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Nightingale courts: a cry for help from the court system?

Nightingale courts: a cry for help from the court system?

Bethany Barrett

11/01/2021

As the true scale of the pandemic came to light in March 2020, we all saw the pictures on the news of builders rushing to repurpose convention centres and other buildings, turning them into makeshift ‘Nightingale’ hospitals. But these are not the only Nightingales. On the 19th July 2020, the Lord Chancellor announced the creation of 10 Nightingale courts in locations across the UK. There are now currently 18 Nightingale courts in use. But why are they needed?

When lockdown was first announced in March last year, court proceedings drew to a sudden halt. Almost half of UK courts were forced to close, and all new trials were suspended. An already overwhelmed and struggling court system became swamped, with the backlog of cases growing daily. People already remanded in custody awaiting their court hearing were suddenly deprived of their liberty indefinitely, bringing human rights considerations to the fore. Equally, victims were left in a state of limbo. One such victim, a woman waiting for the court date of her alleged rapist to be set, told the media that she regretted even reporting the crime because of the impact that being left waiting has had on her mental health.

Within weeks, courts had installed protective screens and social distancing markers in the physical buildings, while also moving vast numbers of trials online. This number has continued to grow, and the weekly HM Courts and Tribunals Service briefing on their response to the pandemic reports that, in areas such as family law cases, the number of sittings taking place is almost back to pre-pandemic levels.

However, jury trials remained suspended until the later date of 11th May 2020. This is because, in England and Wales they must take place in person and not online (Schedule 23, s2(2) Coronavirus Act 2020). Scotland, it should be noted, has allowed juries to attend trials remotely (Schedule 4, s2(1) Coronavirus (Scotland) Act 2020). Obviously, the decision to move jury trials online is not one to be taken lightly; there are many procedural fairness considerations to think about here. Recently, JUSTICE has conducted several mock remote jury trials, with its findings being relayed back to Parliament to help inform future decisions.

In the meantime, jury trials, among others, are still taking place in person, but obviously in a covid-secure manner. This means that one trial often takes up several courtrooms, with secure closed-circuit video links being used to connect them. This, along with the difficulty in bringing together enough people without symptoms to form the trial, has resulted in the number of sittings taking place being drastically lower than before the pandemic. Consequently, the backlog of cases has continued to pile up.

With this backdrop, it is easy to see why Nightingale courts have been introduced. While Nightingale hospitals are on the literal front line between life and death, a failure of the justice system also represents life and death for the people involved. Buildings such as theatres, town halls and civic centres are all being used as makeshift covid-secure courts. However, this is not without controversy. Recently, the Black theatre company Talawa pulled out of its 2021 season at the Birmingham Rep Theatre (which is currently being used as a Nightingale court) over the impact this would have on the “integrity” of its work “to champion Black excellence in theatre; to nurture talent in emerging and established artists of African and Caribbean heritage, and to tell inspirational and passionate stories reflecting Black experiences through art.” While the company acknowledged the financial stress on theatres such as the Birmingham Rep due to the pandemic – an aspect which the theatre heralded as their reason to accept the government’s proposition to rent out the space as a Nightingale court – Talawa concluded that this decision did not align with its ethos and the communities it represents. This story highlights the tension between the justice system and many minority communities; tensions that owners of buildings being used as Nightingale courts should not underestimate.

But what next for the Nightingale courts? The backlog of cases will take years to work through. Although, with the vaccine now being rolled out slowly but surely the time for these temporary courts will run out as the buildings they are housed in return to a state of normality. Hopefully, the extra build-up caused by the pandemic will force wider reform in this area moving forward. After all, it is important to recognise that the pandemic was not the initial cause of the backlog, instead it simply served to highlight a problem that was already here. Much like the NHS, the court system has suffered from understaffing, rising demand and budget cuts, all contributing to the system being weakened by the point the pandemic hit. As society recovers from coronavirus, it will be worth remembering what we valued during this time and what we learned from it. Maybe these lessons will help to inform our future calls of reform for the justice system.