Guest post by Dame Judi Bench: Exam Fiasco Part 2: Message in a bottle

I am pleased to host this guest blogpost by Dame Judi Bench.

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I just saw a picture of a bottle of yellow liquid in a bar exams. Those crazy students and their Lucozade

That’s not Lucozade.

Of course it is. That’s what all the kids drink during exams. It’s what I drank. It gave me strength.

Give me strength. Do you remember my last post?

I do, but just remind me again

Here it is. [Link]

I see, they aren’t allowed to get up and go to the bathroom. Why then would they drink Lucozade? It makes no sense unless… NO IT CAN’T BE. IS THAT WEE WEE?

It is.

Right, now I’m listening. I mean I need to pour bleach in my eyes but we can get to that later. How did it come to this? Are all home exams like this?

No. Home exam software records a student using their camera, microphone and screen. What they are allowed to do is up to the organisation who runs the exam. The BSB have decided that you can’t get up, drink, look away from the screen or think about cake.

That’s a joke isn’t it?

Well one of them is. I’ll leave you to decide.

It’s August though and the hottest one on record. Not being able to drink is ridiculous

You’re doing that thing again where you don’t actually ask questions but rely on inflection, but given the seriousness of this, I’ll let you get away with it.  It is ridiculous but despite the reasonable representations made, the BSB won’t budge.

What about the other demands? Why can’t these be open book exams?

We covered this last time. While of course they should be, you can’t just take closed book questions and make them open book. It won’t work. Closed book questions rely on you recalling facts. If you had the book it wouldn’t be the same test.

But that’s just silly and not what lawyers do

I know. I despair too.

Okay, but I also hear that all of these exams are becoming open book next year, so why not just expedite that?

I’m afraid that’s not quite accurate. At the moment there are three closed book unseen exams run by the BSB. Civil, Crime and Ethics.  From September 2020 when the bar course changes so do they, but not quite so starkly.  Crime remains as is.  Civil splits into two exams to cover the current syllabus plus ADR.  The ADR paper is open book but the main Civil paper remains closed book.  Ethics splits into two exams, one during the bar exam and one in pupillage.  Both are closed book. 

Why are any of them still closed book? Also, why is my pupil now going to have to take an ethics exam during pupillage? What if they fail that? How is that going to work?

No idea. Who knows. Shrug. Musical statutes in Lincoln’s Inn.

But given these students have passed all of their other exams, why can’t they just be waived through these ones on the basis of passing others?

The other nine modules of the bar course are set by the providers and have much higher pass rates.  Ask anyone who has done the BPTC and they will tell you that Civil, Crime and Ethics are the tough ones. Far more difficult than the others. Really, they are the ones that determine whether you pass the course or not. To waive them would be to waive the actual bit of the course that is difficult to pass. 

But we’ve established that they don’t really test what a Barrister does so why rely on them?

Good point, but what about people who failed one of them or all three of them in previous years but passed all their other exams? Hardly fair on them.

They didn’t face not being able to pee for three hours

Agreed but it would lead to a single group being treated very differently to all others since 2010.

But this lot have no choice. This is their only chance to sit

Except it isn’t. They can sit in December or later, even if they have pupillage. Granted that means not being able to take their exams now or chambers who won’t let them start without passing despite the BSB dropping that requirement for this group.  You can see why many of them want to sit now.

I feel drained. I need some energy. Pass that bottle of Lucozade.

It’s not Lucozade. We’ve been through this…

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 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 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 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

Does it matter that Quiz got the law so hopelessly wrong?

Last week, ITV premiered the three-part drama Quiz, based on the real-life story of the “coughing Major” Charles Ingram (who, despite his popular title, in fact engaged in no coughing himself), and his wife Diana, who along with co-conspirator Tecwen Whittock were convicted at Southwark Crown Court in 2003 of procuring the execution of a valuable security by deception, having apparently cheated their way to the £1million prize on Who Wants to Be A Millionaire.

Adapted from a successful stage play, it was in many respects an accomplished and entertaining piece of television, boasting a fine cast (topped by a terrifyingly Tarrant-like Michael Sheen) and compelling storytelling, gently inviting the viewer to question the safety of the convictions (which have always been denied). But the part which, inevitably, caught the attention of Legal Twitter was the re-enactment of the trial at Southwark Crown Court, which, it is fair to say, departed from reality in almost every conceivable respect.

As many have rightly pointed out, dogmatic fidelity to tedious reality does not make for great TV. And not even the most precious legal pedant – and I obviously include myself in this sad category – expects a three-hour drama to painstakingly chronicle the full in-and-out-of-court proceedings surrounding this four-week criminal trial. Selectivity and artistic licence are the bedfellows of a successful courtroom drama. Nobody wants to see three hours of junior counsel sitting in Southwark Crown Court waiting for a turgid pre-trial review to be called on for legal argument, or twenty minutes of embarrassed silence as the jury wait for the court to find a working DVD player.

But the number of errors that Quiz managed to cram into a relatively short space of time was remarkable. No legal consultant was listed on the credits (albeit there was a curiously-titled “court advisor”), leaving the writing and direction reliant on what I can only presume was either reruns of Judge Judy or uncredited legal consultancy from Vincent Gambini. From the very beginning to the very end, the most basic elements of the judicial process were misconstrued and misunderstood, leaving an unrecognisable portrayal of any criminal trial that has ever taken place in England and Wales.

The obvious question, again fairly raised by several non-lawyers (and repeatedly by my non-lawyer other half, head in hands, as we watched) is Does This Matter? Is this not simply what anybody has to endure when watching a fictionalised representation of their specialism? Is it any different to medics watching Holby City, or IT consultants watching anything with technology, or – to draw on perhaps the most unforgivable aspect (if true) of the Ingram saga, namely his claim not to recognise David Hasselhoff – lifeguards watching Baywatch?

The only difference, surely, is that lawyers are prima donnas sufficiently precious to compose laborious Twitter threads and blogposts on how and why the errors offend them?

These questions are, I’ll say it again, fair. And there is no doubt that I am being an arse. Let’s please make that clear. Pedantry is our stock-in-trade, and we can and do deploy it indiscriminately and, inevitably, sometimes needlessly. But I do think there’s a distinction, and a point, here. I think there is validity among the snark.

Before turning to why, it may help to list the errors, helpfully gathered by, among others, Fiona Robertson, Ishan Kolhatkar and Tom Sherrington:

  1. Tecwen Whittock introducing himself for the first time to the Ingrams on the day of trial. Unless this was designed to be a deliberate misdirection by Mr Whittock for the benefit of those in the public gallery, this is nonsensical. There would have been numerous court hearings prior to trial at which the defendants would have been present.
  2. The prosecution barrister strolling around the courtroom during his opening speech to the jury. Unlike in America, advocates in English and Welsh courts stand still when they are speaking. If you walked around like this clown, you would be immediately told to stop.
  3. The prosecution barrister telling the jury that “You have a 50/50! Guilty or not guilty.” The burden and standard of proof, the foundation of the modern criminal justice system, is that the prosecution have to prove the case so that the jury is sure (or “beyond reasonable doubt” as it used to be known – “sure” is now the standard, although supposedly means the same thing). Cases in the civil courts are decided on the balance of probabilities – or ‘which scenario is more likely’. This “fifty fifty” bon mot from the prosecution barrister would have confused the jury, and, however tempting, would not have been used in this way.
  4. The Ingrams being interviewed together by the police. For what might strike you as obvious reasons, the police do not interview suspects side by side. Alleged co-conspirators have to be interviewed separately, so that they each independently have an opportunity to give their account and answer questions (and so that the police can see if any defences advanced match up). There was also no solicitor present. We all have a right to free and independent legal advice when arrested and interviewed by the police.
  5. The defence barrister being visited by the Ingrams alone at her chambers. Unless specially registered to conduct what is nowadays called “public access” work, barristers are only allowed to take cases that are referred to us by solicitors. The solicitor is the one responsible for all the litigation, and will attend any conferences (meetings) between barrister and client.
  6. “We never thought a high-profile barrister would touch our case with a bargepole”. Apart from the laughable notion of any barrister not wanting a case because it has had too much publicity, this perpetuates a misunderstanding of the role of criminal barristers. We don’t choose our cases based on the clients we like, or believe, or think have a “good case”. The “cab rank rule” means that, put simply, we take the next case that comes along. This is central to the running of our criminal justice system. It means that everybody gets represented, whatever they are accused of having done.
  7. Helen McCrory representing all three defendants. While in rare cases it may be possible for one lawyer to act for multiple defendants, in a conspiracy such as this, where there is ample scope for conflict of interest between defendants, it is inconceivable that only one barrister would be instructed. Even one as mellifluous as Helen McCrory. (And indeed, at the real-life trial, each defendant was represented by their own Queen’s Counsel.)
  8. The judge eating sweets in court. No judge would be seen eating sweets on the bench. (Emphasis on “be seen”)
  9. Witnesses merrily giving their own theories on guilt. Rules of evidence are strict. Witnesses are there to answer questions about what they saw, heard and know. They are not there to speculate, offer theories of guilt, or answer “why would X have done such a thing?” This is vital to a fair trial, as it is not the partially-informed opinion of the witness that matters, but the opinion of the jury, who has heard all the evidence. Any barrister asking such questions would be judicially smacked across the head. Any lay witness offering their own views on guilt would be immediately stopped.
  10. Barristers telling the jury that the charge, if proven, will result in a prison sentence. It is strictly verboten to address the jury on what sentence is likely to follow upon conviction. The jury should be focusing on whether the evidence proves the prosecution allegations, not on, for instance, whether they think the defendant “deserves” to go to prison.
  11. Barristers stopping halfway through questioning a witness to give an impromptu speech to the jury. Barristers are present to ask questions and make comment. The two are strictly delineated. You ask questions of witnesses, designed to elicit facts. And you then comment on those answers, and the other evidence, at the end of the case in your speech. You are not allowed to pepper your examination of a witness with off-the-cuff speeches. It simply doesn’t happen. And here it’s even worse, because we have…
  12. Barristers giving evidence. Barristers are not allowed to give evidence. We can, in speeches, comment on the evidence that others have given, but we are not witnesses, and cannot offer our own evidence on, say, the workings of human memory. The reason is simple: we are not witnesses, and cannot be questioned. So if the defence barrister offers cod science evidence about memory, for instance, there is no opportunity for the prosecution to cross-examine her, as they would do if that evidence came from an actual witness. Giving evidence is a cardinal sin.
  13. Mark Bonnar’s witness summons arriving mid-trial. There is no way (save for enormous cock-up) that a key prosecution witness would only find out after the trial has started that he is required to give evidence. He would have given a witness statement to the police at the outset of the investigation, and would have been warned to attend trial months in advance. He would only be summonsed if he had indicated an unwillingness to attend voluntarily. And as for the summons itself – what madness is this? EVtxOeEXQAEPS0a It is a mock-up of a summons from a civil case. There is no “claimant” in a criminal case. The party are “The Queen” and “[the defendants]”. There is no “claim number”. Somebody has gone to the effort of creating this bespoke document, which is as wrong as it is possible to be. And on a similar note…
  14. “The plaintiff”. The defence QC has apparently forgotten that this is a criminal trial, pitting the Crown against the Defendants, and is using the pre-1999 term for a claimant in civil proceedings.
  15. Witnesses sitting in the public gallery watching the evidence. Having answered to his unlawful summons, Mark Bonnar sits in the public gallery to watch the trial before giving evidence. This is strictly forbidden. And it’s important: witnesses should not know what evidence has gone before them. You want to minimise the opportunity for their evidence to be consciously or unconsciously influenced by what other people have said. Again, it’s essential to a fair trial.
  16. “Hello Kevin!” Questioning a witness is rarely as seen on TV. For one, examination in chief and cross-examination are seldom distinguished. (Examination in chief is questioning of a witness by the side calling the witness. These questions should be open and non-leading. Cross-examination is questioning by the other side, and is designed to be leading.) Secondly, the questioning of a witness can take a long time in real life. There is often a lot of groundwork-laying, a gaggle of pedestrian build-up questions, stuff that doesn’t make for good TV. And for dramatic purposes, this exercise has to be truncated, I accept. I’m not going to criticise that, as grating as it is to see conflation of cross-examination and evidence-in-chief, or the barristers not put key questions to the witnesses, or QCs sit down having asked just one ineffective question of the other side’s star witness. Creative licence can have this one. But “Hello Kevin”?! Any barrister greeting a witness in that way would have something heavy thrown at them. Not a gavel, however, because…
  17. GAVELS HAVE NEVER BEEN USED IN AN ENGLISH AND WELSH CRIMINAL COURT. During the trial, there is the sound of a gavel being frantically rapped as the judge shouts “order!” and threatens to “suspend the session!” Neither of these are phrases ever heard in our courts. Likewise..
  18. “Objection!” “Withdrawn” Again, just, no. These things do not happen. These are Americanisms, never seen in our courts. See also: “strike that from the record”, “sustained” and anything else that might conceivably be said by somebody whacking a gavel.
  19. Okie dokie!” As a candidate for “the very worst way to respond to a judicial reprimand”, this takes some beating.

These infractions vary in their seriousness. But I do think it matters. It matters because the law affects us all, yet we understand so little about it. And while we may not all understand everything about other areas of public life, the point about justice – and criminal justice in particular – is that it is not merely an important public service, like health or education, but serves a key democratic function. Any of us can find ourselves dragged into a criminal courtroom – whether as a defendant, victim, witness or juror – and the role we play will be instrumental to the outcome. The discussions we hold publicly about the functioning of justice influence policy, which become laws, which have a direct bearing on our day-to-day lives. And if we don’t understand how justice works, and what our roles in it are, we can’t be expected to meaningfully contribute or participate to shaping it, or to performing whatever part we may one day be expected to. To give a colour example, it doesn’t matter whether or not you understand what your heart surgeon is doing, as long as it is done correctly. But it matters very much, to all of us, whether or not you understand what the rules are if you are a witness in a criminal case. It matters because if you do it wrong, there are significant consequences for you and for the person on trial. It matters because you deserve to know what the reality is likely to be. What actually happens in court. How you are going to be treated, and how you are expected to behave.

It matters to jurors. Expectations are moulded by what we see on television. It’s why there is despair at the semi-fictional presentation of forensic science – there is a despondency among prosecutors that many juries expect it to hold all the answers, and often it does not and cannot. If jurors don’t understand the role of the parties, including the advocates, they may draw unfair or irrational conclusions. Well that barrister didn’t cross-examine that witness by shouting at them and then pivoting to give us a mid-question speech about the fallibility of memory – maybe their case isn’t much cop.

It matters to defendants and victims. If you are arrested, it matters that you know your basic rights – e.g. the right to legal advice. Whether prosecuting or defending, I have lost count of the times that a client or complainant has observed, usually unhappily, that what happened in court wasn’t like they saw on TV. “Why didn’t you say X?” “Why didn’t you shout objection when the other barrister asked me that?” “Why didn’t you argue with the witness when they said Y?” Again, we can firefight those questions with relative ease, but the problem is that the further expectations and reality diverge, the less faith people have in their justice system, and the less cooperation we can expect from them. American criminal justice bears no resemblance to our version. Much of the pantomime, and the horror, that we read about concerning the conduct of lawyers and the system’s treatment of defendants and complainants in the US system is fortunately rare over here. But repeating the fiction that our models are the same compounds the confusion and the fear. We risk losing even more people before they set foot in the court building.

And I don’t lay all these responsibilities at the door of TV writers, by any means. Public legal education is something we as a society – and in particular we in the legal profession – have done abysmally for years. We have not communicated anything to the public about how the justice system works; we have jealously guarded its secrets for our own purposes. This is one reason why I am happy to spend hours each week answering (often the same) questions about law and justice over email and social media, and why many colleagues do likewise. The government has until very recently been content with this state of affairs, as it allows politicians to do what they like to the justice system under a blanket of public ignorance. And I don’t expect people paid to create entertaining drama to make public legal education one of their aims.

But I find it frustrating that, when there is a platform, an opportunity, to show millions of us how the criminal courts operate, to add a dash of education to the entertainment, it is wholly disregarded for absolutely no good reason save for, I’m afraid to say, basic laziness. Where it takes place in the context of a drama advertised as the telling of a real-life story, whose climactic episode revolves around a trial that actually took place, to get so much wrong is frankly unforgivable. Given that this has been adopted as a platform for the Ingrams to launch an application to appeal out of time against their convictions, and that there is now apparently some fairly widespread public sympathy for their plight, there is surely a responsibility to avoid completely misleading the public. I’ve had a number of people asking me if I agree that the drama “proves” that the Ingrams got a raw deal. If that is how the trial was conducted, I would completely agree that it does. But it wasn’t. And this wasn’t simply edited highlights, drawing from the real transcripts; it was a child’s re-imagining of the court process.

And it is possible to get these things right. Asking a practising criminal lawyer to look over your script is commonplace. In the context of the budget for this show, paying a few hundred quid to somebody to cast their eye over the courtroom scenes – or even taking a day or two to visit a criminal court yourself, as the person writing a courtroom drama – does not seem a stretch. I think it’s the nihilism of low expectations to shrug away accuracy as anathema to entertainment, or unworthy of striving for. Great drama nourishes the viewer as well as sating them. I have faith in our best writers not only to aspire to this goal but to achieve it.

Of course some of the errors matter more than others. Individually, some can be filed under “legal arsewittery”. But collectively, inaccuracies in the way we depict our justice system damage our understanding of something that matters to us all, more than I think we realise.

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UPDATE: I was remiss in omitting this from the list of errors, spotted by the eagle-eyed Max Hardy:

 

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: Open Letter to Leaders of the Criminal Justice System – Call for a National Protocol

I am delighted to host this guest post by Beheshteh Engineer, a third-six pupil. The views expressed are personal and do not necessarily reflect the views of her chambers.

Why is a functional Criminal Justice System important during a national crisis?

During a short-term national crisis, the CJS must provide two key functions:

  • To deal with urgent matters e.g. bail apps, warrants, CTLs
  • To protect the vulnerable from immediate harm.

We call for a national protocol to address how courts must work during this crisis.

We suggest the following principles for the operation of courts:

  1. The protocol must minimise the risk to the health of court staff and users, following government guidance.
  2. The protocol must allow the CJS to continue to provide its two key functions.
  3. The protocol must default to adjourning cases where the above two principles cannot be met.

Globally, many courts have begun to impose restrictions on cases (CJEU, New Zealand, Canada, some American states, have all closed courts except for the most urgent cases)

What are the current problems?

The current system presents 3 distinct problems:

  • That we are all required to self-distance, but court attendance requires the opposite, and
  • That the government has only adjourned trials with a TE of 3 days or more, and
  • That we do not currently have a set up that allows us to do most hearings remotely, thus requiring people to continue to attend court in person.

Social distancing

We are all being told to practice social distancing and as of 20 March, the government ordered bars and other shops, to close. Doctors all over social and traditional media are imploring people to stay at home. The message is clear: people should not be going out unless they are essential.

In the past week, we have seen the following: people coming to court displaying the symptoms, prisons bringing sick defendants to court, jurors/advocates/witnesses going into self-isolation, and a total lack of cleanliness, or hand gel, or soap, or masks, or hand sanitizer, or protective screens available in courts. Juniors with health issues are still attending court; those who are second and third six pupils feel they have no choice.

Government’s response

The government has adopted a halfway house approach by only adjourning trials three days or longer. Those in charge of the CJS continue to advocate ‘business as normal’ while all other branches of government sound the alarm.

The Bar leadership has said that anyone in an at-risk category or anyone who feels that working conditions are unsafe, can return cases with no ethical problems. This is welcome leadership on this issue. More is needed; those not in the at-risk category can still carry the virus, potentially infecting their own families and anyone else they come into contact with at court. Court advocates, particularly those most junior, are frightened, both for their health and their incomes

Additionally, the government has not yet put in place the resources to protect the self-employed from finding themselves without work and thus, without income. Many have children and mortgages to pay for, others have rent and basic expenses. Many of us at the criminal Bar are struggling and right now, going to court may be the only option, even if that will put ourselves and those we live with, at risk of getting the virus

Lack of investment in technology for the criminal courts

Papers in Crown Court cases are now all on DCS and the courts occasionally use video links where a defendant is in custody. Video links often fail to work, and there are insufficient video links to run the court system at even close to full capacity. Consequently, we have continued to conduct most hearings in person. There are good reasons for this; often material is not uploaded until the day of the hearing, a client has to enter a plea and instructions need to be taken. Nevertheless, the reality remains that there has not been proper investment in technology use in the CJS. As a result, it will require leadership and investment to switch to a system where many hearings are virtual.

Leadership to date on this issue has been poor. The CEO of HMCTS’s letter to the Chair of the BC on 19 March 2020 says that the senior judiciary has given guidance on encouraging the wider judiciary to use telephone and video hearings. There is also a link to this site, guidance which reads, “The decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice.” This means that all courts can operate according to their own rules. We are already hearing of plenty of cases where a client’s attendance has not been excused despite a reasonable request, as well as hearings in the CC being refused to be conducted by video when there is no good reason for physical attendance.

At a time of national crisis, this is a woeful response from HMCTS and senior leaders. It is also a deeply inefficient way to run any kind of system, never mind one of such importance.

The civil Bar, family Bar as well as some Tribunals are already ahead of us on this; they either already regularly use digital technology or have implemented a new protocol. Cases have been conducted (and won!) from advocates’ living rooms. If other Bars and Courts can manage remote hearings, we can too.

How can we solve some or all of these issues?

We should be limiting the number of people going to court. We should be protecting those who have to attend court. There should be no room for courts to do things on a court-by-court basis.

We must not continue in a way that puts our health, the health of our families and the general public, at risk. Continuing as we are will only help spread the virus further.

This letter suggests that we create a national protocol – similar to a practice direction – to address how every single court should manage their work during this time of crisis. Decisions need to be centralised and as new problems emerge, decisions must be taken and publicised online. We need to use technology as much as we can.

We also have to communicate updates as clearly as possible. Recent example today: jurors being told they had to attend court tomorrow (Monday) while being in an at-risk group. The message came back that they are excused. The question has to be asked, why are we doing this on twitter? We need a clear method of communication that is accessible to all.

We know that all the various legal bodies are meeting with the Ministry of Justice to lobby them for a proper plan. We add our voices to that. These are complex problems that require a great deal of thought, creativity, and effort to resolve.

How might such a national protocol work?

Suggestions for the protocol must both address issues of law and detail the ways in which we are going to take action. It is no good having vague suggestions and leaving each court to figure out how to implement it, because that way nothing will get done. We need to address the practical issues. This letter has attempted to do so, and in doing so you may find that some ideas are simply not workable at this time. Irrespective, we have a duty to not only think hard about these matters but to publish and debate these ideas so that we can keep people safe.

We propose the following immediate rules:

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020.
  2. All other hearings to be by video link OR telephone.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily adjusted.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly.
  6. We need a new arrangement for magistrates’ court hearings.
  7. We need a new protocol for those in custody.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations

How might these things work in practice?

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020 Rationale:
    1. It is important to set a fixed date for when trials might resume, even if these are later abandoned. Dates to work to focus the mind.
    2. Stage dates to be put back so that work continues.
    3. Re-arranging listing on such a scale as we are seeing even if it remains just those with TE 3 days or more, is going to take time and proper thought. We should not do this on the fly otherwise there will be chaos.
    4. Such re-listing then needs to be properly communicated to all parties and should take into account advocates’ diaries, so that they do not lose out.
    5. If all hearings are virtual and all clients excused as standard this saves 100s of hours of manpower – all that then needs to be done is for clients to be told that they don’t need to attend court.
    6. If this is the default position, then hearings can continue in a way that avoids an advocate having to announce that they are in at at-risk group or are scared of attending court or who have some other legitimate reason.
    7. This also helps to preserve income, an important point. Many of us working in the CJS are self-employed; we need to attend hearings so we can get paid. We are not currently being afforded much support from the government.

    How might this work in practical terms?

    1. Listing are obviously the point people to arrange virtual hearings and will need to find a sensible way to schedule hearing times. This is done in the crown court and it can be done in the magistrates. Cases should also be re-fixed to accommodate advocates’ diaries so those booked to have trials do not lose out.
    2. Each court has to work out what technology they will use: skype, Teams, something else? Many barristers and HHJs are working together to try and figure out what works but we need a proper system. Also, I’m not PC users are having difficulty with skype for business. We are going to waste hours in court, at risk to our health, if we’re all trying to figure this out on the day.
    3. Once each court has figured out what tech they can use, this has to be communicated clearly on a single website acting as one point of reference.
    4. Chambers and Solicitors firms already have a list of emails and contact numbers for listing offices. These should be shared with advocates so that they can send individual email sand track hearings themselves [without the middle man] to ensure that matters are arranged sensibly and to take into consideration whether or not an advocate can do a telephone or video hearing or if other provisions need to be made.
    5. We should also share email addresses of those advocates at the CPS down to do a particular hearing so that CPS and defence can communicate in advance and so that the Crown can/attempt to upload relevant papers onto DCS in good time.
  2. All other hearings to be by video link OR telephone
    1. Hearings that can be done by delegated powers e.g. adjournment or CMH
    2. If parties email the listing office with the issues to address, this can be passed to the requisite court on the day of the hearing, and will save time.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily amended:
    1. If pleas need to be taken, the parties should work together to narrow down the issues ahead of time. This requires the Crown to upload material earlier than the day of the hearing. It requires effort and forward thinking to work.
    2. Where a G plea cannot reasonably be put in, everyone is to put in a NG plea and credit must be preserved until such time as 1) CPS serve all material and 2) counsel have been able to take instructions. We need detailed guidance on this. Defendants must not lose out. Same rule to be applied in the magistrates’ court.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly:
    1. Extending a CTL should not be routine
    2. Matters should be on a case-by-case basis: e.g. *some* defendants in an at-risk group should be strongly considered for release on stringent bail conditions.
    3. For other cases (maybe DVs) where there’s no bail conditions, Crown might want to apply for some? Ensure protection of potential victims?
    4. New cases should be bailed with conditions where appropriate.
  6. For magistrates’ courts:
    1. Papers for first appearances usually only arrive on the morning of the hearing. This will be difficult to change as it is the CPS that produces these papers. If the CPS can produce these bundles the night before the hearing, that would assist.
    2. Advocates can set up video conferences or telephone hearings with clients remotely to attend on the day of the hearing. As soon as they have the papers, the conferences can be held.
    3. The only remaining issue is how to list matters in a magistrates’ court: traditionally it is whomever is ready goes on first. If hearings are being done remotely, there will have to be a system or rule in place to decide who can call in.
    4. It may well be that the legal advisor or clerk in court will have access to a system whereby they can determine who is going to be heard next.
    5. First appearances and business in the magistrates’ courts, for it to continue working ‘as normal’ will require significant thought. It may be that some of these problems cannot be overcome anytime soon. They also require effort and someone to care enough to design a system so that these can be done remotely. There is a workable solution, but it requires all parties to work together and for those in authority to have the significant desire to make it work.
  7. For those in custody (predominately but not solely in the magistrates’):
    1. Conferences should take place by video-link wherever possible. However, we acknowledge that whether a defendant is on video from prison or in custody in the cells, a video-link may not always be possible. This is both a technical and legal hurdle that may take time to address.
    2. In the interim, no one should be required to hold a conference with someone in the cells where the court does not have a glass divider. In such cases, conferences should be held in a court room or other room available so that representatives are not put at risk.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations
    1. police station representatives are reporting disparity of process when it comes to being asked to rep someone suspected of having the virus. There should be a protocol in place.

Other points

Following feedback from practitioners, a few other points are worth noting:

  • Some hearings have been “saved” by use of FaceTime. Some others are suggesting Zoom. There is a range of technology available but not all of it will be secure, or available to everyone. This may well be a problem.
  • Special provisions need to be put in in place for vulnerable people: complainants, witnesses and defendants. For example, a defendant with a MH issue or lack of good internet may not have the ability to participate in a virtual hearing. The issue of what to do when an interpreter is needed, should also be considered.
  • Every step taken into a police station is fraught with areas where someone can come into contact with the virus. The custody sergeant is responsible for the safety of police station representatives yet often a representative is taken immediately to a consultation room so there’s no option to speak to the custody sergeant unless it is insisted upon. We’re also being told that areas in the police station (the consultation room, amongst others) are not being regularly cleaned.
  • Prisoners should be considered for release, where appropriate.
  • If the plan is to keep courts open for as long as possible, there needs to be a nation-wide rollout of soap, hand sanitizer, wipes and a proper cleaning regime in place.

Conclusion

It is the case that with many of these things, what will suffer is the principle of open justice. That is a dilemma that needs to be thoughtfully considered.

The ideas in this letter are just one way to address matters. There may be problems with the ideas suggested – they are not perfect. But they are a start and hopefully a platform to encourage discussion.

We must work together to limit the spread of this disease while maintaining the criminal justice system.

Author: Beheshteh Engineer, junior criminal barrister (3rd six)

Views are those of the author alone, and not representative of those of her chambers.