The truth about the government’s claims to have “ended the rough sex defence”

Following a lot of media coverage of this issue, I wrote a Twitter thread looking at the law behind it. I’ve reproduced it here in case it’s of interest.

Postscript: Unforgivably, I suggested in the thread that R v Brown was a Court of Appeal decision when, as every first-year law student knows, it was a House of Lords judgment (the predecessor to today’s Supreme Court). The link, should you wish to read the gory case in full, is here.

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 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

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