Guest post by Dame Judi Bench: The Bar exams are less exam and more Takeshi’s Castle

I am pleased to host this guest post from a pseudonymous contributor, looking at the exams fiasco facing this year’s Bar students.

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The Bar Exams in England and Wales are a funny thing.  Ask the older generation and they’ll regale you with stories of their local authority paying for them, spending most of the year being drunk and how they were of little use in real life.  Ask anyone who did them in the last 10 years and they will still likely tell you that they were pointless, that they learned nothing, that each lecturer was a ‘A failed Barrister’ and probably that the exams were a walk in the park.  It’s perhaps on that basis you’ve seen complaints from candidates who are due to take exams in August and wondered what all the fuss was about.

Covid has undoubtedly changed the world and candidates have not been spared.  Institutions have rushed to cobble something together online both to teach and assess.  While BPTC providers have assessed candidates on most of the modules that comprise the course, they haven’t been able to offer the criminal litigation, civil litigation and ethics exams because they are run by the BSB.

 

Hang on, when I took the Bar Exams, the multiple-choice exams were ridiculously easy, I really don’t see what the problem is?

Ok Boomer.  Until 2011 the BPTC providers were allowed to set and mark their own exams. Sure, there were External Examiners to make sure that standards were adhered to but as with any exam where you teach candidates and then set the exam there’s always the temptation to shy away from the topics they struggled with or pepper your exam with them depending on where you fall on the John Keating-Miss Trunchbull scale.  The Bar Standards Board rode into town as the new Sheriff and decided to do something about it.

 

Good. Multiple-choice tests are too easy. I mean you can see the answer so you are bound to get it right. It’s not the same as having to search the dark recesses of your mind. Which reminds me, must delete my internet history.

Indeed. It’s why everyone who went on Who Wants to be a Millionaire won a million pounds. The answer was there all along. Multiple-choice questions can be easy if they are poorly written. An essay can be easy if the question is poorly written or the mark scheme offers marks for a scattergun answer, or both.  

 

Right smarty-pants, what were these new exams then?

In 2011 the BSB decided that criminal litigation, civil litigation and professional ethics should be assessed by exams they wrote and provided the mark scheme for.  The BPTC providers would not see them in advance but would have to run the exams and mark them to the BSB’s mark scheme.  All of the exams were a mix of multiple-choice and short answer questions.

 

So, the BSB came to the rescue, the exams were better and I can stop reading?

If only.  Pass rates came down in the first year at all BPTC providers. In some cases 90% pass rates were down to 50%.  Lots of people looked at their shoes and mumbled. The BSB talked about how these were a better test of knowledge and how standards were now being maintained.

 

Were ‘standards maintained’?

This depends on your view of standards.  There was the year where the ethics exam was so ridiculously difficult that the failure rate was about half of those who took the exam.  Years where some questions were so fiendishly difficult that papers were scaled by 20% or more.  If you so inclined, you can read their exam reports. They are long and tedious.

 

I’m reading this, I know the feeling.

That was a statement not a question.

 

Seriously? Right, I believe it was Rizzle Kicks who once said, ‘Let’s skip to the good bit’. Shall we?

Fast forward to 2020 and the exams are now in a settled format.  Crime and Civil are just multiple-choice.  Ethics is just short answer questions.  The BSB use a system where the pass mark is calculated based on the difficulty of the paper so that they don’t have to scale or face the wrath of everyone when the pass rates go up and down like [please insert your own simile for it is too easy inadvertently offend].  Though the exams are set and marked by the BSB, the BPTC providers have to administer them.  They have to book venues, invigilate the exams and deliver the papers back to the BSB.  For candidates with specific learning needs it was down the BPTC providers to ensure that they provided the right environment, breaks and support.

 

Right, bung it all online. That’s the solution to everything isn’t it?

Well not exactly. These exams are closed-book. That means they need to be invigilated.

 

Uh, huh. Closed-book invigilated. I always go for closed-book invigilated. It’s my favourite type of bookvigilation.

Shall I explain?

 

That’s a good idea. I know what it means but others may not.

For reasons best known to those who design the exams it means that candidates are not allowed to have any materials with them in the exam.

 

Like a lucky piece of felt?  Mine was teal and called Norman.

No, as in no notes or practitioner texts.

 

What? No White Book? But I take my White Book everywhere. I shower with my White Book. I read it poetry in the garden. For the price I pay it should read me poetry and sing soothing lullabies.

I fear we have veered off the point.  Candidates are required to answer legal problems without use of practitioner texts or the code of conduct.  You know, like you do on a daily basis.

 

I do no such thing!  The whole point of the practitioner texts is to stop me from ending up in front of the BSB. How then do they expect people to answer questions to show they are up to the task of using a text when they can’t have the text?  This is more circular than the Circle Line.

Which is no longer a circle

 

Not now. I’m not ready for more bad news.

Right, we’ll save that for next time.  But that’s the position, the candidates have to answer questions without any notes which means they have to be invigilated by invigilators to ensure that they only use what they’ve manged to temporarily crammed into the mind.

 

Why not just make the exams open-book then?

An excellent point but despite several reviews of the course the exams remain closed-book. Even when the course changes in September this year, the exams will remain as they are.  

 

When do the exams take place?

There are two sits a year at the moment, April and August. From this year there will be a December sit too.

 

What did the BSB do in April?

They postponed the exams.  I suspect the hope was that by August they could run them as normal.

 

Why not postpone the August sit too?

It gets complicated.  Normally, candidates are required to pass the BPTC in full before they can begin pupillage.  For those who have pupillage immediately after the course it means they have to pass in April if they want to start on time.  If they don’t pass for whatever reason they have to sit in August and either defer their start or the BSB will let them commence in chambers but not call it pupillage until they receive confirmation that they have passed in November.

 

They could then let everyone who has pupillage start as normal and then take the exams in December?

They have done exactly that. They are allowing chambers to take pupils as normal on the basis that they would need to sit in December.

 

What if they fail?

They could take another sit in April but it would mean a break in their pupillage because while you can start pupillage under this special dispensation, you can’t be called to the Bar until you have passed the course. That has not been waived.  While you can do your first six under this dispensation, there is no way to start a second six without being called.  There’s the added uncertainty of what a pupil who fails would do with any money chambers had paid them by way of an award.

 

Right, so take the exam in August. That’s the answer but leaves me wondering why I’ve read all of this.

If you take the exam in August you are expected to do so at home on your computer using a system called home proctoring.

 

Sounds painful. I normally see a Doctor for that procedure.

Home proctoring or home invigilation is where you take your exam on your computer but with your camera and microphone on and feeding to either a recording or an invigilator on a computer elsewhere.

 

That feels a bit intrusive. What if I don’t want to go through with that?

Nobody is being compelled to do so. If they want to defer their exams to December when it is hoped that they can be held face to face again, they are allowed to do so.  Even if they have pupillage as set out above.

 

Why then, is anyone taking them?

Some want to get them done while the material is fresh in their mind. Some have pupillage at chambers who have said that despite the special dispensation afforded by the BSB, they won’t take a pupil who hasn’t passed this sitting. Others don’t mind being recorded.

 

I’ve got quite used to working at home. I could take my exams in my jimjams with a blanket around me and a nice cup of tea. I can walk about when I need to seek inspiration. I won’t have to put up with the mouth breathers and snifflers. Oh this sounds great.

Slight problem. You aren’t allowed to get up at any point.

 

What?

Yes. Not at any point. You can’t get up and move about.

 

That’s ludicrous.

Isn’t it just.

 

What about candidates who need a break because of their learning needs?

You can’t have a break.  You can’t have Kit Kat.  If you step out of view the exam is shut down no matter how much or little you have done.

 

What about candidates who need the exam printed on coloured paper or in a different font size because of their learning needs, or who are blind or partial sighted?

Computer says no.

 

Right, well I’m not doing that then. Surely there is an alternative?

Yes, you can go to a test centre and do it there if you are allowed.

 

That won’t work for everyone

No, quite.  Those who can’t leave the house due to Covid don’t have this option.

 

Students are not a quiet bunch, did they kick up a fuss? Did I tell you about this thing I did during rag week?…

No, but let’s save that for another time. Students wrote a letter to the BSB demanding change and in particular that the exams were open book.

 

Is that easier than stopping people from getting up to have a pee or for other absolutely legitimate reason?

It would be if the exams were designed that way, but they are not.  Open book exams would render most of the questions pointless because you could look up the answer and for whatever reason, the BSB have decided that is not what lawyers do and therefore it’s not a test of being a lawyer.

 

But that’s all that lawyers do!

I know.

 

And they go for a pee.

Doesn’t your junior do that for you?

 

Plus I like wandering around and talking out loud like I’m Quincy

Who?

 

Surely in a test centre you can move about and go to the bathroom or have a break for learning needs or health reasons.

You’d think that, but up until yesterday the suggestion was that if you needed a break for learning or health reasons, you could only do it at the top of each hour. Not when you needed to. If you have problems which require you to move about, you’d have to wait until it was break time to move.

 

That’s not how the human body works. I’ve got a book here that explains, let me go and get it.

I’m afraid you aren’t allowed to look at a book, or move.

 

In summary then, rather than changing the exams to what they should be, a test of what lawyers actually do, they are instead going to be some sort of endurance test of not using the bathroom for 3 hours or moving?

Yes, it’s musical statutes with no music and more Part 36.

 

Worst. Party. Ever.

Tell me about it. No jelly either.

Guest post by Dr Laura Janes and Andrew Neilson: The government’s treatment of prisoners in our locked-down prisons is cruel and untenable

I am pleased to host this guest blogpost by Dr Laura Janes and Andrew Neilson. Dr Laura Lanes is the legal director at the Howard League for Penal Reform and oversees its specialist legal service for children and young adults. Andrew Neilson is the director of campaigns at the Howard League for Penal Reform.

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It is scary to think how quickly we get used to terrible things.  Just a few months ago, many of us anxiously watched as the number of people who had died from the Coronavirus approached one hundred, then a thousand.  Since March we have become so acclimatised to the new horrific reality that we see less than one hundred deaths a day as comparatively good news.

For several years the Howard League has been concerned about the use of solitary confinement for limited periods of time on individual people in prison.

In 2017 we brought a judicial review on behalf of AB, a child who routinely spent 23 hours a day confined to his cell for 55 days when he was just 15 years old at Feltham prison.  The Government conceded much of the claim, as it had failed to comply with its own procedures which are designed to ensure appropriate safeguards are in place given the serious and irreversible risks associated with solitary confinement.  Whether what happened to AB was inhuman and degrading will be examined by the Supreme Court next year.  Following our case, numerous professional and scrutiny bodies including the BMA, the Royal College of Psychiatrists, the Joint Committee on Human Rights and the Chief Inspector of Prisons expressed grave concerns about the practice of keeping children in solitary confinement in prison, noting it happens too often and for too long.

But what has concerned a relatively small number of prisoners, has now become the new normal.

Some 80,000 men women and children in prison are either in prolonged solitary confinement or in overcrowded conditions.  In a single day, 24 March 2020, the prison service went into lockdown and over 80 days on, it remains in that state.  Prisons are devoid of purposeful activity and opportunities for people to make amends.  The children in prison have had no education, rates of self-harm in women’s prisons have increased and the entire estate has been starved of contact with the outside world.  Open prisons no longer serve their function of preparing people for the community.

In a letter to the Justice Committee Dame Anne Owers, Chair of the Independent Monitoring Board highlighted a number of concerns, including reports of increases in self-harm, self-inflicted deaths and violence in some prisons.  She reports particular concerns about the “cumulative impact of lockdown, particularly on prisoners who have, or are developing, mental health conditions.”

Children and young people in prison call the Howard League’s legal advice line every day.  They tell us about their experiences, confined to cells the size of a car parking space, worried about their parents and grandparents.  Many have lost all sense of time due to being confined to their cells for 22 hours or more a day.  One young person described feeling constantly hungry due to the restrictions on the additional food that teenage boys can usually order from the canteen system and regularly rely on to supplement the meagre prison diet.  He told us he sleeps all day to try and forget his hunger.  A child, who until recently was leaving prison each day to attend college on a temporary licence, described the experience of prison now as “just waiting.”  These experiences are typical.  Both young people were also typical – young black boys.  The secure estate for children is a manifestation of discrimination  –  half of all children in prison are from ethnic minorities, compared to their making up only around a fifth of children from 10-17 in the wider population.  A third of children in prison are on remand, two thirds of whom will not go on to get a prison sentence.

We subsequently discovered that on the same day that prisons went into lockdown, ministers had received advice that as many as 3,500 prisoners might die – one in twenty of those in prison – if action was not taken to reduce the prison population by 15,000.  In response to this advice, the Ministry of Justice locked down our prisons immediately and announced on 4 April 2020 that it would release some 4000 prisoners on temporary licence under electronic tag.  It has recently emerged that the Ministry of Justice entered into contracts with private providers to supply these tags at a cost of £4,000,000.

This information only came to light after the Howard League, along with the Prison Reform Trust, took the unusual step of challenging the government’s failure to follow through on its promise to release the 4000 prisoners.

By 17 April just four people had been released under the Covid temporary release scheme. The two charities served a letter before action on the government setting out our concerns and threatening to serve proceedings if the government did not respond satisfactorily. The thrust of the challenge was that it was irrational and unlawful for the government to announce it would release a substantial number of prisoners to save lives in response to the threat of COVID-19 but not to have done it.

In response to this letter before action, the government provided a detailed letter explaining that the advice had changed and that while the release programme had not been abandoned (indeed, we were told a further two hundred applications had been approved), a high volume of releases was no longer required. Instead a range of strategies were being employed to protect lives of people in prison. The government disclosed more than a dozen key documents to us on 28 April to support its arguments and subsequently gave us permission to publish its response and the documents it disclosed. In light of this, it could no longer be said that the government’s failure to release thousands of prisoners was irrational and we took the decision not to issue proceedings at that point in time.

As well as the original PHE advice from March, the government produced subsequent advice dated 24 Aprilwhich found early emerging data that the ‘explosive outbreaks’ of COVID-19 in prison which were feared at the beginning of the pandemic wave are not being seen. Accordingly, PHE revised its estimate of prisoner deaths from the virus from up to a reasonable worst-case scenario of 3,500 to a best-case scenario of around 100, provided severely restricted regimes remain in place for up to a year.  As the courts return to business, we will see the prison population increase.  It is unclear how the methods that have been used so far to contain the virus will be manageable with an influx in people entering prison.

The release scheme has not been abandoned but it remains painfully slow – as of 29 May 2020, just 128 people had been released.  This is despite the fact that a month earlier we had been told that some 200 applications had been approved.

Where does that leave us?  The decision not to release a substantial number of prisoners under the temporary release scheme may no longer be so unreasonable as to be irrational but its consequences are cruel.  As our latest letter to the Justice Secretary highlights, the current situation is inhumane and untenable. It is also unlawful and is likely to result in untold and potentially irreversible harm to some of the most vulnerable in our communities.  Let’s hope the government takes action and we do not need to initiate another legal challenge.

The Howard League has published all its correspondence on the prisons and Covid on a dedicated page on its website.

Guest blogpost by Henry Blaxland QC: Does the buck stop? Legal liability for death from Covid

I am pleased to host this guest blogpost by Henry Blaxland QC of Garden Court Chambers.

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“If the government were an employee of mine I would have sacked them for gross negligence” – so said Anita Astley, manager of Wren Hall nursing home in Nottinghamshire, where 10 residents died from Covid-19 and 48 carers caught the virus in a three week period [1]. Ms Astley’s complaint poses in stark terms a question which has been circulating since the full and devastating extent of the consequences of the pandemic have become clear:  what, if any, legal liability does the state have for deaths caused by Covid-19?

The government has been doing its utmost to deflect any suggestion that it may bear responsibility for the consequences of its handling of and failure to prepare for the pandemic. Principally this has been achieved through a call for unity in a time of crisis, to the extent that even muted questioning of government actions by the opposition has been criticised, as witnessed by the Health Secretary Matt Hancock’s suggestion to Rosena Allin-Khan M.P. that she change her tone when, as a front line A & E doctor as well as a shadow minister, she had the temerity to ask direct questions about the government’s strategy for contact tracing and testing on the floor of the House and the Prime Minister’s rebuke to criticism of his handling of the pandemic by Keir Starmer, that this amounted to undermining trust in the government. There have also been indications that the buck is going to be passed to the government’s scientific advisers. More sinisterly, there is a suggestion that the government’s decision taken on 19th March to reclassify Covid-19 from a High Consequence Infectious Disease to a Low Consequence Infectious Disease[2], while at the same time the Health and Safety Executive downgraded the classification of Covid-19 under the Control of Substances Hazardous to Health Regulations 2002 from a Group 4 to a Group 3 biological agent, was taken in order to facilitate the decanting of elderly Covid-19 patients from hospitals into care homes.

But, as the death toll among health care and care home workers continues to rise and the United Kingdom’s overall death rate per capita has become the highest in Europe, the pressure for a public inquiry is beginning to mount. If it happens such an inquiry will no doubt focus on the extent to which the high incidence of Covid-19 was avoidable and, if so, how should those responsible for failing to take steps to avoid it be held to account. Three issues are likely to loom large: 1. Whether the Department of Health and Social Care (DHSC) failed to act on the NHS’s own operating framework for responding to a flu pandemic; 2. The failure to provide PPE for health and care staff; 3. The practice at a critical time in the onset of the virus of discharging patients from hospital to care homes.

The starting point for consideration of governmental liability in England is the statutory duty under S.2A of the National Health Service Act 2006, which provides that the Secretary of State must takes such steps as he considers appropriate for the purpose of protecting the public from disease. This includes [3] the provision of services or facilities for the prevention, diagnosis or treatment of illness and includes a requirement to consult with the Health and Safety Executive [4]. In this context the overarching duty of the Secretary of State and state agencies in general (extending throughout the United Kingdom) is that provided for by Article 2 of the European Convention on Human Rights to take all appropriate steps to protect life.

In an article in the Law Society Gazette Lord Hendy Q.C. and Jane Deighton[5] have drawn attention to the provisions of the Health and Safety at Work Act 1974 and the Personal Protective Equipment at Work Regulations 1992 and make the point that it is a criminal offence for an employer to fail to provide a safe place of work. They go on to note, however, that the Health and Safety Executive and local authority Environmental Health officers have so far failed to bring any prosecutions for failure to provide PPE. Indeed, because criminal liability falls on the employer, it would be the relevant NHS foundation trust or individual care home provider, who would face prosecution, rather than the DHSC or Public Health England.

Alex Bailin Q.C. has commented that a failure to provide PPE may amount to a criminal offence under the Corporate Manslaughter and Corporate Homicide Act 2007[6]. But that again poses the question of whether liability would extend beyond the immediate employer of those affected. The offence under S.1 CMCHA is committed where the way in which an organisation’s activities is managed or organised causes death and amounts to a gross breach of a relevant duty of care. The DHSC is listed as an organisation to which the provisions of the Act apply [7]. The DHSC has a ‘relevant duty of care’ under S.2 on the basis that it has a duty to persons who are ‘performing services for it.’ There is a question, however, as to whether the provision of PPE would fall within the terms of S.3(1), which provides that: ‘Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests) is not a “relevant duty of care”’. It is difficult to imagine that a decision about whether to provide life-saving equipment could properly be construed as a decision as to a matter of public policy, but then S.3 is intended to protect government departments from criminal liability for political decision making.

The question of criminal liability is currently under consideration in the case of at least one care home. Northamptonshire police are conducting an investigation into Temple Court care home in Kettering, run by Amicura, where 15 residents died of Covid or suspected Covid following the discharge of patients from hospital to the care home on 19th March. In determining the criminal liability of the care home for the neglect of the safety of its clients, it is likely to be impossible for the investigation to avoid considering the broader question of the liability of Public Health England and the DHSC for decisions concerning the transfer of patients from hospital[8].

In general, before any decision about criminal liability would be made, a decision will have been taken as to whether an inquest should be opened into the cause of death. That raises the critical question of the circumstances in which inquests will be opened in cases where the cause of death is Covid-19. The approach of the Coroners Courts is governed by guidance from the Chief Coroner and in Guidance 34 of 26 March, which followed immediately from the enactment of the Coronavirus Act 2020,  specific advice was provided that for the purpose of the Notifications of Deaths Regulations 2019, Covid-19 is considered to be a naturally occurring disease with the result that there will be no need for a referral to a coroner. Further, where a decision is taken to open an inquest, S.30 Coronavirus Act removes any requirement for it to be heard with a jury where the coroner has reason to suspect the cause of death was Covid-19. Guidance 37 was issued on 28 April under the heading ‘Deaths and possible exposure in the workplace’. The guidance notes that a workplace death from Covid is reportable to the Health and Safety Executive under the relevant regulations[9]. The guidance goes on to state that a death may be reported where it has been caused by a disease contracted in a workplace setting and that this may include frontline NHS staff as well as public transport workers, care home employees and emergency service personnel. It recognises that in determining the question of whether there is reason to suspect that the death is ‘unnatural’ for the purpose of the requirement to open an inquest, that it may be so if the death occurred as a result of a naturally occurring disease, but where some human error contributed to death. The Guidance then goes on to refer to higher court authority to the effect that an inquest is not the right forum for issues of general public policy to be resolved leading to the comment: ‘…an inquest would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for provision of PPE to healthcare workers in the country or a part of it.’ Advice is then given about the power to suspend the inquest in the event that the coroner considers that evidence should be obtained in relation to matters of policy and resourcing, such as obtaining adequate supplies of PPE, together with a cautionary note about the limitations on the ability to pursue enquiries as a result of the effect of the pandemic and the lockdown. In other words the Chief Coroner has sought to steer coroners away from addressing the critical question of the organisational failure to protect lives, prompting Deborah Coles, the director of the charity INQUEST,  to write to him stating that the Guidance will stymie and limit investigations into Covid-19 deaths [10]. However, as the Guidance recognises, once the low threshold of a reason to suspect that human error contributed to death is passed then coroners will be under a duty to open an inquest. If as a result of that enquiry the coroner concludes that a failure to provide PPE was a contributory cause of death then this will need to be recorded, whether or not it is accompanied by any observation on how the question of public policy impacted on the lack of sufficient PPE.

Finally, whether or not there are criminal prosecutions or a public inquiry, there is likely to be private litigation brought by those affected by the pandemic. That would not be confined to health service workers and others who have either died or suffered long term physical and mental health consequences as a result of culpable failures by their employers, but could extend to those avoidably exposed to risk, such as residents in care homes to which those infected by Covid had been discharged from hospital. Indeed a doctor whose father died in a care home is reported to be crowd funding for a legal action “to hold the government to account” [11].

Conclusion

The government has faced sustained criticism of many aspects of its handling of the pandemic. Central to that criticism has been the question of whether the government’s decision making has made the requirement to protect life secondary to economic considerations. What has to be faced is the shockingly high fatality rate in the United Kingdom among care home residents and those working on the front-line, including transport workers. That in itself establishes a prima facie case against those responsible for taking critical decisions as the pandemic has engulfed us. All the indications are, however, that any question of legal liability at a governmental level will be firmly resisted.

Henry Blaxland Q.C.

(With contributions from colleagues at Garden Court Chambers)

7th June 2020

 

Endnotes

[1] Reported in the Guardian 28/05/2020.

[2] http://www.gov.uk/guidance/high-consequence-infectious

[3] S.2(b)(iv) NHS Act.

[4] S.2(4)(a); S. 2(5)(a).

[5] https://www.lawgazette.co.uk/practice-points/personal-protective-equipment-and-the-law/5104146.article

[6] Guardian 09/05/2020.

[7] S.1(2); Schedule 1.

[8] https://www.northantstelegraph.co.uk/health/coronavirus/police-investigation-begun-kettering-care-home-closed-after-major-covid-19-outbreak-2873639

[9] Diseases and Dangerous Occurrences Regulations 2013, which requires that a report should be made where any person dies as a result of exposure to a ‘biological agent’ and Covid-19 has been so designated.

[10] https://www.inquest.org.uk/cc-guidance

[11]  www.localgovernmentlawyer.co.uk

 

 

Guest post by Mira Hammad: Covid-19 and the right to protest: an alternative view

I am pleased to host this guest blogpost by Mira Hammad, a pupil barrister at Garden Court North Chambers. It is written in response to the guest blogpost by Rebecca Penfold and Aparna Rao, published last week.  

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In their blogpost Rebecca Penfold and Aparna Rao look at the amended Coronavirus Regulation 7 and whether it infringes the right to protest. Regulation 7 prohibits outdoor gatherings of more than 6 people. The authors conclude (as have many lawyers commenting on this issue) that protests are unlawful under that provision. If this is so, it clearly interferes with our right to protest under the Human Rights Act.

The post goes on to consider whether this is a permissible limitation on the right to freedom of assembly and association. In the authors’ view “in order to argue otherwise, one would need to be able to show that, far from the limitation on gatherings being an unavoidable side-effect, the COVID-19 regulations are being used, or misused, as a means of silencing free expression.”

But that isn’t the test that the courts apply when it comes to the lawfulness of an interference with our human rights. In the defining protest case, DPP v Ziegler and Ors [2019] EWHC 71 (Admin), the court set itself a much more exacting set of questions.

Where a defendant is legitimately acting in exercise of her right to protest and there is an interference by a public authority, even if that interference is prescribed by law, the court still needs to ask:

  1. Whether the interference is in pursuit of a legitimate aim, and
  2. Whether the interference is necessary in a democratic society to achieve that legitimate aim.

Clearly the answer to the first question is yes. The answer to the second question is much more interesting. To answer it, the court would need to ask itself a series of sub-questions including:

  1. Is there a rational connection between the means chosen and the aim in view?
  2. Are there less restrictive alternative means available to achieve that aim?
  3. Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?

These questions are fact specific – in other words they cannot be answered in the abstract in relation to everyprotest and every interference by the police.

For example, we can imagine a protest where all of the participants are 2 metres away from each other and wearing masks. The police then turn up, herd protestors into a smaller space and (not wearing masks) themselves get close to people to arrest them. Would there be a rational connection between the police doing that and preventing the spread of the virus? Is that the least restrictive way of preventing the spread of the virus while allowing people to protest? Where in that balance are the rights of the individuals?

We can see these are not cut and dry questions.

Nor is it a simple answer to point out, as the authors do, that protestors could express their views in other ways, on Twitter for example. As the Court of Appeal has emphasised (Hall v Mayor of London [2010] EWCA Civ 817) the right to express views publicly (particularly on important issues) “extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views.”

The authors also point out that there is a 28-day review on the infringement, and that the regulations are clearly being amended to relax the restrictions over time. This isn’t necessarily a definitive answer either.

The fact that we are now in a phase where restrictions have been relaxed to allow gatherings for the purposes of training elite athletes (7.2(c)) is likely to make it more difficult, not less, to show that a blanket ban on protests is necessary.

Protests are also time-sensitive, people around the world are protesting as a result of the despicable killing of George Floyd and they are protesting now. To say that protestors can wait for 28 days and see what the government has to say in its review simply doesn’t answer the question of whether the interference with their right to protest is lawful today.

Where does all of that leave us? In my view, nowhere very clear cut. The courts would have to make a decision with regard to each defendant. They would have to consider the questions above in the context of that particular protest and decide whether the interference prescribed under the Regulations is lawful under the Human Rights Act or not.

And if it is not, what does the court do then? Well, in the first instance, courts have to interpret legislation as far as possible so that it is compatible with human rights. The courts would have some options before them in this regard. Could an exception be read into the definition of ‘gathering’ or ‘activity’? Could some protests be deemed to fall into exception 7.2(f) where a gathering is lawful where it is reasonably necessary for the purposes of education (…and one could certainly argue that public education is needed on the issue of racism…)? If the courts feel that there is no possible way of interpreting the regulations so that they are compatible with human rights, then a declaration of incompatibility would have to follow.

Blanket provisions and clear-cut answers don’t usually sit well in the arena of human rights law, where the reigning principles are proportionality, balance and necessity. The extraordinary times in which we find ourselves don’t change that.

Guest post by Hannah Edwards: The clock is ticking – bail breaches and Covid-19

I am pleased to host this guest post by Hannah Edwards, who is a second-six pupil practising at Drystone Chambers.

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In the chaos that Covid-19 has brought to our criminal justice system it is now, more than ever, important for practitioners to remember the fundamental principles when considering breaches of bail in the magistrates’ court.

A defendant who has been remanded on bail may be arrested without warrant if a constable has reasonable grounds for believing that they are likely to break or have broken any of their bail conditions (section 7(3) Bail Act 1976). Breach of bail, whilst arrestable, is not a standalone criminal offence.

The 24-hour time-limit

Upon arrest for an alleged breach of bail, a defendant must be brought before a magistrates’ court ‘as soon as practicable’ and in any event within 24 hours of arrest (section 7(4) Bail Act 1976). The hearing need only be before a single justice. Sundays, Christmas Day, and Good Friday do not count for the purposes of this time limit (section 7(7) Bail Act 1976). All other public holidays do count. In practice this means that if a defendant is arrested at 11am on a Saturday, the time limit expires at 11am on the Monday. If a defendant is arrested at 11am on a Sunday, the clock does not start ticking until the Monday (12:01am) and expires at midnight on Monday.

What must happen before the clock stops ticking? Is it sufficient for the defendant to be brought to the court cells within 24 hours? Or, for the case to be called on but the breach not yet determined by the magistrates?

The caselaw

In Governor of Glen Parva Young Offender Institution, ex parte G [1998] QB 877, the defendant was arrested for a suspected breach of bail and taken to the cells of a magistrates’ court within 24 hours. Despite being at court, the defendant’s case was not brought before a magistrate until two hours after the expiry of the 24-hour time-limit. The Divisional Court held that the requirements of section 7(4) were not satisfied simply by bringing the defendant within the precincts of a magistrates’ court: the defendant must be brought before a magistrate. Failure to meet the 24-hour time-limit must result in the defendant’s immediate release from custody; any continued detention is unlawful (per Simon Brown LJ at p. 298).

In R (Hussein) v Derby Magistrates’ Court [2001] 1 WLR 254, the Divisional Court examined whether a District Judge had power to entertain breach proceedings where the matter had been put back in the list by a justice already seized of the matter. The defence argued that the police power to detain the defendant under subsection 7(4) is limited to bringing the defendant to court as soon as practicable and, upon doing so, there was no power to detain the defendant thereafter. The District Judge therefore had no power to entertain the breach proceedings because there was no power to adjourn or to remand the defendant in custody. Whilst in principle this makes sense, the Divisional Court preferred a more pragmatic approach. The Divisional Court recognised that breach of bail was a unique situation in which speed of determination is of the essence; section 7(5) should not be interpreted as requiring the procedural rigidities that are appropriate for a formal hearing but often conducive to delay (para 30). Consequently, the District Judge did have jurisdiction to entertain the breach proceedings (para 31). The Divisional Court did not need to examine the 24-hour time-limit because the final breach proceedings had concluded within 24 hours of arrest.

The principal authority on the 24-hour time-limit is R (Culley) v Crown Court sitting at Dorchester [2007] EWHC 109 (Admin). In Culley, the Divisional Court examined a situation in which a hearing to determine a defendant’s alleged breach of bail had commenced within the 24-hour time-limit (unlike Glen Parva) but was not completed before the expiry.  After reviewing various authorities, including Glen Parva, the Divisional Court held that a justice is required to complete the required investigation and make a decision within the 24-hour period. Even if the hearing has commenced but not yet concluded, the continued detention of the defendant becomes unlawful from the moment the 24-hour period has expired. Any decision to remand the accused in custody after that time, is ultra vires and unlawful (per Forbes J at paras 19-20).

Most recently, in McElkerney v Highbury Corner Magistrates’ Court [2009] EWHC 2621 (Admin), the magistrates’ court had called on the case within 24 hours of the defendant’s arrest but the justice had not yet reached a decision before the expiry of the time limit. The justice continued the hearing despite the expiry of the 24-hour period and remanded the defendant in custody. An application for habeas corpus was made to the Divisional Court. Prior to the application being heard, bail was reconsidered by the magistrates’ court and a fresh decision to remand the defendant in custody was made. The Divisional Court was critical of the decision in Culley and noted that ‘it is not on the face of it a requirement that the justice’s decision be reached within that 24-hour period’ (at para 10). Importantly, this comment is obiter; the Divisional Court clarified that ‘no decision is required on the point in the present proceedings’ (para 11). No decision was required, because of the re-consideration of bail at the subsequent hearing.

Conclusion

The decision in McElkerney is often incorrectly cited as authority for the proposition that, provided the magistrates’ court have started to deal with the breach of bail, it need not be resolved within the 24-hour period. This is incorrect. It is not sufficient for a magistrates’ court to call on the matter at 10am, ostensibly starting the hearing in the belief that it has satisfied section 7(4) and adjourning it until later in the afternoon once the 24-hour period has expired. Culley remains binding and the entire decision-making process under subsection 5 must be concluded within the 24-hour period.  If not, then the defendant must be immediately released and any continued detention is unlawful.

This time-limit is even more important during Covid-19 when technology causes delays in the virtual hearings and matters are often put back in the virtual list. Note to practitioners – keep an eye on the clock!

Hannah Edwards, Drystone Chambers, June 2020.

Guest post by Rebecca Penfold and Aparna Rao: Covid-19 and the right to protest

I am pleased to host this guest post by Rebecca Penfold of St John’s Buildings and Aparna Rao of 5 Paper Buildings.

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The death of George Floyd has sparked a wave of protests from Minneapolis to Manchester, Los Angeles to London. Never before has the international community been subject to such restrictions as those now felt during the COVID-19 pandemic.

This note is intended to give a practical overview of the right to protest whilst under ‘lockdown’.  What rights do individual citizens have to protest, whilst subject to lockdown restrictions in England?

 

Overview

The right to protest is a human right. It cannot be abrogated except in accordance with law. But a global pandemic of a life-threatening virus creates some unprecedented problems for both protesters and law enforcers.

Indeed, many fundamental lawful rights have been limited by our legislative responses to COVID-19. For example, several rights contained within the European Convention on Human Rights (‘ECHR’):

  • The right to liberty has been qualified by the need to detain persons for the prevention of the spreading of infectious diseases (as anticipated by Article 5(1)(e)).
  • The right to a fair trial (Article 6) has been qualified by remote video hearings taking place, at least at the start of the lockdown, for all practical purposes in private, and by changes to the way in which witnesses can “attend” and give evidence.
  • The right to manifest religion or belief (Article 9), and the right to marry (Article 12), have both been limited while people have been prevented from attending places of worship.
  • Article 15 (derogation in time of emergency) has been invoked by several countries during COVID-19. To date, the United Kingdom has not done so.

Articles 10 and 11 of the ECHR are, it would seem, unintended victims of COVID-19. This note concludes that the freedom of assembly and association is limited in significant ways during these very unusual times. However, the limitations are slowly being relaxed, and seem to mirror the fluctuating severity of infection rates in England.

 

Law

Freedoms in the ECHR

The ECHR provides what is often called a ‘right to protest’, in Article 10 “Freedom of expression” and Article 11 “Freedom of assembly and association”.

Despite the ‘European’ element, Brexit does not stop us from being able to exercise these freedoms.

Neither Article 10 or 11 are ‘absolute’ rights.

Article 10(2) sets out the limits to the freedom of expression: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

 Article 11(2) sets out the limits of peaceful assembly: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”.

 

Police powers in England

These powers were in place before COVID-19 and continue to be in force:

The Police and Criminal Evidence Act 1986 (PACE) created a legislative framework to protect both the police and the public in the exercise of police powers.

Stop and search powers. Section 1 of PACE (stop and search powers) can be exercised during a protest. Police can stop and search any individual, generally if they have reasonable grounds to suspect that the individual is carrying drugs, weapons, stolen property or something that could be used to commit a crime. Police must also provide to the person being searched various details such as name and station, and the reason for the stop and search. These rules apply to protest and non-protest situations alike.

Ability to request details. The police can also stop an individual and ask for their details, but there is no positive obligation in law to comply. The individual can move away from the police officer; this does not give the police the power to arrest and/or search that individual. However, providing false details can be a criminal offence (obstructing a police officer, s.89 Police Act 1996, with a maximum penalty of a fine and/or one month’s imprisonment).

Power to require details. The police can specifically ask for an individual’s personal details under s.50 of the Police Reform Act 2002. Failure to give details, or the giving of false details, is a criminal offence (for which the maximum penalty is a fine). The police can only lawfully exercise the s.50 power if they hold a genuine and reasonable belief that the individual has been engaged in anti-social behaviour (defined as behaviour that causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household).

Arrest powers. Section 24 of PACE provides a general power to arrest without warrant anyone who is, or who the officer has reasonable grounds for suspecting to be, about to commit an offence or anyone who is, or who the officer has reasonable grounds for suspecting to be, in the act of committing an offence.

Wider powers relating to assemblies. The Criminal Justice and Public Order Act 1994 broadens the powers of the police and is often used when large-scale events, such as protests, are organised. It is intended to prevent serious violence. If a sufficiently senior officer gives authorisation under s.60, the police can stop and search any person or vehicles within a specified area and time frame, without any requirement for suspicion or reasonable grounds. Any failure to stop is a criminal offence (maximum penalty is a fine and/or one month’s imprisonment).

Removal of items concealing identity. A s.60AA order gives police the power to require an individual to remove and surrender any item “which the constable reasonably believes that person is wearing wholly or mainly for the purpose of concealing his identity”. In the COVID-19 world, wearing a face mask while at a protest may have a very different, and legitimate, purpose. However, this law has not been amended to take account of this. Failure to remove such an item is a criminal offence (maximum penalty is a fine and/or one month imprisonment).  If a s.60 authorisation is in place, a section 60AA order automatically follows. If no section 60 authorisation is in place, a stand-alone section 60AA notice can be authorised.

Conditions on processions and assemblies. The police can impose conditions on protests through s.12 (public processions) and s.14 (public assemblies) of the Public Order Act 1984. These conditions can limit the number of people involved, the location and its duration. Under the Anti-Social Behaviour, Crime and Policing Act 2014, the police can obtain powers of dispersal, forcing people to leave and not return to a certain place within a specified time frame. Again, further criminal offences attracting imprisonment flow from any failure to comply.

It remains to be seen whether any such case-specific authorisations or conditions will be made for upcoming protests.

 

Lockdown laws

It is worth noting that the ‘lockdown’ laws vary throughout the UK. This article focuses on the law as applicable in England.

Until 31st May, the relevant aspects of the ‘lockdown laws’ in England were:

  • Regulation 7 of the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 (as amended), which criminalised gatherings of 3 or more people in a public place. Under the Regulations, Police have the power, if considered necessary and proportionate, to direct a gathering to disperse, to direct people in a gathering to return home, and to use reasonable force to remove a person to their home;
  • Regulation 6 also criminalised being outside of one’s home without ‘reasonable excuse’. Specific examples of reasonable excuse are included, such as to exercise, but the defence is not exhaustive.

 

On 1st June, the Regulations were further amended and relaxed as follows:

  • Regulation 7 now prohibits outdoor gatherings of more than 6 people.
  • Regulation 6 prohibits anyone from staying overnight, without reasonable excuse, any place other than the place where they are living.

Schedule 21 of the Coronavirus Act 2000 is important to note. This law is unlikely to come into play in these circumstances as there is a requirement for an officer to have reasonable grounds to suspect one is a ‘potentially infectious person’. Nevertheless, we should all heed Government advice and ‘stay alert’, as there have been multiple instances of the police and CPS wrongly charging offences under this Act.

 

What does this mean for protests?

The effect of the lockdown laws is that, as of 1st June 2020, a gathering of 7 or more people outdoors is unlawful. It does not seem to matter that the purpose of that gathering is the exercise of a lawful right, nor does it matter if all pre-COVID-19 laws are being followed in respect of the specific protest.

It is important to note that the “2 metre” concept and other ‘social distancing’ measures are just guidance. They are not legal requirements.  So, P1 protesting 2m apart from P2 could still mean that both are breaking COVID-19 laws.

According to regulation 7(3), there is a gathering when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other.

A protest would fall within “any other activity”. So even if you go out to protest “by yourself”, if you are there as a result of an organised activity and others are also present doing the same activity, this would be a “gathering”. To adopt any looser interpretation would be to defeat the purpose of the regulations. For example, it would allow unlimited numbers of people to “individually” attend a movie being screened in a park, each “by themselves”. The purpose of the regulation is to confine group meetings to small numbers of people; if one of them is infected, this slows the exponential progression of the virus.

Thus, a protest with more than 6 people, who are physically near each other for prolonged periods of time, even if many are trying to maintain a 2m distance from each other, would likely be a breach of regulation 7.

Is this a permissible limitation on the right to freedom of assembly and association?

In order to argue otherwise, one would need to be able to show that, far from the limitation on gatherings being an unavoidable side-effect, the COVID-19 regulations are being used, or misused, as a means of silencing free expression.

The decisive factor here is the “public safety” and “protection of health” exception in Article 11(2). This is highly likely to be sufficient to justify the infringement of Article 11(1) created by regulations 6 and 7. Moreover, the restriction is only on geographically-specific physical assembly and association. Article 10 freedoms are largely unaffected except insofar as they can only be exercised by physical gatherings. The regulations are not a restriction on expression of views in other ways, e.g. via news websites and papers, social media, advertising, videos, telephone, or letter.

Bearing in mind that there is a 28-day review on the infringement, and that the regulations are clearly being amended to relax the restrictions over time, it is unlikely that the “right to protest” would triumph over these temporary restrictions.

Disclaimer: This article is intended as an overview of the law. It is not legal advice and should not be relied upon as such. Law accurate for England at the time of publication. Coronavirus-related laws change regularly.

Guest post by Jaime Campaner: The Spanish government’s fight against fake news: who will watch the watchers?

I am pleased to host this guest post by Dr Jaime Campaner, criminal lawyer and professor in procedural and criminal law at the University of the Balearic Islands.

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The Spanish Ministry of Justice has recently announced a review of the legal mechanisms to guarantee the right to receive trustworthy information. Any initiative to strengthen a fundamental right must be praised. Nevertheless, I am afraid that the way proposed, another potential fattening of the already obese Criminal Code, is mistaken and Spanish law already provides sufficient mechanisms to challenge a reality which is not new, but which in the last years has reproduced at breakneck speed due to the capacity of social networks to spread fake news. However, it is not possible to fight against fiber optics with the law alone; still less if it leads -once again- to a collapse, which is unaffordable for the administration of Justice.

I have applauded several of the initiatives of the new minister, but this announcement seems to me to be an error and should be reconsidered. It is not possible to legislate based on gut-feelings, however “fair” they may seem, and even less so if the stimuli that give rise to the legislative initiative take place during the period of a state of alarm.

The law, and especially the criminal law, is not a magic formula. It would be a mere discussion about labels (that is, focusing on the words and not on the substance of the matter) to announce the review of legal instruments when, on the one hand, we should be aware that the solution is by educating citizens from an early age; and, on the other, both the Spanish law on the protection of the right to honor, privacy and self-image, as well as the Criminal Code, already provide for civil and criminal protection mechanisms against such conduct.

The key, as I have mentioned, lies in education. It is not acceptable that a democratic State should select what information citizens can receive just because -and this is the harsh reality- they are not prepared to analyze the plausibility of a news item or to test the reliability of the source minimally. The government -although it does not say so- starts from an absolutely certain premise that causes embarrassment: a large part of Spanish society does not read and suffers from a serious lack of reading comprehension, and also assumes that any information is true just because it appears in the press.

Actually, we have seen an embarrassing chain of angry comments on social networks on the occasion of a clearly sarcastic piece of news, entitled “The Government buys 50 million noses with glasses by mistake”,which was published in a strictly satirical medium accompanied by a comical photomontage of members of the government wearing glasses and plastic noses with a built-in false moustache, in true Groucho Marx style.

Is this the society that our leaders want to perpetuate? A society unable to discern, to analyze, to form their own free opinion by resorting to reliable sources of contrast; a society that is governed by the frantic uncritical forwarding of whatsapps. The government should provide citizens with self-help tools (teaching them to think for themselves) before acting as a guardian for their wards (thinking for them, going to court).

To the above problem is added the eternal problem posed by Juvenal: quis custodiet ipsos custodes? (who will watch the watchers?). How can citizens choose between different options if the government filters the information, rushing to go to court (even obtaining injunctions such as gagging orders against the publications)? This would be a double-edged sword, because the other side of the right to be protected (that is the right to transmit truthful information) would also be subject to a gag, and such a restriction would cut off precisely the right to receive that information.

Jaime Campaner

Guest post by Joanna Hardy: I’m an online lawyer now. Can you hear me?

I haven’t met the defendant, Your Honour,” I tell a screen in my kitchen. Silence. “Can… can you hear me?” My words echo through the judge’s laptop in a courtroom three miles away. I hear them again in prosecution counsel’s dining room. My client, who has never set eyes on me before, sits in a prison just a few streets from my house. He stares at new faces on digital screens and blinks. His prison link is separate to ours. Someone has perched his screen in front of a second laptop in the hope his voice will carry across two devices and into my kitchen. When he speaks, he sounds a million miles away. He might as well be.

Long-predicted changes have arrived in our courts by necessity and at speed. Court staff have worked miracles with limited resources, judges have been patient, everyone has tried their best. Lockdown has spurred us into action and will revolutionise the system as we know it. We ought to be open-minded and recognise that the Luddite days of resistance are behind us. Some civil proceedings may be transformed entirely. Unnecessary assembly at court should be confined to history. We will save time, save money and be better for it. Once the technology improves, and it is about to, there will be questions to answer. Is this still a sticking plaster? Or is this the new normal? The answers will depend not on what the technology is capable of – but where we choose to draw the line.

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?

Our job as courtroom advocates, bewigged and gowned, often takes centre stage. This is the front-of-house business of criminal lawyering. But it is backstage, early in the morning and late in the afternoon, where the most challenging advocacy takes place. In windowless conference rooms and dank cell areas across the country, difficult decisions are made and delicate conversations are held.

These are the moments when voices need to be heard.

Meeting a vulnerable complainant and finding the right words with the right tone. Speaking to a bereaved family at a sentencing hearing with professionalism and care. Being in the same room to negotiate compromises that deliver justice for a victim and a community. Looking a defendant in the eyes and delivering unwelcome advice that cannot be ignored by pressing a button. Watching for voice patterns, breathing rates and unspoken signs of agitation. Noticing the nail crescent imprints on a nervous clenched hand. It is managing the head-in-hands frustration, the raised voices and the unspeakable sadness of those we sometimes encounter. Sometimes, it is just hearing the heartache in the silence. It is spotting when someone may need an interpreter, an intermediary or their asthma inhaler. It is being able to navigate the fine lines between fear, confusion and bravado. It is the ability to speak to a 13-year-old obsessed with TikTok in the morning and an anxious pensioner in the afternoon. It is everyone in between. It is taking our strange, archaic language and distilling it into manageable chunks of reality. It is drawing the jury with a crayon and colouring them in to explain a majority verdict to a child. It is a judge reassuring the parties that they have as long as they need – as long as the building is open – to resolve a case. It is answering the difficult questions in a decent way: “What should I pack for my son if he is sent to prison?”

Those are not legal skills, they are human. It follows that they are not legal objections to mass online litigation – it is more delicate, more nuanced than that. These are the occasions when the way we communicate matters – not just the fact that we are communicating at all.

Recent events have required compromise and pragmatism. Once we safely emerge from the lockdown, we will need to identify the circumstances where online hearings can help and when they hinder. Which of our old habits were good and which were bad? Do certain tasks need to be perfect or do they just need to get the job done? Technology will help the criminal courts to streamline and to simplify. It is long overdue. We should be open-minded to improvements in technology, to new ways of working and to giving it a fair try. But lockdown has made me realise that it is not just whatwe do that is important – it is also how we do it. An anonymous Circuit Judge wrote recently about their digital experience in the family jurisdiction. They remarked that when we deliver justice “how we go about it as well as the bare fact of it being delivered, really really matters”.

Stripped bare of human interaction, I have found the job unrecognisable. The tasks I usually perform are changing. Some of them are online now. Some of them will be online in the future. But some of them, I hope, will always stay “in the room”. We will need to draw the lines of our new landscape with care.

My client gazes at a screen of strangers as his case is adjourned. We choose a date in the future when we hope that something, anything will have changed. Our microphones are unmuted, our volume is up – but can the people who matter most really hear us?

Joanna Hardy is a criminal barrister. She tweets @joanna__hardy

Guest post by Aparna Rao: Why the decision to quash the conviction of Cardinal Pell might strike lawyers as troubling

I am pleased to host this guest post by Aparna Rao, of 5 Paper Buildings, published in response to yesterday’s guest post by Edward Henry QC, which argued that the approach taken by the High Court of Australia in allowing the appeal of Cardinal Pell was one that the England and Wales Court of Appeal (Criminal Division) should emulate. The author qualified in law in Australia before moving to practise in England and Wales, and is a former judicial assistant at the High Court of Australia.

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Earlier this month, the High Court of Australia made international headlines when the full bench agreed unanimously to acquit George Pell.

A sufficiently momentous event had already occurred on 11th December 2018, when Pell, a Cardinal of the Catholic Church, was unanimously convicted by a jury of five offences involving sexual abuse of a child (under the age of 16) in St Patrick’s Cathedral, Melbourne, in the State of Victoria.[1]

 

Background

Australia inherited its common law system from England and Wales. The High Court of Australia (“HCA”) is the final court of appeal. Its decisions are binding and set legal precedent.

The format of a criminal trial in Australia is based on the same principles as in England and Wales. A judge presides, determines questions of law, and a jury of 12, following those directions, determines questions of fact. Barristers for the prosecution and defence test the evidence in an adversarial system. The burden and standard of proof are the same: the prosecution has to prove its case beyond reasonable doubt. In England and Wales this test is now referred to as “being sure”, but both tests have the same source and effect.

The five charges related to incidents alleged to have taken place in 1996-1997 against two choirboys, A and B. The trial heard evidence from A only, as B was deceased. The HCA judgment sets out the evidence and the defence objections to it in some detail and I will not rehearse it here. In summary, Pell’s defence was that the actions complained of never happened and could not have taken place. Much of the evidence concerned whether Pell would have had the opportunity to commit the offences as alleged. The prosecution accepted that there were inconsistencies in the evidence but argued that the jury could nonetheless be satisfied beyond reasonable doubt that the offences had been committed.

 

Appeal

Pell appealed the guilty verdicts, first unsuccessfully to a three-Judge bench of the Court of Appeal of the Supreme Court of Victoria (“VSCA”),[2] and then to the HCA.

The HCA applied a common law test for overturning a jury’s verdict of guilty: whether there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.[3] The HCA made secondary reference to the statutory test which formed ground 1 in the VSCA, namely where the jury’s verdict is unreasonable or cannot be supported having regard to the evidence.[4]

In England and Wales, the test when appealing a conviction to the Court of Appeal (Criminal Division) is whether the members of the Court “think that the conviction is unsafe”.[5]  Criminal practitioners will be entirely familiar with the CACD’s way of dealing with this test.

The most common refrain is that, ‘despite our finding that a serious error was made by the trial judge, we consider that the evidence against this appellant is so strong that the conviction cannot be unsafe.’

More apt here, perhaps, is the only slightly less frequent conclusion: ‘Although there were flaws in the evidence, the jury was properly directed in law, had the benefit of defence submissions on those flaws, and nonetheless was sure of the defendant’s guilt.’ The pre-1996 concept of “lurking doubt”[6] rarely finds favour with the CACD these days.[7]

The sanctity of the jury process casts the Pell judgment in a remarkable light for practitioners in England & Wales.

The HCA held that the evidence was so flawed that the jury could not have convicted Pell on these five counts. The fact that all of these flaws were pointed out to the jury by skilled defence Queen’s and junior counsel, and that the jury’s verdict meant these points had been rejected, was not enough for the HCA.[8]  In the CACD it is very likely that this would have been fatal to the defence argument on appeal.

Instead, the HCA appears to have treated the jury’s decision as one that should, in effect, be subject to judicial review for some species of irrationality or Wednesbury unreasonableness. Thus: no reasonable, rational jury, with full knowledge of the flaws in the evidence, could have found the defendant guilty. This jury, in convicting, was acting unreasonably and irrationally, and so the convictions must be set aside.[9]

 

Remedy

However, the HCA did not then remit the case for a retrial pursuant to the statutory options on a successful appeal.[10] It would seem that not only was there a “significant possibility that an innocent person [was] convicted”, but that there was no possibility that he could have been convicted at all.

Having, in the manner of a judicial review, found that the decision-maker had made an unlawful decision, the HCA did not remit it to be remade lawfully. It took upon itself the decision on the merits and entered acquittals, substituting the correct decision for the jury’s unreasonable one.

Some courts, having quashed the convictions, might have considered that the evidence should then be re-examined, challenged or otherwise supplemented before a new jury. But Pell’s was a case where the HCA decided that there was no possibility of conviction. The decision implies that any prosecution of these allegations was bound to fail and should never have been brought.

 

Analysis

The Pell decision might strike criminal lawyers as troubling.  Whatever one’s individual views of the facts of this case, and this note expresses no opinion about the facts, there are well-established, powerful reasons why appellate courts should be reluctant to interfere with a jury’s verdict. Key among these are the finality of verdicts, the jury’s advantage in hearing the evidence first-hand, and public confidence in the integrity and independence of the trial process, which necessitates a separation between the judiciary and the jury. Simply put, if a country’s criminal justice system relies on trial by jury, then it is juries that should decide whether an accused is guilty or not guilty.

The adversarial trial process is designed around the existence of the jury. It gives the parties the opportunity to test the evidence, so that the jury has the benefit of making its decision in full knowledge of the reliability of and flaws in that evidence. There is no indication that this did not happen in Pell’s trial.[11]

If it is considered that the case ought not to be left to the jury at all, there are mechanisms available during trial to have the case stayed or withdrawn if the evidence is flawed. Indeed, the prosecution was obliged to abandon separate proceedings against Pell (in relation to an unrelated incident) after adverse rulings casting doubt on the strength of the evidence.[12]

In England and Wales, in the face of unchallenged evidence that is inconsistent with the complainant’s allegation, the defence might have been well-advised to seek a dismissal, stay, or ruling of no case to answer. These would also then form strong grounds of appeal. But the jury’s verdict, reached in full knowledge of the inconsistencies, would be likely to stand absent some new argument or evidence that could not have been advanced below.

The HCA judgment reveals no complaints about the judge’s conduct of this trial, rulings of law or directions to the jury. Nor is there any suggestion that the HCA was privy to fresh evidence that was not before the jury. It would appear that the only error made in this case was a factual one: this jury reached a verdict that the HCA could not agree with.[13] This is the kind of substitution that the CACD deprecates.[14]

 

Conclusion

What the Australian appellate process reveals, via this case, is an unrivalled opportunity to have the facts of one’s case re-heard by three different tribunals: the jury, the state appellate court, and the HCA. Of course, not all convicted defendants will have the means to pursue all these options. And the same avenue is not open to the Crown should a jury irrationally acquit a guilty defendant.[15]

It is noteworthy that all seven Justices of the HCA agreed to allow the appeal. There was no dissenting voice, as there so often is. The Justices did not even publish separate judgments with variations on the reasons for their agreement, which is quite common. A joint judgment of this nature is fairly rare. It will usually have been written by one Justice and joined by the others.  It also suggests that the Court was keen to avoid any misinterpretations or arguments about the reasons for what would undoubtedly be a controversial decision. Yet this consideration has not prevented members of previous compositions of the HCA from issuing dissenting judgments in controversial cases.

Traditionally, decisions of this respected court of final appeal carry significant weight in fellow Commonwealth jurisdictions. Pell v The Queen will undoubtedly feature in numerous appeals for many years to come. In Australia, it is yet to be seen whether the case will end up being confined to its facts, or whether there will now be substantially increased scrutiny of jury verdicts. The latter would be a radical shift indeed. It may not find much favour in the courts of England and Wales.

Endnotes

[1] For the trial judge’s sentencing remarks see [2019] VCC 260, https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/260.html. This was a retrial, as the first trial in August 2018 resulted in a hung jury.

[2] Pell v The Queen [2019] VSCA 186, https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2019/186.html?context=1;query=[2019]%20VSCA%20186;mask_path=. The court dismissed the appeal by a 2:1 majority.

[3] Pell v The Queen [2020] HCA 12 para 9 and footnotes.

[4] Pell v The Queen [2020] HCA 12 para 39.

[5] Criminal Appeal Act 1968, s.2 (England & Wales), in force from 1st January 1996.

[6] R v Cooper [1969] 1 Q.B. 267.

[7] It was described as “outmoded” in R v S [2017] EWCA Crim 204, and its use deprecated in R v Fanning [2016] EWCA Crim 550. Its only application is very restricted indeed: see R v Pope [2013] 1 Cr. App. R. 14 para 14. “As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If therefore there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, the application of the ‘lurking doubt’ concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.”

[8] In light of the increasing reliance on remote video hearings today, it is useful to note that the jury viewed much of the oral evidence in a pre-recorded video format: see [2019] VSCA 186 para 1031. The trial was fully recorded, and the VSCA was asked to view parts of it in making its decision. While the HCA was willing, in principle, to accord deference to the jury’s verdict, it was not minded to give any weight to the VSCA’s view of the same evidence.

[9] At para 119 in relation to counts 1-4: “Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue … was whether the compounding improbabilities caused by the unchallenged evidence [contradicting A’s account] nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.”

At para 127 in relation to count five: “The unchallenged evidence … [was] inconsistent with acceptance of A’s evidence of the second incident. It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant’s guilt of the offence charged in the second incident. In relation to charge five, again making full allowance for the jury’s advantage, there is a significant possibility that an innocent person has been convicted.”

[10] Criminal Procedure Act 2009 (Victoria) s.277: https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s277.html.

[11] A distinction can be drawn with R. v. B. [2003] 2 Cr. App. R. 13 where the defendant was fatally disadvantaged by being put in an impossible position to defend himself. That case has been criticised (R v E [2004] 2 Cr. App. R. 36) and would perhaps be viewed differently today, given the manner in which many allegations of sexual abuse now surface.

[12] Evidential ruling: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/149.html?context=1;query=pell;mask_path=au/cases/vic/VCC. The case was later discontinued: https://www.smh.com.au/national/pell-won-t-face-trial-on-allegations-from-the-70s-of-pool-impropriety-20190226-p510b7.html.

[13] As the majority in the VSCA put it, [2019] VSCA 186 para 13: “It should be emphasised that the inquiry which this ground requires is a purely factual one. Unlike the position where a ground of appeal contends that the trial judge has erred in law — for example, by admitting certain evidence or in giving (or failing to give) the jury a particular direction of law — no discrete question of law arises. Rather, the appeal court reviews the evidence as it was presented to the jury and asks itself whether — on that factual material — it was reasonably open to the jury to convict the accused.”

[14] R v Fanning [2016] EWCA Crim 550 para 58: “We deprecate the use of the phrase “lurking doubt” as it represents an invitation to this court to substitute its view for that of the jury.”

[15] Similar to England and Wales, the Crown does have the ability to appeal judicial rulings that result in a not guilty verdict, and to prosecute some offences again if fresh and compelling evidence is available (modified double-jeopardy rules).

 

Guest post by Edward Henry QC: Reflections on the case of Cardinal Pell

I am pleased to host this guest post by Edward Henry QC, of QEB Hollis Whiteman, reflecting on the case of Pell v The Queen [2020] HCA 12, and what the Court of Appeal (Criminal Division) in England and Wales can learn from the High Court of Australia.

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On 7th April Cardinal Pell was cleared by the High Court of Australia of wrongful allegations of historic sexual assault on a chorister. In its judgment, the HCA found that for all five charges, there were many improbabilities that had not been fully considered by the jury, amounting to “a significant possibility,” the judges wrote, “that an innocent person has been convicted.” Edward Henry QC considers that cases involving historic allegations of sexual abuse can present a real danger of injustice, which the CACD too often seems to ignore. The approach of the HCA is one the CACD should adopt in making an assessment of whether a conviction is ‘unsafe.’

The case of R. v SJR & MM [2020] 1 Cr. App. R. 7 (in which I appeared for the appellants) represented a personal nadir in my professional life. A sense of injustice still haunts me. A weak case, as was submitted to the Court, replete with inconsistencies and serious anomalies, including the admission of patently inadmissible evidence, was rationalised by the Court of Appeal [Criminal Division] with the same old-saw: “the critical issue was whether or not the jury were sure that [the complainants] were telling them the truth.” Appeals dismissed, and in so doing both Appellants (to whom another constitution of the Court had granted leave to appeal less than six weeks before) were left condemned to rot inside, one in such poor health that it is unlikely he will ever be released.

How different is the approach of the High Court of Australia [“HCA”] the equivalent, since 1986, of the UKSC. Not for them the “Sacred Cow” that a jury is always right, or that the complainant’s credibility is necessarily determinative. That may be the ruthlessly expedient default option for other appellate courts, but it was not the route the HCA took: a road less travelled for many Court of Appeal judges. But it would be wrong to assume that the HCA decided the case simply by finding that Pell’s accuser was a liar.

Pell v The Queen [2020] HCA 12 is striking because the HCA proceeded on the basis that the complainant was credible. The foundation stone upon which the HCA constructed its unanimous judgment was set down with startling candour as to its own unflinching duty:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

 In the course of its judgment, the HCA passed reflection on the majority judgment of the Supreme Court of Victoria, which upheld the convictions, on the basis of its “subjective assessment, that [the complainant] was a compellingly truthful witness.” This was in spite of the magisterial dissenting judgment of Weinberg JA. The HCA, tellingly, made this observation, which provides the key to how they evaluated the testimony of Pell’s accuser in the context of all of the evidence:

Weinberg JA did not assess A to be such a compelling, credible and reliable witness as to necessarily accept his account beyond reasonable doubt. The division in the Court of Appeal in the assessment of A’s credibility may be thought to underscore the highly subjective nature of demeanour-based judgments. [Emphasis added]

It is refreshing to note this frank recognition that demeanour-based judgments are highly subjective, and thus credibility, alone, can be an unreliable yardstick for determining guilt. Mr Justice Weinberg’s analysis prevailed before the HCA in the light of his profound sifting of the evidence, citing a number of ‘compounding improbabilities’, which combined to render the alleged episodes distinctly unlikely. Australian jurisprudence has been steeped in such probabilistic reasoning, owing perhaps to the influence of the late Sir Richard Eggleston QC, the widely respected law professor, appellate judge, and author of “Evidence, Proof, and Probability.” Eggleston was esteemed by no less than Lord Bingham[1], who distilled his method of appraising a witness’s account under five headings:

  • Analysing the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence to have occurred;
  • The internal consistency of the witness’s evidence;
  • Consistency with what the witness has said or deposed on other occasions;
  • The credit of the witness in relation to matters not germane to the litigation; and finally, and last and least of all,
  • The demeanour of the witness.

The HCA, in quashing the convictions, concentrated exclusively on the first issue: there was no opportunity for the offences to have occurred (consistent with the burden and criminal standard of proof) based upon an exacting review of the ‘solid obstacles to conviction,’ all derived from credible prosecution witnesses, noting the impact such evidence had upon the prosecution case. This was a highly nuanced and fact-centric approach, assaying the case in detail, as opposed to the ‘broad brush’ psychologically primitive slant of, on occasions, the Court of Appeal. The HCA’s inquiry into the whole facts, in the circumstances of this case, fully justified the convictions being overturned, as scrutiny of the seven judge unanimous decision reveals.[2]

In contrast, in this jurisdiction  appellate courts are notoriously reluctant to disturb first-instance findings of fact which turn on questions of credibility, or reliability. Should our senior judiciary absolve themselves by chanting the mantra ‘we must not usurp the jury?’ The demise of the Cooper “lurking doubt” ground of appeal is consistent with this attitude. That ground is now rare and successful appeals, pursuant to it still rarer. I would contend that Widgery’s LJ thesis in Cooper should be reframed, not as a general feeling of unease, dependent on the Court’s “feel” for the case, but upon a rigorous assessment of the entire matrix of evidence, whether it might contradict or undermine the complainant, i.e. is itreasonably possible that the complainant’s account was not correct, such that there is a reasonable doubt as to the applicant’s guilt?

There needs to be honest acceptance that accounts of historic abuse, however convincing, and apparently credible, can be unreliable. Especially, as was found in Pell, where such allegations cannot be reconciled with, or are flatly contradicted by, other credible evidence.

The HCA’s approach, echoes something we all know, and which Shakespeare expressed succinctly, thus:

“There’s no art / to find the mind’s construction in the face.”

In spite of this collective wisdom, from Literature, common experience, and psychology, the Court of Appeal (in its Criminal Constitution) has shut its eyes to this troubling and self-evident truth – that demeanour is a profoundly unreliable way to resolve cases. This has been known to the Civil & Family Divisions for many years. In his Neill lecture to the Oxford Law Faculty on 10th February, 2017, Lord Neuberger stated that he was:

“very sceptical about judges relying on their impression of a witness, or even on how the witness deals with questions. Honest people, especially in the unfamiliar and artificial setting of a trial, will often be uncomfortable, evasive, inaccurate, combative, or, maybe even worse, compliant. And our assessments of people are inevitably based on our particular experiences and subconscious biases. Sometimes it might appear that factual disputes are being resolved by reference to who calls the best-performing witness, not who calls the more honest witnesses.”

In saying this, he was following in the footsteps of Lord Devlin, and more recently, Lord Bingham. For Lord Devlin, judicial confidence in reading the witness, thereby discerning truth or falsehood, was overstated:

“The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this is overrated. It is the tableau that constitutes the big advantage, the text with illustrations, rather than the demeanour of the particular witness.”

Leggatt LJ, who joined the UKSC on 21st April, 2020, made the following declaration in a commercial case, which he tried as a puisne Judge in 2013,that memory is not to be trusted, an opinion that surely accords with the objective experience of most criminal practitioners:

“While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony.”

This quotation from Gestmin v Credit Suisse [2013] EWHC 3560 (Comm) potently describes the ‘elephant in the room,’ which has been worse than ignored in criminal trials. Whilst generic directions on ‘stereotypes’ are deployed in the Crown Court, often to the defendant’s disadvantage, the accused is not afforded even the most rudimentary précis of that ‘century of psychological research’ which calls the reliability of memory into question.

Gestmin has been widely approved and cited elsewhere, as one might expect, since Leggatt’s J analysis was a cogent exposition as to why the nature of historic oral evidence is an evolving creation, as opposed to a ‘flashbulb’ image. Having sign-posted a number of issues as to why memory is fallible and subject to certain biases created by the trial process (which could arguably apply to pre-trial criminal procedure) he came to this conclusion:

“Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

This takes on more ominous importance where a witness may have convinced themselves of something entirely fallacious in a criminal court. Given that Lord Leggatt’s tenure at the UKSC has just begun, it is to be hoped that before it ends an appropriate challenge can be brought before the UKSC in an historic case predominantly based on the credibility of a complainant, as Pell did in the HCA. Until then, innocent defendants will remain at the mercy of their accuser’s memory, which Oliver Goldsmith once described as “thou fond deceiver, still importunate and vain!”

Endnotes

[1] Chapter 1, The Business of Judging, The Judge as Juror

[2] http://eresources.hcourt.gov.au/downloadPdf/2020/HCA/12