July 10, 2020

“Wigs off – masks on!” – Are face masks to be worn in Court?

Last month Professor Trish Greenhalgh at Primary Care Health Sciences, Oxford University publicly expressed a strong recommendation that face masks should be work by advocates and witnesses in Court. She said that whilst there was a lot of controversy about the effectiveness of wearing a mask, the balance of the evidence favoured their use in order to minimise the risks of contagion.

There was evidence that just about anything in front of the wearers mouth and nose substantially reduces the emission and spread of large droplets and smaller airborne particles, which can transmit the virus and are emitted from the mouth and nose.

The concerns are of particular importance to the Courts and Tribunal Service since the number of outstanding more serious cases in the Crown Court was as high as 40,000 odd as at 24 May, and the number of cases waiting to be heard in the Magistrates Court could now be as high as half a million!

The obvious issue with Court attendance is that persons speaking (advocates, witnesses, judges, others) are often required to do so in raised voices to ensure they are heard by all present, and frequently in old buildings not given over to good audibility. Loud speaking for many hours indoors will increase the risks of spreading infection of this invisible killer virus.

There is understandable resistance to the use of face masks in Court by advocates. Without doubt the effectiveness of a speech or probing question is adversely affected by doing so through a mask covering a large proportion of a face, and equally to the witness giving evidence. But if a video hearing is not possible then surely public safety trumps all other concerns and the wearing of a face mask must be compulsory, however uncomfortable and impracticable?

The wearing of a face mask does not protect the wearer, but is believed to be beneficial in protecting others from contracting an infection particularly where a person is infected but has not yet developed any symptoms. This reasoning caused the Government to issue a change in the law from 15 June requiring everyone using public transport to wear a mask. So why not those persons attending Court?

On 1 July HMCTS released a video platform enabling more remote cases to be heard in the Civil and Family Courts, but not in the Criminal Courts and as yet there is no mandatory requirement to wear masks. The dress code or maxim for the times should perhaps be “wigs off – masks on!”.

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