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

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

Kathryn 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.