Cracked Trials during COVID 19 – Clearing Our Courts – Too good to be true?

Anyone in the criminal justice system will be painfully aware of the long standing backlog of trials well before the COVID 19 pandemic took hold.  I have lost count of the number of clients I have dealt with who have to wait over a year before their trials are heard.  A speedy justice system it is not.  This already underfunded, failing system has now been brought to its knees after recent events.

The Guardian recently reported a backlog in criminal trials of around 40,000.  During the COVID 19 crisis this is said to be increasing at the rate of 1000 per month.  Court buildings have closed during the pandemic, with only the most crucial of emergency cases being heard remotely and certainly no chance of trials.  As we start to edge out of lockdown, selected courts are able to accommodate trials but this involves strict adherence to social distancing rules, several courtrooms being used for one trial and extensive cleaning.  For these reasons it is highly unlikely that the criminal trial backlog is going to be cleared without some systematic changes.

Judge only trials, use of closed buildings such as universities for courts, lesser offences being dealt with by caution are just some of the ideas to clear the outstanding backlog.  Any decent criminal lawyer will be very keen to demand that whatever changes are suggested should always ensure that justice is served. 

However, these particular decisions are out of our hands.  There is another trend however, appearing in the Courts which will be of great interest to our clients – the collaboration of all parties to “crack” trials.  To put it simply this is where a case is either dropped, or the defendant pleads guilty, sometimes to a lesser offence.  Essentially it means where there will no longer be a trial.  Judges have been slightly more vocal in open court where is very strong or weak evidence, and will boldly suggest the offending party should consider their case / advice carefully.  Some Judges are bold enough to offer unsolicited indications of the type of sentence which might be available on a guilty plea.  It means the Judges might be willing to offer lower sentences than normal.

Great news for defendants, you may think, but I would urge all parties to exercise great caution, in particular defendants and defence teams.

Usually, where defendants “come clean” and change their plea, this would provoke their solicitors or barristers to ask them to sign an endorsement confirming their change of instructions and that they changed their mind of their own free will.  This would ensure that Counsel and solicitors, and most importantly defendants are protected and the change of instructions is carefully documented. 

Currently there are no facilities for signing such documents contemporaneously.  Both conferences in prison and pre-court are taking place remotely, using various methods such as Skype or Microsoft Teams, with no opportunity to have instructions signed before pleas are taken, or re-taken in Court.  This leaves us all in a tricky position.

There is no doubt that COVID 19 has placed people in fear.  Perhaps none so much as those locked in cells with new inmates from outside arriving every day.  It is possible that some defendants are – genuinely – pleading guilty in the hope that they will get a sentence allowing them to be released earlier so that they can get home and stay safe, or at least safer, than in prison.  The concern is obvious, that there will be those pleading guilty to offences they did not commit. 

It is also a long term concern.  Defendants being released with favourable sentences will find it difficult to go along to the Court of Appeal later, arguing that they only pleaded guilty because they were in fear of losing their lives by staying in prison. 

So my suggestion is simple – make sure you are pleading guilty for the right reasons, i.e. that you actually committed the offence, rather than that you can see a fast track to release.  The conviction will stay on your record and may affect future sentences.  Ensure that your instructions are clear with your legal team.  They are likely to make detailed and contemporaneous notes of your instructions, advice, decisions made and consequences which flowed.  You are likely to be asked to sign written endorsements by post.  You must ensure that any plea you enter is for the right reasons, and won’t result in a “second spike” for you later down the line.