Weekly Notes: legal news from ICLR, 11 May 2020

This week’s roundup of legal news and comment includes a plan to relax the lockdown (by staying alert), ways of continuing criminal trials, judicial leanings (on), data protection and more coronavirus guidance and commentary.

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STAY ALERT! (image by Aidan Boran via Pexels)

Politics

In a message to the nation on Sunday 10 May 2020, the Prime Minister Boris Johnson set out when and how the restrictions previously imposed on personal movement in order to effect an anti-coronavirus lockdown would henceforth be relaxed. The previous slogan requiring people to “Stay at home” has been replaced by one urging us to “Stay alert”.

The BBC reported that the speech was pitched as a “conditional plan” to reopen society. The condition is that the R (reproduction) rate of infection remains below 1, where each infected person passes it on to one other person (currently it is said to be between 0.5 and 0.9). A new Covid Alert System with five levels, a bit like the colour coded terrorist threat alert levels, would govern how quickly lockdown restrictions could be eased. An image used in the message appeared to show the current status as between levels 3 and 4, ie 3.5 — which is perhaps not as clear and simple as was intended.

The PM said those who could not work from home would now be encouraged to return to work, but that they should avoid using public transport to get there if possible. The general reaction reported by the media, particularly the reaction from employers and unions, was one of confusion and uncertainty.

Despite Mr Johnson saying that he had consulted “across the political spectrum, across all four nations of the UK" over his message, the three devolved nations, Scotland, Wales and Northern Ireland, all explicitly distanced themselves from his new approach, giving out messages that their versions of the lockdown would continue largely unchanged.

Having presented it to Parliament, the government has now published its 50-page Covid-19 recovery strategy, Our Plan To Rebuild (pdf). There is a helpful summary on the Law In The Time of Corona blog.

Given that the lockdown was given legal effect under legislation (as well as various guidance), the obvious question must be, will that legislation now be amended? Will it be reviewed, as it needs to be? For a survey of the current legislation and guidance, see the Law and Lawyers blog, Covid — Guidance changes ~ Links to Regulations

Previous attempts to “tweak” the secondary legislation (coronavirus regulations) have not been entirely felicitous, as David Allen Green explained last month in a post on the Law and Policy Blog, A blunder in the amended Coronavirus regulations — how the Home Office inadvertently made the work “reasonable excuse” unclear

On this, see also Making Sense of the Amended Lockdown Law, by Oliver Jackson, a pupil barrister at Monckton Chambers, via the UK Human Rights Blog.

Courts

Paul Magrath, writing for the Transparency Project, reviews a mock trial organised by law reform group JUSTICE to test the idea of a Virtual Crown Court. It’s one of a number of possible solutions to the backlog of 37,000 cases awaiting resumption of operations in the Crown Court, jury trials having been suspended since 23 March under the coronavirus lockdown.

Writing in the Law Society Gazette (Pulling our justice system back from the brink), David Lammy MP and Lord Falconer (shadow Justice Secretary and Attorney General respectively), comment on the idea:

“There are huge problems with doing jury trials remotely. They depend on jurors reaching a joint conclusion, which is difficult if they are physically isolated from each other. For jurors to hear evidence in their own homes, they need IT equipment, skills and a quiet place within their home. The digital divide is real. This will not be possible for some people. If those who cannot meet these requirements are excluded, juries will become socially unbalanced. Until these issues are overcome, the jury is still out on virtual jury trials.”

Another option is reducing the number of jurors, as discussed in a post on the UK Human Rights Blog, Juries and Covid-19: protecting the right to a fair trial.

However many jurors are used, there remains the need to preserve safe personal distancing. In a recent evidence session before the Commons Justice Committee, justice minister Chris Philp suggested using two court rooms, with video links, to help preserve social distancing in a jury trial. He made clear that

“there is categorically no question at all, under any circumstances, of the right to jury trial being removed. It is a fundamental right. It goes back centuries in our history, and it will never be removed at all.”

Nor has there been any pressure from lawyers to get on with things without the jury. Quite the opposite, as Max Hardy points out:

However it is achieved, the Lord Chief Justice has today announced that jury trials will resume under physical distancing restrictions in a limited number of crown courts in England and Wales from 18 May.

“Intensive work has been underway through the Jury Trials Working Group chaired by Mr Justice Edis to establish ways in which a small number of jury trials may be commenced safely, in line with regulations allowing all participants in criminal trials to travel from home to court.”

The announcement goes on to say:

“The first courts in which new juries can be sworn will include the Central Criminal Court at the Old Bailey in London and Cardiff Crown Court. Public Health England and Public Health Wales have been involved in the detailed arrangements following recommendations from the Jury Trials Working Group, which has representatives from the legal profession and across the criminal justice system.”

“Arrangements to allow appropriate distancing to be maintained at all times include providing a second courtroom, linked by closed circuit TV, to enable reporters and others to watch the proceedings, and another court room to use for jury deliberations. Courts staff will ensure that entrances and exits are carefully supervised, and that all necessary cleaning takes place.”

For some idea of what it’s like for counsel to participate in remote criminal proceedings, Joanna Hardy in a guest post on the Secret Barrister blog tells it like it is, in I’m an online lawyer now. Can you hear me?

“As I look at my client — a mile, a prison wall, and a microphone away — I try to pinpoint why it feels like there is a barrier to communication. Is it just the improvised technology? That will improve. I remind myself that GPs hold sensitive appointments by telephone and on the internet. Court videolinks are not new. So why then, in certain circumstances, does online feel like second best?”

Surprisingly, the FOH pilot which kept being postponed and was then finally started towards the end of last year has only now come to an end and is awaiting an independent evaluation process, HMCTS has announced. We say “surprisingly” because the idea of conducting any court business in a normal fashion during the coronavirus lockdown, when half the courts are closed anyway, the the rest working at reduced capacity to accommodate safe personal distancing, seems counter-intuitive. One would expect it to have been abandoned eight weeks ago when the lockdown locked down, and one does wonder how much of it was actually still being done in March. The announcement says that

“Courts traditionally sit between 10am and 4pm, but from September 2019 to March 2020, Manchester Civil Justice Centre and Brentford County Court operated outside of these traditional hours.”

The courts heard a mix of cases including family financial dispute resolution, road traffic accident, small claims and rent possessions. HMCTS has appointed IFF Research and Frontier Economics to assess the pilots. Their evaluation will include feedback from members of the public, court staff and the judiciary (and, one assumes, lawyers) on their experiences. The findings will be published in a report later this year.

Judiciary

Free Movement reports on an “astonishing attempt to interfere with the independence of the judiciary” when a civil servant sent a letter to a top immigration judge to say that the Home Office was “somewhat surprised” that judges had agreed to release so many people on immigration bail during the coronavirus crisis. In reply, First-tier Tribunal President Michael Clements pointed out, pointedly, that

“As [an] independent judiciary we decide bail applications in accordance with the law, which includes the guidance which has been issued. There has been no change in either the law or the guidance.”.

The Immigration Law Practitioners’ Association said that the letter was “not appropriate”. They have published both the letter and the response on their website: Correspondence between the Home Office and the President of the FtT(IAC)

The Home Office later denied attempting to influence independent judicial decisions, saying that the letter “transparently explains our pandemic response including carefully reviewing cases”.

Data Protection

Under article 97 of the General Data Protection Regulation (GDPR) the European Commission is obliged to submit a report on the evaluation and review of the regulation by 25 May, the second anniversary of its coming into force. There is a link to its public consultation here.

David Erdos (Deputy Director of the Centre for Intellectual Property and Information Law (CIPIL) comments on this in Acontextual and Ineffective? Reviewing the GDPR Two Years On, via Inforrm’s Blog. He says:

“Looking to both the medium and long-term future of this important framework, there are two big areas which I argue this review should seek to reform: firstly, the GDPR’s overly acontextual and process-based norms and, secondly, its often ineffective implementation and enforcement including in many cross-border cases.”

In a speech given to the Westminster Forum on 5 May 2020, Paul Wiles, Biometrics Commissioner, said that when he wrote his latest report, back in January,

“I was largely looking back and reporting on the police use of biometrics in the previous year. There was an exception to that in a section where I addressed the issue of the emergence of new biometrics and the Artificial Intelligence (AI) driven analytics on which they depend and whether, if they are used in policing, that should require new legislation to provide a governance framework? Those comments were made in a world that has since been turned upside down by coronavirus.”

The report has been sent to the Home Secretary but she has not yet laid it before Parliament and thereby made it public. Broadly speaking, the speech discusses the need for regulation of the use of biometric data by reference to the balancing of individual rights and collective benefits in various contexts. He concludes

“The lessons of the current pandemic make it obvious that legislation creating governance for new biometrics will need to go beyond policing and cover the broader use of the new technologies certainly by State actors but probably also the private sector.”

Domestic abuse

The government announced an extra £10m in funding to help provide support and accommodation to victims of domestic abuse. This funding will support safe accommodation services who not only provide beds, but also offer the critical help victims and their children need. Details of how charities providing such services can apply for the funding were announced on 7 May by Housing Secretary Robert Jenrick. A prospectus provides prospective bidders with information on how to apply for funding and how the assessment process will work.

As well as this emergency funding, the government has also set out plans to support survivors of domestic abuse in the long-term by giving them better access to local housing services. Giles Peaker on the Nearly Legal blog comments

In a rare these days bit of good news, the Government have announced that the Domestic Abuse Bill will be amended to make being a victim domestic abuse priority need for the purposes of local authorities homelessness housing duty.

This follows strong lobbying by Crisis, the APPF on Homelessness and domestic abuse charities. There will be cross-party support.

Crime

The government has provided £2.5 million in funding for community services across England and Wales which support women at risk of being drawn into crime. The funding, which will be awarded later this year, will help cover core costs such as wages, rent and bills. At the same time, Wales has been chosen for the Government’s first Residential Women’s Centre — an alternative to custody that is focused on rehabilitation for women convicted of low-level crime. By tackling the root causes of offending these services will help divert women away from criminality and out of prison wherever possible.

Announcing the funding, Justice Minister Lucy Frazer said:

“The first £5 million awarded under our Female Offender Strategy has enabled some truly inspirational organisations to expand what they do and support more women in need.

These services have shown great creativity and resilience to continue their support through the lockdown, and I want to reassure them this extra £2.5 million will be available when those measures can be safely relaxed.”

Parole Board

“Unfortunately the Parole Board is often misunderstood by victims, the public and sometimes in Parliament, because there is a lack of understanding of the work it does. I am therefore determined and committed to ensuring we raise greater awareness of the work we do. We strive to improve this so that all those affected by our decisions understand how we make them.”

So writes Martin Jones, CEO of the Parole Board, in a press release announcing the board’s business plan 2020–2022 and its strategic aims and priorities. The main priorities are that:

1. We make independent, impartial and quality decisions

2. We work efficiently and effectively and provide value for money

3. We seek to be as open and transparent as possible

He adds that

“while the current situation with Covid-19 will have a significant impact on the timings of the delivery of this plan, the aims and objectives still remain relevant, perhaps even more relevant”.

Coronavirus: new guidance and commentary

ALBA, the Administrative Law Bar Association, has provided Covid-19 guidance to its members, saying:

“ALBA is in contact with the Judge in Charge of the Administrative Court, and is represented on the Administrative Court Users Group and the Bar Council, so please do let us know if you encounter any difficulties so that we may raise these.”

It has also published Guidance to Advocates on Remote Hearings — May 2020 in order to “assist advocates properly to prepare for, and effectively participate in, such hearings in public law cases which do not involve oral evidence”.

The Public Law Project has published a research paper reporting on advocates’ experience of remote hearings: Judicial Review in the Administrative Court during the Covid-19 Pandemic. Reporting on this, Litigation Futures said:

“Overall, the lawyers concluded that, while they supported the JR review process continuing, remote hearings were most often inferior to to in-person hearings, even in such a heavily ‘law-focused jurisdiction’.

Challenges were acute where a litigant was unrepresented, especially where they had no access to the bundle. One litigant in person began to cry during their hearing, while another cut out in the middle of their submission due to technical problems. This made it hard for the judge to respond effectively in the allotted time.”

The UK Human Rights Blog has published two responses to an earlier post by Francis Hoar (A disproportionate interference: the Coronavirus Regulations and the ECHR) which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights:

Covid-19 cannot mean the collapse of the criminal justice system, writes shadow Justice Secretary, David Lammy MP, in the New Statesman. He sets out the things that need to be done now to ensure the provision of essential legal services can continue through and beyond the lockdown.

How effective is whistleblowing protection for workers at the centre of the Covid-19 pandemic? ask Schona Jolly and Dee Masters on the UK Labour Law blog. The Covid-19 pandemic has placed unprecedented demands on workers in both the public and private sector, they say, some of which may require them to compromise their own personal safety. Accordingly,

“there is an urgent need to consider the extent to which the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998 and the Enterprise and Regulatory Reform Act 2013 (‘ERA 1996’) provides effective protection to individuals who highlight dangerous working conditions or challenge Government decisions concerning the Covid-19 pandemic.”

Learning lessons the hard way — Article 2 duties to investigate the Government’s response to the Covid-19 pandemic : Paul Bowen QC (via the UK Human Rights Blog) discusses the need to hold an inquiry into the government’s preparation for and response to the pandemic; how and when a duty to hold such an inquiry arises under art 2 of the Human Rights Convention; and why holding individual inquests into multiple deaths would not meet the needs of the situation.

COVID-19 and Immigration Detention, by Suzanne Lambert, on the UK Human Rights Blog, discusses two recent cases:

  • An application by Detention Action seeking to challenge the continued detention of immigrants and the steps taken by the Secretary of State to address the position of persons in immigration detention in light of the risks posed by the COVID-19 pandemic (see R (Detention Action) v Secretary of State for the Home Department [2020] EWHC 732 (Admin);
  • an application for urgent interim relief made by Samson Bello, a Nigerian deportee, seeking release from detention on the basis that restrictions to travel to Nigeria meant that his continued detention for the purposes of removal was no longer lawful (see R (Bello) v Secretary of State for the Home Department [2020] EWHC 950 (Admin)).

In PPE ~ Chief Coroner’s Guidance №37, Obiter J on the Law and Lawyers blog discusses when and how coroners will need to hold an inquest into a coranavirus-related death. Not all such deaths will warrant an inquest.

“Nonetheless, there are likely to be some cases requiring a Coroner’s investigation and inquest. For instance, if there is reason to suspect that some human failure contributed to the person being infected with the virus, an investigation and inquest may be required.

If the coroner decides to open an investigation, then he or she will need to consider whether any failures of precautions in a particular workplace caused the deceased to contract the virus and so contributed to death.”

In a previous post on the same blog it was noted that the Coronavirus Act 2020 s. 30 enabled Coroners to hold inquests without a jury in cases where the Coroner has reason to suspect that the death was caused by COVID-19.

There has been substantial public concern that companies that engage in tax avoidance and companies owned by tax exiles will be eligible for government support — despite those companies and individuals having chosen to not pay into the system.

Spotlight on Corruption reports that a cross-party group of U.K. lawmakers has now urged the chancellor of the Exchequer to withhold pandemic-relief aid from companies doing business in tax havens. The letter asks Rishi Sunak, the chancellor of the Exchequer, to place conditions on big businesses receiving state aid, such as not being registered in a tax haven, imposing a moratorium on dividends and share buybacks, and curbing excessive executive pay.

A report released Saturday by Tax Watch encouraged the U.K. to introduce a raft of new measures to ensure that companies or individuals who manage their tax affairs through tax havens shouldn’t get access to taxpayer funded support.

Legal professions

Lowering The Bar reports on a case from Texas where complaint was made about lawyerly misconduct at a mediation, including “butt-shaking” and obscenities, also referred to as dropping of “F-bombs”. Chief District Judge Lee Rosenthal (S.D. Tex.) began his ruling in White v. Chevron Phillips Chem. Co. by saying:

“One of the sentences a judge does not imagine — much less welcome — writing includes the words ‘butt shaking’ in describing a lawyer’s alleged actions at a mediation. Sadly, those words fit here.”

In this case, says LTB, a couple of F-bombs combined with some amount of butt-shaking may or may not have been held sanctionable (had circumstances warranted). We’re grateful to Jasmine Murphy, who tweets as @cruellacivil, for drawing this important case to our attention.

Dates and Deadlines

JUSTICE invites applications for their 2020 summer and autumn internships, which are paid positions. Given the nature of our work, applications are sought from UK law graduates only, who must also be or become members of JUSTICE. The roles are full time for three months. You can view the job description for this role here.

Closing date: Friday 15th May 2020 at 10pm

And finally…

is a reminder, from Middle Temple, of what we were celebrating our release from with the 75th anniversary of VE Day

That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived. And stay safe!

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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