1. It has threatened our right to protest
The 31st May marked the first day of large and widespread BLM protests across the UK when more than 100 people gathered at Writers’ Square in Belfast for a solidarity vigil for George Floyd. Whilst many were anxious to attend protests and show their support for this important cause, merely attending put protestors at risk of being prosecuted for committing a criminal offence. This was because Regulation 7 of the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 prohibited outdoor gatherings consisting of 7 or more people. Secondly, because exceptions listed under Article 11 ‘Freedom of association and assembly’ rights include ‘public safety’ and ‘protection of health’ which meant there may well have been a suitable justification for the regulation infringing on certain human rights.
Since the 4 July, coronavirus regulations have eased and gatherings of up to 30 people have been permitted anywhere. The regulations also made clear a few exceptions to this rule meaning that protests and similar events could have more than 30 people attend as long as the organiser:
- 'conducted a risk assessment which met the requirements of the Management of Health and Safety at Work Regulations 1999, and
- ensured all reasonable steps to limit the risk of transmission of coronavirus were taken, in line with the risk assessment.'
So why was the London trans rights protest, set to go ahead on Saturday 5 September at Parliament Square, cancelled? Even though initially Metropolitan Police assured Thaniel Dorian, the organiser, that ‘there would be “no risks of arrests or fines” if the protest went ahead, because it did not pose a risk of danger’. They then changed their mind and informed the organisers, participants, stewards and even BSL interpreters that they were likely to be arrested, and so Dorian called the protest off.
Additionally, human rights organisation Liberty has called the protesting rules ‘convoluted and confused’.’ They argue that ‘organisers have been set a host of bureaucratic hurdles before they are permitted to protest in groups of more than 30 [….] making lawful protest incredibly difficult’. They say the risk assessment is impossible to meet because:
- ‘it is a workplace assessment which makes no legal sense when applied to a protest;
- there is no guidance on how a protest organiser should manage risk, or what a proper assessment looks like; and
- no information has been provided on how assessments will be monitored.’
Furthermore, they emphasize ‘that anyone attending or organising a protest could find themselves at risk of arrest because it is impossible to know if a satisfactory risk assessment has been carried out.’
Today (Monday 14 September) new laws have emerged in England placing heavier restrictions on its citizens again: when meeting friends and family you do not live with you must not meet in a group of more than 6, indoors or outdoors. That said, protesting rules seem to have remained the same.
2. It has delayed justice and threatened jury trials
Lockdown has made the existing backlog of criminal cases worse. According to court officials, ‘the backlog runs to 550,000 cases, including 41,000 in crown courts.’ Although Lord Chancellor Robert Buckland is optimistic that Nightingale courts ‘will help boost capacity […] reducing delays and delivering speedier justice for victims’, McConville and Marsh have their doubts; they warn that ‘priority will be given only to the most serious cases, while the rest gather dust elsewhere for up to a year or two [and that] some may never see a courtroom at all.' As well as Nightingale courts and potentially longer court hours, ‘possibly smaller juries’ and video technology have also been dubbed as Covid-19 secure, logjam clearing solutions. However, both of these options carry risks.
Barrister Andrew Vout argues that ‘trial by jury is fair and, crucially, seen as fair’ and therefore, ‘restricting [them] would be a huge error.’ This view is largely supported by the Criminal Bar Association, which is united in its rejection of the scrapping of the jury system, with 93% of practising criminal barristers rejecting further government cuts to jury trials.
The Huffington Post reported that ‘polls routinely find that the vast majority of people think jurors are fairer than judges in deciding whether a person is guilty.’ This is fairly understandable; afterall, they are independent from the judiciary and the state, and are therefore more likely to be representative of the general population. Therefore, by restricting jury trials or cutting the number of jurors, there is a chance that society will lose trust in the criminal justice system or worse, the number of wrongful convictions rise.
3. It has led to online hearings and the suggestion of online trials
Thousands of other court hearings (both criminal and otherwise) have already taken place virtually across the three UK jurisdictions. As cited by Penelope Gibbs, this has led to several issues including: poor connectivity, rushed inquiries, reduced confidentiality, disengaged and disrespectful defendants as well as less effective communication. These pitfalls suggest that a virtual fair hearing may not be viable in affording either party the outcome or justice they deserve.
JUSTICE has also been conducting research on virtual mock trials where ‘all participants join the virtual court via video, with the hearing livestreamed to a virtual public gallery.’ So far, they report that the trials have shown promise ‘even providing improved sightlines in the court, which ensures that all participants can see and hear each other at all times.’ That said, they do understand that not all trials will be suitable for virtual court, especially ‘complex, multi-party cases and where the parties have vulnerabilities to which a virtual trial cannot adapt.’
4. Prison conditions have worsened
According to Peter Clarke, chief of prison inspections, since lockdown most prisoners have spent at least 23 hours a day locked in their cell and, in one prison, shielding prisoners had only one and a half hours out of their cells a week for two months. Additionally, living conditions declined with unacceptable lapses in cleanliness; some prisoners have had to wait hours to be let out of their cells and even had to urinate or defecate in buckets/bags, before then being expected to eat in the same area without access to hand washing facilities or hand sanitiser. Clarke recognised the risk of psychological decline and according to Peter Dawson, director of Prison Reform Trust, these measures are unsustainable.
