Monthly Archives: March 2020
The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 imposes several restrictions.
Over the last week, the police have been keen to enforce compliance, even calling out the MP Stephen Kinnock over social media for visiting his father on his birthday or dying the lake at a Derbyshire beauty spot black.
Given the importance of protecting the NHS, it is likely that the police may take a harder line as the crisis worsens. There is, however, a genuine concern that the police are imposing their own restrictions on individuals that aren’t present within the legislation. Alternatively, they are applying an over-zealous interpretation of the law.
Restrictions on movement
During the emergency period, no person may leave the place where they are living without reasonable excuse.
A reasonable excuse includes the need—
- to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2.
- to take exercise either alone or with other members of their household;
- to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;
- to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(1), to a vulnerable person, or to provide emergency assistance;
- to donate blood;
- to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;
- to attend a funeral of a member of the person’s household, a close family member, if none of these are attending, a friend;
- to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
- to access critical public services, including— childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child); social services; services provided by the Department of Work and Pensions; or, services provided to victims (such as victims of crime);
- in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;
- in the case of a minister of religion or worship leader, to go to their place of worship;
- to move house where reasonably necessary;
- to avoid injury or illness or to escape a risk of harm.
The word ‘need’ prefaces the exceptions and this implies an added necessity test.
Requirement to close premises and businesses during the emergency
A person responsible for carrying on a business which is listed in Part 1 of Schedule 2 must—
During the emergency period—
- close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
- cease selling food or drink for consumption on its premises; or
- if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the emergency period.
The provisions in relation to business closure are particularly complex and a number of police interventions have already been made such as to try and stop shops selling Easter eggs.
Please contact us for accurate up to date advice if you are unsure as to your legal obligations.
Restrictions on gatherings
During the emergency period, no person may participate in a gathering in a public place of more than two people except—
- where all the persons in the gathering are members of the same household,
- where the gathering is essential for work purposes,
- to attend a funeral,
- where reasonably necessary— to facilitate a house move; to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006; to provide emergency assistance, or
- to participate in legal proceedings or fulfil a legal obligation.
Penalties
Breach of these emergency regulations can result in fixed penalties (of up to £960) and unlimited fines.
Adults must do all they can to ensure that children comply, and failure in that regard can itself result in prosecution.
Other enforcement measures can be taken concerning business premises and failing to comply with restrictions.
If you have received a fixed penalty that you wish to challenge or are being investigated or prosecuted for an alleged breach, our expert team are able to advise.
Monthly Archives: March 2020
On Wednesday 25th March 2020 the Coronavirus Bill completed all its parliamentary stages, and Royal Assent was signified, bringing in to force an unprecedented piece of emergency legislation.
The purpose of the Coronavirus Act is to enable the Government to respond to an emergency situation and manage the effects of a covid-19 pandemic.
A severe pandemic could infect up to 80% of the population leading to a reduced workforce, increased pressure on health services and death management processes.
The Act contains temporary measures designed to either amend existing legislative provisions or introduce new statutory powers which are designed to mitigate these impacts.
The Act aims to support Government in the following:
- Increasing the available health and social care workforce
- Easing the burden on frontline staff
- Containing and slowing the virus
- Managing the deceased with respect and dignity
- Supporting people
What are the changes?
The efficiency and timeliness of court and tribunal hearings will suffer during a covid-19 outbreak. Restrictions on travel will make it difficult for parties to attend court and without action a significant number of hearings and trials are likely to be adjourned.
In criminal proceedings, the courts have a duty to deal with cases effectively and expeditiously and that includes making use of technology such as live video links, telephone or email where this is lawful and appropriate.
Video link technology is increasingly being used across the court estate enabling greater participation in proceedings from remote locations. The courts currently have various statutory and inherent powers which enable them to make use of technology.
The Act amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.
Health Protection Regulations
The Act permits ministers to create new criminal offences by regulations issued under existing public health legislation. Such offences are to be triable summarily only and may not be punished with imprisonment.
Enforcement Powers
The Act provides for various enforcement orders to ensure public health and safety are maintained; violation of these orders, including obstruction etc. will be a criminal offence. Many of the emergency powers under the Act can result in criminal sanction if lawful directions are not obeyed.
Infected persons
Schedule 20 of the Act provides for screening and quarantining of infected persons (or persons suspected to be infected).
In enforcing schedule 20 powers (and similar provisions apply to other powers), a constable may:-
- use reasonable force;
- enter any place; and
- give reasonable instructions to the person (though he must inform the person that informing him of the reason for the instruction that it is an offence to fail to comply).
Events, gatherings and premises
Schedule 21 covers events, gatherings and premises.
The provisions give the Secretary of State the power to prohibit or restrict events and gatherings, and to close premises, if the public health situation deems it necessary.
This streamlines existing legislation in England and Wales, to ensure that powers to prevent events or gatherings can be deployed as quickly as possible in the event this is justified by the evidence.
This can be deployed if, having had regard to the relevant advice, such a prohibition or restriction would:
- prevent, protect against or control the incidence or transmission of coronavirus, or
- facilitate the most appropriate deployment of medical or emergency personnel and resources
Conclusion
This legislation has passed through parliament at remarkable speed and with little scrutiny. We are on hand to advise anyone who faces investigation or prosecution as a result of alleged non-compliance.
At all times, we will remain vigilant to ensure that the State does not abuse emergency legislation.
Monthly Archives: March 2020
While accepting that society cannot slip into lawlessness during difficult times, it must also be accepted that it is incumbent on the police and prosecution to take steps to ensure the safety of suspects and their representatives while in police custody.
It was, after all, a police officer’s decision to detain and individual in the first place rather than take verifiable details and arrange an interview at a later date. Again, we accept that there will be circumstances where an arrest and detention will be unavoidable.
Partner and duty solicitor Jon Hullis attended upon a client at the Bridewell police station. Although we had earlier published emails that flowed from our attendance at the police station we have been asked to remove them so have done so.
In summary, observations were made:
- Jon’s experience was that literally no measures were being taken at the Bridewell to distance people. Officers had to be asked to keep a safe distance.
- He was not offered any PPE, although to use it would have been pointless as nobody else was.
- No adjustments were being made to normal procedures in deciding whether interviews are actually necessary. The client to be interviewed in this case was clearly shown on 18 separate sets of CCTV committing shop thefts. The interview was planned to take 90 minutes. The police had indicated the client would be charged in any event.
- In the event Jon’s client, following consultation, chose not to be interviewed. This seemed unarguable bearing in mind the evidence and the current public health situation.
- The officer responded by saying that the Crown Prosecution Service insisted on an interview in every case and that position had not changed. The CPS ‘would have a go at them’ if an interview did not take place.
- Jon made the personal observation that he had carefully followed Public Health England guidance and therefore this was the first time he had left his house in three days. As a result at this attempt at a pointless interview, he has now risked exposing his family to the virus.
- This scenario is being repeated numerous times every day across the two Nottinghamshire custody suites.
A request was made that urgent advice be given from the CPS as to the necessity of recorded interviews in many cases, so that as many people as possible can be protected from wholly unnecessary risks.
We intend to provide advice and representation to all suspects who seek it. There are many benefits to representation in police interview.
Read more here.
Now more than ever it might be that our early input into a case can secure your early release, either to return for interview on a future date or for no action to be taken.
However, we can only permit our staff to attend at police stations when it is safe to do so. The police and prosecution can take simple steps to try and ensure safety. We await confirmation of whether those steps are to be taken.
Monthly Archives: March 2020
A note to legal representatives from HHJ Dickinson QC as to what to expect at Nottingham Crown Court in the immediate future
Monthly Archives: March 2020
On Tuesday 24 March the resident Judge at Derby Crown Court, HHJ Shant QC, hosted a telephone conference for local practitioners. Derby solicitor advocate William Bennett took part in the call.
Local barristers had already announced that they would not be attending court to represent clients and would only take part in hearings by way of telephone or video conferencing.
Essentially it was to obtain thoughts and opinions on the way through the crisis, taking advantage of remote working, as well as discussing how else the court was to continue dealing with cases.
The Court confirmed that the court was running at approximately 25% of the usual staffing level. It was anticipated that the Court would open one or two courts to deal with the admin cases. The court building would not be open to anyone other than staff.
While some chambers and the Crown Prosecution Service had the benefit of ‘proper’ video facilities, others did not have that luxury.
The Learned Judge suggested that PTPH’s could be conducted without plea, but by telephone with the defendant absent, on the basis that instructions had been taken prior to the hearing.
Although this may be possible for bail cases, it seems increasingly unlikely that any progress can be made in custody cases unless special provision is made.
Prisons are not allowing visits. Lawyers cannot access video link facilities if the courts are closed. ‘Informal’ video conferences with prisoners are unlikely to be permitted, even if possible. Telephone conference would need special arrangements with the prisons.
The Judge was concerned about this lack of access to defendants, although she was perhaps the only one of other more vocal contributors who did.
In terms of custody cases, it seems that an announcement will be imminent about legislation suspending custody time limits due to the crisis. This will be at a time when our access to those prisoners is extremely restricted.
The Judge acknowledged that as matters stand it will be impossible to undertake sentences for those in custody. As a result, it appears that they will simply remain there.
Those needing interpreters, whether in prison or on bail, pose another unique problem for the proposed telephone hearings. Without defendants being part of the hearing then that problem may recede.
Judges may be more prepared to offer an opinion in relation to sentence or direction of a case, but that is still being developed.
A further meeting is scheduled for 25 March and we will again publish any useful information arising from it.
If you have any queries about the conduct of your case then please contact the lawyer dealing with it. Although our lawyers are working remotely we are aiming for business to continue as usual as far as that is possible.
Monthly Archives: March 2020
Some useful information to come out of HMCTS this morning to help practitioners and defendants anticipate what is to happen in their cases:
Court plan for the coming week in the East Midlands
If you have a concern about your case then please contact the fee earner responsible. Although staff are working remotely we intend to keep business as usual as far as possible.
Monthly Archives: March 2020
A second telephone conference took place today between local practitioners, the prosecution and judiciary, led by HHJ Dickenson QC, in relation to how Nottingham Crown Court was going to respond to the continuing crisis.
The Lord Chief Justice published guidance this morning and in part this meeting was a reaction to that. Adopting the general tone of that meeting, the Recorder of Nottingham stressed that, for example, trials would only start again in Nottingham once the safety of all those involved could be ensured.
He reflected that this might be unlikely, as staffing levels due to the virus were reduced, and it seemed likely that only the larger courts 1 to 3 would be kept in operation. This would assist in ensuring that distance is kept, particularly if the court continues with its ‘one in one out’ approach to dealing with cases.
Although the Lord Chief Justice appears to recommend simply pushing trials back week after week until they are able to be heard, it seems unlikely that this approach will be adopted in Nottingham. It would eventually lead to a list of hundreds of trials by the time that things return to normal, with the headache of re-listing at that stage. As a result, cases are likely to go into a warned list.
The Judge has taken control of the standards of cleanliness within the building, and is expecting updates on the intention to clean ‘communal’ surfaces such as doors, keyboards and key pads etc every 2 hours.
Rather than prioritise trials, they would prioritise the admin list and try and deal with trials that were capable of sensible resolution. This would mean the 90% of cases that pass through the courts.
Where possible, the court would attempt to move away from the traditional court based hearing. Instead, hearings by way of telephone or video conferencing would be employed. These are both capable of being recorded so can be ‘on the record’.
There was a further discussion of the 74 trials that remain listed to the end of April. Just less than half of the defendants are in custody. Many of them would resolve on the day of trial.
It is hoped that resolution could come sooner, particularly as any trial date is likely to be 6 months away. Resolution might be assisted by judicial intervention, or a realistic approach from either the prosecution or defence.
It seems likely that all trials in any given week are listed on the Monday of that week in the absence of defendants to see whether they can ‘crack’ or whether they need re-listing. Trials are to be allocated to specific Judges who will oversee progress and offer a judicial steer where appropriate.
These hearings are likely to take place as a recorded telephone conference. If a case may be capable of resolution it can then be adjourned for the defendant to offer a view. Negotiation between the Crown and defence is expected to take place prior to the hearing.
The point was accepted that the lay out of the cells meant that it was impossible to observe the ‘2 meter rule’ at Nottingham. Local solicitor advocate Emma Coverley from the Johnson Partnership described how she had to make the judgement to take a colleague and interpreter into the cells that morning to meet a client face to face with the attendant risks.
HHJ Dickenson QC took all opinions on board and we can expect a protocol relevant to Nottingham to be issued within the next day or so.
It is obviously pleasing to be involved in such discussions and feel that the opinions of the defence are valued. While some were vocal that nobody should come to court, issues such as the interests of the client, having a viable justice system at the end of this, and viable practices as well must all be in the mix.
Since finishing the meeting, there has been an announcement that HMCTS have decided that it will adjourn all bail cases except Domestic violence and those that involve children and vulnerable adults. This is likely to be the position for the coming weeks. This in itself may dictate volume of cases before the Crown Court, the majority of defendants appearing there on bail.
If you have any queries about your case and how it may be affected then please contact the solicitor or litigator dealing with your matter.
Monthly Archives: March 2020
At 2 pm on Saturday 21 March 2020, a law came into force which forced the closure of some businesses.
This law was enacted by virtue of The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (and mirror regulations that apply in Wales). The statutory instrument was made in exercise of the powers conferred by sections 45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984.
Which businesses must close?
Schedule 1 of the regulations state that the following businesses must close:
Restaurants, including restaurants and dining rooms in hotels or members clubs.
Cafes, including workplace canteens, but not including—
cafes or canteens at a hospital, care home or school;
canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;
services providing food or drink to the homeless.
Bars, including bars in hotels or members’ clubs.
Public houses.
Cinemas.
Theatres.
Nightclubs.
Bingo halls.
Concert halls.
Museums and galleries.
Casinos.
Betting shops.
Spas.
Massage parlours.
Indoor skating rinks.
Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.
Other business types will likely be added to this list if the government adopts more stringent lock-down measures.
What is the penalty if businesses defy the law?
An unlimited fine can be imposed on the business and any officer of the company who has consented or connived etc. so keeping the business open (regulation 3).
There are, however, other powers available to local authorities who are in charge of policing compliance with these regulations.
Businesses that breach them will be subject to prohibition notices, and potentially unlimited fines. As a further measure, and if needed, businesses that fail to comply could also face the loss of their alcohol license. More draconian powers are also available under the Public Health (Control of Disease) Act 1984, and further powers will soon be law when the Coronavirus Bill becomes law.
In some cases, injunctive relief may be granted, the breach of which could be punished by up to 2 years imprisonment.
There are also reputational issues that need to be considered.
We can advise on all aspects of criminal and regulatory law, if any business is uncertain as to its legal obligations during this worrying time, please do not hesitate to get in touch with us.
How can we help?
Breach of this legislation is likely to be treated seriously as it is designed to avert a national crisis.
If you are arrested or know that the police wish to speak to you about an allegation, make sure you insist on your right to free and independent legal advice.
The advantages of such early advice legal advice can be found here.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.
Legal aid may well be available to fund your defence at court.
We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.
Alternatively you can contact us using the form below.
Contact
Monthly Archives: March 2020
The professions have received a ‘message’ from the Lord Chief Justice reacting to the changing situation relating to the spread of the virus and the justice system.
The full message can be found here.
Perhaps the headline announcement is that there will be no new trials starting for the foreseeable future. While this may not affect those who wait for trials on bail, it will be of particular concern for those who are in custody.
We will wait and see what the court proposals are for dealing with issues such as bail and custody time limits applications.
Contact the fee earner dealing with your case if you have any questions.
Monthly Archives: March 2020
A telephone conference between the Recorder of Nottingham Greg Dickinson QC and local practitioners took place today, Matters discussed were as follows:
- Nottingham Crown Court has 74 trials listed between now and the end of April. The majority are 3 days or less. Of those the split is approximately 50/50 between bail and custody.
- Parties are encouraged to communicate to try and identify cases that can be compromised.
- Cases to be assigned to Judges so that they can be asked for input in appropriate cases.
- 90% of work won’t require a jury. The court and practitioners should be concentrating on those cases that we can do.
- Use of telephone, skype and video link will be used to avoid attendance of as many people as possible if trials run.
- There was perhaps a general acceptance that trials, whatever their length, are not going to take place.
- The court is to consider the operation of a 24 hour emergency number for parties to use to notify the court if there are problems which mean hearings will not be effective to avoid unnecessary attendance of witnesses, jurors etc.
- It is envisaged that the government will enact legislation to suspend custody time limits.
- The principle concern will be the health of all participants in the court system.
If shorter trials are to continue then:
- the court will endeavour to list matters to convenience of advocates.
- the court will not bring trial matters forward without full discussion with the parties.
- consideration to be given to advocates not to have to be robed and wigged to avoid having to use the robing room.
It is likely that all cases listed for trial next week will be listed for Mention on Monday without the need for witnesses and jurors for further directions to be given.
A further meeting has been fixed for Monday 23 March to consider next steps.
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