COVID-19 EXPERT LEGAL INSIGHTS

COVID-19 & The Bar: Do barristers have to go to court?

23 March 2020

The outbreak of COVID-19 in the UK has caused unprecedented disruption and uncertainty across all aspects of our society. Workers are being encouraged to work from home where they can, to play their vital part in social distancing to prevent the spread of the infection, with self-isolation required if you, or a member of your household, are displaying symptoms of the virus. 


In guidance issued last week by the Lord Chancellor, despite an unprecedented public health emergency, he remained clear that our courts across England and Wales have a critical role to play and should go on sitting where possible. Indeed, the Lord Chief Justice announced last Tuesday that new trials are able to start in the Crown Court provided they are expected to finish within three days or less. Cases estimated to last longer than three days listed to start before the end of April 2020 would be adjourned. Trials currently underway would generally proceed in the hope they can be completed.

Today’s guidance: what is happening to criminal trials?

However, in a statement issued this morning last week’s guidance has changed: the Lord Chief Justice Lord Burnett has now confirmed:

Today no new trials are to start. Jurors summoned for this week are to be released, if possible without entering the building, and told that they will be asked to return for trials where specific arrangements to ensure safety have been put in place.

All other hearings in the crown court that can lawfully take place remotely should do so."

The new edict is that:

  • As of today, no new jury trials are to start until safety measures have been put in place;
  • Jury trials that have already started should continue if possible with strict social distancing procedures ‘at all times and at all places within the court building’ and accordingly, on-going trials must be adjourned, if necessary, to allow these safety measures to be put in place.

 

What safety measures might we expect?

Precisely what the proposed safety measures might look like is unclear. No further information has been made available on how social distancing at court (and in court) is expected to look. How jury members are supposed to deliberate at 2 metres apart remains to be seen… it may well be that courts do not see jury trial running for some time to come.

In the event that safety measures are developed and deployed, barristers will then have to make decisions about whether those measures are sufficient to protect them for contracting Coronavirus.

 

Could E-trials work?

Whilst digital courts may well (technology dependent) be viable for many (interlocutory or non-trial) hearings, trials in the Crown Court do not lend themselves so readily to being conducted electronically. The physical presence of a range of different participants including the judge, jury, lawyers, defendants, witnesses and court staff, makes it difficult to see how they could be sensibly orchestrated online.

 

Guidance on attending court/returning instructions

According to Government guidance if you qualify as an older person or vulnerable adult at particular risk of COVID-19 (i.e. you are over 70, have an underlying health condition or are pregnant) you are not required to appear in person in hearings.

The Bar Standards Board (‘BSB’) issued a statement on Tuesday last week making clear that those individuals who withdrew from cases or refused instructions on the basis of following Government or Public Health England guidance would not be in breach of the BSB Handbook. Presumably, although not expressly stated, the return of instructions in these circumstances would fall within the ambit of rule C26.3.b of the Code of Conduct which permits the return of instructions (by self-employed barristers) if: 

illness, injury, pregnancy, childbirth, a bereavement or a similar matter makes you unable reasonably to perform the services required in the instructions"

Failing which, the catch all, rC26.8 might be deployed to cover this situation, namely that

there is some other substantial reason for [returning your instructions]"

 

(Some) Barristers are key workers

That position appears to be reflected in the Government’s guidance - key worker/critical worker status and schools- also issued last week, which under ‘Key public services’ includes ‘those essential to the running of the justice system’. The Criminal Bar Association reported - 

it has been confirmed that criminal barristers (and indeed duty solicitors, fee paid judges and others in critical roles essential to the running of the justice system) required to be at court are to be considered critical workers. It applies if one parent is a critical worker’"

Accordingly, barristers will fall within that limited pool of parents whose children will still be able to attend school from today so that they can continue to attend court. However if it’s at all possible for children to be at home, then they should be.

 

Today's guidance: do barristers have to go to court?

The answer is- it depends on what work you are doing.

If you are due to start a new jury trial today, that will not take place until specific arrangements have been put in place to ensure safety. Precisely what those measures are and how they will work in practice remain to be seen.

If you are halfway through a jury trial, Resident Judges along with HMCTS staff, will make a decision as to whether that trial can safely continue. It may be necessary to adjourn trials already underway for a short period of time to put those safety measures in place.

All other hearings that can lawfully take place remotely should do so.

 

The Bar's response

No doubt many members of the Bar will welcome the Lord Chief Justice’ decision today. Just last week, the Bar Council issued a statement in which they questioned how proceedings conducted in person (but particularly jury trials) could be consistent with the Government’s health advice.  Today’s shift in approach is a sensible one because, let’s face it, on what basis do short jury trials present less of a health risk to those involved than longer ones? Given the risk of infection, it is only right that action is taken to ensure all courts have adequate access to soap, sanitising hand-gel and regular cleaning of conference rooms. Those preventative measures ought also to extend to security checks. We wouldn’t be surprised if, going forward, it will be mandatory for all security staff to wear gloves to reduce the risk of infection being passed on.

What does remain unclear is whether we will see any change in policy regarding prison visits. One can well understand a barrister’s reluctance to attend a conference in prison at the moment given that such environments can be vulnerable to pandemic outbreaks. There is already one confirmed case of coronavirus at HMP Manchester and another at HMP High Down. It will be interesting to see whether, following today’s shift in policy, prison visits will be put on hold for the foreseeable.

 

Regulatory compliance

If you are following Government or Public Health England guidance and are planning on retuning instructions before or even part way through a trial, you must ensure that you are complying with all other requirements in the Handbook:

  • If you need to cease to act and return instructions, you should clearly explain to your client, the professional client and (if during a trial) the judge, the reasons for doing so (rC27); and
  • You should take all appropriate steps to protect your client’s interests (rC18), which in the current circumstances, puts a greater emphasis on making sure a case is ‘trial ready’ so that when the courts are able to hear a case there are no further, unnecessary delays.

 

COVID-19 has shone a spotlight on the need for consistency between the Ministry of Justice, the BSB and those they regulate. For many, it will be a wake-up call for the Criminal Courts to invest in better technology so that should a similar catastrophic event happen in the future, the justice system will not creak to a halt. 

About the authors

Katryn Sheridan is a barrister in the Regulatory team. She is an experienced regulatory and criminal law advocate. 

Julie Norris is a Partner in the Regulatory department and specialises in advising in the health, professional services, legal and financial fields. 

 

Latest blogs & news

Harcus Sinclair v Your Lawyers - Another nail in the coffin of solicitors’ undertakings?

Every solicitor knows that an undertaking is serious stuff.   Arguably it is the greatest power available to a solicitor.  A promise, if broken, that will lead to immediate and serious consequences for the giver.  As such it can be relied upon to the ends of the earth.  The power of undertakings has meant that they sit at the heart of every property transaction, bridging the time gap between the sending of money and the receiving of title.  They are also used in other areas of commercial life and as part of litigation.  The “brand” of a solicitor’s undertaking is so powerful that little thought is given as to where their power comes from. 

Mandatory Covid-19 Vaccinations for Care Home Workers

This week, the Government announced that Covid-19 vaccinations will be made compulsory for care home staff, raising strong emotions on both sides of the argument.

Ethical imperatives

Julie Norris and Jessica Clay consider SRA entity regulation and the imperative to create an ethical (ergo, compliant) legal workplace.

All well and good

The pandemic has highlighted the importance of good mental health and resilience both in and out of the office. Bronwen Still and Lucinda Soon consider your obligations

eSports vs. the Law

Gone are the days of computer gaming being viewed as a secluded activity; gaming is now a thoroughly social experience that attracts a global audience of millions and players can compete for large sums of money and celebrity. This burgeoning industry is largely in a virtual world and has developed in a blockchain, decentralised fashion. Often the UK government talks up the UK gaming industry and how keen the government is to support this sector, and there have been instances that show support, but when it comes to playing games competitively, law and regulations have not yet caught up.

More clarity needed from the SRA on boundaries concerning sexual misconduct and harassment in law firms

The solicitors’ watchdog is right to take charge of misconduct cases but it needs firmer guidance to succeed 

Coaching, Teaching and Support Work in Lockdown: Safeguarding and Data Protection considerations when working with children online

The COVID-19 crisis has forced sports clubs, schools, universities and charities to rapidly change their approaches to coaching, teaching and support work. The regulations on social distancing have forced organisations to innovate; services which had previously been offered mostly or wholly in person were rapidly shifted online during “lockdown 1” and will return online at least for the duration of “lockdown 3”.  If the vaccine rollout has the desired effect there will no doubt be some return to “traditional” methods, but it seems very unlikely that the changes brought about by the pandemic will be completely reversed.  In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.

Beckwith v SRA – are there implications for the regulation of professional accountants who face sexual misconduct allegations?

In our fourth blog in our series on Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin), we turn our attention to consider what impact, if any, this landmark decision might have on the regulation of professional accountants. While the case turned on some very specific features relating to the regulation of solicitors as contained in the Solicitors Regulation Authority’s (SRA) Principles and Code of conduct, some parts of the judgment may have more general application.

Post-Beckwith – where to now for sexual misconduct cases?

In the two years preceding Ryan Beckwith’s appeal to the High Court, the SRA pursued a handful of other sexual misconduct cases before the Solicitors Disciplinary Tribunal (Tribunal). These cases are varied and fact-specific and include sexual misconduct in and relating to the workplace and conduct outside of work.

Where have we reached on costs in proceedings before the Solicitors Disciplinary Tribunal post Beckwith?

Regulatory investigations across all sectors are increasing in complexity, with a corresponding increase in the size of the cost applications made by regulators upon successful prosecution. For solicitors facing investigation by the Solicitors Regulation Authority (‘SRA’), the costs associated with prosecutions before the Solicitors Disciplinary Tribunal (‘SDT’) have made the headlines recently for their size. In Beckwith, for example, the Divisional Court referred to the SRA’s costs of c.£340,000 as “alarming.

The SRA’s updated NDA warning notice introduces welcome clarity

On 12 March 2018 the SRA published its warning notice on the use of non-disclosure agreements (NDAs). This was in the wake of the widespread publicity at the time given to NDAs which had been considered too draconian in reach and effect.

The use of artificial intelligence: interesting technological developments in the legal and accountancy sectors

In this second blog in our technology and innovation series, we look at some recent developments in the use of artificial intelligence (AI) in the legal and accountancy sectors.

Technology in the accountancy and legal sectors – what are the regulators doing? The long read…

In the first of our Tech blog series, we take a look at how regulators in the accountancy and legal sectors are supporting technological innovation in their respective professional sectors, and how they themselves might adapt their regulatory approach in the new era of digital technology.

The SRA Standards and Regulations – a year on

It has been a year since the Solicitors Regulation Authority (SRA) launched its Standards and Regulations (StaRs) and even longer since the revised Enforcement Strategy was rolled out.  This time last year, we produced a series of blogs relating to launch of the StaRs and provided our views on what we thought you needed to know.

Victims’ Code set to change

On 18 November 2020, the government confirmed that it is proceeding with planned changes to the  Victims' Code, following a consultation that began on 5 March 2020. The changes mean that when the revised Code comes into force, it will be based on a clearly defined set of rights that set out a minimum level of service that can be expected from criminal justice agencies. It is hoped that the changes will mean victims have a greater awareness of their rights, receive the information and support when then need it and have a greater level of satisfaction with the treatment they receive in the criminal justice system. 

Intractable insight: suspension is not enough

On 19 November 2020, the High Court handed down judgment in the Professional Standards Authority for Health and Social Care’s (“PSA”) challenge to a decision of the Medical Practitioners Tribunal (“MPT”) to suspend a doctor from practice. In her judgment, Mrs Justice Farbey emphasises the significance of lack of insight to the question of sanction.

Fit and proper person requirements for directors in the health and care sector – what does this mean and what are service providers required to do?

All providers registered with the Care Quality Commission (“CQC) must assure themselves that all directors who are responsible for delivering care to service users are fit and proper – in other words, they must be able to diligently carry out their responsibility to ensure the quality and safety of care. This forms part of the providers’ duty to ensure the service is well-led, which is one of the focus points during an inspection. Not only does the CQC monitor compliance at the point of registration, but it is an on-going duty and can lead to enforcement action where it is not met.

FAQs : The SRA's early character and suitability assessment

The route to obtaining a prestigious job in the legal profession is hard enough without the worry of whether past misdemeanours will prevent you from being admitted by the Solicitors Regulation Authority (SRA) as a solicitor. Convictions or cautions in early life (for even relatively minor offences), student disciplinary findings, civil debts and the like, are all capable of preventing prospective solicitors seeking admission to the roll becoming qualified as a solicitor. Since May 2018, prospective solicitors have had the ability to seek an early character and suitability assessment under the Authorisation of Individuals Regulations,[1] enabling them to understand if something they did in the past could be a bar to entry to the profession.  

Mythbusting: Recovery of Costs in Private Prosecutions

Private prosecutions provide an effective way to seek justice; and particularly in circumstances when the traditional prosecuting agencies are unable or unwilling to act.   Conducted appropriately they can be a useful, efficient and cost-effective tool to secure punishment of the guilty.  Conducted badly they can be an expensive mistake with far reaching consequences. 

In this blog series we draw on our experience of both bringing and defending private prosecutions to help clarify some of the common myths and misunderstandings about private prosecutions.  In this blog we look at whether the private prosecutor is entitled to recover their full investigation and legal fees at the end of the case.

COVID-19 related insights:

COVID-19 related insights:

Our COVID-19 statement

We recognise that these unique times are presenting unprecedented challenges for our clients and we are here to support you in any way we can.

Click to view

Can you get out of or suspend a contract because of Coronavirus?

Alex Torpey covers the key things to look out for if you are relying on the Force Majeure clause.

Watch the video on LinkedIn

Overcoming the challenges of co-parenting for separated and divorced parents

Rachel Freeman, Partner in our Family Law team, addresses some issues that we are seeing arise for separated parents in the current crisis.

Read the blog

Tech in Two Minutes - Episode 7 - The Coronavirus challenge for tech coworking spaces

Andrew Solomon speaks about the challenge for tech companies and coworking spaces during the current COVID-19 pandemic.

Listen to the podcast

The legal basis for lockdown

Alun Milford, Partner in our Criminal Litigation team, provides an in-depth look at the legal basis behind the current lockdown.

Read the blog

Managing your Migrant workforce in the COVID-19 crisis

On Friday 3 April, immigration partner and head of department, Nick Rollason, hosted a webinar looking at urgent issues employers are facing during the COVID-19 crisis and answered some of the key questions being raised.

Watch the webinar recording

Furlough leave and the Coronavirus Job Retention Scheme: key legal considerations for Employers

On Thursday 9 April, Andreas White, Partner in our Employment Law Team, delivered an overview of the scheme with a focus of the key legal issues for UK employers.

Watch the webinar recording

Coronavirus and the perils of signing your Will

Will instructions have apparently risen by 30% since COVID-19 reached our shores. What effect does COVID-19 have on Will signings? James Ward and Diva Shah in our Private Client team blog.

Read the blog

The juggling act of a single mother, home school teacher and head of a family team

Charlotte Bradley, Head of our Family Law Team, reflects on how the COVID-19 crisis has affected working parents like her.

Read the blog

The future public inquiry into COVID-19

Calls for a public inquiry are continuing to mount and are likely to prove difficult to resist. In this blog, Sophie Kemp considers the framework for such inquiries, and the key issues likely to form the core of its terms of reference.

Read the blog

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility