COVID 19: A PROTOCOL TO ASSIST SOLICITORS WHO ARE WORKING REMOTELY AND ADVISING SUSPECTS IN RELATION TO POLICE INTERVIEWS

I am pleased to publish a protocol for solicitors advising suspects at police stations during the COVID-19 crisis. It has been drafted by Keir Monteith QC, Lucie Wibberley, Patrick Roche and Vicky Meads.
The starting point is  no one should put themselves at risk…. the opening paragraph states:
  1. We need to act now to protect the lives of solicitors who are called to a police station and the lives of suspects who require representation. In short, solicitors should not be required to attend police stations and suspects should only be detained and interviewed in the most serious of cases.

Thereafter the protocol provides advice and assistance on the difficult decisions that are now having to be made including: whether to attend the police station, should there be an interview; if so should a prepared statement be served immediately or post event. Where possible, the authors have made reference to helpful codes of practice, a Home Officer Circular and case law.

The bigger picture is that there needs to be a joined up Government approach that provides consistency from arrest to final disposal – a proper triaging of cases.

 

Comments and observations are encouraged.
The protocol can be found by clicking on the link here.

Lives are being put at risk by the intransigence of the government and the courts. Jury trials must be suspended immediately.

UPDATE: At 8am on Monday 23 March 2020, the Lord Chief Justice announced a suspension of new jury trials. The details are vague, and hint at a resumption “where specific safety arrangements have been put in place”, but for now, at least, it seems as if a level of sense has prevailed. Regrettably the announcement came far too late to reach many jurors, who will have already embarked upon needlessly risky travel by public transport, but joined up thinking has never been part of the justice system’s core values.

 

Today, thousands of citizens of England and Wales will attend their local Crown Court in answer to a summons compelling them, under threat of imprisonment, to do their civic duty and serve on a jury.

They will queue with dozens of other strangers to be herded into a packed jury waiting room. Once selected for a jury panel, they will pile into a dirty, windowless courtroom and sit next to each other for five hours a day. At lunch they will mingle with the hundred or so other jurors in the building. At the conclusion of the trial, they will shuffle into a tiny unventilated retiring room, where they will make a decision which could ultimately determine whether somebody spends years of their life in prison.

This is because, even though the government has closed schools, restaurants, pubs, cafes and leisure centres, one area of public life in which, to quote a government minister, we are “operating normally”, is in the criminal courts.

So while Scotland and Northern Ireland have temporarily suspended jury trials, in England and Wales the Lord Chancellor Robert Buckland and the Lord Chief Justice have decreed that jury trials lasting up to three days – estimated to be 75 per cent of trials – must take place.

They will do so in filthy conditions where lack of hot water, soap and paper towels is widespread; where broken hand dryers and leaking toilets and burst pipes and crumbling roofs and walls are par for the course; conditions which in the good times we in the courts accept as a permanent feature of a chronically underfunded justice system, but which in the current climate present a far more alarming proposition.

Criminal courts are, basic sanitation aside, a petri dish. Scores of defendants are piled into waiting areas. Most travel by public transport; some travel in “sweatbox” security vans from our infested, overcrowded, virus-rivenprisons. Defendants and their families mix with their barristers, who mix with court staff, who mix with witnesses, judges and jurors, who mix with other witnesses, judges and jurors. Courtrooms vary in size and style; in some of our more antique Victorian courts, jurors are squeezed onto hard wooden benches without an inch between them, let alone the government-recommended two metres. In a fairly typical court I was in last week, the defendants, barristers, clerk, usher, witness box and jury box were all within a two-metre radius of each other.

And by insisting that the shortest trials go ahead, the government is ensuring the highest possible churn of cases; the highest possible turnover of strangers coming into contact with each other.

Over the past few days I have been flooded with messages from terrified jurors, witnesses and court staff aghast that, at a time when the government is frantically urging social distancing on the ground that “infections spread easily in closed spaces where people gather together”, they are being required by law to expose themselves to such conditions. In a closing speech last week, one of my colleagues thanked the jury for their dedication at a time when they were no doubt worried about themselves and their families. One of the jurors burst into tears.

This situation is appallingly unfair to all concerned. How on earth can jurors be expected to concentrate on their task? How can any defendant or victim of crime have faith that the twelve people trying their case are paying full attention to the nuances of the evidence, when those twelve are burdened with the knowledge that, as a direct result of their jury service, they, or someone they love, could die?

And contrary to MoJ dicta, we are not operating normally. Judges are self-isolating; defendants, jurors and witnesses are staying at home as they break out with symptoms; and trials are collapsing all over the country. The Witness Service, the organisation responsible for looking after witnesses at court, has withdrawn its volunteers. Many Crown Court judges are making no secret of their disdain for what the MoJ would wish to term a “strategy”, but which more closely resembles a tribute act to Monty Python’s Black Knight chirpily dismissing each collapsed trial as a mere flesh wound.

The official government line is that “justice is not optional”. A sweet homily, betrayed only by the evidence of the past decade, in which victims, defendants and witnesses have found their cases mishandled or delayed for years due to enormous cuts to the budgets of the police, CPS, courts and legal aid. Justice has been optional whenever financially or politically convenient.

The three-day trial rule has no public health basis behind it, other than a chipper optimism that a trial of such a length might have an outside chance of completing before too many of its core participants drop down. The three-day trials will in general concern the less serious and more straightforward criminal allegations which could realistically wait another few months without too much harm being done.

The primary reason for the intransigence appears to be Mr Buckland’s fear of being the Lord Chancellor Who Closed The Courts, a disfiguring blemish on the CV of any aspiring careerist in this Tough On Crime government. There is also a secondary, practical concern: because of cuts, we have a backlog of over 30,000 Crown Court trials and are currently trying cases for offences said to have occurred two or more years ago. The government knows that a standard two-year delay could quickly become three.

The government should adjourn all jury trials listed in the next twelve weeks. In the Autumn, when it may be safer to do so, we can resume with the adjourned cases, only with the financial firehouse turned on. Instead of running at half-capacity, every Crown Court should run at maximum; the Treasury’s largesse must be extended to the justice system so that we don’t endure the farce of perfectly usable courtrooms sitting locked and empty due to “lack of sitting days” while judges get paid to sit at home. The backlog, both Covid-caused and historic, can be blasted away.

In the meantime, of course, justice and the courts cannot halt completely. Technology may – subject to the disastrous history of IT procurement in the courts – be capable of keeping shorter hearings on the road over the coming weeks and months. Video-links and telephone hearings have a poor record in practice, but offer a theoretical throughroad. Penal policy will have to change; early release of low-risk prisoners, hugely reduced sentences for guilty pleas and a statutory presumption against imprisonment may not be popular, but have to be given serious consideration. By minimising the number of participants required to attend hearings, reducing prison overcrowding and ensuring the court estate is fit for human habitation, urgent court business can tick along until we are through the worst.

Justice need not – indeed cannot – stop. Urgent court business must carry on. But jury trials as we know them cannot continue. It is telling that, when it first published its “priorities” in “managing our response to coronavirus”, the Ministry of Justice included no reference at all to the welfare of those actually using the courts. On the day that the “three-day rule” was announced, Robert Buckland tweeted that he was cancelling his constituency surgery because of “the government’s social distancing advice”.

The Lord Chancellor, and Lord Chief Justice, need to afford jurors, witnesses and court professionals the same consideration, and recognise the human cost of their stance before any more lives are unnecessarily put at risk.

Guest post by Joanna Hardy: We need to talk about lunchtime

A few years ago, a poster was stuck up in the robing room at Snaresbrook Crown Court. There was to be a charity raffle.

The prize? “Win lunch with the Snaresbrook Judges!”.

This prompted much mirth. An unimpressed barrister scrawled beneath it “Second Prize: TWO Lunches”. Another quipped that they would rather eat their own wig. Counsel threatened to enter their opponents into the raffle for a laugh, hoping to inflict an hour of judicial caesar salad on those who had wronged them.

This was all light-hearted. Everyone knows the Snaresbrook judges are really rather nice and, importantly, they have a dining room. And actual cutlery. The dark days of 2012 are long behind us and we try not to mention them in polite company.

I thought about that raffle a lot yesterday. I was wrestling with a Crown Court vending machine to extract my own lunch. A Kinder Bueno and a carton of Ribena. This was my seventh day of Vending Machine Bingo at a court with no catering facilities save for a roaring trade in the rare and disgusting delicacy of refrigerated packets of crisps.

The slot swallowed my money, the machine rumbled into action, the metal coil jammed and my chocolate bar was stuck. I eyed the machine for size and wondered if shaking it might be considered professional misconduct. I recalled that more people are killed by vending machines falling on top of them than from shark attacks. I decided not to risk it and poured more money in. Two Kinder Bueno. Jackpot.

I glanced at the time. A quarter of lunchtime had passed. I needed to see my client in the cells, see my opponent to discuss some evidence, finalise a document for the jury, consider some recent disclosure, return a frantic call from my clerk and, time permitting, use the bathroom. Clock ticking, time tocking, I shoved the chocolate into my mouth. “A speed lunch! The finest tradition of the bar”, a senior barrister bellowed at me as he commenced his own futile battle with the evil vending machine.

It was then I realised – we need to talk about lunchtime.

If a speed lunch, or no lunch at all, are traditions of the bar then they are bad ones. Like all traditions, we ought to occasionally ask ourselves why we are still doing them.

If the Wellbeing initiative is to conquer anything then her first victim must be the macho work culture that led us here. The at-all-costs attitude that shames people for basic activities like having a cup of tea or gathering their thoughts. The creeping obsession with sitting statistics and an unquestioning devotion to the “effective use of court time” has a price. Are we, as counsel, willing to pay it?

Because one thing we do find time to swallow is the frustration of being asked to perform a lunchtime miracle at a court that has closed the canteen, hired no recorders, broken the boiler, locked all the conference rooms and sealed off half the toilets. It is our shoulders that bear the loss of lunch, rest, and wellbeing to keep the show on the road, to keep the statistics high and to not keep anyone waiting.

As part of our Wellbeing revolution, we ought to now consider how we realistically structure the court day in the scorched landscape of cuts, closures and reduced facilities. It should be widely acknowledged that there will be trials and times when a longer lunch break, or multiple short breaks, are appropriate. Not always and not often. But for those trials where time is short, pressure is high and facilities are lacking we must call it out. We should be bold enough to insist that heavy tasks are undertaken within court hours and brave enough to recognise there is no shame in needing a rest. Justice is not a race and it will not be achieved by a drained, exhausted profession. We ought to now insist that the “effective use of court time” includes provision for us to remain effective too.

Joanna Hardy is a criminal barrister at Red Lion Chambers. She tweets @joanna__hardy

The meaning of justice

This will be (for now) my last word on the Tommy Robinson appeal. My legal analysis based on the facts as we now know them deals exhaustively and exhaustingly with the law; my reflections at the conclusion of that piece on whether I was too hasty to assume the correctness of the procedure, I stand by. Being quick to form views in the absence of the full facts is a bear trap I haughtily deplore when others fall in; it is only right to acknowledge if and when I teeter on the brink myself.

But I want to say something, for what little it is worth, about our understanding of justice. And my leaping-off point for this is something that a number of people have drawn my attention to today – this leader in The Sun.

The tweets to me accompanying this photo have been almost uniform: Who’d Have Thunk it, The Sun sticking it to Robinson and Co, Good On ‘Em.

And parts of this leader are indeed brilliant. Whacking to pieces the myth of this oppressed citizen journalist is vital, and needs doing as often as the piñata is reassembled by far-right agitators. Pointing out that the reporting restrictions that Robinson breached have nothing to do with political correctness and everything to do with ensuring a fair trial – the genius is in the simplicity of its expression. Spelling out in equally simple and clear terms the danger that such actions pose to victims of crime receiving justice – [INSERT MERYL STREEP APPLAUSE GIF].

But there’s a line buried within which troubles me, and echoes a sentiment that has been tweeted at me a lot in the erroneous assumption that I share it:

“His many convictions stretch from violence to fraud. We have no sympathy.”

This ugly and unnecessary throwaway reveals one of the biggest problems we have with our understanding of justice; the same problems that many of us are quick to highlight in our opponents. And that is that Robinson’s character, conduct and previous convictions, as reprehensible as they may be, are utterly irrelevant to the issue determined at the appeal, namely whether he received a fair hearing. If he did not – and he did not – he is as entitled as any of us to redress, or at the very least to an acknowledgment of being wronged. The attitude of “Who cares? He’s a criminal” mirrors the exact sentiment that has left the criminal justice system – from legal aid through to prisons – in its present desperate state.

It is immaterial whether Robinson has committed horrible crimes. Many people who appear before the courts have, especially in my line of work. And rights, if they mean anything, have to apply to everyone. It’s an obvious point, but this fundament of the rule of law is too often forgotten when we are confronted by society’s most unlovely.

If we neglect our first principles of justice, we fall into the trap carefully lain by the far-right. Their entire, dishonest thesis – from Trump through to Robinson – is that they are deprived of natural justice by its unequal, unprincipled application at the hands of liberal enemies of the people. By denigrating and distorting the rule of law they aim to undermine and ultimately destroy it. Implying that Robinson’s previous criminal record renders him less deserving of justice than the rest of us hands the far-right the prize they crave.

Don’t be fooled by the strained triumphalism of the far-right over yesterday’s outcome. This result is a disaster for them. It categorically disproves to a global audience every conspiratorial tenet of their religion. The liberal judges are not locking up political dissidents. There is no state cover-up. Mistakes, when made in the legal system, can and often will publicly be righted.

They may be proclaiming that they fought the law and won, but for the truth just ask The Clash. The winner, if we must talk in such terms, is justice.

Which moves me back to The Sun, and the risk of an equivalent false triumphalism on the other side. For just as the far-right mendaciously spin this righting of a procedural wrong as a “victory for free speech” – by which they mean the right to hound Asians accused of criminal offences – so we risk self-denigration by dismissing, or worse revelling in, the punitive effect of the court’s error. The joy that some are taking in the notion of Robinson’s imprisonment borders on the macabre.

I’m afraid if you’re supportively tweeting me amidst the blizzard of the racist bots to share a gloat that Robinson has maybe spent more time in prison than he should have, or to gleefully cross fingers that he gets longer next time, I’m not your ally in this cause.

It may be, when the contempt matter is dealt with anew by the Old Bailey, that a sentence is passed which matches or even exceeds what Robinson has already served. But at present, he served a sentence that followed an unlawful procedure. That shouldn’t happen. To anybody.

And if he does receive a lesser sentence – if the court, after a full and leisurely hearing at which all mitigation is made available finds that the appropriate sentence is much lower than he received first time round – and if it means he has therefore served longer than he should have, all the arguments I’ve made in my book about miscarriages of justice apply. It’s wrong. He should be entitled to an apology, and recompense, and all the other make-goods I demand on behalf of others. His perceived or actual shittiness is not material. If he has been imprisoned when he should not have been due to state error, it’s as much a problem as if it happened to “one of the good guys”.

So those are my closing musings. I have no issue at all – and nor should any of us – with Robinson seeking to and succeeding to challenge the lawfulness of his treatment at the hands of the courts. We are all entitled to due process, and should all expect, however abominable others may consider us to be, that the law will be applied fairly and correctly. My concern, contrary to what the Breitbarters would like to pretend, has always been the mob lining up behind Robinson to spread lies and quite literal fake news as to what took place, what the factual and legal issues are and how the law operates. Those peddlers of hate and deceit – the UKIPs, the Breitbarts, the Rebel Media, the Infowars, the unmentionable Twitter favourites – I will continue to resist as long as I keep up this vainglorious mission to bring law to the people who own it.

But as for what happens to Robinson now, all that should matter is that he gets justice. If, in his righteous pursuit, he encourages his supporters to continue their threats to the rule of law, their riots, their organised campaigns of racialised misinformation, I will be there waving my tiny paper sword on the front line.

But taking any sort of pleasure in anybody being failed by the justice system? We’re better than that. Let’s show it.

Lunch with the FT

I had the pleasure of a spot of lunch with Barney Thompson, legal correspondent at the Financial Times, for the “Lunch with the FT” feature in this weekend’s edition. Given the profile of interviewee normally invited (recent guests include Woody Harrelson, Anthony Scaramucci and Jacinda Ardern), this is an honour I most certainly don’t deserve, but the prospect of a free lunch trumped any sense of guilt or propriety.

The feature can be found here.

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Your questions answered on the John Worboys judgment

On Wednesday 28 March 2018, the High Court handed down its landmark judgment in the case of John Worboys, upholding the challenge by two of his victims to the Parole Board’s decision to release him. The judgment runs to over fifty pages and does not make for easy reading, so here’s my breakdown of this unusual and complex case for iNews.

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