How will Law Practice Change after the Pandemic?
July 7, 2020
Solicitor vs Barrister: Which Route is Right for You?
July 8, 2020
The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.
Covid-19 and criminal justice
The removal of the jury trial has been suggested to clear the 500,000 case backlog in the
criminal justice system.
Reported by Oliver Murrell
Lord Denning once proclaimed the “trial by jury has no equal”. These words were clearly absent from Lord Chief Justice Burnett of Maldon’s mind when he suggested the removal of juries in some Crown Court trials in order to clear the near 500,000 case backlog the criminal justice system is faced with. This idea has been backed by senior figures, including Lady Hale and the Lord Chancellor Robert Buckland MP, but one that has been rebuked by barristers and solicitors on the front line. There is no doubt that action is urgently required to clear the already huge backlog that Covid-19 has only worsened, but is the replacement of 12 jurors with a Judge and two Magistrates the way to do it?
Lord Burnett’s suggestion does have its merits. It would certainly go some way in relieving the pressure on the criminal justice system, with the removal of Judges allowing for more courts to reopen and be social distancing-compliant. It would greatly reduce the time a case would take to be heard, due to the removal of the voir dire process and the long summaries Judges deliver to juries of the relevant law. With quicker cases and more courts being able to open, the pressure would slowly begin to subsist. Furthermore, the retention of two Magistrates ensures the lay public are still involved in the justice system, allowing defendants to still be judged by a panel of their peers, albeit at a significant reduction. The Lord Chancellor estimated that these benefits would enable the Covid-19 backlog to be clear by Easter. But at what cost would this come?
The replacement of the juries would not be in the most serious of cases, such as rape and murder, but in those in the middle ground, like burglaries and most drug-related offenses. However, just because an offense will carry less of a prison sentence does not remove the accused’s right to be judged by a panel of their peers. If convicted, they too will lose their liberty. So why do they lose their right to trial by jury? There are many reasons why we use juries in these cases, and why so many lawyers who deal with juries everyday have criticized Lord Burnett’s proposal.
The idea of the jury is that the accused is judged by a representation of the general public. It is a historic ideal, but a vital one. It can render out any case-hardened bias Judges and Magistrates may have, along with any discriminatory views they may have. However, when the statistics are considered, it can quickly be seen how the replacement of the jury could lead to these biases resurfacing and effecting the disproportionate number of Black, Asian and Minority Ethnic (BAME) defendants in the criminal justice system. In the UK, it is estimated 15% of the population identify as BAME, yet BAME individuals make up 26% of the prison population. An already shocking statistic only becomes more shocking when considering only 4% of Circuit Judges identify as BAME. The suggestion of replacing the 12-person representation of the population with a member of a profession which is almost always going to be white, flanked by two statistically over-50 white male Magistrates, is only going to compound the system-wide discrimination BAME defendants face.
Furthering this problem is the way Judges and Magistrates are undoubtedly case-hardened, something which can be evidenced by the 52% conviction rate in the Crown Court compared to the 64% conviction rate in the Magistrates Court. Not only are case-hardened Judges and Magistrates more likely to convict the defendants before them, but they are then more likely to hand out-lengthier sentences, with BAME offenders 1.5 times more likely to receive custodial sentences than their white comparators. Undoubtedly any discriminatory or case-hardened biases held by Judges and Magistrates are subconscious, but it is these subconscious biases that will have the greatest impact on those in society the system already marginalises and discriminates the most.
The last time jury trials were removed in such a way as Lord Burnett proposes was during the Troubles in Northern Ireland, when Diplock Courts oversaw an acquittal rate of 53% drop to 29% in just nine years. However, this solution will not last for nine years, with it being estimated removing juries would clear the Covid-19 backlog by Easter. These are exceptional circumstances and it may call for exceptional measures. However, the trade-off involved in clearing the backlog may ensure that most marginalized only become more marginalized and we do not know how long social distancing measures will continue. It could be over by September; it could continue for years. Thus, while the vast majority of criminal judges, barristers and solicitors have staunchly opposed the proposal, we may get to the point where removing juries is the only option, however unfavorable.
Legal action
Care homes and COVID-19
Reported by Katie Henderson
Matt Hancock is facing legal action for his failings in the protection of care homes during the pandemic, this case is likely to be one of many as the aftermath of alleged shortcomings in government policy become more apparent. Dr Cathy Gardner, whose father is a suspected COVID-19 victim, is pursuing a judicial review action on the basis that government guidance, allowing patients to be discharged from hospitals into care homes untested, was unlawful. Such guidance appears to defy all logic and understanding that the government had of the virus and its risks at the time. This, alongside misleading government statements that “a protective ring had been thrown around care homes” has caused widespread anger among families of residents.
Michael Gibson (Cathy’s father), an eighty-eight-year-old resident of a care home in Oxford died of ‘probable’ COVID on 3 rd April, this coming soon after another resident had recently been discharged from hospital into the home. At this time negative tests were not required prior to admissions into care homes, according to the guidance from Department of Health.
This issue was exacerbated by the lack of PPE provided to care homes whose residents were inevitably in the highest risk category. Unfortunately, the introduction of testing for discharges on the 15 th April came too late for Cathy, much like many others.
The case seeks to challenge the government alongside NHS England and Public Health England on the following grounds:
– Illegality: government guidance allowing untested patients into care homes was unlawful.
– Proportionality/irrationality: government policy of prioritising expanding NHS capacity was irrational and discriminatory.
– Violation of European Convention rights by failing to do “all that could have been required of it to prevent … life from being avoidably put at risk”.
– Breach of the National Health Service Act 2006 requiring it protect “the public in England from disease or other dangers to health”.
– Breach of the Equalities Act requiring equal and fair treatment of individuals with protected characteristics of age and disability and also potentially race.
Hancock had initially been served a pre-action letter outlining the claims against him and seeking an admission of responsibility. However, in response the health secretary’s lawyers rebutted the claim and stated that the government guidance permitting the release of untested patients was “not illegal”. The government also denied the claims in regard to the breach of the NHS Act 2006 and of Convention rights, stating that the convention should not enforce a “disproportionate burden on the authorities”. NHS England responded separately suggesting that the case would divert their attention away from the COVID crisis and instead to ‘time-consuming litigation’.
Dr Gardner labelled the reply as “shameful” and suggests the government is hiding behind “procedural objections” leaving the loss of “thousands of very vulnerable people(s)” lives unanswered for. She says: “There is no acknowledgement of any responsibility, nor is there any explanation as to why hospitals were advised to discharge patients into care homes without testing.”. Dr Gardner is not alone in her plight as more than 16,000 people have died from known or suspected Covid-19 in UK care homes; these numbers suggest a serious lapse of judgement in regard to government action. Several complaints have been raised concerning infection control in care homes, including thirty-five councils whom place blame on the discharging of hospital patients into inadequately prepared care homes, for the spread of the virus.
Despite the inadequate reply, Dr Gardner, who is currently crowdfunding in order to cover her legal costs, wishes to further pursue the judicial review action. If the court deems Dr Gardner’s case to be arguable on a point of law and/or she is deemed to have standing, she will be granted permission and the claim will move to a substantive hearing.
You can find more here or here.
Data protection
Legal Action over NHS Test and Trace
Reported by Louise Horn
Lawyers working on behalf of the Open Rights Group (ORG) have threatened to bring a case against Health secretary Matt Hancock and the Department of Health and Social Care (DHSC) if they fail to provide evidence of a conducted risk assessment by July 8 th . Both parties have been issued with a pre-action legal letter after the team has spent over a month asking for details on the matter.
According to this team, the government failed to conduct a Data Protection Impact Assessment (DPIA), that looks at how personal data, such as names, dates of birth, sex, NHS numbers, emails, phone numbers, is protected. These DPIAs are a mandatory legal requirement and make sure that individuals’ privacy and human rights are protected. It is alleged that the government has mishandled the personal data of over 150,000 individuals who entered their data through the coronavirus Test and Trace scheme, which was launched on the 28 th of May. This personal health data could be retained by the government and a variety of private companies engaged in this matter for up to two decades
If this allegation is true, the government could be in violation of the Data Protection Act 2018 and the General Data Protection Regulation, commonly known as the GDPR. Under normal circumstances, this could entail harsh sanctions from the Information Commissioner’s Office, the UK’s data regulator, as failing to show evidence of a DPIA is considered wilful negligence. However, given the unusual circumstance that have managed to put an entire population into lockdown. Furthermore, people have welcomed such a program as a means of ending the lockdown in England and managing the pandemic enough to permit economic recovery.
It remains to be seen what implications any legal action over this will have on the overall NHS Test and Trace program, which has proved to be quite unsuccessful given the proportion of individuals that have subscribed to the scheme as well as the significant delays in its implementation. If the allegations prove to be true, the public health crisis will only be aggravated by a growing mistrust of the government by the British population. With
the system being criticised for failing to even reach 25% of people who have tested positive for Covid-19, this could be another serious blow to the British government’s attempts at dealing with the pandemic.
You can read more here.
Criminal Case
Backlog in criminal cases could take a decade to clear
Reported by Ellena Mottram
The Coronavirus lockdown has caused the backlog of untried criminal cases to balloon and an official watchdog has warned the backlog could take a decade to clear.
Trail backloads have increased by 41% in the Magistrate courts between March and the end of may whilst the increase in the Crown Courts was at an estimated 53%.
The chief inspector of HM Crown Prosecution Service has stated that ‘The Backlog of cases in the system is increasing daily. Cases that do come to court are taking hours or days longer than they would under normal circumstances.’ The report prepared by the inspectorate that monitors the Crown Prosecution Service (HMCPSI) warns that the delays created by the backlog are likely to be ‘highly detrimental to justice’ and will require ‘radical solutions’.
One such radical solution proposed by Robert Buckland, the Justice Secretary, who is preparing legislation for some trials to be conducted without juries. It is thought removing the need for juries in some trials will overcome the problem of social distancing in the court room.
The provision would have allowed for less serious trials to be dealt with without a jury where two magistrates will sit beside a judge. However, a survey of the Criminal Bar Association showed that more than 90% of practicing Criminal Barristers dismissed plans to scarp juries or middle ranking offenses.
The chair of the Criminal Bar Association highlighted they have rejected the idea to interfere with the ‘800-year-old principle of jury trials’, describing the idea to scrap jury trials as ‘an assault of justice’ and ‘a blow to the common man’.
Following the response from those in the industry the proposal has been side-lined and alternative solutions have been proposed, namely development of 10 emergency so called ‘Nightingale courts’ and extending the opening hours of courts. There is still consideration of altering jury sizes and reducing the numbers who would sit on a jury from 12 to 7 individuals to help cope with social distancing requirements.
The backlog of criminal cases in the crown court stood at 37,000 before lockdown was introduced due to the austerity measures which say a reduction in the number of days judicial sittings took place. Buckland has also suggested that those limited court days could be extended to catch up with the backlog
In response to this suggestion the President of the Law Society of England and Wales argued that the jump straight to extended working hours ‘need to be treated with utmost caution.’
The location of the additional Nightingale courts would hold trials outside the courthouse to allow for social distancing measures to be accommodated. The location of these additional Nightingale Courts has not yet been announced by the Justice Secretary but the Ministry of Justice has announced spending of £142 million on court maintenance and technology in an attempt to allow more cases to be heard remotely.
Covid-19 and businesses temporary measures
Temporary Measures for Businesses under the Corporate Insolvency and Governance Act 2020
Reported by Jasmine Cracknell
What the Act means for businesses during the Coronavirus pandemic
The Corporate Insolvency and Governance Act came into force on 25 June after a swift passage through Parliament last month. The Act contains important provisions designed to inject greater flexibility into insolvency law and assist companies that are struggling as a result of the pandemic. The Act also includes permanent changes to corporate governance and insolvency. Further information about these permanent provisions can be found via the links below.
The temporary measures put in place by the Act apply retrospectively and last until the end of September. There are six temporary measures:
- Suspension of liability for wrongful trading
The Act has removed any personal liability for wrongful trading on the part of directors, even if they know the company is insolvent or may become insolvent. This means companies will be able to continue trading without fear of directors being in breach of this specific duty. This provision has effect from 1 March 2020 to 30 September 2020. Do note, however, that directors must still fulfil their other legal duties.
- Restrictions on statutory demands being used to trigger winding-up petitions
From 27 April 2020, creditors cannot petition for the winding-up of a company based on an unpaid statutory demand. This applies to statutory demands issued between 1 March 2020 and 30 September 2020. Statutory demands are used by creditors to obtain money owed by a company. If the debt has not been settled on expiry of the statutory demand, a creditor is normally permitted to bring winding-up proceedings.
- Winding-up petitions to be refused if a business is affected by Covid-19
The Act also prevents winding-up proceedings being taken against companies that cannot meet their debts due to the effects of the pandemic. This is a low threshold to meet; the company need only demonstrate Covid-19 had a financial effect on the company, not that Covid-19 caused the insolvency. This restriction applies to any petition served between 1 March and 30 September.
There has already been at least one case before the courts where a company has sought to rely on this new rule. Interestingly, one case was brought to court before the Bill was actually passed, but the judge allowed the company to rely on the provision in the Bill as he was confident it would be passed by the end of June in its (then) current form. The judgement has been anonymised to protect the company, but here is the citation: [2020] EWHC 1406 (Ch).
- Small suppliers temporarily exempt from wider changes
Under one of the permanent measures in the Act, some suppliers are no longer allowed to terminate contracts with companies that have entered into insolvency or a restructuring procedure and must continue to supply to the company. However, small suppliers will be exempt from this requirement until 30 September 2020.
- No requirement to hold Annual General Meetings (AGMs)
Companies that are legally obliged to hold an AGM are currently exempt from having to do so under the Act, even if the company’s constitution requires it. This provision applies retrospectively from 26th March 2020 until 30 September 2020.
- Filing deadlines extended for public companies
Public companies that are legally obliged to deliver accounts to the registrar after 25 March 2020 have had their deadline extended to 30 September 2020 under the Act.
You can find out more here and here.
Security Law
Impact of the new Hong Kong security law
Reported by Laurence Tsai
On 28 May 2020, China’s legislature unanimously passed the national security law in Hong Kong and bypassed the city’s legislature, displaying its grip over the territory. The new law contains vague and provisions (English translation of text), and also plainly contradicts the Sino-British Joint Declaration. The dubious reputation of China’s criminal justice system pollutes Hong Kong’s common law system and demolishes the political freedoms once enjoyed by Hong Kongers. Crimes such as terrorism, subversion, secession and collusion will attract penalties of up to life imprisonment, indicating the harsh reality that Hong Kong is but a shadow of China’s ironclad government.
Chinese state security agencies will also be allowed to operate openly in Hong Kong, further capturing the inevitable death of Hong Kong’s autonomy. The legislation applies to people in Hong Kong (Article 37) and those outside (Article 38), meaning that foreign nationals who speak in favour of independence could be prosecuted (Article 29). The extremely wide scope of Article 38 understandably alarms foreign businesses and individuals who are based in Hong Kong. The Chinese government will likely continue to exploit this draconian mechanism to broaden and deepen their reach to silence any signs of resistance.
The uncertainties caused by the ambiguous clauses could also raise risk premiums in the city and perhaps persuade a minority of companies to shift their activity elsewhere. Large companies are at risk of being pressured by the Chinese government to hand over user data or conduct covert surveillance to assist “national security” investigations (Article 43). The Hong Kong police can now order freeze or delete any information which endangers national security. Proponents for the law argue that it could bring greater stability after pro-democracy street protests flooded the streets in 2019. Supporters also say that Hong Kong has distinctive features that make it extremely valuable to China: it has an international currency, it acts as a key conduit for the East and the West, it has a long-established status as a global financial hub, which gives access to the mainland. All these factors are incentives for China to not diminish Hong Kong’s prosperity.
In response to China’s act, the UK has granted those with British National (Overseas) (‘BNO’) passports five years’ limited leave to live and work in the UK to achieve settled status. This would then allow for people to apply for citizenship after another 12-months.
Passing the legislation now is an intelligent, tactical move for several reasons. As the world blames China for its handling of the outbreak in Wuhan, taking back control over Hong Kong announces to the world that China remains king and also reinvigorates nationalistic confidence. Although many jurisdictions have issued formal statements to express their disapproval of the law, their lack of meaningful action may represent the fact that China is an essential component of the universal objective of revitalising the global economy. China’s economy has recovered relatively rapidly while the turbulent force of Covid-19 second waves continues to reverberate in the West. Thus, China is in the enviable position where the West is quite vulnerable that it cannot afford to damage the global economy even further. China has issued further warning statements to all jurisdictions that purport to interfere with an “internal” affair, indicating that it will not tolerate any dissidents.
