Desperate Times: Breaking Quarantine to Attend Court?

Sophia Gonella assesses a brief conflict that has occurred between the Bar Council and the Law Society regarding whether lawyers should break quarantine to attend court. This unravelled following the government’s announcement that lawyers may be exempt from the recent self-isolation requirements after returning from abroad. 

Travel restrictions implemented by the government to tackle the spread of coronavirus have recently taken the shape of mandatory fourteen-day isolation periods for those returning from abroad. The Health Protection (Coronavirus, International Travel) (England) Regulations 2020, which came into force on 8 June 2020, applies to arrivals in England from certain travel areas and, under regulation 4, enforces a legal requirement to self-isolate for two weeks following travel. The government has created a comprehensive ‘travel corridor list’, detailing the countries which do not require a self-isolation period upon return to the UK.

The self-isolation or ‘quarantine’ period will be enforced through random spot checks and phone calls. In line with regulation 6, a person who contravenes the regulations and breaks quarantine without a reasonable excuse could be fined up to £1,000 or face potential prosecution.

Exemptions from the Regulations

However, there are a number of circumstances, outlined in regulation 4(9), in which individuals may be permitted to break quarantine, such as to seek medical assistance, on compassionate grounds or to escape a risk of harm. However, regulation 4(9)(c) has proven to be controversial, stating that an individual may break quarantine: “To fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings”. Whilst it is clear that this is intended to allow clients to attend court hearings, the vague drafting left it unclear as to whether barristers and court workers were included in this exemption.

The Bar Council Announces Court Workers are Exempt

A press release on the 19th August by a spokesperson for the Bar Council announced that following talks with the Department of Transport, it had received confirmation that “the permission to leave a place of self-isolation to participate in legal proceedings applies to anyone involved in the proceedings, including defendants, witnesses, and instructing solicitors”.

Despite the nonpartisan statement given by the Bar Council, it appears as though the Council itself applied pressure to the government’s decision. In an email reiterating the news, Amanda Pinto QC, chair of the Bar Council, stated that “this accommodation follows our ongoing pressure on the government to value the functioning of the justice system and the daily work of the bar through Covid-19”. She added, “it’s good to know we are now in league with Formula 1 mechanics and astronauts”.

It is asserted that, far from an occupation competition, the decision to allow court workers to break quarantine poses a serious threat to the health and wellbeing of workers. For many, including the Law Society, treating the exemption as a reflection of how ‘valuable’ the justice system is trivialises this health risk, offering little solace.

The Bar Council vs The Law Society

Whilst the Bar Council have apparently spearheaded the decision to permit barristers to break quarantine to attend court, the Law Society have vehemently rejected this decision and urged the government to withdraw the exemption.

In a statement released on 20 August, the Law Society president Simon Davis said that the exemption poses a “significant danger to court users”, stating that individuals in this situation should “consider fully the potential health implications for other court users if they were to break their self-isolation period and attend in person”. Davis emphasises the elevated risk that BAME practitioners face and the chaos that would ensue if courts were to encounter an outbreak and shut down. Earlier in August, Manchester Crown Court was shut down after the HM Courts and Tribunals Service confirmed that eight workers at the court had tested positive for Covid-19. Davis contended that if these outbreaks were to continue, many more courts would have to shut down, “damaging the government’s court recovery plan and adding to the ever-increasing case backlogs in our justice system”.

Individual barristers are similarly disappointed in the government’s decision and the Bar Council’s message. Charlotte John at Hardwicke Chambers said “Struggling to understand the logic of this and why the Bar Council is presenting it as some kind of victory. Few things less responsible than swanning straight back into court after a jaunt to a high risk country. If you choose go go, quarantine like everyone else afterwards”.

Taking to social media, Adam Willoughby of Broadway House Chambers added “from those of us who are particularly vulnerable if we catch COVID-19, thanks very much. Thanks for making it more dangerous for me to do my job. How is this possibly sensible or fair? How is it fair on court staff?”

The anger expressed towards the decision over the past few days now puts the government and Bar Council in a tricky situation; but whether they will withdraw the exemption is yet to be determined.

Should Lawyers Break Quarantine to Attend Court?

Whilst there is a clear need to address the case backlog, the health and safety of workers must be prioritised. Whilst the decision to make lawyers exempt from quarantine presents a clear threat to the well-being of workers, it may detrimentally impact the functioning of the court in future if there are outbreaks and forced shutdowns. To make matters worse, wearing a mask in court is not mandatory at all times. For example, when people are speaking or presenting in the courtroom, masks may be removed, and magistrates and judges can ask for them to be removed. This further heightens the risk of spreading Covid-19.

Given these health risks, the emphasis that the Bar Council has placed upon the exemption as an indicator of the profession’s ‘value’ is particularly inappropriate. It fails to acknowledge the severity of its decision and the vast number of court workers, particularly vulnerable individuals and BAME practitioners, who will be put at risk. 

Nevertheless, as the Law Society and practitioners express their dissatisfaction with the exemption over the next few days, there is certainly a possibility that the decision may be reversed.

~ Sophia Gonella, The Student Lawyer