Weekly Notes: legal news from ICLR, 18 May 2020

Crown Court at Manchester (Shutterstock)

Courts

Crown Courts resume

The Lord Chief Justice of England and Wales, Lord Burnett of Maldon has announced, following discussions with the Lord Chancellor, Rt Hon Robert Buckland QC MP, that new jury trials will start in a few courts from this week.

“These trials will take place under special arrangements to maintain the safety of all participants, including jurors. These measures include supporting social distancing and appropriate cleaning standards and have the express support and backing of Public Health England and Public Health Wales.

Four courts have been assessed as currently suitable to hold jury trials, namely the Central Criminal Court, London (Old Bailey), and the Crown Court at Bristol, at Cardiff and at Manchester (Minshull St) (pictured). The next three expected to be found suitable are the Crown Court at Reading, at Warwick and at Winchester.

Safe for open justice?

The announcement states that “Special arrangements have been put in place to ensure physical access to jury trials for the media and members of the public”. However, it is not currently clear whether it is permissible under the Coronavirus Regulations for members of the public to travel to and attend court, although informal advice suggests they could be characterised as “participants” in the administration of justice given that their presence is necessary to give effect to the concept of open justice. Or to put it negatively, their enforced absence would negate that principle. (This was something discussed between barrister Adam Wagner, Penelope Gibbs of Transform Justice and Natalie Byrom of the Legal Education Foundation in an edition of the Better Human podcast 20 — The untold story of the Covid-19 digital courts revolution.)

Spotlight on Corruption (who have an obvious interest in monitoring certain types of criminal proceedings) also commented on this recently: Can the criminal courts be safely observed during Covid to maintain open justice? “As jury trials resume”, they ask, “how safe will the public feel to travel to observe them and if they don’t is open justice being upheld?”

See also this thread on Twitter from the Centre for Criminal Appeals

Remote hearings

“New tech will help keep the criminal justice system moving during COVID-19 pandemic”, according to HMCTS who last week announced the roll out of their preferred videoconferencing software, Kinly Cloud Video Platform (CVP).

“Most criminal cases are heard in magistrate courts and this technology — available for cases such as remand, custody time limit, and sentencing hearings — will help move people through the criminal justice system in these unprecedented times. This technology will not be used for jury trials, and a judge will decide whether it is appropriate to use in any other hearing on a case-by-case basis.”

Computer Business Review reports that Kinley Cloud Video Platform was founded in 2017, and is also used by American Public Bodies the United States Department of the Navy and Department of the Air Force.

“CVP is initially being rolled out to 60 magistrates’ courts and 48 crown courts currently open to the public, with others to follow as soon as possible. It is also being introduced to the Civil and Family courts.”

Civil and family hearings have already been using a variety of other platforms in the virtual world, with some Court of Appeal remote hearings even being live streamed (as pre-Covid physical hearings were) and posted on what Isobel Williams describes as “the foetid bone-strewn cave that is YouTube”.

In a blog post entitled The adventure of the empty public gallery she expresses some of the frustration arising out of the fact that statutory rules about not drawing or photographing court proceedings apply with equal force, but unequal sense, to livestreamed hearings shown on YouTube. “The virus has inevitably restricted court access for the public,” she says, “and those people who can’t get online simply don’t exist.”

Livestreaming does at least provide unlimited public access, which may be why the Labour party’s legal front bench team is promoting the idea. The alternative is to provide the press and interested observers with access details to join a private video-conference type hearing. It would be subject to the same restrictions on filming and drawing. But for reasons which may not be entirely technical the number who can watch is limited. Once the limit is reached, the gallery is closed. Williams was excluded from one such (High Court) hearing. She comments:

“My one attempt so far to join the public in observing a hearing shared on meetings software was met by an unexplained refusal. It was however illustrated in sepia tones from memory, to comply with the law, by a court artist and I’m not allowed to show you that image either, because of copyright.”

Although everyone recognises that court staff and the judiciary have made huge efforts both to enable remote hearings to take place and to make them comply with the principle of open justice, there is perhaps a too ready assumption that this can be met simply by providing access for the press. The assumption is encapsulated in the Civil Procedure Rules in paragraph 3 of Practice Direction 51Y, which provides: “ Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.” This is simply not the case, for reasons which Paul Magrath of ICLR explains in his response to a recent Rapid Consultation, on the impact of COVID-19 measures on the civil justice system, commissioned by the Civil Justice Council.

Other responses to the CJC consultation include one by Young Legal Aid Lawyers (YLAL).

Timeline of remote courts and covid response

Spotlight on Corruption have very helpfully published a Timeline of key developments, announcements, and evaluations relating to open justice in the UK courts during Covid-19, which they will keep updated. The timeline starts back in 2016 when the massive HMCTS Reform project began the process of digitising court processes and developing an online court, long before the coronavirus pandemic. It continues into the present lockdown era and includes links to all the key developments along the way.

On 24 April 2020, HMCTS reported that the estimated use of audio in hearings increased to around 2,800 a day.

Mental Capacity law

Care homes and coronavirus

The Vice-President of the Court of Protection, Mr Justice Hayden, has written to Directors of Adult Social Services to highlight a number of key points relating to the operation of the Mental Capacity Act 2005 in the context of COVID-19 and care homes. According to the Court of Protection Handbook blog, the letter takes in remote assessments and a protocol for managing deprivation of liberty safeguards (DoLs) prepared by Lorraine Currie, MCA/DoLS lead for Shropshire County Council. You can read the letter itself here.

Police

Duties under relaxed lockdown

One of the effects of the original coronavirus lockdown regulations and the associated guidance was to place an unenviable, and not always consistently applied, burden on the police forces around the country to enforce them. The lawfulness of the regulations has been questioned from human rights and equalities law perspectives, but there has also been advice and challenges to the police forces’ enforcement. The UK Police Law Blog has provided some useful advice in this regard: see, for example, The lawfulness of the Coronavirus Restrictions Legislation imposing ‘Lockdown’.

In response to the amendment of the regulations consequent on the government’s decision a week ago to relax the lockdown sufficient to allow some people to return to work, while discouraging the use of public transport if that can be avoided, the blog has provided fresh commentary: Reducing restrictions, increasing inconsistency? Impact of the Lockdown Amendment Regulations on the Police’s Enforcement Ability

There have been quite a large number of cases where arrests were made and charges were brought under the wrong provisions, as the Crown Prosecution Service has admitted following research. A review of more than 200 finalised cases under the coronavirus legislation up to the end of April revealed that most cases prosecuted under the Health Protection (Coronavirus) Regulations 2020 were charged correctly, but all 44 of those brought under the Coronavirus Act 2020 were incorrectly charged. See: CPS announces review findings for first 200 cases under coronavirus laws.

Martin Hewitt, National Police Chiefs’ Council chair, said:

“These were unprecedented circumstances in which officers were presented with new powers within days of them being announced. This has all been done at pace and everyone in the Criminal Justice System has had to deal with a new body of legislation, which has undoubtedly led to some confusion.

“We apologise for the mistakes but all parties have worked hard to manage this new legislation as effectively as they can and to keep the public safe.

“It is right that any errors have been quickly identified and are being corrected through the CPS’s review process, and are also prevented by the additional safeguards now in place. Officers have received additional guidance on the correct use of legislation. We will of course continue to apply learning as we move forward through the current health emergency.”

Evening Standard courts correspondent Tristan Kirk discusses this on his blog, Lockdown prosecutions: Have the new Coronavirus laws been misused?

“With lockdown now slightly relaxed, and a degree of confusion over what is and isn’t allowed, there may be more cases where questions are raised about the lawfulness and proportionality of prosecutions. There have also been quite a few ‘not guilty’ pleas, so the courts will have to consider detailed arguments over whether or not the lockdown was actually breached.”

Prisons

Remote visiting

Secure video calls will be introduced to prisons and young offender institutions (YOIs) across England and Wales to maintain vital family contact for prisoners and young offenders during the coronavirus pandemic.

According to the government announcement, after a successful trial at HMP Berwyn, Her Majesty’s Prison and Probation Service (HMPPS) is installing the technology at ten institutions with a wider rollout in the coming weeks.

The measure is part of wider action to preserve family ties, particularly at women’s prisons, young offender institutions and jails without in-cell telephones. Social visits in prisons and YOIs have been suspended under the lockdown to comply with the government’s guidance on controlling the spread of coronavirus and protecting life.

Safeguards will be in place to prevent misuse with all participants vetted in advance and calls monitored by prison staff. The calls will be time-limited and restrictions have been built into the software to ensure safe use.

Legal professions

SRA criticised over case

The Solicitors Regulation Authority has been severely criticised for striking off a young solicitor with a history of mental health problems, who had become suicidal after losing a briefcase containing confidential documents and then lying about it. The Law Society’s Junior Lawyers Division have written to the SRA saying the case of Claire Matthews reinforced concerns it had expressed after two earlier cases, that the regulator was not adequately protecting junior lawyers. The letter, signed by JLD chair Charlotte Parkinson, states:

“prosecutions have shaken our faith in the SRA’s judgement to the point where we do not have confidence in its approach to regulatory matters involving junior lawyers who have mental health issues and/or have been working in toxic environments.”

It adds that

“the SRA’s recent approach to such matters runs the risk of mistakes being concealed, for fear of disproportionate sanction. This poses a commensurate risk to clients if mistakes are not admitted to and rectified, which defeats the purpose of regulation.”

Legal Futures reports that

“Law firm Leigh Day has taken on her appeal on a pro bono basis and Ms Matthews has so far crowd-funded nearly £10,000 to help her in the event of having to pay costs. She is seeking £40,000.”

Pupillage pressures

Issues of mental health have also been raised in relation to the management of pupillage applications by chambers, bearing in mind the pressures on applicants and lack of adequate support. Earlier this month, barrister Malvika Jaganmohan posted on her Stiff Upper Lip blog: We need to talk about mental health and pupillage applications. The post prompted a good deal of comment.

Jaganmohan compares her own experience in applying for and getting pupillage (she is now a tenant at St Ives Chambers in Birmingham) with that of others who have contacted her with their experiences. She recalls:

“The year I applied for pupillage was a year of being scrutinised constantly by total strangers; of constant self-marketing; and of mostly being rebuffed. It’s a year of not feeling quite good enough. I’m absolutely not shocked to learn that that has been the case for many others. I am, however, taken aback by the sheer breadth of issues of which I’ve been made aware while I was writing this post. …

By and large, there is little to no support for pupillage candidates in managing their mental health around the application period.”

The post identifies a number of problems with the current system, which puts candidates under intense and often futile pressure. It notes that offerings of pupillage and recruitment are suffering under the Covid-19 lockdown and the five-year limitation period on applying after completing exams should be extended or scrapped. It suggests that in future chambers should be more aware of mental health issues, that candidates should be able to be candid about them, that chambers could help by providing better (or any) feedback and generally manage the process in a more considerate way.

Remote calling

In happier professional news, 115 new barristers were called to the Bar in Singapore via Zoom, in what Singapore Law Watch is calling “an unprecedented move”. The lawyers were admitted by the Supreme Court over six sessions conducted remotely on the same day, the report explains.

“Three sessions were presided over by Justice Choo Han Teck, and the other three by Justice Vincent Hoong. This marks the first time that the Supreme Court has admitted lawyers to the Bar remotely, a spokesman told The Straits Times.

Justice Choo told the 60 lawyers appearing before him yesterday that the Covid-19 crisis emphasised three lessons: social responsibility, patience and compassion. He encouraged the lawyers to innovate and ‘embrace new ways’, but also remain honest, diligent and humble.

Addressing the 55 lawyers before him, Justice Hoong said that the legal profession is currently facing challenges and disruption, especially during the Covid-19 crisis. ‘The fact that we are conducting these proceedings remotely is a sign of the many changes that have become necessary and are likely to remain so,’ he said.”

Hong Kong

Protester jailed for rioting

Less happy news from Hong Kong where, Reuters reports, the first pro-democracy campaigner was jailed last week for four years for her part in protests against the attempted introduction of a new extradition law that would bypass judicial oversight. Sin Ka-ho, a 21-year-old lifeguard, was among thousands who surrounded the Legislative Council on 12 June 2019 and admitted to pushing police barricades and hurling umbrellas and other objects at police. Pleading guilty, she said her acts were unplanned, but the judge said they were “a direct attack on the rule of law”.

The protest was cleared by police with teargas and rubber bullets. One of the “five demands” now made by the protesters is that there be an independent inquiry into the brutality of the police response to what began as peaceful protests.

The protests have been muted during the coronavirus pandemic, though Hong Kong has imposed far fewer restrictions than most countries. Schools are closed and there are controls on entry and quarantine, but there hasn’t been the same wholesale closure of businesses as elsewhere; people simply avoid crowds and observe social distancing rules, and everyone wears a mask. According to The Atlantic, the success of the response owes very little to the deeply unpopular official government of chief executive Carrie Lam (who tried to ban the wearing of masks) and a good deal to the network of information and voluntary help set up by the protest movement. The border with China was only closed after a strike by doctors forced the unpopular government’s hand, and earlier experience of the SARS epidemic taught people to be wary of the official pronouncements of the mainland Chinese government or, indeed, the WHO.

And finally…

Tweet of the week

is a comic response by John Rogan to the pathetic and rather desperate attempt of the Mail on Sunday to discredit the Leader of the Opposition and former Director of Public Prosecutions, Sir Keir Starmer QC, by reporting in a tendentious way that he’d spent some of his barristerial earnings on buying some land with a view to enabling his mother to keep a donkey sanctuary, or something.

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

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.