In March this year, when the government announced lockdown measures to slow the spread of Covid-19, the UK justice system was also transformed. Trial by jury, which requires the gathering of people in a room, became an impossibility. But there were other consequences. Cases were adjourned from trial lists. Court employees were furloughed. Judges were placed on a rota system that reduced the days they worked.
All of this would have had an impact even if the system functioned well. But this was not the case. “We did not enter lockdown with a Justice system that was in sound working order,” wrote Richard Wright QC in an article in Crimeline earlier in the year. “We entered lockdown with a Justice system that had been cut to its core and in which significant trial backlogs had been allowed to develop, hidden behind meaningless and misleading statistics.”
The idea of ‘Nightingale’ courts – the Ministry of Justice engaging in partnerships with the private sector to repurpose buildings as courts – was just one of several floated to address this backlog and allow cases to be heard in physically distanced environments. A number of these venues had already been announced, including Middlesbrough Town Hall and East Pallant House in Chichester. This week new locations were revealed, including the Hilton Hotel in York and The Lowry in Salford. The theatre released a statement that judges based at The Lowry would hear criminal, civil, family and tribunal cases and that “the income is set to help ensure the organisation’s survival and help safeguard hundreds of jobs.”
Many theatremakers expressed their dismay and anger at this step on social media, while others countered that the societal impact of the backlog needed to be addressed. For Xavier de Sousa, of campaign group Migrants in Culture, the outrage at the theatre’s decision to partner with the Ministry of Justice is entirely justified. “I am deeply, deeply disappointed about the decision, and not because I don’t value that many have been waiting for their cases and justice to move forward.” For Marcus Bernard, artistic director of the Upsetters, it’s impossible to separate the court system from the rest of the criminal justice system. The courts are “there to enforce a system that is already deeply unjust, racist and classist, and often causes deeper inequality and poverty. If some of the laws we have are unfair and the courts are unfair (as a weight of evidence suggests with harsher punishments given to Black and Brown people), then for many addressing the backlog just means rushing them through a broken (and often traumatic) system to an unjust outcome.”
Sascha Goslin is an independent producer who studied law before pursuing a career in theatre. “The justice system desperately needs an overhaul. It’s definitely broken, racist, classist,” she acknowledges. “However much I’d like to see it overhauled completely though, I feel we need to do our absolute best for the people trapped in the system now, as well as trying to overhaul the system.”
The so-called ‘Nightingale courts’ are one way of doing that – but the name is, in itself, misleading. With its connotations of care, echoes the Nightingale hospitals and implies that the need for extra courts is purely a result of Covid-19. This is not the case. The backlog of criminal cases already existed, and was just one of the consequences of a chronically underfunded justice system.
One of the reasons for this backlog is lack of space. In the last 10 years, the government has closed large numbers of courts. According to Nick Bano, a barrister who specialises in representing homeless people, “more than half of the magistrates’ courts have shut down. Hearing centres have become more centralised and less local. They’ve even shut down state of the art buildings like Blackfriars Crown Court, and young purpose-built premises like Hammersmith Court Centre. Partly due to this, before the lockdown there were already massive delays in the justice system – particularly in the criminal justice system. People would be waiting months and years for trials.”
Brutal cuts to legal aid have also, according to an Amnesty report in 2016, “decimated access to justice for thousands of people.” Writing in the Guardian, the Secret Barrister explains how these cuts were implemented on the fallacy, pushed by the Ministry of Justice, that the UK had “the most expensive legal aid system in the world”. This was simply not true. And as they went on to state, “Legal aid is the baseline for a civilised democracy. Without it, the rule of law collapses. People can only enforce their rights, or defend themselves against the state, if they have access to legal advice and representation.”
For Jeinsen Lam, a housing solicitor for South West London Law Centres, an organisation that provides access to justice to those who could not otherwise afford it, the Nightingale courts are a half-measure. “They are not a panacea to the backlog nor the underlying problem with the criminal justice system. [But] whether people like Nightingale courts or not, the need to deal with cases better and address the backlog is an important one.”
For Lam, it’s vital to consider what these increased delays actually mean in practice. For those people awaiting trial for months there will be financial costs, even if you are found innocent – this is known as the ‘innocence tax’- but also a human cost, on people’s relationships, their families, their mental and physical health. He also flags up the impact of these delays on victims of rape or sexual assault.
“The human cost of the backlog is massive,” says Goslin. “Imagine having to spend eight months in prison before anyone even listens to your case, or having your landlord harass you for months because they want you to move out, but not being able to move out without an eviction notice from the courts because the council won’t accept you’re legally homeless without one, and won’t support you if you leave early as they’ll then consider you intentionally homeless. The people already in the system deserve not to have their lives in limbo.” And although she acknowledges the unfairness of the existing system, she argues that it’s only made worse by the current backlog. “A justice system which creates uncertainty and stress for long periods of someone’s life will always be unfair, even if it rules in their favour. Where someone’s on remand, then found innocent, they’ve wasted months of their lives in prison, and they’ll never get that time back.”
There is, says Lam, “value in ensuring that justice is administered quickly and fairly for those accused of crimes but also with sensitivity for those who have been subjected to a crime. Hosting a court should be seen as a civic service.”
The Lowry, more so than the other buildings in the Nightingale system, has become the focus of people’s anger precisely because of its role as a theatre. This decision is viewed by many as a betrayal of purpose and a breach of trust. “It’s great when theatres sit at the centre of their community,” said Rosie Curtis on Twitter, “if they serve people outside of making art. it is shameful if the first time you set foot in a theatre is to watch your nan go through an eviction hearing, truly an indication that this space is not for you.”
Lam disputes this is an issue. Many buildings change their purpose over their lifetime. “Cities evolve with communities, with the priorities and the needs of the people who inhabit them,” he says. “When the Lowry is used as a court it will be a court. When it is used as a theatre it will be a theatre again.”
As a lawyer, though Bano counts himself “immune from the effect that courts have on many people,” he understands people’s concerns in this respect. Though he adds: “To be frank I’m far more nervous in a theatre than a court.”
In his opinion, the Nightingale courts are “part of desperate attempt to paper over the cracks since they sold off half of the court estate.” That said, he’d prefer these courts to be in buildings like the Lowry – “which are independent and have a vague claim on accessibility” – than in council or government department buildings. “Many cases involve the state as a party, and there’s an oppressive sense of bias if you’re in one of their buildings.”
For de Sousa, the issue hinges on “the use of the theatre space as a space where sentencing, incarceration and state violence take place on a daily basis. Even if you try to divert from the fact that institutionally, at state level and social level, minorities such as migrants, people of colour, disabled, working class and LGBTQ+ folk get consistently mistreated and discriminated against, the very purpose of the theatre space is a space of communal gathering, radical thinking and imagining.”
But as Gosling points out, “generally there are a lot of people already intimidated by indoor theatres as much as they are by courts, because they have more similarities than we like to admit. There is a similar etiquette. You see a lot of white men and women from middle class backgrounds using sometimes archaic language while wearing costumes, there aren’t many regional accents and even fewer people of colour.”
She agrees that this business decision will in all likelihood change the community’s relationship with the theatre, but that, for her, “clearing the backlog is more important than The Lowry’s reputation.” Not everyone will think this compromise is worth it. For Bernard, the decision suggests that the type of people that The Lowry expects to be in their theatre are not the working-class people who are more likely to be caught in the legal system; “a theatre is supposed to be a civic space and a community hub, which is now going to become potentially unsafe and alienating for a lot of the community it is there to serve.”
It is also a mistake, he says, to view this as a binary situation. It was not as if The Lowry’s only two options were face closure or become a court. “We may need more courts right now, but we also need more classrooms, lecture halls, homeless shelters and food banks too.” We should instead, he says, be talking about reform and abolition, about reducing the backlog in other ways by, for example, decriminalising sex work or legalising cannabis possession, rather than simply creating more courts. He points out this also comes weeks after organisations and individuals were proclaiming their support for Black Lives Matter. It comes down to “not actively supporting a system we know to be racist.”
Lam agrees that there are undeniable issues with race within the CJS, citing racial bias in terms of who gets stopped and searched, who gets charged and the severity of sentence. “There is justifiable anger at the flaws within the CJS but even its greatest detractors would accept the fundamental need for a process of administering justice in any democracy.” But he also argues that the arts and the justice system are both part of the fabric of a liberal democracy, and both are also dealing with the fall-out of government cuts and a decade of austerity measures and underfunding. The impact of Covid-19 has meant that the theatre sector is on its knees, and the CJS is in a state of collapse. “Art and justice,” he says, “are not incompatible, and both need to be fought for.”
Goslin takes the view that, yes, The Lowry is complicit, but she adds that “I think every part of society is complicit.” She points out that, all too often, protests against legal aid cuts and pushes for justice reform come from the legal sector itself. “That’s not enough. We all need to push for it, theatre could raise a lot more awareness and push the narrative for reform a lot more than it does. I’m glad to see the sector is angry about this, and I hope we’ll do more now, even if I’m frustrated many haven’t spoken about it until it impacted The Lowry.”
None of this is easy. It wasn’t easy before Covid-19 amplified things. No one I spoke to argued that the criminal justice system wasn’t anything but deeply flawed, structurally racist, and broken, but there is also the question of the pressing need to resolve one of the biggest human costs of this broken system, and the impact it’s having on people’s lives right now. Solutions need to be found, or people’s stress and suffering will only be drawn out untenably. The whole conversation is knotty, uncomfortable and undoubtedly deserving of anger – but perhaps there are ways in which that anger can be used positively and collectively, to advocate for change.
If you want to read the final report of the Lammy Review in full it’s available here. Here’s the Secret Barrister on Post-Covid criminal justice. And here’s an article on the radical history of Law Centres.