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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.

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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.

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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.

 

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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.

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Derby criminal law solicitor Nick Wright attended a telephone conference of Derbyshire’s Criminal Justice Board on 18 March 2020.

This was solely in respect of contingency plans for how to deal with the Covid-19 virus.  It is fair to say that the reaction to the situation by all agencies is fluid bearing in mind the change in government response to the pandemic and how that can affect staff.

Many agencies will have to change what they do as different numbers of staff are unable to come to work or have to work from home.

Agencies have been encouraged to send in their contingency plans to the Criminal Justice Board and they will be distributed them along with other news as necessary.

From the Board’s point of view the following is known:

The Police

The police have been working through worse case scenarios including if they have a 50% absence of staff.  That is on the basis that some departments can operate at 50% staffing levels, leaving other staff to be moved to other duties.  The police have considered what is a critical function, necessary or desirable.  Bearing in mind custody time limits, what’s happening in custody, etc, they are being flexible.

The police have noticed a current decrease in request for police services.

We are told that custody staff know what to do with suspected cases of the virus.  Health will come first.  Cases will be risk assessed to see if the person actually needs to be in custody.  Defence practitioners will be notified of suspected cases.  Safety kit is present in the custody areas and will be provided for defence representatives.  I am told there are masks and hand sanitising gel!!  Essentially the custody plan will take account of anybody visiting.

Courts

The courts have asked for prior notification from the police of defendants with the virus or suspected to have it before being passed to GEO Amey to see if they are going to be accepted at court.

The court, bearing in mind its statutory duty to ensure health and a safe place to work, are carrying out further risk assessments.  Larger court rooms will be used if possible so as to provide for greater distance between individuals in the room.

If anybody arrives at court showing symptoms of the virus, they will be turned away and the case adjourned.

The court is looking at what can be done via video or phone.  Some court staff will apparently be at home for 12 weeks.

Defence practitioners are encouraged to talk to the court in advance, e.g. if it is known that a case will be guilty plea, or even a not guilty plea, particularly for summary only matters, then the case can be done without any attendance at court, so reducing footfall in court and therefore risk.

The court is looking at using Skype including for magistrates, defence lawyers, etc.  The Crown Prosecution Service have some technical issues with Skype.  Some legislation (no detail yet) was passed on 17 March to allow hearings to be done by phone.  We will send out more information as and when we get it.  But it is hoped to be possible to plead guilty or not guilty by phone.  Probation Fast Delivery Report interviews can be done by phone.

Some Magistrates’ trials will be adjourned at short notice because of court staff going off sick, etc, and the court having insufficient staff to man the trial courts.  At this stage not all trials have been taken out of the list, only some.

Risk assessments are being done at each court centre.

For example, two trials at Derby Crown Court on 17 March were adjourned with custody time limits extended because juries, when asked, were not prepared to sit.  The court is managing the situation on a case by case basis.  CPS are liaising with resident judges.  So plans are fluid.

The Crown Court is otherwise running normally with the exception of trials anticipated to last more than three days.  The Lord Chancellor has issued a statement which is available online.

CPS say that they are having problems getting medical statements for cases.

There is now a national steer for how the courts are going to operate.

It is possible that all custody hearings will be done by Skype.  Practitioners are encouraged to ensure that their laptops are set up for Skype to work.

The courts even now can’t run anything near to full capacity so priority is to be given to remand courts and family cases.

Trials are going to be adjourned to a minimum of three months ahead if on bail.

The Bar has called for 30 day suspension of all ‘in person’ hearings but has stated that it will not be a breach of their rules if they don’t go in person to court because they are self-isolating.  Therefore, there is a perceived risk that the whole system could grind to a halt.

The courts are looking at seating arrangements, hand sanitiser availability at court, etc.  National updates all the time but efforts will be made to ensure that people sit at least 6ft 6ins apart.

Unsurprisingly, if staff fail to turn up on one particular day, e.g. for GAP, NGAP or Domestic Abuse Courts, the court will simply have to adjourn.  If there is prior notice, then the court will look at re-bailing people beforehand.

Crown Prosecution Service

As you can image, the CPS are working closely with the police.  They have lots of people working from home and an increasing number of staff self-isolating overnight.  There is the potential for them to have limited numbers of lawyers who can actually present cases in court.

Witness Service

The Witness Service has concerns for a number of their volunteers who either have underlying health conditions or are over 70.  There is a risk to them because of seeing witnesses in small rooms.  The service states that there may be a point where the service is not deliverable, but until then empty court rooms will be used to allow more space between witnesses and witness service staff.  They are very aware of their statutory duty to ensure a safe place of work.

Client attendance

No medical evidence is required if defendants are self-isolating and cases will be adjourned to slightly over 14  days.

If somebody is subject to a failure to attend warrant already, the starting position is not to surrender if they have the virus or are isolating.  The defendant could notify the police of their health situation.  The police, once that it is clear that a person is self-isolating, say that the default position is that health comes first, but each case will be looked at individually.

Youth Offending Service

They are operating well so far.  They have a plan for a reduced service if necessary, e.g. dealing with high risk cases only.

Prisons

The situation is being managed nationally. They expect to be in a serious position soon because of loss of staff to the illness.  Therefore, they will focus on the basics, feeding prisoners, keeping them alive.  Facilities will be stripped away as the situation gets worse.  Video link facilities will go early and quickly followed by legal visits.  Each prison will be different.

The prison is to tell the Criminal Justice Board of any changes and these will be circulated.

If the prison is in a position where it has insufficient staff to man video link hearings, the court acknowledges that it may have limited powers to further remand, although we are perhaps entering uncharted territory.

There will be a further update in about two weeks’ time.  Overall, there is a lot of vagueness on how the system will adapt to the conditions; and organisations are trying to plan.