102 Petty France in London is to be used as a temporary "Nightingale Court" to help deal with the backlog of cases in the court system in England and Wales.
CNN  — 

Kellie Meir has waited two years to see the man accused of causing her son’s death face trial.

Danny Meir, the oldest of her six children, was 22 when he was killed in a collision between his motorbike and a car in Stockton-on-Tees, a market town in northeast England, in July 2018.

The driver of the car, a man in his early 60s, denies causing Meir’s death by careless or inconsiderate driving. He was originally due to stand trial last month, but the case has been delayed until March next year, because of the coronavirus pandemic.

Danny Meir died in a road accident in Stockton-on-Tees, England, in July 2018.

The UK locked down on March 23 in an attempt to slow the spread of Covid-19, and while most courts in England and Wales have since reopened, many trials are now subject to lengthy delays, leaving victims and their families in limbo and many defendants – who remain innocent until proven guilty – in custody.

Kellie Meir said she first heard of the change to her son’s case in June, when friends shared local news articles about the decision on social media.

“That’s the worst thing – we had to read it on Facebook,” she told CNN. “Nobody told us. We didn’t have a letter. [I] just opened up Facebook and saw his picture all over the place.”

Meir said her son was a great motorcycle enthusiast. “I know he was [on his motorbike] when he died, but he loved that thing, from such a young age.”

Danny’s sudden death left his mother, four younger brothers, younger sister, long-term girlfriend and grandparents devastated. “My mum took it particularly hard [because] they were very close,” Meir added.

“It’s been two years now, and it’ll be three by [the time of the trial.] We can’t move on with our lives, we haven’t got closure,” she said.

‘Backlog on backlog’

Trial by jury is a cornerstone of democratic legal systems around the world, especially those based on English common law – also known as Anglo-American law.

But seating 12 strangers side-by-side in a courtroom for days or even weeks is impractical in these socially-distanced times.

Most criminal cases in England and Wales begin in magistrates’ courts, which handle less serious offenses. Following the coronavirus lockdown, the backlog in these courts stands at a record high of 483,678 cases – up from 406,610 cases earlier this year, according to the British government.

Meanwhile the Crown courts, where more serious cases are heard, face a backlog of 40,526 outstanding cases as of the week ending May 24, according to preliminary data from the British government. That’s up from a pre-coronavirus caseload of 39,214, though not as high as a peak of 55,000 cases recorded in 2014.

Lawyers working in the court system in England and Wales criticized the mounting caseload – which they say is the result of years of underinvestment, cuts and court closures – long before the pandemic. Coronavirus has only exacerbated the situation.

For victims and their families, the additional delays caused by Covid-19 have made an already stressful situation unbearable.

“It’s not just the delay, it’s everything around it,” said Alex Mayes, external affairs manager at rights group Victim Support. “Before, victims were feeling anxious. Now they have added anxiety around coronavirus itself.”

Penelope Gibbs, an ex-magistrate and the founder of NGO Transform Justice, agrees. “It’s going to be backlog on backlog, and the problem is in human terms,” Gibbs, an advocate for the rights of defendants being held in custody, told CNN.

“The concern is that those on remand are innocent until and if they are proven guilty,” she said. “They may well be acquitted and they are losing their liberty when they may well be innocent. For that to go on for months threatens human rights.”

“What I fear is that people on remand may change their plea … from not guilty to guilty. In some cases they may then be released from prison,” she added.

And experts say some cases which have been postponed may end up never going to trial because of the lengthy delays.

“The quality of evidence declines over time,” veteran British barrister Michael Wolkind told CNN. “There will be certain cases where the victim won’t be able to bear the further wait and withdraws. And [there will be] smaller cases where the prosecuting authorities will drop [charges].”

The socially distanced court

There are 77 crown court centers in England and Wales that can host a trial by jury. Fifty-four have reopened since the UK’s lockdown was eased, according to the Ministry of Justice, but distancing measures mean many of the courts that are open still have limited capacity for trials. In some courts, rooms required for the trial are rendered useless because of their size.

CNN spoke to lawyers involved in trials who were concerned about the court estate in England and Wales, and its suitability for social distancing.

Michael Auty is a barrister and Queen’s Counsel – a title awarded by the British monarch to particularly respected advocates. Auty has seen many trials delayed because of the pandemic, including that of his client Magdalena Kissova.

Kissova, 47, is charged with murdering a 67-year-old man in Derby, in England’s Midlands, in February. She denies the charge. Kissova has been held in custody since her arrest – her trial was due to begin later this month, but delays caused by the pandemic mean it has been pushed back until October.

“We didn’t know if Derby Crown Court was going to be suitable for dealing with jury trials or not,” Auty told CNN. “We couldn’t carry out the changes [needed] to spread the jury out physically. And there are a host of other things – the jury have to walk through lots of narrow passages, and their retiring room can’t accommodate social distancing. It was not built for a world where that was necessary.”

“You couldn’t begin to contemplate socially distanced trials,” in Derby’s modern court building, Auty said. “We could possibly accommodate social distancing in the courtroom itself, beyond that it would be impossible.”

The realities of a return to a full trial schedule are a worry for many lawyers.

“I think it’s quite scary,” Danielle Manson, a junior barrister based in London, told CNN. “I don’t feel confident or comfortable about going back to work. The courts estate is crumbling – and that was before Covid-19.”

The UK’s opposition Labour Party believes a long-term lack of investment in the legal system has worsened the current crisis in the courts.

“The justice system has been brought to its knees by a decade of austerity that cut funding to the Ministry of Justice by a quarter in real terms,” David Lammy, the shadow justice secretary, told CNN in a statement.

“The result of these cuts is victims of violent crimes who are unable to see their attackers in court, wrongly accused defendants detained indefinitely while waiting for a trial, and a public unable to see justice served in a timely manner.”

Lammy says Labour wants the government “to requisition empty public buildings to be used as temporary courts to beat the backlog,” and “to provide the funding necessary to keep the justice system functioning in this crisis and make sure it is never left so vulnerable again.”

Temporary ‘Nightingale’ courts

As pressure mounts, the UK’s Ministry of Justice is setting up new “Nightingale Courts” to help ease the backlog.

On a similar model to the temporary “Nightingale Hospitals” set up around the country at the peak of Britain’s coronavirus caseload, these emergency courts will be housed in facilities usually used for other purposes, such as civic centers or university buildings.

The Lord Chancellor, Robert Buckland, announced on July 19 that he had identified 10 sites for such courts, and that the government would increase its investment in the legal system. The first court opened on July 20, and officials hope all 10 sites will be open by August.

“[The Nightingale courts] idea is wise,” Auty told CNN. “Places like university lecture theaters could be turned into a makeshift courtroom – they’re big enough. But there’s no silver bullet,” he said, pointing out the enormous logistical challenge involved in converting regular buildings into temporary courts.

“You have to move people who are in remand into court, so […] you need a secure building,” he said. “You can’t take [defendants] past the jury. And how do you manage witnesses? Where do they wait? How do you keep them apart from defendants’ families?”

“With a drugs trial you may have 20 or more defendants. With sex [assault] trials you absolutely cannot have a woman walking past a man who is accused of raping her. You have to keep all sorts of people separate, and [need to] have a mechanism to do so,” he added.

The virtual courtroom

The administrative tangle caused by Covid-19 has left British officials racing to find alternative solutions.

In March, British lawmakers passed the Coronavirus Act, granting the government emergency powers as the pandemic hit. Among other things, the legislation allows more video and audio link technology to be used in courts.

Since then, new technology has been installed in many Crown Courts across England and Wales, enabling some criminal hearings to be held via video link. Hearings are separate proceedings to jury trials but are often used for sentencing those already convicted.

Last month, Buckland told a parliamentary select committee that another option would be to have certain cases heard by a judge and two magistrates, rather than a 12-person jury. For this to go ahead, it would require lawmakers to pass new legislation.

“We are working closely with the judiciary on a range of measures to keep the justice system running, such as additional venues to allow better social distancing,” a Ministry of Justice spokesperson told CNN. “This does not include judge-only trials in the Crown Court.”

For victims’ rights advocates such as Alex Mayes, the use of video technology in courts is vitally important.

“Business as usual just isn’t an option,” he said. “There needs to be change – it could be something like pre-recorded video cross-examination of victims. It’s about utilizing technology.”

But some lawyers balk at the thought of virtual courtrooms encroaching further on physical ones.

“I don’t think we can be parachuted into a digital system when people’s life and liberty are at stake and we’re asking members of the public to make enormous decisions,” said junior barrister Danielle Manson.

“I think the use of video links is something we should be anxious about, because everything … is about people and human reaction. It’s about how witnesses react and how jurors react,” she said. “There’s something about being in the same room as someone and feeling an atmosphere. Jury trials are incredibly theatrical.”

“The big issue is access to technology,” said Kevin Crosby, a senior lecturer in law at Newcastle University and a specialist on juries. “Juries are meant to be a wide cross section of people. If you add in older jurors, there are bound to be people who don’t have the technology [needed] at home.”

Trials delayed around the world

The crisis in England and Wales is replicated in legal systems around the world that use jury trials. The coronavirus pandemic has forced delays to trials in New Zealand, the US, Canada, Australia and Ireland.

“I haven’t heard of any system that has [coped]. It’s inherently difficult to hold a trial in this situation,” Crosby told CNN.

Providing justice in the time of coronavirus may lie in some combination of technology, larger courtrooms and longer hours. But as with many public institutions, the pandemic has exacerbated the existing flaws of the English legal system.

And the longer officials take to work out the logistics of holding trials, the longer families are having to wait for their day in court.

Kellie Meir told CNN the lockdown has made her grief over Danny’s death worse. “I couldn’t wait to go back to work,” she said. “I didn’t go out during the full lockdown and [he] was on my mind.”

As lockdown conditions are lifted, Meir wants to know why she is still waiting for the trial to begin.

“You need a jury there – why can’t they just spread them out?” Meir asked. “Why can’t [jurors] wear masks? I thought masks protected you? I don’t know about the virus … I don’t really understand it all.”

“It’s really hard,” she said. “I have got other kids, I have my mum [and] you have [to] get on with it. But my heart’s broken. He was 22, you know? He was too young. How can we move on?”