Weekly Notes: legal news from ICLR, 30 March 2020

This week’s roundup of legal news and commentary includes legislation, practice guidance and commentary, mostly about the conduct of court hearings and legal business under current Covid-19 restrictions.

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Legislation

Two significant pieces of legislation have come into effect to deal with the current pandemic. The first is primary legislation, the Coronavirus Act 2020, which we reported on last week as the Coronavirus Bill, and which received the Royal Assent on 25 March. One of its functions is to enable the courts to conduct hearings remotely, but it provides other powers, usually described as “sweeping”, enabling public functions to be carried out remotely or under social distancing restrictions, or to provide exceptions for key workers.

The second is secondary legislation, The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. This is a statutory instrument (No 350 of 2020). That means it was made using powers conferred by primary legislation – not, as you might expect, the Coronavirus Act, but a much earlier one, the Public Health (Control of Disease) Act 1984. That Act confers wide powers on the Secretary of State for Health, who is currently Matt Hancock MP, to make regulations using an emergency procedure. They must be approved by Parliament within 28 days but in the meantime take effect immediately, and (subject to approval and review) will remain in force for up to six months.

The two key effects of the regulations are the closure of businesses and premises (including places of worship) deemed to be providing non-essential goods and services, under regulations 4 and 5, and the restriction on freedom of movement of individuals, under regulation 6. It is the latter that has been giving rise to all those stories of policemen telling people not to make unnecessary journeys such as driving to beaches and beauty spots for their daily exercise.

There has been quite a bit of commentary on these regulations and the powers conferred. For a useful explainer, see David Allen Green, on his Law and Policy Blog, The Coronavirus restrictions on freedom of movement – a guided tour

In Joggergate: How frequently is it necessary to exercise in Wales?, George Thomas on the UK Police Law Blog considers the slightly different wording of regulation 6 in the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020, and wonders whether there might be some geographical or other reason for imposing a limit of “no more than once a day” on those wishing to exercise their right to exercise in Wales, no such limit apparently applying in England.

Reports in the media and some rather virtue-signally posts on social media by some police forces have given the impression that the police are taking a tougher line than the current public consent to the lockdown will tolerate, with the risk that such consent will be lost, ultimately harming the collective health protection at which it is aimed. David Allen Green commented on such heavy handed interpretation of their new powers by the police in a further post on 31 March: What the police are getting wrong about the coronavirus regulations

More generally on the topic of rules and rule-making powers, see Spinning Hugo: Rules, Law and the Virus

Courts

The coronavirus pandemic has given a massive boost both to the development and to the widespread acceptance of remote hearings and the online court. Recognising this, a new website “designed to help the global community of justice workers” has been launched by the Society for Computers and Law, under the presidentship of Professor Richard Susskind (whose book Online Courts and the Future of Justice we reviewed recently).

Remote Courts Worldwide (remotecourts.org) links to stories, guidance and practice directions from courts around the world who are coping with the challenges of social distancing and the coronavirus lockdown by conducting remote hearings. Much of it comes from our own jurisdiction and is covered elsewhere (including on the ICLR blog). These developments were, of course, fairly predictable once the nature of the lockdown became evident, earlier this year, as noted in an article by Paul Magrath in The Lawyer at the beginning of this month.

It’s important both for its own credibility and for its usefulness to others that Remote Courts Worldwide (RCW) should be as objective as possible about the experiences it records, and not simply become a PR booster for online court development. To that end, it should cover lessons learned from things that might have gone better, or went wrong.

More generally on some of the longer term implications from these developments, there’s a good interview of Natalie Byrom, of the Legal Education Foundation (LEF) by Andrea Perry-Petersen: Episode 31 “The future of justice: data, evaluation and online courts with Dr Natalie Byrom”

The 3 main topics in this episode are:

· the urgent shift to online hearings we’re seeing right now around the world — whether they are taking account of more vulnerable people and what could be done to improve the processes if indeed they become a part of the new normal after this crisis is over;

· the importance of collecting evidence for evaluation — not only to demonstrate impact to funders but to improve on current practices, and

· the relationship between digitisation and systemic reform.

An excellent article by barrister Tom de la Mare on Blackstone Chambers website discusses, inter alia, the legal underpinning of remote hearings in Coronavirus and Public Civil Hearings

The government has announced that “A network of priority courts will remain open during the coronavirus pandemic to make sure the justice system continues to operate effectively”. See Priority courts to make sure justice is served

“There will be 157 priority court and tribunal buildings open for essential face-to-face hearings. This represents 42% of the 370 crown, magistrates, county and family courts and tribunals across England and Wales.

The temporary changes, designed in partnership between HM Courts and Tribunals Service and the judiciary will help maintain a core justice system focused on the most essential cases. They will also ensure effective social distancing for all court users and for cleaning and security work to be focused on fewer buildings.”

The consequence is that other courts will be closed: see Law Society Gazette, Coronavirus: Over half of court buildings to close

Commercial courts may not be considered a priority, but in any event lend themselves rather less disruptively to online hearing, subject to maintaining so far as possible the open justice principle.

Last week the first High Court trial was streamed on YouTube, albeit not via an official court account. The case was listed with links to several sessions, the recording and publication of which appears to have been managed by one or more of the firms solicitors in the case. This is how it appeared in the list today. You could link to the hearing during session and it was possible to watch the earlier sessions via YouTube, but this appears no longer to be possible. One hopes, however, that the recordings are being archived for research and future transparency. Stewarts have also published the transcripts, which is a bonus.

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The case was written up in the Financial Times, High Court trial streamed on YouTube for first time (gift article, 30 March 2020).

HMCTS have issued guidance on telephone and video hearings during coronavirus outbreak

The official HMCTS preference seems to be for Skype for Business as a platform, though the judiciary appear to be prepared to consider other options, including Zoom and Microsoft Teams. We are not aware of anyone using FaceTime or House Party, but there is always the ADR sector to consider.

A new Practice Direction on Video or Audio Hearings in Civil Proceedings during the Coronavirus Pandemic has been added to the Civil Procedure Rules, which

“clarifies the manner in which the court may exercise its discretion to conduct hearings remotely in private. It also clarifies what steps the court may make to ensure access by the public to remote hearings that have been held in private through making available audio or video recordings of those hearings at a time when the courts are operating normally.”

PD51Y is introduced as a pilot scheme under CPR Pt 51, by way 116th Update — Practice Direction Amendments

Guidance for the Business and Property Courts in Leeds, Liverpool, Manchester and Newcastle, issued by Mr Justice Snowden, Vice-Chancellor of the County Palatine of Lancaster, and published on the Law in the Time of Corona blog. His COVID-19 Update Number 1 provides a position summary a guide for urgent applications.

While there has been no end of guidance and practice directions for lawyers and the media over the conduct of remote hearings, perhaps the most important support needed is for the lay parties and litigants in person whose cases are being conducted in this new and perhaps disconcerting medium.

HMCTS have now issued a guide in plain English which aims to explain the process. A Guide on Joining Court Hearings by Video Call or Phone explains that you will be contacted in advance to let you know how the hearing is being conducted, when and how to join it, and where to get help.

It ends by saying “Please help us improve our services by telling us about your experience.” But it doesn’t explain where or how to do this. Perhaps a survey form will be provided.

Media coverage of remote hearings has generally been positive. The UK Press Gazette had a piece on 26 March, Journalists praise courts for remote open justice during coronavirus crisis, saying:

Several journalists have told Press Gazette they were impressed by the efforts made by the court service to ensure they had access to hearings, despite a few tech teething problems. The civil courts were the first to adapt, but this morning the Old Bailey allowed reporters to dial in to hearings from home for the first time after an application from BBC, PA and Evening Standard journalists.

It is not clear why those media organisations should have needed to make an application for this to happen, but evidently HMCTS has been less prepared for these developments than you might have expected, given that it is in the midst of a £1bn online court development project. Civil courts have, as the report above notes, been a bit quicker off the mark, perhaps because more can be left to the judge to manage. Last week we noted the report in the Law Society Gazette on First all-Skype trial tests crisis working at CoP. (But note the less enthusiastic response of a lay observer, Celia Kitzinger, below.)

Tristan Kirk of the Evening Standard has been covering remote court hearings in the criminal courts and makes a number of observations in this Twitter thread

See also: Society of Editors, Old Bailey allows journalists to cover criminal cases from home in legal first

While the lawyers, and to some extent the journalists who have been able to cover them, have been congratulating themselves on managing to get the tech to work, there has been less focus on maintaining the proper formality of court proceedings during online hearings by videolink. It’s not just a question of putting on formal court attire and making sure that the visible background isn’t distracting or worse, though presumably that helps. There’s also the question of maintaining what might be called forensic distancing, a respect for the formal court procedures and courtesies even when conducting the hearing in a technologically intimate medium.

In a recent post on the Transparency Project blog, Malvika Jaganmohan discusses the experience of lay parties in dealing with remote hearings and whether those hearings are also remote in a different sense: Remote hearings: a gulf between lawyers and lay parties?

We’ve all been in a flap in recent days. The priority has been to get things working remotely, without the time to think about how to do this well. It’s all very well and good to pat ourselves on the back for mastering Zoom and Microsoft Teams, but – are we meeting the needs of the people who are at the centre of the cases with which we’re concerned?

She cites a guest post on the same blog, Remote justice: a family perspective, contributed by Celia Kitzinger, describing her own disappointing experience as a person attending, in a voluntary non-professional capacity, a recent Court of Protection hearing conducted by Skype (noted above). Kitzinger was there to support the daughter of a man in respect of whom the court had to decide whether it was in his best interests to withdraw medically assisted nutrition and hydration.

On the Free Movement website, in Remote hearings in the immigration tribunal: what could possibly go wrong? Jo Hynes provides a similarly corrective view of the situation and highlights obstacles to a fair and effective hearing.

“Remote hearings pose a number of significant challenges and, as yet, have a very poor evidence base to suggest that they are a suitable substitute for in-person hearings. Yet whilst we are forced to live with them, we must consider the steps available to make them as fair and effective as possible.”

Among useful guidance and observations:

Practice Direction 51Z takes effect from 27 March 2020 and imposes a stay on all housing possession proceedings brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession for a period of 90 days. There is an explainer on Nearly Legal, Practice Direction 51Z – to Stay Possession Proceedings

COVID-19 and administrative justice — a call for blogs, opinions, and news from the UK Administrative Justice Institute, aiming to

“launch a series of blogs, opinion pieces, and news summaries on the theme of Covid-19 and administrative justice to consider how this pandemic has, will do, should, or could affect administrative justice.”

Legal professions

Covid 19: a protocol to assist solicitors who are working remotely and advising suspects in relation to police interviews, has been drafted by Keir Monteith QC, Lucie Wibberley, Patrick Roche and Vicky Meads, and published on the Secret Barrister blog:

“We need to act now to protect the lives of solicitors who are called to a police station and the lives of suspects who require representation. In short, solicitors should not be required to attend police stations and suspects should only be detained and interviewed in the most serious of cases.”

Guidance on remote working in a general sense for legal and other professionals has been plentiful. The latest issue of Internet Newsletter for Lawyers leads with an article on Remote working in a time of crisis, which addresses some of the issues a firm might face in setting up new protocols for staff working from home, transitioning (if not already done) to a cloud-based network, using video conferencing apps and so forth.

More specifically targeted at trial lawyers is advice and reporting from

There has been mixed feedback on what to wear for remote hearings. Elizabeth England wasn’t taking any chances:

The important thing to remember is, you don’t stand up when the judge comes in. First because you would be showing everyone your tummy and secondly because the judge is in all likelihood already in place (with suitable backdrop) and not waiting to be ushered in.

SRA relaxes assessment rules for students and trainees, according to Legal Futures. In new guidance, the SRA said it wanted to be “as flexible as possible in this area, while still making sure solicitors who qualify have met the required standard”. The guidance is explained by way of answers to FAQs on the SRA’s website.

Pupillage hardship Fund : a reminder that

“Middle Temple is able to make awards to members of the Inn who are in pupillage, or who have pupillage arranged, to alleviate cases of serious unexpected hardship.”

Commentary

Society’s dependence on the internet: 5 cyber issues the coronavirus lays bare – Laura DeNardis and Jennifer Daskal, via Inforrm’s blog, point out that while the pandemic is a reminder of how much the digital world has to offer, it

“also lays bare the many vulnerabilities created by society’s dependence on the internet. These include the dangerous consequences of censorship, the constantly morphing spread of disinformation, supply chain vulnerabilities and the risks of weak cybersecurity.”

Each Other have published answers to some frequently asked questions about the consequences in employment law of the coronavirus lockdown. They include an explanation of the government-backed wage, pressure to attend work even when vulnerable and the effects on self-employed. See Coronavirus: What Are My Employment Rights?

As its subtitle suggests, “Social distancing, self-isolation and the validity of wills”, Barbara Rich’s fascinating article on Honora Jenkins and her legacy, while beginning as a discussion of the challenge to the will of an 18th century widow, is really about potential necessary modifications to the rules on the signing and witnessing of wills to accommodate social distancing restrictions. “Does the current English law of making and witnessing wills enable sufficient social distancing for the purposes of public health?” Or should we really be asking if

“the public health risk of simultaneous presence of testator and witnesses is sufficiently alarming to be a deterrent or obstacle to making a valid will at all, as anecdotal evidence suggests that it might be.”

It cites another post, by Equity’s Darling, Will-making and coronavirus: can wills be remotely witnessed?

“Over the last few days, I have received enquiries concerning the question of whether or not a Will can be witnessed remotely and how, otherwise, Wills should be witnessed given the social distancing measures.”

And finally…

On the topic, once again, of remote hearing etiquette:

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.

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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