Amanda Pinto was appointed as Queen’s Counsel in 2006, elected as Chair of the Bar of England and Wales in 2020 and was Chair of the International Committee of the Bar Council 2015-2018. Despite of her undoubtedly busy schedule during the current Covid-19 crisis, she kindly took the time to respond to The Impact Lawyers´ questions concerning the effects of the coronavirus pandemic on the legal system in the United Kingdom, and the challenges legal professionals are facing during these unprecedented times. 

How does the coronavirus crisis affect the work within the justice system in the UK?

Covid-19 has struck at the heart of the operation of the entire justice system. A major and in some areas, catastrophic reduction of hearings and other work has exacerbated concerns over the sustainability of parts of the legal profession. Before Covid-19, there were substantial backlogs of cases and because many courts are closed and rafts of hearings have been adjourned or delayed, that backlog is increasing by thousands every month. Many litigants in person are unlikely to be able to access justice because the default position in the pandemic is that court work will be done remotely, not in person, requiring the ability to use technology as well as to represent oneself adequately often in complex issues.  

Providing support to the Bar and the justice system more generally during this crisis have been the Bar Council’s top priorities. The government has acknowledged barristers are ‘essential workers’ but, because of the decimation of work, without adequate financial support, there might not even be enough barristers after this crisis to help operate the justice system. Our recent survey shows over half of all barristers and over three quarters of criminal barristers, won’t be in practice by October, if the government does not provide financial aid. 

Which have been the biggest challenges in keeping up the work in the legal field?

Challenges include safety, technology and sustainability. In order for courts to be safe to attend in person and comply with social distancing and government advice, their footfall has had to be much reduced. Court staffing levels have been badly hit by the virus, so work has not been progressed. That, along with having to put in place and operate new technology, has been a significant challenge to the delivery of justice in all areas of practice. Work to ensure courts are safe to attend continues with much more transparency, leading to greater public confidence in the system. For those  conducting hearings remotely, it has been a challenge on all sides – for barristers, the judiciary, other participants and the government - to ensure that the quality and efficacy of justice is not compromised, and that technology is sufficient to allow proceedings to run smoothly. In criminal cases, although HMCTS has rolled out at pace the superior Cloud Video Platform (CVP) into many prisons, police stations and courts, there simply isn’t enough capacity to allow lawyers to take the necessary instructions from clients and for courts, probation officers and others to use them at the same time to drive cases on. Some hearings simply cannot be conducted appropriately by phone or video and these are adding to the delays already in the system. 

Covid-19 has had a serious impact on the diversity and sustainability of the Bar affecting younger practitioners disproportionately. It has also particularly affected those doing legally aided work, especially in Crown Courts where, for two months, no jury trials were held at all. Even in the Magistrates’ courts, the number of trials has fallen and is currently trickling through. In civil lists, the overwhelming majority of cases have been adjourned with no final determination, even though remote hearings could be held.  This has had a devastating impact on barristers’ practices and income. As our survey shows, 71% of the young Bar will not survive past October. The government says it is keen to underpin a sustainable, diverse profession. If it is, it must help to support it now. 

What has changed in the working style of British lawyers and judges since the beginning of the lockdown, which adaptations did they have to make? 

Barristers, judges and other court users have all adapted very quickly to new ways of working, not least with the rapid growth in the use of technology. Remote hearings, which were going to be rolled out by HMCTS over the course of the next few years, have become normal within a few weeks. Nonetheless, the technology isn’t always reliable and issues joining hearings remotely continue to dog the system. Cases take longer in virtual hearings and there are concerns about the quality of the results. 

However, not all cases, particularly some family cases and criminal trials which involve jurors and contentious witnesses, can be done virtually. Some in-person jury trials have now resumed with social distancing in place but there are only a handful of court centres currently able to house them and they are very reduced in number: at the Old Bailey (an 18 court centre), a maximum of four jury trials can take place.  The safety of all those involved in trials and attending court is crucial and must be balanced with ensuring the quality of justice is not compromised. Many professionals have had to abandon their offices or chambers and are working from home. This presents its own problems with balancing family life and ensuring a calm, separate space from which to “attend’’ court.

What influence does the pandemic have on proceedings in arbitral tribunals in the UK?

For hearings with no live evidence, arbitral tribunals have adapted swiftly and flexibly to remote on-line hearings.  In cases where live witnesses need to be called, parties and arbitrators are currently resistant to moving cases online so the prospect of serious delays is emerging.

What role does technology play in keeping the criminal justice system moving during the COVID-19 pandemic?

With only about one third of courts open to users and another third staffed but only available for remote hearings, technology has been crucial to keeping the criminal justice system going. In the Magistrates’ courts, hundreds of cases have been dealt with remotely, avoiding the need for prisoners to be brought to court and for barristers and solicitors to attend in person. However, some judges are requiring the attendance of witnesses and defendants when they are giving evidence. We are urging the greater use of s.28 measures whereby the evidence, including cross-examination, of a witness can be taken and recorded at an early stage, to be played in the trial later on. This would reduce the long wait - caused by a combination of the backlog and Covid-19 - before some vulnerable witnesses give their evidence. In the Crown Court, video streaming and phone links are being used to spread participants across multiple court rooms so that open justice can be assured in the more serious cases.

Could you explain us a bit about the new video technology that is being used to support virtual hearings in criminal courts: How does this tech work, how has been the experience with it so far?

HMCTS is rolling out Cloud Video Platform (CVP) to all courts in England and Wales. It connects securely to police stations, prisons and courts and is accessible by any internet-enabled device with a camera and a microphone. Reliable, high quality technology is crucial to keep the justice system going in the public interest, so I am pleased that it has been rolled out so quickly. Unfortunately, it is not increasing capacity, so prison facilities remain limited. To make a substantial difference to the efficiency of the courts, there need to be far more CVP resources put into prisons and police stations across the country.

Are there any differences to notice between arbitration and litigation in courts in the UK in terms of the virtualization of judicial procedures?

Because arbitration takes place by agreement between the parties, there is far greater scope for arbitral tribunals to exercise more flexibility than courts. For instance, the courts are tied to a very limited choice of online platforms, whereas parties to an arbitration are able to choose from the many commercial alternatives which can be more intuitive, user-friendly and have greater technological capabilities. The parties can also agree to hear witnesses remotely (and often did even before Covid-19).

To read more about Amanda Pinto QC, visit https://www.33knowledge.com/amanda-pinto-qc

For further information about the Bar Council, please have a look at https://www.barcouncil.org.uk/