The Bar: do Barristers have to go to court during the coronavirus pandemic? - an update

On Monday evening Boris Johnson introduced strict new measures to tackle the spread of COVID-19, with the overall message being ‘Stay at home’.

What do the new restrictions involve?

People in the UK will only be allowed to leave their home for the following reasons-

• Shopping for basic necessities, as infrequently as possible
• One form of exercise a day- alone or with members of your household
• Any medical need, to provide care or help to a vulnerable person
• Travelling to and from work, but only where this is absolutely necessary and cannot be done from home.

In our previous blog, we explored how guidance issued by the Lord Chief Justice on Monday would impact on criminal trials and in particular, whether barristers would have to continue attending court. The effect of that guidance was that no new jury trials would start until specific arrangements had been put in place to ensure safety. For those halfway through a trial, it may continue provided the Resident Judge is satisfied measures are in place to ensure that trial can continue safely.  All other hearings in the Crown Court that can lawfully take place remotely should do so.  

Following the Prime Minister’s announcement yesterday, has there been a further review of the arrangements in our courts?

The short answer is ‘yes’.

In guidance published yesterday the Bar Council has advised:

• Civil or Family Courts- you should not attend in person unless the hearing is genuinely urgent and it cannot be done remotely;
• Crown Courts: You should not attend the Crown Court in person unless you are in a part-heard trial. It will be a judicial decision whether the trial will continue, taking into account representations and the stage reached in the trial. If the jury is in retirement or about to retire, it is highly likely that it will go on, if possible. For all other cases, you should engage with the court through the DCS system to try to move it forward remotely.

This marks a subtle shift from Monday’s position as now, all other hearings in the Crown Court (excluding part-heard jury trials) will not take place in person.

In guidance issued for the Magistrates Court, the Bar Council has advised you should not attend in person unless you are involved in ‘urgent work’ which is classified as follows-

CPS work

• All custody cases including overnight custody cases from police stations (incl. arrest warrants and breach  of bail cases)l
• Productions from prison (but custody trials not to proceed)
• Applications to extend custody time limits

Terrorism & Extradition (Westminster MC)

• Arrest warrants issued under the Extradition Act
• In hours and out of hours terrorism applications

Central/Local Government

• Civil applications relating to public health legislation, particularly under the Coronavirus (Emergency) Act 2020

Police

• Warrants of further detention
• Closure order applications
• Urgent applications for DVPOs
• Urgent applications for rights of entry/ search warrants

For those in part-heard trials, what sort of safety measures might we expect?

Guidance for Crown Court Judges in reducing the spread of COVID-19 was published on Tuesday. The focus of that guidance, as you might expect, was on how to ensure social distancing in a trial environment. The key headlines of that guidance are-

• Separation (2m) of people queuing to enter the court building;
• Separation (2m) of jurors at all times;
• Separation (2m) between everyone in court, jurors, counsel, solicitors, witnesses, public at all times.
• Security to wear gloves and regularly clean tray’s for visitor’s belongings;
• Staggered arrival times for different courts/jurors/advocates;
• Sufficient supply of hand-wash and paper towels. Judges will allow breaks for hand-washing every two hours by every person.
• No sharing of documents/Ipads/ holy books/ jury oaths laminated sheets etc.

Although no formal, similar guidance on social distancing has been issued for the Magistrates Courts, we presume the same principles apply.

It is too early to know whether these measures will work in practice. In particular, there is the logistical difficulty of fitting twelve jurors 2m apart in court; not to mention the fact that the majority of jury retiring rooms aren’t big enough to allow 12 jurors to sit 2m apart. In spite of the judiciary’s best efforts, we can expect to see a number of trials being adjourned on account of not being able to implement these measures effectively.

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.