainants from engaging in therapy which involves detailed recounting of the incident, or group therapy. The confidentiality of pre-trial therapy is also not assured, as records may have to be disclosed. Additional time waiting to give evidence at trial is therefore additional time during which alleged victims may not receive adequate support in addressing the mental and emotional consequences of an incident.
Delays can also affect the quality of evidence given by a witness. Sexual offences complainants are subjected to particular scrutiny, not only of the content but also of the emotional tenor of their evidence. It is often assessed through the filter of myths and prejudices. The effects of delay, then, take on particular significance for the outcome of these cases as some memories may be less precise and emotional responses may have changed over time.
Gender inequality is already recognised as an issue in the legal profession. There is a real risk that it will be worsened by the consequences of lockdown.
Remote advice, interviews and hearings mean that much work is now done from home. The significant impacts of home working upon women have already become apparent, and women lawyers, judges and court staff are vulnerable to these effects. The reopening of courts threatens to make matters worse. Owing to pre-COVID-19 court closures, many attendees face substantial journeys on public transport to reach a courtroom; effective social distancing is not necessarily possible in crumbling court buildings. This means that those expected to attend court, including lawyers, may have to make difficult decisions. Given that caring responsibilities fall more heavily upon women than men, they will be particularly likely to have to choose between attending court and protecting vulnerable dependents. For pregnant women, classified as vulnerable by the NHS and advised to adhere to strict social distancing, the dilemma is even more acute.
To address the backlog of trials, the government has proposed extending court hours. The resulting increase in lawyers’ already-high workloads would again be disproportionately adverse for women, who bear a higher burden of domestic and caring responsibilities.
COVID-19 has aggravated longstanding problems in a criminal justice system which was already in crisis. Few areas of criminal justice have been untouched by it. In the face of that overwhelming reality, it is important not to overlook the effects on women if we are to respond in ways that reduce, rather than increase, inequalities.
A return to ‘normal’ would be a return to a system which has long been criticised for systemic race and sex discrimination, and more recently has been desperately under-resourced. Now that lockdown has widened the cracks in this crumbling system, it is time to stop papering over them and resolve to rebuild something stronger and better. The coincidence of COVID-19 and the surge in #BlackLivesMatter activism point to the need – and the will – for fundamental change. Despite its reluctance, the government may be forced to act. Keeping issues of social justice, including gender justice, to the fore is therefore particularly urgent.
New draft guidance on pre-trial therapy was published for consultation on 30 July. If adopted after the consultation ends, it will emphasise that complainants should get the therapy they need. However, confidentiality will still not be assured and caution will still be advised for some forms of therapy including group therapy.