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June 15, 2020

Some of you will have read the Q & A session between Dominic Thomas and Simon Pentol QC, ‘A unique insight into defending in the age of lockdown’ following the first trial to be held in Bristol Crown Court since the lockdown was imposed. I have just concluded the third, which followed my completing the last jury trial to be heard in the country after lockdown. Then, at the end of March, things looked very different. None of us really knew what we were doing, other than trying to get a trial that had started two weeks beforehand finished before someone involved in the process caught the virus. At that time, that seemed a very real possibility, but the steps put in place to prevent it were extremely basic. The jury were asked if they wished to move around the court so that they could distance themselves from each other, but most chose not to, and they shared the voluminous jury bundles one between two. The many police officers who attended, remained happy to mix with everyone and occupied a tiny conference room outside of court.

Ten weeks later I found myself once again walking back into the same court building and, in fact, the same court room in front of the same judge. Other than those similarities, things looked very different. For one, there were stepping-stones at the entrance to the court urging people to stand two metres apart. The security staff, who were as frightened as everyone else the last time I visited, were back to their smiling, helpful selves but were now wearing gloves and armed with antibacterial spray. Having the Bar Council pass meant that I didn’t have to place my belongings on a tray to pass through the scanner and nor was I required to be searched, things which both sped up the process but also, importantly, made it feel far safer.

I walked up the three flights to the robing room (rather than going up in a lift), to find that didn’t look very different to the pre-Covid times. Yes, there were posters on the loo doors urging one in and one out, but without knowing whether the loos were occupied upon entry, that was in reality of little assistance. There was also a solitary bottle of hand sanitiser on a table halfway into the room andthree out of every  mirrors had been covered over, making the dressing area suitable for very few. The only other differences were that the majority of the chairs around the edges of the room had been covered with yellow and black tape and the keyboards, used to log into Exhibit had been removed. But that was it. There was no one-way system for filing around the room, no markings across the floor at two-metre distances and, as mentioned, the single bottle of sanitiser.

The court room and the trial process itself though were both very different. The door to the court barred entry to anyone until the parties were called into court. The ubiquitous yellow and black tape separated the usual path to the clerk’s desk, the defence and prosecution sections of the bar and covered most of the chairs in the jury box, press box and public gallery.

The jury selection was conducted with the clerk in court and the jury in their assembly area via speaker phone. All doors had been opened prior to selection and, as their name was called, they filed in one by one to take up their numbered seat which was strategically dotted around the courtroom. Those seats consisted of three in the jury box, two at additional tables to the side, three in the third row behind counsel and four in the public gallery. Once empanelled they took their affirmation (none had chosen to bring their own Holy book) by reading it from the screen via ClickShare. Members of the public and interested parties, instructing solicitors and additional police officers were seated in the adjoining court from where they watched proceedings via a CCTV link.

When the case was opened and closed, the advocates spoke from the witness box. There was a break every hour to enable the doors to be opened and the court to have the air refreshed. All documents, including indictments, prosecution and defence exhibits and agreed facts had provided to the court in advance and put into the jury’s folders and on a table next to the witness box 72 hours before the trial began. Statements or other memory refreshing documents were also placed on that table.

The main difference I terms of the trial itself was that everything took far more time than it usually would. Every time there was a break, we had to wait until all of the doors to the jury assembly area were opened before the jury could file out in the same order they had come in, each two metres apart.

I couldn’t go to the witness box to deliver my speech until we had had a break to enable the court to be cleared, otherwise I would have breached the two-metre rule as I made my way around the court. I also had to swap places with prosecution counsel to enable me to slip into her seat once I had finished to avoid having to clear the court again because the jury bailiff was to enter via the witness door closest to the judge. Each time a witness entered court, or the jury entered or left, the officer in the case, who sat in the press box, had to leave. And of course, when the jury retired, they went to a separate court on the next floor to allow them to have the room to space themselves out. Oh, and although unlike the robing room, the court had a surplus of tissues and sanitiser, it didn’t have any water bottles so we each had to bring our own water bottle and cup to drink from.

But the trial, a retrial, was heard from start to finish without a glitch. The jury were always in good spirits and appeared to be grateful for the care that had been taken in respect of their wellbeing. Witnesses can only be accompanied by someone from their own household which for adults may prove difficult but, again, once the reason for the rule was explained, they were all content to abide by it.

Personally, I found it extremely exhausting. Not only do we have to juggle the usual things required of us during a trial, but we have to be conscious every single moment of the times that we are working in. Being back in a familiar courtroom can lull us into a false sense of security and having to remember all of the smaller issues that are now required to enable a trial to proceed safely, takes its toll.

Equally, from what I have set out above, it is clear that the volume of trials being heard will not return to anywhere close to normal until we are past the pandemic. But great strides are being made and lessons are being learned from each trial that is heard, so that some of the problems of the first, had been ironed out by the time my trial took place.

Having to think on our feet is in the nature of what we do each day and dealing with the new normal is just another part of that.

Sarah Regan